Doris Rodriguez-Zuniga v. Merrick Garland ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DORIS AMANDA RODRIGUEZ- No. 19-72024
ZUNIGA; NELSON GABRIEL
TOBAR-RODRIGUEZ, Agency Nos.
Petitioners, A209-217-710
A209-217-711
v.
MERRICK B. GARLAND, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 20, 2022
San Francisco, California
Filed June 7, 2023
Before: Ronald Lee Gilman,* Consuelo M. Callahan, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge VanDyke;
Dissent by Judge Gilman
*
The Honorable Ronald Lee Gilman, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 RODRIGUEZ-ZUNIGA V. GARLAND
SUMMARY**
Immigration
The panel denied Doris Amanda Rodriguez-Zuniga’s
and her son Nelson Gabriel Tobar-Rodriguez’s petition for
review of the Board of Immigration Appeals’ dismissal of
their appeal of an immigration judge’s denial of asylum and
related relief.
Rodriguez-Zuniga testified that she was afraid to return
to Guatemala because a woman had attempted to rob her
after she withdrew money from a bank. The woman told
Rodriguez-Zuniga that she targeted her because Rodriguez-
Zuniga had family in the United States and a lot of
money. The woman also threatened that Rodriguez-
Zuniga’s son would “pay for it” due to Rodriguez-Zuniga’s
refusal to give her the money. Rodriguez-Zuniga and her
son asserted that she had suffered past persecution and had a
well-founded fear of future persecution on account of her
political opinion of refusing to submit to violence by
criminal groups or gangs, and their claimed membership in
three particular social groups: “Guatemalan families that
lack an immediate family male protector,” “Guatemalan
women,” and “immediate family members of Doris Amanda
Rodriguez-Zuniga.”
Because the record did not compel the conclusion that
Guatemalan society perceived it as a distinct group, the panel
held that Rodriguez-Zuniga failed to show that the agency
erred in concluding that her proposed social group
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
RODRIGUEZ-ZUNIGA V. GARLAND 3
comprised of “Guatemalan families that lack an immediate
family male protector” was not cognizable. The panel also
concluded that substantial evidence supported the agency’s
determination that Rodriguez-Zuniga had not expressed a
political opinion. The panel explained that Rodriguez-
Zuniga’s refusal to give money to the threatening robber was
not evidence of a “conscious and deliberate” decision that
would naturally result in attributing a political position to
her, and that she instead simply reacted to being robbed.
Absent some evidence that Rodriguez-Zuniga expressed a
political opinion beyond merely her resistance to being
robbed, the panel concluded that the agency did not err in
determining that she failed to establish nexus to a political
opinion.
Turning to Rodriguez-Zuniga’s family social group
claim, the panel concluded that the murder of Rodriguez-
Zuniga’s cousin and her cousin’s son because they refused
to pay the gangs did not compel any conclusion about the
robber’s motivation in Rodriguez-Zuniga’s case. The panel
further concluded that Rodriguez-Zuniga failed to establish
a nexus to her family membership based on the robber’s
threats to her son to get her to pay money. The panel wrote
that to establish a nexus between her family membership and
her harm, Rodriguez-Zuniga had to show that her family
membership was a reason motivating the robber to target
her. The panel explained that where the record indicates that
the persecutor’s actual motivation for threatening a person is
to extort money from a third person, the record does not
compel finding that the persecutor threatened the target
because of a protected characteristic such as family relation.
Even assuming for the sake of argument that the harm
against Rodriguez-Zuniga’s son could support her own
asylum claim, the panel held that Rodriguez-Zuniga failed to
4 RODRIGUEZ-ZUNIGA V. GARLAND
make the required showing of nexus. The panel explained
that substantial evidence supported the agency’s finding that
the robber threatened Rodriguez-Zuniga’s son only as an
instrumental means to obtain money, and that the robber was
not motivated intrinsically by the son’s familial relationship
to Rodriguez-Zuniga. Rather, the robber targeted the son for
the same reason she would target, for example, the
petitioner’s life-long friend if the opportunity arose—merely
because she thought Rodriguez-Zuniga cared about that
person and thus the robber could use threats against that
person as a means of obtaining money from Rodriguez-
Zuniga. The panel explained that the extorted person’s
motivation to give the money because they care for their
family member does not transform the persecutor’s
motivation from money to actual animus against a protected
characteristic.
The panel also rejected Rodriguez-Zuniga’s “extortion-
plus” claim under Ayala v. Sessions, 855 F.3d 1012 (9th Cir.
2017). The panel explained that “extortion-plus” is simply
the recognition that a persecutor can hold multiple motives
for harming someone. However, unlike in Ayala, in this case
the agency made no erroneous legal conclusion that
extortion could not constitute persecution regardless of other
motives. Instead, the agency expressly concluded there were
no other such motives.
The panel held that the remainder of Rodriguez-Zuniga’s
evidence from country conditions reports did not compel the
conclusion that Rodriguez-Zuniga established an objectively
reasonable fear of future persecution. While recognizing
that there is no categorical rule that the failure to establish a
nexus for past persecution forecloses nexus for future
persecution, the panel did not read the IJ’s decision as
necessarily applying such a categorical rule. The panel
RODRIGUEZ-ZUNIGA V. GARLAND 5
wrote that even if the IJ erred in applying some categorial
rule, the BIA did not, and instead addressed them as two
independent inquiries.
Finally, the panel concluded that by failing to adequately
address the issue in her opening brief, Rodriguez-Zuniga had
forfeited any argument that the agency incorrectly found she
would not suffer torture with the consent or acquiescence of
the government. Because a petitioner can state a claim for
CAT relief only if she shows that the government would
acquiesce in her torture, the panel concluded that Rodriguez-
Zuniga’s failure to contest this point was fatal to her claim.
Dissenting, Judge Gilman disagreed with the majority’s
conclusion that petitioners failed to establish nexus based on
their family membership. Because Nelson’s would-be
persecutors were interested in him only because of his
relationship to his mother, in Judge Gilman’s view, he
satisfied both the “a reason” nexus standard for withholding
of removal and the “one central reason” nexus standard for
asylum.
Judge Gilman also wrote that the majority’s nexus
holding with respect to Rodriguez-Zuniga conflicted with
this court’s decision in Ayala. Judge Gilman wrote that
nowhere in Ayala does the court suggest that a showing of
“animus” on the part of the persecutor is necessary. Judge
Gilman also explained that, unlike in Ayala, in this case there
was no ambiguity as to why Rodriguez-Zuniga was
targeted. Rodriguez Zuniga’s potential persecutors knew
her identity and the identities of her family members, and
their representative targeted Rodriguez-Zuniga using her
relationship to her son and because of her relationship to her
husband. Additionally, Judge Gilman wrote that by
eliminating a petitioner’s ability to establish a nexus to a
6 RODRIGUEZ-ZUNIGA V. GARLAND
protected ground where the persecutor’s actual motivation
for threatening a person is to extort money from a third
person, the majority departs from this court’s precedents that
affirm the principle that people, including persecutors, often
have mixed motives.
Judge Gilman wrote that the majority also failed to hold
the agency accountable for several procedural missteps,
including the agency’s failure to independently analyze the
likelihood that petitioners would be subjected to future harm,
failure to properly consider Rodriguez-Zuniga’s political
opinion claim, failure to consider all evidence relevant to the
possibility of future torture, including based on her gender,
and the agency’s application of too narrow a government
acquiescence standard. Judge Gilman also disagreed that
petitioners had forfeited the government acquiescence issue.
COUNSEL
Roger Sismaet Green (argued) and Jenny Tsai, Green &
Tsai, San Francisco, California, for Petitioners.
Timothy B. Stanton (argued) and Kristen H. Blosser, Trial
Attorneys; Sabatino F. Leo, Senior Litigation Counsel;
Joseph H. Hunt, Assistant Attorney General, Civil Division;
Office of Immigration Litigation, United States Department
of Justice; Washington, D.C.; for Respondent.
RODRIGUEZ-ZUNIGA V. GARLAND 7
OPINION
VANDYKE, Circuit Judge:
Doris Amanda Rodriguez-Zuniga petitions for review of
the decision of the Board of Immigration Appeals (BIA)
dismissing her appeal from the removal order of the
Immigration Judge (IJ). The heart of Rodriguez-Zuniga’s
petition is her fear that, because she experienced an
attempted robbery in her native country, she will be subject
to persecution in the future. But fear of generalized crime is
not a sufficient basis for asylum or withholding of removal,
nor do her other arguments show that she is entitled to relief.
We have jurisdiction under 8 U.S.C. § 1252 and deny her
petition.
I. BACKGROUND
In June 2016, Rodriguez-Zuniga and her son, Nelson
Gabriel Tobar-Rodriguez, entered the United States without
valid entry documents. They are both citizens and natives of
Guatemala. Soon after, the United States initiated removal
proceedings against Rodriguez-Zuniga. She was charged
with being an “immigrant who, at the time of application for
admission, [was] not in possession of a … valid entry
document.”
Rodriguez-Zuniga conceded both the allegations against
her and removability, but applied for asylum, withholding of
removal, and protection under the Convention Against
Torture (CAT). She claimed that she was entitled to asylum
because she “suffered past persecution and ha[d] a well-
founded fear of future persecution based upon her political
opinion and membership in a particular social group.” Her
purported political opinion was her “refusal to submit to
8 RODRIGUEZ-ZUNIGA V. GARLAND
violence by criminal groups/gangs.” She claimed to be a
member of three particular social groups: “Guatemalan
families that lack an immediate family male protector,”
“Guatemalan women,” and “immediate family members of
Doris Amanda Rodriguez-Zuniga.” She alleged she suffered
past persecution generally because of the “bad state of gang
affairs” in Guatemala and, more specifically, because a
woman had attempted to rob her.
Rodriguez-Zuniga also argued that she had a well-
founded fear of future persecution because of her past
persecution, the murder of her cousin and her cousin’s child,
and the generally “precarious current state of Guatemala.”
Rodriguez-Zuniga finally claimed that she was entitled to
withholding of removal and CAT relief for the same reasons
she was entitled to asylum.
At her hearing before the IJ, Rodriguez-Zuniga testified
that she was afraid to return to Guatemala because a woman
had attempted to rob her when she lived there. In March
2016, just a few months before she entered the United States,
Rodriguez-Zuniga had gone to the bank to withdraw $150,
money that her husband in the United States “had sent [her].”
At that time, Rodriguez-Zuniga regularly received money
from her husband. As she exited the bank, a woman
threatened Rodriguez-Zuniga if she did not give her the
money. Rodriguez-Zuniga believed the woman “belonged
to a group of … gangs or a group who harms people.” The
woman told Rodriguez-Zuniga that if she did not give her
the money, she was going to hurt Rodriguez-Zuniga or her
son. Rodriguez-Zuniga refused, and the woman told her that
Rodriguez-Zuniga’s “son was going to pay for it and that she
was going to come and find [Rodriguez-Zuniga] again.” The
woman told Rodriguez-Zuniga that she targeted her because
Rodriguez-Zuniga’s “family was [in the United States] and
RODRIGUEZ-ZUNIGA V. GARLAND 9
[because she] had a lot of money that [she] could give them.”
Rodriguez-Zuniga never saw the woman again.
Rodriguez-Zuniga also told the IJ about her female
cousin who had been killed by gangs when “she refused to
give them money.” Her cousin’s son was also killed, but
Rodriguez-Zuniga did not know whether it “was the gang
members that killed him.”
The IJ found that Rodriguez-Zuniga “testified credibly
and accord[ed] her testimony full evidentiary weight,” but
denied relief. As for asylum and withholding, the IJ found
that Rodriguez-Zuniga’s past harms and fear of future harms
lacked the requisite nexus to her statutorily protected
grounds. The IJ rejected Rodriguez-Zuniga’s proposed
particular social group of “Guatemalan families that lack an
immediate family male protector.” The IJ found that
Rodriguez-Zuniga’s family was a particular social group
because “family relationships are generally ‘easily
recognizable and understood by others to constitute social
groups.’” The IJ also found that Guatemalan women were a
particular social group because of the “high level of violence
committed against Guatemalan women” and their “need
[for] specialized protection” indicated they are viewed as a
distinct group as compared to the general population in
Guatemala. But the IJ found no nexus between the harm
Rodriguez-Zuniga suffered and her membership in either
cognizable particular social group, observing that the female
robber “did not mention [Rodriguez-Zuniga’s] gender or her
lack of a ‘male protector’ in the family; rather, the
perpetrator seemed to only want money.” And because she
presented no additional evidence for her feared future
persecution beyond her nexus evidence for her past
persecution, the IJ found that Rodriguez-Zuniga likewise
lacked a nexus for her feared future harm. Finally, the IJ
10 RODRIGUEZ-ZUNIGA V. GARLAND
denied Rodriguez-Zuniga’s claim for CAT relief because
she did not establish that it was “more likely than not she
will be tortured by or with the acquiescence of the
government if [she] returned to Guatemala.”
Rodriguez-Zuniga appealed to the BIA, and the BIA
dismissed her appeal. It first “adopt[ed] and affirm[ed] the
decision of the Immigration Judge for the reasons stated [in
the IJ’s opinion]” before explaining the its own additional
reasons for dismissing the appeal. As for asylum and
withholding, the BIA agreed that one of Rodriguez-Zuniga’s
proposed social groups was not cognizable and that she
failed to establish a nexus between her past harm or feared
future harm and “either her family membership[] or her
status as a Guatemalan woman.” The BIA rejected
Rodriguez-Zuniga’s claim that she was persecuted because
of her political opinion, concluding that “there [was] no
evidence she ever expressed a political opinion.” It also
rejected her CAT claim because Rodriguez-Zuniga did not
show that she was sufficiently likely to suffer torture with
the consent of the government.
II. STANDARD OF REVIEW
“Where, as here, the BIA agrees with the IJ’s reasoning,
we review both decisions.” See Garcia-Martinez v.
Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018). We review
the agency’s decision under the highly deferential
substantial evidence standard. Ruiz-Colmenares v. Garland,
25 F.4th 742, 748 (9th Cir. 2022). Under that standard, the
agency’s findings of fact are considered “conclusive unless
any reasonable adjudicator would be compelled to conclude
to the contrary.” Id. We review questions of law de novo.
Id.RODRIGUEZ-ZUNIGA V. GARLAND 11
III. DISCUSSION
The agency did not err in denying Rodriguez-Zuniga’s
asylum and withholding claims.1 Her arguments do not
show that the agency erred in rejecting one of her proposed
particularized social groups or in concluding that she failed
to present evidence that she expressed a political opinion.
And substantial evidence supports the agency finding of no
nexus between Rodriguez-Zuniga’s membership in the
particularized social groups that the agency accepted as
cognizable and any harm she experienced or feared.
Substantial evidence also supports the agency’s finding that
Rodriguez-Zuniga did not establish it was more likely than
not that the government would torture her upon her return to
Guatemala. We therefore deny her petition for review.
a. The Agency Did Not Err in Denying Rodriguez-
Zuniga’s Asylum and Withholding of Removal
Claims.
For both asylum and withholding claims, a petitioner
must prove a causal nexus between one of her statutorily
protected characteristics and either her past harm or her
objectively tenable fear of future harm. See Garcia v.
Wilkinson, 988 F.3d 1136, 1143 (9th Cir. 2021) (asylum);
Flores-Vega v. Barr, 932 F.3d 878, 886–87 (9th Cir. 2019)
(withholding). These statutorily protected characteristics
include “race, religion, nationality, membership in a
particular social group, [and] political opinion.” 8 U.S.C.
§ 1158(b)(1)(B)(i) (asylum); see also 8 U.S.C.
§ 1231(b)(3)(A) (withholding).
1
Nelson, Rodriguez-Zuniga’s son, is a derivative beneficiary on this
petition.
12 RODRIGUEZ-ZUNIGA V. GARLAND
The agency denied asylum and withholding relief
because Rodriguez-Zuniga failed to make a showing of
nexus for either her past harm or feared future harms.
Rodriguez-Zuniga contends that the agency erred in
numerous respects: first, by rejecting one of her proposed
particular social groups; second, in finding that she never
expressed a political opinion; and third, in finding that there
was no nexus between Rodriguez-Zuniga’s cognizable
protected social groups—family membership and
“Guatemalan women”—and either her past harms or feared
future harms.
i. Rodriguez-Zuniga does not show that the
agency erred in rejecting her proposed
particular social group.
The agency concluded that Rodriguez-Zuniga’s
proposed particular social group of “Guatemalan families
that lack an immediate family male protector” was not
cognizable because the evidence did not establish that such
families “are perceived as a group by society.” “The
[agency’s] conclusion regarding social distinction—whether
there is evidence that a specific society recognizes a social
group—is a question of fact that we review for substantial
evidence.” Conde Quevedo v. Barr, 947 F.3d 1238, 1242
(9th Cir. 2020). Rodriguez-Zuniga fails to show that the
record compels the conclusion that her proposed group is
“perceived as a group by society.”
Rodriguez-Zuniga contends that the agency failed to
recognize that the group it rejected is built upon the
foundations of the groups that were previously accepted.
Although somewhat unclear, she appears to contend that the
same evidence that makes both her family—which lacks an
immediate male protector—and “Guatemalan women”
socially distinct necessarily renders every family without an
RODRIGUEZ-ZUNIGA V. GARLAND 13
immediate male protector socially distinct. But the evidence
the agency relied on to find these two other groups
cognizable—the “easily recognizable” nature of family units
and people’s general understanding that they “constitute
social groups,” as well as the recognition of Guatemalan
women’s need for special protection—doesn’t compel the
conclusion that families without an “immediate family male
protector” are separately perceived as “set apart, or distinct,
from other persons within a society.” Diaz-Reynoso v. Barr,
968 F.3d 1070, 1077 (9th Cir. 2020).
The three groups are different, and the agency could
reasonably find that the same evidence doesn’t render all
three groups distinct. Beyond this failed argument,
Rodriguez-Zuniga points to no record evidence indicating
that “families that lack an immediate family male protector”
is perceived as a distinct group. She thus fails to show that
the agency lacked substantial evidence in rejecting her
membership in “families that lack an immediate family male
protector” or that the record compels a different conclusion.
ii. Substantial evidence supports the agency’s
conclusion that Rodriguez-Zuniga did not
present evidence that she expressed a political
opinion.
Rodriguez-Zuniga claims she was persecuted because of
her political opinion, which she frames as her refusal to
“submit to violence by criminal groups/gangs.” The agency
below rejected her claim, concluding that she presented no
evidence “she ever expressed a political opinion.”
Rodriguez-Zuniga argues that the agency erred because she
presented evidence of a political opinion when she testified
to the agency regarding her refusal to give the female robber
the demanded money. But because that act was not a
14 RODRIGUEZ-ZUNIGA V. GARLAND
“sufficiently conscious and deliberate” expression of a
political opinion, our precedents make clear that it cannot
support Rodriguez-Zuniga’s claim. De Valle v. INS, 901
F.2d 787, 791 (9th Cir. 1990) (citation omitted).
A person’s deeds express a political opinion only when
they are “‘sufficiently conscious and deliberate’ decisions or
acts” such that society would naturally “attribute[] certain
political opinions to [the petitioner]” based on those acts. Id.(citation omitted). Rodriguez-Zuniga’s refusal to give
money to the threatening robber is not evidence of a
“conscious and deliberate” decision that would naturally
result in attributing a political position to her. Id. Rather,
she simply reacted to being robbed. If merely resisting a
robbery could constitute expressing a political opinion, then
every person who avoided being the victim of a crime could
seek asylum. But most people who resist criminal activity
directed towards them do so for obvious non-political self-
interested reasons—they don’t want to be the victim of a
crime. See Santos-Lemus v. Mukasey, 542 F.3d 738, 747
(9th Cir. 2008) (relying on the fact that “opposition to [a]
gang’s criminal activity” is not necessarily “based on
political opinion”), abrogated on other grounds by
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013).
Nor is Rodriguez-Zuniga’s mere unwillingness “to
cooperate with a potential persecutor … necessarily
expressive conduct constituting a political opinion.” Chen
v. INS, 95 F.3d 801, 806 (9th Cir. 1996) (citing INS v. Elias-
Zacarias, 502 U.S. 478, 480–83 (1992)); see also Regalado-
Escobar v. Holder, 717 F.3d 724, 730 (9th Cir. 2013)
(explaining that “fail[ing] to cooperate in [a political party’s]
recruitment efforts” does not necessarily express “principled
opposition to [the political party] or its violence”).
RODRIGUEZ-ZUNIGA V. GARLAND 15
Rodriguez-Zuniga presents no other evidence in support
of her political opinion argument, nor does she present
additional evidence as to any nexus between her purported
political opinion and her harm. Absent some evidence that
Rodriguez-Zuniga expressed a political opinion beyond
merely her resistance to being robbed, the record does not
require the conclusion the agency erred. See Garcia-Milian
v. Holder, 755 F.3d 1026, 1032 (9th Cir. 2014) (concluding
that the record “does not compel” a different conclusion than
the agency’s when the petitioner “provided no evidence” on
the point). Substantial evidence thus supports the agency’s
rejection of Rodriguez-Zuniga’s claim for asylum and
withholding on the basis of a political opinion. See
Rodriguez Tornes v. Garland, 993 F.3d 743, 752 (9th Cir.
2021) (requiring a showing of nexus for both asylum and
withholding claims based on political opinion).
iii. Substantial evidence supports the agency’s
finding that Rodriguez-Zuniga’s harms
lacked a nexus to a protected characteristic.
For both her asylum and withholding claims,
Rodriguez-Zuniga must show a nexus between her past
harms or feared future harm and her statutorily protected
characteristics. See Garcia, 988 F.3d at 1143 (asylum);
Flores-Vega, 932 F.3d at 887 (withholding). For asylum,
she must provide evidence showing that her protected
characteristics were “one central reason” for either her past
harms or her feared future harms. 8 U.S.C.
§ 1158(b)(1)(B)(i). For withholding, she must provide
evidence showing it is more likely than not that her life or
freedom will be threatened, consisting in part of evidence
indicating that her protected characteristics will be “a
reason” for her suffering harm in the future. See 8 U.S.C.
§ 1231(b)(3)(A); Garcia, 988 F.3d at 1146. The reasons
16 RODRIGUEZ-ZUNIGA V. GARLAND
needed to prove a nexus refer to the persecutor’s
motivations for persecuting the petitioner. See id.
“Because a persecutor’s actual motive is a matter of fact,
we review that finding for substantial evidence.” Vasquez-
Rodriguez v. Garland, 7 F.4th 888, 893 (9th Cir. 2021)
(cleaned up).
The agency found Rodriguez-Zuniga had failed to
establish any nexus whatsoever between past harm she
suffered and either of her proposed social groups. Circuit
precedent requires a lower nexus showing for withholding of
removal than asylum, requiring only “a reason” for
withholding of removal as compared to a “central reason”
for asylum. Barajas-Romero v. Lynch, 846 F.3d 351, 360
(9th Cir. 2017). So it is possible that a petitioner who failed
to show a sufficient nexus for asylum might nonetheless
meet the lower nexus requirement for withholding of
removal. But where, as here, the agency concludes that the
petitioner has not shown any nexus whatsoever, then the
petitioner fails to establish past persecution for both asylum
and withholding. See id. (observing there is “no distinction
between the ‘one central reason’ phrase in the asylum statute
and the ‘a reason’ phrase in the withholding statute …
[where] there was no nexus at all” (quoting Zetino v. Holder,
622 F.3d 1007, 1016 (9th Cir. 2010) (emphasis added)).
The sole harm that Rodriguez-Zuniga contends
amounted to past persecution was the female robber’s threat
against her and her son. She claims the robber was
motivated to make this threat by Rodriguez-Zuniga’s
membership in two protected groups: Rodriguez-Zuniga’s
family and “Guatemalan women.” The agency found that
the robber was not motivated by her membership in either of
those groups, but was instead solely motivated by money.
RODRIGUEZ-ZUNIGA V. GARLAND 17
The agency first found that the woman did not target
Rodriguez-Zuniga because of her status as a “Guatemalan
woman,” noting that the woman “did not mention
[Rodriguez-Zuniga’s] gender” at all during the attempted
robbery. Rodriguez-Zuniga contends this was an error, but
the only evidence she references is that “Guatemala ha[s] a
notorious record in lacking in Guatemalan female
protection.” The general vulnerability of women in
Guatemala tells us nothing about the female robber’s
particular motivations, and certainly does not compel the
conclusion that the robber threatened Rodriguez-Zuniga
because she is a woman. See Barajas-Romero, 846 F.3d at
357 (explaining that “the persecutor’s motive” is what
matters for nexus); cf. Lalayan v. Garland, 4 F.4th 822, 840
(9th Cir. 2021) (explaining that while “country reports and
news articles” indicate problems in the petitioner’s home
country, “they in no way establish that [he] would ‘more
likely than not’ be persecuted upon removal … on account
of his [protected ground]”).
The agency next found that the woman did not threaten
Rodriguez-Zuniga’s son because of or on account of his
kinship to Rodriguez-Zuniga. Instead, she “appeared to be
motivated exclusively by monetary interest.” Substantial
evidence supports the agency’s nexus finding because
Rodriguez-Zuniga “did not demonstrate that the gang
members who sought to extort money from [her] … were
motivated by anything other than an economic interest.”
Iraheta-Osorio v. Holder, 445 F. App’x 8, 9 (9th Cir. 2011)
(citing Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir.
2009)).
Rodriguez-Zuniga contends that the agency erred in
finding no nexus between the threat and her family
membership. She relies on the fact that gangs murdered her
18 RODRIGUEZ-ZUNIGA V. GARLAND
cousin and her cousin’s son because they refused to pay the
gangs, but this does not compel any conclusion about the
robber’s motivation in Rodriguez-Zuniga’s case. See
Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010)
(explaining that “vague threats made against [the
petitioner’s] family” did not compel the conclusion that the
petitioner’s “perceived fear of future persecution
is … objectively reasonable”).
The heart of Rodriguez-Zuniga’s argument, instead, is
that the woman threatened her son to get her to pay money,
which “displays the gangs’ specifically targeting … a
specific family member to get petitioner to comply.” To
establish a nexus between her family membership and her
harm, Rodriguez-Zuniga must show that her family
membership was a reason motivating the robber to target her.
See Barajas-Romero, 846 F.3d at 357. Where the record
indicates that the persecutor’s actual motivation for
threatening a person is to extort money from a third person,
the record does not compel finding that the persecutor
threatened the target because of a protected characteristic
such as family relation.2 See Baballah v. Ashcroft, 367 F.3d
2
The dissent laments our use of the modifier “actual” before motivation,
criticizing our failure to recognize that a petitioner may establish asylum
or withholding even when the persecutor holds multiple or mixed
motivations. We of course agree that a petitioner may be entitled to relief
when a persecutor holds multiple or mixed motivations, and one of those
motivations is that the persecutor actually wants to harm the petitioner
based on her protected characteristic. We do not deny that basic
principle in emphasizing that the motivation must be “actual.” Instead,
the modifier “actual” distinguishes between where a protected
characteristic intrinsically motivates the persecutor to harm a victim—
for example, because the persecutor has animus towards people who
profess a certain religion—and where a protected characteristic is simply
RODRIGUEZ-ZUNIGA V. GARLAND 19
1067, 1075 n.7 (9th Cir. 2004) (explaining that this court’s
precedent precludes relief when persecution is “solely on
account of an economic motive”); Zetino, 622 F.3d at 1016(“An alien’s desire to be free from harassment by criminals
motivated by theft or random violence by gang members
bears no nexus to a protected ground.”); see also Sanchez v.
Sessions, 706 F. App’x 897, 899 (9th Cir. 2017) (rejecting a
nexus because threats to the petitioner’s family were only a
means of obtaining desired information, not “because of the
family relationship per se”). In such a situation, the extorted
person may be motivated to give the money because they
care for their family member, but that doesn’t transform the
persecutor’s motivation from money to actual animus
against a protected characteristic.
an instrumentality for the persecutor to accomplish his goals, such as
here, where there is no evidence the gang member cared at all that
Rodriguez-Zuniga was related to her son or that her son was related to
Rodriguez-Zuniga. The dissent similarly asserts that our distinction
would preclude a petitioner from “establish[ing] that family membership
is even ‘a reason’ for any potential persecution where financial gain also
motivates the persecutor.” That worry is unfounded. Our caselaw
permits someone to establish a nexus when one of the persecutor’s
motivations is financial so long as another motivation, either the
“central” reason or simply “a reason” depending on what claim is being
pressed, is actually motivating the persecutor and is based on a victim’s
protected characteristic. See, e.g., Baghdasaryan v. Holder, 592 F.3d
1018, 1025–26 (9th Cir. 2010). It should thus be clear from the foregoing
that we are not—contrary to the dissent—saying that a victim persecuted
because of “the petitioner’s family membership” is prevented from
showing a nexus just because the “persecutor’s motives also contain a
financial dimension.” (Emphasis added.) But this case does not present
such mixed motives—substantial evidence supports the agency’s finding
that here financial motivation was not in addition to a motivation based
on family membership, but was instead the persecutor’s exclusive
motivation.
20 RODRIGUEZ-ZUNIGA V. GARLAND
Assuming for the sake of argument that harm against
Rodriguez-Zuniga’s son could support her own asylum
claim, Rodriguez-Zuniga has failed to make the required
showing of nexus. Substantial evidence supports the
agency’s finding that the robber threatened Rodriguez-
Zuniga’s son only as an instrumental means to obtain money,
and was not motivated intrinsically by his familial
relationship to his mother. Rodriguez-Zuniga repeatedly
testified that the reason the woman targeted her was because
she “had a lot of money that [she] could give them.” “[I]f
[Rodriguez-Zuniga] didn’t give her that money[,] she was
going to hurt” her or her son. The record in this case thus
does not compel the finding that the robber’s motivation for
threatening to hurt Rodriguez-Zuniga’s son was his familial
relationship to Rodriguez-Zuniga. Rather, the robber
targeted the son for the same reason she would target, say,
the petitioner’s life-long friend if the opportunity arose—
merely because she thought Rodriguez-Zuniga cared about
that person and thus the robber could use threats against that
person as a means of obtaining money from Rodriguez-
Zuniga.3
Rodriguez-Zuniga attempts to refute this point by citing
Ayala v. Sessions, where our court stated that “economic
extortion on the basis of a protected characteristic can
constitute persecution.” 855 F.3d 1012, 1020 (9th Cir.
2017). Rodriguez-Zuniga misreads Ayala. Like this case,
Ayala involved extortion. But as the court explained, it
involved an “extortion-plus” claim, that is, a claim that the
petitioner was independently targeted, not just for money,
3
We do not suggest one way or another whether the threat to the son
could apply to Rodriguez-Zuniga. There is no need to reach that issue in
this case.
RODRIGUEZ-ZUNIGA V. GARLAND 21
but also because of a protected ground. Id. at 1021. An
“extortion-plus” nexus is simply one instantiation of our
precedent’s recognition that a persecutor can hold multiple
motives for harming someone. See Parussimova, 555 F.3d
at 739 (citing Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (en
banc), where our court first recognized an “extortion-plus”
motive, as an example of a “mixed-motive case[]”). To that
end, the court in Ayala held that it was “legal error for the IJ
to hold that extortion could not constitute persecution for the
purposes of withholding[] where the petitioner’s
membership in a particular social group … is at least ‘a
reason’ for the extortion.” Ayala, 855 F.3d at 1021.
Our court identified two errors by the agency in Ayala:
one legal and one factual. The agency’s legal error was
categorically holding that, if a persecutor is motivated by a
financial goal, i.e., to extort, he cannot also be motivated by
a petitioner’s protected characteristic. See id. As Ayala
recognizes, that is incorrect. Logically, a persecutor who
extorts someone could in theory be motivated not just by the
prospect of obtaining money but also by a petitioner’s
protected characteristic. The first error the agency in Ayala
made was thus holding that a petitioner could never prove a
nexus when the persecutor extorted the petitioner. See id.But it also bears noting that just because an “extortion-plus”
persecution is possible—someone could be motivated to
extort a particular person by, say, actual animus towards
their family—common sense tells us that will often, indeed
usually, not be the case.4
4
The dissent quibbles over our example of an “extortion-plus” claim
because we use the word “animus.” But our court often uses “animus”
as an example of the type of “nexus” required for an asylum or
22 RODRIGUEZ-ZUNIGA V. GARLAND
Regardless of the likely infrequency of an “extortion-
plus” claim, it remains true that, when required to decide
whether the petitioner established a nexus, the agency must
determine whether the petitioner showed that a protected
characteristic motivated the petitioner’s persecutor. See,
e.g., Garcia, 988 F.3d at 1143–44 (citation omitted) (noting
that the petitioner must show that a protected characteristic
motivated the persecutor). The agency’s second error in
Ayala, its factual error, was its failure to do just that.
Because the agency held that a petitioner “could not” prove
a nexus where a persecutor extorts her, the agency
necessarily never made a factual finding on whether the
petitioner established her persecutor was motivated by
anything other than financial ends. Ayala, 855 F.3d at 1021;
see Regalado-Escobar, 717 F.3d at 729–30 (explaining that
the BIA’s holding that opposition to a political party’s use of
violence “could not be a political opinion” was an “err[or] as
a matter of law” and meant that the agency “did not conduct
the necessary factual inquiry as to whether [the petitioner]
had a protected political opinion”).
Given these two errors, our court remanded the case. But
to be clear, even the panel in Ayala expressed reservations—
reservations the dissent here seems to share—over whether
the petitioner would actually succeed before the agency. See
withholding claim. See, e.g., Sinha v. Holder, 564 F.3d 1015, 1022 (9th
Cir. 2009) (faulting the IJ “in his nexus analysis” because a reasonable
IJ would have found that the attackers “were motivated at least in part
by racial animus”); Garcia, 988 F.3d at 1145 (noting that, “over time,”
certain conduct “can demonstrate a kind of animus …. sufficient to
demonstrate nexus” (citation omitted)). And ultimately, the dissent’s
aversion to the word animus does not change our main point—Ayala was
about two errors, one legal and one factual, and neither error was made
by the agency in this case.
RODRIGUEZ-ZUNIGA V. GARLAND 23
Ayala, 855 F.3d at 1021 (“Whatever the merits of her claim,
it was legal error for the IJ to hold that extortion could not
constitute persecution ….” (emphasis added)). The reason
for the court’s doubts is obvious from reading Ayala: the
petitioner there presented barely any evidence, perhaps none
at all, that family membership actually motivated her
persecutor. See id. at 1016–17. Thus, even if the record in
Ayala seems unlikely to compel a finding of nexus, the
agency’s legal error and its failure to find the persecutor’s
actual motivations required remand in that case.
Ultimately, it is the majority’s approach in this case and
not the dissent’s that is consistent with Ayala. To borrow
from the dissent’s discussion of the petitioner in Ayala,
Rodriguez-Zuniga has not “present[ed] the court with factual
evidence to support her theoretically valid nexus theory.”
And unlike in Ayala, there was no erroneous legal
conclusion by the agency in this case that “extortion could
not constitute persecution” regardless of other motives—the
underlying error the court faulted the agency for in Ayala.
Id. at 1021. Instead, the agency here expressly concluded
there were no other such motives—precisely what our court
found missing in Ayala. In short, there is no reason to
remand in this case because the agency here didn’t make the
categorical legal mistake it made in Ayala, and it has already
made the factual conclusion that was missing in Ayala. And
nothing compels the conclusion that the robber in this case
was motivated by anything other than underlying economic
reasons, even though those economic motivations also
resulted in threats to Rodriguez-Zuniga’s son. See Juarez
Morales v. Wilkinson, 836 F. App’x 603, 605 (9th Cir. 2021)
(explaining that Ayala “is irrelevant …. [where the
petitioner] offers no evidence that a protected ground was a
reason for [her] extortion”).
24 RODRIGUEZ-ZUNIGA V. GARLAND
As for Rodriguez-Zuniga’s fear of future harm, the
agency again found no nexus. The BIA explained that she
“did not establish a nexus between any feared harm and a
protected ground.” Instead, the BIA noted that her “claim
[was] based on a fear of general violence and criminal
activity in Guatemala.” The record compels no different
conclusion. As explained above, the record supports the
agency’s finding that the attempted robbery bore no nexus to
a protected characteristic. The remainder of Rodriguez-
Zuniga’s evidence is from country conditions reports that do
not compel the conclusion that her fear of future persecution
was objectively reasonable.
The dissent argues that the agency erred in its analysis of
Rodriguez-Zuniga’s fear of future harms because the IJ
applied an improper categorical rule to reject the claim. The
IJ noted that, having found Rodriguez-Zuniga could not
“claim past persecution on account of a protected ground, it
necessarily follow[ed] she also cannot claim a well-founded
fear of future persecution on account of the same ground.”
The dissent reads the IJ as applying as a categorical rule that
every time a petitioner fails to establish a nexus for past
persecution, she would necessarily fail to establish a nexus
for future persecution. We agree that such a categorical rule
would not be supported by our precedent, but we do not read
the IJ as necessarily applying such a categorical rule.
Instead, the IJ was noting that in this case, because
Rodriguez-Zuniga offered evidence going only to her past
persecution, the fact that she failed to establish a nexus for
past persecution means that the same evidence would not
show future persecution.
That’s certainly how the BIA read the IJ, and we need
not read the decision any differently. The BIA explained
that Rodriguez-Zuniga “did not establish a nexus between
RODRIGUEZ-ZUNIGA V. GARLAND 25
the single incident she experienced,” i.e., her past harm, “or
the harm she fears,” i.e., her feared future harm, “and either
her family membership, or her status as a Guatemalan
woman.” If the IJ erred in applying some categorical rule,
the BIA did not—it instead addressed them as two
independent inquiries. And to the extent the BIA and IJ part
ways, we review the BIA’s findings for substantial evidence.
In short, substantial evidence supports the agency’s
finding that Rodriguez-Zuniga’s two protected grounds were
not “a reason” for her past persecution or feared future
persecution, necessarily defeating both her asylum and
withholding claims. We therefore deny Rodriguez-Zuniga’s
petition for review of her asylum and withholding claims.
b. Substantial Evidence Supports the Agency’s
Denial of CAT Relief.
“For CAT relief, the alien must prove that it is ‘more
likely than not that he or she would be tortured if removed
to the proposed country.’” Barajas-Romero, 846 F.3d at
361. And that “torture must be ‘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.’” Id.The agency found that Rodriguez-Zuniga had not
“demonstrate[d] the government of Guatemala would
consent or acquiesce to her torture.”
Although she argues that the agency should have granted
her CAT relief, Rodriguez-Zuniga does not argue that the
agency erred in finding that she presented insufficient
evidence that the Guatemalan government would consent to
her torture. Indeed, the closest Rodriguez-Zuniga comes to
addressing acquiescence is in her background section, when
she explains that she did not tell the police about the
threatening woman “because the police are connected to the
26 RODRIGUEZ-ZUNIGA V. GARLAND
gangs.” This reference, found only in her background
section and not directly connected with any argument, does
not prevent Rodriguez-Zuniga from forfeiting the argument
that the agency incorrectly found she would not suffer
torture with the consent or acquiescence of the government.
See Johnson v. Baker, 23 F.4th 1209, 1216 n.3 (9th Cir.
2022) (considering “abandoned” assertions made only in the
background section of a brief).
The dissent does not agree that Rodriguez-Zuniga
forfeited the argument, but it also does not contend that
Rodriguez-Zuniga ever mentioned government
acquiescence, per se. Instead, the dissent notes, quoting her
briefing, that Rodriguez-Zuniga asserted that she had
“articulated a specific individualized threat of torture.” The
dissent extrapolates from this that she must have been
implicitly arguing that the government would acquiesce in
her torture if she returned, because acquiescence is a part of
the definition of torture. But that just substitutes one
problem for another: even if she meant to implicitly argue
that the government would acquiesce, she must still
“specifically and distinctly” raise an argument and support it
with citations to the record to raise it on appeal. Hayes v.
Idaho Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017);
accord Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994);
see also United States v. Graf, 610 F.3d 1148, 1166 (9th Cir.
2010) (“Arguments made in passing and not supported by
citations to the record or to case authority are generally
deemed waived.”). Even assuming there was no need for
Rodriguez-Zuniga to use the term “acquiescence” or one of
its cognates to raise the issue, she still failed to “specifically
and distinctly” raise the argument. See Hayes, 849 F.3d at
1213.
RODRIGUEZ-ZUNIGA V. GARLAND 27
Because a petitioner can state a claim for CAT relief only
if she shows that the government would acquiesce in her
torture, Rodriguez-Zuniga’s failure to contest this point is
fatal to her claim. See, e.g., Madrigal v. Holder, 716 F.3d
499, 508 (9th Cir. 2013).5 We therefore deny Rodriguez-
Zuniga’s petition for review of her CAT claim.
c. The Dissent’s Remaining Concerns Lack Merit.
The dissent vigorously disagrees with the foregoing
analysis—in what seems to be practically every regard. But
before we respond to those disagreements one-by-one and
explain why they lack merit, it is worth taking a step back to
consider the uncontested facts of this case. This is a case
about an attempted robbery of a woman and her son who,
upon leaving a bank, were threatened with violence if they
didn’t hand over some money. That’s it. Relying on that
unfortunate event, plus the regrettably unenviable conditions
prevalent in Guatemala, Rodriguez-Zuniga seeks
immigration relief that Congress made available for refugees
who, if they are returned to their home country, face a
particularized risk of persecution because of their status, or
else face a greater-than-50% risk of being tortured. An oft-
recognized corollary is that such relief is not available to
those who have simply had the misfortune of becoming a
victim of criminal misconduct abroad, motivated by the sorts
of things (money, generally) that motivate criminals. See,
e.g., Zetino, 622 F.3d at 1016. Immigration law can be
complicated, especially because courts have manufactured a
byzantine and ever-increasing maze of procedural and
substantive standards that are difficult for everyone—
5
Even if she had argued this point, we would still deny her petition
because substantial evidence supports the agency’s denial of her CAT
claim.
28 RODRIGUEZ-ZUNIGA V. GARLAND
asylum-seekers, immigration officials, and courts alike—to
navigate. And much of the discussion that follows relates to
such arcane requirements. But something has gone terribly
wrong when judges conclude that relief for persecution and
torture is mandated just because someone was the victim of
a brief and failed robbery attempt in their home country. Is
that really what anyone thinks Congress meant by providing
relief for refugees?
i. The dissent’s concerns regarding our nexus
holding are unwarranted.
The dissent offers several criticisms regarding both our
explanation of this circuit’s precedent on nexus
determinations and how we apply that precedent in the above
analysis. None of these concerns are warranted.
First, the dissent criticizes our statement that the “record
does not compel finding that the persecutor threatened the
target because of a protected characteristic such as family
relation” when “the record indicates that the persecutor’s
actual motivation for threatening a person is to extort money
from a third person.” The dissent finds it difficult to identify
who the “target” is. But the dissent’s demand that we
precisely define whether the “target” is Rodriguez-Zuniga or
her son contradicts its later assertion that we must treat
Rodriguez-Zuniga and her son as one undifferentiated claim.
In any event, any ambiguity that might persist in the identity
of the “target” is because we assume that the threat could
count as a harm to either person, and then decide whether
there was a nexus between that harm and a protected
characteristic. The dissent’s assertion that we must
differentiate between mother and son thus lacks merit.
Second, the dissent argues that the record compels the
conclusion that family membership was both “a reason” and
RODRIGUEZ-ZUNIGA V. GARLAND 29
“a central reason” petitioner was targeted for attempted
robbery. The dissent strangely claims that we have, “in
effect,” concluded that the family membership of Rodriguez-
Zuniga’s son is a but-for cause of the robber threatening the
son. That is the opposite of what we’re saying—which is
that there is zero evidence the robber targeted the son based
on the son’s family membership per se. The but-for cause of
the robber targeting the son is not family membership, it is
that the robber thought Rodriguez-Zuniga cared about her
son.
To illustrate with an example, imagine the robber
attempted to rob a woman who was accompanied, not by her
son, but by a pet dog. This dog sports an ornately bejeweled
collar and leash and its fur indicates frequent grooming, so
the robber can infer the woman cares deeply for her pet. In
an attempt to rob the woman, the robber might
understandably threaten the dog. No one would think that
such a threat was motivated by any animus toward the
animal. It would instead be obvious that that the but-for
cause of the robber threatening the dog was the robber’s
belief that the woman cared about the dog and would give
the robber money if the dog was threatened. So too here: the
but-for cause of the robber threatening the son is not his
family membership but because the robber thought,
probably correctly, that Rodriguez-Zuniga cared for her son.
Under the dissent’s view, every kidnapping where a
kidnapper demands money from the family of the kidnapped
individual would necessarily establish a nexus. If that’s
what Congress had wanted, it would have made family
membership an enumerated category—instead, family
membership is sometimes, but not always, a particularized
social group. See Rios v. Lynch, 807 F.3d 1123, 1128 (9th
Cir. 2015) (explaining that “family membership may
30 RODRIGUEZ-ZUNIGA V. GARLAND
constitute membership in a ‘particular social group’”
(emphasis added)).6
Third, the dissent argues that the nexus inquiry is not
about “whether the persecutors’ acts were motivated by an
unprotected characteristic.” The dissent tries to ground this
innovation in the Supreme Court’s decision in Elias-
Zacharias, 502 U.S. at 478. In that case, the purported
persecution was a guerilla military organization attempting
to conscript the petitioner into its forces. The Court
explained that even if the persecutors were motivated
politically to conscript people because they wanted to fill
their ranks and “carry on their war against the government,”
that was “irrelevant.” Id. at 481–82. That is, a nexus could
not be established by a motive “irrelevant” to whether the
persecutor harmed a victim because of a victim’s protected
characteristic. See id. Instead of relying on Elias-Zacharias,
the dissent’s argument that the persecutor’s financial
motivation is irrelevant ignores the plain import of the
decision. The obvious takeaway is that if, like here, a
persecutor is motivated exclusively by a consideration
“irrelevant” to a victim’s protected ground, that motivation
is emphatically “relevant”—indeed, that motivation is
6
The dissent faults us for noting that family membership is not
necessarily a particularized social group. But it’s unclear where the
dissent derives its belief that a petitioner need not show a family is
“defined with particularity” and “socially distinct within the society in
question.” Rios, 807 F.3d at 1127 (describing the BIA’s “rubric” for
establishing a particular social group). Our caselaw establishes that
family membership “may constitute membership in a ‘particular social
group,’” not that families are automatically a particular social group. Id.
at 1128 (emphasis added) (quotation omitted); see Gonsalez Padilla v.
Barr, 830 F. App’x 182, 184 n.2 (9th Cir. 2020) (noting that precedent
“recognize[s] that ‘family’ could be the basis of a particular social group
and it [is] error to not even consider it” (citing Rios, 807 F.3d at 1128)).
RODRIGUEZ-ZUNIGA V. GARLAND 31
decisive—for nexus. A persecutor that is exclusively
motivated by something unrelated to a victim’s protected
characteristic is, tautologically, not motivated by the
victim’s protected characteristic. Thus here, where
substantial evidence supports the agency’s finding that the
actual motivation of the persecutors was “exclusively”
financial, not any protected characteristic, that exclusive
financial motivation cannot establish a nexus.
Finally, in criticizing the panel’s nexus conclusion, the
dissent appears to argue that because the IJ found Rodriguez-
Zuniga credible it was obligated to also credit as true her
speculation about her persecutor’s motives for targeting her.
This argument flows from our court’s now defunct “deemed-
true-or-credible” rule, where we had required that an IJ find
true any testimony found to be credible. See Garland v.
Ming Dai, 141 S. Ct. 1669, 1676–77 (2021). The Supreme
Court squarely rejected this rule in Ming Dai. Id. at 1677(“The Ninth Circuit’s rule has no proper place in a reviewing
court’s analysis.”). The IJ was thus free to find Rodriguez-
Zuniga credible without finding persuasive her subjective
beliefs about why the robber attempted to extort her.
The dissent similarly contends that Rodriguez-Zuniga
did not speculate about her persecutor’s motives because she
testified the robber stated that the robber targeted her
because “her family was here and that [she] had a lot of
money that [she] could give them.” But that contention
simply repackages the dissent’s error discussed above:
evidence that a persecutor targeted someone is not
necessarily evidence of the underlying motivation for doing
so. To the extent this is evidence of the robber’s motives, it
is direct evidence that the persecutor targeted Rodriguez-
Zuniga, not because of family membership, but because her
32 RODRIGUEZ-ZUNIGA V. GARLAND
family was in the United States and so they assumed she
“had a lot of money that [she] could give them.”
ii. The dissent fails to show a flaw in the agency’s
reasoning regarding Rodriguez-Zuniga’s
political opinion—or lack thereof.
The dissent argues that the agency erred in rejecting
Rodriguez-Zuniga’s claim that she was persecuted because
of her political opinion because the agency failed to offer
sufficient reasons for its decision and because the BIA
engaged in impermissible factfinding. Both arguments fail.
First, the dissent argues that the BIA abused its discretion
by offering only a “single-sentence resolution of the issue”
that fails to “explain what factors it has considered or relied
upon.” Kalubi v. Ashcroft, 364 F.3d 1134, 1140 (9th Cir.
2004). It is revealing that the dissent never references the
content of Rodriguez-Zuniga’s asserted political opinion.
Her claimed political opinion is her “refusal to submit to
violence by criminal groups/gangs.” As far as the record
reveals, she never stated this opinion to the gang member or
to anyone before the robbery, and the only actions that she
argues displayed this opinion was her noncompliance with a
gang member’s extortion attempt.
Although an agency must give reasons sufficient for us
to review, the reasons that the agency must offer are
certainly coextensive with the complexity of the analysis
required by the issue. See Marcu v. INS, 147 F.3d 1078,
1083 (9th Cir. 1998) (denying a petition because the BIA
“demonstrate[d] that it heard the claim, considered the
evidence, and decided against” the petitioner). And here,
given the complete lack of evidence supporting Rodriguez-
Zuniga’s political opinion claim, it is hardly surprising the
agency decided to dispose of it in a sentence. Nor do we
RODRIGUEZ-ZUNIGA V. GARLAND 33
have any difficulty ascertaining why the agency denied the
claim.
The dissent complains that we have explained the BIA’s
resolution of the political opinion claim in too much detail.
According to the dissent, we have “expand[ed] on the
BIA’s … rationale for nearly five pages” and are using ex
post rationales to justify the BIA. But notice what
explanation the BIA gave and what explanation we give
now: the BIA rejected the claim because “there is no
evidence [Rodriguez-Zuniga] ever expressed a political
opinion.” We deny the petition for review of that claim
because there was no evidence she ever expressed a political
opinion. We have not conjured up an ex post facto
rationalization of the BIA’s decision; we have reviewed for
substantial evidence the reason expressly provided by the
BIA.
Second, the dissent contends that the BIA engaged in
improper factfinding in rejecting Rodriguez-Zuniga’s
political claim because the IJ did not express any factual
findings regarding the claim. But observing the absence of
evidence is not a factual finding. If it was, then this court of
appeals would frequently be a factfinder—which, of course,
it cannot be.7 The BIA never found facts, it simply looked
at the record and observed the petitioner had provided none.
7
See, e.g., Furnace v. Sullivan, 705 F.3d 1021, 1031 (9th Cir. 2013)
(affirming a grant of summary judgment against an equal protection
claim “[b]ecause [the plaintiff] adduce[d] no evidence that he was treated
differently than any other [comparator]”); Freyd v. Univ. of Oregon, 990
F.3d 1211, 1229 (9th Cir. 2021) (affirming a grant of summary judgment
“because [the plaintiff] has presented no evidence of intentional
discrimination”); Fisher v. City of San Jose, 558 F.3d 1069, 1085 (9th
34 RODRIGUEZ-ZUNIGA V. GARLAND
IV. CONCLUSION
The majority is not unsympathetic to Rodriguez-Zuniga
and her son’s desire to stay in this country. But all that she
has provided in support of her petition are country condition
reports and one failed, non-violent robbery that the agency
reasonably concluded was wholly economically motivated
(as robberies usually are). Our legal system understandably
places primary authority for immigration policy in Congress
and the executive branch. If we stretched our law to grant
the petition here, it would be clear that we have substituted
ourselves for the immigration officials. Because she failed
to show a nexus between her past or feared future harms and
any protected grounds, we deny Rodriguez-Zuniga’s petition
for review of her asylum and withholding of removal claims.
And because she forfeited any challenge to the agency’s
finding that she offered insufficient evidence that the
Guatemalan government would acquiesce or consent to her
torture, we deny her petition for review of her CAT claim.
PETITION DENIED.
Cir. 2009) (reversing the district court’s grant of the plaintiff’s renewed
motion for judgment as a matter of law on a 42 U.S.C. § 1983 claim
because “there [was] no evidence that the [defendant] had a
policy … that was the ‘moving force’ behind any alleged constitutional
violation”) (en banc); Gilbrook v. City of Westminster, 177 F.3d 839, 868
(9th Cir. 1999), as amended on denial of reh’g (July 15, 1999) (reversing
a Rule 50(a) grant of judgment as a matter of law by concluding, among
other things, that there was “no evidence in the record suggesting” that
a factor weighed in favor of affirmance (emphasis added)); see also
Burley v. Gagacki, 729 F.3d 610, 620 (6th Cir. 2013) (affirming a grant
of summary judgment against a “failure-to-intervene theory….
“[b]ecause no evidence place[d] the state and local defendants inside
plaintiffs’ home at the appropriate time to witness or respond to any
unconstitutional conduct that may have occurred”).
RODRIGUEZ-ZUNIGA V. GARLAND 35
GILMAN, Circuit Judge, dissenting:
INTRODUCTION
This court has repeatedly emphasized that “the family
remains the quintessential particular social group.” See
Parada v. Sessions, 902 F.3d 901, 910 (9th Cir. 2018)
(quoting Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir.
2015)). “That is, an asylum-seeker who has suffered
persecution ‘on account of th[eir] familial relationship’ has
suffered persecution by reason of membership in a particular
social group.’” Id. (alteration in original) (quoting Rios, 807
F.3d at 1128).
The majority apparently disagrees with the above legal
principle by stating that “family membership is sometimes,
but not always, a particularized social group.” See Majority
Op. at 29. It therefore discounts persecution that occurs by
reason of the petitioner’s family membership if the
persecutor’s motives also contain a financial dimension. In
the majority’s view, such a petitioner would have to provide
an alternative, “actual” reason for the alleged harm. See id.
at 18, 29. This places an unjustified burden on those seeking
relief based on their family membership by harkening back
to the much-maligned (and now vacated) regime of Matter
of L-E-A- II, 27 I. & N. Dec. 581 (A.G. 2019), which held
that, “in the ordinary case, a nuclear family will not, without
more,” qualify as a particular social group. See id. at 589,
vacated by Matter of L-E-A- III, 28 I. & N. Dec. 304(A.G. 2021).
Congress passed a statute in 1952—the Immigration and
Nationality Act—that (1) offers a discretionary pathway to
relief for those who reasonably fear persecution on account
of their membership in a particular social group, see 8 U.S.C.
36 RODRIGUEZ-ZUNIGA V. GARLAND
§ 1158(b), and (2) outright prohibits the removal of
noncitizens to countries where they face a clear probability
of persecution because of the same, see 8 U.S.C.
§ 1231(b)(3). I believe that the majority’s holding is
inconsistent with this statutory scheme and Ninth Circuit
precedent.
A. An inherent contradiction exists in the majority’s
treatment of the nexus element with respect to
Rodriguez-Zuniga’s son Nelson because family
membership cannot be both the primary reason for
Nelson’s persecution and no reason at all
The majority holds that, “[w]here the record indicates
that the persecutor’s actual motivation for threatening a
person is to extort money from a third person, the record
does not compel finding that the persecutor threatened the
target because of a protected characteristic such as family
relation.” Majority Op. at 18. This proposition is
ambiguous—intentionally so, the majority acknowledges,
see id. at 26-27—because it does not make clear whether the
“target” is the direct target of the extortion (Rodriguez-
Zuniga and others similarly situated) or the indirect target of
the threat (Nelson and others similarly situated). In other
words, the majority’s holding forecloses not only
Rodriguez-Zuniga’s ability to satisfy the nexus requirement,
but Nelson’s as well.
On the one hand, the majority states that “the robber
targeted [Nelson] for the same reason she would target, say,
[Rodriguez-Zuniga’s] life-long friend if the opportunity
arose—merely because she thought Rodriguez-Zuniga cared
about that person and thus the robber could use threats
against that person as a means of obtaining money from
Rodriguez-Zuniga.” Id. at 20 (emphasis added). This in
RODRIGUEZ-ZUNIGA V. GARLAND 37
effect makes Nelson’s family membership not only a but-for
cause, but also the primary cause of his being placed in
harm’s way. On the other hand, the majority inexplicably
holds that Nelson and those in like circumstances cannot
satisfy the nexus requirement. This is inherently
contradictory and unsupported by precedent.
The majority claims that it does not mean to say that
Nelson’s relationship to his mother is a but-for cause of his
threatened harm—this is apparently “the opposite of what [it
is saying], id. at 29—and yet it then repeats the contradiction
by positing that “there is zero evidence the robber targeted
the son based on the son’s family membership per se. The
but-for-cause of the robber targeting the son is not family
membership, it is that the robber thought Rodriguez-Zuniga
cared about her son.” Id. at 29 (emphasis added). This
strikes me as double-talk.
The majority tries once more, this time likening Nelson
to Rodriguez-Zuniga’s hypothetical pet dog. If the robber
had threatened to harm the dog, the majority suggests, “the
but-for cause of the robber threatening the dog was the
robber’s belief that the woman cared about the dog.” Id. at
29. Here again, the majority’s error is clear: the target of
the threatened harm is a target only because of his
relationship—in Nelson’s case, his family relationship—to
another person.
To satisfy the nexus requirement, an asylum applicant
must show that a protected characteristic is “one central
reason” for the feared harm. Garcia v. Wilkinson, 988 F.3d
1136, 1144 (9th Cir. 2021). That “central reason” may be
one among many, and “an asylum applicant need not prove
which reason was dominant” so long as the protected
characteristic is likely to be “a cause of the persecutors’
38 RODRIGUEZ-ZUNIGA V. GARLAND
acts.” Id. at 1144 (quoting Parussimova v. Mukasey, 555
F.3d 734, 741 (9th Cir. 2009)). For an applicant seeking
withholding of removal, an even “weaker motive” will
suffice: a protected characteristic need only be “a reason”
for the feared harm. Barajas-Romero v. Lynch, 846 F.3d
351, 359 (9th Cir. 2017).
Because Nelson’s would-be persecutors were interested
in him only because of his relationship to his mother, he
satisfies both the “a reason” nexus standard for withholding
of removal and the “one central reason” nexus standard for
asylum. Yet the majority holds that Nelson and others in his
position cannot establish that family membership is even “a
reason” for any potential persecution where financial gain
also motivates the persecutor.
The IJ made the same error in holding that Rodriguez-
Zuniga “presented no evidence that her son was threatened
on account of his kinship to her,” and that the threat to
Nelson was instead “motivated exclusively by monetary
interest.” But the record compels the opposite conclusion:
that Nelson was targeted, as the majority puts it, “merely
because [the robber] thought Rodriguez-Zuniga cared”
about Nelson. Majority Op. at 20. We should therefore
reverse the agency’s decision for lack of substantial
supporting evidence.
I further note that the agency’s disposition of Nelson’s
claim has a direct effect on the agency’s disposition of
Rodriguez-Zuniga’s claim. In Tchoukhrova v. Gonzales,
404 F.3d 1181 (9th Cir. 2005), vacated on other grounds,
549 U.S. 801 (2006), this court made clear that the
threatened harm against Nelson can support Rodriguez-
Zuniga’s own asylum application:
RODRIGUEZ-ZUNIGA V. GARLAND 39
[W]hen it is only the child who is the direct
victim, a narrow interpretation of our asylum
laws could have devastating practical effects:
Facing imminent removal, parents could be
forced to make a choice between abandoning
their child in the United States or taking him
to a country where it is likely that he will be
persecuted.
....
Our precedent supports the pragmatic
approach applied here by the agency. When
confronting cases involving persecution of
multiple family members, we have not
formalistically divided the claims between
“principal” and “derivative” applicants but
instead, without discussion, have simply
viewed the family as a whole . . . .
Id. at 1191-92.
Thus, should Nelson succeed on his asylum claim,
Rodriguez-Zuniga herself may also be afforded relief. As I
explain in the next section, however, this court’s decision in
Ayala v. Sessions, 855 F.3d 1012 (9th Cir. 2017), supports
the conclusion that Rodriguez-Zuniga independently
satisfies the nexus requirement for withholding of removal.
40 RODRIGUEZ-ZUNIGA V. GARLAND
B. The majority’s nexus holding with respect to
Rodriguez-Zuniga conflicts with this court’s decision
in Ayala, which held that an extortionist’s financial
motivation does not preclude a nexus finding based
on family membership
In Ayala, the petitioner claimed that “she and her
husband were the subjects of extortion because of his
family’s ownership of hotels.” 855 F.3d at 1020. The court
held that the IJ erred in concluding that “the only motivation
indicated throughout is extortion” despite Ayala’s testimony
that she was afraid of being targeted on the basis of her
marriage to a hotel owner. Id. The persecutors’ financial
motivation was insufficient to defeat a nexus finding because
Ayala testified that she “faced extortion[] and threats of
violence[] not only for economic reasons, but also because
of her family ties.” Id. at 1021 (citing Rios v. Lynch, 807
F.3d 1123, 1128 (9th Cir. 2015)).
The majority attempts to distinguish Ayala, alleging that
Ayala brought “an ‘extortion-plus’ claim, that is, a claim that
the petitioner was independently targeted, not just for
money, but also because of a protected ground.” Majority
Op. at 20-21 (emphasis in original). But the majority asserts
that “common sense tell us that will often, indeed usually,
not be the case.” although it “is possible—someone could
be motivated to extort a particular person by, say, animus
towards their family.” Id. at 21.
But nowhere in Ayala does the court suggest that a
showing of “animus” on the part of the persecutor is
necessary and, indeed, Ayala herself made no such showing.
See Ayala, 855 F.3d at 1016, 1020-21. The IJ’s error lay in
discounting Ayala’s testimony that she had been extorted in
the past on the basis of her family membership, not in
RODRIGUEZ-ZUNIGA V. GARLAND 41
discounting testimony that she had been extorted on the
basis of hatred or animus toward her family. See id. Ayala
is thus directly on point because we have before us a similar
case of “extortion-plus.”
Having failed to distinguish Ayala, the majority attempts
to diminish its weight by claiming that the IJ in that case
committed legal error by “categorically holding that, if a
persecutor is motivated by a financial goal, i.e., to extort, he
cannot also be motivated by a petitioner’s protected
characteristic.” Majority Op. at 21. But contrary to the
majority’s characterization, the IJ in Ayala made no such
categorical pronouncement. The Ayala court was, in fact,
quite clear that the IJ’s mistake was akin to that made in this
case:
During the hearing, Ayala claimed that a
“group of people” was targeting her because
“[m]y husband’s family owned hotels and I
believe they wanted to extort us and that is
why we were being followed.” At the end of
the hearing, the IJ stated that he was
affirming the asylum officer’s decision
“because the only motivation indicated
throughout is extortion, criminal acts.” He
did not offer any other explanation.
Ayala, 855 F.3d at 1012 (emphasis added).
In a last-ditch effort to escape Ayala’s clear implications,
the majority argues that “even the panel in Ayala expressed
some reservations . . . over whether the petitioner would
actually succeed before the agency.” Majority Op. at 22.
But such reservations are hardly surprising considering
Ayala’s failure to present the court with factual evidence to
42 RODRIGUEZ-ZUNIGA V. GARLAND
support her theoretically valid nexus theory. The Ayala
court summarized the record as follows:
[Ayala] first entered the United States in
1991 . . . . [S]he remained in the United States
until December 1998, when she left with her
husband for Guatemala.
Ayala stayed in Guatemala for only one
month. Soon after returning to Guatemala,
she and her husband were followed by a car
while riding their motorcycle. Although
Ayala got off the motorcycle at her husband’s
urging, he continued riding, and the car
followed him. Later that day, he was found
badly beaten. Her husband then told her to
return to the United States with their child.
During that same month in Guatemala, Ayala
also received threatening phone calls at her
house.
Ayala returned to the United States in
January 1999 . . . . While she has been in the
United States, her family in Guatemala has
continued to face threats. In 2007, her
husband was murdered, and at some point in
2012, unknown assailants shot at her
mother’s house.
Ayala, 855 F.3d at 1016. Based on these facts, “Ayala
claimed that a ‘group of people’ was targeting her because
‘[m]y husband’s family owned hotels and I believe they
wanted to extort us and that is why we were being
followed.’” Id. (alteration in original). On the record before
it, the agency might well have found that Ayala had not
RODRIGUEZ-ZUNIGA V. GARLAND 43
provided “some evidence . . . , direct or circumstantial” that
her persecutors were in fact motivated by her relationship to
her husband’s family. See Elias-Zacharias, 502 U.S. at 483(emphasis in original).
But in the present case, the record does not require that
we simply infer a nexus between persecution and a protected
ground. The agency here “accord[ed] . . . full evidentiary
weight” to Rodriguez-Zuniga’s testimony that the robber
warned her “that if she didn’t give [the robber] . . . money,
[the robber] was going to hurt [her] son,” and that she was
being targeted because her “family was here and that [she]
had a lot of money that [she] could give them.” And when
Rodriguez-Zuniga refused, the robber said that Rodriguez-
Zuniga’s “son was going to pay for it.”
Rodriguez-Zuniga did not guess at the woman’s motives;
she instead credibly testified that her would-be persecutor
told her why she was being targeted. And “there was no
testimony or other evidence inconsistent with [Rodriguez-
Zuniga’s] recounting of her experiences, and there was no
reason to doubt the truth, or ‘persuasiveness,’ of her
narrative” concerning the words that were uttered to her by
her would-be persecutor. See Plancarte Sauceda v.
Garland, 23 F.4th 824, 827 (9th Cir. 2022).
Unlike in Ayala, then, there is no ambiguity as to why
Rodriguez-Zuniga was targeted. Rodriguez-Zuniga’s
potential persecutors knew her identity and the identities of
her family members, and their representative targeted
Rodriguez-Zuniga using her relationship to her son and
because of her relationship to her husband. Rodriguez-
Zuniga has therefore satisfied her burden of establishing that
her family membership was at least “a reason” for her
persecutors’ actions. See Barajas-Romero v. Lynch, 846
44 RODRIGUEZ-ZUNIGA V. GARLAND
F.3d 351, 357-58 (9th Cir. 2017) (holding that, to meet the
nexus requirement for a withholding-of-removal claim, an
applicant need show only that a protected ground is “a
reason” for her feared harm).
C. The nexus standard for family-based particular
social groups is not dependent on the persecutor’s
singular “actual” motivation
In determining whether a nexus exists between
persecution and a protected ground, the majority erroneously
limits consideration to the persecutor’s singular “actual” or
“intrinsic” motivation. See Majority Op. at 18, 18 n.2. But
an asylum seeker need prove only that any prospective
persecution “would be ‘on account of’ one of the five
[protected grounds],” or that those protected grounds would
be “one central reason” for the harm. Barajas-Romero, 846
F.3d at 357-58. In contrast, a person seeking withholding of
removal must prove that her “life or freedom will be
threatened in [her] home country . . . ‘because of’ one of the
five [protected grounds],” or that those protected grounds
would be “a reason” for the harm. Id.Neither asylum claims nor withholding-of-removal
claims require that a protected ground be “the persecutor’s
actual motivation,” see Majority Op. at 18, for inflicting the
harm. Even under asylum’s more stringent “at least one
central reason” standard, “persecution may be caused by
more than one central reason, and an asylum applicant need
not prove which reason was dominant.” Parussimova, 555
F.3d at 741. By eliminating a petitioner’s ability to establish
a nexus to a protected ground where “the persecutor’s actual
motivation for threatening a person is to extort money from
a third person,” see Majority Op. at 18, the majority departs
from this court’s precedents that affirm the principle that
RODRIGUEZ-ZUNIGA V. GARLAND 45
“[p]eople, including persecutors, often have mixed
motives.” Garcia v. Wilkinson, 988 F.3d 1136, 1143 (9th
Cir. 2021) (quoting Barajas-Romero, 846 F.3d at 357).
The majority states that it does not deny the “basic
principle” that “a petitioner may be entitled to relief when a
persecutor holds multiple or mixed motivations.” See
Majority Op. at 18 n.2. But the effect of failing to consider
alternative motives for persecutory acts when the persecutor
also holds a financial motivation (which, in the majority’s
view, is “the persecutor’s actual motivation,” see id. at 18)
is to deny that basic principle.
The crux of the majority’s rationale seems to be that
family membership in a case such as this is not “the actual
motivation” for persecution because it is a means to an end.
See id. at 31-32 But “[a] person may have ‘a reason’ to do
something that is not his ‘central’ reason or even ‘one central
reason.’” Barajas-Romero, 846 F.3d at 359. And so, to the
extent that the majority’s holding is directed at Rodriguez-
Zuniga and others similarly situated (rather than at Nelson),
it is inconsistent with the more lenient nexus requirement for
withholding-of-removal claims.
Moreover, a motive is not only “a reason” but also “a
‘central reason’ if the persecutor would not have harmed the
applicant if such motive did not exist.” Parussimova, 555
F.3d at 741. To satisfy asylum’s nexus standard, “an
applicant must prove that such ground was a cause of the
persecutors’ acts.” Id. And a but-for cause is certainly a
cause. See id. Thus, for someone like Nelson, who becomes
the indirect target of extortionist threats presented to his
mother, both nexus standards are satisfied.
The majority’s narrow focus on a persecutor’s financial
motivation is also difficult to reconcile with binding
46 RODRIGUEZ-ZUNIGA V. GARLAND
Supreme Court precedent. In INS v. Elias-Zacharias, 502
U.S. 478, 481-82 (1992), the Supreme Court held that
whether a persecutor’s motives are themselves political is
“irrelevant” to establishing a nexus to a protected political
opinion. Instead, reviewing courts must ask whether the
persecutor is motivated by what they perceive to be the
victim’s protected political opinion. Id. at 482.
That same principle applies here. Our inquiry should not
be based on whether the persecutors’ acts were motivated by
an unprotected characteristic, such as a desire for financial
gain, but rather on whether they were related to one of
Rodriguez-Zuniga’s or Nelson’s protected grounds—such as
family membership. See id. (“[T]he ordinary meaning of the
phrase ‘persecution on account of [a protected ground]’ in [8
U.S.C. § 1101](a)(42) is persecution on account of the
victim’s [protected ground], not the persecutor’s.”)
(emphasis in original). That the potential persecutors in the
present case also had an economic motivation is thus an
insufficient basis for us to dismiss their interest in
Rodriguez-Zuniga’s and Nelson’s family membership, just
as the nonpolitical motivations of the persecutors in
Elias-Zacharias were insufficient to allow the court to
dismiss their interest in the petitioner’s protected
characteristics. See id.D. The majority fails to hold the agency accountable for
several procedural missteps
1. The agency failed to independently analyze the
likelihood that Rodriguez-Zuniga and Nelson
would be subject to future harm
Both the IJ and the BIA erred in relying on a negative
past-persecution finding to reflexively dispose of
Rodriguez-Zuniga’s and Nelson’s future-persecution claim.
RODRIGUEZ-ZUNIGA V. GARLAND 47
The majority outlines the IJ’s well-founded-fear finding as
follows: “The IJ noted that, having found Rodriguez-Zuniga
could not ‘claim past persecution on account of a protected
ground, it necessarily follow[ed] she also cannot claim a
well-founded fear of future persecution on account of the
same protected ground.’” See Majority Op. at 24 (alteration
in original) (quoting the IJ).
No additional analysis was provided by the BIA.
Instead, the BIA stated that Rodriguez-Zuniga “did not
establish a nexus between the single incident she
experienced or the harm she fears and either her family
membership, or her status as a Guatemalan woman.” Id. at
25. And it did so without considering Rodriguez-Zuniga’s
extensive evidence in support of her well-founded fear of
future persecution. The BIA’s single sentence is not an
analysis; it is a conclusion, and an unsupported one at that.
Settled law clearly provides that the failure to establish a
nexus for past harm does not preclude a petitioner from
establishing a nexus with respect to likely future harm, even
if the claim rests upon the same proffered evidence and
protected grounds. See, e.g., Regalado-Escobar v. Holder,
717 F.3d 724, 729-30 (9th Cir. 2013) (remanding for the BIA
to consider whether a petitioner had established a well-
founded fear of future persecution on account of a protected
ground, despite affirming the BIA’s conclusion that the
petitioner had failed to establish a nexus to that same
protected ground for past persecution); Spesovska v. Holder,
311 F. App’x 946, 948-49 (9th Cir. 2009) (granting the
petition for review and remanding “[b]ecause the BIA did
not address the question of [the petitioner]’s individualized
risk of future persecution based on her religion,”
notwithstanding its conclusion that substantial evidence
48 RODRIGUEZ-ZUNIGA V. GARLAND
supported the BIA’s determination that her past harm had
not occurred “on account of” religion).
A contrary interpretation is untenable because the past-
persecution and well-founded-fear inquiries are distinct
from one another and encompass different factors. To
establish past persecution, a petitioner must provide
evidence that “(1) he has endured serious harm such that his
‘treatment rises to the level of persecution’; (2) ‘the
persecution was committed by the government, or by forces
that the government was unable or unwilling to control’; and
(3) ‘the persecution was on account of one or more protected
grounds.’” Singh v. Garland, 48 F.4th 1059, 1067 (9th Cir.
2022) (quoting Kaur v. Wilkinson, 986 F.3d 1216, 1221-22
(9th Cir. 2021)).
By contrast, to demonstrate a well-founded fear of future
persecution, a petitioner need not make such a showing. The
petitioner may instead either (1) “establish[] ‘a pattern or
practice of persecution of people similarly situated,’” or (2)
“prove that she is a member of a ‘disfavored group’ coupled
with a showing that she, in particular, is likely to be targeted
as a member of that group.” Sael v. Ashcroft, 386 F.3d 922,
925 (9th Cir. 2004) (quoting Knezevic v. Ashcroft, 367 F.3d
1206, 1213 (9th Cir. 2004), and Mgoian v. INS, 184 F.3d
1029, 1035 n.4 (9th Cir. 1999)); accord, e.g., Halim v.
Holder, 590 F.3d 971, 977 (9th Cir. 2009). Under the latter
approach, “the ‘more serious and widespread the threat’ to
the group in general, ‘the less individualized the threat of
persecution needs to be.’” Sael, 386 F.3d at 925 (quoting
Mgoian, 184 F.3d at 1035 n.4).
The distinction between the past-persecution and the
well-founded-fear analyses bears directly on the nexus issue.
Suppose an IJ found that an LGBTQ petitioner who faced
RODRIGUEZ-ZUNIGA V. GARLAND 49
removal to a country that criminalizes same-sex relations
had faced a single incident of past harm that was not “on
account of” her sexual identity or orientation, but rather was
an act of random violence. The law does not allow the IJ to
entirely bypass the pattern-or-practice and disfavored-group
inquiries by categorically declaring, as she did here, that
“because the Court has previously found [that] [the LGBTQ
petitioner] cannot claim past persecution on account of a
protected ground, it necessarily follows [that] she also
cannot claim a well-founded fear of persecution on account
of the same protected ground.”
Elsewhere in the decision, the IJ acknowledged the
evidence that Rodriguez-Zuniga had presented in support of
her claim of a well-founded fear of future persecution when
the IJ stated that “the record shows that there is a high level
of violence against Guatemalan women,” including “sexual
assault, torture, and mutilation,” and recognizing the “very
high” levels of “impunity for the perpetrators of such
crimes” due to “the government[’s] fail[ure] to enforce its
laws against rape and domestic abuse.” Yet the IJ
inexplicably failed to consider Rodriguez-Zuniga’s claim
that, “as an alternative to past persecution, [she] satisfies the
requirement of well-founded fear of future persecution” on
account of her membership in the cognizable social group of
“Guatemalan women.”
“IJs and the BIA are not free to ignore arguments raised
by a petitioner.” Antonio v. Garland, 58 F.4th 1067, 1075
(9th Cir. 2023) (quoting Sagaydak v. Gonzales, 405 F.3d
1035, 1040 (9th Cir. 2005)). And the “[f]ailure to address a
social group claim, or failure to analyze such a claim under
the correct legal standard, ‘constitutes error and requires
remand.’” See id. (quoting Rios v. Lynch, 807 F.3d 1123,
1126 (9th Cir. 2015)).
50 RODRIGUEZ-ZUNIGA V. GARLAND
Remand is required even if, as the majority suggests, see
Majority Op. at 22-23, the IJ did not intend to announce a
categorical rule, but instead inartfully summarized her
implicit findings on nexus with respect to future persecution.
“[T]he basis for an agency determination ‘must be set forth
with such clarity as to be understandable. It will not do for
a court to be compelled to guess at the theory underlying the
agency’s action.’” Recinos de Leon v. Gonzales, 400 F.3d
1185, 1189 (9th Cir. 2005) (quoting SEC v. Chenery Corp.,
332 U.S. 194, 196-97 (1947)).
2. The agency failed to properly consider Rodriguez-
Zuniga’s political-opinion claim
In addition to claiming before the agency that she feared
persecution by reason of her family membership and her
status as a Guatemalan woman, Rodriguez-Zuniga
contended that she was at risk due to her political opinion.
Yet the IJ did not address this claim in any way, much less
in a meaningful one. And again, “IJs and the BIA are not
free to ignore arguments raised by a petitioner.” Antonio v.
Garland, 58 F.4th 1067, 1075 (9th Cir. 2023) (quoting
Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005)).
The majority states that the BIA addressed Rodriguez-
Zuniga’s political-opinion argument by “concluding that she
presented no evidence [that] ‘she ever expressed a political
opinion.’” Majority Op. at 13 (quoting the BIA). But the
BIA abused its discretion in so doing because its single-
sentence resolution of the issue—in a footnote, no less—did
not satisfy its duty to “explain what factors it has considered
or relied upon.” Kalubi v. Ashcroft, 364 F.3d 1134, 1140
(9th Cir. 2004) (citing Rodriguez-Matamoros v. INS, 86 F.3d
158, 160 (9th Cir. 1996)); see also, e.g., Movsisian v.
Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (“We have
RODRIGUEZ-ZUNIGA V. GARLAND 51
long held that the BIA abuses its discretion when it fails to
provide a reasoned explanation for its actions.”); Mattis v.
INS, 774 F.2d 965, 967 (9th Cir. 1985) (“[W]e require that
[the BIA’s] stated reasons evidence its consideration of all
relevant factors. Cursory, summary or conclusory
statements are inadequate.” (citations omitted)).
The majority expands on the BIA’s single-sentence,
footnoted rationale for nearly five pages. See Majority Op.
at 13-15, 32-33. But “reviewing courts remain bound by
traditional administrative law principles, including the rule
that judges generally must assess the lawfulness of an
agency’s action in light of the explanations the agency
offered for it rather than any ex post rationales a court can
devise.” Garland v. Ming Dai, 141 S. Ct. 1669, 1679 (2021).
The BIA’s cursory ruling on Rodriguez-Zuniga’s
political-opinion claim was also erroneous because the BIA
arrived at its evidentiary conclusion without the benefit of a
factual finding by the IJ. The BIA’s regulations are
unequivocal: the BIA cannot engage in its own factfinding.
8 C.F.R. § 1003.1(d)(3)(iv)(A) (2022) (“The Board will not
engage in factfinding in the course of deciding cases . . . .”).
This court, in Rodriguez v. Holder, 683 F.3d 1164 (9th Cir.
2012), has said the same:
Where the IJ has not made a finding of fact
on a disputed matter, and such a finding is
necessary to resolution of the case, the BIA
must remand to the IJ to make the required
finding; it may not conduct its own fact-
finding. Where the BIA fails to follow its
own regulations and makes factual findings,
“it commits an error of law, which we have
jurisdiction to correct.”
52 RODRIGUEZ-ZUNIGA V. GARLAND
Id. at 1170 (citations omitted) (quoting Padmore v. Holder,
609 F.3d 62, 67 (2d Cir. 2010)); see also, e.g., Brezilien v.
Holder, 569 F.3d 403, 413 (9th Cir. 2009) (“[W]here the IJ
has not made a necessary factual finding, the regulation
requires the BIA to remand the factual inquiry to the IJ rather
than making its own factual finding on the matter.”).
Here, the IJ entirely neglected to consider, even
cursorily, that Rodriguez-Zuniga had asserted a political
opinion as a protected ground. The BIA thus had no lawful
basis to reach a conclusion on this issue. See Solorio Mejia
v. Barr, 833 F. App’x 455, 457 n.2 (9th Cir. 2020) (“The
Board lacked authority to correct the IJ’s failure to make a
factual determination about whether the cartel imputed a
political opinion to Solorio Mejia.”). And the defect is not
curable by the majority conducting independent factfinding
of its own or by offering rationales that were not put forth by
the BIA itself. The case should therefore be remanded.
3. The agency erred in its analysis of Rodriguez-
Zuniga’s request for protection under the
Convention Against Torture (CAT)
Finally, the agency erred in its analysis of Rodriguez-
Zuniga’s request for protection under the CAT. The
majority avoids this issue by opining that Rodriguez-Zuniga
has waived any argument regarding this claim because she
“does not argue that the agency erred in finding that she
presented insufficient evidence that the Guatemalan
government would consent to her torture.” Majority Op. at
25.
To the contrary, Rodriguez-Zuniga argues that the
agency erred in failing to consider evidence favorable to her
CAT claim, and that she has “articulated a specific
individualized threat of torture.” Government acquiescence
RODRIGUEZ-ZUNIGA V. GARLAND 53
is part and parcel of the legal meaning of torture, which is
defined under the CAT not just as an act imposing severe
pain or suffering, but rather
any act by which severe pain or suffering,
whether physical or mental, is intentionally
inflicted on a person . . . when such pain or
suffering is inflicted by, or at the instigation
of, or with the consent or acquiescence of, a
public official acting in an official capacity or
other person acting in an official capacity.
8 C.F.R. § 1208.18(a)(1); see also, e.g., Ornelas-Chavez v.
Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006) (“To qualify
for protection under CAT, Ornelas-Chavez must establish
that he suffered torture, i.e., severe pain or suffering
intentionally inflicted for discriminatory purposes “by or at
the instigation of or with the consent or acquiescence of a
public official or other person acting in an official
capacity.”); Hernandez v. Barr, 830 F. App’x 804, 807 (9th
Cir. 2020) (Hunsaker, J., dissenting) (“[T]he definition of
‘torture’ encompasses government ‘acquiescence’ . . . .”).
By challenging the agency’s finding that she was not more
likely than not to be tortured, Rodriguez-Zuniga therefore
necessarily challenges the agency’s findings both as to the
severity of the harm that she was likely to suffer and as to
acquiescence by the Guatemalan government.
Once the obstacle of waiver is removed, the agency’s
analytical errors are readily apparent. As a threshold matter,
this court has held that “a CAT applicant may satisfy his
burden with evidence of country conditions alone.” Aguilar-
Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010). The
IJ’s guiding principle that “a pattern of human rights
54 RODRIGUEZ-ZUNIGA V. GARLAND
violations alone is insufficient to show a particular applicant
would be in danger of torture if returned to that country” is
therefore contrary to the law of this circuit.
The agency also erred in failing to consider “all evidence
relevant to the possibility of future torture.” See 8 C.F.R.
§ 1208.16(c)(3). Specifically, it did not discuss, in analyzing
Rodriguez-Zuniga’s CAT claim, the evidence that
Rodriguez-Zuniga had presented with the respect to the
danger that she was likely to face as a woman in Guatemala.
The agency’s failure to discuss that evidence suggests that
the agency ignored its own regulation:
When nothing in the record or the BIA’s
decision indicates a failure to consider all the
evidence, a “general statement that [the
agency] considered all the evidence before
[it]” may be sufficient. But, where there is
any indication that the BIA did not consider
all of the evidence before it, a catchall phrase
does not suffice, and the decision cannot
stand. Such indications include misstating
the record and failing to mention highly
probative or potentially dispositive evidence.
Cole v. Holder, 659 F.3d 762, 771-72 (9th Cir. 2011)
(brackets in original) (emphasis added) (quoting Almaghzar
v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006)).
Moreover, “in assessing a CAT claim from an applicant
who has posited multiple theories for why he might be
tortured, the relevant inquiry is whether the total probability
that the applicant will be tortured—considering all potential
sources of and reasons for torture—exceeds 50 percent.”
Velasquez-Samayoa v. Garland, 49 F.4th 1149, 1154 (9th
RODRIGUEZ-ZUNIGA V. GARLAND 55
Cir. 2022) (emphasis in original). The agency was thus
required to consider not only the country-conditions
evidence, but also to consider it in conjunction with evidence
of the prior threats against Rodriguez-Zuniga and her son.
Finally, “the IJ and BIA erred by construing
‘government acquiescence’ too narrowly.” See Aguilar-
Ramos, 594 F.3d at 705. The IJ based her acquiescence
conclusion solely on “the Guatemalan government[’s
having] taken steps to combat criminal violence and combat
human rights,” and that “[t]he Guatemalan constitution and
laws also prohibit torture or cruel, inhuman, and degrading
treatment.” But this court has found error where “the BIA
focused only on the national government’s efforts and not
their efficacy.” See Barajas-Romero v. Lynch, 846 F.3d 351,
363 (9th Cir. 2017). “[T]he ‘efficacy of the government’s
efforts to stop the . . . violence,’ not just the willingness of
the national government to do so, must be examined.” Id.(quoting Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir.
2013)).
Indeed, in the same opinion where the IJ lauded the
Guatemalan government’s efforts, she also observed that
“[i]mpunity for the perpetrators of . . . crimes against women
remain[s] very high, and the government is failing to enforce
its laws against rape and domestic abuse,” and that “[t]he
record details often brutal violence against women by gangs,
government authorities, and society in general.” (emphasis
added). A State Department report concerning human rights
in Guatemala remarked that “[p]rincipal human rights
abuses included widespread institutional corruption,
particularly in the police and judicial sectors; police and
military involvement in serious crimes, such as kidnapping,
drug trafficking, trafficking in persons, and extortion; and
societal violence, including lethal violence against women.”
56 RODRIGUEZ-ZUNIGA V. GARLAND
The report further noted that “[g]angs, organized crime, and
narcotics trafficking organizations committed considerable
violence; corruption and inadequate investigation made
prosecution of such crimes difficult.”
The agency therefore erred in its consideration of
government acquiescence by limiting its analysis to the
formalized existence of governmental efforts to protect its
citizens. Whatever the merits of her CAT claim, Rodriguez-
Zuniga is entitled to a procedurally adequate adjudication.
CONCLUSION
The majority hesitates to apply what it characterizes as
the “arcane requirements” of our settled law because it is
concerned that doing so might lead to results that are not
“what . . . Congress meant by providing relief for refugees.”
Majority Op. at 28. But our duty is to apply the law, not to
rewrite it.
In any event, the majority’s fear that “[s]omething has
gone terribly wrong when judges conclude that relief for
persecution and torture is mandated just because someone
was the victim of a brief and failed robbery attempt in their
home country,” Majority Op. at 28, is unfounded. To apply
this court’s precedent would not require the BIA to afford
relief to Rodriguez-Zuniga and Nelson. Instead, “[w]hen we
remand due to the BIA’s legal error, we allow the BIA to
exercise its judgment and administrative expertise using the
appropriate legal standards. In such cases . . . we do not
instruct the BIA as to any required outcome on remand.”
Kotasz v. INS, 31 F.3d 847, 851 (9th Cir. 1994) (citation
omitted).
Although I believe that substantial evidence should
compel the agency to conclude that Rodriguez-Zuniga and
RODRIGUEZ-ZUNIGA V. GARLAND 57
Nelson have satisfied the nexus requirement, the agency
must still determine whether they are likely to suffer future
harm rising to the level of persecution. It must also consider
whether the Guatemalan government would be unable or
unwilling to protect them from such persecution, and
whether they would be able to reasonably relocate within
Guatemala. They thus have many hurdles yet to clear, but in
my view they have cleared enough to be entitled to
reconsideration. I therefore respectfully dissent.