          United States Court of Appeals
                      For the First Circuit

No. 16-1090

                       IRMA AGUILAR-ESCOTO,

                           Petitioner,

                                v.

                    JEFFERSON B. SESSIONS, III,
              Attorney General of the United States,*

                           Respondent.


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


                              Before

                       Howard, Chief Judge,
              Thompson and Kayatta, Circuit Judges.


     Carlos E. Estrada, with whom Estrada Law Office was on brief,
for petitioner.
     Yanal H. Yousef, Trial Attorney, Office of Immigration
Litigation, Civil Division, with whom Anthony P. Nicastro,
Assistant Director, Office of Immigration Litigation, and Benjamin
C. Mizer, Principal Deputy, Assistant Attorney General, Civil
Division, were on brief, for respondent.


                         October 27, 2017




     * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Jefferson B. Sessions, III has been substituted for former Attorney
General Loretta E. Lynch as respondent.
             HOWARD, Chief Judge.         Petitioner Irma Aguilar-Escoto, a

native and citizen of Honduras, asks us to vacate a Board of

Immigration Appeals ("BIA" or "Board") order rejecting her claim

for withholding of removal.         Aguilar's application for relief was

predicated    upon      alleged   domestic     violence   by   her   ex-husband.

Because     the   BIA    failed   to   consider     potentially      significant

documentary evidence submitted in support of Aguilar's claim, we

vacate the agency's order.

                                          I.

             Aguilar first entered the United States in August 2005,

but she was apprehended and removed to Honduras.               About four years

later, Aguilar returned to the United States.                    She was again

apprehended, and the Department of Homeland Security filed a notice

to reinstate her prior removal order.             The case was subsequently

referred to Immigration Court.

             Aguilar      then    filed    the    instant      application   for

withholding of removal.           In order to succeed on a withholding

claim, an applicant must establish that her "life or freedom would

be threatened" in her home country because of her "race, religion,

nationality, membership in a particular social group, or political

opinion."     8 U.S.C. § 1231(b)(3)(A).          In light of her reinstated

removal order, Aguilar was not eligible to apply for asylum, a

separate form of relief for aliens harboring a "well-founded fear

of persecution on account of" a protected ground.                      8 U.S.C.


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§ 1101(a)(42)(A); see also Garcia v. Sessions, 856 F.3d 27, 33

(1st Cir. 2017).

             In March 2013, an immigration judge ("IJ") conducted a

merits hearing.     At the hearing, Aguilar testified to suffering

relentless     physical,    emotional,        and    sexual    abuse    by    Victor

Gonzalez, whom she married in 1997 and later divorced.                       The IJ,

however, citing various perceived inconsistencies, found that

Aguilar's testimony was "not credible" and therefore discounted

it.

             After rendering this adverse credibility finding, the IJ

went on to separately address the other evidence that Aguilar had

submitted "[a]side from her discredited testimony."                    Aguilar had

provided "police reports, a family court order, a medical record,

and two declarations" evidencing her abusive relationship with

Gonzalez.       According      to   the      IJ,    this   documentary       evidence

"suggest[ed]     that   between       2004    and    2008,     [Gonzalez]     struck

[Aguilar] once or twice, threatened [Aguilar] and her family, and

publicly ridiculed and shamed [Aguilar]. . . .                      As a result,

[Aguilar] sought court-ordered psychological treatment and was

prescribed antidepressants and sedatives . . . ."                 The IJ did not

question the credibility of Aguilar's documentary evidence but

instead   concluded     that    the    abuse       reflected    therein      was   not

sufficiently serious and persistent to warrant relief.




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             Aguilar   appealed   to   the   BIA,   challenging      the    IJ's

adverse    credibility   finding.      She   also   argued    that    she    had

presented sufficient "credible evidence" of her abuse, citing the

documentary materials submitted to the IJ in addition to her

testimony.    The BIA dismissed her appeal, holding that the IJ "did

not commit clear error in her adverse credibility determination."

The Board did not so much as mention the IJ's separate treatment

of   the   documentary   evidence.       Rather,    based    solely    on    its

credibility ruling, the BIA concluded that Aguilar "failed to meet

her burden of proof for asylum."             On appeal, the government

concedes that the BIA's reference to asylum was erroneous. Aguilar

did not, and indeed could not, pursue an asylum claim.               The Board

went on to conclude that Aguilar was not eligible for withholding

of removal because withholding "has a higher burden of proof" than

asylum.

             Aguilar now petitions this court to review the BIA

decision rejecting her withholding of removal claim.1             Again, she

challenges    the   agency's   adverse   credibility    finding       but   also

contends that, notwithstanding her credibility, the agency "failed

to consider [her] well-documented claim of past persecution."               The

government curiously responds to the first point but declines to



      1Aguilar does not challenge the denial of her separate claim
for relief under the Convention Against Torture ("CAT").       Any
argument with respect to the CAT claim is therefore waived.


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argue the second, devoting the entirety of its brief to the

credibility of Aguilar's testimony. We now hold that, irrespective

of the supportability of the adverse credibility finding, remand

is   required     for    the    BIA   to    consider    Aguilar's    potentially

significant documentary evidence.

                                           II.

            As a preliminary matter, we must define the scope of our

review.    We consider BIA and IJ decisions together where the Board

"adopt[s] and supplement[s]" the IJ's reasoning.                    Martinez v.

Holder, 734 F.3d 105, 111 n.15 (1st Cir. 2013) (citation omitted).

In the present case, however, even assuming that the BIA adopted

the IJ's credibility ruling, it never acknowledged, much less

adopted, the IJ's separate analysis of the documentary evidence.

We therefore train our focus on the BIA decision.                         See id.

(focusing on BIA ruling where the Board "affirmed, but did not

adopt, the decision of the IJ").

            We review the BIA's legal conclusions de novo and its

findings    of    fact    under   the      "substantial   evidence"      standard,

meaning    that   we     will   not   disturb    such   findings    if   they   are

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole."               Xin Qiang Liu v. Lynch, 802

F.3d 69, 74 (1st Cir. 2015) (citation omitted).               In our review of

the record, we note that while the BIA need not "discuss every

piece of evidence offered," it is "required to consider all


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relevant evidence in the record."        Lin v. Mukasey, 521 F.3d 22, 28

(1st Cir. 2008) (emphasis added). Consistent with this obligation,

the   Eleventh   Circuit   has    specifically   held   that    "an   adverse

credibility determination does not alleviate the BIA's duty to

consider other evidence produced by" an applicant for relief. Hong

Chen v. U.S. Att'y Gen., 231 F. App'x 900, 902 (11th Cir. 2007)

(citing Forgue v. U.S. Att'y Gen., 401 F.3d 1282, 1287 (11th Cir.

2005)).    Rather, where the applicant provides evidence other than

her own testimony, the agency "must consider that evidence" and

may not "rely solely on an adverse credibility determination."

Forgue, 401 F.3d at 1287.        According to the Eleventh Circuit, the

agency's failure to fulfill this duty is grounds for vacating the

BIA decision, irrespective of the merits of the adverse credibility

finding.   See Toska v. U.S. Att'y Gen., 194 F. App'x 767, 768 (11th

Cir. 2006); see also Khattak v. Holder, 704 F.3d 197, 208 (1st

Cir. 2013) ("[W]e will remand if the agency fails to state with

sufficient particularity and clarity the reasons for denial of

[relief] or otherwise to offer legally sufficient reasons for its

decision." (citation omitted)).

             We agree with the Eleventh Circuit's approach to this

issue, which is consistent with our precedent.                 See Rasiah v.

Holder, 589 F.3d 1, 6 (1st Cir. 2009) ("An adverse credibility

finding    by   itself   would   not   automatically    doom    a   claim   for

asylum.").      The appropriate result in this case follows easily.


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Even assuming that its credibility ruling was supportable, the BIA

was required to go further and address whether, setting Aguilar's

testimony to one side, the documentary evidence entitled her to

relief. See Lin, 521 F.3d at 28; Forgue, 401 F.3d at 1287. Indeed,

the IJ expressly recognized that this documentary evidence, if

believed, was sufficient to establish multiple acts of domestic

violence     against       Aguilar         by      her     ex-husband.           In   these

circumstances, the BIA's failure to consider or even acknowledge

the evidence requires remand.                   See Toska, 194 F. App'x at 768;

Khattak, 704 F.3d at 208.              We take no position on the merits of

the IJ's holding that the abuse reflected in the documentary

evidence was not sufficiently severe to warrant relief. This issue

is best left to be addressed by the BIA in the first instance.

             We note, for the benefit of the agency on remand, that

the Board's failure to consider Aguilar's documentary evidence may

have been rooted in its fundamental misunderstanding of her claim.

Again, the Board appears to have operated under the mistaken

assumption    that       Aguilar    had         applied     for   asylum    as    well    as

withholding of removal.             These two grounds for relief are not

identical. For one thing, withholding of removal requires a higher

likelihood of persecution than asylum.                      See Romilus v. Ashcroft,

385   F.3d   1,    8     (1st   Cir.       2004)    (noting       that   applicants      for

withholding       must    satisfy      a    "more        likely   than   not"     standard

(citation omitted)). There is, however, a different sense in which


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the asylum standard may be more exacting. Withholding claims "lack

a subjective component and are [thus] concerned only with objective

evidence of future persecution."      Paul v. Gonzales, 444 F.3d 148,

155-56 (2d Cir. 2006); see also INS v. Cardoza-Fonseca, 480 U.S.

421, 430 (1987) (explaining that the relevant statutory language

"has no subjective component").       Asylum, by contrast, has both a

subjective and an objective component:          it requires a showing that

the applicant "genuinely fears persecution," in addition to proof

that the "fear is objectively reasonable."             Makhoul v. Ashcroft,

387 F.3d 75, 80 (1st Cir. 2004).          Applicants "typically" seek to

establish the requisite "genuineness" through their "own credible

testimony."    Id. at 80-81.      An adverse credibility finding thus

may prove fatal to this aspect of an asylum claim.             But, because

withholding    of    removal   requires    no   such    genuine   belief,   a

withholding claim "may, in appropriate instances, be sustained"

despite an adverse credibility finding.          Paul, 444 F.3d at 156.

          In the present case, the BIA may well have been justified

in concluding that, absent her own credible testimony, Aguilar

failed to establish a subjectively genuine fear that she would be

persecuted upon returning to Honduras.          This failure would doom an

asylum claim notwithstanding additional evidence establishing that

a reasonable person in Aguilar's circumstances would have feared

persecution.        See Makhoul, 387 F.3d at 80-81.           But, in the

withholding context, the inquiry is a strictly objective one.           See


                                   - 8 -
Cardoza-Fonseca, 480 U.S. at 430-31. Thus, even after discrediting

Aguilar's testimony, arguably the only evidence that she did in

fact    harbor        a       subjective   fear   of     persecution,    the   BIA   was

nonetheless obliged to consider documentary evidence potentially

capable of establishing her likelihood of suffering further abuse.

               Rather than embarking on this objective assessment, the

BIA fell back on the familiar refrain that, because "the applicant

did not establish eligibility for asylum, it follows that she

cannot establish eligibility for withholding of removal, which has

a higher burden of proof." Such a conclusion is unassailable where

the applicant's subjective fear is proven or assumed, and the

denial of the asylum claim turns on the lack of evidence that the

fear was objectively reasonable.                  See, e.g., Makhoul, 387 F.3d at

81.     But the same is not necessarily true where an asylum claim

fails    due     to       a    lack   of   credible    testimony    establishing     the

applicant's subjective fear.                  The Board's failure to apply the

appropriate, purely objective standard to Aguilar's withholding

claim provides an independent basis for remand.                          See Kozak v.

Gonzáles, 502 F.3d 34, 38 (1st Cir. 2007) (remanding because "the

BIA applied an inappropriate legal standard"); Castañeda-Castillo

v. Gonzales, 488 F.3d 17, 22 (1st Cir. 2007) (remanding "to allow

the     matter    to          be   considered     anew    under    the   proper   legal

standards").




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                                 III.

          For the foregoing reasons, we VACATE the BIA's order

dismissing Aguilar's appeal and remand for further proceedings

consistent with this opinion.




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