Tenth Circuit Rejects BIA's Family-Based PSG Analysis

The Tenth Circuit has rejected the agency’s analysis of family-based particular social groups. “Accordingly, we hold the BIA’s stated rule for family-based nexus claims is contrary to the INA because its categorical formulation runs counter to the INA’s ‘at least one central reason’ standard. But we find no error in the BIA’s ‘means-ends’ framing in its discussion of the INA’s motive requirement.”

“The BIA’s stated nexus standard improperly disallows mixed-motive claims. This unlawful standard governs a dispositive issue and appears in a published three-judge BIA opinion, so it serves as precedent in all agency-level proceedings involving the same issue.”

“When applied, this unlawful standard improperly requires the agency to ignore evidence in the asylum applicant’s favor. According to its plain terms, once the agency determines a persecutor is targeting members of a certain family as a means of achieving some other ultimate goal unrelated to the protected ground, the analysis stops, and family membership must then be incidental or subordinate to that other ultimate goal and therefore not one central reason for the harm—full stop. The BIA’s erroneous legal standard thereby deems some facts legally irrelevant: it requires the agency to disregard other possible motives as soon as the antecedent (“if”) condition is satisfied. As the C.R. family put it, under this new rule, ‘any record evidence establishing that family was at least one central reason for harm [i]s categorically insufficient for asylum seekers to meet their burden of proof in establishing nexus’ once an unprotected-ground related motive is found. We have rejected that analytical shortcut, as motives that are unrelated to protected grounds do not negate possible motives related to protected grounds.”

The full text of O.C.V. v. Bondi can be found here:

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111288784.pdf

Third Circuit Rejects Subordination- and Animus-based Nexus Tests

The Third Circuit has again rejected the use of a subordination test (i.e., asking if a protected ground motive for persecution is subordinate to other motives) and an animus test (i.e., asking if the persecutor was motivated by an animus against the protected characteristic). In addition, the Court reiterated that just because a government is attempting to prevent torture does not mean it is succeeding, and that the efforts are not determinative of whether there is government acquiescence to torture.

The full text of Tipan Lopez v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/241444p.pdf

BIA Addresses Nexus Standard

The Board of Immigration Appeals has stated that while “explicit statements from the persecutors regarding the protected ground are not required, there must be some showing of a connection beyond speculation such that the alleged harm is not solely stemming from statistical likelihoods or unfortunate coincidence.” “Thus, the Immigration Judge erred in concluding that a showing of nexus does not require indicia of persecutory motive.”

The full text of Matter of C-I-R-H- & H-S-V-R can be found here:

https://www.justice.gov/eoir/media/1404921/dl?inline

First Circuit Remands Gender Violence Asylum Claim

The First Circuit has remanded an Ecuadorian woman's asylum claim, finding that the agency failed to engage in the appropriate “mixed motives” analysis. “Testimony identifying a non-protected motivation animating an asylum applicant's persecutor is therefore insufficient in and of itself to defeat an asylum claim. That principle applies with particular force when, as here, an asylum applicant was persecuted during childhood, as rarely will an applicant know the exact motivation of her persecutors -- especially when she was victimized as a young child -- and, of course, persecutors may often have more than one motivation."

The full text of Mayancela Guaman v. Bondi can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1295P-01A.pdf

Ninth Circuit Reverses Denial of Asylum

The Ninth Circuit has reversed an agency’s denial of asylum, finding that the non-citizen had experienced harm rising to the level of persecution, by actors the government of Mexico was unable to control, on account of her family ties.

“The harms that Meza Diaz and her family suffered— murder, physical assault, kidnapping, a home invasion, and specific, years-long death threats—clearly rise to the level of persecution under our precedents.”

“The report contained the attackers’ statement to Meza Diaz that ‘your time has come’ and that she was going to die. The attackers’ statement that Meza Diaz’s ‘time ha[d] come’ links the home invasion and attack to the numerous death threats Meza Diaz received after her brother’s murder and husband’s kidnapping. Several of those death threats were made by callers who told Meza Diaz that they knew she was Ismar’s sister and that she did not want to meet his fate—namely, being murdered. The police report also notes that Ismar’s murderers were recently released from prison. And the report summarizes Meza Diaz’s family history, including her brother’s murder, her husband’s kidnapping, and the death threats and extortion attempts that Meza Diaz suffered after both events.” “In concluding that Meza Diaz had not presented any evidence of a link between the home invasion and her family history, the agency failed to consider the attackers’ statement or the additional evidence presented in the police report in making its nexus determination.”

“But although Meza Diaz provided the police with significant information regarding who might have a motive to harm her, the police explicitly told her that they could not guarantee her safety and recommended that she flee the country. Meza Diaz presented compelling evidence indicating that the police were either unable or unwilling to control her persecutors.” “The explicit admission by the police that they could not ensure Meza Diaz’s safety must be given substantial weight because the question on this step is whether the government both ‘could and would provide protection.”

The full text of Meza Diaz v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/08/23-973.pdf

An amended opinion, which does not evaluate whether the past harm rose to the level of persecution, can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/02/25/23-973.pdf

Fifth Circuit Remands Asylum Denial to Cameroonian Nurse

The Fifth Circuit has remanded an asylum claim for a Cameroonian nurse, finding that the agency’s analysis of past persecution was insufficient, its analysis of nexus was incorrect, and its lack of corroboration finding was contradicted by the record. “Aben was arrested and detained three times; held in unlawful captivity for a total of six days; slapped, kicked, and knocked in the head; beaten with a belt and a stick; suffered several lacerations, blisters, sores, and bruises; threatened with death while held at gunpoint; and told he would be killed if he did not run fast enough to escape. The BIA’s determination must be vacated because it fails to account for the credible death threats that Aben received.”

“The BIA stated that the actions taken against Aben were not politically motivated but instead were taken due to his occupation as a nurse. However, the BIA failed to address the fact that Aben testified that the military imputed a political opinion to him because military members chastised him for treating ‘separatist fighters,’ and told Aben ‘you [Anglos] think you can fight the government. We will kill you one by one.’ He also testified that as he was being taken from his uncle’s home, he was told, ‘[Y]ou think you can fight us.’ Aben did not claim that the military was targeting him because he was a nurse. Rather he argues that he was perceived to be assisting separatists and later accused of fighting against the government. The BIA does not address this evidence.“

“The BIA and IJ faulted Aben for not documenting his injuries with pictures or medical records. But Aben stated that the Cameroonian authorities seized his cellphone and that he was afraid to use one because of what the authorities would do if they found documentation. He also stated that he avoided hospitals because of fear. Accordingly, the two means of documenting his injuries that the IJ faulted Aben for not using appear unavailable to him based on the record.”

The full text of Aben v. Holder can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60937-CV0.pdf

Ninth Circuit Determines But-For Causation is not Necessary to Establish Nexus to Protected Ground

The Ninth Circuit has determined that “but-for causation” is one way - but not the only way - to establish that a protected ground was one central reason for persecution. “Sometimes, a protected ground will be a but-for cause of the harm and play more than a minor role, but it won’t be sufficient on its own to cause the harm. Other times, a protected ground will be sufficient on its own, but it won’t be a but-for cause because there is another unprotected ground that would be sufficient on its own. Under Parussimova, both circumstances meet our ‘one central reason’ standard.” Employing this analysis, the Court concluded that an applicant’s Jehovah’s Witness faith was one central reason for the harm he experienced when gang members threatened to harm him if he did not stop preaching, even while they also extorted money from him.

The full text of Alfaro Manzano v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/06/25/22-704.pdf

BIA Narrows Relief for Family-Based Particular Social Groups

The Board of Immigration Appeals has again narrowed the circumstances in which an asylum applicant can establish the requisite nexus between persecution and the particular social group comprised of the applicant’s family. “In our view, the Tenth Circuit’s approach is the proper way to analyze whether membership in a family-based particular social group is one central reason for harm. The question asked under the Fourth Circuit’s approach—why an applicant, and not others, is targeted—is relevant in evaluating the reasons for harm, but it is not the end of the analysis. When a persecutor targets multiple members of a single family, their family membership may be a reason for harming them, especially when non-family members are not similarly targeted. However, the fact that family membership is a reason for harm does not mean that it is necessarily one central reason. If a persecutor is targeting members of a certain family as a means of achieving some other ultimate goal unrelated to the protected ground, family membership is incidental or subordinate to that other ultimate goal and therefore not one central reason for the harm. Likewise, when a persecutor’s threats to harm family members are contingent on one or more of the family members acting or failing to act in a certain way—such as failing to comply with demands for money or other property—family membership is unlikely to be one central reason for that harm and instead will be merely a means to another end.”

The full text of Matter of M-R-M-S- can be found here:

https://www.justice.gov/d9/2023-12/4068.pdf

Ninth Circuit Issues Harsh Decision on Nexus to a Protected Ground

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

Second Circuit Upholds One Central Reason Standard in Withholding of Removal Cases

The Second Circuit has deferred to the agency’s requirement that a protected ground be “one central reason” for persecution in order to qualify for withholding of removal. The Court concluded that the INA does not unambiguously provide the proper standard for assessing motive in withholding of removal claims, and thus, deferred to the agency’s interpretation as a reasonable one.

The full text of Quituizaca v. Garland can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/2/doc/19-3470_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/2/hilite/

Sixth Circuit Addresses Corroborating Evidence and Nexus for Withholding of Removal

The Sixth Circuit has overturned a negative corroborating evidence determination in a withholding of removal case because the applicant was not given the opportunity to explain the absence of the corroborating evidence. The court further determined that an affidavit from the applicant’s sister was not reasonably available because she lived a 30-60 minute walk from a telephone that she had to pay to use, and the applicant accordingly only spoke with her about once per year. An affidavit was from the applicant’s mother was also unavailable because she still lived with the persecutor and because she could not write. Finally, the court determined that a withholding of removal applicant need only show that a protected ground is “a reason,” not “one central reason,” for the harm he suffered or fears suffering.

The full text of Guzman Vazquez v. Barr can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0155p-06.pdf

Eighth Circuit Rejects Family-Based Withholding Claim

The Eighth Circuit has rejected family-based withholding of removal claim. Extortionists had killed the petitioner’s stepfather after he was unable to pay extortion. They then threatened to kill petitioner’s mother and siblings. However, the court found this threat to be insufficient to demonstrate that any harm the petitioner would suffer would be on account of her family membership, as opposed to the extortionists’ desire to obtain money.

The full text of Silvestre-Giron v. Barr can be found here:

https://ecf.ca8.uscourts.gov/opndir/20/02/182887P.pdf

Fourth Circuit Finds Applicant Persecuted on Account of Family Ties

The Fourth Circuit has found a woman was persecuted on account of her membership in a well-known, business-owning family.  While the threatening notes from the gang members did not explicitly reference her family ties, the court noted that they the notes must be considered in context: (1) Zavaleta Policiano and her father’s stores, as well as their familial relationship, were well-known in the community; (2) MS-13 threatened Zavaleta Policiano several times by phone; (3) Zavaleta Policiano’s statement that MS-13 “threatened me because my father had left;” and (4) the threats against Zavaleta Policiano began immediately after her father fled to Mexico.  

"When considering the unchallenged record evidence, we are compelled to conclude that Zavaleta Policiano’s familial relationship to her father was “at least one central reason” MS-13 targeted and threatened her.  The evidence shows that MS-13 explicitly threatened to kill Zavaleta Policiano’s father and his family if he did not pay the extortion demands, and that immediately after he fled El Salvador, the gang began threatening Zavaleta Policiano.  The timing of the threats against Zavaleta Policiano is key, as it indicates that MS-13 was following up on its prior threat to target Barrientos’s family if he did not accede to the gang’s demands.  This explanation appears especially probable given the absence of record evidence that Zavaleta Policiano was ever threatened before her father’s departure."

The full text of Zavaleta-Policiano v. Sessions can be found here:

http://www.ca4.uscourts.gov/Opinions/Published/161231.P.pdf