FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NERY ADELI SALGUERO SOSA, 

Petitioner,

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No.19-70961 

Agency No.

A087-365-423 

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted October 17, 2022

San Francisco, California

Filed December 16, 2022

Before: SIDNEY R. THOMAS and MILAN D. SMITH, 

JR., Circuit Judges, and GEORGE H. WU,

* District Judge.

Opinion by Judge Milan D. Smith, Jr.;

Partial Concurrence by Judge Wu

*

The Honorable George H. Wu, United States District Judge for the 

Central District of California, sitting by designation.
2 SALGUERO SOSA V. GARLAND

SUMMARY**

Immigration

The panel granted in part and denied in part Nery Adeli 

Salguero Sosa’s petition for review of a decision of the 

Board of Immigration Appeals upholding an immigration 

judge’s denial of asylum, withholding of removal, and 

protection under the Convention Against Torture, and 

remanded for further proceedings.

The panel concluded that the BIA erred by failing to 

conduct cumulative-effect review when assessing Salguero 

Sosa’s evidence of past persecution. The panel explained 

that Korablina v. INS, 158 F.3d 1038 (9th Cir. 1998), and 

Guo v. Sessions, 897 F.3d 1208 (9th Cir. 2018), held that 

when determining whether a petitioner’s past mistreatment 

rises to the level of persecution, the BIA must apply 

cumulative-effect review. The panel wrote that cumulativeeffect review is essential where a single isolated incident 

may not rise to the level of persecution, but the cumulative 

effect of several incidents may constitute persecution. The 

panel rejected the government’s view that Korablina and 

Guo were simply substantial-evidence-review decisions in 

which the court determined, on the basis of the whole record, 

that any reasonable factfinder would be compelled to 

disagree with the BIA. Rather, the panel explained that the 

agency’s purported failure to conduct cumulative-effect 

review is a legal issue that this court reviews de novo.

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
SALGUERO V. GARLAND 3

The panel concluded that it is evident from the record 

that the BIA failed to conduct a cumulative-effect 

review. The panel explained that the IJ analyzed each 

category of past harm in isolation and found that none 

individually rose to the level of persecution. In addition, the 

BIA failed to acknowledge Salguero Sosa’s request for 

cumulative-effect review, and the BIA’s analysis did not 

demonstrate that it took a cumulative look at the various 

instances of harm Salguero Sosa asserted. Instead, the BIA 

followed in the IJ’s footsteps, ticking off each of Salguero 

Sosa’s categories of harm on an individual basis and finding 

that each amounted only to discrimination. The panel 

remanded for the agency to apply the correct legal 

framework to Salguero Sosa’s asylum claim.

Because withholding of removal, like asylum, requires a 

showing of future persecution and employs a pastpersecution rebuttable presumption, the panel explained that 

its cumulative-effect holding applies to Salguero Sosa’s 

withholding of removal claim as well. The panel held that 

the BIA also erred by applying asylum’s heightened “at least 

one central reason” nexus requirement to Salguero Sosa’s 

withholding of removal claim, rather than the correct “a 

reason” standard. The panel therefore remanded for the BIA 

to apply the correct legal framework for evaluating the 

withholding of removal nexus requirement.

Finally, the panel concluded that substantial evidence 

supported the BIA’s conclusion that the Guatemalan 

government would not acquiesce in any torture Salguero 

Sosa might suffer. The panel explained that although 

Salguero Sosa’s proffered evidence might suggest some 

government disregard or animus toward Salguero Sosa, in 

particular, or to individuals in his proposed social group 

generally, it did not meet the high bar of compelling the 
4 SALGUERO SOSA V. GARLAND

conclusion that the Guatemalan government would 

acquiesce in Salguero Sosa’s torture. 

Judge Wu concurred in the majority’s remand of 

Salguero Sosa’s withholding of removal claim, and its denial 

of the petition as to his CAT claim. However, Judge Wu did 

not join in the majority’s remand of Salguero Sosa’s asylum 

claim. Judge Wu disagreed that Circuit precedent already 

requires the BIA to conduct cumulative-error review, or that 

the failure to conduct such a review warrants remanding the 

matter back to the BIA. Judge Wu also pointed out that 

without some description as to the elements, factors, or steps 

of such an analysis, it is uncertain what that review would 

entail and how it is to be (or could be) conducted in the 

present case.

COUNSEL

Sylvia L. Esparza (argued), Law Office of Sylvia L. Esparza, 

Las Vegas, Nevada, for Petitioner. 

Stephen P. Finn (argued), Senior Trial Attorney; Mary J. 

Candaux, Assistant Director; Brian M. Boynton, Principal 

Deputy Assistant Attorney General; United States 

Department of Justice, Civil Division; Washington, D.C.; for 

Respondent.
SALGUERO V. GARLAND 5

OPINION

M. SMITH, Circuit Judge:

Nery Adeli Salguero Sosa, a citizen of Guatemala who 

suffers from dwarfism and who advocated in Guatemala for 

increased legal protections for dwarfs, petitions our court to 

review the Board of Immigration Appeals’ decision denying 

him asylum, withholding of removal, and Convention 

Against Torture (CAT) relief. We grant the petition in part, 

deny in part, and remand for further proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND

Salguero Sosa is a native and citizen of Guatemala. He 

lawfully entered the United States but overstayed his 

nonimmigrant visa. When charged as removable pursuant to 

8 U.S.C. § 1227(a)(1)(B), he conceded removability and 

applied for asylum, withholding of removal, and CAT relief. 

Before the Immigration Judge (IJ) and Board of 

Immigration Appeals (BIA), Salguero Sosa contended—in 

support of his asylum and withholding of removal claims—

that he suffered past persecution and would suffer future 

persecution on account of his political opinion and his 

membership in two particular social groups (PSGs): dwarfs 

in Guatemala and human rights defenders in Guatemala. 

Though Salguero Sosa primarily relied on showing past 

persecution (and the rebuttable presumption it triggers), he 

alternatively argued that he could show future persecution 

because his two alleged PSGs are also disfavored groups—

a related but separate showing. In asserting his CAT claim, 

Salguero Sosa did not argue that he suffered past torture and 

instead argued only that it was more likely than not that he 

would be tortured with the acquiescence of the government
6 SALGUERO SOSA V. GARLAND

if he were removed to Guatemala. 

I. Salguero Sosa’s Alleged Past Persecution

In presenting his asylum and withholding of removal 

claims, Salguero Sosa testified about several categories of 

mistreatment that he contends amounted to past persecution, 

namely: (1) educational mistreatment by his father, peers, 

and teachers; (2) employment barriers, including 

discriminatory hiring practices, denial of raises and careeradvancement opportunities, and derogatory comments made 

by his superiors; (3) several assaults and robberies, including 

one in which he was “brutally” beaten at gunpoint; (4) death 

threats from anonymous callers; (5) social mistreatment, 

including his then-girlfriend’s family forcing her to have an 

abortion because they did not want her to risk having a dwarf 

child; and (6) his and his brother’s treatment at a state-run 

hospital where his brother, who was also a dwarf, died due 

to what Salguero Sosa contends was inadequate medical 

care.

II. BIA Proceedings

Salguero Sosa’s petition for review comes to us with an 

extended procedural history, wherein both the IJ and BIA 

have each issued two prior decisions. Collectively, those 

decisions denied Salguero Sosa’s application for asylum, 

withholding of removal, and CAT relief.

The BIA denied Petitioner asylum because it determined 

that he did not suffer harm that rose to the level of past 

persecution and that, in any event, his political opinion was 

not “at least one central reason” for any past persecution. It 

also held that Salguero Sosa did not have a well-founded fear 

of future persecution because he was not a member of a 

disfavored group. The BIA rejected Petitioner’s 
SALGUERO V. GARLAND 7

withholding of removal claim on the view that since his 

asylum claim was denied, his withholding of removal claim 

necessarily failed. The BIA denied Petitioner’s CAT claim, 

determining that Salguero Sosa failed to establish that the 

government would acquiesce in any torture to which he 

would be subjected if removed to Guatemala. Salguero Sosa 

timely filed a petition for review before this court. 

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 8 U.S.C. § 1252. 

Where the BIA affirms the IJ “and also adds its own 

reasoning, we review the decision of the BIA and those parts 

of the IJ’s decision upon which it relies.” Duran-Rodriguez 

v. Barr, 918 F.3d 1025, 1027–28 (9th Cir. 2019). We review 

legal questions de novo. See, e.g., Mendoza-Garcia v. 

Garland, 36 F.4th 989, 993 (9th Cir. 2022). And we review 

the factual determinations underlying denials of CAT relief 

for substantial evidence. See, e.g., Nasrallah v. Barr, 140 S. 

Ct. 1683, 1692 (2020). Under that “highly deferential” 

standard, we must accept the BIA’s factual findings as 

“conclusive unless any reasonable adjudicator would be 

compelled to conclude to the contrary.” Id. (quoting 8 

U.S.C. § 1252(b)(4)(B)). 

ANALYSIS

I. Asylum

Salguero Sosa challenges the BIA’s denial of asylum on 

the grounds that the BIA erred by (1) failing to conduct 

cumulative-effect review when assessing past persecution; 

(2) concluding that his alleged persecution lacked a nexus to 

his political opinion; and (3) concluding that he was not a 

member of a disfavored group when assessing whether he 

would experience future persecution. We agree with 
8 SALGUERO SOSA V. GARLAND

Salguero Sosa’s first argument, grant the petition for review 

as to asylum, and remand for further proceedings consistent 

with this opinion. 

A. Cumulative-Effect Review

The BIA erred by failing to conduct cumulative-effect 

review when assessing Salguero Sosa’s evidence of past 

persecution. To be eligible for asylum, a petitioner must

demonstrate a “well-founded fear of persecution on account 

of race, religion, nationality, membership in a particular 

social group, or political opinion.” Sharma v. Garland, 9 

F.4th 1052, 1059 (9th Cir. 2021) (quoting 8 

U.S.C. § 1101(a)(42)(A)). A petitioner can satisfy this 

burden by showing past persecution, which gives rise to a 

rebuttable presumption of future persecution. Id. at 1060; 

see 8 C.F.R. § 208.13(b)(1). 

We have previously held that when determining whether 

a petitioner’s past mistreatment rises to the level of 

persecution, the BIA must apply cumulative-effect review. 

See, e.g., Sharma, 9 F.4th at 1061 (“The key question is 

whether, looking at the cumulative effect of all the incidents 

that a petitioner has suffered, the treatment he received rises 

to the level of persecution.” (cleaned up)); Ahmed v. Keisler, 

504 F.3d 1183, 1194 (9th Cir. 2007) (“Where an asylum 

applicant suffers [physical harm and threats] on more than 

one occasion . . . , the cumulative effect of the harms is 

severe enough that no reasonable fact-finder could conclude 

that it did not rise to the level of persecution.”); Krotova v. 

Gonzales, 416 F.3d 1080, 1087 (9th Cir. 2005) (“The 

combination of sustained economic pressure, physical 

violence and threats . . . , and the restrictions on Petitioner’s 

ability to practice her religion cumulatively amount to 

persecution.”); Korablina v. INS, 158 F.3d 1038, 1044 (9th 
SALGUERO V. GARLAND 9

Cir. 1998) (“Persecution may be found by cumulative, 

specific instances of violence and harassment toward an 

individual and her family members . . . .”).

Cumulative-effect review is essential where “[a] single

isolated incident may not rise to the level of persecution, but

the cumulative effect of several incidents may constitute 

persecution.” Korablina, 158 F.3d at 1044 (cleaned up) 

(emphasis added) (quoting Singh v. INS, 94 F.3d 1353, 1358 

(9th Cir. 1996)). Two of our decisions illustrate this 

principle. 

The first is Korablina. There, the IJ found that 

Korablina, a Jewish Ukrainian woman, had suffered a 

“serious [form] of discrimination” but “her numerous 

experiences did not amount to persecution.” Id. Korablina’s 

past-persecution showing was based on suffering one

physical attack; observing her boss (who was also Jewish) 

be severely beaten and eventually “disappeared”; receiving 

threatening phone calls; and having her workplace 

ransacked. Id. at 1044–45. After stating the above legal rule, 

we declined to decide whether any of Korablina’s

experiences individually amounted to persecution. Instead, 

we held that the BIA’s denial of relief lacked substantial 

evidence because “[c]umulatively, the experiences suffered 

by Korablina compel the conclusion that she suffered 

persecution.” Id. at 1045 (emphasis added).

The second is Guo v. Sessions, 897 F.3d 1208 (9th Cir. 

2018). There, a Christian Chinese citizen contended that he

had suffered past persecution. Id. at 1213. Specifically, Guo

testified about a police beating; a short detention; and a 

requirement that he report to the police each week. Id. at 

1211. As in Korablina, we concluded that we “need not 

decide whether Petitioner’s beating alone amounted to 
10 SALGUERO SOSA V. GARLAND

persecution because his asylum claim is also premised on his 

release conditions” and, when we “consider[ed] the record 

as a whole,” a finding of persecution was compelled. Id. at 

1215–17 (emphasis added).

The government argues that these cases do not establish 

a legal rule requiring cumulative-effect review. In the 

government’s view, Korablina and Guo are simply

substantial-evidence-review decisions in which we

determined, on the basis of the whole record, that any 

reasonable factfinder would be compelled to disagree with 

the BIA. We reject the government’s limited, fact-bound 

reading of these decisions for two reasons.

First, the structure of Korablina and Guo undermines the 

government’s reading. Korablina, for instance, took a 

textbook rule-application-conclusion approach to the issue 

of whether the petitioner had suffered past persecution. We

first described the governing legal rule, Korablina, 158 F.3d 

at 1044 (“Persecution may be found by cumulative, specific 

instances of violence and harassment . . . .”), and then 

applied that rule to Korablina’s testimony, id. at 1044–45

(“Cumulatively, the experiences suffered by Korablina 

compel the conclusion that she suffered persecution.”). The 

bottom-line factual conclusion (that substantial evidence did 

not support the BIA’s finding of no past persecution) 

necessarily resulted from the application of the legal rule we 

had stated (that incidents must be evaluated cumulatively). 

Secondly, if we accepted the government’s argument,

our treatment of cumulative-effect error would be an outlier

in immigration and administrative law. We review legal 

issues arising from administrative proceedings de novo, 

including analogous contentions that the BIA applied an 

incorrect legal framework. See, e.g., Garcia v. Wilkinson, 
SALGUERO V. GARLAND 11

988 F.3d 1136, 1146 (9th Cir. 2021) (nexus); Zheng v. 

Ashcroft, 332 F.3d 1186, 1194–97 (9th Cir. 2003) 

(government acquiescence). In such cases, unless remand 

would be an “idle and useless formality,” we remand if the 

petitioner shows the existence of a legal error. Singh v. Barr, 

935 F.3d 822, 827 (9th Cir. 2019) (quoting NLRB v. WymanGordon Co., 394 U.S. 759, 766 n.6 (1969)). But under the 

government’s view, petitioners would benefit from showing

cumulative-effect error only if they present the rare case—

as in Korablina and Guo—where the record is so factually 

overwhelming that it is appropriate to outright grant relief 

instead of remanding for the agency to apply the correct legal 

framework in the first instance. We see no reason for 

treating Petitioner’s raising a cumulative-effect error 

differently than we treat other petitioners’ assertion of legal 

error.

Accordingly, we hold that the BIA must conduct a 

cumulative-effect review when assessing a petitioner’s 

claim of past persecution and that the agency’s purported

failure to do so is a legal issue we decide de novo.

1 

Turning to the case before us, it is evident from the 

record that the BIA failed to conduct a cumulative-effect 

review. The IJ analyzed each category of past harm in 

isolation and found that none individually rose to the level 

of persecution. Indeed, when summarizing his findings, the 

IJ expressly stated that he “evaluate[d] the nature of each

claim the respondent presents in support” of past persecution 

1 To preserve such an argument before this court, petitioners must, of 

course, exhaust their remedies before the BIA. See, e.g., Bare v. Barr, 

975 F.3d 952, 960 (9th Cir. 2020). Here, there is no contention of waiver, 

as Salguero Sosa squarely raised his cumulative-effect argument on 

appeal to the BIA.
12 SALGUERO SOSA V. GARLAND

and concluded that “in every instance what the respondent 

may have experienced was nothing greater than 

discrimination focused on him.”

On appeal to the BIA, Salguero Sosa challenged the IJ’s 

siloed evaluation of his past-persecution evidence, but the 

BIA failed to grapple with this argument. The BIA nowhere 

acknowledged Salguero Sosa’s request for cumulative-effect 

review, nor did its analysis ever demonstrate that the BIA 

took a cumulative look at the various instances of harm 

Salguero Sosa asserted. Instead, the BIA followed in the IJ’s 

footsteps, ticking off each of Salguero Sosa’s categories of 

harm on an individual basis and finding that each amounted

only to discrimination.

The BIA erred by failing to conduct a cumulative-effect 

review. We thus grant Salguero Sosa’s petition for review 

as to asylum and remand to the agency to apply the correct 

legal framework to Petitioner’s asylum claim. We do not 

reach Salguero Sosa’s substantial-evidence arguments about 

the BIA’s nexus2 and disfavored-group determinations. 

Because we grant the petition as to asylum and the BIA’s 

resolution of the past-persecution issue on remand may 

affect those two related issues, it would be inappropriate for 

us to address them now.3

2 We do, however, note that, while the IJ and BIA made factual findings 

about political-opinion nexus, it is unclear whether they ever analyzed 

whether Salguero Sosa could establish a nexus with his membership in 

either alleged PSG. 

3 To the extent the partial concurrence suggests that we tacitly endorse 

these determinations and “leave[] [them] intact,” we clarify that we do 

no such thing. As mentioned, the BIA’s resolution of the antecedent 

past-persecution issue could lead the BIA to reach materially different 

determinations on these subsequent issues. For example, the BIA’s 
SALGUERO V. GARLAND 13

II. Withholding of Removal

Salguero Sosa challenges the BIA’s denial of 

withholding of removal by (1) raising the same argument he 

made in his claim for asylum regarding cumulative-effect 

review; and (2) arguing that the BIA erred by applying 

asylum’s heightened nexus requirement. We agree with 

Salguero Sosa on both arguments, grant the petition for 

review as to withholding of removal, and remand for further 

proceedings consistent with this opinion.

A. Cumulative-Effect Review

The cumulative-effect requirement articulated 

respecting asylum applies with equal force to Salguero 

Sosa’s withholding of removal claim. Withholding of 

removal requires a substantially similar (though not 

identical) showing as asylum. “The Attorney General must, 

in general, withhold removal of an alien if the alien’s life or 

freedom would be threatened ‘because of the alien’s race, 

religion, nationality, membership in a particular social 

group, or political opinion.’” Barajas-Romero v. Lynch, 846 

F.3d 351, 356 (9th Cir. 2017) (quoting 8 U.S.C. 

§ 1231(b)(3)(A)). Petitioners meet this burden if they show 

finding of no political-opinion nexus looked only at two assaults about 

which Salguero Sosa testified; accordingly, if the BIA on remand were 

to find that cumulatively Salguero Sosa suffered persecution, then the 

scope of that persecution may require a new nexus analysis. Similarly, 

if the BIA finds past persecution and the government fails to rebut the 

presumption that finding triggers, then any disfavored-group analysis 

would be unnecessary. We, of course, express no view on how the BIA 

should resolve these issues on remand. Moreover, in the event the BIA 

reaches substantially similar nexus and disfavored-group determinations 

on remand, Salguero Sosa will be able to seek judicial review without 

any law-of-the-case effect flowing from this decision regarding those 

issues. 
14 SALGUERO SOSA V. GARLAND

that they have a “clear probability of persecution,” Aden v. 

Wilkinson, 989 F.3d 1073, 1085–86 (9th Cir. 2021) (quoting 

Korablina, 158 F.3d at 1045), and their persecution has a 

nexus to one of the five enumerated categories, BajarasRomero, 846 F.3d at 357; 8 C.F.R. § 208.16(b). A finding 

of past persecution triggers a rebuttable presumption that the 

petitioner will suffer future persecution. Aden, 989 F.3d at 

1086; 8 C.F.R. § 208.16(b)(1). 

Because withholding of removal, like asylum, requires a 

showing of future persecution and employs a pastpersecution rebuttable presumption, our cumulative-effect

holding applies to Salguero Sosa’s withholding of removal 

claim as well. Though withholding of removal and asylum 

have different burdens of proof, the substantive definition of 

what constitutes past persecution is the same. See, e.g., 

Korablina, 158 F.3d at 1043–46. The BIA, therefore, erred 

and we remand for it to apply the correct legal framework in 

evaluating past persecution. 

B. Nexus

As the government concedes, the BIA also erred by 

applying an incorrect nexus requirement to Salguero Sosa’s

withholding of removal claim.

4

 The nexus requirement for 

withholding of removal is less demanding than that for

asylum. In asylum cases, petitioners must show that one of 

the five enumerated categories is “at least one central 

reason” for their persecution. Barajas-Romero, 846 F.3d at 

358 (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). For withholding 

4 Though we decline to reach Salguero Sosa’s fact-intensive substantialevidence challenge to the BIA’s nexus finding, we reach this issue 

because it is an independent legal error unmoored from the BIA’s 

factfinding on remand. 
SALGUERO V. GARLAND 15

of removal, by contrast, petitioners need only show that one 

of the five enumerated categories is “a reason” for their 

persecution. Id. (quoting 8 U.S.C. § 1231(b)(3)(C)). “The 

phrase ‘a reason’ includes weaker motives than ‘one central 

reason.’” Id. at 359.

Here, the BIA applied the heightened “at least one 

central reason” nexus requirement to Salguero Sosa’s 

withholding of removal claim. The BIA, therefore, erred and 

we remand for it to apply the correct legal framework for

evaluating withholding of removal’s nexus requirement. 

III. CAT Relief

Salguero Sosa challenges the BIA’s denial of CAT relief 

by attacking, on substantial-evidence grounds, the agency’s 

conclusion that he would not be tortured with the 

acquiescence of the Guatemalan government.

To qualify for CAT relief, an applicant “must establish 

that ‘it is more likely than not that he or she would be 

tortured if removed to the proposed country of removal.’” 

Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 

2014) (quoting 8 C.F.R. § 208.16(c)(2)). Torture is “more 

severe than persecution,” Davila v. Barr, 968 F.3d 1136, 

1144 (9th Cir. 2020) (quoting Guo, 897 F.3d at 1217), and 

requires the infliction of “an extreme form of cruel and 

inhuman treatment,” 8 C.F.R. § 208.18(a)(2). Of particular 

significance here, “the torture must be ‘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.’” Garcia-Milian, 755 F.3d at 1033

(quoting 8 C.F.R. § 208.18(a)(1)). 

Substantial evidence supports the BIA’s conclusion that 

the Guatemalan government would not acquiesce in any 
16 SALGUERO SOSA V. GARLAND

torture Salguero Sosa might suffer. In attempting to rebut 

this finding, Salguero Sosa points to four categories of 

evidence. Though Petitioner’s proffered evidence might

suggest some government disregard or animus toward 

Salguero Sosa in particular or dwarfs generally,5 it does not 

meet the high bar of compelling the conclusion that the 

Guatemalan government would acquiesce in Salguero 

Sosa’s torture. 

First, Salguero Sosa points to his testimony that a staterun hospital allegedly caused the death of his brother (who 

was also a dwarf) and that the director of that hospital 

allegedly threatened Salguero Sosa when he complained. 

However, the IJ found that there was “nothing in the 

evidentiary record to substantiate” Salguero Sosa’s 

testimony about what occurred at the hospital—other than 

the fact that Salguero Sosa had an older brother who died 

while being treated for a lung infection. The IJ further found 

that there was “no reliable indication whatsoever” that 

Salguero Sosa was “targeted for harm in Guatemala by 

members of the medical arts community.”

Second, Salguero Sosa relies on past retaliation by the 

Guatemalan government against human rights advocates. 

However, the BIA found that such past retaliation was not as 

broadly practiced as Salguero Sosa contends. The agency 

found that government retaliation was directed mostly

“toward groups that investigate land disputes or natural 

resources”; that “most human rights defenders were able to 

operate without restrictions”; and that “there was insufficient 

5

 We express no opinion on how this evidence relates to asylum and 

withholding of removal showings, including PSG nexus and 

membership in a disfavored group. 
SALGUERO V. GARLAND 17

evidence of authorities targeting human rights defenders of 

the disabled.”

Third, Salguero Sosa argues that the timing of death 

threats made to him and assaults he suffered—after media 

appearances critical of the government and during an 

election year—show that the government would acquiesce 

in his torture. Fourth, Salguero Sosa points to a statement 

by a public official—made in the context of a legislative 

debate over a proposed disability law—that “disabled people 

only constitute an expense for the country.” While these two 

latter categories of evidence might support an inference of 

government animus, they do not overcome our “highly 

deferential” review of BIA’s factual findings in which we 

reverse only if “any reasonable adjudicator would be 

compelled to conclude to the contrary.” Nasrallah, 140 S. 

Ct. at 1692 (quoting 8 U.S.C. § 1252(b)(4)(B)). Therefore, 

substantial evidence supports the BIA’s determination that 

Salguero Sosa would not, with the acquiescence of the 

government, be subjected to torture, and his CAT claim fails 

CONCLUSION

For the foregoing reasons, the petition for review is 

GRANTED IN PART, DENIED IN PART, and 

REMANDED. Each party shall bear its own costs for this 

petition for review. See Fed. R. App. P. 39(a)(4), (b); 28 

U.S.C. § 2412(a)(1).

WU, District Judge, concurring in part:

I concur in the majority opinion’s (“Opinion”) remand of 

Sosa’s withholding of removal claim and denial of his 

application for protection under the Convention Against 
18 SALGUERO SOSA V. GARLAND

Torture. However, I am unable to join in the majority’s 

remand of Sosa’s asylum claim based upon alleged past 

persecution in Guatemala.

I. 

On January 24, March 10, and May 20, 2014, hearings 

before the immigration judge (“IJ”) were conducted as to 

whether Sosa qualified for relief from removal. Evidence 

was presented and the IJ fully considered all of the following 

areas which Sosa proffered to establish past persecution due 

to his dwarfism and/or human rights advocacy: (1) his 

childhood experiences; (2) educational adversities1 (i.e., his 

initially not being allowed to attend any school,2 the bullying 

he encountered from his fellow students, and the lack of 

support from some teachers); (3) employment barriers due 

to his dwarfism;3 (4) his having been a victim of crimes in 

Guatemala (e.g., his being mugged on a number of 

occasions);4 (5) death threats due to his advocating for 

persons diagnosed with dwarfism;5 (6) the medical care 

1 Sosa did attend grade school, high school, and eventually obtained two 

college degrees. 

2 The earliest impediment was his father’s objections to enrolling him in 

school because of his dwarfism. 

3 Although he experienced difficulties throughout his working career due 

to his dwarfism, Sosa was able to obtain numerous jobs including a 

supervisory position at a hotel and being hired as a regional manager for 

a security company, plus he was certified as a public accountant.

4 The IJ concluded that the various crimes all appeared to be theft-related 

and that, while Sosa may have been seen by the attackers as a convenient 

target because of his diminished stature, it was not part of a pattern or 

practice of persecution directed at him. 

5 There is no evidence in the record that any person who made a death 

threat actually attempted to act on it.
SALGUERO V. GARLAND 19

received by his brother (who also was a dwarf and who died 

after seven days of hospitalization for a lung infection);6 and 

(7) social mistreatment.7 The IJ concluded that Sosa was not 

“eligible to receive asylum” because “the Immigration Court 

has gone on to recognize that in every instance what [Sosa] 

may have experienced was nothing greater than 

discrimination focused on him . . . . that discrimination is 

less provocative than persecution . . . . [and i]t follows that 

[Sosa] was not previously persecuted in Guatemala.” 

The IJ discussed two incidents where Sosa claims to have been 

assaulted and robbed by persons who, during the crimes, commented on 

his advocacy endeavors. The IJ noted that Sosa’s testimony at the 

hearing was “at variance” in certain material areas with the lengthy 

reports which he provided to the police following the incidents; 

especially where he failed to inform the police of the alleged comments 

made by his attackers or his belief that the attacks were due to his 

advocacy activities. Likewise, the Board of Immigration Appeals also 

observed that Sosa had not mentioned those comments/threats in either 

his original or amended asylum declarations even though he was 

represented by counsel at the time. 

6 While Sosa believes that his brother died due to the medical 

indifference of hospital staff arising from their antipathy to his brother’s 

dwarfism, the IJ found that Sosa had no evidence to support his 

suspicions that his brother had received inadequate medical treatment or 

that any purported medical malpractice stemmed from anti-dwarf 

animus. 

7 Sosa testified as to his having a romantic relationship with a woman of 

normal stature, whose family disapproved of the liaison. Eventually, the 

woman’s mother pressured her daughter into breaking off the 

relationship and aborting the child which she was then-carrying. While 

recognizing the obvious pain that Sosa suffered as a result of that 

situation, the IJ nevertheless found that the incident did not establish 

persecution but rather constituted discrimination against him by the 

mother. 
20 SALGUERO SOSA V. GARLAND

The Board of Immigration Appeals (“BIA”), after 

reviewing incidents raised by Sosa, upheld the IJ’s 

determination that he had not established past persecution. 

However, the BIA remanded the issue of whether Sosa had 

a well-founded fear of persecution because the IJ never made 

findings as to whether Sosa “is a member of a ‘disfavored 

group’ or whether [he] is at an ‘individualized risk of being 

singled out for persecution.’” 

Additional testimony was taken before the IJ on March 

27, 2017. As to the issue of whether there was a pattern or 

practice of persecution against dwarfs in Guatemala, the IJ 

held: “[t]he record here does not demonstrate widespread 

brutality against dwarves or that there is any criminalization 

due to one’s stature or disability in Guatemala. The record 

simply points to certain societal discrimination factors 

especially related to employment which this Court is unable 

to find is a pattern or practice of persecution against 

dwarves.” As to the issue of whether there is a pattern or 

practice of persecution against “human rights defenders” in 

Guatemala, the IJ found: “[t]he record here indicates that the

Guatemalan government works with many human rights 

[organizations] and many operate in the country without 

restriction. The Country Report states that most of the 

violence that was targeted against human rights groups dealt 

with groups investigating land disputes or exploitation of 

natural resources. [Sosa] has failed to point to any violence 

or threats of harm towards his specific organization, or any 

organization that is lobbying on behalf of the disabled in 

Guatemala.” The IJ concluded that Sosa “has failed to offer 

any evidence showing that a pattern or practice of 

persecution exists against either dwarfs or human rights 

defenders in Guatemala.” As to whether Sosa had shown 

that he himself was singled out for persecution because of 
SALGUERO V. GARLAND 21

his being a dwarf and/or human rights defender, the IJ held 

that he had not done so, relying primarily upon the agency’s 

previous determination that Sosa “did not establish that he 

was subjected to past persecution in Guatemala.” 

The BIA agreed with the IJ’s factual findings and 

concluded, inter alia, that: (1) as to Sosa’s being a dwarf in 

Guatemala, “the past harm [he] encountered was 

discrimination, not persecution,” and (2) as to Sosa’s being 

an advocate for persons with restricted growth, “there is 

insufficient evidence that persons advocating for dwarves or 

the disabled are singled out for harm by the government or 

by persons whom the government is unable or unwilling to 

control.” 

II. 

As to the denial of asylum, the Opinion agrees with 

Sosa’s first argument that the BIA erred in failing to conduct 

a “cumulative-effect” review when assessing the incidents 

of his alleged past persecution, and remands the matter for 

“further proceedings consistent with this opinion.” The 

majority goes on to state: “We have previously held that 

when determining whether a petitioner’s past mistreatment 

rises to the level of persecution, the BIA must apply 

cumulative-effect review.” (Emphasis added). 

The Opinion does not indicate that the IJ or BIA failed 

to consider all of the relevant evidence proffered by Sosa; 

nor does it conclude that the IJ or BIA was incorrect in 

deciding that Sosa’s individual incidents of mistreatment 

were only acts of discrimination and/or harassment, which 

did not rise to the level of persecution.8 While the majority 

8 As observed in Sharma v. Garland, 9 F.4th 1052 (9th Cir. 2021):
22 SALGUERO SOSA V. GARLAND

remands the matter to the BIA for a “cumulative-effect 

review,” it is not exactly clear what such a review would 

entail, and the Opinion does not offer any hints.

III. 

I have no problem with a directive – in the context of 

determining the existence of past persecution – that multiple 

instances of mistreatment should be subject to an analysis 

that goes beyond merely examining each incident in 

isolation and must additionally consider all of the incidents 

collectively to decide the issue of persecution. See Guo v. 

Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004) (“We look at 

the totality of the circumstances in deciding whether a 

finding of persecution is compelled.”). However, the 

Opinion states that the Circuit already has a mandate which 

requires “that when determining whether a petitioner’s past 

mistreatment rises to the level of persecution, the BIA must 

apply cumulative-effect review.” I respectfully disagree. 

First, there is a question as to whether the Circuit has 

previously articulated such a rule. All of the cases cited in 

the Opinion for that proposition have not expressly done so. 

“Persecution,” we have repeatedly held, “is an extreme 

concept that means something considerably more than 

discrimination or harassment.” . . . 

Because it is an extreme concept, persecution 

“does not include every sort of treatment our society 

regards as offensive.” . . . This means that “some 

circumstances that cause petitioners physical 

discomfort or loss of liberty do not qualify as 

persecution, despite the fact that such conditions have 

caused the petitioners some harm.” . . . Simply stated, 

“not all negative treatment equates with persecution.”

Id. 1060-61 (cleaned up and citations omitted).
SALGUERO V. GARLAND 23

Rather, the cases merely reference (or are variations of) 

previous holdings that state: (1) “[a] single isolated incident 

may not ‘rise to the level of persecution, [but] the cumulative 

effect of several incidents may constitute persecution,’” 

Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998) 

(quoting Singh v. INS, 94 F.3d 1353, 1358 (9th Cir. 1996)); 

and/or (2) there will be cases where “[t]he key question is 

whether, looking at the cumulative effect of all the incidents 

that a Petitioner has suffered, the treatment he received rises 

to the level of persecution,” Sharma, 9 F.4th at 1061 

(quoting Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998)). 

There does not appear to be a published case where the 

Circuit actually held that some sort of established 

“cumulative-effect review” must be applied by the IJ or BIA 

when determining whether a petitioner’s past mistreatment 

rises to the level of persecution, and that the failure to 

conduct such a review warrants remanding the matter back 

to the BIA. 

Second, if the rule proposed in the Opinion is enacted, 

what will that mean as a practical matter? Can the IJ and/or 

BIA, after examining each of the proffered incidents of 

mistreatment, simply announce that “the cumulative effect 

of [petitioner’s] alleged harm[s] do[] not rise to the level of 

persecution.”9 See, e.g., Singh v. Garland, 48 F.4th 1059, 

1065 (9th Cir. 2022). Or will they be required to articulate 

the details of their cumulative-effect review. Further, will a 

9 For example, would it have sufficed in this case if, at the end of the 

examination of the incidents delineated in the record, the IJ and/or BIA 

had said something to the effect that: “the instances of mistreatment 

raised by the petitioner simply amount to acts of discrimination and/or 

harassment which individually and in the aggregate do not constitute 

past persecution.” 
24 SALGUERO SOSA V. GARLAND

failure to sufficiently discuss the particulars of the 

cumulative-effect review automatically mean that the matter 

must be remanded to the agency for further proceedings? 

Third, if a hard-and-fast rule requiring a “cumulativeeffect review” is adopted, shouldn’t there be some 

description as to what are the elements, factors, or steps of 

such an analysis? The majority does not attempt any such 

exposition; nor do any of the cases cited in the Opinion 

contain such delineation.10 Thus, the Opinion is totally 

opaque regarding what the BIA is supposed to do on remand. 

Further, the Opinion does not overturn but leaves intact the 

IJ’s and BIA’s determinations: (1) that each of the individual 

incidents raised by Sosa only amount to acts of 

discrimination or harassment and not persecution; and (2) 

that Sosa has not shown a pattern or practice of persecution 

against dwarfs or disability advocates in Guatemala. 

One might surmise that the Opinion is calling for a 

reweighing of the evidence taking a gestalt approach as to 

the issue of whether the individual acts of 

discrimination/harassment cited by Sosa collectively reach a 

10 The closest description of what such analysis might entail is contained 

in Singh, 134 F.3d at 967-68, which describes the “inquiry [as being] 

heavily fact-dependent, and is perhaps best answered by comparing the 

facts of Petitioner’s case with those of similar cases.” However, if the 

analysis boils down to a comparison between the petitioner’s facts and 

those in similar cases where a decision has been rendered as to whether 

persecution was (or was not) established, then “cumulative-effect 

review” is a misnomer and should rather be labelled a “comparative 

review.” Further, would the petitioner have the burden of locating and 

presenting those similar cases to the agency? 
SALGUERO V. GARLAND 25

critical mass which can be deemed persecution.11 How 

exactly that determination is to be made remains a mystery. 

But unless the cumulative-effect analysis as to past 

persecution is tethered to some standards or criteria, it may 

wind up being rudderless and entirely subjective, akin to 

Justice Stewart’s famous non-test for obscenity – “I know it 

when I see it.” Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) 

(Stewart, J., concurring). 

IV.

I do not join in the remand of Sosa’s asylum claim based 

upon alleged past persecution because: (1) I would not find 

that this Circuit has previously demanded a cumulative11But it should be remembered that this entire process is being conducted 

under a highly deferential substantial evidence review. As observed in 

Sharma:

We review for substantial evidence the BIA’s 

determination that a petitioner has failed to establish 

eligibility for asylum or withholding of removal . . . . 

[and] the BIA’s particular determination that a 

petitioner’s past harm “do[es] not amount to past 

persecution.” 

Because “the law entrusts the agency to make the 

basic” eligibility determinations, “[t]he substantial 

evidence standard of review is ‘highly deferential’ to 

the [BIA].” Consistent with this level of deference, we 

may grant a petition only if the petitioner shows that 

the evidence “compels the conclusion” that the BIA’s 

decision was incorrect. In other words, we ask not 

whether “a reasonable factfinder could have found” 

the harm the petitioner experienced “sufficient to 

establish persecution,” but whether “a factfinder 

would be compelled to do so.” 

9 F.4th at 1060 (cleaned up and citations omitted).
26 SALGUERO SOSA V. GARLAND

effect review in all such cases with the penalty of remand in 

its absence; and (2) it is uncertain what that review would 

entail and how it is to be (or could be) conducted in the 

present case.