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Case Name:
Case Number: Date Filed: 
99-70861 03/21/01 



                                                     No. 99-70861
                                                     I&NS No.

Petition for Review of a Decision of the
Board of Immigration Appeals

Argued and Submitted
February 7, 2001--Pasadena, California

Filed March 21, 2001

Before: Harry Pregerson, William C. Canby, Jr., and
David R. Thompson, Circuit Judges.

Opinion by Judge Thompson

Reena N. Glazer, Shea & Gardner, Washington, D.C., for the

Shelley Goad, United States Department of Justice, Civil
Division, Washington, D.C., for the respondent.

THOMPSON, Circuit Judge:

Rosalba Aguirre-Cervantes ("petitioner"), a 19-year-old
native of Mexico, petitions for review of an order of the
Board of Immigration Appeals ("BIA"), which vacated a
decision by the Immigration Judge granting her request for
asylum. Over many years, the petitioner was subjected to
extreme abuse by her father. She contends this abuse consti-
tuted persecution, and that it occurred on account of her mem-
bership in a particular social group consisting of her
immediate family, all of whose members were abused by her
father. At the hearing before the Immigration Judge ("IJ"), the

petitioner presented evidence that the country of Mexico was
unable or unwilling to do anything about this abuse, and that
if she returned to Mexico the abuse would likely continue.

The IJ concluded that the petitioner had satisfied the statu-
tory requirements for asylum, but denied her request for with-
holding of removal. The INS appealed to the BIA, which
agreed that the petitioner had suffered persecution but con-
cluded that she was not eligible for asylum on the ground of
persecution on account of membership in a particular social

The primary issue is whether the petitioner's immediate
family, all of whose members lived together and were sub-
jected to abuse by the petitioner's father, constitutes a pro-
tected particular social group under the asylum statute, 8
U.S.C. S 1101(a)(42)(A) (1994 Supp. V). We conclude that it
does. We also conclude that the petitioner was persecuted by
her father on account of her membership in that social group,
that she has a well-founded fear of future persecution, and
that Mexico is unable or unwilling to interfere with that perse-

We have jurisdiction pursuant to 8 U.S.C. S 1252(a) (1994
Supp. V). We grant the petitioner's petition for review and
hold that she is eligible for asylum. We further hold that she
is entitled to withholding of removal because she has estab-
lished a clear probability of persecution if she returns to Mex-


The petitioner lived in Michoacan, Mexico, with her par-
ents and six of her nine siblings. Two of her brothers now live
in the United States, and another sister lives with her grandfa-
ther in Michoacan.

In January 1998, at the age of 16, the petitioner left Mexico
because of severe, repeated physical abuse by her father. She

testified that from the time she was about three years old, her
father beat her frequently and severely, sometimes daily and
sometimes weekly. In administering these beatings, he
employed a horse whip, tree branches, a hose and his fists.
The petitioner suffered a dislocated elbow and lost conscious-
ness as a result of some of this abuse, and bears various scars
on her forehead, hand, arm and leg. Her father refused to
allow her to seek medical treatment for any of the injuries he
inflicted. Furthermore, she testified that her mother did not
allow her to go to the police, telling her that her father had the
right to do with her what he wanted. Several times, the peti-
tioner went to live with her grandfather to escape her father's
beatings, but each time her father came after her and forced
her to return with him.

The petitioner testified that she was not aware of any shel-
ters, agencies or children's services in Mexico that would help
her. In addition, she testified that she believed the police
would not help her even if she had been able to contact them.
She related a story about two sisters whom she knew who
were being physically and sexually abused by their father.
Although they contacted the police for help, the police did lit-
tle if anything, the sisters' circumstances did not change, and
the father continued to abuse them.

Petitioner's father, Mr. Aguirre, abused not only the peti-
tioner, but all of her siblings and her mother as well. He
abused petitioner's mother (his wife) especially frequently
during her pregnancies. The petitioner testified that whenever
she tried to protect her mother by intervening, she was also
beaten. In the last incident before she left Mexico, she heard
her parents arguing and realized that her father was going to
beat her mother. Knowing that her mother was healing from
a cesarean delivery of her last child, she tried to protect her.
Her father beat the petitioner severely and threatened to kill
both her and her mother.

The petitioner presented evidence that in Mexico domestic
violence is pervasive, officially tolerated, and in some areas

legally approved. See John Makeig, Spousal Abuse in Mexico,
U.S. Examined, Houston Chronicle, Sept. 28, 1997, at A41
(hereafter "Makeig"); Bureau of Democracy, Human Rights
and Labor, U.S. Department of State, Mexico -- Profile of
Asylum Claims & Country Conditions 5 (July 1997) (hereaf-
ter "Mexico -- Profile"). The State Department concluded
that women who suffer domestic violence "are reluctant to
report abuse or file charges, and even when notified, police
are reluctant to intervene in what society considers to be a
domestic matter." Mexico -- Profile, p. 5. Evidence in the
record further establishes that in Mexico there are very few
shelters or social services available to domestic violence vic-
tims, and that few women avail themselves of these services.
Id.; Makeig. In addition, many child victims of domestic vio-
lence end up homeless and are among the more than 13,000
children living on the streets of Mexico City. U.S. Department
of State, Country Reports on Human Rights Practices for
1997 585 (1998) (hereafter "Country Reports").

The IJ found that the petitioner's testimony was "credible
and consistent and detailed." The IJ ruled that she was a mem-
ber of a social group of "victims of domestic violence," or of
"the family which is a victim of domestic violence."

The BIA agreed with the IJ that the petitioner's severe
abuse by her father constituted persecution. The BIA also
credited "the [petitioner's] testimony in general" and stated
that "[t]he determinative issue . . . is whether the harm experi-
enced by the [petitioner] was, or in the future may be inflicted
`on account of' a statutorily protected ground. " The BIA char-
acterized the relevant social group in Mexico as "Mexican
children who are victims of domestic violence," and deter-
mined that such a group had not adequately been shown to be
a particular social group for asylum purposes. The BIA
reversed the decision of the IJ, and this petition for review fol-


BIA legal interpretations are reviewed de novo but gener-
ally are entitled to deference under Chevron, U.S.A. v. NRDC,
467 U.S. 837 (1984). Fisher v. INS, 79 F.3d 955, 961 (9th Cir.
1996) (en banc).1 In interpreting the Immigration and Nation-
ality Act, the BIA is bound by this circuit's earlier decisions
in cases originating within this circuit. Id. ; Singh v. Ilchert, 63
F.3d 1501, 1508 (9th Cir. 1995) (citing NLRB v. Ashkenazy
Prop. Mgmt. Corp., 817 F.2d 74, 75 (9th Cir. 1987)).

The BIA's factual findings are reviewed under a "substan-
tial evidence" standard; a denial of asylum will be upheld if
it is supported by reasonable, substantial and probative evi-
dence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481

In general, we do not remand a matter to the BIA if, on the
record before us, it is clear that we would be "compelled to
reverse [the BIA's] decision if it had decided the matter
against the applicant." Navas v. INS, 217 F.3d 646, 662 (9th
Cir. 2000) (citations omitted). If the ultimate outcome on an
issue is clear on the record, remand is inappropriate, even if
the BIA reasonably chose not to reach that issue. Id.

The petitioner argued before the BIA that her immediate
family constituted a particular social group entitled to protec-
tion under the asylum statute, 8 U.S.C. S 1101(a)(42)(A)
(1994 Supp. V). The BIA, however, defined the group for
which the petitioner sought protection as "Mexican children
who are victims of domestic violence." The BIA did not
address the question whether a family can be a particular
1 Under Chevron, the Court must ask whether the statute is silent or
ambiguous with respect to the specific issue before it, and, if so, whether
the agency's answer is based on a permissible construction of the statute.
INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (quoting Chevron, 487
U.S. at 843).

social group for asylum purposes; accordingly, Chevron def-
erence is not relevant. Rather, we review de novo the legal
question of whether the petitioner's immediate family is a
particular social group entitled to protection under 8 U.S.C.
S 1101(a)(42)(A) (1994 Supp. V).


A. Exhaustion of Administrative Remedies

The INS argues that the petitioner did not exhaust her claim
that she was persecuted on account of her family membership
because this claim was not properly raised before the BIA.
"Failure to raise an issue below constitutes failure to exhaust
administrative remedies and `deprives this Court of jurisdic-
tion to hear the matter.' " Farhoud v. INS , 122 F.3d 794, 796
(9th Cir. 1997) (quoting Vargas v. United States Dep't of
Immigration and Naturalization, 831 F.2d 906, 907 (9th Cir.

The INS asserts that the petitioner presented to the BIA
several conflicting definitions of her social group, and as a
result did not properly raise the family group argument. The
petitioner's proposed social group definitions included "a
family [ ] in which her father is a perpetrator of domestic vio-
lence," "a family of domestic violence,""female children who
are victims of child abuse and witnesses of domestic violence
and who believe that they should not have to conform to
norms of patriarchal abuse," and "children who have become
targets of domestic violence by trying to protect their mothers
from domestic violence." The INS contends these varying
definitions were misleading and did not sufficiently focus her
argument that her family was the relevant social group. We

The petitioner did indeed offer alternative formulations of
her social group claim, but that did not invalidate the claim.
See In re Kasinga, Int. Dec. 3278 (BIA 1996), 1996 WL

379826 (recognizing that both the INS and the applicant "ad-
vanced several formulations of the `particular social group' at
issue" and creating a slightly different formulation). In her
brief to the BIA, the petitioner specifically captioned one of
her arguments: "[Petitioner] [s]uffered[p]ersecution on
account of her membership in a family, in which her father is
a perpetrator of domestic violence." In that section of her
brief, she argued that her "social group consists of members
of her ultra traditional patriarchal family. [Petitioner] is a
member of this social group by birth. The fundamental char-
acteristic shared by the members of this social group is that
all of its members belong to Mr. Aguirre's family. This is a
`distinct and recognizable' group of people that are distin-
guished from the rest of the population by their membership
in the `Aguirre family.' " The brief describes the members of
the group as the petitioner's "immediate family members."
This clearly raised the argument that the petitioner's particular
social group consisted of her immediate family.

We conclude the petitioner exhausted her administrative
remedies as to her family group claim, and we have jurisdic-
tion to adjudicate that claim. See Urbina-Osejo v. INS, 124
F.3d 1314, 1317 (9th Cir. 1997) (holding that the petitioner
raised an issue before the BIA and thereby preserved it for
judicial review by introducing evidence of it in her declara-
tion, which was not challenged by the INS).

B. A Family as a Particular Social Group

[1] To be eligible for asylum, an applicant must establish
that she is a refugee. A refugee is a person "who is unable or
unwilling to return to, and is unable or unwilling to avail him-
self or herself of the protection of," his or her country of
nationality "because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, member-
ship in a particular social group, or political opinion." 8
U.S.C. S 1101(a)(42)(A) (1994 Supp. V).

We have defined a "particular social group" as

      a collection of people closely affiliated with each
      other, who are actuated by some common impulse or
      interest. Of central concern is the existence of a vol-
      untary associational relationship among the pur-
      ported members, which imparts some common
      characteristic that is fundamental to their identity as
      a member of that discrete social group.

       Perhaps a prototypical example of a "particular
      social group" would consist of the immediate mem-
      bers of a certain family, the family being a focus of
      fundamental affiliational concerns and common
      interests for most people.

Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)
(emphasis added).

While our statement in Sanchez-Trujillo that the family is
a prototypical example of a particular social group was not
essential to the holding, we have confirmed the Sanchez-
Trujillo formulation in subsequent cases. For example, in
Hernandez-Montiel v. INS, 225 F.3d 1084, 1091 (9th Cir.
2000), in which the particular social group was "made up of
gay men with female sexual identities," we held that a partic-
ular social group "is one united by a voluntary association,
including a former association, or by an innate characteristic
that is so fundamental to the identities or consciences of its
members that members either cannot or should not be
required to change it." Id. at 1093. Additionally, in Pedro-
Mateo v. INS, 224 F.3d 1147, 1151 (9th Cir. 2000), we held
that indigenous people comprising a large percentage of the
population of a disputed area do not constitute a particular
social group, in contrast to the immediate members of a cer-
tain family, as discussed in Sanchez-Trujillo . Similarly, in
Mgoian v. INS, 184 F.3d 1029, 1036 (9th Cir. 1999), we cited
Sanchez-Trujillo in holding that "a pattern of persecution tar-

geting a given family that plays a prominent role in a minority
group that is the object of widespread hostile treatment sup-
ports a well-founded fear of persecution by its surviving

The First and Seventh Circuits have adopted the Sanchez-
Trujillo formulation. In Gebremichael v. INS , 10 F.3d 28, 36
(1st Cir. 1993) (citing Ravindran v. INS, 976 F.2d 754, 761
n.5 (1st Cir. 1992)), the First Circuit stated that"[t]here can,
in fact, be no plainer example of a social group based on com-
mon, identifiable and immutable characteristics than that of
the nuclear family," and explicitly adopted Sanchez-Trujillo's
definition. Likewise, the Seventh Circuit in Iliev v. INS, 127
F.3d 638, 642 & n.4 (7th Cir. 1997), stated that its "case law
has suggested, with some certainty, that a family constitutes
a cognizable `particular social group' within the meaning of
the law," and noted that Sanchez-Trujillo reached the same

[2] BIA decisions also include the characteristics of family
relationships when defining a particular social group. For
example, the BIA has defined a particular social group as

      a group of persons all of whom share a common,
      immutable characteristic. The shared characteristic
      might be an innate one such as sex, color, or kinship
      ties, or in some circumstances it might be a shared
      experience . . . . [The shared characteristic ] must be
      one that the members of the group either cannot
      change, or should not be required to change because
      it is fundamental to their individual identities or con-

Acosta, 19 I. & N. Dec. at 233. See also Kasinga, 1996 WL
379826. In In re H--, Int. Dec. 3276 (BIA 1996), 1996 WL
291910, the BIA stated that membership in a clan or subclan
that possesses kinship and linguistic ties qualifies as member-
ship in a particular social group, noting that the INS Basic

Law Manual on asylum adjudications "recognizes generally
that clan membership is a highly recognizable, immutable
characteristic that is acquired at birth and is inextricably
linked to family ties."

[3] Consistent with decisions from our circuit, our sister
circuits and the BIA, we hold that a family group may qualify
as a particular social group within the meaning of 8 U.S.C.
S 1101(a)(42)(A) (1994 Supp. V). This is not to say, however,
that every family group will qualify. Qualification will
depend upon the circumstances of each case. The factors
which lead us to conclude that the petitioner's family group
qualifies as a "particular social group" are that the petitioner's
family members are part of an immediate, as opposed to an
extended, family unit; they now live or have lived together
and are otherwise readily identifiable as a discrete unit; and
they share the common experience of all having suffered per-
secution at the hands of the petitioner's father.

Estrada-Posadas v. INS, 924 F.2d 916 (9th Cir. 1991), is
not to the contrary. There, a Guatemalan woman argued that
she was entitled to asylum eligibility based on her member-
ship in her family. Her cousin had been kidnaped, her uncle
had been killed and unspecified "relatives on her mother's
side of the family" had been forced to leave their homes and
move to a different part of the country. Unlike the present
case, however, in Estrada-Posadas there was no evidence that
the petitioner had been persecuted at all, or that she lived with
her persecuted family members or was otherwise readily iden-
tifiable as a member of their family unit. In those circum-
stances, we stated that asylum protection from persecution
because of membership in a particular social group did not
include protection from persecution simply by reason of
membership in a family. Id. at 919. We observed that "[i]f
Congress had intended to grant refugee status on account of
`family membership,' it would have said so." Id. That state-
ment is not inconsistent with our holding in this case. If Con-
gress had defined the term "particular social group" to include

families as a general matter, all claims based on family mem-
bership would succeed, even those asserted by family mem-
bers in the remotest degree of consanguinity, without regard
to the circumstances of the particular case. Congress did not
open the asylum gate so wide as to afford protection to any
member of any family; but neither did it close the gate to a
claim such as that presented by the petitioner.

The INS asks us to delay deciding the petitioner's claim
until the promulgation of a proposed Rule modifying the rele-
vant factors that may be considered in identifying a particular
social group. See Asylum and Withholding Definitions, 65
Fed. Reg. 76,588, 76,598 (proposed Dec. 7, 2000) (to be codi-
fied at 8 C.F.R. S 208.15(c)). The proposed Rule adopts the
BIA's definition of a particular social group from  Acosta:

      A particular social group is composed of members
      who share a common, immutable characteristic, such
      as sex, color, kinship ties, or past experience, that a
      member either cannot change or that is so fundamen-
      tal to the identity or conscience of the member that
      he or she should not be required to change it.

Id. (to be codified at 8 C.F.R. S 208.15(c)(1)). It also states
that factors that may be considered, but that are not necessar-
ily determinative in deciding whether a particular social group
exists, include whether

      (i) The members of the group are closely affiliated
      with each other;

      (ii) The members are driven by a common motive or

      (iii) A voluntary associational relationship exists
      between the members;

      (iv) The group is recognized to be a societal faction
      or is otherwise a recognized segment of the popula-
      tion in the country in question;

      (v) Members view themselves as members of the
      group; and

      (vi) The society in which the group exists distin-
      guishes members of the group for different treatment
      or status than is accorded to other members of the

Id. (to be codified at 8 C.F.R. S 208.15(c)(3)).

[4] We decline the INS's suggestion that we delay our deci-
sion pending development of the proposed Rule. Family
membership is clearly an immutable characteristic, fundamen-
tal to one's identity. Morever, as noted in the summary
accompanying the proposed Rule, the Rule's first three fac-
tors for determining whether a particular social group exists
are drawn from Sanchez-Trujillo. In applying Sanchez-
Trujillo to the present case, we have necessarily taken those
factors into account. We have also considered the fourth, fifth
and sixth factors of the proposed Rule and conclude that the
petitioner's family satisfies them as well. Mexican society
recognizes the family as a discrete unit, and members of a
family view themselves as such. In the domestic violence con-
text, Mexican society also treats members of a family differ-
ently from nonmembers because it regards violence within a
family as a "domestic matter," rather than a matter for gov-
ernment intervention. Country Reports, p. 583; Mexico --
Profile, p 5. In sum, we have considered the factors specified
in the proposed Rule and those factors support our conclusion
that the petitioner is entitled to asylum protection as a member
of a particular social group.

C. Persecution "On Account of" Group Membership

[5] The INS concedes that the petitioner was persecuted. It
does not concede, however, that she was persecuted "on

account of" her family membership. See 65 Fed. Reg. 76,121,
76,133 (Dec. 6, 2000) (to be codified at 8 C.F.R.
S 208.13(b)(1)). Establishing persecution on account of fam-
ily membership is a burden the petitioner bears. She must
present evidence, either direct or circumstantial, from which
it is reasonable to conclude that her persecutor harmed her at
least in part because of her membership in what we have held
to be a particular social group, her immediate family. See
Elias-Zacarias, 502 U.S. at 483; Hernandez-Montiel, 225
F.3d at 1096. We conclude the petitioner carried this burden.

[6] The petitioner presented extensive documentary evi-
dence that domestic violence is practiced to control and domi-
nate members of the abuser's family:

      Domestic violence is purposeful and instrumental
      behavior. The pattern of abuse is directed at achiev-
      ing compliance from or control over the abused
      party. It is directed at circumscribing the life of the
      abused person so that independent thought and
      action are eliminated and so the abused person will
      become exclusively devoted to fulfilling the needs
      and requirements of the batterer. The pattern is not
      impulsive or out of control behavior. Tactics that
      work to control the abused party are selectively cho-
      sen by the perpetrator.

Family Violence Prevention Fund, Domestic Violence in
Civil Court Cases 23 (1992). The perpetrator may abuse his
children in part to coercively control his partner, as well. Id.
at 49.

[7] The undisputed evidence demonstrates that Mr. Aguir-
re's goal was to dominate and persecute members of his
immediate family. He abused his wife and all of his children
to whom he had access. There is no evidence that he ever
acted violently toward any non-family member. The petitioner
was most severely attacked by her father when she tried to

defend her mother against abuse, particularly when her
mother was pregnant. The petitioner's uncle also testified that
two of the petitioner's brothers, who now live in the United
States, fled Mexico because of frequent abuse by their father.
It was the immediate family that was the target of Mr. Aguir-
re's assaults. It was established by abundant evidence -- and
undisputed -- that it was the petitioner's status as a member
of that family that prompted her beatings. The conclusion is
inescapable that she suffered those beatings on account of her
family membership.

Although the BIA did not address the question whether the
petitioner was persecuted on account of her family member-
ship, we would be "compelled to reverse the [BIA's] decision
if [the BIA] had decided [that issue] against the applicant."
Navas, 217 F.3d at 662. Accordingly, remand is not neces-

D. The Mexican Government's Inability or
      Unwillingness to Control the Persecutor

We next consider whether the petitioner established that the
Mexican government was unable or unwilling to control Mr.
Aguirre's abusive behavior.

[8] When persecution is inflicted by a non-governmental
entity, an applicant must be able to show that the persecutor
was someone the government was "unable or unwilling to
control." Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997)
(citing McMullen v. INS, 658 F.2d 1312, 1315 (9th Cir.
1981)). "Government action is not necessarily required;
instead, police inaction in the face of . . . persecution [by non-
governmental groups] can suffice to make out a claim."
Navas, 217 F.3d at 656 n.10 (citations omitted).

The BIA did not make a clear finding that the Mexican
government was unable or unwilling to control Mr. Aguirre.
The IJ, however, found that fact to be established, and the

same evidence on that issue was before both the IJ and the
BIA. In commenting on the documentary evidence, the BIA
stated that the evidence "appears to establish that [in Mexico]
`the most pervasive violations of women's rights involve
domestic and sexual violence which is believed to be wide-
spread and vastly under reported.' " The BIA further noted
that the U.S. State Department's Mexico -- Profile stated that
more than 13,000 children live on the streets of Mexico City,
many of whom are victims of family violence and subse-
quently become involved with alcohol, drugs, prostitution and
petty thievery. The BIA also cited the portion of the Mexico
-- Profile that reported "women are reluctant to report abuse
or file charges, and even when notified, police are reluctant to
intervene in what society considers to be a domestic matter."

In addition to the sources cited by the BIA, there was addi-
tional documentary evidence that domestic violence is widely
condoned in Mexico and that law enforcement authorities are
unwilling to intervene in such matters. As of 1997, in all but
a few of Mexico's thirty-two states, it was "legal for husbands
to use `correction' discipline to handle wives and children."
Makeig. At that time, Mexico City, with a population of 23
million, had only one battered women's shelter, with only
eight beds, and battered wives' shelters existed in only five
Mexican states. Id. This evidence demonstrates the govern-
ment's inability or unwillingness to control the abusive
behavior of domestic violence perpetrators like Mr. Aguirre
and, indeed, its tacit approval of a certain measure of abuse.
Mexico -- Profile, p. 5 (stating that "[a]lthough the [Mexi-
can] Constitution provides for equality between the sexes,
neither the authorities nor society in general respect this prac-
tice" and that domestic abuse that does not involve "cruelty
or unnecessary frequency" is not considered a crime).

[9] We conclude that any reasonable factfinder considering
the evidence in this case would conclude that the Mexican
government is unable or unwilling to control Mr. Aguirre's
abusive behavior directed toward his immediate family. See

Mgoian, 184 F.3d at 1036 (holding that when the government
failed to investigate the murder of applicant's uncle and
Amnesty International indicated the government was unre-
sponsive to violence towards and persecution of religious
minorities, the government was unable or unwilling to control
the persecutors); cf. Elnager v. INS, 930 F.2d 784, 789 (9th
Cir. 1991) (substantial evidence supported the BIA's conclu-
sion that the Egyptian government was taking steps to control
the persecution of Christians, when "[f]ull judicial and admin-
istrative remedies exist in Egypt and the government goes to
considerable effort to ensure that violence or the threat of vio-
lence against Christians . . . does not occur").

E. Well-Founded Fear of Persecution

[10] To be eligible for asylum, except in rare cases, see
Vongsakdy v. INS, 171 F.3d 1203, 1207-08 (9th Cir. 1999);
Matter of Chen, 20 I. & N. Dec. 16, 19 (BIA 1989), the peti-
tioner must establish that she has a well-founded fear of future
persecution. We conclude the petitioner made this showing.
The INS concedes that the petitioner suffered past persecu-
tion. A finding of past persecution creates a rebuttable pre-
sumption that the petitioner has a well-founded fear of future
persecution. Surita v. INS, 95 F.3d 814, 821 (9th Cir. 1996).
The INS may rebut this presumption by showing by a prepon-
derance of the evidence that there has been "a fundamental
change in circumstances such that the applicant no longer has
a well-founded fear of persecution" in her home country, or
by showing that the applicant "could avoid future persecution
by relocating to another part of the applicant's country of
nationality . . . and under all circumstances, it would be rea-
sonable to expect the applicant to do so." Asylum Procedures,
65 Fed. Reg. 76,121, 76,133 (Dec. 6, 2000) (to be codified at
8 C.F.R. SS 208.13(b)(1)(i)(A) & (B), 208.13(b)(1)(ii)).

The "fundamental change in circumstances" ground for
rebuttal replaces the former ground of changed country condi-

tions.2 Under the former regulation, we stated that on a
remand to the BIA, it generally could not look beyond the
existing record to determine whether changed country condi-
tions rebutted the presumption of a well-founded fear of per-
secution. We stated:

      In recent cases, we have made clear that on remand
      the BIA may not look beyond the existing record to
      determine whether changed country conditions rebut
      the presumption of a well-founded fear of future per-
      secution. In fact, we have refused to remand where
      the petitioner is entitled to a determination of eligi-
      bility on the existing record. See, e.g., Chand [v.
      INS], 222 F.3d at 1077-78; Navas v. INS , 217 F.3d
      646, 662-63 (9th Cir. 2000). The reason for this rule
      is that a petitioner who was eligible for asylum when
      the BIA considered his case does not lose that eligi-
      bility as a result of the agency's failure to recognize
      it. Where the petitioner properly established his eli-
      gibility on the record made before the BIA, that eli-
      gibility must be accorded its proper legal effect.

Gafoor v. INS, 231 F.3d 645, 656 n.6 (9th Cir. 2000). Having
set out the general rule in Gafoor, we then carved out a nar-
row exception to fit the particular circumstances of that case.
Id. at 656.

The present case does not fall within Gafoor's narrow
exception. In that case we remanded to the BIA to permit it
2 Formerly, 8 C.F.R. S 208.13(b)(1)(i) (2000) read,

      If it is determined that the applicant has established past persecu-
      tion, he or she shall be presumed also to have a well-founded fear
      of persecution unless a preponderance of the evidence establishes
      that since the time the persecution occurred conditions in the
      applicant's country of nationality or last habitual residence have
      changed to such an extent that the applicant no longer has a well-
      founded fear of being persecuted if he or she were to return.

to consider whether a recent political coup that occurred after
the petitioner filed his asylum application undermined the
BIA's finding that the petitioner's well-founded fear of perse-
cution was rebutted by a change in country conditions. No
such relevant subsequent events are present in this case.
Accordingly, the general rule applies. Pursuant to that rule, if
we were to remand this case to the BIA, it could not look
beyond the existing record to determine whether the presump-
tion of a well-founded fear of future persecution was rebutted.

[11] Confining ourselves to the existing record, it is clear
that the presumption has not been rebutted. First, there is no
evidence of a fundamental change in circumstances. The INS
argues that because the petitioner is now 19 years old and no
longer a minor, her circumstances may have fundamentally
changed. However, the record does not indicate that her likeli-
hood of persecution has changed simply because she is a few
years older. Any reasonable fact finder would conclude that
Mr. Aguirre would abuse her regardless of her age. He abuses
both his wife and children of all ages and has threatened to
kill both the petitioner and his wife, so clearly a family mem-
ber's age is irrelevant to the likelihood of abuse.

Second, under the reasoning of Gafoor, if the petitioner
were eligible for asylum when the BIA considered her case at
the time she was 16, she should not lose that eligibility now
that she is 19 just because of an erroneous ruling.

[12] Third, the record does not contain any evidence that
the petitioner could reasonably relocate within Mexico. When
she previously tried to live with her grandfather, her father
came after her and forced her to return home. Moreover, Mr.
Aguirre has personal information about the petitioner that
would assist him in tracking her down if she were to return
to Mexico. She is still quite young and most likely would
have to turn to relatives or family friends for assistance. Find-
ing her would not likely prove difficult.

[13] Considering all of the relevant circumstances, we are
convinced that any reasonable factfinder would conclude that
the petitioner's relocation away from her former home in
Mexico would not effectively negate the likelihood of her
future persecution by her father.

Because we conclude that the record evidence is clearly
insufficient to rebut the presumption of a well-founded fear of
future persecution, remand would be inappropriate.  See
Kataria v. INS, 232 F.3d 1107, 1115 (9th Cir. 2000); Chand
v. INS, 222 F.3d 1066, 1078 (9th Cir. 2000); Navas, 217 F.3d
at 662; cf. Surita, 95 F.3d at 817, 821 (remanding for supple-
mentation of the record and a determination of whether the
regulatory presumptions of a well-founded fear of persecution
and entitlement to withholding of deportation were rebutted,
when evidence in the record made it unclear whether country
conditions had changed sufficiently and the BIA had not
reached those questions because it erroneously concluded the
applicant suffered no past persecution); Singh v. INS, 94 F.3d
1353, 1357, 1361 (9th Cir. 1996) (same).

F. Withholding of Removal

[14] The petitioner suffered past persecution that threatened
her life or freedom. This gives rise to a presumption that her
life or freedom would be threatened if she were to return to
Mexico. That presumption may be rebutted by a preponder-
ance of the evidence that establishes there has been "a funda-
mental change in circumstances" or that the petitioner could
avoid a future threat to her life or freedom by relocating to
another part of Mexico, if under all the circumstances it
would be reasonable to expect her to do so. 65 Fed. Reg.
76,121, 76,135 (Dec. 6, 2000) (to be codified at 8 C.F.R.
SS 208.13(b)(1)(i)(A) & (B), 208.13(b)(1)(ii)). Absent such
rebuttal evidence, the petitioner is entitled to withholding of
removal. Kataria, 232 F.3d at 1115; Hernandez-Montiel, 225
F.3d at 1099. Because no such rebuttal evidence was pre-

sented, remand is not appropriate, the presumption is unrebut-
ted, and the petitioner is entitled to withholding of removal.


For these reasons, we grant the petition for review and
grant withholding of removal. We remand to the Attorney
General to exercise his discretion and determine whether to
grant asylum.

Petition for Review GRANTED.


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