FOR PUBLICATION

     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT

JOSE ERNESTO ALEMAN-                                 No. 23-114
BELLOSO,
                                                    Agency No.
                                                   A206-871-954
               Petitioner,

    v.                                               OPINION

MERRICK B. GARLAND, Attorney
General,

               Respondent.

           On Petition for Review of an Order of the
               Board of Immigration Appeals

             Argued and Submitted April 12, 2024
                    Pasadena, California

                    Filed November 13, 2024

    Before: Marsha S. Berzon and Salvador Mendoza, Jr.,
    Circuit Judges, and Michael T. Liburdi, District Judge. *

                   Opinion by Judge Mendoza

*
 The Honorable Michael T. Liburdi, United States District Judge for the
District of Arizona, sitting by designation.
2                  ALEMAN-BELLOSO V. GARLAND


                          SUMMARY **


                           Immigration

    Granting Jose Ernesto Aleman-Belloso’s petition for
review of the Board of Immigration Appeals’ decision
upholding the denial of asylum and related relief, and
remanding, the panel held that the Board erred in concluding
that Aleman failed to establish a nexus between any
persecution and his political opinion, erred by
mischaracterizing his proposed social group, and improperly
ignored probative evidence regarding government
involvement in or acquiescence to any torture in El Salvador.
    The panel agreed with the Board that Aleman failed to
demonstrate a nexus between any harm and his religious
belief. However, the panel concluded that there was not
substantial evidence to support the Board’s finding of no
nexus between the persecution Aleman suffered and his
political opinion and membership in a particular social
group. The panel held that the record compelled the
conclusion that Aleman held two political opinions. First,
he believed it was wrong to use his role as a church leader to
convince church members to support the FMLN—one of El
Salvador’s primary political parties. And second, he thought
that the FMLN was “ruining the country.” The record also
compelled the conclusion that the FMLN attacked Aleman
because of his political-opinion-based refusal to use his role
in the church to influence El Salvadoran politics.


**
  This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 ALEMAN-BELLOSO V. GARLAND                  3


    The panel concluded that in rejecting Aleman’s social
group, the Agency erred in two important ways. First, the
Agency mischaracterized Aleman’s particular social group
as consisting of “being a church leader who was persecuted
because of his refusal to support the FMLN,” where Aleman
consistently characterized his proposed group as being
comprised of “influential church leaders.” Second, the
Agency’s mischaracterization of Aleman’s social group led
it to reject the group as “circularly defined and thus
impermissible.” The panel explained that under
longstanding principles, a group may be deemed
impermissibly “circular” if, after conducting the proper case-
by-case analysis, the Board determines that the group is
defined exclusively by the fact that its members have been
subjected to harm. Here, the actual group that Aleman
asserted to the Agency—influential church leaders—was not
defined by reference to the harm he suffered, let alone
exclusively by the harm suffered. The panel remanded for
the Board to determine whether influential El Salvadoran lay
ministers qualify as a particular social group. The panel also
remanded for the Board to address in the first instance the
Salvadoran government’s involvement in, or its inability or
unwillingness to control, any persecution.
    The panel concluded that in denying CAT protection, the
Agency erred by failing to consider probative evidence
regarding government involvement in or acquiescence to
Aleman’s past torture. Because the Agency drew the
unsupported conclusion that Aleman’s past torture was not
carried out with government acquiescence, and failed to
consider, in its risk-of-future-torture analysis, record
evidence regarding the FMLN’s continued power in El
Salvador, the panel remanded for the Agency to reconsider
Aleman’s CAT claim.
4               ALEMAN-BELLOSO V. GARLAND


                        COUNSEL

Judith L. Wood (argued), Law Office of Judith L. Wood, Los
Angeles, California; Patricia G. Gittelson, Law Office of
Patricia G. Gittelson, Van Nuys, California; Beth S. Persky,
Law Office of Beth S. Perky, Atlanta, Georgia; for
Petitioner.
Rosanne M. Perry (argued), Trial Attorney; Leslie McKay,
Senior Litigation Counsel; Office of Immigration Litigation;
Brian Boynton, Principal Deputy Assistant Attorney
General; United States Department of Justice, Civil
Division, Washington, D.C.; for Respondent.

OPINION

MENDOZA, Circuit Judge:

     Jose Ernesto Aleman-Belloso (“Aleman”), a native and
citizen of El Salvador, petitions for review of a decision by
the Board of Immigration Appeals (“BIA”) adopting and
affirming an Immigration Judge’s (“IJ”) denial of his claims
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). The IJ and BIA
(together, the “Agency”) deemed Aleman’s testimony
credible and found that he was subjected to torture at the
hands of the FMLN—one of El Salvador’s primary political
parties. But the Agency found that Aleman failed to
establish a nexus between the harm he suffered and any
protected grounds, and therefore rejected his claims for
asylum and withholding of removal. And the Agency denied
CAT relief, finding it not likely that Aleman would be
tortured again in the future.
                ALEMAN-BELLOSO V. GARLAND                 5


    Aleman challenges the Agency’s denial of his asylum
and withholding-of-removal claims on the basis that the
Agency erroneously concluded that there was no nexus
between the harm he suffered and his religious beliefs,
political opinion, or membership in a particularized social
group. He also challenges the Agency’s denial of CAT relief
as unsupported by substantial evidence and on the basis that
the Agency failed to consider relevant evidence in the
record.
    We conclude that substantial evidence does not support
the Agency’s denial of Aleman’s asylum, withholding of
removal, and CAT claims. We grant the petition for review
and remand all three claims for further proceedings.
                 I.   BACKGROUND
    Before leaving El Salvador in 2015, Aleman was an
influential lay minister in the ELIM Christian Mission
Church in his hometown of Lourdes Colon, La Libertad. He
joined ELIM in 2012 and quickly became a leader in the
church. In 2013, Aleman received a diploma from the
church’s School of Theological Leadership. He led family
groups, formed youth groups to help keep local children off
the streets and away from drugs, and inspired others by
sharing his own story of overcoming hardship. Aleman
presided over quarterly meetings attended by 300 to 400
community members and was well-known in Lourdes Colon
for his work in the church.
    In 2015, Aleman’s influence in the community caught
the attention of local members of the FMLN, El Salvador’s
primary left-wing political party. At the time, the FMLN
controlled both the mayor’s office in Lourdes Colon and the
presidency in El Salvador. After a community meeting on
February 21, 2015, Aleman was approached by three
6                ALEMAN-BELLOSO V. GARLAND


members of the FMLN—a representative of the mayor’s
office, the head of publicity for the party in the area, and
another local party leader. There was an election coming up,
and the FMLN leaders had in mind a strategic political
proposition for Aleman. They wanted him to become “a
member representative” and “introduce the [FMLN] to the
members of [his] church so that [the FMLN] could win the
elections.” If he joined the party and encouraged church
members to vote for the FMLN, they would reward Aleman
with a salary from the mayor’s office and provide additional
benefits to his church.
    Aleman did not give them an answer that day, but the
FMLN was undeterred. A few days later, the mayor’s
representative—Alex Figueroa—approached Aleman again,
offering him a salary and touting public works that the
FMLN would implement to benefit the community. This
time, Aleman refused. He told Figueroa, “[N]o, I couldn’t
be a part of that.” And as set forth in his declaration, Aleman
further stated: “our country is a democratic country” and
“neither I nor anyone else would influence political opinion
in an individual way to support a certain political party.”
   As it turns out, the local FMLN leaders were right to be
concerned about the party’s prospects in the elections.
Although the FMLN maintained the presidency, it lost the
mayorship in Lourdes Colon.
    Aleman suffered from the consequences of that election.
Five days after the preliminary results of the election were
announced, in the early morning of March 7, four masked
gunmen attacked Aleman in his home. They grabbed him
by the neck, threw him to the ground, kneeled on his back
for forty minutes, and put a 9-millimeter caliber gun to his
head, while ransacking his home. The man who pressed the
                ALEMAN-BELLOSO V. GARLAND                  7


gun to Aleman’s head asked him why he “hadn’t accepted
the proposal of the party.” They told Aleman that he had
three days to get out of town, “that they didn’t want to see
[him] around anymore,” and that they “didn’t want [him] to
form any more family groups” in the community.
    Aleman did not report the attack to the police because he
knew that any report would go to his local municipality,
where the FMLN remained in power pre-transition to the
newly elected party. Instead, he complied with their
demands and left town to stay at his mother’s house in a
neighboring area. But after arriving at his mother’s home,
two gun-toting individuals tracked him down, warning him
again “that they were not playing any games” and “that they
had already been very clear with [him],” reminding him that
he had three days to leave the area. On March 9, 2015,
Aleman left El Salvador for the United States.
II. JURISDICTION AND STANDARD OF REVIEW
    We have jurisdiction under 

(a). Because
the IJ found Aleman credible, his “statements must be taken
as true.” Mendez-Gutierrez v. Gonzales, 

 (9th Cir. 2006). Where, as here, the BIA cites Matter
of Burbano, 

 (BIA 1994) and adds its
own analysis to the IJ’s, we review both Agency decisions.
See Ruiz-Colmenares v. Garland, 

 (9th Cir.
2022). The Agency’s determinations on questions of law are
reviewed de novo. Pirir-Boc v. Holder, 

(9th Cir. 2014). The Agency’s factual findings are reviewed
for “substantial evidence” and “should be upheld ‘unless the
evidence compels a contrary result.’” Budiono v. Lynch, 

 (9th Cir. 2016) (quoting Hernandez-
Mancilla v. Holder, 

 (9th Cir. 2011)).
“A factual finding is not supported by substantial evidence
8                ALEMAN-BELLOSO V. GARLAND


when any reasonable adjudicator would be compelled to
conclude to the contrary based on the evidence in the
record.” Aden v. Wilkinson, 

 (9th Cir.
2021) (internal quotations and citation omitted). “While this
standard is deferential, ‘deference does not mean
blindness.’” Parada v. Sessions, 

 (9th Cir.
2018) (quoting Nguyen v. Holder, 

 (9th
Cir. 2014)).
                  III.   DISCUSSION
    A. Asylum & Withholding of Removal
    To qualify for asylum “based on past persecution, an
applicant must establish that: ‘(1) [his] treatment rises to the
level of persecution; (2) the persecution was on account of
one or more protected grounds; and (3) the persecution was
committed by the government, or by forces that the
government was unable or unwilling to control.’” Antonio
v. Garland, 

 (9th Cir. 2023) (quoting
Bringas-Rodriguez v. Sessions, 

 (9th
Cir. 2017) (en banc)). A showing of past persecution “gives
rise to a rebuttable presumption of future persecution.”
Sharma v. Garland, 

, 1060 (9th Cir. 2021). To
prevail on a claim for withholding of removal, an applicant
“must show, by a preponderance of the evidence, that he will
face persecution on account of a protected ground if
removed.” Iraheta-Martinez v. Garland, 

(9th Cir. 2021).
    Neither the IJ nor the BIA decided whether Aleman’s
treatment rose to the level of persecution, so we leave that
                    ALEMAN-BELLOSO V. GARLAND                             9


issue to be resolved on remand. 1 We focus instead on
Aleman’s showing of (1) nexus to a protected ground; and
(2) governmental involvement in, or unwillingness or
inability to control, persecution.
         1. Nexus Requirement
    A petitioner seeking asylum must establish a nexus
between the persecution and a protected ground. Antonio,

. To do so, he must show that he was
persecuted “on account of race, religion, nationality,
membership in a particular social group, or political
opinion,” 

(a)(42)(A), and he must
“demonstrate that one of the five protected grounds” was “at
least one central reason for his persecution.” See Zetino v.
Holder, 

 (9th Cir. 2010) (citing 

(b)(1)(B)(i)). The nexus standard for a withholding
claim is not as demanding; the applicant need only
demonstrate that one of the five protected grounds was “a”
reason for the threat to his life or freedom. Barajas-Romero
v. Lynch, 

 (9th Cir. 2017) (internal
quotation marks and citation omitted).
   The Agency found that there was no nexus between the
harm Aleman suffered and his three asserted protected
grounds—religious belief, political opinion, and
membership in a particular social group. Although the
applicable standard of review for the Agency’s nexus




1
  We do note that the Agency found that Aleman’s treatment amounted
to torture. “Torture is . . . inherently and impermissibly severe; and it is
a fortiori conduct that reaches the level of persecution.” Nuru v.
Gonzales, 

 (9th Cir. 2005).
10                  ALEMAN-BELLOSO V. GARLAND


determination is unsettled, 2 we agree with the Agency that
Aleman failed to demonstrate any nexus between his harm
and his religious belief. But even under the deferential
substantial-evidence standard, we conclude that there was
not substantial evidence to support the BIA’s finding of no
nexus between the persecution Aleman suffered and two
protected grounds—his political opinion and membership in
a particular social group.
            i.    Religious Belief
    The Agency’s determination that Aleman did not
establish that he was persecuted on account of his religious
beliefs is supported by substantial evidence. Aleman does
not contend that the attack following the FMLN’s loss in the
local elections was animated by his religious beliefs or
practices. The Agency correctly rejected Aleman’s asserted
nexus of religious belief or practice.



2
  At times, we have held that when “an applicant is deemed credible,
we . . . consider[] nexus issues to be questions of law entitled to de novo
review.” Garcia v. Wilkinson, 

, 1142 n.2 (9th Cir. 2021)
(citing Singh v. Ilchert, 

 (9th Cir. 1995), superseded
by statute on other grounds as stated by Parussimova v. Mukasey, 

, 739–40 (9th Cir. 2009) & Baghdasaryan v. Holder, 

, 1022 n.4 (9th Cir. 2010)). But in other similar cases, we have
applied the substantial-evidence standard to nexus issues related to a
persecutor’s motive. See Vasquez-Rodriguez v. Garland, 

,
893 (9th Cir. 2021)) (“Because ‘[a] persecutor’s actual motive is a matter
of fact,’ we review that finding for substantial evidence.” (quoting
Matter of N-M-, 

 (B.I.A. 2011)). Because our
resolution of this appeal would be the same under either standard,
however, “it is unnecessary to reach the issue of whether we review those
determinations de novo or for substantial evidence.” Garcia, 

 n.2.
                 ALEMAN-BELLOSO V. GARLAND                    11


         ii.    Political Opinion
     To establish past persecution on account of a political
opinion, Aleman must satisfy two requirements. “First he
must show that he held (or that his persecutors believed that
he held) a political opinion. Second, he must show that his
persecutors persecuted him because of his political opinion.”
Ahmed v. Keisler, 

 (9th Cir. 2007)
(citing Navas v. INS, 

 (9th Cir. 2000)).
“We have held repeatedly that political opinions
‘encompass[] more than electoral politics or formal political
ideology or action.’” Rodriguez Tornes v. Garland, 

 (9th Cir. 2021) (alteration in original) (quoting
Ahmed, 

).
    Here, the Agency found no nexus based on Aleman’s
political opinion because “the FMLN did not care whether
[Aleman] agreed with their political goals or their political
ideals or their political ideology . . . . Rather, they were just
angry that he had not affirmatively used his influence to
persuade his congregants to vote for the party.” We
conclude that substantial evidence does not support the
Agency’s finding.
    The first element—that Aleman “held (or that his
persecutors believed that he held) a political opinion,”
Ahmed, 504 F.3d at 1192—is readily met. The FMLN asked
Aleman to join the party and leverage his role as a church
and community leader to persuade church members to
support the FMLN. But he told them, “[N]o, I couldn’t be a
part of that,” because El Salvador “is a democratic country,”
and “neither I nor anyone else would influence political
opinion in an individual way to support a certain political
party.”      Aleman also provided credible, unrebutted
testimony concerning the basis for his defiance, including
12               ALEMAN-BELLOSO V. GARLAND


his personal view that the FMLN president is an “ally of
Cuba and Venezuela and so the country is out of control.
These are the people that are ruining the country and the
country is totally out of control.”
    The record compels a finding that Aleman held two
political opinions. First, he believed it was wrong to use his
role as a church leader to convince church members to
support the FMLN. And second, he thought that the FMLN
was “ruining the country.”
    The record also compels us to conclude that Aleman
satisfies the second element: the FMLN attacked Aleman
because of his political-opinion-based refusal to use his role
in the church to influence El Salvadoran politics. See
Ahmed, 

. In determining whether a person
is persecuted because of his political opinion, context
matters. Generally, “[a] person’s deeds express a political
opinion only when they are ‘sufficiently conscious and
deliberate decisions or acts’ such that society would
naturally ‘attribute[] certain political opinions to [the
petitioner]’ based on those acts.” Rodriguez-Zuniga v.
Garland, 

 (9th Cir. 2023) (quoting De
Valle v. INS, 

 (9th Cir. 1990) (citation
omitted)). Where, as here, the petitioner asserts that he
expressed a political opinion in refusing to comply with a
persecutor’s demands, the nature of those demands is
integral to the analysis.
    For instance, we have held that a petitioner’s “refusal to
give money to [a] threatening robber is not evidence of a
‘conscious and deliberate’ decision that would naturally
result in attributing a political position” against “violence by
criminal groups.” Rodriguez-Zuniga, 69 F.4th at 1017–18.
That makes sense; a person’s bare refusal to give a robber
                ALEMAN-BELLOSO V. GARLAND                 13


money, without more, does not necessarily indicate that the
person harbored a political opinion opposing crime. Id. at
1017 (“[M]ost people who resist criminal activity directed
towards them do so for obvious non-political self-interested
reasons—they don’t want to be the victim of a crime.”).
Conversely, where a petitioner refuses to participate in or
support a political organization, such refusal may well be a
sufficient expression of a political opinion. See Rodriguez-
Matamoros v. INS, 

 (9th Cir. 1996) (finding
petitioner was persecuted on account of her political beliefs
where she expressed those beliefs by “refus[ing] to
participate in Sandinista organizations” and refusing to
“become an informant for the Sandinista government”).
Stated differently, a person who rebuffs a political
organization “need not ‘espouse political theory’” or deliver
a soapbox speech to convey a political opinion. See
Rodriguez Tornes, 

 (quoting Grava v. INS,

 (9th Cir. 2000)). Rather, we look to
whether “society would naturally attribute certain political
opinions to the petitioner based on [his] acts.” Rodriguez-
Zuniga, 

 (internal brackets and citation
omitted).
    The Agency misapplied our political-opinion precedent
when it concluded that “the FMLN did not care whether
[Aleman] agreed with their political goals or their political
ideals or their political ideology,” and therefore did not
persecute Aleman because of his political opinion. Like the
petitioner in Rodriguez-Matamoros, who expressed her
political opinion by “refus[ing] to participate in Sandinista
organizations” and refusing “to become an informant for the
Sandinista government,” the record compels the conclusion
that Aleman’s rejection of the FMLN’s proposition
amounted to an expression of a political opinion. See 86
14                  ALEMAN-BELLOSO V. GARLAND


F.3d at 160; see also Rodriquez Tornes, 

(holding that petitioner expressed feminist political
opinions, in part, by taking a job against her abuser’s wishes
and refusing to leave her job). And the FMLN attacked
Aleman because of that opinion, holding a gun to his head
while demanding to know why Aleman “hadn’t accepted the
proposal of the party.” 3
          iii.    Particular Social Group
    An applicant “seeking relief based on membership in a
particular social group must establish that the group is:
‘(1) composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3) socially
distinct within the society in question.’” Diaz-Reynoso v.
Barr, 

 (9th Cir. 2020) (quoting Matter
of M-E-V-G-, 

 (BIA 2014)). 4

3
  Relying on Regalado-Escobar v. Holder, the government contends that
Aleman’s “attackers were motivated by . . . his refusal to join them,” and
not his political opinion. 

 (9th Cir. 2013). In
Regalado-Escobar, the FMLN attacked the petitioner because he refused
“to join them, increase their ranks, and participate in their violent
activities,” and the petitioner “offered no evidence to show that his
attackers were even aware of his political beliefs.” 

 Here, the FMLN
attacked Aleman because he refused to act as the party’s political
operative. Aleman told the FMLN that he “couldn’t be a part of that”
because El Salvador “is a democratic country and that neither [he] nor
anyone else would influence political opinion in an individual way to
support a certain political party.” Under these circumstances, the record
compels the conclusion that Aleman’s political opinion in opposition to
using his position in the church to influence the democratic process in
favor of the FMLN “was articulated sufficiently for it to be the basis of
his . . . persecution.” 

4
  Under our precedent, “[a]n immutable characteristic is one that is
either: (1) ‘beyond the power of an individual to change,’ or (2) ‘so
                     ALEMAN-BELLOSO V. GARLAND                            15


Whether a particular social group is cognizable is a question
of law that we review de novo, id. at 1076, although the issue
of “social distinction—whether there is evidence that a
specific society recognizes a social group—is a question of
fact that we review for substantial evidence,” Conde
Quevedo v. Barr, 

 (9th Cir. 2020). Here,
the Agency rejected Aleman’s particular social group as an
“impermissible” basis for asylum or withholding of removal
because it was “circularly defined.” In doing so, the Agency
erred in two important ways.
    First, the Agency mischaracterized Aleman’s particular
social group. The BIA stated that “respondent argues he is
entitled to relief as a member of the group consisting of
‘being a church leader who was persecuted because of his
refusal to support the FMLN.’” But Aleman never said that.
The BIA lifted that language from the IJ’s decision. Aleman,
in fact, argued before the BIA that “[h]e was recruited to
campaign for the FMLN among his church community
because he was a church leader. He is a member of the social
group of influential church leaders and as such meets the
particularity and social distinction” requirements. Aleman’s
argument before the BIA tracks the social group he
described in his brief to the IJ, which argued that he “was

fundamental to [individual] identity or conscience that it ought not be
required to be changed.’” Diaz-Reynoso, 

 (emphasis
added) (quoting Matter of Acosta, 

, 233–34 (BIA
1985), overruled in part on other grounds as stated in Matter of
Mogharrabi, 

 (BIA 1987)). Or in the words of
Judge Posner: “An immutable characteristic, as defined by the Board,
need not be an innate characteristic . . . ; it just has to be something that
can’t be changed (or is so fundamental, equivalent to a person’s religion,
that he shouldn’t be forced to change it.” Sepulveda v. Gonzales, 

 (7th Cir. 2006) (Posner, J.) (citing Matter of Acosta, 19 I.
& N. Dec. at 233).
16                  ALEMAN-BELLOSO V. GARLAND


believed to influence local votes because of his leadership
role,” “was a local church leader in El Salvador and as such
had social visibility,” and “was recognized as a church
leader, evidenced by the fact that politicians from both
political parties approached him for support.” The IJ
misconstrued the way that Aleman framed his group,
representing instead that “[Aleman] defined his social group
as being a church leader who was persecuted because of his
refusal to support [the] FMLN.” The record simply does not
support the Agency’s reframing of Aleman’s social group. 5
    The Agency’s mischaracterization of Aleman’s social
group, standing alone, was legal error that constitutes
grounds for remand. Alanniz v. Barr, 

(9th Cir. 2019) (citing INS v. Orlando Ventura, 

 (2002)) (remanding because the BIA mischaracterized
the petitioner’s particular social group).
    Second, the Agency’s mischaracterization of Aleman’s
social group led it to reject the group as “circularly defined
and thus impermissible.” That holding, too, is reversible
error. To start, the Agency’s freestanding “circularity”

5
  The government tries to rehabilitate the Agency’s transformation of the
articulated social group by pointing to Aleman’s brief before the IJ,
where he argued that “[h]e was persecuted because of his refusal as a
church leader to support the FMLN.” But that statement supports our
conclusion. Aleman did not “define[] his social group as being a church
leader who was persecuted.” Rather, Aleman’s use of the conjunction
“because” demonstrates that he was arguing both (1) that he is a member
of a protected group, church leaders, and (2) that a causal nexus linked
his membership in that group to his persecution. Accordingly, the
Agency’s assertion that “respondent argues he is entitled to relief as a
member of the group consisting of ‘being a church leader who was
persecuted because of his refusal to support the FMLN’”
mischaracterizes Aleman’s asserted social group and is supported by
neither Aleman’s briefing nor anything else in the record.
                 ALEMAN-BELLOSO V. GARLAND                 17


analysis has no foundation in BIA or circuit precedent. To
the contrary, in Matter of M-E-V-G- (the case on which the
BIA relied), the BIA rejected DHS’s attempt to impose “a
separate requirement that the social group must exist
independently of the fact of persecution,” because that
criterion was already part of the well-established particular-
social-group analysis. 

 n.11. Under
that longstanding principle, “a group may be deemed
impermissibly ‘circular’ if, after conducting the proper case-
by-case analysis, the BIA determines that the group is
‘defined exclusively by the fact that its members have been
subjected to harm.’” Diaz-Reynoso, 

(quoting Matter of M-E-V-G-, 

)
(emphasis added).
    Here, the actual group that Aleman asserted to the
Agency—“the social group of influential church leaders”—
is not defined by reference to the harm he suffered, let alone
“exclusively” so. See Diaz-Reynoso, 

.
Indeed, even the Agency’s misstatement of Aleman’s
proposed group—“the group consisting of being a church
leader who was persecuted because of his refusal to support
the FMLN”—is not defined exclusively with respect to the
harm suffered. “[T]he conclusion that a proposed social
group is impermissibly circular may not be reached
summarily merely because the proposed group mentions
harm.” 

 That is exactly what the Agency did here.
    Because the Agency mischaracterized Aleman’s
particularized social group and improperly rejected it on
circularity grounds, it did not consider whether the group is
cognizable. We therefore remand so that the BIA may
determine whether influential Salvadoran lay ministers
qualifies as a particular social group. See Antonio, 58 F.4th
at 1076–77; Alanniz, 

.
18                 ALEMAN-BELLOSO V. GARLAND


        2. Government Involvement in, or Inability or
           Unwillingness to Control, Persecution
    To qualify for asylum and withholding of removal based
on past persecution, Aleman must establish that the
“persecution was committed by the government or by forces
that the government was unwilling or unable to control.”
Antonio, 

. Aleman contends that he satisfies
this requirement because the persecution he suffered was
“committed by the government.” See 

 He notes that agents
of the FMLN carried out the attack, and Aleman provided
unrebutted testimony that the FMLN remained in power in
his area at the time he was attacked. Because the Agency
did not address government involvement or its inability or
unwillingness to control the persecution Aleman suffered for
purposes of asylum and withholding of removal, we remand
so that the BIA may do so in the first instance. 6
     B. Relief Under the Convention Against Torture
    Under CAT, the United States is prohibited from
returning someone to a country where “it is more likely than
not that he or she would be tortured.”            

(c)(2).    “To qualify for relief under the
Convention, the torture must be ‘inflicted by or at the

6
  In resolving Aleman’s CAT claim, the IJ noted that Aleman did not
report his torture “to the government and did not, therefore, provide an
opportunity for the government to take any steps to prevent any harm to
arrest those who had committed the harm.” But this finding did not
inform the Agency’s denial of Aleman’s asylum and withholding claims.
We note that if the BIA finds on remand that, as Aleman contends, the
“government is responsible for [the] persecution” that he suffered, “the
third prong of our asylum inquiry is satisfied without further analysis.
[And] [a]s a result, no inquiry into whether a petitioner reported the
persecution to police [would be] necessary.” Baballah v. Ashcroft, 

 (9th Cir. 2004).
                 ALEMAN-BELLOSO V. GARLAND                   19


instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.’”
Zheng v. Ashcroft, 

 (9th Cir. 2003)
(quoting 

(a)(1)). “Evidence of past torture
is relevant ‘in assessing whether torture is more likely than
not.’” Nuru v. Gonzales, 

 (9th Cir.
2005) (quoting Kamalthas v. INS, 

 (9th
Cir. 2001) (internal brackets omitted)). In evaluating a CAT
claim, “the IJ must consider all relevant evidence; no one
factor is determinative.” Maldonado v. Lynch, 

 (9th Cir. 2015) (en banc). “[W]here there is any
indication that [the Agency] did not consider all of the
evidence before it . . . the decision cannot stand.” De Leon
v. Garland, 

, 1005 (9th Cir. 2022) (quoting Cole
v. Holder, 

, 771–72 (9th Cir. 2011)).
   The IJ held that Aleman was tortured:

       [Aleman] was physically attacked, thrown to
       the ground, held there for about 40 minutes
       with someone’s knee on him, had a [gun]
       held to his temple at that same time period,
       and then at least twice told that he had three
       days to leave his home, by the same men who
       then showed him guns, and the court finds
       that’s torture.

The IJ based her finding on a well-developed record.
Aleman credibly testified about the facts of his attack, during
which he was pinned to the ground with a gun to his head.
Aleman also credibly testified that after the attack, he fled to
his mother’s house some 40 minutes away, only to be
targeted again by two gun-toting individuals who warned
him “that they were not playing any games, . . . that they had
20               ALEMAN-BELLOSO V. GARLAND


already been very clear with [him],” and that Aleman had
three days to get out of town.
     But the IJ denied Aleman’s CAT claim, holding:

        [A]t the time that [Aleman] was being
        harmed and threatened the FMLN had lost
        the election in his hometown, and as was
        brought out in testimony, while the [FMLN]
        was in national power at the time he came to
        the United States, a new president[, Nayib
        Bukele,] was being installed in June of 2019,
        a date which has already passed, and that
        president is not a member of the FMLN. And
        so the court finds that the pain and suffering
        and harm and threats that respondent suffered
        was not with the consent, acquiescence of, or
        at the instigation of a public official, and with
        the change in parties that it is not more likely
        than not that respondent will suffer torture in
        El Salvador.

The BIA summarily affirmed this holding, adding only that
“[t]he respondent’s claim appears to rest upon mere
speculation that he would necessarily be exposed to torture
in El Salvador, and that authorities would fail to intervene to
protect him.” At bottom, the Agency’s determination that
Aleman failed to establish a likelihood that he would be
tortured if returned to El Salvador rests on the conclusions
that (1) the government did not acquiesce to Aleman’s past
torture because the FMLN lost the local election in Aleman’s
area five days before he was attacked, and (2) Nayib Bukele
became president in 2019 and is not an FMLN member, so
                    ALEMAN-BELLOSO V. GARLAND                            21


the FMLN lacks the power to torture Aleman in the future. 7
But these Agency determinations are not supported by
substantial evidence and demonstrate that the Agency failed
to consider probative record evidence.
     The IJ’s determination that the attack on Aleman was not
“inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity,” Zheng, 

, because the
FMLN had lost in local elections five days before the attack
is not supported by substantial evidence. The IJ recognized
that the torture Aleman suffered was at the hands of FMLN
agents. Aleman was attacked five days after the FMLN lost
the local election and was asked at gunpoint why he had not
accepted the FMLN’s proposal. He asserts that “the FMLN
still controlled local government in Lourdes Colon
immediately after the elections that displaced them,” and
supports this assertion with unrebutted testimony. In short,
the IJ’s finding that no public official was involved in the
torture because the FMLN had lost in the local election five
days prior lacks support and is contradicted by the record.
See De Leon, 51 F.4th at 1004 (reversing the BIA’s

7
  The IJ also noted that Aleman did not report his torture “to the
government and did not, therefore, provide an opportunity for the
government to take any steps to prevent any harm to arrest those who
had committed the harm.” It is unclear how this finding factored into the
Agency’s decision, as the IJ did not tie this finding into her analysis, and
the BIA made no mention of this finding and cited no legal authority
demonstrating its relevance. In any event, the IJ’s suggestion that
Aleman had to report his torture at the hands of the FMLN’s foot soldiers
to the police in order to establish that his torture was carried out under
the imprimatur or with the acquiescence of public officials is wrong. We
have “never required that an applicant report his alleged torture to public
officials to qualify for relief under CAT.” Ornelas-Chavez v. Gonzales,

 (9th Cir. 2006).
22               ALEMAN-BELLOSO V. GARLAND


determination that petitioner failed to show government
acquiescence because “the record compels the conclusion
that [the attackers] were [government agents] at the time of
the incident”).
    The determination that Aleman suffered past torture with
government acquiescence does not “fully satisfy [his]
burden to show that it is ‘more likely than not’ that he would
be tortured should he return to” El Salvador. See id. at 1005.
So, we remand for the BIA to readdress Aleman’s likelihood
of future torture. In doing so, we note that the Agency
appears to have ignored probative evidence regarding the
FMLN’s continued power throughout El Salvador. Setting
aside the FMLN’s loss of one local election in 2015, the
Agency ignored evidence that the FMLN held the presidency
from 2009 to 2019, and that as of 2021, the FMLN and its
right-wing rival ARENA controlled “70% of congressional
and local seats” in El Salvador. The FMLN therefore had a
strong, ongoing presence in government throughout the
country, a fact that the Agency did not mention.
    Because the Agency drew the unsupported conclusion
that Aleman’s past torture was not carried out with
government acquiescence, and failed to consider, in its risk-
of-future-torture analysis, record evidence regarding the
FMLN’s continued power in El Salvador, the Agency’s
denial of the CAT claim “cannot stand” and “must be
redone.” See De Leon, 51 F.4th at 1005 (quoting Cole, 659
F.3d at 771–72).
                IV.     CONCLUSION
    The Agency found that Aleman was tortured by agents
of the FMLN. The record compels the conclusion that
Aleman was attacked because of his political opinion and
                   ALEMAN-BELLOSO V. GARLAND                         23


refusal to engage in political proselytization. 8 The record
also supports that the government acquiesced in Aleman’s
torture—the attack came just five days after the FMLN lost
in local elections, while the FMLN remained in power. We
therefore GRANT in part Aleman’s petition, and
REMAND to the BIA for further proceedings consistent
with this opinion.




8
  Separately, as set forth above, the Agency committed legal error by
mischaracterizing Aleman’s particular social group. On remand, the
Agency may or may not need to consider whether Aleman’s social group
is cognizable, depending on its resolution of Aleman’s political opinion
claim.