                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

DAMION NATHANIAL BROMFIELD,               
                     Petitioner,                  No. 05-75844
              v.
                                                  Agency No.
                                                  A44-134-417
MICHAEL B. MUKASEY, Attorney
General,                                            OPINION
                    Respondent.
                                          
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                    Argued and Submitted
             March 13, 2008—Seattle, Washington

                    Filed September 15, 2008

       Before: Betty B. Fletcher and Richard A. Paez,
 Circuit Judges, and William W Schwarzer,* District Judge.

                  Opinion by Judge B. Fletcher




  *The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.

                               12843
                   BROMFIELD v. MUKASEY                12847


                        COUNSEL

Matthew H. Adams, Esq., Northwest Immigrants Rights Proj-
ect, Seattle, Washington, for the petitioner.

Paul F. Stone, Esq. (argued) and R. Alexander Goring, Esq.,
U.S. Department of Justice, Civil Division, Washington, D.C.,
and Ronald E. LeFevre, Department of Homeland Security,
San Francisco, California, for the respondent.


                         OPINION

B. FLETCHER, Circuit Judge:

  Damion Nathanial Bromfield (“Bromfield”) petitions this
court for review of a Board of Immigration Appeals (“BIA”)
12848                   BROMFIELD v. MUKASEY
order affirming an Immigration Judge’s (“IJ”) denial of
Bromfield’s application for withholding of removal under
INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and the Convention
Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”). We hold that the evidence
in the record compels the conclusion that there exists in
Jamaica a pattern or practice of persecution of gay men and
that the IJ applied the wrong legal standard in evaluating
Bromfield’s CAT claim. Accordingly, we remand Brom-
field’s case so that the agency can reconsider whether Brom-
field will more likely than not be persecuted or tortured if
removed to Jamaica.

                          I.   Background

   Bromfield is a Jamaican national who came to the United
States as a legal permanent resident in 1993 at the age of fif-
teen. Four years later, when he was nineteen, Bromfield
“came out” as a gay man. Prior to coming out, Bromfield
made two short trips to Jamaica to visit his extended family.
He cites violence against homosexuals in Jamaica as one of
the reasons why he has not returned to his home country.1

   Bromfield was placed in removal proceedings after plead-
ing guilty to misdemeanor sexual abuse in the third degree
and contributing to the sexual delinquency of a minor. The
government charged him as removable for having been con-
victed of an aggravated felony. Unable to obtain counsel,
Bromfield admitted the charges against him and conceded
removability. The IJ found that Bromfield was ineligible for
asylum as a result of his convictions.2 But the IJ declined to
  1
     We accept Bromfield’s testimony as true because the BIA did not
make an adverse credibility determination. Kalubi v. Ashcroft, 364 F.3d
1134, 1137 (9th Cir. 2004).
   2
     Bromfield did not challenge this finding before the BIA. As a result,
we do not consider whether the crimes actually constitute aggravated felo-
nies or whether he is eligible for asylum.
                        BROMFIELD v. MUKASEY                       12849
find that Bromfield was convicted of a particularly serious
crime. Accordingly, he permitted Bromfield to apply for with-
holding of removal and relief under CAT.3

   In support of his application, Bromfield testified that as a
gay man he would be beaten and killed if returned to Jamaica.
In support of this belief, Bromfield testified about articles that
he had read about violence against gay men in Jamaica and
expressed concern that his father might have told his extended
family that he was gay. He also submitted documentary evi-
dence in support of his claim, including the 2005 U.S. State
Department Country Report for Jamaica (“Country Report”).
According to the report, violence against homosexuals is
widespread, and is perpetrated by both private individuals and
public officials such as police officers and prison personnel.
The report also noted that Jamaican law criminalizes homo-
sexual conduct, making it punishable by up to ten-years
imprisonment, and that the prime minister had stated that the
government would not be pressured into changing its anti-
homosexual laws.

   The IJ denied Bromfield’s claims on the merits. The IJ
rejected the CAT claim because he concluded that Bromfield
had not “demonstrated any . . . interest or risk to him from the
[Jamaican] government.” In rejecting Bromfield’s claim for
withholding of removal, the IJ relied heavily on the fact that
Bromfield had visited Jamaica twice without incident prior to
coming out as a gay man and continued to have contact with
his Jamaican-born father. He also noted that Bromfield was
not politically active. Looking to the Country Report, the IJ
acknowledged that gay people suffered discrimination, but
  3
    The relief Bromfield seeks under CAT is a form of withholding of
removal. See 8 C.F.R. § 208.16(c). Except in the jurisdiction discussion,
infra, where the same restrictions apply regardless of whether withholding
is sought on the basis of persecution or torture, the phrase “withholding
of removal,” as used in this opinion, refers to withholding based on risk
of future persecution, while the phrase “relief under CAT” refers to with-
holding based on risk of torture.
12850               BROMFIELD v. MUKASEY
characterized violence against them as “random acts of vio-
lence” that do not constitute persecution. Thus the IJ con-
cluded that Bromfield had not carried his burden and was not
entitled to either form of relief.

   Bromfield filed a pro se brief before the BIA arguing that
the IJ erred in denying relief because Bromfield had shown
regular and widespread persecution and torture of homo-
sexuals in Jamaica carried out at least in part by the Jamaican
government. The BIA dismissed the appeal and affirmed the
IJ’s conclusion that Bromfield failed to sustain the high bur-
den of proof applicable to withholding of removal. The BIA
also stated that the record supported the conclusion that
Bromfield failed to establish that he would more likely than
not be tortured if returned to Jamaica, but did not offer any
explanation. Bromfield timely petitioned for review.

                      II.   Jurisdiction

   The government argues that we do not have jurisdiction
over this petition for review because Bromfield was found
removable on the basis of his conviction for an aggravated
felony. We have jurisdiction to determine whether we have
jurisdiction, Ramadan v. Gonzales, 479 F.3d 646, 649 (9th
Cir. 2007) (per curiam), and we conclude that we do.

   [1] This court lacks jurisdiction “to review any final order
of removal against an alien who is removable by reason of
having committed [an aggravated felony].” 8 U.S.C.
§ 1252(a)(2)(c); see also 8 U.S.C. § 1227(a)(2)(A)(iii). But
this provision applies only “to removal orders, and not to
applications for asylum, withholding of removal, or CAT
relief.” Arteaga v. Mukasey, 511 F.3d 940, 942 n.1 (9th Cir.
2007) (citing Morales v. Gonzales, 478 F.3d 972, 980 (9th
Cir. 2007)). Therefore, if the IJ denies withholding of removal
or CAT relief on the merits, rather than relying on the aggra-
vated felony conviction, we have jurisdiction to review the
merits of these claims. See id. (reviewing withholding of
                         BROMFIELD v. MUKASEY                        12851
removal and CAT claims on the merits despite the fact that
petitioner was found removable as an alien convicted of an
aggravated felony); see also Unuakhaulu v. Gonzales, 416
F.3d 931, 933 (9th Cir. 2005) (holding that because “8 U.S.C.
§ 1252(a)(2)(C) divests us only of jurisdiction to review
orders of removal that are actually based on a petitioner’s
prior aggravated felony conviction . . . [w]e . . . have jurisdic-
tion to review the BIA’s nondiscretionary denial of withhold-
ing, which was not predicated on Unuakhaulu’s aggravated
felony”).4

   [2] Withholding of removal—whether under INA
§ 241(b)(3) or CAT—is nondiscretionary relief that must be
granted to any alien who establishes that he will more likely
than not be persecuted or tortured, respectively, in the pro-
posed country of removal. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R.
§ 1208.16(d)(1). Even if the applicant has carried his burden
of proof, however, withholding of removal will be denied in
four narrow circumstances, one of which is potentially rele-
vant here: an alien is not eligible for withholding of removal
if he has been convicted of a particularly serious crime. 8
U.S.C. § 1231(b)(3)(B)(ii). If an individual convicted of an
aggravated felony is sentenced to five-years imprisonment, he
is deemed to have been convicted of a particularly serious
  4
    The government attempts to distinguish Unuakhaulu by pointing out
that the IJ ordered Bromfield removable as charged—i.e., on the basis of
the aggravated felony charge in his Notice to Appear—whereas the IJ in
Unuakhaulu did not specify whether Unuakhaulu was ordered removed
because of his aggravated felony or because he overstayed his visa. See
416 F.3d at 934. The government’s argument fails. Our subsequent prece-
dent makes clear than even in cases where the aggravated felony is the
only basis for the finding of removability, we have jurisdiction to review
the IJ’s determination on the merits. See Arteaga, 511 F.3d at 942 & n.1.
Bromfield was denied relief not because of his conviction but because the
IJ and BIA thought that he had failed to prove his withholding of removal
and CAT claims on the merits. Thus, we have jurisdiction to review Brom-
field’s petition in so far as it challenges the denial of relief on the with-
holding of removal and CAT claims and not the finding of removability
on account of the felony conviction. See Unuakhaulu, 416 F.3d at 937.
12852               BROMFIELD v. MUKASEY
crime and is ineligible for withholding of removal. Id. If, on
the other hand, the individual is sentenced to less than five-
years imprisonment, he remains eligible for withholding of
removal unless the Attorney General (acting through the IJ
and the BIA) determines that the crime at issue was “particu-
larly serious.” Id.; Afridi v. Gonzales, 442 F.3d 1212, 1220-21
(9th Cir. 2006).

   [3] Bromfield was convicted of an aggravated felony for
which he was sentenced to less than one-year imprisonment.
He therefore remained eligible for withholding of removal
unless the IJ determined that his conviction was for a particu-
larly serious crime. The IJ declined to reach this conclusion,
and denied Bromfield’s application for withholding of
removal and relief under CAT on the merits. Because the IJ
denied the claim on the merits and not on the basis of Brom-
field’s conviction, we have jurisdiction to determine whether
the IJ erred in determining that Bromfield had not established
that he would more likely than not be persecuted or tortured
in Jamaica.

           III.   Scope and Standard of Review

   Where, as here, the BIA’s order indicates that it may have
engaged in de novo review of the IJ’s decision but does not
provide any legal analysis, we review the IJ’s oral decision
“as a guide to what lay behind the BIA’s conclusion[s].”
Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir. 2000).
We review the IJ’s application of legal standards de novo.
Morales, 478 F.3d at 983. The IJ’s factual findings, on the
other hand, are reviewed for substantial evidence. Id. Under
this standard, we reverse the BIA if the evidence presented
would compel a reasonable factfinder to reach a contrary con-
clusion. See INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1
(1992).

  IV.   Withholding of Removal Under INA § 241(b)(3)

  [4] Bromfield is entitled to withholding of removal under
INA § 241(b)(3) if he establishes that he would more likely
                      BROMFIELD v. MUKASEY                   12853
than not be persecuted on account of his sexual orientation if
he were removed to Jamaica. 8 C.F.R. § 1208.16(b); Karouni
v. Gonzales, 399 F.3d 1163, 1172 (9th Cir. 2005) (citing
Hernandez-Montiel v. INS, 225 F.3d 1084, 1094 (9th Cir.
2000)) (holding that homosexuals are members of a particular
social group for purposes of asylum and withholding of
removal). He can meet his burden either by presenting evi-
dence that he would be singled out for persecution or by
establishing that there is a pattern or practice of persecution
of a group of similarly-situated individuals and that his “in-
clusion in and identification with such group of persons
[makes] it . . . more likely than not that his . . . life or freedom
would be threatened” in Jamaica. 8 C.F.R. § 1208.16(b)(2).

   [5] In rejecting Bromfield’s claim, the IJ relied on the fol-
lowing facts: (1) although Bromfield’s father did not approve
of his sexual orientation, he did not reject Bromfield; (2)
Bromfield was not politically active; and (3) Bromfield volun-
tarily went to Jamaica twice before coming out. The IJ also
concluded that the Country Report was insufficient to sustain
Bromfield’s claim because it establishes only that homosexu-
als are the victims of harassment and random acts of violence,
neither of which rise to the level of persecution. As we
explain below, the IJ improperly relied on the first three facts
and his interpretation of the Country Report is not supported
by substantial evidence. We therefore reverse and remand for
reconsideration of Bromfield’s withholding claim.

   The most glaring error in the IJ’s opinion is his interpreta-
tion of the Country Report. Although the Country Report
noted that “a culture of severe discrimination” against homo-
sexuals exists in Jamaica, it did not end there. It went on to
recognize that “[t]here were numerous cases of violence
against persons based on sexual orientation, including by
police and vigilante groups.” These included mob attacks,
stabbings, and targeted shootings. The problem is so perva-
sive that Jamaican government entities described the brutality
against homosexuals as “widespread.”
12854               BROMFIELD v. MUKASEY
   [6] Whether particular conduct constitutes persecution or
“random” violence turns on the perpetrator’s motive. See,
e.g., Ndom v. Ashcroft, 384 F.3d 743, 752 (9th Cir. 2004). If
the perpetrator is motivated by his victim’s protected status—
including sexual orientation—he is engaging in persecution,
not random violence. See id. at 753. Applying this rule to the
undisputed facts contained in the Country Report, it is clear
that the IJ erred when he ignored the perpetrators’ motive in
attacking homosexuals. The Country Report does not describe
random violence. Rather, it makes clear that homosexuals are
the victims of targeted violence on account of their sexual ori-
entation. Therefore, the IJ’s conclusion that the Country
Report does not establish that homosexuals are persecuted in
Jamaica is not supported by substantial evidence.

   [7] In addition to his error in not recognizing that violence
is targeted against homosexuals, the IJ erred in failing to con-
sider all of the evidence contained in the Country Report. In
particular, the IJ did not so much as mention the Jamaican law
criminalizing homosexual conduct. This law, known as the
Offenses Against the Person Act, prohibits “ ‘acts of gross
indecency’ (generally interpreted as any kind of physical inti-
macy) between men, in public or in private.” The Country
Report makes clear that this is not a statute that remains on
the books but is not enforced. In fact, according to the Coun-
try Report, then-Prime Minister P.J. Patterson responded to
criticism from the international community by stating that
Jamaica would not be pressured into changing its anti-
homosexual laws.

   [8] The Offenses Against the Person Act is relevant
because prosecution under the statute is a form of persecution.
Although legitimate criminal prosecution generally does not
constitute persecution, prosecution motivated by a protected
ground does. See Bandari v. INS, 227 F.3d 1160, 1168 (9th
Cir. 2000) (holding that petitioner was attacked by police not
because he violated a neutral law against public displays of
affection but because he was in an interfaith relationship); see
                          BROMFIELD v. MUKASEY                          12855
also Karouni, 399 F.3d at 1172-73 (holding that evidence that
homosexual acts were criminalized and actively punished in
the proposed country of removal compelled the conclusion
that petitioner had a well-founded fear of future persecution).
In this case, there is no doubt that prosecution of homosexuals
under the statute is motivated by a protected ground—the
prosecution is because of a protected ground. There is nothing
neutral about the government’s use of a statute to prohibit
homosexual conduct but not any other sexual activity.
Because the prohibition is directly related to a protected
ground—membership in the particular social group of homo-
sexual men—prosecution under the law will always constitute
persecution.5 This is true even though the statute criminalizes
conduct, not sexual orientation per se. Karouni, 399 F.3d at
1173 (“[W]e see no appreciable difference between an indi-
vidual . . . being persecuted for being a homosexual and being
persecuted for engaging in homosexual acts. [Either way t]he
persecution . . . qualifies as persecution on account of . . .
membership in the particular social group of homosexuals.”
(citing 8 U.S.C. § 1101(a)(42)(A))).

   [9] Our review of the Country Report compels the conclu-
sion that there exists in Jamaica a pattern or practice of perse-
cution of gay men. It follows that if Bromfield had not been
convicted of an aggravated felony, he would have been eligi-
  5
    In oral argument the government relied heavily on Fisher v. INS, 79
F.3d 955 (9th Cir. 1996) (en banc), in support of its position that prosecu-
tion under the Offenses Against the Person Act would not constitute perse-
cution. The government’s reliance is misplaced. In Fisher, a majority of
the en banc panel concluded that the petitioner had failed to establish that
if she were prosecuted for not following Iran’s strict laws governing
women’s dress and conduct, the prosecution would be on account of her
religious or political beliefs. Id. at 961-62. In contrast, there is no question
that if Bromfield were prosecuted under the Jamaican law it would be on
account of his sexual orientation. Whereas any woman who violated the
dress and conduct laws could be prosecuted regardless of her religious or
political beliefs, only men perceived as gay can be prosecuted under the
Offenses Against the Person Act. Thus Fisher is inapposite.
12856                BROMFIELD v. MUKASEY
ble for asylum. See Mgoian v. INS, 184 F.3d 1029, 1035 (9th
Cir. 1999) (“[I]f [an applicant] is able to show a ‘pattern or
practice’ of persecution against a group of which she is a
member, then she will be eligible for asylum.”). But in order
to be entitled to withholding of removal, Bromfield must
establish that he will more likely than not be persecuted, not
merely that he has a well-founded fear of persecution.
Because we conclude that the IJ erred, we remand Brom-
field’s case to the BIA so that it can determine in the first
instance whether he has met his burden for withholding of
removal in light of the record evidence that there exists a pat-
tern or practice of persecution of gay men in Jamaica. See,
e.g., Knezevic v. Ashcroft, 367 F.3d 1206, 1213, 1214-15 (9th
Cir. 2004) (holding that record compelled finding of pattern
or practice of persecution and remanding for BIA to recon-
sider application for withholding).

   [10] Although the IJ’s misinterpretation of the Country
Report is a sufficient basis for remanding the case, it is not the
only error that must be corrected on remand. The IJ also erred
by relying on the fact that Bromfield’s father had not dis-
owned him and that Bromfield voluntarily visited Jamaica
twice before coming out at the age of nineteen. To the extent
that the IJ’s reliance on these facts is based on his conjecture
about how a Jamaican man would treat his homosexual son
and whether a teenager who had not yet identified himself as
gay would voluntarily travel to Jamaica to visit his family,
such conjecture does not constitute substantial evidence to
support the IJ’s decision. See Karouni, 399 F.3d at 1176.
These facts are entirely irrelevant to a determination of
whether Bromfield will be persecuted in Jamaica today.

   [11] Turning first to Bromfield’s relationship with his
father, it is completely irrelevant that Bromfield’s father—
who has lived in the United States for over a decade—has not
cut off all communication with Bromfield. Whether his
comparatively-tolerant attitude results from the fact that he
has not lived in Jamaica for many years or from his love for
                     BROMFIELD v. MUKASEY                   12857
his son, a father’s refusal to disown his son is not evidence
that the son will not be persecuted in the proposed country of
removal. Moreover, the record is clear that Bromfield’s father
does not approve of his son’s sexual orientation. In fact, he
refused to speak to Bromfield for two years after he found out
that Bromfield was gay. His attitude thus supports Brom-
field’s position that Jamaican society is not accepting of
homosexuality, and in no way undermines Bromfield’s claim
that he would be persecuted if removed to Jamaica.

   [12] Similarly, the fact that Bromfield made two short trips
to visit his family in Jamaica before he came out does not
undermine his claim. Importantly, Bromfield has not been to
Jamaica since he came out as a gay man. He has therefore
never been in a position to be persecuted on account of his
sexual orientation. Moreover, the short duration and purpose
of the trips—to visit family—further reduced the likelihood
that he would be persecuted. Thus the fact that he was not
persecuted as a teenager has no bearing on the likelihood that
he would be persecuted in Jamaica today.

   [13] Finally, we note that while Bromfield’s lack of politi-
cal activism could be relevant in determining the likelihood
that he would be persecuted, it is by no means dispositive.
The Country Report gives some indication that high-profile
gay-rights activists are at a heightened risk of persecution. But
the risk is not limited to those individuals. In light of the stat-
ute criminalizing homosexual conduct and the widespread,
targeted violence against homosexuals, all gay men are at
risk.

   We therefore grant Bromfield’s petition for review and
remand his case to the BIA to determine whether he has
established a clear probability of persecution in light of the
fact that there exists a pattern or practice of persecution of gay
men in Jamaica. This will require the IJ to consider the Jamai-
can law criminalizing homosexual conduct and the frequency
with which that law is enforced, and to determine whether
12858                 BROMFIELD v. MUKASEY
that frequency, combined with evidence of widespread vio-
lence targeted at homosexuals, makes it more likely than not
that Bromfield will be persecuted on account of his sexual ori-
entation if removed to Jamaica.

              V.   Convention Against Torture

   [14] Bromfield is entitled to relief under CAT if he estab-
lishes that he would more likely than not be tortured in
Jamaica. 8 C.F.R. § 1208.16(c)(2). Torture is defined as “any
act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes
as . . . punishing him . . . for an act he . . . has committed . . .
or for any reason based on discrimination of any kind . . .
when such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a public official or
other person acting in an official capacity.” 8 C.F.R.
§ 1208.18(a)(1). Acts constituting torture are varied, and
include beatings and killings. See Comollari v. Ashcroft, 378
F.3d 694, 697 (7th Cir. 2004) (citing 28 U.S.C. § 1350 (note))
(killings); Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir.
2001) (beatings).

   [15] The IJ rejected Bromfield’s CAT claim because he had
not demonstrated that he was at risk of harm from the Jamai-
can government. This conclusion is based on an error of law.
Bromfield was not required to show that the government
would torture him; he could satisfy his burden by showing
that the government acquiesces in torture of gay men. 8
C.F.R. § 1208.18(a)(1). “Acquiescence” requires only that
public officials were aware of the torture but “remained will-
fully blind to it, or simply stood by because of their inability
or unwillingness to oppose it.” Ornelas-Chavez v. Gonzales,
458 F.3d 1052, 1060 (9th Cir. 2006). The record here compels
the conclusion that the Jamaican government not only acqui-
esces in the torture of gay men, but is directly involved in
such torture. The government criminalizes homosexual con-
duct, making it punishable by up to ten years in prison. This
                     BROMFIELD v. MUKASEY                  12859
is an indicator of the government’s position toward gay men,
as is the fact that the police generally do not investigate com-
plaints of human rights abuses suffered by gay men. More-
over, the Country Report further indicates that police officers
and prison wardens are directly responsible for a portion of
these abuses. Therefore, Bromfield has established sufficient
involvement by the Jamaican government in the torture of gay
men to bring it within the regulatory definition.

   [16] We remand Bromfield’s case to the BIA to determine
whether, in light of the Jamaican government’s acquiescence
and involvement in the torture of homosexual men, it is more
likely than not that Bromfield will be tortured if removed to
Jamaica. In evaluating Bromfield’s claim, the agency must
consider “all evidence relevant to the possibility of future tor-
ture,” including the Country Report, which establishes that
gay men are victims of beatings, killings, and other forms of
torture. See 8 C.F.R § 1208.16(c)(3).

                       VI.   Conclusion

   The IJ erred in failing to find that the Country Report estab-
lished that there exists a pattern or practice of persecution of
homosexual men in Jamaica. We therefore remand Brom-
field’s withholding of removal claim so that the agency can
determine in the first instance whether Bromfield has estab-
lished that he will more likely than not be persecuted in light
of this pattern or practice. Evidence of Bromfield’s relation-
ship with his father or his two prior visits to Jamaica are irrel-
evant to that determination. Additionally, we remand
Bromfield’s CAT claim so that the agency can apply the cor-
rect legal standard and determine whether Bromfield is enti-
tled to relief under CAT. On remand, the agency should
permit both parties to submit new evidence relevant to these
claims.

  PETITION GRANTED; REMANDED.
