                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 09-3193
                                     ___________

                     FRANCISCO JAVIER ARRIZA-ESCOBAR,
                                                                       Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                         Respondent
                    ____________________________________

                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                            (Agency No. A099-677-083)
                    Immigration Judge: Honorable Eugene Pugliese
                    _______________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 26, 2010

           Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges

                             (Opinion Filed: June 1, 2010 )
                                      _________

                                        OPINION
                                       _________

PER CURIAM

      Francisco Javier Arriza-Escobar petitions for review of the Board of Immigration

Appeals’ (“BIA”) final order of removal. We will grant the petition.
                                             I.

       Arriza-Escobar is a citizen of El Salvador who concedes that he is present in the

United States without admission or parole and is removable on that basis. See 8 U.S.C. §

1182(a)(6)(A)(i). He seeks asylum, statutory withholding of removal, and relief under the

Convention Against Torture (“CAT”) on the grounds that members of a criminal

organization called Mara Salvatrucha, or MS-13, threatened to kill him and his brother

because their father is a police sergeant who investigates gang violence.

       Arriza-Escobar testified before the Immigration Judge (“IJ”) and offered

background evidence regarding MS-13. The IJ assumed that his testimony was credible,

but denied relief and ordered his removal to El Salvador. Arriza-Escobar appealed to the

BIA. He also filed a motion to remand on the grounds that his father was convicted of the

homicide of gang members, a conviction he attributes to a “corrupt” judiciary he believes

will also target him. By order issued June 30, 2009, the BIA denied Arriza-Escobar’s

motion to remand and dismissed his appeal. Arriza-Escobar petitions for review.1




 1
  Arriza-Escobar raises no issue regarding the BIA’s denial of his motion to remand, and
instead challenges only its dismissal of his appeal. We have jurisdiction to review that
ruling pursuant to 8 U.S.C. § 1252(a)(1). “Because the BIA issued its own decision, we
review that decision, and not that of the IJ.” Sheriff v. Att’y Gen., 587 F.3d 584, 588 (3d
Cir. 2009). We review the factual findings deferentially for substantial evidence, and
may reverse only if “‘a reasonable adjudicator would be compelled to conclude to the
contrary,’” but “‘that deference is expressly conditioned on support in the record[.]’”
Toure v. Att’y Gen., 443 F.3d 310, 316 (3d Cir. 2006) (citations omitted).

                                             2
                                              II.

       Arriza-Escobar’s principal challenge is to the BIA’s denial of his claims

for asylum and withholding of removal. Those claims required him to show (1) a well-

founded fear of persecution (for asylum) or a likelihood of persecution (for withholding)

(2) on account of a statutorily protected ground 2 (3) by the government or forces that it is

unable or unwilling to control. See Toure, 443 F.3d at 316-17 (citation omitted). A

showing of past persecution gives rise to a rebuttable presumption of a well-founded fear

of future persecution. See id. at 317.

       Arriza-Escobar challenges the denial of these claims on two grounds. First, he

argues that the BIA erred in concluding that he has not suffered past persecution. We

disagree. Arriza-Escobar testified that two men who identified themselves as MS-13

members approached him and his brother, told them they knew who their father was,

pushed them against a wall, pointed a gun at them and told them they were going to kill

them. (A.R. 162-63.) Because there were people around, however, the MS-13 members

told them to leave and threatened to kill them if they saw them again. (A.R. 164.) The

BIA concluded that this incident did not rise to the level of persecution because it was a

“one-time occurrence” and Arriza-Escobar was not harmed. (BIA Dec. at 1-2; A.R. 2-3.)

While this incident no doubt was traumatic, we agree that it was not so extreme as to rise



 2
  Escobar claims to belong to a “particular social group” comprising family members of
police officers combating gang violence in El Salvador, but the BIA did not decide that
issue.

                                              3
to the level of persecution. See Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 341 (3d Cir.

2008) (“‘[W]e have limited the types of threats constituting persecution to only a small

category of cases, and only when the threats are so menacing as to cause significant actual

suffering or harm.’”) (citation omitted).

       Second, Arriza-Escobar challenges the BIA’s ruling that he did not establish a

well-founded fear of future persecution. We find this challenge persuasive. The BIA’s

entire analysis of this claim reads: “Even if [Arriza-Escobar’s] family constitutes a

particular social group, there is no evidence that other family members are being

threatened or harmed. Indeed, [his] brother has been able to remain in El Salvador

without further incident.” (BIA Dec. at 3; A.R. 3.) As Arriza-Escobar argues, the BIA’s

reasons for denying this claim are not properly grounded in the record.

       It is not true that there is “no evidence” that other family members are being

threatened or harmed. Arriza-Escobar, whom the IJ assumed to be credible, testified that

his uncle was threatened with harm. While Arriza-Escobar’s testimony is not entirely

clear, he appears to have testified that assailants targeted his uncle by shooting at his

house but wounded a worker instead because his uncle was not home. (A.R. 173.) The

BIA did not acknowledge this evidence, and we may not evaluate it in the first instance.

See INS v. Ventura, 537 U.S. 12, 16, (2002).

       In addition, the BIA erred in mechanically relying on the apparent lack of harm to

Arriza-Escobar’s brother. We have recognized that an alien’s claim can be undercut if



                                              4
family members remain without harm, but “we do not agree that this principle has any

application where, as here, a petitioner testifies that the similarly-situated family members

are in hiding.” Toure, 443 F.3d at 319. Arriza-Escobar testified that his brother is “in

hiding for the same fear” in El Salvador. (A.R. 180.) He also testified that “he fear they

can kill him but he’s in different places. In San Miguel and other places where, he moves

around where there are no gang roots.” (A.R. 181.) Thus, the BIA should have addressed

Arriza-Escobar’s explanation for the apparent lack of harm to his brother instead of

mechanically relying on it.3

       Accordingly, we will grant the petition for review and remand for further

consideration of Arriza-Escobar’s asylum claim. Because the BIA rested its denial of his

withholding claim solely on its denial of his asylum claim, we will remand for further

consideration of that claim as well. We express no opinion on whether Arriza-Escobar in

fact showed a well-founded fear or likelihood of persecution, or on any of the issues that

the BIA did not reach.4


 3
  “Of course, if hiding means relocation to another part of the country, this may be
relevant to showing that petitioner could reasonably avoid persecution by relocating
within the country. . . . The [BIA], however, never made any finding on this issue.”
Toure, 443 F.3d at 319 n.3 (citation omitted).
 4
  We reject Arriza-Escobar’s challenge to the denial of his CAT claim. The BIA con-
cluded that Arriza-Escobar presented no evidence that the El Salvadoran government
would torture him or consent or acquiesce to his torture on return. Arriza-Escobar argues
that he presented sufficient evidence to show that the El Salvadoran government would be
“willfully blind” to torture by MS-13. See Gomez-Zuluaga, 527 F.3d at 350. Arriza-
Escobar, however, has cited no evidence of record that MS-13 will torture him and no
evidence compelling the conclusion that the government would be willfully blind to any
such torture.

                                             5
