United States Court of Appeals

FOR THE EIGHTH CIRCUIT

________________

No. 06-1629

________________

Carlos Anselmo Lucar Flores; Bertha *

Canchari Lucar; Karina Rosa Lucar *

Canchari, *

*

Petitioners, *

* Petition for Review from the 

v. * Board of Immigration Appeals.

*

Alberto Gonzales, * [UNPUBLISHED]

*

Respondent. *

________________

Submitted: April 9, 2007

 Filed: April 16, 2007 

__________________

Before MELLOY, BOWMAN and GRUENDER, Circuit Judges. 

________________

PER CURIAM. 

Carlos Anselmo Lucar Flores (“Lucar Flores”), Bertha Canchari Lucar and their

daughter, Karina Rosa Lucar Canchari, petition this court for review of the decision

of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s

(“IJ”) denial of their requests for asylum, withholding of removal and relief under the

Convention Against Torture (“CAT”). We grant the petition, vacate the BIA’s order

and remand for further proceedings.
-2-

The petitioners are natives and citizens of Peru. On April 9, 1998, they entered

the United States as non-immigrant visitors for pleasure with authorization to remain

in the United States until October 7, 1998. Lucar Flores and his daughter never

departed from the United States, but his wife returned to Peru in October 1998. She

then reentered the United States on December 4, 1998, and, although she was required

to leave by June 4, 1999, she remained in the United States thereafter. The petitioners

acknowledged that they were removable, and they petitioned for asylum, withholding

of removal, relief under the CAT, and, alternatively, voluntary departure. The

petitioners alleged that they suffered past persecution in Peru because of their political

opinions and they fear future persecution and torture if they return. 

While in Peru, Lucar Flores owned and maintained a business that sold and

delivered kerosene to other businesses in Peru. According to Lucar Flores, Sendero

Luminoso (“SL”), a terrorist group seeking to overthrow the Peruvian government,

threatened and attacked him and his family on several occasions because of his refusal

to collaborate with the SL and his support for the Peruvian government, as

demonstrated by his assistance with the rebuilding of government buildings and his

monetary donations to hospitals, health centers and orphan centers. Lucar Flores

testified that the SL beat him when he refused to support its agenda. The SL then

attacked him and took his car to distribute flyers in connection with its agenda. Lucar

Flores did not report this incident to the police because the SL threatened to kill him

if he did so. Lucar Flores also testified that the SL killed one of his brothers because

his brother refused to support the SL’s mission, assaulted another brother and shot a

third brother. In another incident, the SL broke into Lucar Flores’s home and stole

money and electronic appliances. Lucar Flores reported this incident to the police, but

he did not specify who robbed his house for fear that the SL would harm him and his

family. The SL also stole his truck and kerosene before returning the truck without

the kerosene. Finally, the SL threatened his mother. These actions forced the

petitioners to leave Peru, and they believe that the SL will torture and kill them if they
1

The BIA also denied the petitioners’ due process argument concerning the trial

proceedings, which the petitioners do not appeal to this court. 

-3-

return. They also claim that police would be unable to protect them from attacks by

the SL.

The IJ heard evidence that the leader of the SL had been captured in 1992, the

SL was in substantial decline after its leader’s capture, and the SL conducted most of

its activity in the Peruvian jungle near Ecuador, far from the petitioners home in Lima.

The IJ ultimately held that Lucar Flores was not credible because most of his claims

of persecution occurred after the leader of the SL was captured and the SL was in

“substantial decline”; that the petitioners had not established that they suffered past

persecution; and that they had not established a well-founded fear of future

persecution or likelihood of torture if returned to Peru. The IJ then denied the

petitioners’ application and granted the privilege of voluntary departure. The BIA

issued a three-page opinion affirming the IJ’s holding, without expressly adopting the

IJ’s reasoning, without adding its own reasoning and without addressing Lucar

Flores’s credibility.1

We review the BIA’s determination of an alien’s eligibility for asylum or

withholding of deportation for substantial evidence. Krasnopivtsev v. Ashcroft, 382

F.3d 832, 837 (8th Cir. 2004). “[W]e may not overturn the BIA’s determination

unless the evidence was so compelling that no reasonable fact finder could fail to find

the requisite fear or persecution.” Id. (internal quotation omitted). “Only the BIA

order is subject to our review, including the IJ’s findings and reasoning to the extent

they were expressly adopted by the BIA.” Fofanah v. Gonzales, 447 F.3d 1037, 1040

(8th Cir. 2006). If the BIA adopts the IJ’s decision and adds its own reasoning, then

we will review both decisions together. Lengkong v. Gonzales, 478 F.3d 859, 862

(8th Cir. 2007). 
-4-

An alien is eligible for asylum when he is a refugee “who is unwilling or unable

to return to his or her home country ‘because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular social

group, or political opinion.’” Celaj v. Gonzales, 468 F.3d 1094, 1097 (8th Cir. 2006)

(quoting 8 U.S.C. § 1101(a)(42)(A)). The well-founded fear must be both

“subjectively genuine and objectively reasonable.” Id. However, if an alien can

demonstrate he suffered past persecution, there is a rebuttable presumption that he

would suffer future persecution. Id. 

The petitioners argue that the IJ and BIA incorrectly determined that they did

not suffer past persecution and did not have a well-founded fear of persecution “on

account of” their political opinions. Without incorporating the IJ’s reasoning or

adding any of its own, the BIA merely agreed with the IJ’s conclusion that “the record

fail[ed] to establish that the Sendero Luminoso was interested in anything more than

[Lucar Flores’s] business, client contacts, and his possession of a saleable commodity,

which the Sendero Luminoso could steal to further their cause . . . [and] the record is

devoid of objective evidence providing a nexus between the Sendero Luminoso’s

interest in the [petitioners] and a protected ground. ” BIA Decision at 2. While the

IJ based his finding that there was no past persecution or well-founded fear of

persecution “on account of” the petitioners’ political opinions primarily on his

determination that Lucar Flores was not credible, the BIA reached its decision without

any reference to the IJ’s adverse credibility finding regarding Lucar Flores’s

testimony. Without the BIA’s express adoption of the IJ’s credibility finding, as well

as the fact that the BIA did not add any of its own reasoning supporting its decision,

we are unable to review the IJ’s credibility findings. See Vonhm v. Gonzales, 454

F.3d 825, 828 n.2 (8th Cir. 2006); Lengkong, 478 F.3d at 862.

Since we cannot review the IJ’s credibility findings, we review the BIA’s

decision that the record failed to establish that the SL sought to persecute the
-5-

petitioners “on account of” their political opinions. The BIA’s statement that the

“record is devoid of objective evidence” of the necessary connection to a protected

ground suggests that it believed that the petitioners failed to provide evidence

corroborating their claim of persecution. However, if the BIA denies a petition

because of an absence of corroborative evidence, it must: “(1) rule explicitly on the

credibility of [the applicant’s] testimony; (2) explain why it was reasonable in this

case to expect additional corroboration; or (3) assess the sufficiency of [the

applicant’s] explanations for the absence of corroborating evidence.” El-Sheikh v.

Ashcroft, 388 F.3d 643, 647 (8th Cir. 2004) (quotation omitted). As already

mentioned, the BIA did not rule explicitly on the credibility of Lucar Flores’s

testimony that the SL persecuted him in part because of his political opinion. See De

Brenner v. Ashcroft, 388 F.3d 629, 636 (8th Cir. 2004) (stating that an alien can be

persecuted because of a protected ground even when the persecution is also motivated

by other nonprotected grounds). Also, the BIA neither explained why corroborative

evidence was necessary nor assessed whether Lucar Flores provided a sufficient

explanation for the lack of corroborative evidence. Without any of the necessary

explanation or reasoning, we are unable to review the BIA’s actual reasoning. See ElSheikh, 388 F.3d at 648 (“Lacking a BIA finding as to [petitioner’s] credibility and an

analysis of what material facts central to his claim of past persecution should have

reasonably corroborated, we have no way of reviewing the Board’s actual reasoning.”)

(internal quotation omitted); see also INS v. Ventura, 537 U.S. 12, 16 (2002) (stating

that a court of appeals does not have the power to review de novo an agency’s

decision and instead must remand a case to the agency when “additional investigation

or explanation” is necessary). 

Therefore, we grant the petition for review, vacate the BIA’s order and remand

to the BIA for further proceedings consistent with this opinion. On remand, the BIA

should explain clearly its reasoning for its findings and conclusions. Due to our
-6-

decision on the asylum appeal, we also remand the denial of the withholding of

removal and the relief under the CAT. 

______________________________