PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 19-3658

______

RICARDO JAVIER BLANCO,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

______

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A201-664-023)

Immigration Judge: D’Anna H. Freeman

______

Argued April 23, 2020

Before: PORTER, RENDELL and FISHER, Circuit Judges.

(Opinion Filed: July 24, 2020)

Gary H. Levin

Aaron B. Rabinowitz [Argued]

Baker & Hostetler

2929 Arch Street
2

12th Floor, Cira Centre

Philadelphia, PA 19104

Counsel for Petitioner

Joseph H. Hunt, Assistant Attorney General

Bernard A. Joseph, Senior Litigation Counsel

Enitan Otunla [Argued]

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

Ricardo Javier Blanco, a citizen of Honduras, is a 

member of Honduras’s Liberty and Refoundation (“LIBRE”) 

Party, an anti-corruption political party that opposes the current 

Honduran president. After participating in six political 

marches, he was abducted by the Honduran police and beaten, 

on and off, for twelve hours. He was let go but received death 

threats over the next several months until he fled to the United 

States. He applied for asylum, withholding of removal, and 

protection under the Convention Against Torture (“CAT”). 

The Immigration Judge (“IJ”) denied all relief, and the Board 

of Immigration Appeals (“BIA”) affirmed. 

Blanco now petitions for review of the agency’s 

decision, arguing that the BIA and IJ erred in denying his 
3

asylum and withholding of removal claims on the basis that his 

treatment did not rise to the level of persecution. He also argues 

that it was improper to require him to corroborate his testimony 

to prove his CAT claim. Because the agency misapplied our 

precedent when determining whether Blanco had established 

past persecution, and because it did not follow the three-part

inquiry we established in Abdulai v. Ashcroft, 239 F.3d 542, 

554 (3d Cir. 2001), before requiring Blanco to corroborate his 

CAT claim testimony, we will grant the petition, vacate the 

BIA’s decision, and remand for further proceedings. 

I. Background

A. Blanco’s Experience in Honduras

Ricardo Blanco is a citizen of Honduras. Beginning in 

2016, Blanco participated in six marches with the LIBRE 

Party, an anti-corruption political party. Blanco’s sixth march 

was on November 27, 2017, the day after Juan Orlando

Hernández—whom the LIBRE Party opposed—won the 

presidential election. At that march, four Honduran police 

officers arrested Blanco, put a mask over his head, and took 

him to an abandoned house. They held him at the house for 

approximately twelve hours and beat him multiple times, for 

forty to sixty minutes each time. During the beatings, the police 

threatened to kill Blanco and his family and warned him not to 

participate in any further LIBRE Party marches. They also 

used racial slurs against Blanco. After the twelve hours, they 

left him in an abandoned lot. From there, he was taken to a 

hospital for evaluation. He did not have any bruises, cuts, or 

broken bones, and he was given acetaminophen and released.

The next day, Blanco learned that other march

participants had also been abducted by the police and at least 

one of them had been killed. He also heard from a neighbor 
4

that the day after the march, while he was staying at his motherin-law’s house, the police entered his home to look for him.

Blanco remained in Honduras for about fourteen 

months and did not participate in any further LIBRE Party 

activities. He moved from city to city, but the police continued 

to look for him and send him threats. Specifically, Blanco 

received three letters and a phone call warning him that 

because of his political views, he and his family would be 

killed if he did not leave Honduras. Blanco also learned that 

some of the LIBRE Party members who had participated in the 

marches had been killed after receiving similar letters. The last 

letter Blanco received was in December 2018, and in January 

2019, Blanco fled Honduras for the United States. His mother, 

young daughter, and daughter’s mother remain in Honduras 

and, so far as the record shows, have not been harmed.

B. Procedural History

Soon after leaving Honduras, Blanco was taken into 

custody by United States border patrol in Texas. Blanco 

informed border patrol that he was seeking asylum, 

withholding of removal, and protection under the CAT. The 

asylum officer who interviewed Blanco found his testimony 

credible. The Department of Homeland Security issued a 

Notice to Appear charging Blanco with removability as an 

alien who entered the United States without admission or 

parole and who has applied for admission but lacks an entry 

permit. 8 U.S.C. § 1182(a)(6)(A)(i); id. § 1182(a)(7)(A)(i)(I). 

Blanco then applied for asylum, withholding of removal, and 

CAT protection. 

The IJ denied Blanco’s application and found him 

removable. The IJ found Blanco’s testimony credible, stating 

that he was “mostly consistent” except that “his testimony 

regarding who sent the letters and made the phone call 
5

threatening him” “appear[ed] to be speculation.” App. 45. 

Nevertheless, the IJ held that Blanco’s experiences did not rise 

to the level of past persecution on account of his political 

opinion or race because: (1) his “beating was not severe and 

did not end with any serious physical injuries,” and (2) the 

officers did not “follow up” on their threats and Blanco 

“remained in the country for 14 or 15 months after the 

November 2017 incident and was not harmed again.” App. 46. 

The IJ also found that Blanco did not establish a well-founded 

fear of future persecution because “it appear[ed] . . . that [the 

police] met their goal of preventing [Blanco] through 

intimidation from participating in any more political activities” 

and did not follow through on their threats. App. 47. Because 

Blanco did not establish that he was eligible for asylum, the IJ 

found that he necessarily failed to satisfy the higher standard 

for withholding of removal.

Lastly, the IJ concluded that Blanco failed to meet his 

burden under the CAT because he did not establish that it was 

more likely than not that he would be tortured if returned to 

Honduras. Blanco testified that his name was on an official 

government list of opposition members, but the IJ stated that 

there was “nothing in the Country Reports to corroborate this 

and [Blanco] ha[d] not provided any corroborating evidence.” 

App. 47. Additionally, the IJ pointed to the facts that the 

election is over and that Blanco remained in Honduras for 

fourteen months after his abduction and beating without being 

harmed.

On appeal, the BIA affirmed. It concluded that the harm 

Blanco experienced was “more akin to harassment” than 

persecution. App. 7. The BIA also stated that Blanco had not 

established a well-founded fear of future persecution because 

he “ha[d] not shown that there is even a 10% chance that a 

person in his position, i.e., a mere supporter of the LIBRE 
6

Party[,] who, nearly two years ago, participated in a few 

marches . . . w[ould] be persecuted upon his removal to 

Honduras.” App. 7. As to the CAT claim, the BIA reiterated 

that Blanco “ha[d] not presented any evidence which 

specifically corroborate[d] his own claimed fear.” App. 7. 

Blanco now petitions this Court to review the BIA’s decision.

II. Jurisdiction and Standard of Review

The BIA had jurisdiction to review Blanco’s appeal 

from the IJ’s decision under 8 C.F.R. § 1003.1(b)(3). This 

Court has jurisdiction to review a final order of removal under 

8 U.S.C. § 1252(a). Ordinarily, this Court reviews only the 

BIA’s decision because it is the “final order[]” subject to 

appellate review. Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d 

Cir. 2009). But where, as here, the BIA “affirmed and partially 

reiterated” the IJ’s determinations, we review both decisions. 

Id. If the BIA relied on only some of the grounds given for 

denying relief, we review only those grounds. Id.

“While we review for substantial evidence the 

[agency’s] factual findings, we review [its] legal 

determinations de novo, including both pure questions of law 

and applications of law to undisputed facts.” Herrera-Reyes v. 

Att’y Gen., 952 F.3d 101, 106 (3d Cir. 2020) (internal quotation 

marks and citations omitted).

III. Analysis

A. Blanco’s Asylum and Withholding of Removal 

Claims

To establish asylum eligibility, a noncitizen must show 

that he is a “refugee” within the meaning of the Immigration 

and Nationality Act. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A). 

A “refugee” is a person who is “unable or unwilling to return 

to” his home country because of past persecution or, in the 
7

alternative, a well-founded fear of future persecution, on 

account of a protected ground—“race, religion, nationality, 

membership in a particular social group, or political opinion.”

Id. § 1101(a)(42). The noncitizen must also show that the 

government in his home country either committed the 

persecution or was unable or unwilling to control the

persecutor. Chen Yun Gao v. Ashcroft, 299 F.3d 266, 272 (3d 

Cir. 2002), superseded on other grounds by 8 U.S.C. § 

1158(b)(1)(B)(iii).

A noncitizen who applies for asylum automatically 

applies for withholding of removal. 8 C.F.R. § 1208.3(b). The 

Attorney General must grant withholding of removal to a 

noncitizen who shows a “clear probability” that his “life or 

freedom would be threatened” in his home country because of 

a statutorily protected ground. 8 U.S.C. § 1231(b)(3)(A);

Toure v. Att’y Gen., 443 F.3d 310, 317 (3d Cir. 2006). A “clear 

probability” means that persecution is “more likely than not.” 

Toure, 443 F.3d at 317 (internal quotation marks and citation 

omitted). This standard is higher than the asylum standard; 

thus, an alien who fails to establish asylum eligibility 

necessarily fails to demonstrate a “clear probability” of 

persecution, as required for withholding of removal. Id.

Blanco argues that the BIA and IJ erred in concluding 

that he did not establish past persecution or a well-founded fear 

of future persecution to support his asylum and withholding of 

removal claims.1 We agree. 

1 The BIA and IJ focused on the persecution element of 

asylum, concluding that because Blanco failed to establish that 

he suffered past persecution or a well-founded fear of future 

persecution, he was not eligible for asylum. In terms of the 

second element—that the persecution is on account of one of 
8

1. Past Persecution

To show that he is eligible for asylum because of past 

persecution, Blanco must demonstrate that what happened to 

him “rise[s] to the level of persecution.” Abdulrahman v. 

Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003) (quoting Chen Yun

Gao, 299 F.3d at 272). “[P]ersecution does not encompass all 

forms of unfair, unjust, or even unlawful treatment.” Chavarria 

v. Gonzalez, 446 F.3d 508, 518 (3d Cir. 2006) (internal citation 

omitted). “Rather, we have defined persecution as including 

‘threats to life, confinement, torture, and economic restrictions 

so severe that they constitute a real threat to life or freedom.’” 

Lukwago v. Ashcroft, 329 F.3d 157, 168 (3d Cir. 2003) 

(quoting Lin v. I.N.S., 238 F.3d 239, 244 (3d Cir. 2001)).

To determine whether an experience rises to the level of 

persecution, we must look at its “cumulative effect[,] . . . 

because taking isolated incidents out of context may be 

misleading.” Herrera-Reyes, 952 F.3d at 106 (citation and 

alternations omitted). Persecution may be “actual or 

threatened.” Id. “Even if one incident of mistreatment is not, in 

and of itself, severe enough to constitute persecution, a series 

of incidents of physical or economic mistreatment could, taken 

together, be sufficiently abusive to amount to persecution.” Fei 

Mei Cheng v. Att’y Gen., 623 F.3d 175, 193 (3d Cir. 2010). 

In this case, Blanco’s past harm includes the November 

2017 abduction and beating and the series of death threats that 

the statutorily protected grounds—the IJ stated that “this event 

may have been on account of his political opinion,” App. 46, 

and the BIA did not address the subject. Neither the IJ nor the 

BIA addressed the third element—whether the government in 

Honduras committed the persecution or was unable or 

unwilling to control the persecutor.
9

followed. The BIA and IJ misstated our precedent in three 

ways when determining whether this harm rose to the level of 

persecution: first, by requiring Blanco to show severe physical 

harm in order to establish past persecution; second, by 

requiring the death threats to be imminent; and third, by 

considering the beating and death threats separately.

a. The Injury Did Not Need to be 

Severe

This Court does not “condition[] a finding of past 

persecution on whether the victim required medical attention . 

. . or even on whether the victim was physically harmed at all.”

Doe v. Att’y Gen., 956 F.3d 135, 145 (3d Cir. 2020). “We have 

never reduced our persecution analysis to a checklist or 

suggested that physical violence—or any other single type of 

mistreatment—is a required element of the past persecution 

determination.” Herrera-Reyes, 952 F.3d at 110. Nor do we 

“measure[]” the “severity of an injury” in “stitches.” Kibinda 

v. Att’y Gen., 477 F.3d 113, 120 (3d. Cir. 2007). However, that 

is exactly what the BIA and IJ did here. The IJ stated that 

“[a]lthough [Blanco] was mistreated, . . . the beating was not 

severe and not did end with any serious physical injuries.” 

App. 46. The BIA agreed, noting that Blanco “required only 

Tylenol” to treat his physical injuries, “as opposed to stitches, 

surgery, or prescription medication.” App. 6. 

The IJ relied on our prior holding that “an isolated 

incident that does not result in serious injury does not rise to 

the level of persecution.” App. 32 (citing Voci v. Gonzales, 409 

F.3d 607, 615 (3d Cir. 2005)). However, setting aside the fact 

that Blanco’s abduction and beating was not an isolated 

incident (it was followed by four death threats), we have never 

defined serious injury to mean serious physical injury. See, 

e.g., Doe, 956 F.3d at 145.
10

For example, in Chavarria v. Gonzalez, we held that 

death threats that “cause significant actual suffering or harm” 

are cognizable forms of persecution. 446 F.3d at 518, 520

(internal quotation marks omitted). When Chavarria saw 

paramilitary forces attacking two members of a humanitarian 

organization that opposed the Guatemalan government, he 

came to their aid. Id. at 513. Soon after, his home was 

surveilled by the paramilitary forces. Id. Some time later, while

driving at night, Chavarria was stopped, forced from his car, 

and robbed by individuals who pointed a gun to his head and 

warned him that “if we ever see you again, you’re not going to 

even live to tell the story.” Id. Chavarria’s request for asylum 

was denied. Id. at 515. The BIA concluded that he “failed to 

demonstrate past persecution, because there was never any 

specific threat of harm rising to the level of past persecution or 

any physical harm.” Id. We reversed, concluding that even 

though there was no evidence of physical harm, Chavarria’s 

death threat, in light of his experience of being forced from his 

car and robbed at gunpoint, rose to the level of persecution. Id. 

at 520. 

The Government attempts to distinguish Chavarria by 

saying that the threats to Blanco were “indirect . . . (via letter 

and telephone)” and that Blanco had “no bruises or cuts . . . 

[or] broken bones.” Resp’t’s Br. 19. However, Chavarria did 

not hold that threats must be made “directly” or in person to 

constitute persecution. Furthermore, like Blanco, Chavarria 

did not sustain bruises, cuts, or broken bones. In fact, he was 

not physically harmed at all, whereas Blanco was beaten—for 

hours.

The Government argues that this case is more similar to 

Kibinda, where this Court held that petitioner’s five-day 

detention by the Angolan army and subsequent maltreatment—

having an object thrown at him so that he needed seven 
11

stitches—was “far from unusual or extreme” and did not 

constitute past persecution. 477 F.3d at 117, 119. However, 

evaluating past persecution is not as simple as comparing the 

severity of each injury. Kibinda had provided no other 

objective evidence to demonstrate that the single injury was 

enough to constitute persecution. Id. at 119. Furthermore, we 

have since clarified that Kibinda did not “foreclose[] the 

possibility that outrageous conduct, even if limited to a single 

event without physical harm, could rise to the level of 

persecution, as was the case in Chavarria.” Doe, 956 F.3d at 

145 n.5.

Thus, our precedent demonstrates that physical harm is 

not dispositive in establishing past persecution. The BIA and 

IJ erred in requiring that Blanco show physical harm, much less 

severe physical harm.

b. Threats Need Not Be “Imminent,” 

But Rather “Concrete” and 

“Menacing”

The BIA and IJ next erred by requiring that the threats 

Blanco received be “imminent,” in addition to “concrete and 

menacing.” This is not our standard for assessing whether 

threats are sufficiently serious to constitute persecution. We 

explained this point at some length in Herrera-Reyes. We 

noted that it is true that “we have sometimes used the phrase 

‘highly imminent, concrete and menacing.’” 952 F.3d at 108 

(quoting Chavarria, 446 F.3d at 520 (emphasis added)). 

“[M]ore frequently,” however, “we have used the terms 

‘concrete’ and ‘imminent’ interchangeably or in the 

disjunctive.” Id. That, we explained, “is with good reason: 

‘Imminence’ is a misnomer here.” Id. In actuality, “[w]e have 

neither required that the threat portend immediate harm nor 

that it be in close temporal proximity to other acts of 
12

mistreatment.” Id. The key is not a threat’s imminence, but 

rather its likelihood, which is “subsumed in the inquiry as to 

whether the threat is ‘concrete.’” Id. For these reasons, we 

announced that we will “refer to the standard going forward 

simply as ‘concrete and menacing.’” Id.2

“A threat is ‘concrete’ when it is not abstract or ideal, . 

. . but is corroborated by credible evidence.” Id. (internal 

quotation marks and citations omitted). “[A] threat is 

‘menacing’ where it show[s] . . . intention to inflict harm.” Id. 

(internal quotation marks omitted). In sum, “a threat that is 

‘concrete and menacing’ is simply one that—considered in the 

context of the full record—poses a severe affront to the 

petitioner’s life or freedom.” Id. (internal quotation marks 

omitted). 

Both the BIA and the IJ repeatedly emphasized that, 

despite the death threats, Blanco remained unharmed in 

Honduras for over a year. As is clear, however, a threat need 

not be acted on to constitute persecution. Herrera-Reyes, 952 

F.3d at 108. In a similar case to this one, where the threats were 

unfulfilled and the petitioner fled his home country, we wrote 

that “[t]o expect [a p]etitioner to remain idle in that situation—

waiting to see if his would-be executioners would go through 

with their threats—before he could qualify as a refugee would 

upend the fundamental humanitarian concerns of asylum law.” 

Doe, 956 F.3d at 144 (internal quotation marks and citation 

omitted). Indeed, if Blanco’s persecutors had followed through 

2 While Herrera-Reyes was not published when the IJ 

and BIA issued their decisions, we made clear there that we 

were not establishing a new rule, but rather clarifying the 

standard that our precedent has always required. 952 F.3d at 

108.
13

with their threats—as the BIA and IJ seem to suggest was 

necessary—Blanco would be dead.

The threats Blanco received were both concrete and 

menacing. Others who attended the LIBRE Party march had 

been killed—and some of those victims had received 

threatening letters like Blanco’s beforehand. This demonstrates 

the “likelihood of the harm threatened.” See Herrera-Reyes, 

952 F.3d at 108. Furthermore, the threats were concrete 

because, as Blanco credibly testified, during the fourteen 

months after the November 2017 incident, he fled from city to 

city as the police continued to look for him. The threats were 

also “menacing” because they expressed the intention to kill 

Blanco and his family if he did not leave Honduras.

Thus, the BIA and IJ erred by not applying the proper 

standard under our precedent in evaluating when threats suffice 

to establish persecution. 

c. Harm Must Be Considered

Cumulatively

Lastly, the BIA and IJ erred by failing to consider the 

aggregate effect of Blanco’s mistreatment. See Herrera-Reyes, 

952 F.3d at 109. In determining whether an asylum applicant 

suffered past persecution, the agency may not “take a single 

instance of mistreatment . . . from a larger pattern of abuse and 

confine its persecution analysis to the question of whether that 

single instance was, in and of itself, persecutory. Instead, 

incidents alleged to constitute persecution . . . must be 

considered cumulatively.” Fei Mei Cheng, 623 F.3d at 192 

(internal quotation marks, alteration, and citation omitted). 

“Even if one incident of mistreatment is not, in and of itself, 

severe enough to constitute persecution, a series of incidents . 

. . could, taken together, be sufficiently abusive to amount to 

persecution.” Id. at 193. Thus, each incident must be “assessed 
14

within the ‘overall trajectory of the harassment.’” Id. at 193 

(quoting Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 343 (3d 

Cir. 2008)).

Moreover, “[a] cursory invocation of the word 

‘cumulative’ is insufficient”: “[e]ven if the [agency is] correct 

that no single incident in isolation rose to the level of past 

persecution, [it is] still required to analyze whether the 

cumulative effect of these incidents constituted a severe ‘threat 

to life or freedom.’” Herrera-Reyes, 952 F.3d at 109 (quoting

Fei Mei Cheng, 623 F.3d at 192–93). In Herrera-Reyes, for 

example, the IJ erred “[b]y finding it dispositive that [the 

p]etitioner herself ‘was never physically harmed’ . . . and by 

failing to factor in the cumulative effect of the destruction of 

[her] home, the shooting of her convoy, the murder of her 

political compatriot, the armed robbery of the inauguration 

preparations, and the verbal death threat.” Id.

There appears to have been a difference between what 

the BIA did and what it said it was doing when it analyzed the 

cumulative effect of Blanco’s experience. It “paid lip service” 

to the notion of cumulative analysis, id. at 110, stating that it 

was looking at “the past harm, considered cumulatively.” App. 

6–7. But it also said the harm was “more akin to harassment,” 

emphasizing that the events “commenced with an isolated 

incident of physical harm.” App. 7 (emphasis added). The BIA 

and IJ did not consider how the “surrounding acts of 

mistreatment” (the abduction and beating by the Honduran 

police and Blanco’s testimony regarding other LIBRE Party 

protesters who had been killed) “corroborated” the death 

threats that Blanco received. See Herrera-Reyes, 952 F.3d at 

110. Thus, as in Herrera-Reyes, “although [the agency]

purported to consider the incidents ‘cumulatively,’ in practice 

[it] evaluated the [harm] to [Blanco] in isolation and without 

accounting for the broader campaign of intimidation, 
15

harassment, and violence substantiated by the record.” Id. at 

108 (internal citations omitted).

Although Herrera-Reyes is factually different from 

Blanco’s case, at bottom it addressed “whether and under what 

circumstances threats of violence may contribute to a 

cumulative pattern of past persecution when not coupled with 

physical harm to the asylum-seeker or her family.” Id. at 104. 

To this effect, we noted that “[i]n evaluating whether a threat 

is ‘concrete and menacing’ in the absence of physical harm . . 

. , we have considered more broadly whether surrounding acts 

of mistreatment had corroborated that threat with the ultimate 

effect of placing the petitioner’s life or liberty in peril.” Id. at 

110.

In Herrera-Reyes, we concluded that the incidents the 

petitioner experienced “reflect[ed] an escalating pattern of 

mistreatment” that culminated in a final death threat, and that 

final death threat was “concrete and menacing” considering the 

context in which it was given. Id. at 111–12. That context was 

the fact that the petitioner was the leader and president of an 

opposition group to the Nicaraguan government who 

experienced verbal threats, the burning of her family’s home, 

the murder of her close compatriot, and the robbery of her 

workspace at gunpoint. Id. at 104, 112.

The four death threats lodged against Blanco were, of 

course, not received in an identical context. The most 

important differences are that Blanco was not a high-level 

leader of the LIBRE Party and the record does not reflect that 

he was a close associate of the members of the LIBRE Party 

who were killed—though he did learn that some were killed 

after receiving similar threatening letters. Nevertheless, the 

incidents Blanco experienced “reflect an escalating pattern of 

mistreatment,” id. at 112, sufficient to rise to the level of 
16

persecution because Blanco, unlike Herrera-Reyes, suffered 

physical harm—the November 2017 abduction and beating—

in addition to receiving threats of violence. Furthermore, 

unlike Herrera-Reyes, the death threats Blanco received were 

also directed towards Blanco’s family. 

Ultimately, while Herrera-Reyes is instructive to our 

analysis, we must remember that it addressed “under what 

circumstances threats of violence may contribute to a 

cumulative pattern of past persecution when not coupled with 

physical harm.” Id. at 104. Thus, the factual differences 

between Herrera-Reyes’s case and Blanco’s case become less 

significant when one considers that Blanco’s threats of 

violence—that contributed to a cumulative pattern of past 

persecution—were coupled with physical harm. We think it is 

appropriate to conclude that it was more important to HerreraReyes’s past persecution analysis that she was a leader of her 

political movement and that she was close associates with the 

political activist who was murdered because Herrera-Reyes 

could not show any physical harm. But here, Blanco’s threats 

of violence were coupled with physical harm, and that suffices 

to establish past persecution in this case. 

* * *

In sum, the BIA and IJ erred when they held that the 

harm Blanco experienced did not meet our legal standard for 

past persecution. Upon application of the proper standard, it is 

clear from the record that Blanco has established past 

persecution. We will remand to the BIA to consider the other 

two elements of asylum eligibility, that is, whether the 

persecution was on account of a statutorily protected ground 

and whether it was committed by the government or forces the 

government was unable or unwilling to control.
17

2. Well-founded Fear of Future Persecution

A noncitizen who proves past persecution is “presumed 

to have a well-founded fear of persecution on the basis of the 

original claim.” 8 C.F.R. § 1208.13(b)(1). The burden then 

shifts to the Government to rebut this presumption, and it can 

do so by showing that there has been a “fundamental change in 

circumstances” or that the noncitizen “could avoid future 

persecution by relocating” to another part of his or her home 

country and “it would be reasonable to expect the applicant to 

do so.” 8 C.F.R. § 1208.13(b)(1)(i)(A), (B), (ii).

Because Blanco was subjected to past persecution, he

was entitled to a rebuttable presumption of a well-founded fear 

of future persecution. “But as the IJ erroneously found to the 

contrary and the BIA affirmed, neither determined whether the 

presumption of future persecution could be rebutted, and that 

determination lies with the agency in the first instance.” 

Herrera-Reyes, 952 F.3d at 112 (citing 8 C.F.R. 

§ 1208.13(b)(1)(i)).

3. Withholding of Removal

“To qualify for withholding of removal, an alien must 

establish a ‘clear probability of persecution,’ i.e., that it is more 

likely than not, that s/he would suffer persecution upon 

returning home.” Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 

582, 591 (3d Cir. 2011). “Since this standard is more 

demanding than that governing eligibility for asylum, an alien 

who fails to qualify for asylum is necessarily ineligible for 

withholding of removal.” Id. (citation omitted). The IJ and the 

BIA concluded that Blanco had not established eligibility for 

asylum because he failed to demonstrate past persecution or a 

well-founded fear of future persecution, so they summarily 

dismissed Blanco’s claim for withholding of removal.
18

Because we conclude that Blanco has established past 

persecution, we will vacate the BIA’s denial of withholding 

and remand with instructions to reconsider the claim. See

Konan v. Att’y Gen., 432 F.3d 497, 501 (3d Cir. 2005)

(explaining that our review of the BIA’s decision “is limited to 

the rationale that the agency provides”).

B. Blanco’s CAT Claim

To establish eligibility for a mandatory grant of 

withholding or deferral of removal under the CAT, an 

applicant must prove “that it is more likely than not that he . . .

would be tortured if removed to the proposed country of 

removal.” 8 C.F.R. § 1208.16(c)(2). Torture is: 

(1) an act causing severe physical or mental 

pain or suffering; (2) intentionally 

inflicted; (3) for an illicit or proscribed 

purpose; (4) by or at the instigation of or 

with the consent or acquiescence of a 

public official who has custody or physical 

control of the victim; and (5) not arising 

from lawful sanctions.

Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005). “The 

objective evidence to be considered in evaluating a CAT claim 

includes ‘[e]vidence of past torture inflicted upon the 

applicant;’ ‘[e]vidence of gross, flagrant or mass violations of 

human rights within the country of removal;’ and ‘[o]ther

relevant information regarding conditions in the country of 

removal.’” Id. at 134 (quoting 8 C.F.R. § 1208.16(c)(3)).

The applicant bears the burden of proving his 

entitlement to protection under the CAT, and his testimony “if 

credible, may be sufficient to sustain the burden of proof 

without corroboration.” 8 C.F.R. § 1208.16(c)(2). “However, 

corroborating evidence may be required when it is reasonable 
19

to expect it, such as for ‘facts [that] are central’ to a claim and 

easily verified.” Luziga v. Att’y Gen., 937 F.3d 244, 255 (3d 

Cir. 2019) (quoting Chukwu v. Att’y Gen., 484 F.3d 185, 192 

(3d Cir. 2007)). 

“Before requiring corroborating evidence, i.e., deciding 

that ‘failure to corroborate undermines’ a claim, an IJ must 

follow the Abdulai inquiry.” Id. (quoting Saravia v. Att’y Gen., 

905 F.3d 729, 736 (3d Cir. 2018)). That three-part inquiry 

requires that an IJ (1) identify “the facts for which ‘it is 

reasonable to expect corroboration,’” (2) ask whether the 

applicant has corroborated them, and (3) if not, consider 

“whether the applicant has adequately explained his . . . failure 

to do so.” Id. (quoting Saravia, 905 F.3d at 736). “We have 

repeatedly held that the [BIA’s or IJ’s] failure to engage in the 

three-part inquiry described above requires that the BIA’s 

findings regarding corroboration be vacated and remanded.” 

Toure, 443 F.3d at 323; see also Luziga, 937 F.3d at 255; 

Mulanga v. Ashcroft, 349 F.3d 123, 136 (3d Cir. 2003).

Here, the IJ did not engage in the three-part Abdulai

inquiry before denying Blanco’s CAT claim on the basis that 

“there is nothing in the Country Reports to corroborate” 

Blanco’s belief that his name is on a government list of 

opposition members and he has “not provided any 

corroborating evidence.” App. 47. The BIA affirmed on the 

same basis. This was legal error. Therefore, we will vacate and 

remand for the BIA to apply the correct legal standard in the 

first instance.3

3 On remand, there is also a question regarding the 

reasonableness of the demand for corroboration:

It is obvious that one who escapes 

persecution in his or her own land will 
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IV. Conclusion

For these reasons, we will grant the petition for review 

of Blanco’s asylum, withholding of removal, and CAT claims, 

vacate the BIA’s order, and remand for further proceedings 

consistent with this opinion. Because we conclude that Blanco 

has established past persecution, on remand, the BIA should 

consider the remaining elements of asylum eligibility (whether 

the persecution was on account of a statutorily protected 

ground and whether it was committed by the government or 

forces the government was unable or unwilling to control) and 

whether he was entitled to withholding of removal. In addition, 

the BIA should reevaluate whether Blanco was entitled to relief 

under the CAT

rarely be in a position to bring documentary 

evidence or other kinds of corroboration to 

support a subsequent claim for asylum. It is 

equally obvious that one who flees torture 

at home will rarely have the foresight or 

means to do so in a manner that will 

enhance the chance of prevailing in a 

subsequent court battle in a foreign land. 

Common sense establishes that it is escape 

and flight, not litigation and corroboration, 

that is foremost in the mind of an alien who 

comes to these shores fleeing detention, 

torture and persecution.

Toure, 443 F.3d at 324 (quoting Senathirajah v. I.N.S., 157 

F.3d 210, 215–16 (3d Cir. 1998)). The agency should take 

these principles into account when performing the Abdulai

inquiry.