United States Court of Appeals For the First Circuit

No. 23-1426

PRINCE BELO PAYE,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Gelpí and Rikelman, Circuit Judges.

SangYeob Kim, with whom Gilles Bissonnette, Margaret Moran, American Civil Liberties Union of New Hampshire, and New Hampshire Legal Assistance were on brief, for petitioner.

Andrew N. O'Malley, Senior Litigation Counsel, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Daniel V. Ward, Marianne Staniunas, Abigail Alfaro, Michelle Marie Mlacker, Colleen Roberts, and Ropes & Gray LLP were on brief for Immigration Law Professors and Former Immigration Judges and Board of Immigration Appeals Members, amici curiae. July 17, 2024 GELPÍ, Circuit Judge. Petitioner Prince Belo Paye

("Paye") seeks review of a final order of removal issued by the

Board of Immigration Appeals ("BIA"). The BIA upheld the

Immigration Judge's ("IJ") conclusion that Paye did not

demonstrate past persecution necessary for relief under the

withholding-of-removal statute,

. Paye appeals,

raising a litany of alleged errors.

We agree with him in part. The BIA and IJ (collectively,

"the agency") did not address whether Paye's escape from Liberia

because of systematic ethnic cleansing and genocide of the Krahn

people during the Liberian civil war constituted past persecution.

This hindered our ability to meaningfully review the agency's

denial of withholding of removal. Accordingly, we vacate and

remand.

I. BACKGROUND1

A. Factual Background

A civil war raged in Liberia throughout the 1990s. It

began after President Samuel Doe's rise to power. Doe was a member

of the Krahn, an ethnic group native to Liberia and Côte d'Ivoire,

and he established a regime notorious for its corruption and

1 We derive the following facts from the administrative record, which includes Paye's immigration-court testimony (which the IJ found credible), the record before the BIA and IJ, and their decisions. See Espinoza-Ochoa v. Garland,

, 227 n.1 (1st Cir. 2023).

- 3 - brutality. Krahns unaffiliated with Doe were perceived as his

supporters and accused of being culpable for his atrocities in

Liberia, including targeting "rival" ethnicities for arrest,

torture, and execution. Doe's brutality sparked rebellion, and

Charles Taylor formed a band of rebels -- the National Patriotic

Front of Liberia ("NPFL") -- to oppose Doe.

But the NPFL did not limit itself to combatting Doe.

Instead, it targeted innocent Krahns at Taylor's behest. Indeed,

one of Taylor's top lieutenants purportedly used the catchphrase,

"The only good Krahn man is a dead Krahn man." Taylor and the

NPFL thus caused the mass exodus of Liberians, mostly Krahns, in

the wake of widespread killing and torture. And during that

period, NPFL commander Prince Johnson broke off and formed the

Independent National Patriotic Front of Liberia ("INPFL"), another

rebel group, which committed human-rights abuses alongside the

NPFL. By October of 1990, roughly two-thirds of Liberia's 125,000

native Krahns had fled the country to escape the NPFL and INPFL.

The INPFL captured and executed Doe on September 9,

1990. And so, the war and systematic extermination of Krahns

continued. Soldiers affiliated with Doe fled to neighboring Sierra

Leone, and, after reorganizing with Sierra Leone's backing,

clashed with NPFL invaders in March 1991. NPFL forces continued

their atrocities on the border, including executing Krahn

civilians.

- 4 - Taylor became president of Liberia in 1997, while

human-rights groups noted that ethnic cleansing and genocide for

Krahns continued in the years leading up to the end of the civil

war in 2003. By that time, Taylor faced resistance from various

groups in Liberia, including those backed by the Guinean

government. In 2003, he abdicated his role as president in

exchange for immunity and fled to Nigeria.

Paye, who is Krahn, was born in Monrovia, Liberia in

1990. When he turned two years old, he fled Liberia with his

mother to Sierra Leone to escape the ethnic cleansing and genocide

of the Krahn people. He, along with his uncle and mother, resided

in refugee camps in Sierra Leone until 1996 or 1997. With his

uncle and mother, Paye attempted to flee Sierra Leone to Guinea

because NPFL forces began hunting Krahns residing in Sierra Leone.

But, at the Guinean border, Paye and his family were

detained by armed men in military fatigues. The men questioned

Paye and his family, and one of the men struck Paye repeatedly

with a rifle butt in the back of his head -- opening a hole in the

back of his ear and damaging his hearing. This, the man said,

"marked" Paye. Because the men spoke "Liberian English" with a

distinctive accent, Paye believed that they were from Liberia.

Paye stayed in refugee camps until he entered the United

States in 2005 as a refugee. His mother died in a refugee camp in

Guinea due to illness, while his uncle died in 2010 in the United

- 5 - States. Paye's status was adjusted to that of a lawful permanent

resident on May 20, 2010, retroactive to his entry in 2005,

pursuant to

.

B. Removal Proceedings

Paye was convicted in the U.S. District Court for the

District of Rhode Island and sentenced to three years of probation

on February 3, 2020, after he pled guilty on a three-count

indictment to various firearms-related offenses. Nine months

later, the United States Immigration and Customs Enforcement

detained Paye for removal proceedings because he was convicted of

an aggravated felony and firearm offense, pursuant to the

Immigration and Naturalization Act ("INA"),

(a)(2)(A)(iii), (a)(2)(C). In turn, Paye sought asylum,

withholding of removal, and protection under the Convention

Against Torture ("CAT"). In his brief to the IJ, he argued, among

other things, that his forced flight from Liberia due to the NPFL

and INPFL's ethnic cleansing and genocide against Krahns was past

persecution.

Before the IJ on December 22, 2020, Paye testified about

his escape from ethnic cleansing and genocide in Liberia, his

encounter at the Guinean border, and the moments leading up to his

arrest and conviction. The IJ considered Paye's testimony credible

but denied his petition on all grounds.

- 6 - First, the IJ determined that Paye's firearms

convictions qualified as "particularly serious crimes," making him

ineligible for withholding of removal. Second, the IJ denied

Paye's withholding-of-removal and CAT claims on the merits. The

IJ acknowledged the violence in Liberia from the civil war and how

this meant that Krahns were systematically targeted. And the IJ

recognized that the evidence in the record (namely, a report on

the current country conditions in Liberia) "note[d] that impunity

for individuals who committed human[-]rights abuses, including

atrocities during the Liberian civil war . . . , remained a

serious problem." Nevertheless, the IJ referenced signs that

Liberia is more stable than it was when Paye left, stating, as an

example, the current president's endorsement of a "war court" to

try those who committed war crimes during the civil war. In

dismissing Paye's concerns, the IJ stated that Paye had not shown

that it was "more likely than not he would be harmed on account of

his membership in a particular social group, his Krahn ethnicity."

The IJ determined that Paye's "claim for fear of return to Liberia

is basically focused and rests on [the] Liberian civil war," which

ended in 2003.

The IJ then shifted to Paye's claim for past persecution.

He stated that "it does not appear [Paye] suffered past

persecution, notwithstanding what happened to him on the border

between Sierra Leone and Guinea, because the [c]ourt cannot find

- 7 - that what happened to [Paye] was at the hands of government

officials from Liberia." To the IJ, it was not enough that Paye

explained that his assailant "spoke Liberian English . . . to

conclude" that this "individual was acting on behalf of the

government of Liberia," especially where the attack "took place in

Sierra Leone on the border with Guinea."

Paye appealed, arguing, among other things, that having

to flee Liberia because of ethnic cleansing and genocide against

Krahns qualified as past persecution, thereby entitling him to a

presumption that he would face future persecution in Liberia. See

(b)(1). The BIA affirmed. The BIA held that

Paye's underlying convictions were particularly serious crimes,

dismissing his appeal on that basis alone. Paye appealed to us,

seeking a stay of removal and vacatur. We granted the stay, and,

before we could review his petition, granted the government's

motion to voluntarily remand the case to the BIA so that it could

revisit his petition in light of Matter of B-Z-R,

(A.G. 2022), which provided new guidance on how to

determine whether crimes under the relevant INA provisions are

"particularly serious."

On remand, Paye argued to the BIA, among other things,

that his forced escape from ethnic cleansing and genocide qualified

as past persecution and entitled him to the future-persecution

presumption. In dismissing Paye's appeal this time, the BIA

- 8 - limited its analysis to whether Paye met the standards for

withholding of removal and CAT protection. It agreed with the IJ

that Paye did not show past persecution because he was assaulted

"when he was between the border of Sierra Leone and Guinea[.] [The

BIA, like the IJ,] could not conclude that the Liberian government

was responsible simply because the perpetrator spoke Liberian

English."

Paye filed the present petition on May 10, 2023. We

sort his grounds for relief into three categories: (1) his forced

flight from ethnic cleansing and genocide, (2) his assault at the

border, and (3) whether the BIA erred in analyzing his

ethnicity-based future-persecution claim.

II. DISCUSSION

A. Legal Standards

We first set out the legal standards applicable to Paye's

petition. "When 'the BIA adopts and affirms the IJ's ruling but

also examines some of the IJ's conclusions, this [c]ourt reviews

both the BIA's and IJ's opinions'" to the extent the BIA adopts

the IJ's opinion. H.H. v. Garland,

(1st Cir. 2022)

(alteration in original) (quoting Sanabria Morales v. Barr,

(1st Cir. 2020)). "In conducting our review, we defer

to the agency's factual determinations 'as long as those

determinations are supported by substantial evidence,' but we

review questions of law de novo." Pineda-Maldonado v. Garland, 91

- 9 - F.4th 76, 80 (1st Cir. 2024) (quoting Ahmed v. Holder,

(1st Cir. 2010)).

Applicants prove their eligibility for withholding of

removal when they demonstrate "a clear probability that, if

returned to [their] homeland, [they] will be persecuted on account

of a statutorily protected ground." Espinoza-Ochoa v. Garland,

(1st Cir. 2023) (quoting Sanchez-Vasquez v. Garland,

(1st Cir. 2021)). "Establishing [eligibility]

requires proof of three discrete elements: a threshold level of

past or anticipated serious harm, a nexus between that harm and

government action or inaction, and a causal connection to one of

the five statutorily protected grounds."2 Sanchez-Vasquez,

(citing Carvalho-Frois v. Holder,

(1st

Cir. 2012)).

Two requirements deserve further explanation, including

the "past or anticipated serious" harm prong.

"'Persecution'

is not defined by statute, and 'what constitutes persecution is

resolved on a case-by-case basis.'" Yong Gao v. Barr,

(1st Cir. 2020) (quoting Panoto v. Holder,

,

2 Because the standard for a withholding-of-removal claim is higher than an asylum claim -- requiring "a clear probability of persecution" rather than a mere "well-founded fear of persecution" -- "'asylum precedents may be helpful in analyzing withholding-of-removal cases,' and vice versa." Barnica-Lopez v. Garland,

(1st Cir. 2023) (quoting Sanchez-Vasquez,

).

- 10 - 46 (1st Cir. 2014)). We consider "[t]he severity, duration, and

frequency" of abuse and ask "whether harm is systematic rather

than reflective of a series of isolated incidents."

(quoting

Thapaliya v. Holder,

(1st Cir. 2014)). "The abuse

must also 'have reached a fairly high threshold of seriousness, as

well as some regularity and frequency.'" Ordonez-Quino v. Holder,

(1st Cir. 2014) (quoting Ivanov v. Holder,

(1st Cir. 2013)). But petitioners need not suffer

physical harm for their abuse to qualify as past persecution. See

Chen Qin v. Lynch,

(1st Cir. 2016) ("[W]e view

persecution as encompassing not only death and imprisonment, but

[also] the well-founded fear of non-life[-]threatening violence

and physical abuse." (second alteration in original) (internal

quotation marks omitted) (quoting Marquez v. INS,

(7th Cir. 1997))). For example, "[w]e have long held that

credible, specific threats can amount to persecution if they are

severe enough -- particularly if they are death threats."

Aguilar-Escoto v. Garland,

(1st Cir. 2023)

(internal quotation marks omitted) (quoting Javed v. Holder,

(1st Cir. 2009)) (collecting cases); see also

Aguilar-Solis v. INS,

(1st Cir. 1999)

("[P]ersecution encompasses more than threats to life or freedom,

but less than mere harassment or annoyance." (citations omitted)).

- 11 - Also relevant here is the third requirement:

"petitioners must show that the underlying past mistreatment that

they allege occurred is the direct result of government action,

government-supported action, or government's unwillingness or

inability to control private conduct." Vila-Castro v. Garland,

(1st Cir. 2023) (cleaned up) (quoting Orelien v.

Gonzales,

(1st Cir. 2006)); see also Orelien,

("[A]ction by non-governmental actors can undergird a

claim of persecution only if there is some showing that the alleged

persecutors are in league with the government or are not

controllable by the government." (alteration in original)

(quoting Da Silva v. Ashcroft,

(1st Cir. 2005))).

"'[U]nwillingness and inability are distinct issues' and the

'inquiry into whether there is a government nexus must include

separate consideration of the evidence of unwillingness and the

evidence of inability.'" Singh v. Garland,

(1st Cir. 2023) (quoting Rosales Justo v. Sessions,

, 164 n.8 (1st Cir. 2018)).

B. Jurisdiction

We pause briefly to consider our jurisdiction. The

government beckons us to dismiss this appeal for lacking statutory

jurisdiction, contending that Paye's withholding-of-removal claim

is not a colorable legal or constitutional claim. The government

directs our attention to

(a)(2)(C), which provides

- 12 - that "no court shall have jurisdiction to review any final order

of removal against [a noncitizen] who is removable by reason of

having committed [certain] criminal offense[s]." Because Paye was

convicted of offenses that fall within this statutory purview, the

government argues that we cannot review his petition for removal.

And, although the government recognizes our ability to consider

questions of law and colorable constitutional claims under

§ 1252(a)(2)(D), it characterizes Paye's arguments as falling

outside this exception.

It is true that although the INA limits our statutory

jurisdiction "to review any final order of removal against [a

non-citizen] who is removable by reason of having committed a

[covered] criminal offense," id. § 1252(a)(2)(C), we maintain

jurisdiction in this realm to review "constitutional claims or

questions of law," id. § 1252(a)(2)(D). And it is also true that,

although "an agency need not spell out every last detail of its

reasoning where the logical underpinnings are clear from the

record," "the agency is obligated to offer more explanation when

the record suggests strong arguments for the petitioner that the

agency has not considered." Aguilar-Escoto,

(cleaned up). Thus, we possess jurisdiction under § 1252(a)(2)(D)

where "[the agency] failed to meet this standard given its total

lack of analysis -- or, indeed, mention -- of critical evidence."

Id.; see Rodríguez-Villar v. Barr,

(1st Cir. 2019)

- 13 - (characterizing the agency's failure to consider "critical

evidence supporting the petitioner's claim for withholding of

removal and in using such evidence as part of its rationale for

denying that claim" as a legal error). And here, we review whether

the agency failed to address Paye's escape from ethnic cleansing

and genocide in Liberia, which is a question of law. See

Aguilar-Escoto,

. Under this approach, we do not

profess to reweigh the facts, so we have jurisdiction to proceed.

Moreover, to the extent Paye's arguments concerning the

border attack raise novel issues of statutory jurisdiction, we

often "bypass[] enigmatic jurisdictional questions in

circumstances in which precedent clearly adumbrates the result on

the merits." Royal Siam Corp. v. Chertoff,

(1st

Cir. 2007); see also Seale v. INS,

(1st Cir.

2003) (applying hypothetical jurisdiction in an immigration appeal

where the "petitioner clearly loses on the merits of his claims").

As we explain, our resolution on why Paye's arguments concerning

whether the agency erred in analyzing his argument that the border

attack constituted past persecution fail is straightforward.

Thus, we shall assume hypothetical jurisdiction to resolve them.3

3At our request, the parties briefed the impact of Wilkinson v. Garland,

(2024), in which the Supreme Court held that the federal courts of appeal possess jurisdiction under

(a)(2)(D) to review "the application of the exceptional and extremely unusual hardship standard to a given set of facts." We, however, premise our jurisdiction on our ability

- 14 - C. Escape from Ethnic Cleansing and Genocide as Past Persecution

We return to the principles elucidated above to review

whether the agency adequately addressed if Paye's childhood escape

from ethnic cleansing and genocide in Liberia constituted past

persecution. Our cases require the agency "'to articulate [its]

reasoning on [an] issue with sufficient particularity and clarity'

to permit us to 'infer the factual or legal basis for [that]

determination.'" Pineda−Maldonado, 91 F.4th at 81 (third

alteration in original) (quoting H.H.,

); see also

Panoto,

; Sok v. Mukasey,

(1st Cir.

2008); Hernandez-Barrera v. Ashcroft,

(1st Cir.

2004). "[It] must, at a minimum, 'fairly appraise the record'"

and cannot ignore "salient facts." Rodríguez-Villar,

(quoting Sihotang v. Sessions,

(1st Cir. 2018)).

The record reveals that Paye argued at every level of

review that his forced flight due to the Liberian rebel forces'

ethnic cleansing and genocidal killing of Krahn people was past

persecution. Yet the agency appears to have "completely overlooked

[this] critical evidence." Sihotang,

. The IJ

to review the agency's total lack of analysis of Paye's escape from ethnic cleansing and genocide in Liberia, which is a question of law under § 1252(a)(2)(D). See Aguilar-Escoto,

. And we assume hypothetical jurisdiction to reject Paye's arguments concerning the border attack, as is our usual practice. See Seale,

. Therefore, we need not consider Wilkinson.

- 15 - mentioned such evidence only when reciting the facts underlying

Paye's claims, and the BIA did not address it. Under our

precedent, the agency was required to address this potential

evidence of past persecution. See Aguilar-Escoto,

.

In recognizing this, we reject the government's argument

that the IJ's acknowledgment that Paye fled Liberia as a child

shows that the agency rejected his past-persecution argument.

Although the agency's findings "on all grounds that are necessary"

to support its decision may be "either explicit or implicit,"

Rotinsulu v. Mukasey,

(1st Cir. 2008) (citing Un

v. Gonzales,

(1st Cir. 2005)), we cannot infer

that the agency here implicitly held that Paye's forced flight due

to the genocidal killing and ethnic cleansing of Krahn people did

not constitute past persecution. See Pineda−Maldonado, 91 F.4th

at 81. While it appears that the IJ found that the conditions in

Liberia have improved since the civil war ended in 2003, it is

unclear how this is relevant to Paye's escape from Liberia during

the height of the civil war. Cf. Hernandez-Barrera,

. And, given Paye's credible testimony and evidence of his

forced flight from Liberia due to the ethnic cleansing and genocide

against the Krahns during the civil war, "[w]e cannot say the

evidence compels a conclusion either way," so we "must remand to

the agency to make a well-reasoned and well-explained

- 16 - determination of [Paye's] eligibility." Sok,

(quoting El Moraghy v. Ashcroft,

(1st Cir.

2003)).

The government claims that just because "Paye and his

mother fled Liberia does not automatically entitle him to a finding

of past persecution," but this generalization misses the mark.

True, a "fear of harm from general conditions of violence and civil

unrest does not even establish a 'well-founded fear of

persecution,' the asylum standard, much less a clear probability

of persecution, the withholding of removal standard." Tay-Chan v.

Holder,

(1st Cir. 2012) (discussing this

standard only as to whether the petitioner established a cognizable

social group). But the agency did not weigh the evidence of Paye's

flight from Liberia -- due to the targeted ethnic cleansing and

genocide of Krahns, not general unrest -- in its past-persecution

calculus. This argument thus leads us back to the start: we must

vacate the agency's ruling because it did not address Paye's forced

flight from ethnic cleansing and genocide in Liberia. See

Aguilar-Escoto,

.

The government's final riposte highlights what it

believes to be a paucity of evidence connecting the harm Paye

suffered with the Liberian government. It defends the agency by

declaring that the agency was "not required to write an exegesis

on every contention," Peulic v. Garland,

, 352 n.8

- 17 - (1st Cir. 2022) (citation omitted), and characterizes the agency's

conclusion that the Liberian government was not responsible for

the border incident as an implicit rejection that the Liberian

government had any responsibility for the genocide and ethnic

cleansing of the Krahn whatsoever. However, we glean no basis to

support the government's reading. The IJ stated only that he could

not find that "what happened to [Paye] on the border . . . was at

the hands of government officials from Liberia," and the BIA

agreed. As for the question of whether Paye's flight was past

persecution, it does not appear that the agency engaged with

Liberia's potential unwillingness or inability to restrain his

potential persecutors outside of the border attack, warranting

remand.4 See Aguilar-Escoto,

(vacating and

remanding where "the IJ never addressed whether [the petitioner]

had shown that the Honduran government was unwilling or unable to

protect her from the past harm perpetrated by" her purported

persecutor because the IJ simply concluded that the petitioner did

not suffer past persecution).

4 The government's argument that we should affirm the agency because the BIA cited our cases correctly setting forth the "government action" prong -- including a government's inability or unwillingness to restrain private actors -- is unavailing. Although the BIA cited the proper standard setting forth this prong, that does not salvage its decision because, as we have explained, it failed to consider why Paye's forced flight due to the Liberian rebel forces' ethnic cleansing and genocidal killing of Krahn people was not past persecution. See Aguilar-Escoto,

.

- 18 - We provide further guidance to the agency on remand. If

Paye suffered past persecution, either due to the Liberian

government's action or unwillingness or inability to restrain

private actors, he is entitled to a presumption of future

persecution. See

(b)(1); Aguilar-Escoto,

. "[T]he absence of reasoned discussion of past

persecution undercuts any meaningful review of the [agency's] fear

of future persecution finding, because we do not know whether

[Paye] should have had the benefit of the regulatory presumption

of fear of persecution based on prior events." Pineda-Maldonado,

91 F.4th at 84 (first and second alterations in original) (quoting

Hernandez-Barrera,

). We emphasize this presumption

because the IJ acknowledged ongoing human-rights violations in

Liberia and impunity of those who are responsible for atrocities

during the civil war. Cf. Ordonez-Quino,

(recognizing that the agency could not deny withholding of removal

solely because militants after the Guatemalan civil war integrated

with the government where the agency did not meaningfully engage

with current-country-conditions evidence pointing to Guatemala's

continuing discrimination against indigenous Mayan Quiché or how

that evidence affected the petitioner). And because the IJ

concluded only that Paye had not met his burden on this point, we

cannot discern whether the presumption could have had a meaningful

impact on Paye's chances of success.

- 19 - To be clear, we express no opinion on whether Paye's

past-persecution argument based on his forced flight from Liberia

due to ethnic cleansing and genocidal killing of the Krahn people

has merit. But we must remand here so that the agency may

articulate its reasoning on this point with enough clarity for us

to review.

D. Border Attack

We turn next to Paye's arguments concerning withholding

of removal based on his attack at the Sierra Leone-Guinea border.

As he argued before the BIA, he now argues that the agency erred

because it did not consider that "persecution can be at the hands

of non-state actors" and emphasizes that the IJ contended that the

Liberian government was not responsible for the border attack. He

further contends that the agency did not meaningfully engage with

his claim that the Liberian government could be responsible for

this act of persecution that it was unwilling or unable to address.

We do not find error in the agency's analysis of the

border attack. Rather, despite Paye's contrary construction of

the agency's decisions, the agency did conclude that Paye did not

meet his burden to show that the Liberian government was

responsible -- by action or acquiescence -- for the border attack.

We thus affirm this ruling.

The IJ concluded that there was an insufficient

connection between the attack and the Liberian government because

- 20 - the attack took place at the border of two countries other than

Liberia and Paye's proffered support -- that his assailants spoke

Liberian English and could have been Taylor's forces who pursued

him into Sierra Leone -- did not satisfy his evidentiary burden.

The BIA agreed with the IJ's determination that the Liberian

government could not be "responsible" for an incident at the border

of two different nations "simply because the perpetrator spoke

Liberian English," and it quoted thereafter to our decision in

Panoto v. Holder,

(1st Cir. 2014), for the

proposition that an asylum applicant must prove "that government

action or acquiescence caused or resulted in the mistreatment

giving rise to [his] claim" (emphasis added). Thus, contrary to

Paye's argument on appeal, that the agency referenced whether "the

Liberian government was responsible" did not signal that it

believed that only the government could persecute him. Rather,

with the BIA's citation to Panoto and reference to the Liberian

government being "responsible," the BIA implicitly recognized that

the Liberian government could be responsible for persecution if it

acquiesced to its occurrence and determined that Paye failed to

carry his burden on this point. See Hanan v. Mukasey,

(8th Cir. 2008) (finding that the record did not support

the claim that the agency failed to consider persecution under a

government-acquiescence theory where the agency, in part, cited to

the correct legal standard).

- 21 - Accordingly, the agency recognized that non-state actors

can be persecutors and simply rejected that the Liberian government

acquiesced to such persecution. We therefore find no error in the

agency's analysis of the border attack.

E. Future-Persecution Arguments

Paye raises two arguments concerning the agency's

conclusion that he failed to establish his Krahn-ethnicity-based

future-persecution claim for withholding of removal: (1) the BIA

applied an incorrect statutory standard, and (2) the BIA did not

review the IJ's nexus determination de novo.5 However, Paye

informs us that if we were to rule in his favor and vacate the

agency's conclusion that he was not entitled to withholding of

removal based on past persecution, then this "is sufficient to

vacate [the agency's] withholding analysis in its entirety." He

notes that the agency's analysis, including on his

future-persecution claim, is flawed because its failure to

conclude whether he suffered past persecution for escaping ethnic

cleansing and genocide potentially deprived him of the presumption

of future persecution. Thus, he contends that if we "agree[] with

[him] that the BIA committed reversible errors in the past

5 Were we to resolve these claims, they would be within our statutory jurisdiction because they are "questions of law" under § 1252(a)(2)(D). See Adeyanju v. Garland,

(1st Cir. 2022); Peulic,

(noting that whether the agency applied the "wrong legal standard" is a question of law).

- 22 - persecution analysis, then [we] do[] not need to reach his future

persecution claim."

We agree. As we noted above, the agency's failure to

analyze Paye's ethnic-cleansing-and-genocide-based

past-persecution claim meant that it analyzed his

future-persecution claim without the presumption. Indeed, the IJ

and BIA premised their rejection of Paye's claim on his failure to

meet his burden. We are left guessing whether things would have

turned out differently if Paye received the presumption because

the agency denied his future-persecution claim based only on his

purported failure to meet his burden.

True, we have excused the agency's failure to afford

this presumption when "the record makes it abundantly clear that

the petitioner will not likely suffer future persecution if sent

back to her home country." Sok,

. But this case is

not so "clear-cut that the allocation" of the burden "does not

matter."

at 57 (quoting Palma-Mazariegos v. Gonzáles,

(1st Cir. 2005)). As the IJ recognized, the evidence

in the record regarding Liberia's stability cut both ways -- some

indicating "impunity" for those who committed war crimes, some

suggesting that stability is now the norm. We cannot say that a

regulatory burden would make no difference.

Thus, the proper course here is to vacate the agency's

withholding-of-removal analysis in its entirety and remand for

- 23 - further consideration. See Pineda-Maldonado, 91 F.4th at 84, 91;

Hernandez-Barrera,

; see also, e.g., Singh v.

Garland,

, 657-58 (9th Cir. 2023). Because this means

that we need not address Paye's future-persecution arguments (as

he suggests), then we shall not do so.

III. CONCLUSION

For the reasons we have detailed above, the agency should

have addressed Paye's claim that his flight from Liberia to escape

ethnic cleansing and genocide was evidence of past persecution.

And it should have done so with enough particularity and clarity

to facilitate appellate review. Although we reject Paye's argument

that the agency erred in analyzing the border attack, we agree

that the agency's failure to analyze his argument that his forced

flight from Liberia was past persecution counsels us to vacate its

decision. We therefore (1) grant in part the petition for review,

(2) vacate the BIA's decision, and (3) remand for proceedings

consistent with this opinion.

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