FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REBECA RUFINA CRISTOBAL 

ANTONIO, 

Petitioner,

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 21-70624 

Agency No.

A206-498-048 

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted July 13, 2022

Pasadena, California

Filed January 26, 2023

Before: Mark J. Bennett and Gabriel P. Sanchez, Circuit 

Judges, and Elizabeth E. Foote,* District Judge.

Opinion by Judge Bennett;

Concurrence by Judge Sanchez

* The Honorable Elizabeth E. Foote, United States District Judge for the 

Western District of Louisiana, sitting by designation.
2 ANTONIO V. GARLAND

SUMMARY**

Immigration 

Granting Rebeca Cristobal Antonio’s petition for review 

of the Board of Immigration Appeals’ decision upholding 

the denial of asylum and related relief, and remanding, the 

panel held that (1) substantial evidence did not support the 

agency’s determination that the treatment Antonio suffered 

did not amount to persecution, (2) the agency erred in 

characterizing Antonio’s proposed social group and 

concluding that it was not cognizable, and (3) the agency 

erred by failing to consider highly probative evidence 

regarding the Guatemalan government’s willingness or 

ability to control the persecution. 

Individuals in Antonio’s community verbally and 

physically harassed and threatened her with death because 

they perceived her to be a lesbian because she wore men’s 

clothing to work. Specifically, Antonio’s neighbors 

threatened that if she dressed in men’s clothing they would 

“get together and burn her down and whip her,” and told her 

that if she did not leave the community, they would kill 

her. The panel explained that in concluding that this 

treatment amounted simply to threats the immigration judge 

failed to recognize that threats may be compelling evidence 

of past persecution, particularly when the threats are specific 

and menacing and accompanied by violent confrontations, 

near-confrontations and vandalism. 

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

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

The panel explained that in this case, the record revealed 

much more than threats alone. A crowd met Antonio at her 

workplace and threatened to lynch and burn her if she did 

not remove the men’s clothing. Her neighbors told her 

husband they believed she was bisexual or lesbian, and even 

spoke with her grandparents, who were scared for her 

safety. Community members took her to the police because 

they perceived her to be a lesbian, and Antonio’s family 

members violently attacked her. Taken together, the panel 

concluded that the death threats, mob violence, involuntary 

transport to the police station, and repeated whipping by her 

uncles compelled the conclusion that Antonio suffered past 

persecution.

Antonio asserted that she was persecuted on account of 

her membership in a social group comprised of “wom[e]n in 

Guatemala who are perceived to have male tendencies and 

are seen as dangerous to the community.” The IJ found this 

articulation too “amorphous” and reasoned that the style of 

Antonio’s dress was not an immutable characteristic 

qualifying as a particular social group. The IJ further stated 

that Antonio’s claim was not a gender or sexual orientation 

issue because Antonio indicated that she was not a 

lesbian. The panel wrote that this finding ignored Antonio’s 

arguments before both the IJ and the BIA that she belonged 

to a different particular social group comprised of “women 

in Guatemala who are perceived to be lesbian.” The panel 

explained that the agency is not free to ignore arguments 

raised before it, and that the failure to address a social group 

claim, or failure to analyze such a claim under the correct 

legal standard, constitutes error and requires remand. The 

panel observed that although this court has discussed the 

issue, neither this court in a published opinion, nor the BIA, 

has explicitly recognized perceived or imputed sexual 
4 ANTONIO V. GARLAND

orientation as a cognizable social group. The panel 

remanded for the agency to determine whether women in 

Guatemala perceived to be lesbian constitute a particular 

social group, and if so, whether Antonio’s persecution was 

on account of her membership in that group.

In concluding that Antonio did not show persecution 

committed by the government or by forces that the 

government was unwilling or unable to control, the IJ’s 

analysis focused on Antonio’s complaint to the Justice of the 

Peace and the Justice of the Peace’s decision to remit the 

matter for criminal investigation. The panel explained that 

this decision does not end the inquiry, as the government’s 

failure to take promised future action may establish that the 

government was either unable or unwilling to exercise such 

control. The panel wrote that in this case no record evidence 

indicated whether the criminal referral by the Justice of the 

Peace led to any arrests, criminal prosecution, or other action 

by authorities to minimize the threats against Antonio.

Further, the panel wrote that the record suggested that 

the agency failed to consider all of the evidence, such as 

Antonio’s statements that the mayor of her village “would 

be behind [her neighbors] if they try to kill [her],” and that 

she fears the mayor the most because “[h]e is the one who 

has the last decision whether to kill me or not.” Moreover, 

the panel wrote that the record revealed that the police took 

some action to end Antonio’s harassment temporarily but did 

not make any arrests—even when the police arrived at the 

scene of a crowd threatening to kill Antonio. The panel 

noted that the IJ did not explicitly address evidence that the 

death threats continued despite police awareness. Nor did it 

address the abuse Antonio’s uncles inflicted against her. 
ANTONIO V. GARLAND 5

Finally, the panel observed that although the IJ 

considered the Country Condition Report as to Antonio’s 

CAT claim, the report indicated that Guatemala’s 

antidiscrimination laws do not apply to LGBTI individuals 

who often face police abuse, and that the government’s 

efforts to address widespread discrimination against LGBTI 

people have been “minimal.” The panel noted that the IJ 

found the report irrelevant because Antonio stated she is not 

a lesbian. However, given the reasons for remand of 

Antonio’s social group claim, the panel wrote that the 

agency might view this country report evidence differently 

on remand.

Concurring, Judge Sanchez wrote separately to address 

the question of perceived or imputed sexual orientation and 

whether such group should be recognized as a particular 

social group. Judge Sanchez agreed that neither this court 

nor the BIA has recognized in published authority that such 

a group would qualify, and that remand was warranted for 

the BIA to address this issue in the first instance. Judge 

Sanchez explained, however, that under longstanding circuit 

and BIA precedent involving persecution on account of 

imputed protected characteristics and addressing the 

importance of the perception of the persecutor, the answer to 

this question seems clear that perceived or imputed sexual 

orientation would qualify as a particular social group.
6 ANTONIO V. GARLAND

COUNSEL

Marco A. Jimenez (argued), Jimenez Law Office, Riverside, 

California, for Petitioner.

John F. Stanton (argued), Rosanne M. Perry, and Nelle M. 

Seymour, Trial Attorneys; Leslie McKay, Senior Litigation 

Counsel; Brian Boynton, Acting Assistant Attorney General; 

United States Department of Justice, Office of Immigration 

Litigation, Civil Division; Washington, D.C.; for 

Respondent. 

OPINION

BENNETT, Circuit Judge: 

Rebeca Cristobal Antonio, a native and citizen of 

Guatemala, petitions for review of the Board of Immigration 

Appeals’ (“BIA”) streamlined affirmance of the 

immigration judge’s (“IJ”) denial of her claims for asylum, 

withholding of removal, and protection under the United 

Nations Convention Against Torture (“CAT”). Antonio was 

verbally and physically harassed and received death threats 

because her community in Guatemala perceived her to be a 

lesbian, including because she wore men’s clothing to work. 

In her petition for review, Antonio challenges the IJ’s 

findings that: (1) this treatment did not amount to 

persecution, (2) the relevant social group for asylum 

purposes is based on “manner of dress,” and (3) no 

persecution was committed by the Guatemalan government 

or by forces that the government was unwilling or unable to 

control. The first finding is not supported by substantial 

evidence in the record. The second finding suffers from 
ANTONIO V. GARLAND 7

several errors discussed below. And in making the third 

finding, the agency did not consider all highly probative 

evidence in the record. We therefore grant the petition and 

remand for further proceedings.

I. BACKGROUND

When Antonio applied for entry into the United States in 

March 2014, an asylum officer found that she had a credible 

fear of persecution. In the notes of the credible fear 

interview, the asylum officer wrote: 

You stated that starting about one year ago 

you began to dress in men’s clothing in order 

to find work. As a result, the townspeople 

from your village labeled you a lesbian. Your 

neighbors threatened to kill you if you 

remained in the village because they do not 

approve of lesbians. Your uncles whipped 

you up frequently because they wanted you 

to give them food and money, and they also 

insulted you about being a lesbian.

Although Antonio specifically told the asylum officer that 

she was not a lesbian, she described threats she received 

because the villagers believed she was a lesbian: “[T]hey 

would get together and burn me down and whip me.” “They 

said that if I didn’t leave that place they would kill me.”

“[T]hey did not want any lesbian women in the village.” 

Based on these threats, the asylum officer noted that Antonio 

alleged membership in a particular social group: “The people 

from your village and your family members are motivated to 

harm you with at least one central reason being that they 

believe that you are a member of the particular social group 

that is lesbian women in Guatemala.”
8 ANTONIO V. GARLAND

Besides detailing her fear, Antonio explained why she 

could not seek help from local authorities. Her testimony to 

the asylum officer suggests that she told the police about her 

problems “but they didn’t pay attention to me ... because 

they told me that I have to tell them that I am not the kind of 

person that they think that I am.”1 She also told the asylum 

officer that her neighbors said that “the police wouldn’t do 

anything” if her neighbors tortured her. And she expressed

fear of her village’s mayor: “He is the one who has the last 

decision whether to kill me or not.”2 She stated that the 

mayor “would be behind [her neighbors] if they try to kill 

[her].”

The Department of Homeland Security issued a notice to 

appear charging Antonio with removability as an individual 

without a valid entry document at the time of application for 

admission. 8 U.S.C. § 1182(a)(7)(A)(i)(I). Antonio applied 

for asylum, withholding of removal, and protection under 

CAT. Her application stated that when she started wearing 

pants to work, which entailed collecting logs and grasses, her 

community started to shout at her that she was a lesbian and 

that they would kill her because she was a “wrong example 

for their children.”

In a written declaration Antonio submitted in lieu of 

testimony at her asylum hearing before the IJ, she said that 

her community tortured her “for dressing up as a man,” 

1 The record could plausibly be read as attributing this statement to 

Antonio’s uncles, but in context, it appears that Antonio is referring to 

the police. In either case, this testimony supports her argument that she 

was persecuted on account of her perceived sexual orientation. 

2 Antonio did not comment on her fear of the mayor in her declaration, 

was not asked about this fear further at the hearing, and did not mention 

this fear in her appellate brief.
ANTONIO V. GARLAND 9

including by taking her to the police, because they believed 

”dressing up as a man means that [she is] a lesbian” and sets

“a bad example for the children” in the village.

3 The police 

let her go, but the death threats did not stop. The declaration 

adds that Antonio’s “grandparents got worried and told [her] 

not to work so the community would not hurt [her].” She 

married a man but eventually “separated from [her] 

husband” due to the persistent rumors and harassment. She 

left for the United States because she wanted to end her 

torment.

At the asylum hearing, Antonio also submitted a 

complaint that she filed against her harassers with a Justice 

of the Peace of the municipality of San Pedro. In it, she 

explained how her marriage fell apart because of the rumors 

about her sexuality. The harassment escalated after that. On 

December 20, 2013, members of the community waited for 

her at her place of work and attempted to lynch her. They 

demanded that she remove the men’s clothing, or else she 

“was going to burn.” Someone called the authorities, who 

“rescue[d]” her. Antonio also submitted the decision; the

local court denounced the behavior as “crimes of 

[d]iscrimination, insult and threats” and “remit[ted] the 

proceedings to the municipal Prosecutor of the Public 

Ministry . . . for the corresponding criminal investigation.”4

The IJ found Antonio credible, noting “that her 

declaration is consistent with the documentary evidence that 

3 The IJ asked her additional questions on the record.

4 The parties stated at oral argument that they do not know if the local 

government prosecuted Antonio’s assailants after the Justice of the Peace 

referred the case to the municipal prosecutor. Oral Arg. at 5:40–5:50; 

18:40–19:10.
10 ANTONIO V. GARLAND

she provided, specifically, the police report that she gave in 

her documents.” On the issue of past persecution, the IJ first 

found that the community’s threats did not rise to the level 

of persecution, although the decision did not discuss the 

repeated whipping by her uncles that Antonio described in 

her credible fear interview. Second, the IJ denied that 

Antonio belonged to a cognizable particular social group, 

finding that “style of her dress” is not an immutable 

characteristic and stating that Antonio’s “articulated 

particular social group”—which the IJ did not restate in her

order—“is . . . too amorphous for [the IJ] to be able to say it 

fits within the particular social group analysis.”5 The IJ 

specifically rejected the notion that Antonio presented a

“sexual orientation issue because Respondent stated she was 

not a lesbian.” Finally, the IJ found that the Guatemalan 

government did not persecute her or acquiesce in her 

persecution.6 The IJ highlighted that the “criminal branch 

municipality of San Pedro Soloma Court of La Paz . . . 

denounced [the facts] as discrimination, insults, and threats, 

and then said that the court was inhibited and remits 

proceedings to headquarters for a corresponding criminal 

investigation.” Thus, the IJ denied her application for 

5 During the hearing, Antonio’s counsel phrased the particular social 

group as “wom[e]n in Guatemala who are perceived to have male 

tendencies and are seen as dangerous to the community.”

6 We interpret the IJ’s finding that the Guatemalan government did not 

acquiesce in Antonio’s persecution, as a finding that Antonio was not 

persecuted by the Guatemalan government or “forces that the 

government was unable or unwilling to control.” Bringas-Rodriguez v. 

Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc); 8 U.S.C. § 

1101(a)(42).
ANTONIO V. GARLAND 11

asylum.7 A single member of the BIA affirmed the IJ without 

opinion under 8 C.F.R. § 1003.1(e)(4).

II. JURISDICTION

We have jurisdiction to review Antonio’s final order of 

removal under 8 U.S.C. § 1252(a)(1). “We have jurisdiction 

to review the denial of an asylum application when a 

petitioner raises a question of law, including mixed 

questions of law and fact.” Perdomo v. Holder, 611 F.3d 

662, 665 (9th Cir. 2010). 

III. STANDARD OF REVIEW

“Where, as here, the BIA summarily adopts the IJ’s 

decision without opinion pursuant to 8 C.F.R. § 

1003.1(e)(4), we ‘review the IJ’s decision as if it were the 

BIA’s decision.’” Ren v. Holder, 648 F.3d 1079, 1083 (9th 

Cir. 2011) (quoting Zheng v. Ashcroft, 397 F.3d 1139, 1143 

(9th Cir. 2005)). We review de novo whether a group 

constitutes a “particular social group” under the Immigration 

and Nationality Act (“INA”). Barbosa v. Barr, 926 F.3d 

1053, 1059 (9th Cir. 2019). We review “for substantial 

evidence the [agency’s] determination that a petitioner has 

failed to establish eligibility for asylum or withholding of 

removal,” including the “determination that a petitioner’s 

past harm does not amount to past persecution.” Sharma v. 

Garland, 9 F.4th 1052, 1060 (9th Cir. 2021) (cleaned up).

8

7 The IJ also denied her claim for withholding of removal and CAT 

protection. Because Antonio offers no substantive argument on the 

denial of CAT protection, we consider that claim waived. MartinezSerrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996).

8 As discussed in Flores Molina v. Garland, 37 F.4th 626, 633 n.2 (9th 

Cir. 2022), the standard of review for past persecution is currently 

unsettled. Compare Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir. 
12 ANTONIO V. GARLAND

Under this “‘highly deferential’ standard,” we “must accept 

‘administrative findings’ as ‘conclusive unless any 

reasonable adjudicator would be compelled to conclude to 

the contrary.’” Garland v. Ming Dai, 141 S. Ct. 1669, 1677 

(2021) (quoting Nasrallah v. Barr, 140 S. Ct. 1683, 1692 

(2020), and 8 U.S.C. § 1252(b)(4)(B)). 

IV. DISCUSSION

To qualify for asylum based on past persecution, an 

applicant must establish that: “(1) [her] treatment rises to the 

level of persecution; (2) the persecution was on account of 

one or more protected grounds; and (3) the persecution was 

committed by the government, or by forces that the 

government was unable or unwilling to control.” BringasRodriguez, 850 F.3d at 1062. We review each prong in turn.

A. Past Persecution

Persecution is “the infliction of suffering or harm upon 

those who differ . . . in a way regarded as offensive.” Lanza 

v. Ashcroft, 389 F.3d 917, 934 (9th Cir. 2004) (quoting 

Korablina v. I.N.S., 158 F.3d 1038, 1043 (9th Cir. 1998)). 

“[P]ersecution . . . is ‘an extreme concept that does not 

include every sort of treatment our society regards as 

2021) (reviewing de novo whether particular acts constitute persecution), 

with Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021) (applying 

substantial evidence standard). We need not “discuss the nuances of the 

two standards” because Antonio’s harm amounts to persecution even 

under the more deferential “substantial evidence” standard. See Flores 

Molina, 37 F.4th at 633 n.2; see also Singh v. Garland, 48 F.4th 1059, 

1066–67 (9th Cir. 2022) (noting disagreement about the proper standard 

of review and reversing a BIA finding of no past persecution even under 

the more deferential substantial evidence standard).
ANTONIO V. GARLAND 13

offensive.’” Id. (quoting Nagoulko v. I.N.S., 333 F.3d 1012, 

1016 (9th Cir. 2003)).

Antonio’s neighbors “threatened that if [she] dressed [in 

men’s clothing] they would get together and burn [her] down 

and whip [her].” They specifically told her that if she did 

not leave, they would kill her. The IJ discussed in her order 

how Antonio’s community “told her to remove her clothes 

or else burn.” The IJ’s conclusion that this harassment 

amounted to “simply threats,” failed to consider that this 

Court has “repeatedly held that threats may be compelling 

evidence of past persecution, particularly when they are 

specific and menacing and are accompanied by . . . violent 

confrontations, near-confrontations and vandalism.” 

Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir. 2004). 

Indeed, although the government correctly argues that there 

is no “blanket rule that in every case threats, without more, 

compel a finding of past persecution,” “[d]eath threats alone 

can constitute persecution.” Kaur, 986 F.3d at 1227; see 

also Navas v. I.N.S., 217 F.3d 646, 658 (9th Cir. 2000). 

In this case, the record reveals much more than threats 

alone. A crowd met Antonio at her workplace and 

threatened to lynch and burn her if she did not remove the 

men’s clothing. Her neighbors told her husband they 

believed she was bisexual or lesbian, and “even spoke with 

[her] grandparents,” who were “scared for [her] safety.” The 

community took her to the police because they perceived her 

to be a lesbian. We have held that the frequency, escalation, 

and seriousness of threats, as well as the fact that persecutors 

threatened a petitioner in close confrontations and 

confronted petitioner’s family, can be sufficient to compel 

the conclusion that the threats rise to the level of persecution. 

See Ruano v. Ashcroft, 301 F.3d 1155, 1160–61 (9th Cir. 

2002). That is the case here. 
14 ANTONIO V. GARLAND

Antonio also experienced actual violent attacks. During 

her credible fear interview, she told the asylum officer that 

she was whipped by her uncles “frequently because they 

wanted [her] to give them food and money” and that her 

uncles “insulted [her] about being a lesbian.” Her uncles 

hurt her “[m]any times,” starting “five months” before her 

interview. Cf. Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th 

Cir. 2003) (denying a claim for past persecution based on 

physical abuse that occurred only one time). In his report 

finding Antonio’s fear credible, the asylum officer 

summarized Antonio’s claim as alleging that “people from 

[her] village and [her] family members are motivated to 

harm [her] with at least one central reason being that they 

believe that [she is] a member of the particular social group 

that is lesbian women in Guatemala.” Although the record 

does not reveal the extent of the injuries Antonio sustained 

from these beatings, “we do not require severe injuries to 

meet the serious-harm prong of the past-persecution 

analysis.” Singh, 48 F.4th at 1068 (citing Flores Molina, 37 

F.4th at 636). Rather, “‘it is the conduct of the persecutor’ 

that is relevant to evaluating whether past treatment rises to 

the level of persecution—not ‘the level of harm’ or

‘subjective suffering’ the petitioner experienced.” Flores 

Molina, 37 F.4th at 636 (quoting Kaur, 986 F.3d at 1226).9

Taken together, the death threats, mob violence, 

involuntary transport to the police station, and repeated 

whipping by her uncles10 compel a conclusion contrary to

9 Although Antonio’s counsel never raised these beatings before the IJ, 

they were nevertheless in the record as part of Antonio’s testimony to 

the asylum officer.

10 The record is unclear whether the repeated whippings by the uncles

were on account of Antonio being perceived as a lesbian. And, as noted, 
ANTONIO V. GARLAND 15

the IJ’s determination. See Borja v. I.N.S., 175 F.3d 732, 

736–37 (9th Cir. 1999) (en banc), superseded by statute on 

other grounds as stated in Parussimova v. Mukasey, 555 

F.3d 734, 739–40 (9th Cir. 2009); Singh, 48 F.4th at 1067–

69 (finding persecution in part because the petitioner “was 

forced to flee his home after being repeatedly assaulted” and 

faced a death threat).

11 Under our case law, this behavior 

amounts to past persecution. 

B. Nexus Requirement

Having established that she experienced harm rising to 

the level of persecution, Antonio must next satisfy the nexus 

requirement, showing that she was persecuted “on account 

of race, religion, nationality, membership in a particular 

social group, or political opinion.” 8 U.S.C. 

the IJ did not discuss the whippings at all. But the record at least admits 

of such a finding. The uncles insulted her “about being a lesbian.” When 

the asylum officer specifically asked Antonio whether her uncles “ever

start[ed] calling [her a] lesbian,” she responded, “[T]hat is what they said 

the most.” The asylum officer summarized Antonio’s testimony by 

stating that her family was motivated to harm her at least in part because 

they perceived her to be a lesbian.

11 Antonio’s decision to flee Guatemala to escape persecution is itself 

relevant to our analysis. “[A]s we have consistently recognized, being 

forced to flee from one’s home in the face of an immediate threat of 

severe physical violence or death is squarely encompassed within the 

rubric of persecution . . . .” Mendoza-Pablo v. Holder, 667 F.3d 1308, 

1314 (9th Cir. 2012); see also Flores Molina, 37 F.4th at 633–34, 634 

n.3;; Knezevic v. Ashcroft, 367 F.3d 1206, 1211–12 (9th Cir. 2004). 

Antonio explained that after the community brought her to the police, 

“[the community] never left [her] in peace,” and her “grandfather cried 

because he was afraid they would do something bad to [her] and [she] 

was also very afraid, of the death threats,” such that she “started to leave 

[her] country because that is what [her] neighbors . . . wanted [her] to 

[do].”
16 ANTONIO V. GARLAND

§ 1101(a)(42)(A) (emphasis added); see Fon v. Garland, 34 

F.4th 810, 813 (9th Cir. 2022). Here, Antonio alleges 

membership in a particular social group.12 She must 

demonstrate both that she belongs to such a group and that 

her membership was “at least one central reason for [her]

persecution.” Zetino v. Holder, 622 F.3d 1007, 1015 (9th 

Cir. 2010) (citing 8 U.S.C. § 1158(b)(1)(B)(i)).

Antonio’s counsel proposed this particular social group 

to the IJ: “wom[e]n in Guatemala who are perceived to have 

male tendencies and are seen as dangerous to the

community.” The IJ found this articulation too “amorphous” 

for the court to “fit[] within the particular social group

analysis.” The IJ reasoned that “style of her dress is not an 

immutable characteristic to be considered under a particular 

social group,” and that “this is not a gender issue” or a 

“sexual orientation issue” because Antonio stated she was 

not a lesbian.

This finding, however, ignores that Antonio’s arguments 

before both the IJ and the BIA reasonably proposed a 

different particular social group: “women in Guatemala who 

are perceived to be lesbian.”13 During her credible fear 

12 Although the INA does not define “particular social group,” we have 

said that the term refers to a group that is “united by a voluntary 

association, including a former association, or by an innate characteristic 

that is so fundamental to the identities or consciences of its members that 

members either cannot or should not be required to change it.” 

Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir. 2000), 

overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th 

Cir. 2005) (en banc). 

13 Antonio’s proposed particular social group has evolved somewhat, and 

she could have been clearer in her various presentations. But the heart 

of her claim was always that she was persecuted because the villagers 
ANTONIO V. GARLAND 17

interview, Antonio stated that although she is not a lesbian, 

“people can think that . . . [a] person is perhaps a lesbian.” 

At the hearing before the IJ, her counsel noted that she was 

“perceived to have male tendencies.” In the notice of appeal 

to the BIA, Antonio reiterated that she was persecuted “for 

dressing like a boy” and that “the town believed [her] to be 

a lesbian.” Her brief to the BIA notes that her persecution 

was based on “gender roles” and that “her claim was based 

on the perception that the community-at-large had of her 

being a lesbian because of her manner of dress.” The brief 

further predicated Antonio’s claim for asylum on the 

“perception that she was a lesbian, which went against the 

ingrained principles of gender roles in Guatemala, and what 

the community expect[s] its women to dress like, behave like 

and be like.” The record demonstrates that Antonio 

sufficiently proposed the social group of women in 

Guatemala that are perceived as lesbian. 

“IJs and the BIA are not free to ignore arguments raised 

by a petitioner.” Sagaydak v. Gonzales, 405 F.3d 1035, 1040 

(9th Cir. 2005). Failure to address a social group claim, or 

failure to analyze such a claim under the correct legal 

standard, “constitutes error and requires remand.” Rios v. 

Lynch, 807 F.3d 1123, 1126 (9th Cir. 2015). Our decision 

in Perdomo v. Holder is illustrative. 611 F.3d 662 (9th Cir. 

2010). There, a petitioner “sought asylum based on her fear 

of persecution as a young woman in Guatemala.” Id. at 663. 

The petitioner alleged a particular social group “consisting 

of women [in Guatemala] between the ages of fourteen and 

forty.” Id. at 664. The IJ determined that the petitioner 

credibly feared persecution, but declined to recognize her 

perceived her to be a lesbian. Her proposed social group is clear enough 

to allow the agency to conduct the required social group inquiry.
18 ANTONIO V. GARLAND

proposed social group. Id. at 664–65. The BIA affirmed, 

concluding in part that the category of “women between the 

ages of fourteen and forty who are Guatemalan and live in 

the United States” and the petitioner’s revised category of 

“all women in Guatemala” were too broad to constitute 

particular social groups. Id. at 665, 668. We granted the

petition for review, “reject[ing] the notion that a persecuted 

group may simply represent too large a portion of a 

population to allow its members to qualify for asylum.” Id.

at 669 (citing Singh v. I.N.S., 94 F.3d 1353, 1359 (9th Cir. 

1996)). 

Concluding that the BIA erred in its social group 

analysis, the Perdomo panel explained “that under the 

ordinary remand rule, the agency should be given an 

opportunity in the first instance to make legal determinations 

entrusted to it by Congress.” Id. (citing Gonzales v. Thomas, 

547 U.S. 183, 185 (2006)). Neither the BIA nor this Court 

had previously recognized a social group of women in 

Guatemala. Id. at 667–69. The panel emphasized that the 

ordinary remand rule is “particularly applicable” in the 

context of social group analysis because the term “particular 

social group” is “amorphous.” Id. at 669 (cleaned up) 

(quoting Ramos-Lopez v. Holder, 563 F.3d 855, 859 (9th Cir. 

2009), abrogated on other grounds by Henriquez-Rivas v. 

Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc)). 

Accordingly, the panel remanded “for the BIA to determine 

in the first instance whether women in Guatemala constitute 

a particular social group, and, if so, whether [the petitioner]

demonstrated a fear of persecution ‘on account of’ her 

membership in such a group.” Id. at 669 (citing Thomas, 547

U.S. at 185).

Our course here must be the same. We have concluded 

that the IJ erred in construing Antonio’s proposed social 
ANTONIO V. GARLAND 19

group as “manner of dress” when it was in fact “women in 

Guatemala who are perceived to be lesbian.” For the reasons 

explained above, Antonio’s manner of dress was one reason 

her community associated her with the relevant proposed 

social group, not the basis of the group itself. Thus, the 

agency failed to conduct its particular social group analysis 

with respect to the correct group—women perceived to be 

lesbians.

Neither our Court in a published opinion nor the BIA has 

explicitly recognized perceived or imputed sexual

orientation as a cognizable social group, though we have 

discussed the issue. Our precedent establishes that “[r]ape 

and sexual abuse due to a person’s gender identity or sexual 

orientation, whether perceived or actual, certainly rises to 

the level of torture for CAT purposes.” AvendanoHernandez v. Lynch, 800 F.3d 1072, 1079 (9th Cir. 2015) 

(emphasis added); see also Vitug v. Holder, 723 F.3d 1056, 

1064 (9th Cir. 2013) (reversing the BIA’s withholding of 

removal determination in part because the BIA ignored the 

IJ’s finding that the petitioner “was harassed and threatened 

by the police because of his perceived sexual orientation”). 

The agency has also “assumed that the abuse [a petitioner] 

faced in his youth . . . qualifies as persecution due to his 

perceived sexual orientation, creating a ‘presumption’ that 

he would be persecuted in the future as well.” IrahetaMartinez v. Garland, 12 F.4th 942, 955 (9th Cir. 2021)

(quoting 8 C.F.R. § 1208.16(b)(1)(i)). And at least two of 

our unpublished cases recognize “perceived sexual 

orientation” as a cognizable social group. See Cruz Lopez v. 

Garland, 849 F. App’x 186, 190 (9th Cir. 2021); see also 

Pozos v. Gonzales, 141 F. App’x 629, 631, 631 n.1 (9th Cir. 

2005) (referring to petitioner’s “perceived homosexuality”). 
20 ANTONIO V. GARLAND

But, again, neither a published opinion from our Court, nor 

any decision from the BIA, does so.

Thus, we grant Antonio’s petition for review and remand 

for the agency to determine: (1) whether women in 

Guatemala perceived to be lesbian constitute a particular 

social group; and (2) if so, whether Antonio’s persecution 

was “on account of” her membership in that group. See 

Perdomo, 611 F.3d at 669; 8 U.S.C. § 1101(a)(42).14

C. Government Involvement or Acquiescence

The final inquiry is whether Antonio’s persecution was 

committed by the government or by forces that the 

government was unwilling or unable to control. See 

Madrigal v. Holder, 716 F.3d 499, 506–07 (9th Cir. 2013).15

14 We note that Antonio’s community threatened to burn her unless she 

removed the men’s clothing. They told her that if she didn’t leave, they 

would kill her, because “they did not want any lesbian women in the 

village.” And they took her to the police, and met her at her workplace 

to lynch her, presumably for this same reason. She “was dressing like a 

man to find work” to support her family. Antonio’s “grandparents . . . 

told [her] not to work so the community would not hurt [her].” Her 

uncles, who frequently whipped her, “insulted” her about being a 

lesbian—“that is what they said the most.” One of her family members 

stated that Antonio experienced “discrimination and threats because she 

dressed as a man.” The asylum officer summarized Antonio’s credible 

fear interview testimony as stating that “people from your village and 

your family members are motivated to harm you with at least one central 

reason being that they believe that you are a member of the particular 

social group that is lesbian women in Guatemala.” And the local court 

denounced the behavior Antonio complained of as “crimes of 

[d]iscrimination, insult and threats.”

15 The Government argues that Antonio waived her challenge to this 

prong. But we exercise our discretion to review the IJ’s decision on this 

issue because “the government briefed it, and thus suffers no prejudice 

from [Antonio’s] failure to properly raise the issue.” Singh v. Ashcroft, 
ANTONIO V. GARLAND 21

The IJ’s analysis focused on Antonio’s complaint to the 

Justice of the Peace and the Justice of the Peace’s decision 

to remit the matter for criminal investigation. But this 

decision does not end the inquiry. No record evidence 

indicates whether the criminal referral by the Justice of the 

Peace led to any arrests, criminal prosecution, or other action 

by authorities to minimize the threats against Antonio.16

When the government has promised future action but taken 

none, we have concluded the government was either unable 

or unwilling to exercise such control. See J.R. v. Barr, 975 

F.3d 778, 782-83 (9th Cir. 2020). 

Further, “where there is any indication that the [agency] 

did not consider all of the evidence before it . . . the decision 

cannot stand. Such indications include . . . failing to mention 

highly probative or potentially dispositive evidence.” Cole

v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011).

17 Here, the 

IJ did not explore Antonio’s statement that the mayor of her 

village “would be behind [her neighbors] if they try to kill 

361 F.3d 1152, 1157 n.3 (9th Cir. 2004). The issue is exhausted because 

Antonio raised and argued the past persecution claim in her brief before 

the BIA. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). We 

note that Antonio did not argue to the agency, and does not contend on 

appeal, that government actors were directly involved in her persecution. 

Rather, she claims that local police were unwilling to address her 

persecution.

16 As submitted in her I-589 application, Antonio left Guatemala on 

January 2, 2014, shortly after the referral on December 28, 2013. We 

leave it to the agency to determine the relevance, if any, of this fact.

17 Again, we note that Antonio’s counsel did not raise much of the 

evidence discussed below at the hearing before the IJ or in briefing on 

appeal to the BIA. Nevertheless, this evidence was in the record before 

the IJ and is “highly probative” in light of the relevant particular social 

group. Cole, 659 F.3d at 771–72.
22 ANTONIO V. GARLAND

[her].” Antonio told the asylum officer that she fears the 

mayor the most because “[h]e is the one who has the last 

decision whether to kill me or not.” The IJ’s omission of this 

evidence in her order suggests that the IJ may have failed to 

consider it. 

Second, the record shows that the police took some

action to end her harassment temporarily but did not make 

any arrests—even when the police arrived at the scene of a 

crowd threatening to kill Antonio. The IJ did not explicitly 

note this evidence, including evidence that despite police 

awareness, the death threats continued. We find nothing in 

the record to suggest that the police took any specific action 

to address Antonio’s persecution. See Mashiri, 383 F.3d at

1115 (finding persecution by forces the government was 

unable or unwilling to control where police “responded to 

the scene” of persecution but “never made any arrests”).

And Antonio told the asylum officer that when she reported 

her harassment to the police, “they didn’t pay attention.”

“[T]hey told me I have to tell them that I am not the kind of 

person that they think that I am.”18 The record also contains 

a statement from Antonio’s relative that even following 

complaints “against the aggressors, they still bothered” 

Antonio. No matter the level of actual police involvement, 

the record demonstrates that Antonio’s harassment 

continued after police were made aware.

Third, the IJ did not discuss that Antonio’s uncles 

whipped her. The record is unclear about whether Antonio 

18 This at least suggests the possibility that the police not only refused to 

act, but also refused to act because of their perception of her sexuality.

As noted above, the record could be read as attributing this statement to 

Antonio’s uncles, but in context, it appears that she is referring to the 

police. 
ANTONIO V. GARLAND 23

informed the local police of these beatings. If the police took 

no steps to stop the violence she experienced at her uncles’ 

hands despite knowing about it, this could show that the 

police were unwilling or unable to control the harm Antonio 

faced.

Finally, though the IJ considered the Country Condition 

Report as to Antonio’s CAT claim, the report notes that 

Guatemala’s antidiscrimination laws do not apply to LGBTI 

individuals who often face police abuse. The government’s 

efforts to address widespread discrimination against LGBTI 

people have been “minimal.” The IJ found the report 

irrelevant because Antonio stated she is not a lesbian. But 

given the reasons for our remand, the agency might view this 

evidence differently.

For these reasons, we remand this issue. We recognize 

that the agency may not need to reach this issue, depending 

on its social group and nexus determinations. But in light of 

our articulation of Antonio’s proposed particular social 

group, the agency should reconsider, should it reach the 

issue, whether the probative record evidence discussed 

above constitutes governmental inability or unwillingness to 

address Antonio’s persecution. See I.N.S. v. Orlando 

Ventura, 537 U.S. 12, 16 (2002). The BIA may remand to 

the IJ for further factfinding as necessary. See id. at 18.

V. CONCLUSION

The agency erred in finding that the harm Antonio 

suffered did not rise to the level of persecution. The agency 

also failed to analyze the correct social group and may have 

failed to analyze all probative evidence regarding the 

government’s acquiescence in Antonio’s persecution. 

Accordingly, we grant the petition for review and remand for 
24 ANTONIO V. GARLAND

further proceedings consistent with this opinion. 

PETITION FOR REVIEW GRANTED; 

REMANDED. 

SANCHEZ, Circuit Judge, concurring: 

I concur in the majority’s well-reasoned opinion. I write 

separately to address the question of perceived or imputed 

sexual orientation and whether such group should be 

recognized as a “particular social group” for purposes of 

asylum relief under the Immigration and Nationality Act 

(“INA”). The majority correctly points out that no published 

authority from our court or the Board of Immigration 

Appeals (“BIA”) has expressly recognized imputed sexual 

orientation as a cognizable social group, and therefore 

remand is warranted to allow the BIA to pass on this 

question in the first instance. See Perdomo v. Holder, 611 

F.3d 662, 669 (9th Cir. 2010). Under longstanding circuit 

and BIA precedent, the answer to this question seems clear. 

We have long recognized homosexual applicants as 

members of a particular social group, as has the BIA. See 

Karouni v. Gonzales, 399 F.3d 1163, 1172 (9th Cir. 2005); 

Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 822–23 (BIA 

1990). And the BIA has consistently held that applicants 

persecuted for imputed grounds are eligible for asylum. In 

Re S-P-, 21 I. & N. Dec. 486, 489–90 (BIA 1996) (citing 

Matter of A-G-, 19 I. & N. Dec. 502, 507 (BIA 1987)); see 

also Matter of T-M-B-, 21 I. & N. Dec. 775, 777 (BIA 1997) 

(an applicant for asylum must show “that the harm was 

motivated, at least in part, by an actual or imputed protected 

ground”) (emphasis added). In particular, the BIA has 

emphasized the importance of the “perception of the 
ANTONIO V. GARLAND 25

persecutor” in asylum claims that involve persecution on 

account of imputed protected characteristics:

For example, an individual may present a 

valid asylum claim if he is incorrectly 

identified as a homosexual . . . in a society 

that considers homosexuals a distinct group 

united by a common immutable 

characteristic. In such a case, the social group 

exists independent of the persecution, and the 

perception of the persecutor is relevant to the 

issue of nexus (whether the persecution was 

or would be on account of the applicant’s 

imputed homosexuality).

Matter of M-E-V-G-, 26 I. & N. Dec. 227, 243 (BIA 2014).

This Court has adopted the same reasoning in other types 

of asylum claims. For example, we have held that to show 

persecution on account of political opinion, a petitioner need 

not prove that she “actually held a political opinion or acted 

in furtherance of it,” but rather must provide evidence “that 

the persecutor was motivated by a belief that the petitioner 

held the political opinion.” Khudaverdyan v. Holder, 778 

F.3d 1101, 1106 (9th Cir. 2015) (citing I.N.S. v. EliasZacarias, 502 U.S. 478, 483 (1992)). We have applied the 

same precept to imputed religious belief. See Popova v. 

I.N.S., 273 F.3d 1251, 1258 (9th Cir. 2001) (“To establish a 

correlation between [the petitioner’s] persecution and her 

political opinion and religion, she must show, by direct or 

circumstantial evidence, her persecutors’ motive.”). And we 

have held that persecution on account of membership in a 

particular social group includes persecution on account of 

perceived membership in that group. See Thomas v. 
26 ANTONIO V. GARLAND

Gonzales, 409 F.3d 1177, 1188 (9th Cir. 2005), cert. 

granted, rev’d on other grounds, 547 U.S. 183 (2006).

It is no leap to conclude that imputed homosexuality and 

homosexuality alike confer membership in the particular 

social group of homosexuals. Indeed, as the majority 

recognizes, prior panels have applied BIA and circuit 

precedent to arrive at that conclusion in unpublished 

dispositions. See Pozos v. Gonzales, 141 F. App’x 629, 631 

n.1 (9th Cir. 2005) (“There is . . . no longer any question that 

one can be eligible for asylum as a result of persecution he 

suffers on account of imputed homosexuality.”); see also 

Cruz Lopez v. Garland, 849 F. App’x 186, 190 (9th Cir. 

2021) (“[T]he record compels the conclusion that [the 

petitioner’s] perceived sexual orientation was both ‘a central 

reason’ and ‘a reason’ for his persecution.”).

The Immigration Judge in this case nonetheless 

concluded that because Antonio did not attest to being a 

lesbian, the persecution she suffered in Guatemala was “not 

a sexual orientation issue”: It was instead no more than a 

“dress issue.” This finding focused exclusively on Antonio, 

assigning no weight to the perceptions of her persecutors. 

But to establish persecution on account of a protected 

characteristic, Antonio was not obligated to prove that she is 

homosexual. Rather, she was required to provide evidence 

that her persecutors were “motivated by a belief” that she is. 

See Khudaverdyan, 778 F.3d at 1106. Faithful application 

of the foregoing precedent should lead the BIA to the same 

conclusion.