The Ninth Circuit, using an asylum claim with bad facts involving a failed robbery, has issued a terrible decision that could have dramatic consequences for the nexus analysis related to family-based asylum claims. First, the court rejected the proposed social group of “families that lack an immediate family male protector” as lacking social distinction.
Second, the Court indicated that 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. 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. 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.
This analysis seems to totally undermine any possibility of establishing a nexus to family membership for a relative threatened with harm in order to coerce another relative into paying extortion - a classic family-based asylum scenario to date.
In addition, the Court reviewed the nexus determination for substantial evidence. Recent case law indicates that the Board of Immigration Appeals should review the nexus determination de novo, which suggests that the nexus question may be a question of law, not a question of fact. If it is, indeed, a question of law, then it would be subject to de novo review at the federal court level as well. This may be an interesting issue to bring up in a request for rehearing.
The full text of Rodriguez-Zuniga v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/07/19-72024.pdf