                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-1331


MAYDAI HERNANDEZ-AVALOS,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.



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


Argued:   March 25, 2015                    Decided:   April 30, 2015


Before SHEDD, WYNN, and THACKER, Circuit Judges.


Petition for review granted; remanded for further proceedings by
published opinion.    Judge Shedd wrote the opinion, in which
Judge Wynn and Judge Thacker joined.


ARGUED: Tamara L. Jezic, YACUB LAW OFFICES, LLC, Woodbridge,
Virginia, for Petitioner.     Rebecca Hoffberg Phillips, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Ivan Yacub, YACUB LAW OFFICES, LLC, Woodbridge,
Virginia, for Petitioner.    Joyce R. Branda, Acting Assistant
Attorney General, Civil Division, Daniel E. Goldman, Senior
Litigation Counsel, Samuel P. Go, Senior Litigation Counsel,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
SHEDD, Circuit Judge:

      Maydai    Hernandez-Avalos,       a    native     and    citizen      of   El

Salvador,   petitions    for   review       of   a   final    order   of   removal

entered by the Board of Immigration Appeals (BIA).                         For the

reasons that follow, we grant Hernandez’s petition for review,

vacate the BIA’s order, and remand for further proceedings.



                                    I.

      In June 2008, Hernandez and her son, Kevin Avalos-Rojas,

entered   the   United   States   near       Eagle     Pass,    Texas,     without

inspection and without valid entry documents.                    The following

month, the Government initiated deportation proceedings against

them. 1   Hernandez admitted the factual allegations in her Notice

to Appear and conceded her removability, but sought relief from

removal in the form of asylum and withholding of removal under

the Immigration and Naturalization Act (INA). 2               She had a hearing

before an Immigration Judge (IJ) in February 2012, during which

      1
       Under 8 U.S.C. § 1158(b)(3), Kevin Avalos-Rojas is a
derivative beneficiary in his mother’s application for asylum
and may also be granted asylum if his mother’s application is
approved.     The   parties  to   this appeal therefore focus
exclusively on Hernandez’s claims.
      2
       Hernandez also sought relief under the Convention Against
Torture (CAT), but because she did not appeal the IJ’s denial of
her CAT claims to the BIA, these claims are now deemed waived.
See 8 U.S.C. § 1252(d)(1); Cordova v. Holder, 759 F.3d 332, 336
n.2 (4th Cir. 2014).



                                    2
she related certain threats she had received in El Salvador from

members of the gang Mara 18. 3   The IJ, considering both her live

and written testimony, found her to be a “generally credible

witness,” A.R. 47, and her testimony is summarized below.

     In 2007, members of the gang Mara 18 killed Augustin, the

cousin of Hernandez’s husband, because he refused to join their

ranks.   Hernandez did not herself witness Augustin’s murder, but

she later identified his body at the medical forensic lab in her

town and took it home to prepare it for burial.          Following

Augustin’s burial, heavily armed gang members came to her house

and threatened to kill her if she identified the gang members to

the authorities as the men responsible for Augustin’s murder.

     Although the exact date is unclear from the record, within

a few months Hernandez was threatened with death a second time.

Five Mara 18 members came to her home and told her that because

her son Kevin was getting older, “he was getting ready to join

the maras.”   A.R. 115.   Kevin was twelve years old at the time.

When Hernandez responded that her son was not going to join the

gang, the gang members put a gun to her head and told her that

if she opposed her son’s joining them, “[she] was the one who

     3
       Mara 18 is a “particularly violent and aggressive gang”
which “operate[s] openly in El Salvador.”      Orellana-Monson v.
Holder, 685 F.3d 511, 515 (5th Cir. 2012).       The gangs in El
Salvador “encourage juvenile criminal activity, and they train
new members in crimes such as drug dealing and murder.” Id.



                                 3
was going to die.”     A.R. 116.         One of the men who threatened her

on this occasion was later prosecuted and sentenced to 25 years

in prison by the Salvadoran government for killings unrelated to

any   interaction     between       Mara     18     and    Hernandez’s     family.

Hernandez was not involved in that prosecution, and we have no

further information about these killings.

      In May 2008, Mara 18 members threatened to kill Hernandez

for the third time.         They came to her home, put a gun to her

head, and told her that her son was ready to join the gang.                     She

responded that her son was not going to join and that she was

not going to allow the gang members to get any closer to him.

The Mara 18 members then aimed the gun at her and told her that

they were going to force her son to join.                        When Hernandez

responded that she did not want her son to be like them, but

instead wanted him to study and to be a good person, the Mara 18

members told her that she had one day to turn her son over to

the gang or she would be killed.

      Before dawn the following day, Hernandez and her son left

El Salvador for the United States with the help of a smuggler.

Hernandez    stated    that     reporting         these     incidents      to   the

Salvadoran   police   was     not   an     option    for   her   because    “[t]he

police routinely arrested gang members and within days they were

released.    Many times the gang members learned who reported them

to the police and retaliated against that person.                  I was afraid

                                         4
that would happen to me.”                     A.R. at 147-48.          Hernandez also

stated that she does not believe that she can go back to El

Salvador because the gangs would kill her.

      Despite finding her testimony credible, the IJ found that

Hernandez had not established her eligibility for asylum because

she had not demonstrated that she was likely to suffer future

persecution      on   account       of    a    protected     ground,      nor    had   she

demonstrated      that    she       was   threatened        by   persons        that   the

Salvadoran government was unwilling or unable to control.                              The

IJ   therefore    denied      her    petition       for    relief   and    ordered     her

removed to El Salvador.              Hernandez appealed to the BIA, which

affirmed the IJ’s decision.                   She timely filed a petition for

review   of   the     BIA’s   decision         in   this   court,   challenging        the

BIA’s denial of her claim for eligibility for asylum and its

failure to consider her request for withholding of removal.


                                              II.

      The INA permits the Secretary of Homeland Security or the

Attorney General, in their discretion, to grant asylum to any

alien who qualifies as a refugee.                     8 U.S.C. § 1158(b)(1)(A).

See also I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 443 (1987);

Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006).                                  To

qualify as a refugee, and thereby to establish eligibility for

asylum, an alien must demonstrate that she


                                               5
       is unable or unwilling to return to, and is unable or
       unwilling   to   avail  himself  or   herself   of  the
       protection   of,   [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.

8 U.S.C. § 1101(a)(42)(A). 4

       Where the BIA adopts the IJ’s opinion and supplements it

with its own reasoning, we review both rulings.                         Barahona v.

Holder, 691 F.3d 349, 353 (4th Cir. 2012).                    But where, as here,

the    BIA    issues     its    own    opinion      without   adopting    the    IJ’s

reasoning, we review only the BIA’s final order.                        Martinez v.

Holder, 740 F.3d 902, 908 (4th Cir. 2014).                     We review factual

findings under the substantial evidence standard, meaning that

they are conclusive “unless any reasonable adjudicator would be

compelled to conclude to the contrary,”                    Cordova v. Holder, 759

F.3d       332,   337     (4th        Cir.   2014)       (quoting   8     U.S.C.    §

1252(b)(4)(B)),         and    we   review       legal   determinations   de    novo,


       4
        Withholding of removal, by contrast, is a form of
mandatory relief.    To qualify, “the applicant must establish
that if she is removed, there is a clear probability that her
‘life or freedom would be threatened ... because of [her] race,
religion, nationality, membership in a particular social group,
or political opinion.’” Marynenka v. Holder, 592 F.3d 594, 600
(4th Cir. 2010) (quoting 8 U.S.C. § 1231(b)(3)(A)) (emphasis
added).   “[A]n applicant who fails to meet the lower standard
for showing eligibility for asylum will be unable to satisfy the
higher standard for showing withholding of removal.”     Mirisawo
v. Holder, 599 F.3d 391, 396 (4th Cir. 2010).     Because the BIA
found that Hernandez was not eligible for asylum, it did not
consider her withholding of removal claim in this case.



                                             6
Marynenka       v.       Holder,       592     F.3d       594,    600     (4th     Cir.    2010). 5

Finally,       we       must    uphold        the    BIA’s       decision     “unless      it   is

‘manifestly         contrary          to     law    and    an     abuse      of    discretion.’”

Cordova, 759 F.3d at 337 (quoting Tassi v. Holder, 660 F.3d 710,

719 (4th Cir. 2011)).



                                                   III.

       Under        8        U.S.C.    §      1101(a)(42)(A),           to        establish     her

eligibility for asylum, Hernandez must prove that she (1) has a

well-founded fear of persecution; (2) on account of a protected

ground; (3) by an organization that the Salvadoran government is

unable or unwilling to control.                            Lopez-Soto v. Ashcroft, 383

F.3d 228, 234 (4th Cir. 2004) (vacated pending reh’g en banc on

other grounds).

                                                    A.

       As to the first requirement, we have expressly held that

“the       threat       of    death        qualifies      as     persecution.”            Crespin-

Valladares v. Holder, 632 F.3d 117, 126 (4th Cir. 2011) (citing

Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005)).                                       Further,

“[a]pplicants who demonstrate past persecution are presumed to

have a well-founded fear of future persecution.”                                     Naizgi, 455

       5
       Because the BIA’s opinion in this case was issued by a
single member, it is non-precedential and not entitled to
Chevron deference. Cordova, 759 F.3d at 337 n.3.



                                                    7
F.3d       at   486    (citing    8     C.F.R.      §    1208.13(b)(1)).            Because

Hernandez       credibly      testified      that       she   received     death    threats

from Mara 18, she has proven that she has a well-founded fear of

future persecution were she to return to El Salvador. 6                            She has

thus satisfied the first prong of eligibility for asylum.

                                             B.

       Next, Hernandez must show that the persecution she suffered

was on account of a protected ground.                         “Persecution occurs ‘on

account of’ a protected ground if that ground serves as ‘at

least one central reason for’ the feared persecution.”                             Crespin-

Valladares,           632     F.3d      at       127      (quoting        8   U.S.C.      §

1158(b)(1)(B)(i)).             Among the protected grounds listed in the

asylum statute is “membership in a particular social group.”                             8

U.S.C. § 1158(b)(1)(B)(i).              Hernandez claims, and the government

correctly       acknowledges,         that   membership         in   a   nuclear     family

qualifies       as    a     protected   ground         for    asylum     purposes.     See

Crespin-Valladares, 632 F.3d at 125 (“[T]he family provides a

prototypical example of a particular social group.”) (internal

quotation marks and citations omitted).




       6
       The government conceded at oral argument that to the
extent the IJ found, and the BIA affirmed, that Hernandez had
not established a well-founded fear of future persecution, this
was error.



                                             8
       The government argues, however, that the BIA was correct in

holding that Hernandez’s persecution was not “on account of” her

family ties.       To prove that persecution took place on account of

family ties, an asylum applicant “need not show that his family

ties    provide    ‘the    central     reason      or    even    a     dominant    central

reason’    for    his    persecution,        [but]      he    must     demonstrate     that

these     ties     are     more       than       ‘an      incidental,       tangential,

superficial, or subordinate reason’ for his persecution.”                              Id.

at 127 (quoting Quinteros-Mendoza v. Holder, 556 F.3d 159, 164

(4th Cir. 2009)) (emphasis in original).

       The BIA concluded that the threats to kill Hernandez unless

she allowed her son to join the gang were not made on account of

Hernandez’s membership in her nuclear family.                          It reasoned that

“[s]he was not threatened because of her relationship to her son

(i.e. family), but rather because she would not consent to her

son engaging in a criminal activity.”                        A.R. 4.     The government

argues    that    the     BIA   did    not       err    in     concluding       that   gang

recruitment       was    the    central      motivation         for     these     threats.

Further, it argues that the fact that the person blocking the

gang members’ recruitment effort was their membership target’s

mother was merely incidental to the recruitment aim.

        We believe that this is an excessively narrow reading of

the requirement that persecution be undertaken “on account of

membership in a nuclear family.”                       Hernandez’s relationship to

                                             9
her son is why she, and not another person, was threatened with

death if she did not allow him to join Mara 18, and the gang

members’ demands leveraged her maternal authority to control her

son’s activities.            The BIA’s conclusion that these threats were

directed at her not because she is his mother but because she

exercises control over her son’s activities draws a meaningless

distinction under these facts.                It is therefore unreasonable to

assert that the fact that Hernandez is her son’s mother is not

at least one central reason for her persecution.

       Indeed, we recently rejected a similar government argument

in Cordova v. Holder, 759 F.3d 332 (4th Cir. 2014), a case that

also dealt with a Salvadoran citizen who was the target of gang

violence.       There, MS-13 gang members repeatedly threatened and

attacked petitioner Aquino, at first with the stated goal of

inducing him to join the gang, and later because they believed

his cousin and uncle were members of a rival gang.                             Id. at 334-

35.     The BIA held that Aquino’s kinship ties to his cousin and

uncle    were    not     a    central    reason       for        the   gang’s       threats,

reasoning   that       Aquino    had    not   shown    that       MS-13       had   uniquely

targeted his family and that MS-13 had first targeted Aquino as

an    incident    of    recruitment.           Id.    at    339.         We    found    this

reasoning       insufficient       because      the        BIA     had    not       properly

considered Aquino’s evidence that the later threats he received

were    motivated      by     retaliation      for     his       cousin       and   uncle’s

                                          10
membership in a rival gang.               Id.    We therefore concluded that

the recruitment motivation underlying Aquino’s persecution did

not preclude the existence of another central reason – family

ties – for that same persecution.

      Similarly, in this case, Mara 18 threatened Hernandez in

order     to   recruit   her    son   into      their    ranks,       but    they    also

threatened Hernandez, rather than another person, because of her

family     connection    to     her   son.        Thus,       under    Cordova,       the

government’s       argument    that   recruitment        was   Mara     18’s    primary

motivation is unavailing, because there were multiple central

reasons for the threats Hernandez received. 7

      Because any reasonable adjudicator would be compelled to

conclude that Hernandez’s maternal relationship to her son is at

least one central reason for two of the threats she received, we

hold that the BIA’s conclusion that these threats were not made

“on     account    of”   her    membership       in     her    nuclear      family    is

manifestly        contrary     to   law    and    an     abuse    of        discretion.

      7
       This is not to say that every threat that references a
family member is made on account of family ties. It may well be
that the threat directing Hernandez not to identify the
murderers of her husband’s cousin was not made on account of
Hernandez’s familial connections.    That same threat could have
been directed at any person who knew about the gang members’
criminal activities. By contrast, the two threats that directed
Hernandez to turn her son over to the gang were meaningful only
because of her maternal authority over her son’s actions, and
there is no evidence that she would have been selected as the
recipient of those threats absent that familial connection.



                                          11
Accordingly,   Hernandez    has   met     the   second   asylum   eligibility

requirement.

                                     C.

     Finally, Hernandez must show that the Salvadoran government

is either unwilling or unable to control the gang members who

threatened her.   The BIA found that Hernandez had “not shown any

clear error in the Immigration Judge’s factual finding” that the

government of El Salvador would not be unwilling or unable to

protect her from the gang.        A.R. 4.       As a result, we must also

examine the IJ’s factual finding on this issue.

     The IJ acknowledged that the gang problem in El Salvador is

“quite serious” and that Hernandez had perhaps failed to report

the threats she received to the Salvadoran authorities because

the Mara 18 members had threatened to harm her if she did so.

A.R. 50.   Despite these observations, however, the IJ concluded

that Hernandez had not shown that El Salvador is unwilling or

unable to protect her because she had not attempted to obtain

protection from the Salvadoran authorities.              Id.   In support of

this rationale, the IJ stated that Hernandez had testified that

one of the gang members responsible for Augustin’s murder had

been imprisoned and sentenced to 25 years.               Id.   Moreover, the

IJ stated that the government of El Salvador, “with significant

support from the United States Government, has taken a variety

of   law   enforcement     and    social     measures     to   address   gang

                                     12
criminality.”         Id.         The    BIA    found        no    clear    error     in    this

determination        and     added       only        its        reiteration      that       “the

respondent testified that one of the gang members responsible

for Augustin’s murder was arrested, convicted and imprisoned.

He was sentenced to 25 years.”                 A.R. 4.

      There    are    several       errors          in    the     BIA’s    conclusion       that

Hernandez has not shown that El Salvador is unwilling or unable

to   protect   her.         The    IJ    and        the    BIA    misstated      Hernandez’s

testimony and drew unjustified conclusions from it.                                 Next, the

BIA failed to consider relevant evidence of country conditions

in   El   Salvador.         Finally,      the       IJ     relied    on    his   unsupported

personal knowledge of conditions in El Salvador.

                                               1.

      “‘Whether a government is “unable or unwilling to control”

private actors ... is a factual question that must be resolved

based on the record in each case.’”                              Crespin-Valladares, 632

F.3d at 128 (quoting Menjivar v. Gonzales, 416 F.3d 918, 921

(8th Cir. 2005)).           Despite the “extremely deferential standard”

under which we review an IJ’s factual findings, Menghesha v.

Gonzales,     450    F.3d    142,       147    (4th       Cir.    2006),    an   IJ    is    not

entitled to ignore an asylum applicant’s testimony in making

those     factual     findings.               See        Cordova,    759     F.3d     at     340

(“[U]ltimately,       in    reviewing          agency       decisions       in   immigration

matters, it is our responsibility to ensure that unrebutted,

                                               13
legally significant evidence is not arbitrarily ignored by the

fact finder.”) (internal citations and quotation marks omitted);

see also Tassi, 660 F.3d at 719 (“[A]n IJ is not entitled to

base a decision on only isolated snippets of the record while

disregarding the rest.”) (internal citations and quotation marks

omitted).    The BIA abuses its discretion if it “fail[s] to offer

a reasoned explanation for its decision, or if it distort[s] or

disregard[s] important aspects of the applicant’s claim.”           Id.

     The IJ’s claim that Hernandez testified that one of the

gang members responsible for Augustin’s murder was convicted and

imprisoned is factually incorrect.          Hernandez testified not that

this gang member was one of the men who had killed Augustin, but

rather, that he was one of the men who made the first death

threat against Hernandez.     See A.R. 116.       That the BIA failed to

correct the IJ’s factual error, and in fact repeated it in its

own opinion, suggests that the BIA did not engage in a proper

review of the facts.

     Moreover, the BIA relied on its mistaken belief that El

Salvador had imprisoned one of Augustin’s murderers to suggest

that the authorities would have been receptive to Hernandez’s

complaints   if   she   had   reported     the   death   threats.     This

significantly     distorts    the        implications    of   Hernandez’s

testimony.      She did not testify that a gang member had been

prosecuted and imprisoned for murdering her relative; rather,

                                    14
she testified that a gang member who had threatened her was

later prosecuted and imprisoned for unrelated crimes.                                  A.R. 116.

Hernandez       testified         that     her     family       had     not     prompted        the

prosecution,         and    she     did    not    provide       any    details        about     the

“other    crimes”       and       “other    killings”         for     which     he     had     been

prosecuted or the circumstances of his imprisonment.                                   Id.      The

BIA’s     factual       mistake       seems       to    have     motivated          its     faulty

conclusion       that       the     Salvadoran         government           would    have      been

willing to prosecute the gang members who threatened Hernandez

because    it    had       prosecuted      gang       members    who    had     attacked        her

family in the past. 8               Under a correct reading of the record,

however, there is no evidence of what motivated the police to

prosecute and imprison that gang member.                         As a result, there is

no evidence that the police in Hernandez’s neighborhood would

have been responsive if she had reported the death threats.

     To    the       contrary,      Hernandez,         whom     the    IJ     found    to      be   a

credible        witness,          provided        abundant          evidence          that      the

authorities would not have been responsive to such a report.

Hernandez’s affidavit, in combination with the other evidence

presented       in    this        case,    suggests       that        the     police      in    her

     8
       To the extent the IJ suggested that the gang member’s
imprisonment for unrelated killings in any way supports the
inference that the Salvadoran authorities would have been
responsive   to Hernandez’s complaints,  that conclusion is
unwarranted.



                                                 15
neighborhood may be subject to gang influence.                        See A.R. 147-48

(“Reporting these incidents to the police was not an option for

me.   The police routinely arrested gang members and within days

they were released.             Many times the gang members learned who

reported them to the police and retaliated against that person.

I was afraid that would happen to me.”).                       Further, even if the

authorities    in   her    neighborhood          were    willing      to    protect      her

against the gangs, Hernandez testified that they would be unable

to do so.     See A.R. 146-47 (“Of course, I was fearful and knew

the   authorities     could       not     provide       me    with    any       degree    of

protection. For that reason, I did not turn them in.”).                               Thus,

the BIA relied on a misstatement of the record, misinterpreted

its   significance,       and    ignored        Hernandez’s       contrary        credible

testimony in reaching its finding.

                                           2.

      That   the    BIA    accepted       the     IJ’s       decision      to    disregard

Hernandez’s    testimony         is     even    more     surprising         because      her

testimony     is    completely          consistent       with        the    2011      State

Department Human Rights Report for El Salvador. 9                           This report



      9
        The BIA was certainly aware of this Report because
Hernandez cited it in her brief before the BIA.    Moreover, the
BIA may take administrative notice of the contents of official
documents, which include reports such as this one, in the course
of deciding appeals.    8 C.F.R. § 1003.1(d)(3)(iv).    “A State
Department report on country conditions is highly probative
(Continued)
                                           16
notes the existence of widespread gang influence and corruption

within   the     Salvadoran   prisons     and    judicial      system,       and,

considered in conjunction with Hernandez’s testimony regarding

conditions in her neighborhood, negates the IJ’s finding that

the Salvadoran government is not unwilling or unable to protect

Hernandez from the Mara 18 members who threatened her.

                                    3.

     Finally,    the   IJ’s   reliance    on    his    own,   unsubstantiated

knowledge   of   conditions   in   El   Salvador      to   conclude   that    the

government was not unwilling or unable to protect her was error.

If the IJ relies on his own knowledge of country conditions as a

basis for a finding, the IJ must support that knowledge with

evidence in the record.        See Tassi, 660 F.3d at 719 (“Nor may

the IJ ... ‘rely on speculation, conjecture, or an otherwise



evidence in a well-founded fear case.”                Gonahasa v. INS, 181
F.3d 538, 542 (4th Cir. 1999).

     The Report states that “[t]he principal human rights
problems   [in   El   Salvador]   were   widespread   corruption,
particularly in the judicial system,” that “gangs continued to
exercise influence within the prisons and judicial system,” that
“gang intimidation and violence against witnesses contributed to
a climate of impunity from criminal prosecution,” and that
“[t]he law provides criminal penalties for official corruption;
however, the government did not implement the law effectively,
and officials, particularly in the judicial system, engaged in
corrupt practices with impunity”. United States Dep’t of State,
Country Reports on Human Rights Practices for 2011: El Salvador,
available at http://www.state.gov/j/drl/rls/hrrpt/humanrights
report/index.htm?dlid=186513, at 1, 4, 7, and 12 [hereinafter
State Department Report](saved as ECF opinion attachment).


                                    17
unsupported        personal        opinion      to     discredit      an     applicant’s

testimony or her corroborating evidence.’”) (quoting Jian Tao

Lin v. Holder, 611 F.3d 228, 237 (4th Cir. 2010)).                              Indeed, as

the BIA itself has explained, “[w]e recognize that over time,

Immigration       Judges     will      accumulate      significant        knowledge     from

their experience involving the conditions in numerous countries.

However, any evidence relied upon by the Immigration Judge must

be included in the record so that the Board can meaningfully

review      any   challenge       to    the   Immigration      Judge’s      decision      on

appeal.”      In re S-M-J-, 21 I. & N. Dec. 722, Interim Decision

3303 (BIA 1997).           The IJ’s reliance on his unsupported personal

knowledge of conditions in El Salvador to discredit Hernandez’s

testimony was thus error.

       In     sum,        Hernandez’s         credible       testimony,         which     is

corroborated         by    the     State      Department       Report,       is    legally

sufficient        under    the    circumstances        present      here   to     establish

that   the    Salvadoran          authorities        are   unable    or    unwilling      to

protect     her    from     the    gang    members     who   threatened         her.     The

evidence on which the IJ relied to overcome the strength of that

testimony is inadequate, because the IJ was not entitled to rely

on his unsupported knowledge of country conditions, and because

the IJ distorted the significance of the arrest and imprisonment

of one gang member.               We therefore find that the BIA erred in

affirming the IJ’s ruling that Hernandez had not satisfied this

                                              18
third prong of eligibility for asylum.     Further, because the

only evidence relied on by the IJ and the BIA to discredit

Hernandez’s testimony is legally deficient, Hernandez’s evidence

of police ineffectiveness and corruption remains unrefuted and

compels the conclusion in this case that as a matter of law, she

has met her burden of showing that the authorities are unwilling

and unable to protect her against the threats she received. 10

Therefore, Hernandez has established her eligibility for asylum.




     10
       At oral argument, the government conceded that this Court
is entitled to draw its own legal conclusions from the
undisputed facts in the record that was created by the Board of
Immigration Appeals and which is now before us. Although we are
not empowered to consider factual issues in asylum application
cases in the first instance, see Hussain v. Gonzales, 477 F.3d
153, 157 (4th Cir. 2007) (citing INS v. Ventura, 537 U.S. 12,
16-18 (2002), and Gonzales v. Thomas, 547 U.S. 183, 186-87
(2006)), that is not the situation in this case.        Here, we
review the BIA’s factual determination on the third prong, which
it made after due consideration, and we hold that, as a matter
of law, the opposite conclusion is compelled.        Cf., e.g.,
Crespin-Valladares,   632   F.3d    at  126   (reversing    BIA’s
determination that Crespin had not proven his well-founded fear
of persecution and finding instead that, based on the record,
“Crespin made that showing here.”).



                               19
                                    IV.

      For the foregoing reasons, we grant Hernandez’s petition

for   review   and   remand   the   case   to   the   BIA   for   further

proceedings consistent with this opinion. 11



                                          PETITION FOR REVIEW GRANTED;
                                      REMANDED FOR FURTHER PROCEEDINGS




      11
       In light of Hernandez’s eligibility for asylum, on remand
the BIA should consider her withholding of removal claim.



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