United States Court of Appeals For the First Circuit

No. 23-1443

AMGAD SAMIR HALIM KHALIL,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Before

Gelpí, Howard, and Rikelman, Circuit Judges.

Saher J. Macarius, with whom Audrey Botros and Law Offices of Saher J. Macarius LLC were on brief, for petitioner.

Yanal H. Yousef, Trial Attorney, Office of Immigration Litigation, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Julian Bava, with whom Adriana Lafaille, Sabrineh Ardalan, Tiffany Lieu, American Civil Liberties Union Foundation of Massachusetts, Inc., and Harvard Immigration & Refugee Clinical Program, were on brief, for amici curiae. March 29, 2024 RIKELMAN, Circuit Judge. Amgad Samir Halim Khalil is an

Egyptian citizen and a Coptic Christian. After he acquired

sensitive, personal information about the family affairs of a

Muslim religious leader, he was beaten and subject to demands that

he convert to Islam. Several months later, Khalil came to the

United States and applied for asylum, withholding of removal, and

protection under the Convention Against Torture ("CAT"). An

Immigration Judge ("IJ") denied Khalil's asylum application,

concluding that the attackers who beat him were motivated by his

personal dispute with the imam, not Khalil's religion, and that

other, separate experiences of harm did not amount to persecution.

Under similar reasoning, the IJ also denied Khalil's withholding

of removal claim. Finally, the IJ rejected Khalil's CAT claim.

She held that Khalil had failed to establish that, if he returned

to Egypt, the Egyptian government would more likely than not

consent to or acquiesce in his torture by private actors. The

Board of Immigration Appeals ("BIA") affirmed. Khalil now

petitions this court for review, challenging the denial of his

claims.

We grant the petition for review in part, vacate the

decision of the BIA as to Khalil's asylum claim premised on

mixed-motive persecution and as to his CAT claim, and remand for

further proceedings consistent with this opinion.

- 3 - I. BACKGROUND

A. Relevant Facts1

Khalil was born and lived most of his life in Minya,

Egypt, where he attended a Coptic Christian church each week.

Because of gold jewelry that he wears and two visible tattoos of

a cross on his hand, Khalil was recognizable to others in his

community as a Coptic Christian. For many years before he left

for the United States in 2016, Khalil worked in a hospital as a

medical laboratory technician, where his duties included drawing

blood from patients.

Khalil's asylum claim is premised largely on two,

interconnected incidents that occurred while he was working in the

hospital lab. One evening in early May 2016, an imam came to the

lab to request bloodwork for his unmarried, fourteen-year-old

daughter. The bloodwork revealed that the imam's daughter was

pregnant. When Khalil informed the imam of the results, the imam

became irate and demanded that Khalil change or destroy the

results, which Khalil refused to do.

About one week later, a different female patient visited

Khalil's lab requesting bloodwork and a "vaginal sample." After

Khalil drew the patient's blood, he told her to sit behind a

1"We draw the facts from the administrative record, including [Khalil's] testimony before the IJ." Caz v. Garland,

, 25 n.2 (1st Cir. 2023).

- 4 - curtain in the room, change, and wait for a nurse to come in to

collect the sample. The patient started to undress in front of

Khalil and accused Khalil of sexually harassing her.

When Khalil opened the door to leave the room, he found

four men standing in the hallway armed with sticks; based on their

clothing, he identified them as members of the Muslim Brotherhood.

The men stated that they were the brothers of the female patient

Khalil allegedly sexually harassed and that they were there to

defend her. They called Khalil an infidel, and they demanded that

he convert to Islam or marry their sister if he ever wanted to

leave. When Khalil refused to do so, the men "got so angry" that

they "almost br[oke] [his] arm." They again demanded that Khalil

convert, and when he again refused, they beat him. The violence

quickly escalated. Each time Khalil refused to renounce his

religion, the men grew angrier and intensified their attack,

eventually punching Khalil's face, kicking his stomach, and

beating him with sticks. When they finally stopped, the attackers

told Khalil that he "should have list[en]ed to the imam and changed

the results [of the blood test] for his daughter."

Khalil was treated at the hospital for the injuries he

sustained during the attack. Because of the beating, he requested

a one-year leave of absence from the hospital, which was approved.

Around May 20, 2016, a week and a half after the incident, Khalil

moved with his wife and three sons from Minya to Giza, a different

- 5 - area of Egypt, where some of his extended family lives.

Khalil resided in Giza for about two-and-a-half months.

During that time, he received a phone call from a friend who had

accompanied him to receive medical treatment after the beating.

This friend told Khalil that his attackers were looking for him at

Khalil's lab and that they threatened to kill Khalil if they ever

found him unless he converted. Soon thereafter, Khalil left Egypt.

He entered the United States on August 24, 2016, on a tourist visa.

B. Legal Proceedings

In December 2016, while his visa was still valid, Khalil

applied for asylum, withholding of removal, and protection under

the CAT. After an interview with an asylum officer, his asylum

application was denied, and he was referred for removal

proceedings. In January 2018, the United States Department of

Homeland Security served Khalil with a notice to appear alleging

that he had overstayed his visa and charging him as removable under

the Immigration and Nationality Act ("INA"). Khalil conceded

removability and renewed his prior application. His principal

claims were that he had been persecuted on account of his Coptic

Christian religion and that he would be tortured if forced to

return to Egypt.

At his merits hearing before the IJ, the government

cross-examined Khalil about his encounter with the imam and the

- 6 - subsequent beating.2 Khalil testified that, in addition to the

beating, he had been harmed due to his faith when individuals threw

rocks and cursed at him while he was on his way to work or church.

Along with his testimony, Khalil offered supporting documents for

the IJ's consideration, including the declaration attached to his

asylum application and a transcript of his asylum interview, in

which he recounted many of the facts detailed above.

The IJ explicitly declined to make a credibility

finding, although she noted that parts of Khalil's story seemed

implausible and that there were some inconsistencies between his

testimony, declaration, and asylum interview. Nevertheless, the

IJ "assum[ed] that the events played out exactly as [Khalil]

described" and that the beating at the hospital rose to the level

of persecution. She denied Khalil's asylum application, however,

on the ground that he had not established a nexus between the harm

he suffered and a protected ground. The men attacked Khalil

"because he did not listen to the [i]mam and would not destroy the

[blood] test results," the IJ concluded. In her view, "[i]f

[Khalil's] religion played any role in this attack[,] it was minor

at best and clearly was not 'at least one central reason' for the

persecution." The IJ therefore denied Khalil's asylum claim to

2 Under an agreement between the parties, Khalil was first cross-examined by the government and then only briefly questioned by his own attorney.

- 7 - the extent it was premised on the interaction with the imam and

the subsequent beating. As to the incidents of verbal harassment

and rock-throwing, the IJ presumed that those past events occurred

because of Khalil's religion but concluded that they did not amount

to persecution.

The IJ then addressed Khalil's remaining claims. She

concluded that because Khalil had not shown he was entitled to

asylum, he necessarily could not meet the higher burden of proof

required for withholding of removal. Turning to his CAT claim,

the IJ denied relief because she determined that Khalil failed to

show it was more likely than not that he would be tortured with

the consent or acquiescence of the Egyptian government if he

returned to Egypt.

Khalil appealed to the BIA, which affirmed the IJ's

ruling.3 Specifically, the BIA agreed with the IJ's determination

that Khalil had not shown that he was beaten because of his

religion. In affirming the IJ's nexus conclusion, it held that

Khalil failed to meet his burden to demonstrate that his religion

"played any more than an incidental role in motivating the men to

attack him." The BIA also agreed that the incidents of verbal

3 Because the IJ did not explicitly make an adverse credibility finding, Khalil had a rebuttable presumption of credibility on appeal before the BIA.

(b)(1)(B)(iii). In reaching its decision, the BIA neither expressly stated nor implied that the presumption had been rebutted.

- 8 - harassment and rock-throwing were not sufficiently extreme to

constitute persecution. Like the IJ, it then reasoned that

Khalil's inability to satisfy the lower burden of proof for asylum

foreclosed his withholding of removal claim. Lastly, it held that

the IJ's findings underpinning the denial of CAT protection were

not clearly erroneous. The BIA therefore dismissed the appeal.

Khalil timely petitioned this court for review.

II. STANDARD OF REVIEW

In immigration cases, our review "typically focuses on

the final decision of the BIA." Loja-Tene v. Barr,

(1st Cir. 2020). But "to the extent that the BIA deferred to

or adopted the IJ's reasoning, we review those portions of the

IJ's decision" as well. Chavez v. Garland,

(1st

Cir. 2022). We apply de novo review to the BIA's legal conclusions

with "some deference to [the BIA's] interpretations of statutes

and regulations related to immigration matters." Aldana-Ramos v.

Holder,

(1st Cir. 2014). We apply the substantial

evidence standard to factual findings, meaning that we will disturb

such findings only if "in reviewing the record as a whole, 'any

reasonable adjudicator would be compelled to conclude to the

contrary.'" Barnica-Lopez v. Garland,

(1st Cir.

2023) (quoting Gómez-Medina v. Barr,

(1st Cir.

2020)). When we discuss the BIA and IJ's decisions as a unit, we

- 9 - refer to the BIA and IJ as "the agency." See Pineda-Maldonado v.

Garland,

(1st Cir. 2024).

III. DISCUSSION

Khalil raises multiple issues in his petition, but we

need address only some to resolve this case. We first examine

Khalil's asylum claim. Khalil argues that the agency legally erred

because it did not meaningfully consider whether his religion was

intertwined with his personal dispute with the imam such that both

were central reasons for his beating by the Muslim Brotherhood.

In addition, he contends that the factual record compels the

conclusion that his beating was on account of his religion and

that the verbal harassment and rock-throwing he experienced were

sufficiently serious to constitute past persecution. We conclude

that the agency did not legally err in the nexus analysis, but we

agree that the record compels the conclusion that religion was one

central reason for Khalil's beating. Regarding the incidents of

verbal harassment and rock-throwing, however, substantial evidence

supports the agency's determination that such mistreatment was not

sufficiently severe to rise to the level of persecution. We then

turn to Khalil's CAT claim and conclude that the BIA erred when it

failed to review the IJ's legal conclusions de novo.

A. Asylum Claim

We begin with the legal framework that governs Khalil's

asylum claim before turning to the issues raised in his petition.

- 10 - To be eligible for asylum, Khalil bears the burden of showing that

he is a "refugee" within the meaning of the INA.

(b)(1)(B)(i). A refugee is an individual who is "unable or

unwilling" to return to their home country because of "persecution

or a well-founded fear of persecution" that is "on account of"

their "race, religion, nationality, membership in a particular

social group, or political opinion."

(a)(42)(A).

To satisfy the "on account of" test, commonly referred to as the

nexus requirement, "the protected ground need not be the only

reason for the harm the applicant suffered, but it must be 'at

least one central reason for [the] persecuti[on].'"

Espinoza-Ochoa v. Garland,

(1st Cir. 2023)

(alterations in original) (quoting

(b)(1)(B)(i)).

1. Past Persecution Based on Mixed Motives

The "one central reason" test does "not require an asylum

applicant to demonstrate that [they were] singled out only due to

[their] protected trait." Barnica-Lopez,

(quoting

Enamorado-Rodriguez v. Barr,

(1st Cir. 2019)).

Instead, the test "contemplates the possibility that multiple

motivations can exist." Aldana-Ramos,

. For

instance, we have held that an applicant suffers persecution on

account of a protected ground when it is "impossible to

disentangle" a non-protected motive and the protected ground.

Pineda-Maldonado,

(finding that the applicant

- 11 - established the requisite nexus when a pecuniary motive and the

applicant's particular social group were "two sides of the same

coin" (quoting Perez-Sanchez v. U.S. Att'y Gen.,

(11th Cir. 2019))); see also Malek v. Mukasey,

(1st Cir. 2008) (recognizing that a non-protected ground can

be "inextricably intertwined with [the applicant's] religious

beliefs and the pressures that were placed on [them] . . . to

convert"). Therefore, an asylum applicant can still be eligible

for relief "even if one reason -- perhaps even the primary reason

-- for the persecution is not a basis for asylum." Espinoza-

Ochoa,

.

This same standard applies to personal disputes. We

have explained that "[e]vents that stem from personal disputes are

generally not enough to show the required nexus" between past harm

and a protected ground. Sompotan v. Mukasey,

(1st

Cir. 2008) (citations omitted). At the same time, we have

recognized that even if a personal dispute "'partially

motivate[s]' a persecutor's mistreatment of an applicant, record

evidence can nonetheless indicate that the applicant's [protected

status] may be 'another central reason for the persecution.'"

Espinoza-Ochoa,

(first alteration in original)

(quoting Madrigal v. Holder,

(9th Cir. 2013));

see also Pineda-Maldonado,

; Aldana-Ramos,

n.8.

- 12 - Accordingly, "to prevail on a mixed-motive theory,

[Khalil] 'need not prove that a protected ground was the most

important reason'" that his attackers beat him. Espinoza-Ochoa,

(quoting Enamorado-Rodriguez,

).

Rather, he "must show only that [his religion] was not 'incidental,

tangential, superficial, or subordinate to another reason for

[the] harm.'"

(second alteration in original) (quoting

Barnica-Lopez,

).

Khalil and amici contend that the agency erred as a

matter of law when it conducted the "at least one central reason"

analysis. They assert that the agency failed to apply properly

the mixed-motive nexus standard because it presumed that the

presence of a retributory motive for persecution signaled the

absence of a religious motive.4

We conclude that the agency did not preclude the

possibility of mixed-motive persecution or incorrectly apply the

mixed-motive standard in examining the nexus between Khalil's

religion and the harm he suffered. We have held that the BIA errs

as a matter of law when it fails to consider whether a statutorily

4 Although Khalil states on appeal that he is entitled to asylum based on his religion, political opinion, and particular social group, we limit our asylum analysis solely to religion, as that was the only protected ground that the agency addressed. See James v. Garland,

, 321 n.1 (1st Cir. 2021)(explaining that "our review is limited to the grounds the [agency] offered for its decision").

- 13 - protected ground was a central reason for the petitioner's

persecution, even if the petitioner also was targeted for other,

non-protected grounds. See, e.g., Enamorado-Rodriguez,

; Aldana-Ramos,

. But neither the IJ's nor

the BIA's opinion suggests that occurred here. Rather, the

opinions demonstrate that the agency "acknowledged the possibility

of a mixed-motive case, but based on the evidence presented, made

a fact-specific determination that [Khalil] had not shown that the

persecution was motivated by [his religion]." Barnica-Lopez,

-30 (quoting Villalta-Martinez v. Sessions,

(1st Cir. 2018)).

For instance, the IJ and BIA each acknowledged that

multiple motives could exist and that Khalil's religion could have

played some role in the beating. But the IJ determined as a

factual matter that religion played only an incidental role, and

the BIA agreed. Specifically, the IJ held that "[i]f [Khalil's]

religion played any role in [his] attack[,] it was minor at best

and clearly was not 'at least one central reason' for the

persecution." Similarly, the BIA acknowledged the attackers'

demands that Khalil convert but agreed with the IJ that Khalil had

not met his burden to demonstrate that "religion played any more

than an incidental role in motivating" the beating, applying the

correct legal standard.

To be sure, it is not enough for the agency simply to

- 14 - invoke the "one central reason" standard in its nexus analysis

while simultaneously reasoning that the persecution cannot be

motivated by a protected ground simply because a non-protected

ground for the persecution also exists. See Enamorado-Rodriguez,

; Aldana-Ramos,

. In other words,

the agency cannot conclude that there are no mixed motives simply

by identifying one motive. And "[e]ven on its own terms," the

agency's conclusion that Khalil's persecutors were motivated by

his refusal to destroy the blood test results "does not itself

exclude" the possibility that they were also motivated by Khalil's

religion. Enamorado-Rodriguez,

. But the agency

did not "prematurely terminate the analysis upon the finding of

another motive," Sompotan,

, or find that Khalil

"posit[ed] a plausible alternative motive to the one found by the

[IJ]" but nevertheless reason that motive could not co-exist with

an unprotected one, Enamorado-Rodriguez,

. It went

on to determine that the evidence here was insufficient to

establish a nexus between the beating and Khalil's faith. In sum,

the opinions below do not suggest that the agency spurned the

possibility of mixed motives. See Barnica-Lopez,

; Villalta-Martinez,

.

We turn, then, to Khalil's argument that the factual

record compels the conclusion that religion was at least one

central reason for his beating. We review the factual finding

- 15 - against Khalil on this issue under the substantial evidence

standard. Pineda-Maldonado,

.

Here, a reasonable adjudicator would be compelled to

conclude that Khalil's religion qualifies as a central reason for

the beating. Khalil's attackers demanded he convert, beat him

when he refused to do so, demanded again that he convert, and beat

him more intensely when he again refused. The attackers' own

statements show that, regardless of whatever else prompted the

beating, Khalil would not have been harmed had he agreed to

convert. See Sanchez-Vasquez v. Garland,

(1st

Cir. 2021) (deeming perpetrators' statements essential to the

nexus determination); Ivanov v. Holder,

(1st

Cir. 2013) (determining persecutors were driven by a religious

motive that they "recognized and gave voice to" during their attack

of the applicant); Singh v. Mukasey,

(1st Cir. 2008)

(explaining that perpetrators' statements "are a crucial factor"

for determining the central reason for harm); cf. Esteban-Garcia

v. Garland,

(1st Cir. 2024) (finding no nexus

because persecutors "didn't say anything" about the applicant's

protected ground).

The attackers' demands that Khalil convert to another

faith and their increased violence in response to his refusal to

do so make this case unlike Sompotan v. Mukasey,

(1st

Cir. 2008), which the IJ relied on in finding that the beating was

- 16 - the result of a personal dispute only. In Sompotan, we held that

the record did not compel the conclusion that those who robbed the

petitioners and their restaurant while yelling "Chinese bastard,

crazy Christian, crazy Chinese" were motivated by religious and

racial animus rather than by a desire to rob because "[t]he fact

that [robbers] would stoop to the level of using racial slurs is,

unfortunately, not surprising."

. By contrast, the

attackers here did not make just a passing reference to Khalil's

religion. Rather, they made religious demands on him during the

attack and beat him more vigorously when he refused to cede to

those demands.

The arguments the government offers as to why

substantial evidence supports the agency's no-nexus determination

do not alter our conclusion. The government emphasizes that Khalil

recounted his attackers' demands that he convert only in his asylum

interview and written declaration attached to his asylum

application, but not in his testimony before the IJ. But in

evaluating whether substantial evidence supports the agency's

conclusion, we are tasked with reviewing "the record as a whole."

Barnica-Lopez,

. Further, at his hearing, Khalil

described the beating exclusively during the government's

cross-examination, and the government strategically asked him only

one question about what his attackers said during the beating: Did

they reference the blood test results? The framing of the

- 17 - government's questions on cross-examination does not change our

assessment of the record as a whole. The government also contends

that, because Khalil testified that the imam had no issue with him

until the imam found out about the blood test results, religion

did not motivate the attack. But that argument ignores the

attackers' own words and actions.

For all these reasons, we find that the record compels

the conclusion that Khalil's religion played more than an

incidental role in his beating. We therefore grant the petition

for review as to Khalil's asylum claim premised on mixed-motive

persecution.5

5We acknowledge that our nexus analysis has no bearing on whether the beating itself meets the required "threshold[s] of seriousness" and "regularity" to qualify as persecution, Hernandez-Martinez v. Garland,

(1st Cir. 2023) (quoting Ivanov,

), which remains a factual determination for the agency to make on remand because the IJ only "assum[ed]" the beating amounted to persecution and the BIA affirmed on nexus grounds. If the agency determines that the beating did rise to the level of persecution, Khalil's resultant showing of past persecution entitles him to a presumption of a well-founded fear of persecution. That presumption may be rebutted only if the government shows by a preponderance of the evidence that (1) "there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution," or (2) the applicant could avoid future persecution by safely internally relocating and, "under all the circumstances, it would be reasonable to expect the applicant to do so."

(b)(1)(i). Below, the IJ held in the alternative that, even if Khalil had established past persecution on account of a protected ground, "the record indicate[d] that Khalil had safely relocated within the country before leaving for the United States." But "it is not clear from the BIA's opinion whether it adopted that [alternative] ground provided by the IJ." Chavez, 51 F.4th

- 18 - 2. Other Incidents of Past Harm

We reach a different conclusion as to Khalil's past

persecution claim based on incidents of verbal harassment and

rock-throwing.

As Khalil points out, the IJ inaccurately described the

record evidence in concluding that such mistreatment was not

sufficiently severe to constitute past persecution, and the BIA

did not correct the IJ. Specifically, the IJ stated that Khalil

"testified that he was never physically harmed" by the incidents

of verbal harassment and rock-throwing. But Khalil testified that

he had in fact been harmed. At his merits hearing, he confirmed

that he had sought medical treatment at the hospital where he

worked for injuries from the rock-throwing.6

at 433. And "[w]hen the BIA does not consider an IJ's alternative ground for denying relief, that ground is not before us."

(quoting Bonilla v. Mukasey,

(1st Cir. 2008)). As for Khalil's withholding of removal claim, the BIA denied that claim solely on the ground that he failed to show he was entitled to asylum. If the BIA concludes on remand that Khalil has a well-founded fear of future persecution, it should consider the withholding of removal claim in light of that conclusion. 6 Khalil also notes that the IJ stated that "having rocks thrown in one's general direction does not rise to the level of persecution," even though he testified that the rocks were aimed at him specifically. But earlier in the same paragraph of her decision, the IJ did accurately recount this evidence. She explained that Khalil testified that "[w]hile living in Egypt, he was constantly exposed to people . . . throwing rocks at him because of his religion." The IJ's accurate description mitigates the concern that she failed to understand that aspect of Khalil's testimony.

- 19 - The BIA did not recognize any mischaracterization of the

record by the IJ. Rather, it stated only that on de novo review

it "affirm[ed] the [IJ's] determination that the verbal harassment

and incidents of rock[-]throwing experienced by [Khalil] [were]

not sufficiently extreme to amount to persecution."

Ultimately, however, we agree with the government that

substantial evidence supports the BIA's conclusion that the

mistreatment Khalil described was insufficient to qualify as past

persecution.7 "Persecution" is not defined by statute, and "what

constitutes persecution is resolved on a case-by-case basis."

Panoto v. Holder,

(1st Cir. 2014). "Generally, it

involves a discriminatory harm . . . that 'surpasses

unpleasantness, harassment, and even basic suffering.'" Yong Gao

v. Barr,

(1st Cir. 2020) (quoting Panoto,

). To constitute persecution, the discriminatory

experiences "must have reached a fairly high threshold of

seriousness, as well as [occurred with] some regularity and

We have in the past noted the "tension between the standards 7

of review applied to past persecution by the BIA and circuit courts," explaining that the BIA characterizes the ultimate determination of whether a given set of facts amounts to persecution as a legal question that it reviews de novo whereas we review this same determination under the substantial evidence standard reserved for factual findings. Aguilar-Escoto v. Garland,

(1st Cir. 2023). As in Aguilar-Escoto, neither party raises this tension and the case does not require us to address it, so we again "leave this issue to another day."

.

- 20 - frequency." Martínez-Pérez v. Sessions,

(1st

Cir. 2018) (alteration in original) (quoting Alibeaj v. Gonzales,

(1st Cir. 2006)). Factors relevant to this

determination therefore include: "[t]he severity, duration, and

frequency" of the harm, "whether harm is systematic rather than

reflective of a series of isolated incidents," the nature and

extent of the applicant's injuries, and whether the applicant had

to seek medical attention for their injuries. Thapaliya v. Holder,

(1st Cir. 2014) (internal quotation marks and

citations omitted); Martínez-Pérez,

; Topalli v.

Gonzales,

(1st Cir. 2005).

Considering the incidents as Khalil described them, we

are not compelled to conclude that they rose to the level of

persecution. Khalil testified that, from the ages of twenty to

thirty, he "constantly" had rocks thrown at him when he was going

to church, and people cursed at him "a lot" on his way to church

and work. He did not describe any specific incidents. As noted,

he did seek medical attention for injuries he sustained. But the

record contains no information on the nature and extent of his

injuries, the severity of the harm, or whether the harm was

systematic. Accordingly, even if the IJ inaccurately described

part of Khalil's testimony and the BIA did not correct the error,

substantial evidence supports the conclusion that Khalil did not

suffer past persecution as a result of the verbal harassment and

- 21 - rock-throwing.

B. CAT Claim

Next, we turn to Khalil's challenge to the denial of his

CAT claim. We address one initial matter before describing the

governing legal framework and turning to the substance of Khalil's

petition.

Khalil premised his CAT claim on two threats: (1) the

likelihood that he would be tortured because of the incidents with

the imam and Muslim Brotherhood and (2) the likelihood that he

would be tortured because he is a Coptic Christian. We agree with

the government that Khalil has waived any challenge based on the

first portion of his claim by failing to raise it in his opening

brief, so we focus only on the second portion of his claim. See

Ouk v. Keisler,

, 66 n.3 (1st Cir. 2007) (explaining

that issues not raised in an appellant's opening brief are waived).

To establish eligibility for CAT protection, Khalil must

show that "it is more likely than not that he will be tortured if

returned to his home country." Bonnet v. Garland,

(1st Cir. 2021) (quoting Mazariegos v. Lynch,

(1st Cir. 2015)); see

(c)(2). In contrast to

asylum, Khalil may obtain CAT relief even if the risk of torture

he faces is not on account of any protected ground. Chavez,

(citing Rashad v. Mukasey,

(1st Cir.

2009)). Torture involves, among other things, "an act causing

- 22 - severe physical or mental pain or suffering . . . by or at the

instigation of or with the consent or acquiescence of a public

official." Romilus v. Ashcroft,

(1st Cir. 2004);

see

(a)(1).

Khalil's arguments focus on the acquiescence standard,

which requires that a public official, "prior to the activity

constituting torture, have awareness of [the torture] and

thereafter breach his or her legal responsibility to intervene to

prevent such activity."

(a)(7). We have

explained that this regulation "anticipates a two-part, successive

inquiry": (1) "the likelihood of a foreign government's awareness

of torture," and (2) "a likely breach of the government's duty to

intervene to prevent the torture." H.H. v. Garland,

(1st Cir. 2022). Awareness includes not just actual

knowledge of the torture but also willful blindness to it.

Khalil contends that when the BIA affirmed the IJ's

ruling that he failed to show that the Egyptian government would

acquiesce in his torture if he returned to Egypt, it applied the

wrong standard of review. He states that the BIA was required to

review de novo the IJ's legal determination that any harm he would

suffer if he returned to Egypt would not satisfy the regulatory

definition of torture, but the BIA instead used a clearly erroneous

standard. For our part, we review de novo the question of whether

the BIA applied the correct standard of review. See Adeyanju v.

- 23 - Garland,

(1st Cir. 2022).

"An IJ's determination regarding CAT relief is reviewed

as a mixed question of law and fact." H.H.,

.

"[W]hether a person is likely to suffer a particular harm and the

role of the foreign government in causing or allowing that harm"

are factual findings that the BIA reviews for clear error, but

"whether such harm rises to the level of torture and whether the

government's role renders the harm 'by or at the instigation of or

with the consent or acquiescence of a public official'" are legal

questions it reviews de novo. DeCarvalho v. Garland,

(1st Cir. 2021) (citation omitted). Framed more specifically

in terms of acquiescence: "[H]ow [a public official] would likely

act in response to the harm the applicant fears" is a factual

question, but "whether this response establishes that a public

official was 'aware of [the torturous] activity' and subsequently

breach[ed] his or her 'legal responsibility to intervene to prevent

such activity'" is a question of law. Myrie v. Att'y Gen.,

(3d Cir. 2017) (cleaned up) (quoting

(a)(7)).

Here, the BIA's opinion does not indicate that it

reviewed de novo the IJ's legal conclusion that the Egyptian

government's likely actions would not amount to acquiescence. The

BIA stated that Khalil did not "meet his burden to establish" that

the Egyptian government would more likely than not acquiesce in

- 24 - the torture he fears. But its sole support for that conclusion

was its statement that "[t]he [IJ's] findings regarding the

likelihood that a public official would torture or acquiesce to

the torture of [Khalil] are not clearly erroneous, given the

government's efforts to protect Coptic Christians and suppress

religious fundamentalists in the Muslim Brotherhood and other

organizations designated as terrorist groups." The opinion thus

suggests that the BIA erroneously treated the issue of whether the

government would acquiesce in Khalil's torture as a factual finding

subject only to clear error review. See H.H.,

.

Importantly, the BIA discussed the legal issue of government

acquiescence in the same breath as the IJ's factual findings. Its

use of the "clearly erroneous" language also suggests that it

blended the factual question of the Egyptian government's likely

behavior with the legal question of whether that behavior shows

awareness and breach of a legal duty. But those inquiries are

distinct. See id.; Murillo Morocho v. Garland,

(1st Cir. 2023). Further, unlike in other sections of its decision

when the BIA expressly stated it applied de novo review, the BIA

did not do so in its discussion of Khalil's CAT claim.

The government does not contend that the BIA applied de

novo review on the legal issue or that it was not required to do

so. Rather, it says that the BIA's "review of the factual findings

and the evidence underpinning them under the clear error standard

- 25 - was proper." But that simply ignores Khalil's arguments about the

standard of review on the legal issue.

To be sure, we have concluded that the BIA used the

proper standard of review even if it did not "expressly specify"

which standard it applied when it "call[ed] the IJ's determination

'correct' and 'cite[d] legal authority for its conclusion.'"

DeCarvalho,

(quoting Samayoa Cabrera v. Barr,

(1st Cir. 2019)). But in those cases, the BIA either

explicitly stated the clearly erroneous standard applied only to

the IJ's factual findings about the applicant's likely treatment,

or it adhered to the distinction between its review of factual

findings and its review of legal issues. See Samayoa Cabrera,

; DeCarvalho,

.

By contrast, we have remanded when the BIA's opinion

suggests that the BIA extended the clearly erroneous standard to

the issue of whether the government's likely actions would qualify

as acquiescence in torture as a matter of law. See H.H.,

(finding that the BIA did not apply the correct standard of

review when it found no "clear error in the specific finding that

the potential harm [the applicant would experience] would not be

with any consent or acquiescence of the Honduran government"

(emphasis omitted)); cf. Myrie,

(vacating and

remanding when the BIA stated that it found "no clear error in the

Immigration Judge's finding that the government of Panama would

- 26 - not be acquiescent to any torture" because the BIA "should have

determined de novo whether [the factual] findings were sufficient

to establish acquiescence"). That is the case here.

Further, we cannot discern from the opinions below that

either the IJ or the BIA applied the proper legal test on the

acquiescence question, which makes us particularly reluctant to

conclude that the BIA did indeed "complet[e] its own assessment of

whether the documentary evidence" satisfied the regulatory

definition of torture. Aguilar-Escoto,

. The BIA

and IJ cited the correct legal test, as they explained that

acquiescence requires either actual knowledge or willful blindness

and a breach of legal responsibility. And the IJ made various

findings about the government's response to instances of deadly

violence against Coptic Christians by religious extremists. But

the opinions do not indicate that the BIA or IJ "evaluated the

effectiveness of those steps and whether they met the government's

duty to intervene." Murillo Morocho,

. And,

"[n]either the IJ's nor the BIA's decision addressed what 'legal

duty' [Egyptian] authorities had in this situation and whether the

government's efforts satisfied it."

(finding that those

omissions made us unable to determine "whether the agency's

analysis reflect[ed] reasoned consideration" of the applicant's

CAT claim and remanding for the BIA to reconsider the acquiescence

question using the correct legal standard).

- 27 - Additionally, we have "expressed skepticism that 'any

record evidence of efforts' to prevent torture will 'necessarily'

meet the duty to intervene."

at 69 (quoting H.H.,

). That is because lower-level officials may still consent to

or acquiesce in torture notwithstanding higher-level officials'

attempt to address some violence. H.H.,

(citing De

La Rosa v. Holder,

(2d Cir. 2010)). In other

words, "the fact that some officials take action to prevent the

torture" is "neither inconsistent with a finding of government

acquiescence nor necessarily responsive to the question of whether

torture would be 'inflicted . . . with the consent or acquiescence

of a public official.'" De La Rosa,

(citation

omitted).

Here, to the extent the IJ did consider whether the

Egyptian government's actions reflected willful blindness or a

breach of the duty to intervene, she relied heavily on the actions

of high-level officials: the Egyptian president's pledge to fight

terrorism after a particular attack, the president's alliance with

the Coptic Christian church, which "has offered Christians in Egypt

a measure [of] protection," and the fact that the Egyptian

government has formally designated the Muslim Brotherhood a

terrorist organization. The IJ also determined that the evidence

about the president's pledge "directly contradict[ed]" Khalil's

expert report, which stated that police inaction was a significant

- 28 - problem for Coptic Christians. But, as we have explained, one

high-level official's formal pledge in response to a particular

incident may be fully consistent with other officials' complicity.

The BIA reproduced the IJ's reasoning. In finding no

clear error in the IJ's findings, it referred only to (1) the fact

that the Egyptian government has designated the Muslim Brotherhood

a terrorist organization, which says little about whether public

officials would nevertheless acquiesce in torture of Coptic

Christians, and (2) "the government's efforts [to] protect Coptic

Christians and suppress religious fundamentalists," without

specifying those efforts, discussing whether they satisfy the

legal duty to intervene, or remarking upon their effectiveness.

We note that Khalil bears the burden to prove his

entitlement to protection under the CAT. We also recognize that

the country conditions evidence in this case before the IJ was

limited.8 Further, the BIA need not "expressly parse or refute on

the record" every one of the applicant's arguments when it "has

given reasoned consideration to the petition, and made adequate

findings." H.H.,

(quoting Wei Guang Wang v. BIA,

(2d Cir. 2006)). But here, because the BIA's

brief analysis does not indicate it applied the correct legal test

or standard of review, we cannot determine that it gave reasoned

8 As a result, the IJ took administrative notice of two U.S. State Department human rights reports on Egypt.

- 29 - consideration to Khalil's CAT claim. Cf. Murillo Morocho,

; Myrie,

(remanding when, although it was

"possible that the BIA considered the appropriate . . . standard"

before concluding that the facts were insufficient to establish

acquiescence, the court "[could not] tell from the BIA's short

decision whether this is indeed the case").

On remand, the BIA should evaluate the consent or

acquiescence question de novo and under the proper legal test.

IV. CONCLUSION

For all these reasons, we grant the petition in part,

vacate the agency's decision insofar as it denied Khalil's asylum

claim premised on mixed-motive persecution and denied his CAT

claim, and remand for further proceedings consistent with this

opinion.

- 30 -