FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`MARIO RAJIB FLORES MOLINA,
`Petitioner,
`
`
`
`v.
`
`
`MERRICK B. GARLAND, Attorney
`General,
`
` Nos. 19-73028
`20-71774
`
`Agency No.
`A215-879-596
`
`
`OPINION
`
`Respondent.
`
`On Petition for Review of an Order of the
`Board of Immigration Appeals
`
`Argued and Submitted April 14, 2021
`Pasadena, California
`
`Filed June 13, 2022
`
`Before: Richard A. Paez and Lawrence VanDyke, Circuit
`Judges, and Edward R. Korman,* District Judge.
`
`Opinion by Judge Paez;
`Concurrence by Judge Korman;
`Dissent by Judge VanDyke
`
`
`
`
`
`* The Honorable Edward R. Korman, United States District Judge
`for the Eastern District of New York, sitting by designation.
`
`

`

`FLORES MOLINA V. GARLAND
`
`SUMMARY**
`
`2
`
`
`
`
`
`Immigration
`
`
`The panel (1) granted Mario Rajib Flores Molina’s
`
`petition for review of the Board of Immigration Appeals’
`decision affirming an immigration judge’s denial of asylum
`and related relief, and remanded, holding that the record
`compelled a finding that Flores Molina’s past experiences
`constituted persecution and that the Board erred in its
`analysis of other issues; and (2) dismissed as moot Flores
`Molina’s petition for review of the Board’s denial of his
`motion to reopen.
`
`Flores Molina was publicly marked as a terrorist and
`
`threatened with torture over social media by Nicaraguan
`government operatives, repeatedly verbally threatened with
`death by supporters of the Ortega regime, received a death
`threat painted on his home by masked men likely affiliated
`with the government, and received a second death threat—
`this time during a direct confrontation—after he was
`seriously beaten by six members of the Sandinista Youth.
`Flores Molina also had a near confrontation with an armed
`paramilitary group that located him at a hideaway. The
`panel explained that the threats were credible given the
`history and context of the Ortega regime’s killing and torture
`of its political opponents.
`
`The panel observed that this court has stated in various
`
`opinions that both the de novo and the substantial evidence
`standard of review apply to the question of whether
`
`** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`

`

`3
`
`FLORES MOLINA V. GARLAND
`
`
`
`particular acts constitute persecution. The panel wrote that
`it need not address the nuances of the two standards, or
`which standard should apply, because the harm Flores
`Molina suffered rose to the level of persecution under the
`more deferential substantial evidence standard of review.
`
`The panel held that the record compelled the conclusion
`
`that Flores Molina’s experiences in Nicaragua constituted
`persecution. First, the panel wrote that this court has
`consistently recognized that being forced to flee from one’s
`home in the face of an immediate threat of severe physical
`violence or death is squarely encompassed within the rubric
`of persecution. Here, Flores Molina was forced to flee three
`separate times after being personally targeted with violence
`and threatened with death for his political views.
`
`Second, the panel wrote that this court has repeatedly
`
`held that threats may be compelling evidence of past
`persecution, particularly when
`they are specific and
`menacing and are accompanied by evidence of violent
`confrontations, near-confrontations and vandalism, as was
`the case here. Moreover, this court has consistently held that
`death threats alone can constitute persecution. The panel
`concluded that any reasonable adjudicator would be
`compelled to hold that the repeated and specific threats that
`Flores Molina experienced, amid violence and menacing
`confrontations, amount to persecution.
`
`Third, the panel wrote that that an applicant may suffer
`
`persecution based on the cumulative effect of several
`incidents, even if no single incident rises to the level of
`persecution. The panel explained that this is a fact-bound
`endeavor that is not reducible to a set formula, but rather
`requires that the relevant facts be evaluated in combination
`with each other to form a sufficiently negative portrait of the
`
`

`

`FLORES MOLINA V. GARLAND
`
`4
`
`petitioner’s experience in his or her own country that not
`only allows a finding of past persecution but requires it.
`Here, Flores Molina was repeatedly threatened and subjected
`to violence, in an escalating fashion, all within the well-
`documented backdrop of the Ortega regime’s violent
`crackdown on members of the political opposition.
`
`Turning to the issue of Flores Molina’s claim that he has
`
`a well-founded fear of future persecution, the panel held that
`the Board erred by failing to address highly probative
`evidence. The panel explained that the Board cited the
`record selectively, relying on two news reports of the Ortega
`regime’s release of 100 prisoners and its intention to release
`more, to support its assertion that Flores Molina’s fear of
`future persecution was speculative, while ignoring other
`evidence that documented the conditions released prisoners
`faced, delays in releasing political prisoners, the detention
`and disappearance of additional activists and protesters in
`the interim, and gross human rights violations in Nicaragua.
`Moreover, the Board failed to discuss whether the repeated
`death threats and threats of violence Flores Molina faced
`were sufficient to inspire a well-founded fear of future
`persecution. Likewise, the Board failed to address highly
`probative evidence concerning the likelihood of torture.
`
`The panel remanded for the Board to consider the
`
`remaining elements of past persecution, Flores Molina’s
`claim for humanitarian asylum, and all of the probative
`evidence concerning whether Flores Molina established a
`well-founded fear of future persecution or clear probability
`of torture.
`
` Because it granted Flores Molina’s petition as to the
`denial of asylum and related relief, the panel dismissed as
`
`

`

`5
`
`FLORES MOLINA V. GARLAND
`
`
`
`moot Flores Molina’s petition as to the denial of his motion
`to reopen.
`
` Concurring, District Judge Korman wrote separately to
`address the standard of review applicable to the Board’s past
`persecution determination. Judge Korman wrote that
`although this court owes deference under the substantial
`evidence standard to the administrative findings of fact,
`whether particular facts constitute persecution for asylum
`purposes is a legal question reviewed de novo. Judge
`Korman explained that the substantial evidence standard is
`not a good fit for questions, like the one presented in this
`case, regarding the application of a legal standard to settled
`facts. Judge Korman agreed with the majority that the
`decision in this case would be the same regardless of which
`standard applied, but noted that he would also have
`concurred in a majority opinion concluding that the Board
`legally erred in concluding that Flores Molina’s hardships
`did not amount to persecution.
`
` Dissenting, Judge VanDyke would deny the petition
`because the record does not compel the conclusion that
`(1) the past harassment Molina suffered rose to the level of
`past persecution, or that (2) such harassment—together with
`the most recent country conditions evidence that was before
`the agency—demonstrated a well-founded fear of future
`persecution. Judge VanDyke would also hold that the record
`does not compel a contrary conclusion with respect to Flores
`Molina’s remaining applications for withholding of removal,
`humanitarian asylum, or protection under CAT, and that the
`Board did not abuse its discretion in denying Flores Molina’s
`motion to reopen.
`
`Judge VanDyke addressed the three interconnected
`
`layers of deference this court owes to immigration agency
`
`

`

`FLORES MOLINA V. GARLAND
`
`6
`
`decisions, which combine to form what should be one of the
`most deferential standards of review in our legal system.
`First, the scope of the court’s review is tightly circumscribed
`by the extraordinarily deferential standard that Congress has
`commanded—yielding
`to
`the agency’s determinations
`unless a different conclusion is compelled. Second, the court
`applies that extreme deference to the extraordinarily difficult
`and often indeterminate factual inquiries that the agency
`alone is charged with making. And third, as the Supreme
`Court recently reiterated in Garland v. Dai, 141 S. Ct. 1669
`(2021), the agency enjoys extraordinary discretion in making
`the difficult determinations of how much credibility, weight,
`and persuasiveness to afford different parts of the record in
`reaching its factual conclusions.
`
`Judge VanDyke wrote that his view of Flores Molina’s
`
`past harms is not far from that of his colleagues— the facts
`present a close call, and he is sympathetic to the majority’s
`view that Flores Molina may have suffered past persecution.
`Judge VanDyke wrote that he diverges with the majority
`regarding its approach to the agency’s decision and the
`record, explaining that the majority admittedly travels a
`well-trodden path looking for a basis to overturn the agency
`instead of scouring the record as a whole looking for a way
`to uphold the agency if even a single reasonable factfinder
`could agree with its ultimate conclusion. Judge VanDyke
`wrote that this court’s edifice of immigration caselaw has
`obfuscated the correct standard of review, making the proper
`approach harder to see and even harder to execute. These
`small differences of opinion, as illustrated in this case, have
`been multiplied over time in many decisions, leading to the
`lopsided edifice that is currently improperly driving much of
`this court’s immigration caselaw.
`
`
`
`

`

`
`
`
`FLORES MOLINA V. GARLAND
`
`7
`
`COUNSEL
`
`
`Mary-Christine Sungaila (argued) and Joshua R. Ostrer,
`Buchalter APC, Irvine, California; Paula M. Mitchell,
`Attorney; Tina Kuang (argued) and Natalie Kalbakian
`(argued), Certified Law Students, Loyola Law School, Los
`Angeles, California; for Petitioners.
`
`Jeffrey R. Leist (argued), Senior Litigation Counsel;
`Anthony C. Payne, Assistant Director; Office of
`Immigration Litigation, Civil Division, United States
`Department of Justice, Washington, D.C.; for Respondent.
`
`
`
`OPINION
`
`PAEZ, Circuit Judge:
`
`Petitioner Mario Rajib Flores Molina (“Flores Molina”)
`participated in demonstrations against the ruling regime in
`his native Nicaragua, where he witnessed the murder of his
`friend and fellow protester by police and paramilitary
`members. Thereafter, he was publicly marked as a terrorist,
`threatened with torture and death by government operatives,
`and forced to flee his home. Flores Molina, however, was
`tracked down at his hideaway by armed paramilitary
`members, and was forced to flee for his life a second time.
`Flores Molina still was not safe. He was discovered, yet
`again, assaulted, and threatened with death by a government-
`aligned group. Flores Molina ultimately fled a third time—
`from Nicaragua altogether—out of fear for his safety. He
`eventually presented himself to authorities at the United
`States border and sought asylum and other relief.
`
`

`

`8
`
`
`FLORES MOLINA V. GARLAND
`
`When Flores Molina sought asylum, withholding of
`removal and protection under the Convention Against
`Torture (“CAT”), an Immigration Judge (“IJ”) and the Board
`of Immigration Appeals (“BIA”) determined that his past
`experiences in Nicaragua did not rise to the level of
`persecution. They also determined that Flores Molina did
`not establish a well-founded fear of future persecution. The
`IJ and BIA denied all forms of relief and ordered Flores
`Molina’s removal to Nicaragua. Flores Molina petitions for
`review of the BIA’s denial of his appeal of the IJ’s decision,
`as well as of the BIA’s subsequent denial of his motion to
`reopen proceedings. Because the record compels a finding
`that Flores Molina’s past experiences constitute persecution
`and because the BIA erred in its analysis of the other issues,
`we grant
`the first petition and remand for further
`proceedings. Accordingly, we dismiss the second petition as
`moot.
`
`I. Factual and Procedural Background
`
`A. Political Context: 2018 Protests and Violent
`Suppression in Nicaragua
`
`The Sandinista National Liberation Front or “Frente
`Sandinista de Liberación Nacional” (“FSLN”) regained
`control of the Nicaraguan government in 2007 under Daniel
`Ortega. The FSLN maintains power in part through Citizen
`Power Councils (“CPCs”), FSLN party-based grassroots
`organizations that operate in neighborhoods and districts
`across Nicaragua. The CPCs function as intelligence-
`gathering entities for the Nicaraguan government. They also
`assist the government in suppressing dissent. CPCs and
`police work with paramilitary groups associated with the
`Sandinista Party to target the homes of protesters. In recent
`years, they have abducted and detained protesters, and raided
`homes of suspected protesters across Nicaragua.
`
`

`

`
`
`
`FLORES MOLINA V. GARLAND
`
`9
`
`In April 2018, political opposition groups, university
`students and farmers organized protests against pension
`reform and government corruption. The protests developed
`into a wider movement in opposition to the Ortega regime,
`which was met with violent suppression by the FSLN, CPCs,
`police and paramilitary groups.
` Shortly after
`the
`commencement of the protest movement, the Nicaraguan
`parliament passed a law enabling the Ortega regime to
`prosecute protesters as terrorists, and to impose harsh
`penalties. The Guardian reported that between April and
`July 2018, it was estimated that over 300 protesters were
`killed by the police and government operatives.
`
`B. Flores Molina’s Participation in Protests and the
`Consequences
`
`Flores Molina is a graduate of the Autonomous National
`University of Nicaragua, married, and the father of two
`children. He has been an active member of the opposition
`Liberal Party since 2006. In April 2018, Flores Molina
`began to participate in the opposition protest movement in
`the city of Estelí. At the second protest he attended that
`month, police and paramilitary personnel shot bullets into
`the crowd of demonstrators. As he fled the shooting, Flores
`Molina learned that his friend, and fellow demonstrator,
`Franco Valdivia, had been shot in the head. Flores Molina
`stopped, turned around, and tended to Valdivia as he lay in a
`pool of his own blood, before Valdivia ultimately died of his
`injuries.
`
`in Estelí
`in protests
`Flores Molina participated
`throughout May 2018, as police and paramilitary members
`regularly shot at, wounded and killed demonstrators. As
`Flores Molina’s presence at the protests continued, he
`received escalating threats on his life from government
`operatives and paramilitary members.
`
`

`

`10
`
`
`FLORES MOLINA V. GARLAND
`
`Government operatives publicly circulated posts on
`social media identifying Flores Molina as an instigator of
`hate and violence and threatened to send him to “El Chipote”
`prison, notorious as a site for torture. Flores Molina
`continued to receive threats over WhatsApp and was aware
`of at least five public posts on Facebook that were widely
`circulated identifying him as a dangerous opponent of the
`government. The public posts galvanized Ortega supporters
`to locate and drive to Flores Molina’s home and verbally
`threaten him. Then, in June, Flores Molina found his home
`vandalized, with the words “Bullets to Strikers” spray
`painted on the walls by a group of masked individuals who
`arrived in an unmarked truck commonly known as the type
`of vehicle used by government operatives.
`
`The escalating digital and verbal threats, the death threat
`painted on his house, and the increasing number of killings
`of protesters by the Ortega regime forced Flores Molina to
`flee his home for safety. But five months after Flores Molina
`fled to a hideaway, a truck full of police officers and
`paramilitary members arrived at his refuge wearing ski
`masks, army jackets and carrying assault rifles. The
`paramilitary squad demanded that Flores Molina come out,
`climbed on the roof, and looked through the windows.
`Flores Molina hid in the backyard to evade detection;
`immediately after, he fled, for the second time, to a new
`hideaway.
`
`On November 20, 2018, six masked members of the pro-
`Ortega Sandinista Youth assaulted Flores Molina as he
`returned to his second hideaway. They struck him in the
`head, causing him to lose a tooth and leaving scarring on his
`lip. As they beat him, the attackers warned Flores Molina,
`“This is what happens to the ones that want to be part of the
`coup. And at the next encounter, we’re going to kill you.”
`
`

`

`11
`
`FLORES MOLINA V. GARLAND
`
`
`
`Flores Molina could not see a doctor because the hospital
`entrance was full of police and the paramilitary members.
`The United States Department of State Country Report on
`Human Rights Practices in Nicaragua for 2018 (“2018 State
`Department Report”) shows that the Ortega regime directed
`the Ministry of Health to deprive protesters of medical
`attention and instructed public hospitals and clinics not to
`provide medical care to wounded protesters.
`
`Flores Molina fled Nicaragua and ultimately arrived at
`the United States-Mexico border. He presented himself at a
`port of entry and requested protection.
`
`C. Administrative Proceedings
`
`Flores Molina appeared pro se and testified before an IJ
`on June 10, 2019, where he requested asylum, withholding
`of removal and protection under CAT. At the hearing, Flores
`Molina and
`the Department of Homeland Security
`submitted, as exhibits, news articles and country conditions
`reports on Nicaragua and the 2018 protest movement. The
`IJ found Flores Molina’s testimony consistent with the
`declaration he submitted in support of his application for
`relief, but determined that he had not shown that his past
`experiences constituted persecution for the purposes of
`asylum and withholding of removal. The IJ also held that,
`because Flores Molina failed to show past persecution, he
`had not demonstrated a well-founded fear of future
`persecution. The IJ denied Flores Molina’s application for
`asylum, withholding of removal and CAT protection.
`
`In November 2019, the BIA dismissed Flores Molina’s
`appeal, finding that “[t]he claimed past harm, cumulatively
`considered, [did] not rise to the level of past persecution”
`and that the “threats are not the sort of ‘extreme’ or
`‘especially menacing’ threats necessary to establish past
`
`

`

`FLORES MOLINA V. GARLAND
`
`12
`
`persecution.” The BIA also concluded that Flores Molina
`lacked an objectively well-founded
`fear of
`future
`persecution because he was physically assaulted only once,
`and because the number of political activists detained in
`Nicaragua is small compared to the number of individuals
`who participated in the protest movement. As for CAT
`relief, the BIA determined that the past harm Flores Molina
`experienced did not rise to the level of torture and that the
`risk he would be tortured upon removal to Nicaragua was
`too speculative to merit relief. The BIA affirmed the IJ’s
`denial of asylum, withholding of removal and CAT
`protection.
`
`In June 2020, the BIA denied Flores Molina’s motion to
`reopen his removal proceedings to seek a continuance while
`the United States Citizenship and Immigration Services
`(“USCIS”) adjudicated his pending application for an
`immigrant visa.
`
`Flores Molina timely petitioned for review of the BIA’s
`denial of asylum, withholding of removal and CAT
`protection (No. 19-73028), and the BIA’s denial of his
`motion to reopen (No. 20-71774). We address both petitions.
`
`II. Standards of Review
`
`“Where the BIA conducts its own review of the evidence
`and law, rather than adopting the IJ’s decision, our review is
`limited to the BIA’s decision, except to the extent the IJ’s
`opinion is expressly adopted.” Rodriguez v. Holder,
`683 F.3d 1164, 1169 (9th Cir. 2012) (citation and quotation
`marks omitted). Here, the BIA dismissed Flores Molina’s
`appeal, agreeing with several of the immigration judge’s
`findings while adding its own reasoning. Thus, we review
`the decisions of both the BIA and the immigration judge to
`
`

`

`FLORES MOLINA V. GARLAND
`
`
`
`the extent that the BIA agreed with the immigration judge’s
`conclusions. Id.
`
`13
`
`“We review factual findings for substantial evidence and
`legal questions de novo.” Guerra v. Barr, 974 F.3d 909, 911
`(9th Cir. 2020). In particular, “[w]e review denials of
`asylum, withholding of removal, and CAT relief for
`substantial evidence.” Guo v. Sessions, 897 F.3d 1208, 1212
`(9th Cir. 2018) (citation and quotation marks omitted).
`Those findings are “conclusive unless any reasonable
`adjudicator would be compelled to conclude to the
`contrary.” 8 U.S.C. § 1252(b)(4)(B). Where the BIA does
`not consider all the evidence before it, either by “misstating
`the record [or] failing to mention highly probative or
`potentially dispositive evidence,” its decision is legal error
`and “cannot stand.” Cole v. Holder, 659 F.3d 762, 772 (9th
`Cir. 2011).
`
`III. Discussion
`
`We address the two petitions in turn. We first review the
`BIA’s denial of asylum, withholding of removal, and CAT
`relief to Flores Molina.1
`
`
`1 Our dissenting colleague sharply criticizes our court’s immigration
`jurisprudence. This is not the first time he has expressed such views.
`See, e.g., Nababan v. Garland, 18 F.4th 1090, 1096, 1103 (9th Cir. 2021)
`(VanDyke, J., dissenting) (expressing “perpetual[] embarrass[ment]” by
`“[o]ur circuit’s immigration jurisprudence” and describing it as a “nasty
`habit” that we “should at least try to kick”); Reyes v. Garland, 11 F.4th
`985, 998 (9th Cir. 2021) (VanDyke, J., dissenting) (lamenting that “the
`Ninth Circuit’s abysmal and indefensible immigration precedents are the
`gifts that keep on taking”); id. at 1007 (discussing some “of our more
`blatant recent immigration gaffes” and describing the majority as
`“missing an opportunity to right our circuit’s badly listing immigration
`ship”); Avila-Arias v. Garland, 847 F.App’x 468, 472–73 (9th Cir. 2021)
`
`
`

`

`FLORES MOLINA V. GARLAND
`
`14
`
`A. Asylum
`
`To be statutorily eligible for asylum, Flores Molina must
`show that he is a refugee. 8 U.S.C. § 1158(b)(1). A refugee
`is one who is “unable or unwilling to avail himself or herself
`of the protection of [his or her native] country because of
`persecution or a well-founded fear of persecution on account
`of race, religion, nationality, membership in a particular
`social group, or political opinion.” Id. § 1101(a)(42)(A).
`“Persecution is defined as ‘the infliction of suffering or harm
`. . . in a way regarded as offensive.’” Mendoza-Pablo v.
`Holder, 667 F.3d 1308, 1313 (9th Cir. 2012) (quoting Li v.
`Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc)).
`“Either past persecution or a well-founded fear of future
`persecution provides eligibility for a discretionary grant of
`asylum.” Ratnam v. INS, 154 F.3d 990, 994 (9th Cir. 1998).
`An individual “who establishes past persecution is presumed
`to have a well-founded fear of persecution.” Id. (citation
`omitted).
`
`
`(VanDyke, J., dissenting) (advocating for our court “to emulate the BIA”
`more and to pay special attention to deferring to the BIA when the
`petitioner has a criminal history); Aguilar-Osorio v. Garland, 991 F.3d
`997, 1000–01 (9th Cir. 2021) (per curiam) (declaring that the majority’s
`remand for the BIA to consider an issue in the first instance was
`“lawless” and that “[w]e make it very difficult, if not impossible, for the
`BIA to properly do the job Congress gave it”); Sanchez Rosales v. Barr,
`980 F.3d 716, 721 (9th Cir. 2020) (VanDyke, J., dubitante) (writing
`separately “because [our] precedent is silly and well illustrates our
`court’s nasty habit of muddying immigration law”). While we note the
`dissent’s critique, it fails to engage with our analysis of the issues in this
`case. Our task is to apply existing precedent—whether or not we agree
`with it—as we faithfully do here.
`
`

`

`
`
`
`FLORES MOLINA V. GARLAND
`
`15
`
`The BIA determined that Flores Molina did not
`experience past persecution and concluded that his fear of
`future persecution was “too speculative” to be well-founded.
`
`1. Past Persecution
`
`We hold that the BIA’s determination that Flores Molina
`did not suffer past persecution in Nicaragua is not supported
`by substantial evidence.2 To show past persecution, Flores
`Molina “has the burden of establishing 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.”
`Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.
`2010) (citation omitted). Here, the BIA ended its analysis at
`the first element, determining that Flores Molina’s past
`experiences did not rise to the level of persecution.
`Applying our court’s binding caselaw to the record evidence,
`
`2 We have previously stated that “[w]hether particular acts constitute
`persecution for asylum purposes is a legal question reviewed de novo.”
`Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir. 2021) (alterations
`adopted) (citation omitted). We have also stated that we “review for
`substantial evidence
`the BIA’s particular determination
`that a
`petitioner’s past harm ‘does not amount to past persecution.’” Sharma v.
`Garland, 9 F.4th 1052, 1060 (9th Cir. 2021) (alteration adopted) (citation
`omitted). We need not address whether de novo review should apply, or
`discuss the nuances of the two standards, because the harm Flores
`Molina suffered rose to the level of persecution under the more
`deferential “substantial evidence” standard of review. See Fon v.
`Garland, — F.4th —, 2022 WL 1562281 at *4 n.1 (9th Cir. May 18,
`2022) (applying the “substantial evidence” standard of review and
`declining to address whether de novo review applies because the
`outcome was the same under any standard). See generally id. at *7–8
`(Graber, J., concurring) (discussing the proper standard of review as
`applied to whether acts rise to the level of persecution); id. at *9–12
`(Collins, J., concurring) (same).
`
`

`

`FLORES MOLINA V. GARLAND
`
`16
`
`there are three bases that compel our conclusion that Flores
`Molina’s past experiences constitute persecution.
`
`a.
`
`First, “[a]s we have consistently recognized, being
`forced to flee from one’s home in the face of an immediate
`threat of severe physical violence or death is squarely
`encompassed within the rubric of persecution, as long as the
`persecutors’ actions are motivated” by a protected ground.
`Mendoza-Pablo, 667 F.3d at 1314 (citation omitted) (finding
`past persecution because petitioner “fled from her home
`village as a result of her (eminently-reasonable) belief that
`her life . . . was in severe and immediate danger because
`Guatemalan military forces had specifically targeted the
`village’s inhabitants on the basis of their racial and ethnic
`background”); see also Knezevic v. Ashcroft, 367 F.3d 1206,
`1211–12 (9th Cir. 2004) (finding past persecution where
`ethnically Serbian petitioners fled their hometown to escape
`hostile Croatian forces because they “realized the threat of
`harm—and possibly death—was imminent”).
`
`Here, Flores Molina was forced to flee three separate
`times after being personally targeted for his political views
`with violence and threatened with death.3 He was forced to
`
`3 The dissent disregards our holdings in Mendoza-Pablo and
`Knezevic by arguing that those petitioners only suffered persecution
`because their homes were “completely destroyed.” Dissent 49. To be
`sure, various homes were burned after the petitioner’s mother fled in
`Mendoza-Pablo. 667 F.3d at 1311, 1314. In Knezevic, the petitioners’
`home was also destroyed after they fled and partially restored later.
`367 F.3d at 1212. While their homes were subsequently destroyed, that
`was not the lynchpin of our holdings in those cases. Rather, we held that
`the petitioners were persecuted because, like Flores Molina, they fled “in
`the face of an immediate threat of severe physical violence or death.”
`Mendoza-Pablo, 667 F.3d at 1314.
`
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`17
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`FLORES MOLINA V. GARLAND
`
`
`
`flee, first, after a series of escalating threats culminated in a
`death threat painted on his home, second, after being
`discovered at his hideaway and narrowly evading detection
`by a group of armed paramilitary members, and third, after
`being assaulted and threatened with death by a gang of
`Sandinista Youth. The “severe and immediate danger” that
`he faced arose within the broader context of mass killings
`and violent reprisals by the Ortega regime and its affiliates
`against protestors like him, including the killing of his friend
`Valdivia that he witnessed firsthand. The repeated incidents
`in which Flores Molina fled were each “in the face of an
`immediate threat of severe physical violence or death,” and
`thus rise to the level of persecution. Mendoza-Pablo,
`667 F.3d at 1314.4
`
`b.
`
`Second, we have “repeatedly held that threats may be
`compelling evidence of past persecution, particularly when
`they are specific and menacing and are accompanied by
`evidence of violent confrontations, near-confrontations and
`vandalism.” Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th
`Cir. 2004) (holding that a single written death threat was
`“strong evidence of persecution” particularly in light of the
`broader violence and escalating harm); see also Ruano v.
`Ashcroft, 301 F.3d 1155, 1160–61 (9th Cir. 2002) (finding
`past persecution where petitioner experienced multiple death
`threats, “near face-to-face confrontations” with armed
`persecutors, and persecutors directly confronted his family);
`Baballah v. Ashcroft, 367 F.3d 1067, 1074 (9th Cir. 2004)
`(“Threats and attacks can constitute persecution even where
`an applicant has not been beaten or physically harmed.”
`
`4 The BIA did not address the fact that Flores Molina was forced to
`repeatedly flee in the wake of violence and death threats.
`
`

`

`FLORES MOLINA V. GARLAND
`
`18
`
`(citations omitted)); Del Carmen Molina v. INS, 170 F.3d
`1247, 1249 (9th Cir. 1999) (finding past persecution where
`the petitioner’s family had been killed by guerrilla forces and
`the petitioner received two threatening notes related to their
`killing). And we have “consistently held that death threats
`alone can constitute persecution.” Navas v. INS, 217 F.3d
`646, 658 (9th Cir. 2000) (emphasis added) (collecting cases);
`see also Kaur v. Wilkinson, 986 F.3d 1216, 1227 (9th Cir.
`2021) (reiterating that death threats “alone” can constitute
`persecution “because murder is perhaps the ultimate threat
`to bodily integrity” (citing Lim, 224 F.3d at 936)).
`
`Flores Molina was publicly marked as a terrorist and
`threatened with torture over social media by government
`operatives, repeatedly verbally threatened with death by
`supporters of the Ortega regime, received a death threat
`painted on his home by masked men likely affiliated with the
`government, and received a second death threat—this time
`during a direct confrontation—after he was seriously beaten
`by six members of the Sandinista Youth. In addition, Flores
`Molina had a near confrontation with an armed paramilitary
`group that located him at a hideaway. The threats were
`credible given the history and context of the Ortega regime’s
`killing and torture of its political opponents. Indeed, Flores
`Molina witnessed the killing of his friend and fellow
`protester when his friend was shot in the head at a
`demonstration. See Salazar-Paucar v. INS, 281 F.3d 1069,
`1075 (9th Cir.), as amended, 290 F.3d 964 (9th Cir. 2002)
`(holding that “[e]vidence of harm to individuals who held
`the same political positions” to the petitioner supported a
`finding of past persecution). Such “[r]epeated death threats,
`especially when those threats occurred in conjunction with
`other forms of abuse, require a finding of past persecution.”
`Smolniakova v. Gonzales, 422 F.3d 1037, 1049 (9th Cir.
`2005); see also Aden v. Wilkinson, 989 F.3d 1073, 1082 (9th
`
`

`

`FLORES MOLINA V. GARLAND
`
`
`
`Cir. 2021) (“[W]hen the incidents have involved physical
`harm plus something more, such as credible death threats,
`we have not hesitated to conclude that the petitioner suffered
`persecution.” (emphasis in or