                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 26 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


REGOR CADAG AGUILAR,                             No. 12-72174

              Petitioner,                        Agency No. A098-824-919

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted October 22, 2015**
                              San Francisco, California

Before: REINHARDT and HAWKINS, Circuit Judges and MOLLOY,*** Senior
District Judge.

      Regor Aguilar, a citizen of the Philippines, petitions this court for review of

a Board of Immigration Appeals (“BIA”) decision denying Aguilar’s, and

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Donald W. Molloy, Senior District Judge for the U.S.
District Court for the District of Montana, sitting by designation.
derivatively his wife Maria’s, applications for asylum, withholding of removal, and

deferral of removal under the Convention Against Torture (“CAT”). The BIA

found that Aguilar was ineligible for asylum and withholding of removal based on

his past participation in persecution in the Philippines, and denied his application

for deferral of removal because he failed to demonstrate that it is “more likely than

not” he will be tortured upon return. We review these findings for substantial

evidence, see Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014), and

we affirm.

      1. A non-citizen is barred from asylum relief and withholding of removal if

he “ordered, incited, assisted, or otherwise participated in the persecution of any

person on account of race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. §§ 1158(b)(2)(A)(i) (asylum),

1231(b)(3)(B)(i) (withholding of removal). It is not necessary for a petitioner to be

the actual “trigger-pull[er]” for the persecutor bar to apply. Miranda Alvarado v.

Gonzales, 449 F.3d 915, 927 (9th Cir. 2006). Rather, a “continuum of conduct”

can amount to persecution. Id. at 926 (quoting Federenko v. United States, 449

U.S. 490, 512 n.34 (1981)). Courts must consider the totality of the circumstances

to establish “individual accountability” in the persecution. See id. at 930;

Vukmirovic v. Ashcroft, 362 F.3d 1247, 1252 (9th Cir. 2004). In evaluating the


                                           2
circumstances, we consider “the degree of relation [the non-citizen’s] acts had to

the persecution itself,” whether the non-citizen acted in self-defense, the length of

time over which the non-citizen was involved in the acts, and whether threats were

used to compel assistance. Miranda Alvarado, 449 F.3d at 928-29.

      The finding that Aguilar participated in persecution is supported by

substantial evidence. Aguilar testified that he worked from 1998 to 2001 as a

surveillance agent for a law enforcement task force in the Philippines that

frequently targeted rival political figures—including, at various times, the

President, Vice President, members of the Philippine Congress, and members of

the press. Aguilar maintains that he did not know the extent of the task force’s

illegal activities while working for it, but this contention is belied by his own

testimony before the Immigration Judge. Aguilar testified that he knew, as early as

1998, that one of the targets of his surveillance disappeared and is presumed dead.

He further testified that his superiors informed him that other members of the task

force relied on his surveillance to abduct and murder another political figure in

2000. On at least two occasions Aguilar also heard his superiors order task force

members to torture someone whom the task force had abducted. This level of




                                           3
knowledge and participation establishes the degree of “individual accountability”

required to affirm the BIA’s determination.1

      2. Under CAT, even those non-citizens ineligible for asylum and

withholding of removal qualify for deferral of removal if they establish a

“likelihood of torture upon return.” Lemus-Galvan v. Mukasey, 518 F.3d 1081,

1083 (9th Cir. 2008). Both mistreatment by the foreign government itself and

mistreatment at the hands of private individuals acting with governmental

“acquiescence” constitute torture. Azanor v. Ashcroft, 364 F.3d 1013, 1020 (9th

Cir. 2004).

      Substantial evidence supports the BIA’s denial of Aguilar’s deferral of

removal claim. First, Aguilar conceded during his testimony that he was never

mistreated or threatened by the Philippine government before or after the

termination of his employment. Aguilar has received what he considers to be three

threats since he moved to the United States, but he admits that none of those threats



      1
         Aguilar also argues that he worked for the task force under duress. The
government maintains that Aguilar has failed to exhaust this argument before the
BIA. See Rendon v. Mukasey, 520 F.3d 967, 972 (9th Cir. 2008). We need not
decide whether the argument is exhausted, however, because the record does not
support a finding of duress. Aguilar’s decision to flee the Philippines after a new
presidential administration disbanded the task force (and initiated an investigation
into its activities) does not show that he served under duress during his three years
of working for the organization.

                                          4
(the last of which occurred in 2004) can be linked to Philippine officials. Second,

Aguilar failed to demonstrate that the Philippine government would acquiesce to

private violence directed at him. That the Philippine government has not accepted

Aguilar’s offers to testify in exchange for protection, does not establish that it

would knowingly acquiesce to any harm that might befall him upon his return. See

Garcia-Milian, 755 F.3d at 1034 (defining government acquiescence as (1)

“hav[ing] awareness of the activity (or consciously clos[ing] their eyes to the fact it

is going on); and (2) breach[ing] their legal responsibility to intervene to prevent

the activity because they are unable or unwilling to oppose it”).

      PETITION DENIED.




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