Alicia Naranjo Garcia v. Robert Wilkinson ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALICIA NARANJO GARCIA, No. 19-72803
Petitioner,
Agency No.
v. A215-670-558
ROBERT M. WILKINSON, Acting
Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 16, 2020
Seattle, Washington
Filed February 18, 2021
Before: Ronald M. Gould and Michelle T. Friedland,
Circuit Judges, and Stephen R. Bough, * District Judge.
Opinion by Judge Gould
*
The Honorable Stephen R. Bough, United States District Judge for
the Western District of Missouri, sitting by designation.
2 NARANJO GARCIA V. WILKINSON
SUMMARY **
Immigration
Granting in part Alicia Naranjo Garcia’s petition for
review of the Board of Immigration Appeals’ decision
affirming an immigration judge’s denial of asylum,
withholding of removal, and protection under the
Convention Against Torture, and remanding, the panel
concluded that substantial evidence did not support the
Board’s determination that Garcia was not persecuted on
account of her membership in social groups comprised of her
family or property owners.
As an initial matter, because the Board assumed without
explicitly deciding that Garcia’s social groups comprised of
her family or property owners were cognizable, the panel
assumed for the sake of argument that both social groups
were cognizable.
The panel held that the Board erred in concluding that
Garcia failed to establish a nexus between her persecution
and her status as a property owner. The panel explained that
it read the Board’s decision as recognizing that property
ownership was a cause—and moreover, the real reason—
Garcia was targeted, but still found that she was not targeted
“on account of” property ownership. The panel wrote that
under this court’s case law, it is sufficient under mixed-
motive precedent for the petitioner to show that a protected
ground was a cause of the persecutors’ acts.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
NARANJO GARCIA V. WILKINSON 3
The panel held that the Board also erred in its analysis of
nexus based on Garcia’s family association. Observing that
there is a fine line between showing “animus” toward family,
which does establish nexus, and “purely personal
retribution,” which does not, the panel wrote that the Board’s
analysis of this issue ignored pertinent and uncontroverted
evidence. The panel wrote that sweeping retaliation towards
a family unit over time, such as was the case here, can
demonstrate a kind of “animus” distinct from “purely
personal retribution.” The panel explained that such
targeting is sufficient to demonstrate nexus if the petitioner
shows via uncontradicted testimony that persecutors
specifically sought out the particular social group of family.
The panel remanded for the agency to clarify its asylum
nexus determination, and to analyze in the first instance
whether Garcia’s property ownership or family membership
are cognizable social groups in this context, and whether the
other elements of Garcia’s asylum claim were satisfied. The
panel also remanded Garcia’s withholding claim because the
Board’s decision was inconsistent with any serious analysis
of the difference between the “one central reason” nexus
standard for asylum relief, and the “a reason” standard for
withholding relief.
The panel held that substantial evidence supported the
Board’s denial of CAT protection because Garcia failed to
establish a clear probability of being tortured if returned to
Mexico.
4 NARANJO GARCIA V. WILKINSON
COUNSEL
Sarah A. Nelson (argued), Certified Law Student; Thomas
V. Burch and Anna W. Howard, Supervising Attorneys;
University of Georgia School of Law, Athens, Georgia, for
Petitioner.
Jessica D. Strokus (argued), Trial Attorney; Anthony C.
Payne, Assistant Director; Joseph H. Hunt, Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
GOULD, Circuit Judge:
Alicia Naranjo Garcia (“Garcia”) is a native and citizen
of Mexico. Garcia petitions for review of the Board of
Immigration Appeals (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) denial of her application for
asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). The Knights
Templar, a local drug cartel, murdered Garcia’s husband,
twice threatened her life, and forcibly took her property in
retaliation for helping her son escape recruitment by fleeing
to the United States. We have jurisdiction under 8 U.S.C.
§ 1252, and we grant the petition in part and remand.
I
In 2012, while Garcia was living in Apatzingán,
Michoacán, Mexico, members of the Knights Templar drug
cartel (“the Templars”) kidnapped her husband. The cartel
sought property Garcia’s husband had inherited from his
NARANJO GARCIA V. WILKINSON 5
parents. The cartel kept him for two days, letting him go
when he agreed to turn over the deed to a house he owned in
Apatzingán, which was different from the house in which he
and Garcia lived. One month later, after Garcia’s husband
had already turned the property over, he was found dead
from a gunshot at the base of his skull with his body left near
the home that he and Garcia shared. Garcia told police
officers about her husband’s property dispute with the cartel.
Garcia spoke at her husband’s funeral, asserting that the
Templars were responsible for his death. A local cartel
leader then “called [her] out and told [her] not to be saying”
that the Templars killed her husband, that what was at stake
was her and her children’s well-being, and implied that if she
did not say anything they would “let [her] live there in
peace.” For the next five-and-a-half years, Garcia said
nothing, and the Templars did not “bother” her. The police
never arrested anyone in connection with Garcia’s husband’s
death.
Garcia has two children, both of whom are United States
citizens and live in the United States. 1 In August 2017,
Garcia’s 18-year-old son went to Mexico to visit her. In
February 2018, cartel members targeted Garcia again when
they tried to recruit her son into the Templar ranks after
finding out that he was in Mexico. Garcia learned of the
cartel’s recruitment efforts and helped him to escape by
buying a plane ticket for him to return to the United States.
Shortly thereafter, on April 25, 2018, two cartel members
came to Garcia’s family home to tell her that she “only had
a month to leave.” From experience with the cartels, Garcia
1
Garcia and her husband previously entered the United States
without inspection in 1997. She left and returned to Mexico in 2005.
Her two children were born in the United States during that period.
6 NARANJO GARCIA V. WILKINSON
knew that if she disobeyed, cartel members would kill her.
The cartel members told her that “once [she] left, they would
keep the property,” referring to the house in which she was
currently living. In response to the cartel’s threats, Garcia
left Mexico on May 13, 2018. She knew that when the cartel
says they are going to take property, “they just say it, and
then they keep it.” Garcia did not report the Templars’ threat
to the police because she thought the Templars would find
out and she feared what would happen if they did.
Garcia entered the United States on May 21, 2018. On
June 20, 2018, the Department of Homeland Security
initiated removal proceedings by filing a Notice to Appear
(“NTA”) in immigration court, charging Garcia with
inadmissibility under INA § 212(a)(7)(A)(i)(I), 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). On July 17, 2018, Garcia appeared
before an immigration judge (“IJ”) and conceded the
allegations in the NTA. The IJ sustained the charge of
inadmissibility. On August 16, 2018, Garcia submitted an I-
589, Application for Asylum and for Withholding of
Removal.
On September 28, 2018, Garcia appeared pro se before
an IJ for an individual hearing on the merits of her
application. Garcia testified to the Templars’ role in her
husband’s murder, her son’s fleeing to the United States, and
the loss of her family’s property. Garcia also testified that
she did not feel she would be safe anywhere else in Mexico
because of the Templars’ threats. She has no family in
Mexico outside of Michoacán and her children all live in the
United States. She testified that she did not believe she could
live with her parents in Michoacán, the area where she
previously lived and her husband was killed, because if she
went “to live with them, then [the Templars are] going to
start taking it out on [her parents] too.” When asked if she
NARANJO GARCIA V. WILKINSON 7
could live in Mexico City, Garcia stated that she didn’t
know, but would be “scared,” and that “[w]herever you go,
right away [the Templars] find out.”
When asked about other family members, Garcia
testified that her brother, Pedro Naranjo Garcia (“Pedro”),
had worked for the Templars and was currently incarcerated
in Morelia, Michoacán, Mexico. At the time, Garcia
believed Pedro had served three years of what she thinks is
a 45-year sentence. The record does not specify for what
crime Pedro was convicted. Garcia also testified that she has
a nephew who was killed by an unknown assailant on
December 9, 2009.
Despite finding Garcia’s testimony credible, the IJ
denied her any relief. The IJ said: “Whether specifically
mentioned or not, the court has considered all of the
testimony and documentary evidence contained in the
application in this decision.” The IJ incorporated by
reference an addendum of law discussing the relevant legal
standards for asylum, withholding of removal, and CAT
protection.
The IJ found that two events to which Garcia testified
qualified as persecution: (1) the Templars’ 2012 death threat
after her husband’s funeral, when combined with her
husband’s murder; and (2) the cartel’s 2018 threats in
connection with leaving her home. But even though Garcia
demonstrated past persecution, the IJ denied relief because
the IJ concluded that these threats were not made “on
account of” any protected ground. Instead, the IJ found that
the cartel persecuted Garcia because it “wanted either her
property or . . . found an excuse by her son’s defiance of the
recruitment over him to also get rid of [her] and displace her
from her property.” The IJ noted that Garcia, proceeding pro
se, “did not claim membership in a particular social group,”
8 NARANJO GARCIA V. WILKINSON
and that she provided insufficient testimony or evidence that
she was threatened “because she was a family member of her
husband.” Also, the IJ determined that Garcia could not
show that Mexican governmental officials were unable or
unwilling to control the cartel. As a result, the IJ decided
that Garcia was not entitled to a presumption of future
persecution.
Without that presumption, the IJ then found that Garcia’s
fear of future persecution was subjectively, but not
objectively, reasonable. In so deciding, the IJ noted that
Garcia did not report the 2012 and 2018 death threats to the
police, and she did not show that it would be unreasonable
for her to relocate elsewhere within Mexico. Because of
that, the IJ denied Garcia’s asylum application. The IJ also
denied Garcia’s withholding of removal claim, finding that
because she did not meet the threshold showing for asylum,
she could not have met “the more stringent requirement for
withholding.” Finally, the IJ denied Garcia’s CAT
application, finding that she was unable to show it was more
likely than not that she will be tortured in Mexico, because
the Mexican government “fights corruption” and “was able
to apprehend at least one cartel member and sentence him
for 45 years as evidenced by the case of her own brother.”
Garcia timely appealed the IJ’s decision to the Board of
Immigration Appeals (“BIA”). Garcia, who was represented
by counsel in that appeal, contended that she was persecuted
on account of her membership in social groups consisting of
(1) her family and (2) property owners. The BIA accepted
for the sake of argument that these were cognizable social
groups but nonetheless affirmed the IJ’s determinations on
Garcia’s asylum, withholding, and CAT claims. The BIA
reasoned as follows:
NARANJO GARCIA V. WILKINSON 9
First, the BIA denied Garcia’s asylum claim solely on
the nexus ground, holding that she was not persecuted “on
account of” any protected ground. The BIA stated that it
would “express no opinion” about the IJ’s other reasons for
denying this relief. Second, the BIA denied her withholding
of removal claim, stating that: “As [Garcia] did not satisfy
the lower standard of proof for asylum, it necessarily follows
that she did not satisfy the more stringent standard for
withholding of removal.” The BIA rejected Garcia’s
contention that the IJ’s analysis of this issue was too cursory
or used the wrong legal standard, noting that the addendum
of law the IJ incorporated into her oral decision explicitly
recognized the difference in the nexus inquiry between
asylum and withholding of removal (“one central reason” as
opposed to “a reason,” respectively). Third, and finally, the
BIA denied Garcia’s request for CAT relief by concluding
that the IJ “did not clearly err in predicting the likelihood of
[Garcia’s] future torture in Mexico, even considering the
prior threats.”
This timely petition for review followed.
II
Because the BIA conducted a de novo review of the IJ’s
decision, our review is “limited to the BIA’s decision except
to the extent that the IJ’s opinion is expressly adopted [by
the BIA].” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.
2006) (citation omitted). “Where, as here, the BIA has
reviewed the IJ’s decision and incorporated portions of it as
its own, we treat the incorporated parts of the IJ’s decision
as the BIA’s.” Molina-Estrada v. INS, 293 F.3d 1089, 1093
(9th Cir. 2002). In reviewing the BIA’s decisions, we
consider only the grounds relied upon by that agency. “If we
conclude that the BIA’s decision cannot be sustained upon
its reasoning, we must remand to allow the agency to decide
10 NARANJO GARCIA V. WILKINSON
any issues remaining in the case.” Regalado-Escobar v.
Holder, 717 F.3d 724, 729 (9th Cir. 2013) (citation omitted).
We examine the BIA’s “legal conclusions de novo and
its factual findings for substantial evidence.” Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017)
(en banc) (citations omitted). 2 Substantial evidence review
means that the BIA’s determinations will be upheld “if the
decision is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.”
Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir. 2008)
(quotation marks and citation omitted). We may only
reverse the agency’s determination where “the evidence
compels a contrary conclusion from that adopted by the
BIA.” Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010).
“While this standard is deferential, ‘deference does not mean
blindness.’” Parada v. Sessions, 902 F.3d 901, 909 (9th Cir.
2
Garcia argues that the BIA’s asylum and withholding of removal
determinations should be reviewed de novo. Although we typically
review these determinations for substantial evidence, there is support in
our cases for Garcia’s position that de novo review applies here. When
an applicant is deemed credible, we have considered nexus issues to be
questions of law entitled to de novo review. See Singh v. Ilchert, 63 F.3d
1501, 1506 (9th Cir. 1995) (reviewing de novo the BIA’s decision that
the petitioner was not persecuted “on account of” imputed political
opinion when the IJ made a favorable credibility finding), superseded by
statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d
734, 739–40 (9th Cir. 2009); see also Baghdasaryan v. Holder, 592 F.3d
1018, 1022 n.4 (9th Cir. 2010) (citing Singh v. Ilchert for the proposition
that nexus issues have been reviewed de novo when the applicant is
deemed credible but declining to decide the issue). Because Garcia’s
petition for review should be granted as to her asylum and withholding
claims under either standard, it is unnecessary to reach the issue of
whether we review those determinations de novo or for substantial
evidence.
NARANJO GARCIA V. WILKINSON 11
2018) (quoting Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir.
2004) (en banc)).
III
As a removable noncitizen, Garcia bears the burden of
demonstrating asylum eligibility by showing that she is a
refugee within the meaning of the Immigration &
Nationality Act (“INA”). INA § 208(b)(1)(B)(i), 8 U.S.C.
§ 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a). A “refugee” is
defined as any person who is unwilling or unable to return to
her home 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.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A).
The applicant must demonstrate a nexus between her past or
feared harm and a protected ground. Barajas-Romero v.
Lynch, 846 F.3d 351, 359–60 (9th Cir. 2017). Specifically,
the protected characteristic must be “a central reason” for the
past or feared harm. Id. If the applicant can demonstrate
past persecution by showing persecution and nexus, a
rebuttable presumption arises that she has a well-founded
fear of future persecution. 8 C.F.R. § 1208.13(b)(1). An
applicant who has not shown past persecution may still
qualify for asylum if she can show her claimed fear of future
persecution is both “subjectively genuine” and “objectively
reasonable.” Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th
Cir. 2007) (en banc).
The BIA did not disturb the IJ’s finding that Garcia is
credible. Accordingly, we view her as credible and must
accept Garcia’s testimony as true. See Kalubi v. Ashcroft,
364 F.3d 1134, 1137 (9th Cir. 2004) (“Testimony must be
accepted as true in the absence of an explicit adverse
credibility finding.”). The BIA also did not disagree with
the IJ’s determination that the Templars’ death threats in
12 NARANJO GARCIA V. WILKINSON
2012 and 2018, when combined with Garcia’s husband’s
murder, qualified as persecution. But the IJ concluded that
Garcia did not prove past persecution because the threats
were not made “on account of” any protected ground,
thereby precluding Garcia from taking advantage of a
rebuttable presumption that she has a well-founded fear of
future persecution. On appeal, the BIA accepted for the sake
of argument that family membership and property ownership
were cognizable social groups, but the BIA denied Garcia’s
asylum claim by affirming the IJ’s decision that she was not
persecuted “on account of” any protected ground. The BIA
declined to express an opinion about the IJ’s other reasons
for denying asylum. Because we may consider only the
grounds relied upon by that agency, Regalado-Escobar,
717 F.3d at 729, this petition for review turns primarily on
the issue of nexus.
A
We first conclude that substantial evidence does not
support the BIA’s conclusion that Garcia was not persecuted
“on account of” her membership in a particular social group.
Garcia contends that she is a member of two particular
social groups: family association and property ownership.
The BIA assumed without explicitly deciding that these two
groups are cognizable protected grounds. The BIA then
determined that, even if Garcia’s alleged groups were
cognizable, she had failed to establish a nexus. Because we
are bound to consider “only the grounds relied upon by th[e]
agency,” we also assume for the sake of argument that these
are both cognizable social groups for purposes of evaluating
the BIA’s nexus determination. Regalado-Escobar,
717 F.3d at 729.
NARANJO GARCIA V. WILKINSON 13
If removed to Mexico, Garcia fears she will be
persecuted on account of family association and property
ownership. To prevail, Garcia must show that either family
association or property ownership was “one central reason”
for the persecution she experienced. See 8 U.S.C.
§ 1158(b)(1)(B)(i). That issue is not simple because of the
possibility of mixed motives: “People, including
persecutors, often have mixed motives.” Barajas-Romero,
846 F.3d at 357. Our mixed-motive cases make clear that
the petitioner need not show that the protected ground was
the only reason for persecution. See Parussimova v.
Mukasey, 555 F.3d 734, 742 (9th Cir. 2009) (recognizing
that “persecutors are hardly likely to submit declarations
explaining exactly what motivated them to act” (citation
omitted)). We explained further:
[A] motive is a “central reason” if the
persecutor would not have harmed the
applicant if such motive did not exist.
Likewise, a motive is a “central reason” if
that motive, standing alone, would have led
the persecutor to harm the applicant. . . .
[P]ersecution may be caused by more than
one central reason, and an asylum applicant
need not prove which reason was dominant.
Nevertheless, to demonstrate that a protected
ground was “at least one central reason” for
persecution, an applicant must prove that
such ground was a cause of the persecutors’
acts.
Id. at 741.
The source of Garcia’s feared persecution is the
Templars drug cartel. An applicant’s uncontroverted
14 NARANJO GARCIA V. WILKINSON
credible testimony as to the persecutor’s motive may be
sufficient to establish nexus. See, e.g., Parada v. Sessions,
902 F.3d 901, 910 (9th Cir. 2018) (petitioner’s credible
testimony established that the persecution he and his family
suffered was “on account of” his family’s government and
military service). In this case, the evidence submitted by
Garcia was compelling. Garcia credibly testified that the
Templars killed her husband even after he had handed over
his property, threatened her and her children when she spoke
out about her husband’s murder, tried to recruit her son into
its ranks, ordered her to leave when she helped her son
escape, threatened to harm her if she did not leave within one
month, and told her the cartel would keep her property when
she left.
On all of these important points, the BIA accepted
Garcia’s credible testimony and even agreed with the IJ that
Garcia was targeted because the cartel either (1) “wanted to
obtain [her family] properties as part of their criminal
scheme,” or (2) “found an excuse by her son’s defiance of
the recruitment over him to also get rid of [Garcia] and
displace her from her property.” As we read its decision, the
BIA recognized that property ownership was a cause—and
moreover, the real reason—Garcia was targeted, but it still
found that she was not targeted “on account of” property
ownership. But to the contrary, under our case law, it is
sufficient under our mixed-motive precedent for the
petitioner to show that a protected ground “was a cause of
the persecutors’ acts.” See Parussimova, 555 F.3d at 741.
Because the BIA concluded that Garcia failed to establish a
nexus between her persecution and her status as a property
owner despite acknowledging the ways in which Garcia’s
property ownership played an important role in her
persecution, we hold that the BIA erred in its nexus analysis.
We remand for the agency to clarify its decision and to
NARANJO GARCIA V. WILKINSON 15
analyze in the first instance whether property ownership is a
cognizable social group in this context, and whether the
other elements of Garcia’s asylum claim are satisfied.
B
The BIA’s analysis of whether Garcia was persecuted on
account of family association was also flawed. Again, the
BIA assumed that family membership was a cognizable
protected ground. The BIA’s decision acknowledges that if
Garcia had shown evidence of “animus” towards her family,
then she would have demonstrated nexus to a protected
ground. Agreeing with the BIA, the Government argues that
neither personal retribution nor being a family member of an
individual who resisted gang recruitment establishes nexus.
See Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir.
2001) (finding that “[p]urely personal retribution” is not
persecution “on account of” a protected ground); Henriquez-
Rivas v. Holder, 707 F.3d 1081, 1092–93 (9th Cir. 2013)
(noting that general opposition to gangs and gang
recruitment are not protected grounds). True enough, but the
line between “animus” (providing nexus) and “purely
personal retribution” (no nexus) is a fine one, and the BIA’s
analysis ignores pertinent and uncontroverted evidence.
Our decision in Parada v. Sessions—concluding that
substantial evidence did not support the BIA’s determination
that Quiroz Parada was not persecuted “on account of”
family association—is instructive. See 902 F.3d at 910.
Quiroz Parada or members of his family had experienced
murder, physical assault, home invasions, and specific death
threats. Id. at 909. We held that the BIA’s “glib
characterization” of Quiroz Parada’s experience as “threats
against his family and attempt[s] to recruit him” was
insufficient to explain a finding of no nexus to family
association because Quiroz Parada’s “credible testimony”
16 NARANJO GARCIA V. WILKINSON
had established that members of a guerrilla political party,
FMLN, “specifically sought out the ‘particular social group’
of his family.” Id. at 909–10. It was “immaterial” that the
FMLN’s attempts to conscript Quiroz Parada would have
served the “dual goals” of pursuing their political objectives
“and of retaliating against the Quiroz Parada family”
because “the latter is a protected ground, even if the former
is not.” Id. at 911; see also Salgado-Sosa v. Sessions,
882 F.3d 451, 458 (4th Cir. 2018) (concluding that
petitioner’s kinship ties were a central reason for the harm
he feared, and also concluding that “the IJ and BIA erred by
focusing narrowly on the ‘immediate trigger’ for MS-13’s
assaults—greed or revenge—at the expense of . . . the very
relationships that prompted the asserted persecution”).
Garcia or members of her family similarly have
experienced murder, specific death threats, forcible taking of
property, attempted conscription, and retaliation for failed
conscription. Furthermore, the timing of the persecution and
statements by the persecutor may constitute circumstantial
evidence of motive. See Deloso v. Ashcroft, 393 F.3d 858,
865–66 (9th Cir. 2005) (timing); Gafoor v. INS, 231 F.3d
645, 651–52 (9th Cir. 2000) (persecutor statements),
superseded by statute on other grounds as stated by
Parussimova, 555 F.3d at 739–40. The cartel in part targeted
Garcia’s husband to obtain his property, but Garcia’s
husband was still killed even after he had turned over the
property deed, which suggests the cartel may have targeted
him for reasons beyond the possibility of stealing his
property. Beyond that, the cartel then sought out Garcia at
her husband’s funeral, a uniquely family affair, threatening
her so that she would remain silent about his death. Parada,
902 F.3d at 910. The cartel sought out Garcia once again
after she helped her son escape to the United States to avoid
the Templars’ recruitment efforts. In this coercive effort, the
NARANJO GARCIA V. WILKINSON 17
Templars forced her from her home and took her property.
Parada indicates that such sweeping retaliation towards a
family unit over time can demonstrate a kind of animus
distinct from “purely personal retribution.” See id. This
kind of targeting is sufficient to demonstrate nexus if the
petitioner shows via uncontradicted testimony that
persecutors “specifically sought out the ‘particular social
group’ of his family.” Id. We therefore conclude that the
BIA erred in its nexus analysis, and we remand for the
agency to clarify its decision and to analyze in the first
instance whether Garcia’s family membership is a
cognizable social group in this context, and whether the
other elements of Garcia’s asylum claim are satisfied. See
Baghdasaryan v. Holder, 592 F.3d 1018, 1023, 1025–26
(9th Cir. 2010) (holding the BIA erred in holding that
petitioner had failed to establish nexus where it “ignored”
concrete evidence that a protected ground motivated the
petitioner’s persecution).
IV
We next conclude that the BIA erred in its analysis of
Garcia’s withholding of removal claim by erroneously
conflating the nexus standard for withholding with the nexus
standard for asylum. We review de novo whether the BIA
applied the wrong legal standard to Garcia’s withholding of
removal claim. Bringas-Rodriguez, 850 F.3d at 1059.
The Attorney General must, in general, withhold
removal of a noncitizen if the noncitizen’s life or freedom
would be threatened “because of [their] race, religion,
nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A); see also INS
v. Stevic, 467 U.S. 407, 424–25 (1984). To succeed, an
applicant must show a “clear probability” of persecution
because of a protected ground. Stevic, 467 U.S. at 429–30.
18 NARANJO GARCIA V. WILKINSON
Demonstrating a clear probability “requires objective
evidence that it is more likely than not that the [noncitizen]
will be subject to persecution upon deportation.” Zehatye v.
Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006). A person
seeking asylum has the burden of proving that their
persecution was “on account of” a protected ground, see
8 U.S.C. § 1101(a)(42)(A), while a withholding of removal
applicant must prove that her life or freedom would be
threatened “because of” a protected characteristic, 8 U.S.C.
§ 1231(b)(3)(A). “The words ‘on account of’ and ‘because
of’ address the persecutor’s motive for persecuting the
victim.” Barajas-Romero, 846 F.3d at 357. An asylum
applicant must demonstrate that a protected ground was “at
least one central reason” for her persecution. 8 U.S.C.
§ 1158(b)(1)(B)(i). A withholding of removal applicant, on
the other hand, must prove only that a cognizable protected
ground is “a reason” for future persecution. Barajas-
Romero, 846 F.3d at 359.
The “clear probability” standard for withholding is a
more stringent burden of proof than the standard for asylum,
which does not require that the applicant demonstrate that
harm would be more likely than not to occur. See id. But
the requirement that an applicant demonstrate that a
protected characteristic would be “a reason” for future
persecution is a “weaker motive” than the “one central
reason” required for asylum. Id. “A person may have ‘a
reason’ to do something that is not his ‘central’ reason or
even ‘one central reason.’” Id. Thus, although the overall
standard of proof is more difficult to meet in withholding
cases, the motive for persecution is easier to show. See id.
at 360 (“Since in withholding the petitioner must show a
probability, not just a well-founded fear, of persecution,
Congress may have diluted the nexus requirement in order
NARANJO GARCIA V. WILKINSON 19
to afford more protection against mistaken deportations
where a protected ground played into that likelihood.”).
Garcia contends that the BIA applied an erroneous legal
standard to its nexus analysis for her withholding of removal
claim, warranting remand. We agree. In Barajas-Romero v.
Lynch, we held that the phrase “a reason” includes “weaker
motives” than “one central reason.” Id. at 359. Because the
BIA had erroneously used the “one central reason” standard
to decide the applicant’s withholding claim, we remanded to
the BIA to decide the case under the correct “a reason”
standard. Id. at 360. We explained that Congress had
amended the asylum statute in 2009 to clarify that the burden
of proof for persecutor motive is “at least one central
reason.” Id. at 358 (citing 8 U.S.C. § 1158(b)(1)(B)(i)).
Because Congress had not chosen to also amend the
withholding statute to adopt that standard, we stressed that
Congress’s choice to keep the “a reason” standard for
withholding “appears to have been the product of a
deliberate choice, rather than a mere drafting oversight.” Id.;
see also Kucana v. Holder, 558 U.S. 233, 249 (2010)
(“Where Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”).
The difference between the motive standards matters,
particularly in cases like this one, in which the BIA’s
decision turns on its nexus determination. Barajas-Romero
underscores the importance of understanding the proper
nexus inquiry in close cases. There, the evidence suggested
that the police had initially kidnapped and tortured the
petitioner to extort money from him, but when he voiced a
political opinion during his kidnapping, the torture arguably
intensified and became worse. Id. at 360. The government
20 NARANJO GARCIA V. WILKINSON
argued that the police were not aware of his political
opinions before abusing him, so his persecution could not
have been “on account of” his political opinions. Id. We
explained, however, that the evidence was “not
unambiguous” on this point, such that a remand of the
petitioner’s withholding of removal claim was proper for the
BIA to consider whether application of the correct nexus
standard might cause a different outcome. Id. Because the
evidence in Garcia’s case is similarly “not unambiguous,”
we remand to the BIA.
The Government contends that the BIA “plainly applied”
the different withholding nexus standard by citing to the IJ’s
boilerplate addendum of law. We reject that contention.
Although the BIA decision cited the IJ’s addendum of law
and our Barajas-Romero decision, which distinguished
between the “one central reason” and “a reason” standards,
the BIA’s analysis is inconsistent with any serious
consideration of the difference. In denying Garcia’s
withholding of removal claim, the BIA here stated: “As
[Garcia] did not satisfy the lower standard of proof for
asylum, it necessarily follows that she did not satisfy the
more stringent standard for withholding of removal.”
(emphasis added). Even though the BIA followed this
statement with a paragraph explaining that the standards are
different, the BIA’s use of “necessarily follows”
demonstrates a type of piggy-backing analysis that we now
reject as inconsistent with the statutory text and Barajas-
Romero.
V
Finally, we conclude that substantial evidence does
support the BIA’s denial of CAT relief. To gain CAT relief,
Garcia had the burden to prove that it is more likely than not
that (1) she, in particular, would be (2) subject to harm
NARANJO GARCIA V. WILKINSON 21
amounting to torture (3) by or with the acquiescence of a
public official, if removed. 8 C.F.R. § 1208.16(c)(2);
Wakkary v. Holder, 558 F.3d 1049, 1067–68 (9th Cir. 2009).
While the same “more likely than not” standard applies to
CAT protection as withholding of removal under INA § 241,
8 U.S.C. § 1231, CAT applicants must demonstrate that the
feared harm is greater in that it must rise to the level of
torture. Tamang v. Holder, 598 F.3d 1083, 1095 (9th Cir.
2010). That is not a minor distinction. Torture is defined as
“any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted . . . .” 8 C.F.R.
§ 1208.18(a)(1). “Torture is an extreme form of cruel and
inhuman treatment and does not include lesser forms of
cruel, inhuman or degrading treatment or punishment that do
not amount to torture.” 8 C.F.R. § 1208.18(a)(2). Protection
“under CAT is based entirely on an objective basis of fear;
there is no subjective component to [an applicant’s] fear of
torture.” Tamang, 598 F.3d at 1095. Thus, speculative fear
of torture is not sufficient to satisfy the applicant’s burden.
Matter of V-X-, 26 I. & N. Dec. 147, 154 (BIA 2013).
Substantial evidence supports the BIA’s determination
that there is not a greater than fifty percent chance that
Garcia will experience torture if removed. The agency’s fact
finding is conclusive unless a reasonable adjudicator would
be compelled to conclude to the contrary. INA
§ 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). The BIA here
concluded that the IJ did not err in predicting Garcia’s
likelihood of future torture “even considering the prior
threats, given that [Garcia] was never physically harmed by
anyone in Mexico, did not attempt to relocate within
Mexico, the Templars is the only cartel that she has had
problems with, and the Mexican government is taking steps
to combat corruption and cartel violence.” The BIA could
22 NARANJO GARCIA V. WILKINSON
have reasonably given weight to the fact that Garcia lived
peacefully in Michoacán between 2012 and 2018, when the
Templars did not “bother[]” her. Garcia testified that she
believed she would not be safe living with her parents
elsewhere in Mexico, and that she was not sure if she could
live peacefully in Mexico City, but a speculative fear of
torture is insufficient to satisfy the “more likely than not”
standard. See Cole v. Holder, 659 F.3d 762, 770 (9th Cir.
2011). The record does not compel the conclusion that
Garcia will more likely than not be tortured if removed to
Mexico, and for that reason we must deny relief on
Petitioner’s CAT claim. 3
VI
For these reasons, we conclude that the BIA erred in its
nexus analysis for both Garcia’s asylum claim and her
withholding of removal claim. We remand with instructions
for the BIA to reconsider Garcia’s asylum claim, and for the
BIA to consider whether Garcia is eligible for withholding
of removal under the proper “a reason” standard. We deny
the petition as it relates to Garcia’s claim for relief under
CAT.
PETITION GRANTED IN PART; REMANDED.
3
Because that reason alone precludes CAT relief, we need not and
do not reach any issue related to government acquiescence in or willful
blindness to torture.