NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WILLIAM CRUZ CORTEZ,

Petitioner,
v. MERRICK B. GARLAND, Attorney General, Respondent. No. 22
- 1694 Agency No. A216
- 550
- 797 MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted January 8, 2024 San Francisco , California Before: SILER ** , TASHIMA, and BRESS, Circuit Judges
. Dissent by Judge TASHIMA. William Cruz Cortez (Cortez) , a native and citizen of El Salvador, petitions for review of a Board of Immigration Appeals (BIA) decision dismissing an appeal of an Immigration Judge (IJ) order denying his application for asylum, withholding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Eugene E. Siler , United States Circuit Judge for the Court of Appeals, 6th Circuit , sitting by designation. 

# FILED
APR 22 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 22
- 1694

of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition. 1

“ Because the BIA agreed with the IJ ’ s reasoning and added some of its own, we review the BIA ’ s decision and those parts of the IJ ’ s decision upon which it relied. ” Sharma v. Garland , 9 F.4th 1052, 1059 (9th Cir. 2021). “ We review for substantial evidence the BIA ’ s determination that a petitioner has failed to establish eligibility for asylum or withholding of removal. ” Id. at 1060. Under the substantial evidence standard, “ we must uphold the agency determination unless the evidence compels a contrary c onclusion.” Duran

- Rodriguez v. Barr , 918 F.3d 1025, 1028 (9th Cir. 2019). To be eligible for asylum, a petitioner has the burden to demonstrate “persecution or a well

- founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A)
. “To be eligible for withholding of removal, the petitioner must discharge this burden by a ‘ clear probability. ’ ” Sharma , 9 F.4th at 1059 (quoting Alvarez

- Santos v. INS , 332 F.3d 1245, 1255 (9th Cir. 2003))
. To obtain relief, the petitioner must show tha t his past or feared persecution bears a nexus to a protected ground. Umana

- Escobar v. Garland , 69 F.4th 544, 551 (9th Cir. 2023), as amended
.

1 Cortez does not challenge the BIA’s decision that his CAT claim is waived.3 22
- 1694

For asylum, the petitioner must show that a protected ground “was or will be at least one central reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i)
. For withholding of removal, there is a nexus if the petitioner shows that a protected ground was “a reason” for the past or feared harm. Barajas

- Romero v. Lynch , 846 F.3d 351, 360 (9th Cir. 2017)
. Substantial evidence supports the BIA’s determination that Cortez cannot demonstrate a nexus between his past or feared persecution and a protected ground. 2 Cortez waived the issue of past persecution by failing to argue it before the BIA in any meaningful way. See generally Rizo v. Lynch , 810 F.3d 688, 692 (9th Cir. 2016) (holding that a petitioner does not meaningfully challenge the IJ’s finding if he does not “apprise the BIA of the particular basis for [his] claim that the IJ erred”). As to claimed future persecution, i n determining that Cortez failed to demonstrate a nexus to his proposed social group of former bus drivers, the IJ found that “ [t]he gang, and El Diablo specifically, a member of the gang, was targeting [Cortez] because he was accessible and had information about his father

- in

- law, the father of his partner, who had businesses and money, and the intent of the gang was to extort the money from [Cortez’s] father

- in

- law, the father of his partner.” Referencing this finding, the BIA stated that Cortez “has not e stablished clear error

2 Because we resolve the petition for review on nexus grounds, we do not reach whether the agency’s particular social group analysis was correct.4 22
- 1694

in the Immigration Judge’s finding that any harm to him would be motivated by the gang members’ desire to extort his partner’s father’s businesses.” 3 The record does not compel a contrary conclusion. In his declaration, Cortez stated that the MS gang extorted him for “rent,” which he paid on a weekly basis. Cortez’s declaration also stated that El Diablo called him about money, including his father

- in

- law’s finances and businesses. Cortez stated that “El Diablo was .
. . interested in getting money out of [Cortez’s father

- in

- law’s] stores and finding out how much the stores were worth.” El Diablo’s threat that instigated Cortez’s flight to the United States was also motivated by financial gain, as Cortez said that El Diablo “wanted information about my father

- in

- law’s net worth and his businesses and if I didn’t tell him, he would kill me and my family.” Cortez told the IJ that El Diablo “wanted [Cor tez] to take the extortion,” that he paid the gang extortion, and

3 Although the IJ did not apply the no

- nexus finding to Cortez’s proposed family social group, we read the BIA to adopt the IJ’s finding about the gang’s financial motivation and to apply that finding to the proposed family social group. The BIA held that t he petitioner did not establish “clear error in the Immigration Judge’s finding that any harm to him would be motivated by the gang members’ desire to extort his partner’s father’s businesses.” This is a situation where we review for substantial evidence “the BIA’s decision and those parts of the IJ’s decision upon which it relied.” Sharma , 9 F.4th at 1059. Here, substantial evidence supports both the IJ’s factual finding and the BIA’s application of that finding to Cortez’s claimed harm on account of his family membership. The dissent is incorrect to say that this conclusion is untenable because the BIA rejected the proposed family social group. T he BIA’s nexus holding is framed as an alternative ground for denying relief “ [e]ven if [Cortez] were a member of a cognizable particular social group .”5 22
- 1694

that he faced a threat of death because his father

- in

- law set up two other businesses. Cortez further informed the IJ that his family members who paid the gang were not threatened. In Rodriguez

- Zuniga v. Garland , 69 F.4th 1012 (9th Cir. 2023), we held 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 a s family relation.” Id. at 1019. In this case, substantial evidence supports the conclusion that El Diablo and the MS gang threatened Cortez not because of his family membership, but to extort money from Cort ez and his father

- in

- law. Simply because Cortez had a family relationship with his father

- in

- law “doesn’t transform the persecutor’s motivation from money to actual animus against a protected characteristic.” Id. at 1020 (emphasis in original). Substantial evidence supports the BIA’s determination that El Diablo threatened Cortez “only as an instrumental means to obtain money, and was not motivated intrinsically by his familial relationship” with his father

- in

- law. Id. Thus, the record does not compel the conclusion that Cortez has shown that a protected characteristic is “a reason” or “one central reason” for his claimed future persecution. PETITION DENIED.C

ruz C orte z v . Garland

, No. 22-1694 TASHIM A, C irc uit Judge , disse nting: The re are se v e ra l re a sons why the a ge nc y ’ s de c ision de ny ing Pe t itione r’ s
a pplic a tion is not supporte d by substa ntia l e vide n c e . First , the a ge nc y e rre d in
re je c ting Pe titione r’ s propose d fa m ily soc ia l group on the

ground tha

t he wa s not le ga lly m a rrie d to his pa

rtne r. S e c ond , the B IA’ s c onc lusion tha t the re wa s no
ne xus be twe e n Pe titione r’ s soc ia l group a nd the thre a ts he re c e ive d is not supporte d by substa

ntia l e vide nc e be c a

use it wa s ba se d on a

purporte d finding tha

t the IJ did not a c t

ua lly m a ke . In fa c t, it is inc onsiste nt with the IJ’ s findings. M ore o ve r, the re c o rd e sta b lishe s tha

t Pe titione r’ s fa m ily re la t ionship wa s the
re a s on the pe rse c utors ta

rge te d him . For the se re a sons, I re spe c tfully disse nt. First , both the IJ a

nd B IA e rre d in c onc l uding tha t Pe titione r’ s propose d fa m ily soc ia l group wa s not c ogniz a ble sole ly be c a use he wa s not le ga lly m a rrie d to his pa rtne r. W e have ne ve r he ld tha t a n a pplic a nt m

ust be le ga lly

m a rrie d to his or he r partne r in orde r to be c onside re d a fa m ily m e m be r. In fa c t, our c a se s have
a ssum e d tha t le ga l m a rria g e is not re q uire d fo a puta tive spouse to be c onside re d a fa m ily m e m be r. Se e Ramire

z-Ale jandre v . Ashc roft , 320 F.3d 858, 870 (9th C ir. 2003) (e n ba

nc ) (sta ting tha

t the pe titione r “ sta

rte d a fa m ily with his c om

m on-la w wife ” ); J ac into v . IN

S , 208 F.3d 725, 727 (9th C ir. 2000) (sta ting tha t the pe titione r
a lle ge d tha

t “ m e m be rs of the Gua te m a la

n m ilita ry we re pe rse c u ting he r a nd he r



# F IL ED
APR 22 2024 M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALSfa m ily , inc luding he r c om m on-la w husba nd who is a

form e r m e m

be r of the Gua te m a la

n m ilita ry ,” and subse que n tly

re fe rring to him

sim ply a s “ h e r husba

nd” );

ac c ord C ruz v . Se ssions , 853 F.3d 122, 124-25 (4th C ir. 2017) (holding tha t the pe titione r’ s “ fa m ilia l re la t ionship” with he r partne r “ wa s one c e ntra l re a son for the pe rse c ution a

nd fe a r of future pe rse c ution,” whe re she wa s ne ve r m a rrie d to he r pa rtne r but the y “ we re c onside re d a m a rrie d c ouple by

m e m be rs of the ir
c om m unity ” ). As illustra

te d by Ramire

z-Ale jandre , J ac i nto , a nd C r uz , the re is no diffe re nc e be twe e n be ing in a long-te rm c om

m itte d re la tionship or c o m m o n-la w
m a rria ge an d a

le ga l m a rria g e for purpose s of a c ogniz a ble soc ia l group. This is pa rtic u la rly e vide nt he re , whe re Pe titione r’ s e vide nc e showe d tha t not only do he , his pa rtne r, he r fa the r, and “ e ve ry one who knows the m ” c onside r the m to be fa m ily , but the ga

n g m e m be rs thre a te ning Pe titione r a lso c onside re d him to be fa m ily . The IJ a

nd B IA thus e rre d in finding tha t Pe titione r’ s propose d soc ia l group wa s not c ogniz a

ble
. Se c ond , the B IA m isre a d the IJ’ s findings. Its c o nc lusion tha t the re wa s no
ne xus be twe e n Pe titione r’ s propose d fa m ily soc ia l group a

nd the thre a ts he
re c e ive d wa s ba se d on a

finding tha

t the IJ did not a c tua lly

m a ke . The B IA sta

te d that , e ve n if Pe titione r’ s fa m ily soc ia l group we re c ogniz a ble , he fa ile d to e s ta

blish
c le a r e rror in the IJ’ s finding tha t the ga ng m e m be rs we re m o tiva

te d by the de sire 2to e x tort his fa the r-in-la w’ s busine sse s , a gre e ing with the IJ’ s “ ultim at e le ga l de te rm i na tion tha

t [Pe t itione r] ha s not de m onstra te d he would be ha

rm e d on
a c c ount of his fa

m ily m e m

be rship.” Howe v e r, this is not wha

t the IJ found. The IJ did not a ddre ss whe the r the re
wa s a ne xus be twe e n

Pe titione r’ s propose d fa m ily soc ia l group a

nd the ha rm be c a use of the IJ’ s c onc lusion tha t a fa m i ly soc i a l group re quire d a le g a l m a rria ge . Inste a d, the IJ found tha

t the re wa s no ne xus be twe e n Pe titione r’ s soc ia l group of form e r bus drive rs a

nd the ha rm he e xpe rie nc e d a

n d fe a rs. In fa c t, the IJ found tha t the g a ng ta

rge te d Pe titione r “ be c a

use he wa s a c c e ssible and ha d inform a tion a bout his fa the r-in-la w.” I disa gre e with the m a

j ority tha t substa ntia l e vide nc e supports the finding that the re is no ne xus be t

we e n the propose d fa m ily

soc ia l group a

nd the ha rm Pe titione r suffe re d. Eve n though thega n g m e m be rs’ ultim a te de s ire wa s to e xtort
m one y from Pe titione r’ s fa the r-in-la

w , the re c ord e sta

blishe s tha

t the y would not ha ve ta rge te d Pe titione r but for his re la t ionship with his fa the r-in-la w . As the IJ found, the ga

n g ta rge te d Pe titione r in orde r to obta in inform a tion a bout his fa

the rin-la w, from whom the y wa nte d to e xtort m one y . Thus, the IJ found a nd the re c ord shows tha t Pe titione r’ s “ fam ily m e m be rship wa s a

re a s on m otiva

ting the [gang] to ta rge t [him ] .” Rodrigue

z-Zuniga v . Garland

, 69 F.4th 1012, 1019 (9th C ir. 2023). 3“ Tha t a

n unprote c te d ground, suc h a s [e xtortion] , also c onstitute s a c e ntra l re a son for pe rse c ution doe s not

ba r a sy lum .” Rodrigue

z Torne s v . Garland

, 993 F.3d 743, 751 (9th C i r. 2021). The m a jority a lso fa ils to a c k

nowle dge tha

t “ the ne xus sta

n da rds for a sy lum
a nd withholding of re

m o va l diffe r. . . . For withholding of re m ova l, a n a pplic a nt
m ust show only that a

‘ prote c te d ground is “ a re a son” for future pe rse c ution.’ ” Umana-Esc obar v . Garland , 69 F.4th 544, 551 (9th C ir. 2023) (quoting Garc ia v
. W ilk inson , 988 F.3d 1136, 1146 (9th C i r. 2021)). Thus, “ the re quire m e nt tha t a n
a pplic a nt de m onstra

te tha t a prote c te d c ha

ra c te ristic would be ‘ a

re a son’ for future pe rse c ution is a

‘ we a ke r m otive ’ tha

n the ‘ one c e ntra l re a son’ re quire d for a sy lum
.

‘ A pe rson m a

y have “ a re a son” to do som e thing tha t is not his “ c e ntra l” re a son or
e ve n “ o ne c e ntra l re a son.” ’ ” G arc ia , 988 F.3d a t 1146 (quoting B arajas-Rome ro v . Ly nc h , 846 F.3d 351, 359 (9th C ir. 2017)). The m a jority ’ s re lia

nc e on the B IA’ s sta

te m e nt tha

t Pe titione r “ ha s not
e sta blishe d c le a

r e rror in the Im

m igra tion Judge ’ s finding tha t a ny ha rm to him would be m otiva

te d by the ga ng m e m be rs’ de sire to e xtort his pa rtne r’ s fa the r’ s busine sse s” ignore s the fa c t tha t a prote c t e d ground ne e d be only one re a son for the pe rse c ution. The re c a n be no doubt tha t the ga ng m e m be rs ta rge t e d Pe t itione r spe c ific a lly

be c a use of his re l a tionship to his fa the r-in-la w; tha t is, the y thought he 4would ha

ve inform a tion a

bout the pe rson the y

wishe d to e xtort. This wa s not a

ra ndom e nc o unte r a s in Rodrigue z-Zuniga . The re , the pe titione r we nt to the ba

nk to withdra

w m one y tha t he r husba

nd in the Unite d Sta t e s ha d se nt he r. W he n she le ft the ba nk, a wom a n a tte m

pte d to rob he r, thre a te ning to hurt the

pe titione r or he r son if she did not give the wom a n the
m one y . W e he ld tha

t the re wa s no ne x us be t

we e n the thre a t a

nd he r fa m ily
m e m b e rship, e xpla ining tha

t she did not show tha

t “ he r fa m ily

m e m be rship wa s a
re a s on m o tiva

ting the robbe r to ta

rge t he r.” Rodrigue

z-Zuniga , 69 F.4th a

t 1019. He re , by c ontra st, the re c ord e sta

blishe s tha

t Pe titione r’ s re l a tionship to his fa the rin-la w wa s the re a son the ga

ng ta rge te d him
. Pe titione r te stifie d tha

t the ga ng did not a

pproa c h him

until a fte r he sta

rte d his re la tionship with his pa rtne r. El Dia

blo a ske d Pe titione r for inform a tion a bout his fa the r-in-la w, a nd the ga ng m e m be rs thre at e ne d to kill Pe titione r if he did not give the m inform a tion a

bout his in-la

ws, suc h a s whe re the y

live d a nd wha t othe r busine sse s the y h a d. Pe t itione r e xpla ine d tha t he m e re ly

drove a bus a nd did not know a n y thing a bout his in-la

ws’ busine s se s, but El Dia blo told him

he ne e de d to ge t the inform a tion be c a

u s e of his re la tionship with the fa m ily
. Unlike RodriguezZuniga , the ga

ng m e m be rs did not ra

ndom ly a pproa c h Pe titione r a nd try to rob him . Inste a d, the y

ta rge te d him

be c a use of his re la tionship with his fa the r-in-la w, 5whic h c a

u se d the ga

ng m e m be rs to be lie ve he c ould obta in inform a tion a bout his in-la ws. It is true tha

t the re c ord e sta

blishe s tha

t ga n g m e m be rs wa nte d to e x tort
m one y from Pe titione r’ s fa the r-in-la

w (a lthough not, a s the m a jority sa y s, from Pe titione r). B ut the only

re a son the y

we n t a fte r Pe titione r wa s be c auseof his
re la tionship with his fa

the r-in-la w. It is not c le a r how the re c a n e ve r be a ne xus be twe e n pe rse c ution a

n d a fa m ily re la t ionship if e vide nc e tha t ga n g m e m b e rs thre a te ne d to kill Pe titione r if he fa ile d to give the m inform a tion a

b out his in-la

ws doe s not e sta

blish a ne xus. The m a jority ’ s spe c ulation tha

t the B IA a d opte d the IJ’ s finding a b out the fina nc ia l m otiva

t ion a nd a pplie d it to the propose d fa m i ly

soc ia l group doe s not
m a ke se nse be c a

use the IJ a

nd B IA re je c te d the propose d fa m i ly

soc ia l group. Substa ntia l e vide nc e doe s not support a finding theIJ did not m a ke . In fa c t, the IJ found tha t Pe titione r’ s fe a r of future pe rse c ution wa s “ subje c tive ly and obje c tive ly
re a l ,” but she found tha

t it wa s not ba se d on a

prote c t e d ground only

be c a use of he r
c onc lusion tha

t the propose d soc ia l group of fa m ily wa s “ n ot e xisting” be c a

use Pe titione r wa s not le ga lly m a rrie d to his pa

rtne r. The IJ thus did not find tha t the re
wa s no ne xus be twe e n the propose d fa m ily soc ia l group a

nd the ha rm . B e c a use ne ithe r the de nia l of a sy lum nor the de nia l of withholding is 6supporte d by substa ntia l e vide nc e , I would gra nt the pe tition. I re spe c tfully

disse nt.

7