Velasquez

MEMORANDUM *

Esteban Rafael Velasquez, a Guatemalan citizen and Mayan Indian, petitions this court for review of a Board of Immigration Appeals (BIA) decision denying his application for asylum and withholding of removal. The BIA affirmed without opinion the decision of the Immigration Judge (IJ), so we review the IJ’s decision as the final agency determination. See 8 C.F.R. § 3.1 (a)(7) (2003); Fajardo v. INS, 300 F.3d 1018 , 1019 n. 1 (9th Cir.2002). As we conclude that the IJ erred in failing to consider whether acts of violence alleged by Mr. Velasquez were committed by actors the government was unwilling or unable to control, we grant the petition in part and remand for further proceedings. Because the facts are familiar to the parties, we recount them only as necessary to explain our decision.

1. The agency’s factual findings, including credibility determinations, are reviewed for substantial evidence. See Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir.2003); Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). Questions of law, however, are reviewed de novo. See Melkonian, 320 F.3d at 1065 . We may grant the petition for review only if Mr. Velasquez’s evidence is such…