F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

L Y D I A G A R

C I A -M I L I A

N , P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 09-71461

Ag ency No. A096-180-239

ORDER AND AMENDED OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted May 9, 2013—Pasadena, California

F iled September 18, 2013 Amended F ebruary

13, 2014

B efore: Diarmuid F . O’Scannlain, Richard A. Paez , and

Sandra S. I kuta, Circuit J udg es.

Opinion by

J udg e I k uta; Partial Concurrence and Partial Dissent by J udg e PaezG A R C I A -M I L I A

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. H O L D E R 2

SUMMARY *

Im m igration

The p anel r eplaced its prior opinion and concurrence a nd d i ssent, filed on September 18, 2013, and published at 730 F .3d 9 9 6, with an amended opinion a n d amended concurrence and d issent, denied a petition for panel reh e a r i n g, denied a petition f or rehearing en banc on behalf of the court, a n d ordered that no further petitions shall be entertained.

I n the amended opin i o n , t h e panel denied a petition for review of the Bo ard of I mmig r ation Appeals’ decision deny ing a sy lum and withholding o f removal t o a native a nd citiz en of Guatemala b ecause the evidence did not compel the conclusion that petitioner w as persecuted on account of her i m p u t e d p olitical opinion. T h e panel further held that th e evidence did not compel the conclusion that pe t i t i oner was

a t t a cked with the acquiescence of the G uatemalan
g overnment for purposes of CAT relief.

Concurring in part and dissenting in part, J u d ge Paez
ag reed with the majority that the B oard did not err in deny ing petitioner’s CAT claim, but wrote that t h e evidence in the record compelled the conclusion that petitioner was a ttacked and raped because of her ex -husband' s political opinions.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.G A R C I A -M I L I A

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. H O L D E R 3

COUNSEL

J o u b in P. Nasseri, Nasseri L aw G roup, L os Ang el e s , California, for Petitioner.

Tony W est, Assistant Attorney General, E mily Anne Radford, Assistant Director, Nicole M u r l ey and J esse L

. B usen (arg

ued), Trial At t o r ney s, Office of I mmig r ation L itig ation, United States Depar t m e n t of J ustice, Civil Division, W ashing ton, D.C., for Respondent.

ORDER

The opinion and dissent f iled on September 18, 2013 a re amended. The superseding amended o p inion and dissent will be filed concurrently with this order.

W ith these amendments, a majority of the panel has voted
to deny p etitioner’s petition for panel rehearing and her petition for rehearing

en b anc. J udg e Paez voted to g rant the petitions. The petition for rehearing en b a nc was circulated
to the judg es of the court, a nd n o v ote for rehearing e n banc

was taken. The petition for r ehea r i n g and the petition for rehearing e n banc are DE N I ED

. No f urther petitions for rehearing or petitions for r ehearing en ban c w i l l be entertained.G A R C I A -M I L I A

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OP INION

I KUTA, Circuit J udg e:

L y dia Garcia-Milian, a nati v e and citiz en of G uatemala, petitions for r eview of the denial of her applicatio n s f o r asy lum, withholding of removal, and r e l i ef under the Conven t ion Ag ainst Torture (CAT) by the B oard o f I mmig r a ti o n A ppeals (B I A). B ecause substantial evidence supports the B I A’s determinations that Garcia-Milian w as not persecuted on account of an im puted p olitical opinion a nd that the attack she suffered did n o t o c c ur with the acqui e scence of the Guatemalan g overnment, we deny her petition.

I

Garcia-Milian entered the United States illeg ally in J u ne 2003. After the g overnment initiated r em o val proceeding s, she conceded removability and, on May

3, 2004, applied for
asy lum, w ithholding of removal, a n d C A T relief. See 8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F .R. § 208.18.

Garcia-Milian testified at the rem o v a l p r o c e eding s and the I J c o ncluded that her te s t i m o n y was credible. According to Garcia-Milian, she li v e d i n Salama, Guatemala, a small city of approx imately 15,000 peo p l e. B etween 1985 and 1989, she lived with Noe Garcia, her common law husband. 1 As a truck driver, Garcia was frequently away from Salama a nd

1 W e u se th e term “ co m m o n law h u sb an d ” b ecau se Garcia- Milian testif ied th at No e w as h er h u sb an d b u t th at th ey w ere n ev er f o rm ally

m arried

. T h e reco rd d o es n o t rev eal th e ex act leg al statu s o f th eir relatio n sh ip

.G A R C I A -M I L I A

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would stay with Garcia-Milian for o nly two day s e ach month. D u ring the time they were tog ether, Garcia never discuss e d politics or the ong oing civil war in Guatemala with G arciaMilian, and n ever told her that he wa s i n a g uerilla g roup o r org aniz ation. I n approx imately 1989, Garcia married another woman and did not return to Salama. Garcia-Milian did not have any further contact with him from that time forward.

Around 2000, G arcia-Milian noticed two masked men following her when she was out shopping or g oing to school. This occurred around twenty ti mes. Garcia-Milian did not report these incidents to the police because she did n ot think
t h a t t he police would help her. Subsequently

, in May 2003, the two masked men came t o her home at nig ht a nd demanded that she open the door. W hen she did so, they told her that they w ere looking f or N o e G arcia because he h ad been in a g u erilla g roup a nd ordered h e r to tell them his
current whereabouts. Althoug h she d i d not know where he lived, she lied and told them he was living in S a n Mig uel (a

non-ex istent city

). The men subsequently beat and raped her. B efore leaving

, they told Garcia-Milian that if they could not find Garcia, they

would return and kill her.

After the men l e f

t, Garcia-Milian took a tax i to her mother’s home in another town. Garcia-Milian did not seek
treatment at a hospit al because she was afraid that the men would find out and kill her. T w o d ay s later, she reported the incident to the Salama p olice, who told her they could not investig ate t h e incident because she could not identify her assailants. F earing for her life, Garcia-Milian left Guatemala for Mex ico, and then paid a “ c o y o t e ” to smug g le her across the border into the United States.G A R C I A -M I L I A

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I n addition to testify ing at the proceeding

, Garcia-Milian submitted a S t a t e Department report on G uatemala titled Country Reports on Human Rights Practices – 2006
, and four Amnesty I nternational r e p o r ts. The reports indicate that Gua temalan police had minimal training or c apacity for investig ating or assist i n g v i c tims of sex ual crimes, and that the Guatamalan g overnment had been ineffectiv e i n investig ating violence ag ainst women and h omicides
g enerally

, due to weaknesses throug hout the criminal justice and law enforcement system.

The I J denied Garcia-Milian’s a pplications for a sy lu m, withholding of removal, and CAT r elief. The B I A affirmed the I J ’s decision. I t noted that “[ w ] h ile the respondent
appears to h ave been t he victim o f criminal acts on the several occasions described, she has not established a nex us between any incident and a protected g round under the Act.” B ased on its review of the record, th e BI A c oncluded that there was “ no evidence the respondent ever ex pr e s sed a political o pinion and no e vidence to su ggest that she was harmed based on any real o r imputed p olitical opinion.” A s

a result, t h e B I A denied Garcia-Milian’s asy lum a nd withholding of removal claims. The BI A a lso rejected Garcia-Milian’s CAT claim. I t held that the record did not establish t hat “it is more likely than not that the respondent will f a c e t orture by or with the acquiescence or willful blindness of an officer of the g overnment of Guatemala.”

I I

W e have jurisdiction under 8 U.S.C. § 1 2 5 2 t o r eview final orders of removal. Li v. Holder

, 656 F .3d 898, 9 04 (9th C i r

. 2 0 1 1). W e review the B I A ’s denials of asy lum, withhol d i n g of removal, and CAT relief for “substantialG A R C I A -M I L I A

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evidence” and will u

phold a denial supported by “reasonable, substantial, and probative e vidence o n the record considered

as a whole.” Kamalyan v

. Holder

, 620 F .3d 1 054, 1057 (9th Cir. 2010) (internal q u o t a tion marks omitted) (asy lum); Pag a y o n v

. Holder

, 675 F .3d 1182, 1190 (9th Cir. 2 011) (internal quotation marks omitted) (withholding of removal);

see Haile v. Holder

, 6 58 F .3d 1122, 1130–31 (9th Cir. 2 011) (CAT relief). I n order to r everse the B I A, we must determine “that the evidence not o nly supports [ a contrary ] conclusion, but compels it—and also c o mpels the further conclusion” that the petitioner meets the requisite standard for obtaining relief. INS v. Elias-Zacarias

, 502 U .S. 4 7 8
, 481 n .1 (1992). The
ag ency ’s “[ f

] inding s of fact are c o nclusive u nless ‘any reasonable adjudicator’ would be c o m p e lled to conclude to the contrary .” Kamalyan

, 620 F .3d at 1057 (quoting 8 U .S.C. § 1252(b)(4)(B )).

A

W e b eg in by considering Garcia-Milian’s challeng e to the B I A’s denial of her asy

lum application.

App l i c ants for asy lum bear the burden o f proving elig ibility for asy lum. 8 C.F .R. § 208.13(a). I n order to carry this burden, an applicant must f irst establish “refug ee” status, 8 U.S.C. § 1158(b)(1) (2000), b y proving past persecution o r well-founded fear of future persecution “on account of race, relig ion, nationality

, membership in a particular social g roup,

o r political o pinion.” 8 U.S.C. § 1101(a)(42)(A) (2000). 2

2 Un d er th e REA L ID A ct o f 20 0 5
, an ap p lican t f o r asy lu m m

u st estab lish th at a p ro tected g ro u n d “ w as o r w ill b e at least o n e cen tral reaso n f o r p ersecu t in g th e ap p lican t,” in ad d itio n to p ro v in g th at p ersecu tio n w as

o r w ill be “ o n acco u n t o f

” a p ro tected g ro u n d

. 8 U .S.C. § 1 1 5 8 (b )(1 )(B )(i)G A R C I A -M I L I A

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Persecution is “on a ccount of” a protected g round only where the persecution occurred “becaus e o f ” that g round. Elias-Zacarias

, 502 U .S. at 483; Parussimova v. Mukasey

, 555 F

. 3d 7 34, 739 (9th Cir. 2009). According ly

, the persecutor’s motive is “critical” and the a pplicant must come forward with “ some evidence of [motive]

, d irect o r circumstantial.” Elias-Zacarias , 502 U.S. at 483.

Here, Garcia-Milian based her a s y l um claim on the
g round that the masked men persecuted her on account of her politic a l opinion. Althoug h she d o es not claim to have any political opinion of her own, an applicant “can also establish persecution on account of imputed political opinion—that is,

on a ccount o f a political opinion attributed t o h i m by his
p e r s e cutors.” Navas v. I .N.S.
, 217 F .3d 646, 658 (9th C i r. 2000). “I n establishing an imputed politi cal opinion, the focus o f inquiry turns a

way from the views of th e victim to the views of the persecutor.” Sangha v

. I

. N.S.
, 1 03 F .3d 1482, 1489 (9th Cir. 1997). Therefore

, t he applicant for
asy lum must present evidence of the p e r s ecutor’s views. A persecutor’s statements attributing p o litical views to the applicant may be p ersuasive evidence. “F or ex am ple, o ne party to a conflict may insist t o the victim that the victim is alig ned with the other s i d e .” Id. (citing S ingh v. Ilchert

, 63 F .3d 1 501, 1509 (9th Cir. 1995)). Similarly

, persecutors’
statements that they a

re retaliating ag a inst the victim for t he political views of the vict i m ’ s family would support an imputed political opinion cla i m

. Kebede v. Ashcroft

, 366 F .3d 808, 812 (9th Cir. 2 0 0 4 ). I n the absence o f such

(2 0 0 6); Pa ru ssimo va v. M u ka sey , 5 5 5 F.3 d 7 3 4
, 7 3 8 (9 th Cir. 2 0 0 9 ). B ecau se G arcia- Milian f

iled h er asy lu m ap p licatio n b ef ore May 1 1
, 2 0 0 5
, th e ef f ectiv e d ate o f th e REA L ID A ct, t h e p re- REA L ID stan d ard ap p lies
to h er case. S in h a v. Ho ld er , 5 6 4 F.3 d 1 0 1 5, 1 02 1 n .3 (9 th Cir. 2 0 09 ).G A R C I A -M I L I A

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. H O L D E R 9

direct evidence, an alien may p oint to “the applicant’s association with, or relationship to, people who are k nown to hold a p articular p olitical o pinion” in order to raise the in f e r e n ce that the persecutors have imputed a political view
to the alien. Navas
, 2 17 F .3d at 660. F or ex a mple, evidence
t h a t “the applicant is a member of a larg e, politically a c t i v e family many of whom have already been persecuted for their political b elief

s” may r aise the inference that persecutors have imputed or would impute the same political opinion to t h e applicant. Sangha

, 103 F .3d a t 1489. Similarly

, a pe t itioner may d emonstrate f acts “ necessary to p rove an imputed political asy lum claim” where she is v i c t i miz e d b y

an anti-g o v ernment party with a long history of harassing a nd persecuting t h e p e titioner’s family due to her father’s prog overnment position, a n d h er abusers “made c omments indicating that [ petitioner] was chosen as a victim because o f her father’s ties to the [ ] g o v ernment.” Silaya v. Mukasey

, 524 F .3d 1066, 1072 (9th Cir. 2008).

B y c o ntrast, we have upheld the B I A’s denial of an asy lum application based on imputed political o pinion where there was neither direct evi d e n c e of the persecutor’s viewpoi n t , nor indirect evidence sufficient to compel a conclusion contrary to that r e a ched by the B I A. I n MolinaEstrada

, for ex am p l e, the B I A denied the a lien’s asy lum claim because he failed to show persecution on account of a protect e d g round. Molina-Estrada v. INS
, 293 F .3d 1089, 1094 (9th Cir. 2002). O n appe a l

, the alien p ointed to his testimony th at g uerillas had attacked his family ’s h ouse in Guatemala and threatened members o f his family because his father was a hig h ranking officer in the armed forces. Id. at 1092, 1 094. Noting that the petitioner “offered no evidence that his father held particular political beliefs, that the guerillas knew of or assumed any such beliefs, or that t h e yG A R C I A -M I L I A

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had made any stateme n t s sug g esting that they attacked his father’s home because of his father’s p olitical beliefs,” id. at 1094–95, we concluded t hat p etitioner’s testimony was not enoug h to “compel any reasonable factfinder to conclude that Petitioner was subject to persecution because of impu ted political beliefs.” Id. at 1094 (internal quotation m a r ks omitted).

As in Molina-Estr a d

a , the record here does not c ompel the conclusion that the masked men imp u t e d a political opinion to Garcia-Milian. F irst, there is no dir ect evidence that they did so. The masked men did not make any statements attributing political views to Gar c i a

- Milian o r indicating t h a t t h e y were retaliating a g ainst her due to the views o f her ex -husband. Nor did the maske d m en themselves ex press any p ol i t i cal views. Garcia-Milian provided no evidence as to the po l i t i c a l o pinions of the masked men; there is no evidence that t h e y were part of a political org aniz ation or that they opp o s e d Noe Garcia’s political position (if any

)

. Cf. Silaya

, 524 F. 3 d a t 1 068–70 (noting that petitioner’s abusers wer e members of an antig overnment g roup which had targ eted the f a m i l y d ue to the f a t h e r ’ s p r o

- go v e r n m e n t p o s i t i o n s i n c e p e t i t i o n e r’ s childhood). F urther, Garci a

- M i l i an p oints to only a sing le piece of indirect evidence: the masked men’s statement that they were looking for Noe Garcia because he h ad been in a g uerilla g roup. I n the circumstances o f this c ase, however, th i s s i n g le statement is insufficient to compel a conclusion contrary to that reached by the B I A. The statem ent could have been interpreted as evidence that the men either imputed

a political opinion t o Garcia-Milian or merely wanted to

ex tract information from her a bout N o e G a r c i a’s whereabouts. U nlike the victim in Kebede

, therefore, G arciaMilian failed to identify circumstantial evidence in the recordG A R C I A -M I L I A

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raising a compelling inference that the masked men were imputing Noe Garcia’s political opinions to her. F o r the same reason, the evidence in the record does not raise the inference that the men soug h t to punish Ga rcia-Milian for her association with Noe Garcia. B ecause G arcia-Milian’s sing le piece of indirect evidence provides little or no support for her claim that she was p ersecuted for an imputed political opinion, it c lea r l y d o e s not compel that conclusion, and we must uphold the B I A’s holding to the contrary

. 3

B e cause Garcia- Milian did not present evidence o f imputed political opinion that “would c ompel any reasonable f actfinder to conclude that Petitioner was subject to persecution because of imputed political bel iefs,” MolinaEstrada

, 293 F .3d at 1094 (internal quotation marks omitted),

we conclude that substantial e v i dence supports the B I A ’s conclusion that G arcia-Milian w as not per s e cuted “ on account of” a protected g round. According ly

, we reject Garcia-Milian’s challeng e to the B I A’s denial of her asy lum application. 4

3 In th e circu m s tan ces o f th is case, th e f act th at Garcia- Milia n h a d n o t

asso ciated w ith N o e Garcia in o v er a d ecad e, an d th at th e m ask ed m en h ad f o llo w ed h er lo n g en o u g h to learn th is f act, w eak en s an y in f

eren ce th at th e

m ask ed m en w ere retaliatin g ag ain st h er b ecau se o f h er asso ciatio n w i th Garcia o r t

h at th ey im

p u ted Garcia’ s p o litical o p in io n to h er. Cf. Bela yn eh v. I.N.S

. , 2 1 3 F.3 d 4 8 8 , 4 9 1 (9 th Cir. 2 00 0 ) (h o ld in g th at th e reco rd w as

“ dev o id o f an y su g g estio n th at th e alleg ed p ersecu to rs h av e im p u ted to [th e p etitio n er] h er f

o rm er h u sb an d ’ s v iew s” in p art b ecau se “ th e tw o h av e b een d iv o rced f

o r m o re th an

f i f teen y ears”).

4 Fo r th e s am e reaso n s, w e rej ect Garcia- Milian ’ s ch allen g e to th e B IA ’ s d en ial o f h er claim f

o r w ith h o ld i n g o f rem o v al. A n ap p lican t w h o f ails to

s a t i sf y th e stan d ard o f p ro o f f o r asy lu m also f

ails to satisf

y t h e m o r e strin g en t stan d ard f

o r w ith h o ld in g o f r e m o v al. Fa ra h v. Ash cro ft

, 3 4 8 F.3 d 1 1 5 3 , 1 1 5 6 (9 th Cir. 2 0 0 3 ).G A R C I A -M I L I A

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B

W e turn to Garcia-Milian’s claim that the BI A erred in deny ing her CAT claim. To qualify for CAT relief, an alien
must establish that “it is more likely than not that he or she would b e tortured if r emoved to the proposed country o f removal.” 8 C.F .R. § 208.16(c)(2); see also Nuru v

. Gonzales

, 404 F .3d 1207, 1221 (9th Cir. 2005). T o rture is “an ex treme form of cruel and inhuman treatment,” 8 C.F .R. § 208.18(a)(2), “tha t e ither (1) is not lawfully sanctioned b y that country or (2) is lawfully sanctioned by that country , but defeats the object and purpose of CAT,” Nuru
, 4 0 4 F. 3 d at 1221. I n addi tion, the torture must be “inflicted by or a t the instig a tion of or with the consent or acquiescence of a public official or o ther person acting in an official capacity .” Zheng

v. Ashcroft

, 332 F .3d 1186, 1188 (9 t h Cir. 2 0 03) (quoting 8 C.F .R. § 208.18(a)(1)) (emphasis a n d internal quotation marks o mitted). “Thus relief under the C o n vention Ag ainst Torture requires a two part a naly sis—first, is it more l ikely than not that the a lien will be torture d u p o n return to his homeland; a

nd second, is there sufficient state action involved in that torture.” T amara-Gomez v. G onzales

, 447 F .3d 343, 351 (5th Cir. 2006).

I n addressing the state-action prong of her CAT c laim, Garcia-Milian points to her test i m o ny that the police were unwilling to investig ate the a ttack by the masked men which occurred before she left the c o untry , implicitly argu i ng that because the police previously acquiesced in torture, the police

are likely to acquiesce in future instances of tortu re

. See Reyes-Sanchez v. A tty. Gen.
, 369 F .3d 1239, 1242 n.7 (11th Cir. 2004). She has also submitted evidence that the Gu a t e malan g overnment h as been g e n e rally ineffective in prevent i n g or investig ating violence ag ainst women. W eG A R C I A -M I L I A

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must determine whether this evidence c o m p e l s the conclusion that the G uatemalan g o vernment would acquiesce in torture if Garcia-Milian returned to Guatemala.

Public officials acquiesce i n torture if, “prior to the activity constituting torture,” the officials: (1) have awareness of the a ctivity (or consciously close their ey es to the fact it is
g oing on); and (2) breach their leg al resp o n s ibility to intervene to prevent the activity because they a re unable o r unwilling to opp o s e it. Ornelas-Chavez v. G onzales

, 458 F .3d 1052, 1059 (9th Cir. 2006) ( q u oting 8 C.F .R. § 20 8

. 18(a)(7)); see also Cole v. Holder

, 659 F .3d 762, 771 (9th Cir. 20 1 1 )

. By contrast, “[ a] g overnment does not acquiesce in the torture of its citiz ens merely b ecause it is

aware of torture bu t p o we r less to stop it.” Mouawad v

. Gonzales

, 4 85 F .3d 405, 413 (8 t h Cir. 2007) (internal quotation marks omitted).

Evidence that the police w ere aware of a particular crime, but failed to bring th e perpetrators to justice, is not in itself sufficient to establish acquiescence i n the crime. I nstead, there must be evidence that the police are unable or u nwilling
to o ppose the crime. Otherwise, “a p erson could obtain CAT relief merel y because he was attacked by a g ang o f neig hbor hood thug s whom the police were unable to apprehend.” Reyes–Sanchez

, 369 F

. 3d at 1243. I n Rreshpja

v. Gonz a les

, for ex ample, the applicant c laimed that the police had a cquiesced in her attempted kidnaping because when she reported the crime, the police told her “that the information she h a d provided was insufficient to ide ntify o r arrest the man who had attacked h er.” 420 F .3d 551, 553 (6th C i r

. 2005). The court upheld the B I A’s denial of h er C AT claim because the police’s inability to solve a crime under those circumstances did n ot constitute acquiescence in theG A R C I A -M I L I A

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. H O L D E R 14

crime. I d. at 557. Similarly

, in this case, Garcia-Milia n ’s testimony th at the police declined to investig ate the masked men’s a ttack b ecause they lacked sufficient information does
not compel the c onclusion that the police acquiesced in the attack, and therefore does n ot support Garcia-Milian’s claim that it is more likely than not the police will acquiesce in any future attacks if she returns to Guatemala.

Nor does evidence that a g overnment has been g enerally ineffective in preve n t i ng or investig ating criminal activities raise an inference that p ublic officials are likely to a cquiesce in torture, absent evidence of corruption or other inability o r unwilling ness to oppose criminal org aniz ations. I n TamaraGomez
, for ex a mple, the court rejected the petitioner’s claim that the Columbian g overnme n t acquiesced in attacks by a narco-terrorist org a

n iz ation, even thoug h the police informed the petitioner that it lacked the resources to protect individual families, and the record contained sig nificant evide n ce that the Columbian g o vernment was unable to prevent the terrorist
g roup’s crimes. 4 47 F .3d at 346. The court held that “neither the failure to apprehend the persons threatening the alien, nor the lack of financial resources to eradic a t e the threat o r risk of torture constitute sufficient state action for purposes of the C o nvention A g ainst Torture.” Id. at 351. Similarly

, i n Menjivar v. Gonzales

, the c o urt rejected a petitioner’s claim for CAT relief despite her evidence that she h ad been attacked by a g ang member a nd the record included
newspaper artic l e s d e tailing the g overnment’s difficulty in controlling g a

ng s. 4 16 F .3d 918, 922–23 (8th Ci r

. 2 005). The court ex plained that “ [ t ] h e n ewspaper articles at most demonstrate that the g overnment has a problem c ont ro l l i ng g ang activity of which it is aware,” but such evidence did not compel a finding that t h e p o lice acquiesced, or would acquiesce in the future, to g ang members’ criminal activities.G A R C I A -M I L I A

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. H O L D E R 15

Id. B y contrast, evidence that police o f f i cials were corrupt, and worked o n behalf of c riminals or g ang sters, may establish that the g overnment has acquiesced in criminal activities. See Madrigal v. H

older

, 716 F. 3d 4 99, 510 (9th Cir. 2 013) (holding that the petitioner had a plausible CAT claim based

o n t h e Mex ican g overnment’s inability to c ontrol the L os Z e tas drug cartel w h e re “[ v] oluminous evidence” showed “that c orruption of public officials in Mex ico remains a problem, particularly at the st ate and local levels o f
g overnment, w ith p olice o fficers and prison g uards f requently working directly on behalf of drug cartels”); s e e also Ramirez-Peyro v

. Holder

, 5 74 F .3d 893 (8th Cir. 2 009) (holding that petitioner had a plausible CAT claim where the evidence showed “wide-scale police participation in harmful actions on behalf of” Mex ican drug traffickers).

I n this c ase, the record shows that the G uatemalan
go v e r nment and the police have taken steps to c ombat violence ag ainst women including imposing hefty penalties for the c rime o f rape, establishing a Spec ial Prosecutor for Crimes ag ainst W omen, establishing a Spe c i al Unit f or Sex Crimes, and p r o s ecuting crimes ag ainst women. Even thoug h, a s a practical matt e r , these steps have not achieved the desired g oals of resolving c rimes a nd protecting citiz e ns, they support the B I A’s determination that the g overnment is
not wilfully blind to attacks on women in Guatemala. See Tamara-Gomez
, 447 F .3d at 351; M enjivar
, 416 F .3d at 923. According ly

, the reports submitted b y Garcia-Milian do not compel the co n c l u s ion that the G uatemalan g overnment has acquiesce d i n torture ag ainst women, whether as a result o f corruption or throug h cooperation with criminals. Therefore, substantial evidence suppo rts the B I A’s determination thatG A R C I A -M I L I A

N V

. H O L D E R 16

Garcia-Milian has f

ailed to e stablish the state action
necessary for CAT relief. 5

P ETITION F OR REVIEW DENIED.

PAEZ
, Circuit J udg e, concurring in part an d d issenting in part:

Althoug h I ag ree w ith the majority that th e Bo a r d o f I mmig r a tion Appeals (“B I A ”) did not err in deny ing GarciaMilian’s CA T claim, I respectfully dissent from the majority ’s decision to d eny h e r petition with respect to her claims for asy

lum and withholding of removal. I n my view, the e vidence in the record compels the conclusion that Garcia-Milian was a ttacked and raped because of her ex

husband’s political opinions. I w ould therefore g rant t h e p e t i tion and r emand to the B I A for further proceedings o n Garcia-Milian’s asy

lum and withholding of removal claims.

I

.

The majority effectively re q uires Garcia-Milian to produce direct evidence of the reasons f or her persecution. F irst, the majority holds that the record “does not compel the conclusion that the masked men imputed a political opinion”
to Garcia-Milian because t h e attackers “did not make any statements attributing political views to G a rcia-Milian.” Maj. Op. at 10. B ut we have never required asy lum applicants to

5 Becau se w e d ecid e o n t

h is b asis, w e d o n o t ad d ress w h eth er t h e reco rd

co m pels th e co n clu sio n t

h at i t w o u ld b e m o re li k e l y t h an n o t th at Garcia- Milian

w o u ld b e to rtu red u

p o n h er retu rn to Gu atem ala.G A R C I A -M I L I A

N V

. H O L D E R 17

establish a nex us solely throug h direct evidence. To the contrary , an asy

lum applicant c an e stablish a nex us between the act o f persecution and the relevant political opinion b y presenting “direct or cir cumstantial evidence” of her attackers’ motivations. I.N.S. v. Elias-Zacarias

, 502 U.S. 478, 483 (1992) (empha s i s added); see also, e.g. , Deloso v

. A shcroft

, 393 F .3d 858, 864 ( 9th Cir. 2005) (“An a p p l i c a n t need not present direct evidence of a persecutor’s motives if there is compelling circumst antial evidence.”); Gafoor v

. I.N.S.
, 231 F .3d 645, 650 (9th C i r

. 2 0 0 0 ) ( “B ecause it is so difficult to prove motives with any precision, t h e Supreme Court teaches that an applicant d oes not have to provide direct evidence that his persecutors were motivated by o ne o f the protected g rounds; instead, compelling circumstantial evidence is sufficient.”), superse d e d b y statute on other grounds , REAL I D Act of 2005, Pub. L

. No. 109-13, div. B

, § 101(h ) ( 2 )

, 1 1 9 Stat. 231, 305 (2005). 1 Our case law thus requires us to look bey ond the fact that the m a s k e d m en did
not directly tell Garcia-Milian they w ere attributing any p olitical views to her, and consider whether the circumstantial evidenc e n evertheless compels the conclusion that they

1 W e h av e reco g n ized th at co m p ellin g ev id en c e o f i m

p u ted p o litical

o p in io n m ay in clu d e, in ter a lia

, th e p ersecu to r’ s “ co n d u ct o r statem en ts,” Na va s v. I.N

. S

. , 2 1 7 F.3 d 6 4 6
, 6 5 9 (9 t h Cir. 2 0 0 0 ), “ th e t i m in g an d

su b stan ce o f t

h e p ersecu t io n ,” S in gh v. G o n za les

, 4 39 F.3 d 1 1 00
, 1 1 1 1 (9 th Cir. 2 0 0 6 )

, t h e lo catio n o f th e p ersecu tio n , Do n ch ev v. Mu ka sey , 5 5 3 F.3 d 1 2 06
, 12 2 2 (9 th Cir. 2 00 9 ), “ th e ap p lican t’ s asso ciatio n w ith

, or relatio n sh ip to , p eo p le w h o are k n o w n to h o ld a particu lar p o l itical

o p in io n ,” Na va s , 2 1 7 F.3 d at 6 5 9
, an d “ o b v io u s sig n s co n n ectin g p ersecu to ry acts to th e alleg ed p ersecu to rs an d su g g est i n g t h e alleg ed
p ersecu to rs’ m o t iv es,” Ka ro u n i v

. G o n za les

, 3 9 9 F .3 d 1 1 6 3
, 1 17 4 (9 th Cir. 2 0 0 5 ) (in tern al qu o tatio n m ark s an d alteratio n om itted ). “ W e h av e also f o u n d

. . . p ersecu tio n [o n th e b asis o f po litical op in io n ] w h en th ere i s n o

o th er lo g i cal reaso n f

o r th e persecu tio n .” S

a n g h a v. I.N.S

. , 1 0 3 F.3 d 1 4 8 2
, 1 4 9 0 (9 th Cir. 1 9 9 7 ).G A R C I A -M I L I A

N V

. H O L D E R 18

targ e ted her b e cause of her association with her ex -husband. See S ilaya v

. Mukasey

, 524 F .3d 1066, 1070–71 (9th Cir. 2008) (“[ E ] vidence that the a lleg ed persecutor acted because of a petitioner’s f

amily ’s political associations is sufficient to satisfy the motive requirement.” (internal quotation m a rks and alteration o mitted)); see also Zhang v. G onzales

, 408 F. 3 d 1239, 1246 ( 9th Cir. 2005); Kebede v. Ashcroft

, 366 F .3d 808, 812 (9th Cir. 2004).

The majority a lso provides several rel a t e d reasons for concluding that Garcia-Milian has f ailed to establish a nex us: her attackers did not “i n d i c at[ e] that they were retaliating
ag ainst her due to the views of her ex -husband,” and there is

an absence of e vidence o f the masked men’s political views. Maj. O p

. at 10. Here, ag ain, the majority errs by requiring Garcia-Milian to provide direct evidence of motive. W e have

e x p l icitly held that an applicant is not required to pres e n t evidence of her attackers’ own stated reasons for attacking her. Garcia-Martinez v. Ashcroft

, 371 F .3d 1066, 1075 (9th Cir. 2004) (“B y seiz ing upon the soldiers’ failure ex plicitly to state why they were raping Garcia, the I J appeared to require that Garcia provide direct evide n ce of the soldiers’ motive, when we have consistently a llowed circumst antial evidence
to suffice.”). I ndeed, in Ga r cia-Martinez
, we held that it would be “pa t en t l y unreasonable” to “rely solely upon

. . . a persecutor’s own statements reg arding moti v e” when deciding if a nex us ex ists. Id. at 1076. Thus, we concluded, “the fact that the soldiers f ailed ex plicitl y t o inform Garcia that they were raping her on a c c o u n t of a protected g r ound [ was] not hig hly relevant.” Id. ; see also Gafoor

, 2 31 F

. 3 d at 650 (“ P er s e cutors do not alway s take the time to tell their victims all the reasons they are being b eaten or kidnapped o r killed.”).G A R C I A -M I L I A

N V

. H O L D E R 19

I I

.

The majority nex t rec i t es its duty to consider circumstantial evidence, but fails to a c tually d o so. F irst, the majority states that the “sing le piece of indirect evidence” in
t h e record is “the masked men’s statement that they were looking for [ Garcia-Milian’s ex -husba n d] because he h ad been i n a gu errilla g roup,” and c oncludes in the amended opinion that this is “insufficient to compel a conclusion contrary to that reached by t h e BI A

. ” Maj. Op. a t 10. I disag ree. The masked men’s st a t e m en t is n ot the “sing le” piece of indirect evidence in support of Garcia-Milian’s claims. Consider t h e facts o f the case: at 11:00 p .m., the masked men beg an “ h itting the door v ery loudly ,” demanding that Garcia-Milian let them into h er house. T hinking that they were the police, G arcia-Milian o pened the door. The

men entered and told Garcia-Milian they were looking f or her

ex

- husband because he was a member o f a g uerrilla
org aniz ation. The f

ollowing events then o ccurred, as credibly described by

Garcia-Milian:

They asked me where my h usband was, and I don’t know where he is. I told them I did n ’t know because it h ad been more than 15 y ears since we were separa t ed; that I didn’t know
any thing about him. T he y said I did know. They took me i n s i d e, a

nd they put a weapon

on my chest, and they kept telli n g m e to tell them, to tell them, and I sai d I didn’t know
any thing

. They insisted that

. . . if Iwouldn’t tell them, they would kill me. After they threw me o n the floor, and when I felt they

were g oing to kill me, I mentioned a p lace, but I knew h e wasn’t there so th e y w o uldG A R C I A -M I L I A

N V

. H O L D E R 20

leave and they

wouldn’t kill me. They beg an to h it me. After they hit me a lot, they kicked

me v ery hard with their shoe. Then they raped me. One was holding a weapon on my h e a d

, and the other one was laug hing

. The n the other one raped me, b e ga n to rape me. I

was unconscious. I couldn’t take it any long er.

The record is thus replete with circumstantial e vidence o f

mo t i v e bey o nd the attackers’ own statements—namely

, the record shows that the attackers knew who Garcia-Milian was, knew of h er a ssociation with her ex -husband, knew where she lived, visited her at her private h ome late at nig ht, a nd violently hit, k ick e d

, and took turns raping G arciaMilian—while laug hing —over the course of an interrog ation that focused on nothing o ther than information about her ex

husband, whom the a ttackers soug ht to f i n d b ecause of his political views.

This leads me to my ultimate point of disag reement: I fail
to see h ow any reasonable f act-finder could conclude that the circumstantial evidence in this case is insufficient to meet the

nex us r equirement, as the majority concludes. T o the contrary , I would hold that any reasonable fact-finder would be compelled to find that Garcia-Milian wa s p ersonally targ e ted because of her e x -husband’s political beliefs. See Silaya

, 52 4 F. 3d at 1070–72. B e cause “evidence that the alleg ed pers e cutor acted because of a p etitioner’s family ’s political associations is su f f icient to satisfy the motive requirement,” id. at 1 070–7 1 ( internal quotation marks a nd alteration o mitted), and because Garcia-Milian has provided compelling circumstantial evidence of such a motive, I would further h o l d that Garcia-Milian h as established the requisiteG A R C I A -M I L I A

N V

. H O L D E R 21

nex us. See Navas
, 217 F .3d a t 659 n.18 (“W here police beat and threaten the spouse of a known d issident, it is log ical, in the a bsence o f evidence p o inting to another m otive, to conclude that they did so because of the spouse’s presumed
g uilt by association.”).

I I I

.

F or the above reasons, I would hold that the r e cord compels the c onclusion that Garcia-Milian was beaten a nd raped because o f h er ex -husband’s political views, which satisfies the requirements for s h o w ing “imputed political opinion.” I would therefore g rant the petition with respect to Garcia-Milian’s claims for asy lum and withholding o f removal and remand for further proceeding s.