          United States Court of Appeals
                      For the First Circuit

No. 13-2269

         MARLA PANOTO and ALAIN JUSOP WELLIAM RUNTUKAHU,

                           Petitioners,

                                v.

      ERIC H. HOLDER, JR., United States Attorney General,

                           Respondent.




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




                              Before

                       Lynch, Chief Judge,
                Stahl and Barron, Circuit Judges.



     Ilana Etkin Greenstein and Harvey Kaplan, on brief for
petitioners.
     Jane T. Schaffner, Trial Attorney, Office of Immigration
Litigation, Civil Division, Department of Justice, Blair T.
O'Connor, Assistant Director, Office of Immigration Litigation, and
Stuart F. Delery, Assistant Attorney General, Civil Division, on
brief for respondent.



                         October 22, 2014
               STAHL, Circuit Judge.            Petitioner Marla Panoto and her

husband,1 both Indonesian citizens, petition for review of an order

of the Board of Immigration Appeals ("BIA") affirming an order of

an   Immigration      Judge     ("IJ")    denying        her   request   for   asylum.

Because the BIA gave an insufficient explanation of why Panoto

failed    to    demonstrate        that   she    suffered      past   persecution   in

Indonesia, we grant her petition for review, vacate the BIA's order

of removal, and remand the case for further proceedings.

                              I.    Facts & Background

               Panoto is a Christian from Indonesia, a predominantly

Muslim country.       According to the IJ's decision,2 Panoto testified

that she experienced persecution as an Indonesian Christian and

attributed the following incidents to her religious identity.

               On   Christmas       Eve   in     2000,    a    member    of    Panoto's

congregation found a black box outside their church.                            Police

officers determined that the item was a bomb and removed it before




      1
       Panoto's husband is a derivative applicant on her                        asylum
petition   and  thus   also  a   petitioner   here.     8                       U.S.C.
§ 1158(b)(3)(A). His eligibility for asylum rises and falls                     on the
status of Panoto's application. Touch v. Holder, 568 F.3d                       32, 36
n.1 (1st Cir. 2009).
      2
       Because this Court allowed petitioners' assented-to motion
for leave to waive filing an appendix, the record on appeal
consists of only the IJ's oral ruling and the BIA's written
decision. While the parties' versions of the facts incorporate
evidence purportedly from the full administrative record,      our
summary of the pertinent facts comes from the two documents in the
limited record before us.

                                           -2-
it could detonate. Panoto testified that local authorities did not

investigate the event further.

           Approximately six months later, in June 2001, Panoto was

riding on a ferry boat when it was hijacked by Muslim extremists.

Once aboard, the hijackers shouted for the Christian passengers to

come forward.     Panoto witnessed the militants slit an elderly

Christian woman's throat, killing her.          One extremist then yanked

Panoto by the hair and slapped her, commanding that she state her

faith.    Panoto did not reply, and just as he was about to attack

her, another hijacker called him away.

           Petitioners       left   Indonesia   shortly    after   the   ferry

hijacking, arriving in the United States at the end of September

2001.     The Department of Homeland Security initiated removal

proceedings against them in 2007. Panoto submitted her application

for asylum in January 2011.

           Both petitioners testified and submitted evidence at a

removal proceeding on September 18, 2012.            In an oral decision

issued the same day, the IJ deemed Panoto statutorily ineligible

for asylum because she had failed to apply within one year of

arrival   and   had   not    demonstrated    circumstances     affecting    her

ability to meet the filing deadline. See 8 U.S.C. § 1158(a)(2)(B),

(D).     The IJ observed that Panoto "manifested a penchant for

misrepresent[ation]     on    asylum    applications"     by   submitting    an

application for asylum under a false name in 2003 and providing


                                       -3-
fraudulent documentation when she entered the United States in

2001.   Assuming Panoto offered credible testimony about the bomb

outside her church and the ferry incident, the IJ concluded that

her account did not rise to the level of past persecution nor had

she demonstrated that she would be persecuted if she returned to

Indonesia.     The IJ denied Panoto's application for asylum and

granted her request for voluntary departure.

             Panoto    appealed     to   the     BIA.      Bypassing         the   IJ's

timeliness    and     credibility    determinations,         the    BIA      presumed

statutory     eligibility     and    reached       the    merits        of   Panoto's

application.       The BIA agreed that Panoto's mistreatment, even if

credited,    did    not   involve   harm       severe    enough    to    potentially

constitute persecution and that she had failed to present probative

evidence establishing a well-founded fear of future persecution.

The Board affirmed the IJ's decision and dismissed Panoto's appeal.

This petition for review followed.

                                  II. Analysis

             Where the BIA affirms the IJ's ruling but adds its own

discussion, we review both decisions. Lin v. Gonzales, 503 F.3d 4,

6-7 (1st Cir. 2007).       We defer to the IJ's findings of fact and the

agency's determination as to whether particular circumstances

support a claim of persecution. Decky v. Holder, 587 F.3d 104, 109

(1st Cir. 2009).          We will uphold a decision so long as it is

"supported by reasonable, substantial, and probative evidence on


                                         -4-
the record considered as a whole."             Thapaliya v. Holder, 750 F.3d

56, 59 (1st Cir. 2014) (internal quotation marks omitted).               On the

other     hand,    we   cannot      conscientiously    affirm   the   agency's

determination if "the evidence point[s] unerringly in the opposite

direction" such that a "reasonable adjudicator would be compelled

to conclude to the contrary."            Decky, 587 F.3d at 109 (internal

quotation marks and citations omitted).               Consequently, we must

remand the case where the agency fails to offer legally sufficient

bases for its determination.           Sok v. Mukasey, 526 F.3d 48, 53 (1st

Cir. 2008).

            An applicant for asylum bears the burden of establishing

past persecution or a well-founded fear of future persecution on

account    of     one   of   five    statutory    grounds:   race,    religion,

nationality, membership in a particular social group, or political

opinion.     8 U.S.C. § 1101(a)(42)(A); Sunarto Ang v. Holder, 723

F.3d 6, 11–12 (1st Cir. 2013).            The petitioner must establish a

causal link between the harm she suffered or expects to suffer and

her statutorily protected ground.             8 U.S.C. § 1158(b)(1)(B)(i).   A

showing of past persecution creates a rebuttable presumption that

the applicant's fear of future persecution is well-founded.                  8

C.F.R. § 208.13(b)(1); Sunarto Ang, 723 F.3d at 10.

            No precise definition of "persecution" exists, and the

question of what constitutes persecution is resolved on a case-by-

case basis.       Ruiz v. Mukasey, 526 F.3d 31, 36 (1st Cir. 2008).          We


                                        -5-
have repeatedly held that persecution, "as the term is used in the

immigration     law,"   involves      a    level    of    harm   that   "surpasses

'unpleasantness, harassment, and even basic suffering.'" Sombah v.

Mukasey, 529 F.3d 49, 51 (1st Cir. 2008) (quoting Nelson v. INS,

232 F.3d 258, 263 (1st Cir. 2000)).                After showing that the harm

endured rises to that level, the applicant for asylum must further

establish that government action or acquiescence caused or resulted

in the mistreatment giving rise to her claim. Orelien v. Gonzales,

467 F.3d 67, 72 (1st Cir. 2006).

              Neither the IJ nor the BIA addressed the government's

role, if any, in the two specific incidents of mistreatment that

Panoto suffered.        Instead, the IJ and the BIA held that the

mistreatment Panoto endured, even if credited, did not involve harm

severe enough to constitute past persecution.                    Making the same

assumption of truthfulness as the IJ and BIA did, our question is

whether learning that a bomb was planted outside one's place of

worship and, six months later, experiencing a violent hijacking at

the hand of anti-Christian extremists could involve harm acute

enough to establish past persecution.                    We conclude that these

incidents are sufficiently extreme, close in time, and particularly

targeted at Christians to clear the threshold.

              We have held that bona fide threats of death can involve

harm severe enough to constitute persecution.                Un v. Gonzáles, 415

F.3d   205,    209-10   (1st   Cir.       2005)    (remanding     to    agency   for


                                          -6-
reconsideration    of   past   persecution       finding   where    petitioner

presented evidence of one "explicit death threat with perhaps one

or more implicit ones"); cf. Amouri v. Holder, 572 F.3d 29, 33 (1st

Cir. 2009) (observing that "threats of murder easily qualify as

sufficiently severe harm" for purposes of persecution analysis).

This is especially so when, as here, "the assailant threatens the

petitioner with death, in person, and with a weapon."                   Sok, 526

F.3d at 54.       Panoto presented testimony regarding two life-

threatening   events.     Neither    can    be    dismissed   as    a    "hollow

threat[]," Ang v. Gonzales, 430 F.3d 50, 56 (1st Cir. 2005), or

merely   "ugly,   discriminatory,     and    regrettable,"         Susanto    v.

Gonzales, 439 F.3d 57, 60 (1st Cir. 2006).          The Christmas Eve bomb

planted at Panoto's church was a serious attempt to murder and

inflict terror on parishioners.      While Panoto ultimately suffered

only minor physical injuries during the highjacking, she also

witnessed the murder of a fellow Christian passenger in graphic

fashion immediately before a militant seized Panoto and demanded to

know her religion. Panoto reasonably understood that the militants

intended to murder her next if she also identified as Christian.

In determining whether an act or acts involve harm potentially

rising to the level of persecution, the IJ and BIA must take a

realistic and mindful look at what transpired.

          These events occurred close in time to one another and

shortly before the petitioners left Indonesia, in contrast to other


                                    -7-
scenarios considered by this Court.   For example, in Sunarto Ang,

this Court affirmed the BIA's determination that an ethnically

Chinese petitioner from Indonesia failed to show harm severe enough

to establish past persecution where the petitioner testified that

a group of Muslims beat his father in 1982 and a mob stabbed the

petitioner during the 1998 Jakarta riots.   723 F.3d at 9.   The two

events, sixteen years removed from one another, were too isolated

and sporadic to establish persecution, particularly where the

petitioner suffered no further mistreatment in the nine years that

he remained in Indonesia after the 1998 riots.   Id. at 11; see also

Thapaliya, 750 F.3d at 59 (holding that petitioner failed to

establish past persecution based on a single attack which occurred

one year before he left for the United States and noting, "isolated

beatings have been commonly rejected as grounds for persecution");

Kho v. Keisler, 505 F.3d 50, 58 (1st Cir. 2007) (observing that

petitioner's most recent proffer of anti-Christian conduct occurred

three years before he left Indonesia).   Here, the bomb threat and

ferry seizure occurred within a six-month period, and Panoto fled

to the United States approximately two months after the hijacking,

so there is nothing in the record to suggest that these were mere

isolated events as in Sunarto Ang.

          Finally, assuming she is found credible on remand, Panoto

sufficiently established a nexus between the incidents and her

Christian faith.   The timing and circumstances of these events are


                                -8-
particularly telling.     The bomb was planted outside her particular

place of worship on a Christian holiday and Muslim extremists

specifically threatened Christians when they hijacked the ferry

boat, killing a fellow Christian in Panoto's presence.       Compare

Sugiarto v. Holder, 586 F.3d 90, 95-96 (1st Cir. 2009) (petitioner

failed to show that purported incidents of past persecution, a

robbery and a bomb threat at a mall, were motivated by anti-

Christian sentiment where her own conjecture provided the "sole

basis for concluding that the perpetrators of the attack were

Islamic terrorists, rather than common thieves"), with Sompotan v.

Mukasey, 533 F.3d 63, 70-71 (1st Cir. 2008) (evidence supported

conclusion that Jakarta rioters targeted petitioners' restaurant

because it was located in a predominantly ethnic Chinese shopping

district).

             In sum, the past events endured by Panoto, if deemed

credible,3 surpass garden-variety unpleasantness and harassment

such that she     could   meet the standard for past persecution,

provided Panoto also demonstrates on remand that state action or

inaction caused or resulted in her alleged harm.    Because both the

IJ and BIA erroneously concluded that Panoto did not experience



     3
       The IJ raised serious concerns about Panoto's credibility
based on various falsehoods underlying her 2001 visa and 2003
asylum application.    Because both the IJ and BIA assumed that
Panoto presented truthful testimony about the bomb and ferry
incidents, we take no position on the reliabiilty of her account or
her veracity in general.

                                  -9-
harm severe enough to potentially rise to the level of past

persecution, the agency did not afford her the benefit of the

regulatory     presumption    of    a   well-founded   fear   of   future

prosecution.    See 8 C.F.R. § 208.13(b)(1).       Since the agency may

find on remand that Panoto is entitled to such a presumption, we

will not address this portion of the IJ's or BIA's decisions.

                             III.   Conclusion

           We conclude that the IJ's and BIA's legal conclusions are

not supported by substantial evidence in the record and remand to

the agency to make a well-reasoned determination as to Panoto's

eligibility for asylum. In doing so, the agency may choose to take

additional evidence and argument from the parties.        Sok, 526 F.3d

at 58.   The BIA, on remand, also may rest its decision on alternate

grounds, such as the IJ's assessment of Panoto's credibility or the

timeliness of her application. The petition for review is GRANTED,

the order of removal is VACATED, and the case is REMANDED for

further proceedings consistent with this opinion.




                                    -10-
