FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DORIS AMANDA RODRIGUEZZUNIGA; NELSON GABRIEL 

TOBAR-RODRIGUEZ, 

Petitioners, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 19-72024 

Agency Nos.

A209-217-710 

A209-217-711 

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted October 20, 2022

San Francisco, California

Filed June 7, 2023

Before: Ronald Lee Gilman,* Consuelo M. Callahan, and 

Lawrence VanDyke, Circuit Judges.

Opinion by Judge VanDyke;

Dissent by Judge Gilman

* The Honorable Ronald Lee Gilman, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 RODRIGUEZ-ZUNIGA V. GARLAND

SUMMARY**

Immigration

The panel denied Doris Amanda Rodriguez-Zuniga’s 

and her son Nelson Gabriel Tobar-Rodriguez’s petition for 

review of the Board of Immigration Appeals’ dismissal of 

their appeal of an immigration judge’s denial of asylum and 

related relief. 

Rodriguez-Zuniga testified that she was afraid to return 

to Guatemala because a woman had attempted to rob her 

after she withdrew money from a bank. The woman told 

Rodriguez-Zuniga that she targeted her because RodriguezZuniga had family in the United States and a lot of 

money. The woman also threatened that RodriguezZuniga’s son would “pay for it” due to Rodriguez-Zuniga’s 

refusal to give her the money. Rodriguez-Zuniga and her 

son asserted that she had suffered past persecution and had a 

well-founded fear of future persecution on account of her 

political opinion of refusing to submit to violence by 

criminal groups or gangs, and their claimed membership in 

three particular social groups: “Guatemalan families that 

lack an immediate family male protector,” “Guatemalan 

women,” and “immediate family members of Doris Amanda 

Rodriguez-Zuniga.” 

Because the record did not compel the conclusion that 

Guatemalan society perceived it as a distinct group, the panel 

held that Rodriguez-Zuniga failed to show that the agency 

erred in concluding that her proposed social group 

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

been prepared by court staff for the convenience of the reader.
RODRIGUEZ-ZUNIGA V. GARLAND 3

comprised of “Guatemalan families that lack an immediate 

family male protector” was not cognizable. The panel also 

concluded that substantial evidence supported the agency’s 

determination that Rodriguez-Zuniga had not expressed a 

political opinion. The panel explained that RodriguezZuniga’s refusal to give money to the threatening robber was 

not evidence of a “conscious and deliberate” decision that 

would naturally result in attributing a political position to 

her, and that she instead simply reacted to being robbed.

Absent some evidence that Rodriguez-Zuniga expressed a 

political opinion beyond merely her resistance to being 

robbed, the panel concluded that the agency did not err in 

determining that she failed to establish nexus to a political 

opinion.

Turning to Rodriguez-Zuniga’s family social group 

claim, the panel concluded that the murder of RodriguezZuniga’s cousin and her cousin’s son because they refused 

to pay the gangs did not compel any conclusion about the 

robber’s motivation in Rodriguez-Zuniga’s case. The panel 

further concluded that Rodriguez-Zuniga failed to establish 

a nexus to her family membership based on the robber’s 

threats to her son to get her to pay money. The panel wrote 

that to establish a nexus between her family membership and 

her harm, Rodriguez-Zuniga had to show that her family 

membership was a reason motivating the robber to target 

her. The panel explained that where the record indicates that 

the persecutor’s actual motivation for threatening a person is 

to extort money from a third person, the record does not 

compel finding that the persecutor threatened the target 

because of a protected characteristic such as family relation.

Even assuming for the sake of argument that the harm 

against Rodriguez-Zuniga’s son could support her own 

asylum claim, the panel held that Rodriguez-Zuniga failed to 
4 RODRIGUEZ-ZUNIGA V. GARLAND

make the required showing of nexus. The panel explained 

that substantial evidence supported the agency’s finding that 

the robber threatened Rodriguez-Zuniga’s son only as an 

instrumental means to obtain money, and that the robber was 

not motivated intrinsically by the son’s familial relationship 

to Rodriguez-Zuniga. Rather, the robber targeted the son for 

the same reason she would target, for example, the 

petitioner’s life-long friend if the opportunity arose—merely 

because she thought Rodriguez-Zuniga cared about that 

person and thus the robber could use threats against that 

person as a means of obtaining money from RodriguezZuniga. The panel explained that the extorted person’s 

motivation to give the money because they care for their 

family member does not transform the persecutor’s 

motivation from money to actual animus against a protected 

characteristic.

The panel also rejected Rodriguez-Zuniga’s “extortionplus” claim under Ayala v. Sessions, 855 F.3d 1012 (9th Cir. 

2017). The panel explained that “extortion-plus” is simply 

the recognition that a persecutor can hold multiple motives 

for harming someone. However, unlike in Ayala, in this case 

the agency made no erroneous legal conclusion that 

extortion could not constitute persecution regardless of other 

motives. Instead, the agency expressly concluded there were 

no other such motives.

The panel held that the remainder of Rodriguez-Zuniga’s 

evidence from country conditions reports did not compel the 

conclusion that Rodriguez-Zuniga established an objectively 

reasonable fear of future persecution. While recognizing 

that there is no categorical rule that the failure to establish a 

nexus for past persecution forecloses nexus for future 

persecution, the panel did not read the IJ’s decision as 

necessarily applying such a categorical rule. The panel 
RODRIGUEZ-ZUNIGA V. GARLAND 5

wrote that even if the IJ erred in applying some categorial 

rule, the BIA did not, and instead addressed them as two 

independent inquiries.

Finally, the panel concluded that by failing to adequately 

address the issue in her opening brief, Rodriguez-Zuniga had 

forfeited any argument that the agency incorrectly found she 

would not suffer torture with the consent or acquiescence of 

the government. Because a petitioner can state a claim for 

CAT relief only if she shows that the government would 

acquiesce in her torture, the panel concluded that RodriguezZuniga’s failure to contest this point was fatal to her claim.

Dissenting, Judge Gilman disagreed with the majority’s 

conclusion that petitioners failed to establish nexus based on 

their family membership. Because Nelson’s would-be 

persecutors were interested in him only because of his 

relationship to his mother, in Judge Gilman’s view, he 

satisfied both the “a reason” nexus standard for withholding 

of removal and the “one central reason” nexus standard for 

asylum. 

Judge Gilman also wrote that the majority’s nexus 

holding with respect to Rodriguez-Zuniga conflicted with 

this court’s decision in Ayala. Judge Gilman wrote that 

nowhere in Ayala does the court suggest that a showing of 

“animus” on the part of the persecutor is necessary. Judge 

Gilman also explained that, unlike in Ayala, in this case there 

was no ambiguity as to why Rodriguez-Zuniga was 

targeted. Rodriguez Zuniga’s potential persecutors knew 

her identity and the identities of her family members, and 

their representative targeted Rodriguez-Zuniga using her 

relationship to her son and because of her relationship to her 

husband. Additionally, Judge Gilman wrote that by 

eliminating a petitioner’s ability to establish a nexus to a 
6 RODRIGUEZ-ZUNIGA V. GARLAND

protected ground where the persecutor’s actual motivation 

for threatening a person is to extort money from a third 

person, the majority departs from this court’s precedents that 

affirm the principle that people, including persecutors, often 

have mixed motives.

Judge Gilman wrote that the majority also failed to hold 

the agency accountable for several procedural missteps, 

including the agency’s failure to independently analyze the 

likelihood that petitioners would be subjected to future harm, 

failure to properly consider Rodriguez-Zuniga’s political 

opinion claim, failure to consider all evidence relevant to the 

possibility of future torture, including based on her gender, 

and the agency’s application of too narrow a government 

acquiescence standard. Judge Gilman also disagreed that 

petitioners had forfeited the government acquiescence issue.

COUNSEL

Roger Sismaet Green (argued) and Jenny Tsai, Green & 

Tsai, San Francisco, California, for Petitioners.

Timothy B. Stanton (argued) and Kristen H. Blosser, Trial 

Attorneys; Sabatino F. Leo, Senior Litigation Counsel; 

Joseph H. Hunt, Assistant Attorney General, Civil Division; 

Office of Immigration Litigation, United States Department 

of Justice; Washington, D.C.; for Respondent.
RODRIGUEZ-ZUNIGA V. GARLAND 7

OPINION

VANDYKE, Circuit Judge:

Doris Amanda Rodriguez-Zuniga petitions for review of 

the decision of the Board of Immigration Appeals (BIA) 

dismissing her appeal from the removal order of the 

Immigration Judge (IJ). The heart of Rodriguez-Zuniga’s 

petition is her fear that, because she experienced an 

attempted robbery in her native country, she will be subject 

to persecution in the future. But fear of generalized crime is 

not a sufficient basis for asylum or withholding of removal, 

nor do her other arguments show that she is entitled to relief. 

We have jurisdiction under 8 U.S.C. § 1252 and deny her 

petition.

I. BACKGROUND

In June 2016, Rodriguez-Zuniga and her son, Nelson 

Gabriel Tobar-Rodriguez, entered the United States without 

valid entry documents. They are both citizens and natives of 

Guatemala. Soon after, the United States initiated removal 

proceedings against Rodriguez-Zuniga. She was charged 

with being an “immigrant who, at the time of application for 

admission, [was] not in possession of a ... valid entry 

document.”

Rodriguez-Zuniga conceded both the allegations against 

her and removability, but applied for asylum, withholding of 

removal, and protection under the Convention Against 

Torture (CAT). She claimed that she was entitled to asylum 

because she “suffered past persecution and ha[d] a wellfounded fear of future persecution based upon her political 

opinion and membership in a particular social group.” Her 

purported political opinion was her “refusal to submit to 
8 RODRIGUEZ-ZUNIGA V. GARLAND

violence by criminal groups/gangs.” She claimed to be a 

member of three particular social groups: “Guatemalan 

families that lack an immediate family male protector,” 

“Guatemalan women,” and “immediate family members of 

Doris Amanda Rodriguez-Zuniga.” She alleged she suffered 

past persecution generally because of the “bad state of gang 

affairs” in Guatemala and, more specifically, because a 

woman had attempted to rob her.

Rodriguez-Zuniga also argued that she had a wellfounded fear of future persecution because of her past 

persecution, the murder of her cousin and her cousin’s child, 

and the generally “precarious current state of Guatemala.” 

Rodriguez-Zuniga finally claimed that she was entitled to 

withholding of removal and CAT relief for the same reasons 

she was entitled to asylum.

At her hearing before the IJ, Rodriguez-Zuniga testified 

that she was afraid to return to Guatemala because a woman

had attempted to rob her when she lived there. In March 

2016, just a few months before she entered the United States, 

Rodriguez-Zuniga had gone to the bank to withdraw $150, 

money that her husband in the United States “had sent [her].” 

At that time, Rodriguez-Zuniga regularly received money 

from her husband. As she exited the bank, a woman 

threatened Rodriguez-Zuniga if she did not give her the 

money. Rodriguez-Zuniga believed the woman “belonged 

to a group of ... gangs or a group who harms people.” The 

woman told Rodriguez-Zuniga that if she did not give her 

the money, she was going to hurt Rodriguez-Zuniga or her 

son. Rodriguez-Zuniga refused, and the woman told her that 

Rodriguez-Zuniga’s “son was going to pay for it and that she 

was going to come and find [Rodriguez-Zuniga] again.” The 

woman told Rodriguez-Zuniga that she targeted her because 

Rodriguez-Zuniga’s “family was [in the United States] and 
RODRIGUEZ-ZUNIGA V. GARLAND 9

[because she] had a lot of money that [she] could give them.” 

Rodriguez-Zuniga never saw the woman again.

Rodriguez-Zuniga also told the IJ about her female 

cousin who had been killed by gangs when “she refused to 

give them money.” Her cousin’s son was also killed, but 

Rodriguez-Zuniga did not know whether it “was the gang 

members that killed him.”

The IJ found that Rodriguez-Zuniga “testified credibly 

and accord[ed] her testimony full evidentiary weight,” but 

denied relief. As for asylum and withholding, the IJ found 

that Rodriguez-Zuniga’s past harms and fear of future harms 

lacked the requisite nexus to her statutorily protected 

grounds. The IJ rejected Rodriguez-Zuniga’s proposed 

particular social group of “Guatemalan families that lack an 

immediate family male protector.” The IJ found that 

Rodriguez-Zuniga’s family was a particular social group 

because “family relationships are generally ‘easily 

recognizable and understood by others to constitute social 

groups.’” The IJ also found that Guatemalan women were a 

particular social group because of the “high level of violence 

committed against Guatemalan women” and their “need 

[for] specialized protection” indicated they are viewed as a 

distinct group as compared to the general population in 

Guatemala. But the IJ found no nexus between the harm 

Rodriguez-Zuniga suffered and her membership in either

cognizable particular social group, observing that the female 

robber “did not mention [Rodriguez-Zuniga’s] gender or her 

lack of a ‘male protector’ in the family; rather, the 

perpetrator seemed to only want money.” And because she 

presented no additional evidence for her feared future 

persecution beyond her nexus evidence for her past 

persecution, the IJ found that Rodriguez-Zuniga likewise 

lacked a nexus for her feared future harm. Finally, the IJ 
10 RODRIGUEZ-ZUNIGA V. GARLAND

denied Rodriguez-Zuniga’s claim for CAT relief because 

she did not establish that it was “more likely than not she 

will be tortured by or with the acquiescence of the 

government if [she] returned to Guatemala.”

Rodriguez-Zuniga appealed to the BIA, and the BIA 

dismissed her appeal. It first “adopt[ed] and affirm[ed] the 

decision of the Immigration Judge for the reasons stated [in 

the IJ’s opinion]” before explaining the its own additional

reasons for dismissing the appeal. As for asylum and 

withholding, the BIA agreed that one of Rodriguez-Zuniga’s 

proposed social groups was not cognizable and that she 

failed to establish a nexus between her past harm or feared 

future harm and “either her family membership[] or her 

status as a Guatemalan woman.” The BIA rejected 

Rodriguez-Zuniga’s claim that she was persecuted because 

of her political opinion, concluding that “there [was] no 

evidence she ever expressed a political opinion.” It also 

rejected her CAT claim because Rodriguez-Zuniga did not 

show that she was sufficiently likely to suffer torture with 

the consent of the government.

II. STANDARD OF REVIEW

“Where, as here, the BIA agrees with the IJ’s reasoning, 

we review both decisions.” See Garcia-Martinez v. 

Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018). We review 

the agency’s decision under the highly deferential 

substantial evidence standard. Ruiz-Colmenares v. Garland, 

25 F.4th 742, 748 (9th Cir. 2022). Under that standard, the 

agency’s findings of fact are considered “conclusive unless 

any reasonable adjudicator would be compelled to conclude 

to the contrary.” Id. We review questions of law de novo. 

Id.
RODRIGUEZ-ZUNIGA V. GARLAND 11

III. DISCUSSION

The agency did not err in denying Rodriguez-Zuniga’s 

asylum and withholding claims.1 Her arguments do not 

show that the agency erred in rejecting one of her proposed 

particularized social groups or in concluding that she failed 

to present evidence that she expressed a political opinion. 

And substantial evidence supports the agency finding of no 

nexus between Rodriguez-Zuniga’s membership in the 

particularized social groups that the agency accepted as 

cognizable and any harm she experienced or feared. 

Substantial evidence also supports the agency’s finding that 

Rodriguez-Zuniga did not establish it was more likely than 

not that the government would torture her upon her return to 

Guatemala. We therefore deny her petition for review.

a. The Agency Did Not Err in Denying RodriguezZuniga’s Asylum and Withholding of Removal 

Claims.

For both asylum and withholding claims, a petitioner 

must prove a causal nexus between one of her statutorily 

protected characteristics and either her past harm or her 

objectively tenable fear of future harm. See Garcia v. 

Wilkinson, 988 F.3d 1136, 1143 (9th Cir. 2021) (asylum); 

Flores-Vega v. Barr, 932 F.3d 878, 886–87 (9th Cir. 2019) 

(withholding). These statutorily protected characteristics 

include “race, religion, nationality, membership in a 

particular social group, [and] political opinion.” 8 U.S.C. 

§ 1158(b)(1)(B)(i) (asylum); see also 8 U.S.C.

§ 1231(b)(3)(A) (withholding). 

1 Nelson, Rodriguez-Zuniga’s son, is a derivative beneficiary on this 

petition.
12 RODRIGUEZ-ZUNIGA V. GARLAND

The agency denied asylum and withholding relief 

because Rodriguez-Zuniga failed to make a showing of 

nexus for either her past harm or feared future harms. 

Rodriguez-Zuniga contends that the agency erred in 

numerous respects: first, by rejecting one of her proposed 

particular social groups; second, in finding that she never 

expressed a political opinion; and third, in finding that there 

was no nexus between Rodriguez-Zuniga’s cognizable 

protected social groups—family membership and 

“Guatemalan women”—and either her past harms or feared 

future harms. 

i. Rodriguez-Zuniga does not show that the 

agency erred in rejecting her proposed 

particular social group.

The agency concluded that Rodriguez-Zuniga’s 

proposed particular social group of “Guatemalan families 

that lack an immediate family male protector” was not 

cognizable because the evidence did not establish that such 

families “are perceived as a group by society.” “The 

[agency’s] conclusion regarding social distinction—whether 

there is evidence that a specific society recognizes a social 

group—is a question of fact that we review for substantial 

evidence.” Conde Quevedo v. Barr, 947 F.3d 1238, 1242 

(9th Cir. 2020). Rodriguez-Zuniga fails to show that the 

record compels the conclusion that her proposed group is 

“perceived as a group by society.”

Rodriguez-Zuniga contends that the agency failed to 

recognize that the group it rejected is built upon the 

foundations of the groups that were previously accepted. 

Although somewhat unclear, she appears to contend that the 

same evidence that makes both her family—which lacks an 

immediate male protector—and “Guatemalan women” 

socially distinct necessarily renders every family without an 
RODRIGUEZ-ZUNIGA V. GARLAND 13

immediate male protector socially distinct. But the evidence 

the agency relied on to find these two other groups 

cognizable—the “easily recognizable” nature of family units 

and people’s general understanding that they “constitute 

social groups,” as well as the recognition of Guatemalan 

women’s need for special protection—doesn’t compel the 

conclusion that families without an “immediate family male 

protector” are separately perceived as “set apart, or distinct, 

from other persons within a society.” Diaz-Reynoso v. Barr, 

968 F.3d 1070, 1077 (9th Cir. 2020). 

The three groups are different, and the agency could

reasonably find that the same evidence doesn’t render all 

three groups distinct. Beyond this failed argument, 

Rodriguez-Zuniga points to no record evidence indicating 

that “families that lack an immediate family male protector” 

is perceived as a distinct group. She thus fails to show that 

the agency lacked substantial evidence in rejecting her 

membership in “families that lack an immediate family male 

protector” or that the record compels a different conclusion.

ii. Substantial evidence supports the agency’s 

conclusion that Rodriguez-Zuniga did not 

present evidence that she expressed a political 

opinion.

Rodriguez-Zuniga claims she was persecuted because of 

her political opinion, which she frames as her refusal to 

“submit to violence by criminal groups/gangs.” The agency 

below rejected her claim, concluding that she presented no 

evidence “she ever expressed a political opinion.” 

Rodriguez-Zuniga argues that the agency erred because she 

presented evidence of a political opinion when she testified 

to the agency regarding her refusal to give the female robber

the demanded money. But because that act was not a 
14 RODRIGUEZ-ZUNIGA V. GARLAND

“sufficiently conscious and deliberate” expression of a 

political opinion, our precedents make clear that it cannot

support Rodriguez-Zuniga’s claim. De Valle v. INS, 901 

F.2d 787, 791 (9th Cir. 1990) (citation omitted). 

A person’s deeds express a political opinion only when 

they are “‘sufficiently conscious and deliberate’ decisions or 

acts” such that society would naturally “attribute[] certain 

political opinions to [the petitioner]” based on those acts. Id.

(citation omitted). Rodriguez-Zuniga’s refusal to give 

money to the threatening robber is not evidence of a 

“conscious and deliberate” decision that would naturally 

result in attributing a political position to her. Id. Rather, 

she simply reacted to being robbed. If merely resisting a 

robbery could constitute expressing a political opinion, then 

every person who avoided being the victim of a crime could 

seek asylum. But most people who resist criminal activity 

directed towards them do so for obvious non-political selfinterested reasons—they don’t want to be the victim of a 

crime. See Santos-Lemus v. Mukasey, 542 F.3d 738, 747 

(9th Cir. 2008) (relying on the fact that “opposition to [a] 

gang’s criminal activity” is not necessarily “based on 

political opinion”), abrogated on other grounds by 

Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013). 

Nor is Rodriguez-Zuniga’s mere unwillingness “to 

cooperate with a potential persecutor ... necessarily 

expressive conduct constituting a political opinion.” Chen 

v. INS, 95 F.3d 801, 806 (9th Cir. 1996) (citing INS v. EliasZacarias, 502 U.S. 478, 480–83 (1992)); see also RegaladoEscobar v. Holder, 717 F.3d 724, 730 (9th Cir. 2013) 

(explaining that “fail[ing] to cooperate in [a political party’s] 

recruitment efforts” does not necessarily express “principled 

opposition to [the political party] or its violence”).
RODRIGUEZ-ZUNIGA V. GARLAND 15

Rodriguez-Zuniga presents no other evidence in support 

of her political opinion argument, nor does she present 

additional evidence as to any nexus between her purported 

political opinion and her harm. Absent some evidence that 

Rodriguez-Zuniga expressed a political opinion beyond 

merely her resistance to being robbed, the record does not 

require the conclusion the agency erred. See Garcia-Milian 

v. Holder, 755 F.3d 1026, 1032 (9th Cir. 2014) (concluding 

that the record “does not compel” a different conclusion than 

the agency’s when the petitioner “provided no evidence” on 

the point). Substantial evidence thus supports the agency’s 

rejection of Rodriguez-Zuniga’s claim for asylum and 

withholding on the basis of a political opinion. See 

Rodriguez Tornes v. Garland, 993 F.3d 743, 752 (9th Cir. 

2021) (requiring a showing of nexus for both asylum and 

withholding claims based on political opinion). 

iii. Substantial evidence supports the agency’s 

finding that Rodriguez-Zuniga’s harms 

lacked a nexus to a protected characteristic.

For both her asylum and withholding claims, 

Rodriguez-Zuniga must show a nexus between her past 

harms or feared future harm and her statutorily protected 

characteristics. See Garcia, 988 F.3d at 1143 (asylum); 

Flores-Vega, 932 F.3d at 887 (withholding). For asylum, 

she must provide evidence showing that her protected 

characteristics were “one central reason” for either her past 

harms or her feared future harms. 8 U.S.C.

§ 1158(b)(1)(B)(i). For withholding, she must provide 

evidence showing it is more likely than not that her life or 

freedom will be threatened, consisting in part of evidence 

indicating that her protected characteristics will be “a 

reason” for her suffering harm in the future. See 8 U.S.C.

§ 1231(b)(3)(A); Garcia, 988 F.3d at 1146. The reasons 
16 RODRIGUEZ-ZUNIGA V. GARLAND

needed to prove a nexus refer to the persecutor’s 

motivations for persecuting the petitioner. See id. 

“Because a persecutor’s actual motive is a matter of fact, 

we review that finding for substantial evidence.” VasquezRodriguez v. Garland, 7 F.4th 888, 893 (9th Cir. 2021) 

(cleaned up).

The agency found Rodriguez-Zuniga had failed to 

establish any nexus whatsoever between past harm she 

suffered and either of her proposed social groups. Circuit 

precedent requires a lower nexus showing for withholding of 

removal than asylum, requiring only “a reason” for 

withholding of removal as compared to a “central reason” 

for asylum. Barajas-Romero v. Lynch, 846 F.3d 351, 360 

(9th Cir. 2017). So it is possible that a petitioner who failed 

to show a sufficient nexus for asylum might nonetheless 

meet the lower nexus requirement for withholding of 

removal. But where, as here, the agency concludes that the 

petitioner has not shown any nexus whatsoever, then the 

petitioner fails to establish past persecution for both asylum 

and withholding. See id. (observing there is “no distinction 

between the ‘one central reason’ phrase in the asylum statute 

and the ‘a reason’ phrase in the withholding statute ... 

[where] there was no nexus at all” (quoting Zetino v. Holder, 

622 F.3d 1007, 1016 (9th Cir. 2010) (emphasis added)).

The sole harm that Rodriguez-Zuniga contends

amounted to past persecution was the female robber’s threat 

against her and her son. She claims the robber was 

motivated to make this threat by Rodriguez-Zuniga’s 

membership in two protected groups: Rodriguez-Zuniga’s

family and “Guatemalan women.” The agency found that 

the robber was not motivated by her membership in either of 

those groups, but was instead solely motivated by money.
RODRIGUEZ-ZUNIGA V. GARLAND 17

The agency first found that the woman did not target

Rodriguez-Zuniga because of her status as a “Guatemalan 

woman,” noting that the woman “did not mention 

[Rodriguez-Zuniga’s] gender” at all during the attempted 

robbery. Rodriguez-Zuniga contends this was an error, but 

the only evidence she references is that “Guatemala ha[s] a 

notorious record in lacking in Guatemalan female 

protection.” The general vulnerability of women in 

Guatemala tells us nothing about the female robber’s 

particular motivations, and certainly does not compel the 

conclusion that the robber threatened Rodriguez-Zuniga 

because she is a woman. See Barajas-Romero, 846 F.3d at 

357 (explaining that “the persecutor’s motive” is what 

matters for nexus); cf. Lalayan v. Garland, 4 F.4th 822, 840 

(9th Cir. 2021) (explaining that while “country reports and 

news articles” indicate problems in the petitioner’s home 

country, “they in no way establish that [he] would ‘more 

likely than not’ be persecuted upon removal ... on account 

of his [protected ground]”).

The agency next found that the woman did not threaten 

Rodriguez-Zuniga’s son because of or on account of his 

kinship to Rodriguez-Zuniga. Instead, she “appeared to be 

motivated exclusively by monetary interest.” Substantial 

evidence supports the agency’s nexus finding because 

Rodriguez-Zuniga “did not demonstrate that the gang 

members who sought to extort money from [her] ... were

motivated by anything other than an economic interest.” 

Iraheta-Osorio v. Holder, 445 F. App’x 8, 9 (9th Cir. 2011)

(citing Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir.

2009)).

Rodriguez-Zuniga contends that the agency erred in 

finding no nexus between the threat and her family 

membership. She relies on the fact that gangs murdered her 
18 RODRIGUEZ-ZUNIGA V. GARLAND

cousin and her cousin’s son because they refused to pay the 

gangs, but this does not compel any conclusion about the 

robber’s motivation in Rodriguez-Zuniga’s case. See 

Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010) 

(explaining that “vague threats made against [the 

petitioner’s] family” did not compel the conclusion that the 

petitioner’s “perceived fear of future persecution 

is ... objectively reasonable”).

The heart of Rodriguez-Zuniga’s argument, instead, is 

that the woman threatened her son to get her to pay money, 

which “displays the gangs’ specifically targeting ... a 

specific family member to get petitioner to comply.” To 

establish a nexus between her family membership and her 

harm, Rodriguez-Zuniga must show that her family 

membership was a reason motivating the robber to target her. 

See Barajas-Romero, 846 F.3d at 357. Where the record 

indicates that the persecutor’s actual motivation for 

threatening a person is to extort money from a third person, 

the record does not compel finding that the persecutor 

threatened the target because of a protected characteristic

such as family relation.

2

 See Baballah v. Ashcroft, 367 F.3d 

2 The dissent laments our use of the modifier “actual” before motivation, 

criticizing our failure to recognize that a petitioner may establish asylum 

or withholding even when the persecutor holds multiple or mixed 

motivations. We of course agree that a petitioner may be entitled to relief 

when a persecutor holds multiple or mixed motivations, and one of those 

motivations is that the persecutor actually wants to harm the petitioner 

based on her protected characteristic. We do not deny that basic 

principle in emphasizing that the motivation must be “actual.” Instead, 

the modifier “actual” distinguishes between where a protected 

characteristic intrinsically motivates the persecutor to harm a victim—

for example, because the persecutor has animus towards people who 

profess a certain religion—and where a protected characteristic is simply 
RODRIGUEZ-ZUNIGA V. GARLAND 19

1067, 1075 n.7 (9th Cir. 2004) (explaining that this court’s 

precedent precludes relief when persecution is “solely on 

account of an economic motive”); Zetino, 622 F.3d at 1016 

(“An alien’s desire to be free from harassment by criminals 

motivated by theft or random violence by gang members 

bears no nexus to a protected ground.”); see also Sanchez v. 

Sessions, 706 F. App’x 897, 899 (9th Cir. 2017) (rejecting a 

nexus because threats to the petitioner’s family were only a

means of obtaining desired information, not “because of the 

family relationship per se”). In such a situation, the extorted 

person may be motivated to give the money because they 

care for their family member, but that doesn’t transform the 

persecutor’s motivation from money to actual animus 

against a protected characteristic.

an instrumentality for the persecutor to accomplish his goals, such as 

here, where there is no evidence the gang member cared at all that 

Rodriguez-Zuniga was related to her son or that her son was related to 

Rodriguez-Zuniga. The dissent similarly asserts that our distinction 

would preclude a petitioner from “establish[ing] that family membership 

is even ‘a reason’ for any potential persecution where financial gain also 

motivates the persecutor.” That worry is unfounded. Our caselaw 

permits someone to establish a nexus when one of the persecutor’s 

motivations is financial so long as another motivation, either the 

“central” reason or simply “a reason” depending on what claim is being 

pressed, is actually motivating the persecutor and is based on a victim’s 

protected characteristic. See, e.g., Baghdasaryan v. Holder, 592 F.3d 

1018, 1025–26 (9th Cir. 2010). It should thus be clear from the foregoing 

that we are not—contrary to the dissent—saying that a victim persecuted 

because of “the petitioner’s family membership” is prevented from 

showing a nexus just because the “persecutor’s motives also contain a 

financial dimension.” (Emphasis added.) But this case does not present 

such mixed motives—substantial evidence supports the agency’s finding 

that here financial motivation was not in addition to a motivation based 

on family membership, but was instead the persecutor’s exclusive 

motivation.
20 RODRIGUEZ-ZUNIGA V. GARLAND

Assuming for the sake of argument that harm against 

Rodriguez-Zuniga’s son could support her own asylum 

claim, Rodriguez-Zuniga has failed to make the required 

showing of nexus. Substantial evidence supports the 

agency’s finding that the robber threatened RodriguezZuniga’s son only as an instrumental means to obtain money, 

and was not motivated intrinsically by his familial 

relationship to his mother. Rodriguez-Zuniga repeatedly 

testified that the reason the woman targeted her was because

she “had a lot of money that [she] could give them.” “[I]f 

[Rodriguez-Zuniga] didn’t give her that money[,] she was 

going to hurt” her or her son. The record in this case thus

does not compel the finding that the robber’s motivation for 

threatening to hurt Rodriguez-Zuniga’s son was his familial 

relationship to Rodriguez-Zuniga. Rather, the robber

targeted the son for the same reason she would target, say, 

the petitioner’s life-long friend if the opportunity arose—

merely because she thought Rodriguez-Zuniga cared about 

that person and thus the robber could use threats against that 

person as a means of obtaining money from RodriguezZuniga.

3

Rodriguez-Zuniga attempts to refute this point by citing 

Ayala v. Sessions, where our court stated that “economic 

extortion on the basis of a protected characteristic can 

constitute persecution.” 855 F.3d 1012, 1020 (9th Cir. 

2017). Rodriguez-Zuniga misreads Ayala. Like this case, 

Ayala involved extortion. But as the court explained, it 

involved an “extortion-plus” claim, that is, a claim that the 

petitioner was independently targeted, not just for money, 

3 We do not suggest one way or another whether the threat to the son

could apply to Rodriguez-Zuniga. There is no need to reach that issue in 

this case.
RODRIGUEZ-ZUNIGA V. GARLAND 21

but also because of a protected ground. Id. at 1021. An

“extortion-plus” nexus is simply one instantiation of our 

precedent’s recognition that a persecutor can hold multiple 

motives for harming someone. See Parussimova, 555 F.3d 

at 739 (citing Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (en 

banc), where our court first recognized an “extortion-plus” 

motive, as an example of a “mixed-motive case[]”). To that 

end, the court in Ayala held that it was “legal error for the IJ 

to hold that extortion could not constitute persecution for the 

purposes of withholding[] where the petitioner’s 

membership in a particular social group ... is at least ‘a 

reason’ for the extortion.” Ayala, 855 F.3d at 1021.

Our court identified two errors by the agency in Ayala: 

one legal and one factual. The agency’s legal error was 

categorically holding that, if a persecutor is motivated by a 

financial goal, i.e., to extort, he cannot also be motivated by 

a petitioner’s protected characteristic. See id. As Ayala 

recognizes, that is incorrect. Logically, a persecutor who 

extorts someone could in theory be motivated not just by the 

prospect of obtaining money but also by a petitioner’s 

protected characteristic. The first error the agency in Ayala 

made was thus holding that a petitioner could never prove a 

nexus when the persecutor extorted the petitioner. See id. 

But it also bears noting that just because an “extortion-plus” 

persecution is possible—someone could be motivated to 

extort a particular person by, say, actual animus towards 

their family—common sense tells us that will often, indeed 

usually, not be the case.

4

 

4 The dissent quibbles over our example of an “extortion-plus” claim 

because we use the word “animus.” But our court often uses “animus” 

as an example of the type of “nexus” required for an asylum or 
22 RODRIGUEZ-ZUNIGA V. GARLAND

Regardless of the likely infrequency of an “extortionplus” claim, it remains true that, when required to decide

whether the petitioner established a nexus, the agency must 

determine whether the petitioner showed that a protected 

characteristic motivated the petitioner’s persecutor. See, 

e.g., Garcia, 988 F.3d at 1143–44 (citation omitted) (noting 

that the petitioner must show that a protected characteristic 

motivated the persecutor). The agency’s second error in 

Ayala, its factual error, was its failure to do just that.

Because the agency held that a petitioner “could not” prove 

a nexus where a persecutor extorts her, the agency 

necessarily never made a factual finding on whether the 

petitioner established her persecutor was motivated by 

anything other than financial ends. Ayala, 855 F.3d at 1021; 

see Regalado-Escobar, 717 F.3d at 729–30 (explaining that 

the BIA’s holding that opposition to a political party’s use of 

violence “could not be a political opinion” was an “err[or] as 

a matter of law” and meant that the agency “did not conduct 

the necessary factual inquiry as to whether [the petitioner] 

had a protected political opinion”).

Given these two errors, our court remanded the case. But 

to be clear, even the panel in Ayala expressed reservations—

reservations the dissent here seems to share—over whether 

the petitioner would actually succeed before the agency. See 

withholding claim. See, e.g., Sinha v. Holder, 564 F.3d 1015, 1022 (9th 

Cir. 2009) (faulting the IJ “in his nexus analysis” because a reasonable 

IJ would have found that the attackers “were motivated at least in part 

by racial animus”); Garcia, 988 F.3d at 1145 (noting that, “over time,” 

certain conduct “can demonstrate a kind of animus .... sufficient to 

demonstrate nexus” (citation omitted)). And ultimately, the dissent’s 

aversion to the word animus does not change our main point—Ayala was 

about two errors, one legal and one factual, and neither error was made 

by the agency in this case.
RODRIGUEZ-ZUNIGA V. GARLAND 23

Ayala, 855 F.3d at 1021 (“Whatever the merits of her claim, 

it was legal error for the IJ to hold that extortion could not

constitute persecution ....” (emphasis added)). The reason 

for the court’s doubts is obvious from reading Ayala: the 

petitioner there presented barely any evidence, perhaps none 

at all, that family membership actually motivated her 

persecutor. See id. at 1016–17. Thus, even if the record in 

Ayala seems unlikely to compel a finding of nexus, the 

agency’s legal error and its failure to find the persecutor’s 

actual motivations required remand in that case.

Ultimately, it is the majority’s approach in this case and 

not the dissent’s that is consistent with Ayala. To borrow 

from the dissent’s discussion of the petitioner in Ayala, 

Rodriguez-Zuniga has not “present[ed] the court with factual 

evidence to support her theoretically valid nexus theory.”

And unlike in Ayala, there was no erroneous legal 

conclusion by the agency in this case that “extortion could 

not constitute persecution” regardless of other motives—the 

underlying error the court faulted the agency for in Ayala. 

Id. at 1021. Instead, the agency here expressly concluded 

there were no other such motives—precisely what our court 

found missing in Ayala. In short, there is no reason to 

remand in this case because the agency here didn’t make the 

categorical legal mistake it made in Ayala, and it has already 

made the factual conclusion that was missing in Ayala. And 

nothing compels the conclusion that the robber in this case 

was motivated by anything other than underlying economic 

reasons, even though those economic motivations also 

resulted in threats to Rodriguez-Zuniga’s son. See Juarez 

Morales v. Wilkinson, 836 F. App’x 603, 605 (9th Cir. 2021) 

(explaining that Ayala “is irrelevant .... [where the 

petitioner] offers no evidence that a protected ground was a 

reason for [her] extortion”).
24 RODRIGUEZ-ZUNIGA V. GARLAND

As for Rodriguez-Zuniga’s fear of future harm, the 

agency again found no nexus. The BIA explained that she

“did not establish a nexus between any feared harm and a 

protected ground.” Instead, the BIA noted that her “claim 

[was] based on a fear of general violence and criminal 

activity in Guatemala.” The record compels no different 

conclusion. As explained above, the record supports the 

agency’s finding that the attempted robbery bore no nexus to 

a protected characteristic. The remainder of RodriguezZuniga’s evidence is from country conditions reports that do 

not compel the conclusion that her fear of future persecution 

was objectively reasonable.

The dissent argues that the agency erred in its analysis of 

Rodriguez-Zuniga’s fear of future harms because the IJ 

applied an improper categorical rule to reject the claim. The 

IJ noted that, having found Rodriguez-Zuniga could not 

“claim past persecution on account of a protected ground, it 

necessarily follow[ed] she also cannot claim a well-founded 

fear of future persecution on account of the same ground.” 

The dissent reads the IJ as applying as a categorical rule that 

every time a petitioner fails to establish a nexus for past 

persecution, she would necessarily fail to establish a nexus 

for future persecution. We agree that such a categorical rule 

would not be supported by our precedent, but we do not read 

the IJ as necessarily applying such a categorical rule. 

Instead, the IJ was noting that in this case, because 

Rodriguez-Zuniga offered evidence going only to her past 

persecution, the fact that she failed to establish a nexus for 

past persecution means that the same evidence would not 

show future persecution.

That’s certainly how the BIA read the IJ, and we need 

not read the decision any differently. The BIA explained 

that Rodriguez-Zuniga “did not establish a nexus between 
RODRIGUEZ-ZUNIGA V. GARLAND 25

the single incident she experienced,” i.e., her past harm, “or 

the harm she fears,” i.e., her feared future harm, “and either 

her family membership, or her status as a Guatemalan 

woman.” If the IJ erred in applying some categorical rule, 

the BIA did not—it instead addressed them as two 

independent inquiries. And to the extent the BIA and IJ part 

ways, we review the BIA’s findings for substantial evidence.

In short, substantial evidence supports the agency’s 

finding that Rodriguez-Zuniga’s two protected grounds were 

not “a reason” for her past persecution or feared future 

persecution, necessarily defeating both her asylum and 

withholding claims. We therefore deny Rodriguez-Zuniga’s 

petition for review of her asylum and withholding claims.

b. Substantial Evidence Supports the Agency’s 

Denial of CAT Relief.

“For CAT relief, the alien must prove that it is ‘more 

likely than not that he or she would be tortured if removed 

to the proposed country.’” Barajas-Romero, 846 F.3d at 

361. And that “torture must be ‘inflicted by or at the 

instigation of or with the consent or acquiescence of a public 

official or other person acting in an official capacity.’” Id. 

The agency found that Rodriguez-Zuniga had not 

“demonstrate[d] the government of Guatemala would 

consent or acquiesce to her torture.”

Although she argues that the agency should have granted 

her CAT relief, Rodriguez-Zuniga does not argue that the 

agency erred in finding that she presented insufficient 

evidence that the Guatemalan government would consent to 

her torture. Indeed, the closest Rodriguez-Zuniga comes to 

addressing acquiescence is in her background section, when 

she explains that she did not tell the police about the 

threatening woman “because the police are connected to the 
26 RODRIGUEZ-ZUNIGA V. GARLAND

gangs.” This reference, found only in her background 

section and not directly connected with any argument, does

not prevent Rodriguez-Zuniga from forfeiting the argument 

that the agency incorrectly found she would not suffer 

torture with the consent or acquiescence of the government. 

See Johnson v. Baker, 23 F.4th 1209, 1216 n.3 (9th Cir. 

2022) (considering “abandoned” assertions made only in the 

background section of a brief).

The dissent does not agree that Rodriguez-Zuniga 

forfeited the argument, but it also does not contend that 

Rodriguez-Zuniga ever mentioned government 

acquiescence, per se. Instead, the dissent notes, quoting her 

briefing, that Rodriguez-Zuniga asserted that she had 

“articulated a specific individualized threat of torture.” The 

dissent extrapolates from this that she must have been 

implicitly arguing that the government would acquiesce in 

her torture if she returned, because acquiescence is a part of 

the definition of torture. But that just substitutes one 

problem for another: even if she meant to implicitly argue 

that the government would acquiesce, she must still 

“specifically and distinctly” raise an argument and support it 

with citations to the record to raise it on appeal. Hayes v. 

Idaho Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017); 

accord Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994); 

see also United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 

2010) (“Arguments made in passing and not supported by 

citations to the record or to case authority are generally 

deemed waived.”). Even assuming there was no need for 

Rodriguez-Zuniga to use the term “acquiescence” or one of 

its cognates to raise the issue, she still failed to “specifically 

and distinctly” raise the argument. See Hayes, 849 F.3d at 

1213.
RODRIGUEZ-ZUNIGA V. GARLAND 27

Because a petitioner can state a claim for CAT relief only 

if she shows that the government would acquiesce in her 

torture, Rodriguez-Zuniga’s failure to contest this point is 

fatal to her claim. See, e.g., Madrigal v. Holder, 716 F.3d 

499, 508 (9th Cir. 2013).5 We therefore deny RodriguezZuniga’s petition for review of her CAT claim.

c. The Dissent’s Remaining Concerns Lack Merit.

The dissent vigorously disagrees with the foregoing 

analysis—in what seems to be practically every regard. But 

before we respond to those disagreements one-by-one and

explain why they lack merit, it is worth taking a step back to 

consider the uncontested facts of this case. This is a case 

about an attempted robbery of a woman and her son who, 

upon leaving a bank, were threatened with violence if they 

didn’t hand over some money. That’s it. Relying on that 

unfortunate event, plus the regrettably unenviable conditions 

prevalent in Guatemala, Rodriguez-Zuniga seeks 

immigration relief that Congress made available for refugees 

who, if they are returned to their home country, face a 

particularized risk of persecution because of their status, or 

else face a greater-than-50% risk of being tortured. An oftrecognized corollary is that such relief is not available to

those who have simply had the misfortune of becoming a

victim of criminal misconduct abroad, motivated by the sorts 

of things (money, generally) that motivate criminals. See, 

e.g., Zetino, 622 F.3d at 1016. Immigration law can be 

complicated, especially because courts have manufactured a 

byzantine and ever-increasing maze of procedural and 

substantive standards that are difficult for everyone—

5 Even if she had argued this point, we would still deny her petition 

because substantial evidence supports the agency’s denial of her CAT 

claim.
28 RODRIGUEZ-ZUNIGA V. GARLAND

asylum-seekers, immigration officials, and courts alike—to 

navigate. And much of the discussion that follows relates to 

such arcane requirements. But something has gone terribly 

wrong when judges conclude that relief for persecution and 

torture is mandated just because someone was the victim of 

a brief and failed robbery attempt in their home country. Is 

that really what anyone thinks Congress meant by providing 

relief for refugees?

i. The dissent’s concerns regarding our nexus 

holding are unwarranted.

The dissent offers several criticisms regarding both our 

explanation of this circuit’s precedent on nexus 

determinations and how we apply that precedent in the above 

analysis. None of these concerns are warranted.

First, the dissent criticizes our statement that the “record 

does not compel finding that the persecutor threatened the 

target because of a protected characteristic such as family 

relation” when “the record indicates that the persecutor’s 

actual motivation for threatening a person is to extort money 

from a third person.” The dissent finds it difficult to identify 

who the “target” is. But the dissent’s demand that we 

precisely define whether the “target” is Rodriguez-Zuniga or 

her son contradicts its later assertion that we must treat 

Rodriguez-Zuniga and her son as one undifferentiated claim. 

In any event, any ambiguity that might persist in the identity 

of the “target” is because we assume that the threat could 

count as a harm to either person, and then decide whether 

there was a nexus between that harm and a protected 

characteristic. The dissent’s assertion that we must 

differentiate between mother and son thus lacks merit.

Second, the dissent argues that the record compels the 

conclusion that family membership was both “a reason” and 
RODRIGUEZ-ZUNIGA V. GARLAND 29

“a central reason” petitioner was targeted for attempted 

robbery. The dissent strangely claims that we have, “in 

effect,” concluded that the family membership of RodriguezZuniga’s son is a but-for cause of the robber threatening the 

son. That is the opposite of what we’re saying—which is

that there is zero evidence the robber targeted the son based 

on the son’s family membership per se. The but-for cause of 

the robber targeting the son is not family membership, it is 

that the robber thought Rodriguez-Zuniga cared about her 

son. 

To illustrate with an example, imagine the robber 

attempted to rob a woman who was accompanied, not by her 

son, but by a pet dog. This dog sports an ornately bejeweled 

collar and leash and its fur indicates frequent grooming, so

the robber can infer the woman cares deeply for her pet. In 

an attempt to rob the woman, the robber might 

understandably threaten the dog. No one would think that 

such a threat was motivated by any animus toward the 

animal. It would instead be obvious that that the but-for 

cause of the robber threatening the dog was the robber’s 

belief that the woman cared about the dog and would give 

the robber money if the dog was threatened. So too here: the 

but-for cause of the robber threatening the son is not his

family membership but because the robber thought, 

probably correctly, that Rodriguez-Zuniga cared for her son.

Under the dissent’s view, every kidnapping where a 

kidnapper demands money from the family of the kidnapped 

individual would necessarily establish a nexus. If that’s 

what Congress had wanted, it would have made family 

membership an enumerated category—instead, family 

membership is sometimes, but not always, a particularized 

social group. See Rios v. Lynch, 807 F.3d 1123, 1128 (9th 

Cir. 2015) (explaining that “family membership may
30 RODRIGUEZ-ZUNIGA V. GARLAND

constitute membership in a ‘particular social group’”

(emphasis added)).6

Third, the dissent argues that the nexus inquiry is not 

about “whether the persecutors’ acts were motivated by an 

unprotected characteristic.” The dissent tries to ground this 

innovation in the Supreme Court’s decision in EliasZacharias, 502 U.S. at 478. In that case, the purported 

persecution was a guerilla military organization attempting 

to conscript the petitioner into its forces. The Court 

explained that even if the persecutors were motivated 

politically to conscript people because they wanted to fill 

their ranks and “carry on their war against the government,” 

that was “irrelevant.” Id. at 481–82. That is, a nexus could 

not be established by a motive “irrelevant” to whether the 

persecutor harmed a victim because of a victim’s protected 

characteristic. See id. Instead of relying on Elias-Zacharias, 

the dissent’s argument that the persecutor’s financial 

motivation is irrelevant ignores the plain import of the 

decision. The obvious takeaway is that if, like here, a 

persecutor is motivated exclusively by a consideration 

“irrelevant” to a victim’s protected ground, that motivation 

is emphatically “relevant”—indeed, that motivation is 

6 The dissent faults us for noting that family membership is not 

necessarily a particularized social group. But it’s unclear where the 

dissent derives its belief that a petitioner need not show a family is 

“defined with particularity” and “socially distinct within the society in 

question.” Rios, 807 F.3d at 1127 (describing the BIA’s “rubric” for 

establishing a particular social group). Our caselaw establishes that 

family membership “may constitute membership in a ‘particular social 

group,’” not that families are automatically a particular social group. Id.

at 1128 (emphasis added) (quotation omitted); see Gonsalez Padilla v. 

Barr, 830 F. App’x 182, 184 n.2 (9th Cir. 2020) (noting that precedent 

“recognize[s] that ‘family’ could be the basis of a particular social group 

and it [is] error to not even consider it” (citing Rios, 807 F.3d at 1128)).
RODRIGUEZ-ZUNIGA V. GARLAND 31

decisive—for nexus. A persecutor that is exclusively 

motivated by something unrelated to a victim’s protected 

characteristic is, tautologically, not motivated by the 

victim’s protected characteristic. Thus here, where

substantial evidence supports the agency’s finding that the 

actual motivation of the persecutors was “exclusively” 

financial, not any protected characteristic, that exclusive 

financial motivation cannot establish a nexus.

Finally, in criticizing the panel’s nexus conclusion, the 

dissent appears to argue that because the IJ found RodriguezZuniga credible it was obligated to also credit as true her 

speculation about her persecutor’s motives for targeting her. 

This argument flows from our court’s now defunct “deemedtrue-or-credible” rule, where we had required that an IJ find 

true any testimony found to be credible. See Garland v. 

Ming Dai, 141 S. Ct. 1669, 1676–77 (2021). The Supreme 

Court squarely rejected this rule in Ming Dai. Id. at 1677 

(“The Ninth Circuit’s rule has no proper place in a reviewing 

court’s analysis.”). The IJ was thus free to find RodriguezZuniga credible without finding persuasive her subjective 

beliefs about why the robber attempted to extort her.

The dissent similarly contends that Rodriguez-Zuniga 

did not speculate about her persecutor’s motives because she 

testified the robber stated that the robber targeted her 

because “her family was here and that [she] had a lot of 

money that [she] could give them.” But that contention 

simply repackages the dissent’s error discussed above: 

evidence that a persecutor targeted someone is not 

necessarily evidence of the underlying motivation for doing 

so. To the extent this is evidence of the robber’s motives, it 

is direct evidence that the persecutor targeted RodriguezZuniga, not because of family membership, but because her 
32 RODRIGUEZ-ZUNIGA V. GARLAND

family was in the United States and so they assumed she

“had a lot of money that [she] could give them.”

ii. The dissent fails to show a flaw in the agency’s 

reasoning regarding Rodriguez-Zuniga’s 

political opinion—or lack thereof.

The dissent argues that the agency erred in rejecting 

Rodriguez-Zuniga’s claim that she was persecuted because 

of her political opinion because the agency failed to offer

sufficient reasons for its decision and because the BIA 

engaged in impermissible factfinding. Both arguments fail.

First, the dissent argues that the BIA abused its discretion 

by offering only a “single-sentence resolution of the issue” 

that fails to “explain what factors it has considered or relied 

upon.” Kalubi v. Ashcroft, 364 F.3d 1134, 1140 (9th Cir. 

2004). It is revealing that the dissent never references the 

content of Rodriguez-Zuniga’s asserted political opinion. 

Her claimed political opinion is her “refusal to submit to 

violence by criminal groups/gangs.” As far as the record 

reveals, she never stated this opinion to the gang member or 

to anyone before the robbery, and the only actions that she 

argues displayed this opinion was her noncompliance with a 

gang member’s extortion attempt. 

Although an agency must give reasons sufficient for us 

to review, the reasons that the agency must offer are 

certainly coextensive with the complexity of the analysis

required by the issue. See Marcu v. INS, 147 F.3d 1078, 

1083 (9th Cir. 1998) (denying a petition because the BIA 

“demonstrate[d] that it heard the claim, considered the 

evidence, and decided against” the petitioner). And here, 

given the complete lack of evidence supporting RodriguezZuniga’s political opinion claim, it is hardly surprising the 

agency decided to dispose of it in a sentence. Nor do we 
RODRIGUEZ-ZUNIGA V. GARLAND 33

have any difficulty ascertaining why the agency denied the 

claim.

The dissent complains that we have explained the BIA’s 

resolution of the political opinion claim in too much detail. 

According to the dissent, we have “expand[ed] on the 

BIA’s ... rationale for nearly five pages” and are using ex 

post rationales to justify the BIA. But notice what 

explanation the BIA gave and what explanation we give 

now: the BIA rejected the claim because “there is no 

evidence [Rodriguez-Zuniga] ever expressed a political 

opinion.” We deny the petition for review of that claim 

because there was no evidence she ever expressed a political 

opinion. We have not conjured up an ex post facto 

rationalization of the BIA’s decision; we have reviewed for 

substantial evidence the reason expressly provided by the 

BIA. 

Second, the dissent contends that the BIA engaged in 

improper factfinding in rejecting Rodriguez-Zuniga’s

political claim because the IJ did not express any factual 

findings regarding the claim. But observing the absence of

evidence is not a factual finding. If it was, then this court of 

appeals would frequently be a factfinder—which, of course, 

it cannot be.7 The BIA never found facts, it simply looked 

at the record and observed the petitioner had provided none.

7 See, e.g., Furnace v. Sullivan, 705 F.3d 1021, 1031 (9th Cir. 2013) 

(affirming a grant of summary judgment against an equal protection 

claim “[b]ecause [the plaintiff] adduce[d] no evidence that he was treated 

differently than any other [comparator]”); Freyd v. Univ. of Oregon, 990 

F.3d 1211, 1229 (9th Cir. 2021) (affirming a grant of summary judgment 

“because [the plaintiff] has presented no evidence of intentional 

discrimination”); Fisher v. City of San Jose, 558 F.3d 1069, 1085 (9th 
34 RODRIGUEZ-ZUNIGA V. GARLAND

IV. CONCLUSION

The majority is not unsympathetic to Rodriguez-Zuniga 

and her son’s desire to stay in this country. But all that she 

has provided in support of her petition are country condition 

reports and one failed, non-violent robbery that the agency 

reasonably concluded was wholly economically motivated 

(as robberies usually are). Our legal system understandably 

places primary authority for immigration policy in Congress 

and the executive branch. If we stretched our law to grant 

the petition here, it would be clear that we have substituted

ourselves for the immigration officials. Because she failed 

to show a nexus between her past or feared future harms and 

any protected grounds, we deny Rodriguez-Zuniga’s petition 

for review of her asylum and withholding of removal claims. 

And because she forfeited any challenge to the agency’s 

finding that she offered insufficient evidence that the 

Guatemalan government would acquiesce or consent to her 

torture, we deny her petition for review of her CAT claim.

PETITION DENIED.

Cir. 2009) (reversing the district court’s grant of the plaintiff’s renewed 

motion for judgment as a matter of law on a 42 U.S.C. § 1983 claim 

because “there [was] no evidence that the [defendant] had a 

policy ... that was the ‘moving force’ behind any alleged constitutional 

violation”) (en banc); Gilbrook v. City of Westminster, 177 F.3d 839, 868 

(9th Cir. 1999), as amended on denial of reh’g (July 15, 1999) (reversing 

a Rule 50(a) grant of judgment as a matter of law by concluding, among 

other things, that there was “no evidence in the record suggesting” that 

a factor weighed in favor of affirmance (emphasis added)); see also 

Burley v. Gagacki, 729 F.3d 610, 620 (6th Cir. 2013) (affirming a grant 

of summary judgment against a “failure-to-intervene theory.... 

“[b]ecause no evidence place[d] the state and local defendants inside 

plaintiffs’ home at the appropriate time to witness or respond to any 

unconstitutional conduct that may have occurred”).
RODRIGUEZ-ZUNIGA V. GARLAND 35

GILMAN, Circuit Judge, dissenting:

INTRODUCTION

This court has repeatedly emphasized that “the family 

remains the quintessential particular social group.” See 

Parada v. Sessions, 902 F.3d 901, 910 (9th Cir. 2018) 

(quoting Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 

2015)). “That is, an asylum-seeker who has suffered 

persecution ‘on account of th[eir] familial relationship’ has 

suffered persecution by reason of membership in a particular 

social group.’” Id. (alteration in original) (quoting Rios, 807 

F.3d at 1128).

The majority apparently disagrees with the above legal 

principle by stating that “family membership is sometimes, 

but not always, a particularized social group.” See Majority 

Op. at 29. It therefore discounts persecution that occurs by 

reason of the petitioner’s family membership if the 

persecutor’s motives also contain a financial dimension. In 

the majority’s view, such a petitioner would have to provide 

an alternative, “actual” reason for the alleged harm. See id.

at 18, 29. This places an unjustified burden on those seeking 

relief based on their family membership by harkening back 

to the much-maligned (and now vacated) regime of Matter 

of L-E-A- II, 27 I. & N. Dec. 581 (A.G. 2019), which held 

that, “in the ordinary case, a nuclear family will not, without 

more,” qualify as a particular social group. See id. at 589, 

vacated by Matter of L-E-A- III, 28 I. & N. Dec. 304 

(A.G. 2021).

Congress passed a statute in 1952—the Immigration and 

Nationality Act—that (1) offers a discretionary pathway to 

relief for those who reasonably fear persecution on account 

of their membership in a particular social group, see 8 U.S.C. 
36 RODRIGUEZ-ZUNIGA V. GARLAND

§ 1158(b), and (2) outright prohibits the removal of 

noncitizens to countries where they face a clear probability 

of persecution because of the same, see 8 U.S.C. 

§ 1231(b)(3). I believe that the majority’s holding is 

inconsistent with this statutory scheme and Ninth Circuit 

precedent.

A. An inherent contradiction exists in the majority’s 

treatment of the nexus element with respect to 

Rodriguez-Zuniga’s son Nelson because family 

membership cannot be both the primary reason for 

Nelson’s persecution and no reason at all

The majority holds 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 as family 

relation.” Majority Op. at 18. This proposition is 

ambiguous—intentionally so, the majority acknowledges, 

see id. at 26-27—because it does not make clear whether the 

“target” is the direct target of the extortion (RodriguezZuniga and others similarly situated) or the indirect target of 

the threat (Nelson and others similarly situated). In other 

words, the majority’s holding forecloses not only 

Rodriguez-Zuniga’s ability to satisfy the nexus requirement, 

but Nelson’s as well.

On the one hand, the majority states that “the robber 

targeted [Nelson] for the same reason she would target, say, 

[Rodriguez-Zuniga’s] life-long friend if the opportunity 

arose—merely because she thought Rodriguez-Zuniga cared 

about that person and thus the robber could use threats 

against that person as a means of obtaining money from 

Rodriguez-Zuniga.” Id. at 20 (emphasis added). This in 
RODRIGUEZ-ZUNIGA V. GARLAND 37

effect makes Nelson’s family membership not only a but-for 

cause, but also the primary cause of his being placed in 

harm’s way. On the other hand, the majority inexplicably 

holds that Nelson and those in like circumstances cannot 

satisfy the nexus requirement. This is inherently 

contradictory and unsupported by precedent.

The majority claims that it does not mean to say that 

Nelson’s relationship to his mother is a but-for cause of his 

threatened harm—this is apparently “the opposite of what [it 

is saying], id. at 29—and yet it then repeats the contradiction 

by positing that “there is zero evidence the robber targeted 

the son based on the son’s family membership per se. The 

but-for-cause of the robber targeting the son is not family 

membership, it is that the robber thought Rodriguez-Zuniga 

cared about her son.” Id. at 29 (emphasis added). This 

strikes me as double-talk.

The majority tries once more, this time likening Nelson 

to Rodriguez-Zuniga’s hypothetical pet dog. If the robber 

had threatened to harm the dog, the majority suggests, “the 

but-for cause of the robber threatening the dog was the 

robber’s belief that the woman cared about the dog.” Id. at 

29. Here again, the majority’s error is clear: the target of 

the threatened harm is a target only because of his 

relationship—in Nelson’s case, his family relationship—to 

another person.

To satisfy the nexus requirement, an asylum applicant 

must show that a protected characteristic is “one central 

reason” for the feared harm. Garcia v. Wilkinson, 988 F.3d 

1136, 1144 (9th Cir. 2021). That “central reason” may be 

one among many, and “an asylum applicant need not prove 

which reason was dominant” so long as the protected 

characteristic is likely to be “a cause of the persecutors’ 
38 RODRIGUEZ-ZUNIGA V. GARLAND

acts.” Id. at 1144 (quoting Parussimova v. Mukasey, 555 

F.3d 734, 741 (9th Cir. 2009)). For an applicant seeking

withholding of removal, an even “weaker motive” will 

suffice: a protected characteristic need only be “a reason” 

for the feared harm. Barajas-Romero v. Lynch, 846 F.3d 

351, 359 (9th Cir. 2017).

Because Nelson’s would-be persecutors were interested 

in him only because of his relationship to his mother, he 

satisfies both the “a reason” nexus standard for withholding 

of removal and the “one central reason” nexus standard for 

asylum. Yet the majority holds that Nelson and others in his 

position cannot establish that family membership is even “a 

reason” for any potential persecution where financial gain 

also motivates the persecutor.

The IJ made the same error in holding that RodriguezZuniga “presented no evidence that her son was threatened 

on account of his kinship to her,” and that the threat to 

Nelson was instead “motivated exclusively by monetary 

interest.” But the record compels the opposite conclusion: 

that Nelson was targeted, as the majority puts it, “merely 

because [the robber] thought Rodriguez-Zuniga cared” 

about Nelson. Majority Op. at 20. We should therefore 

reverse the agency’s decision for lack of substantial 

supporting evidence.

I further note that the agency’s disposition of Nelson’s 

claim has a direct effect on the agency’s disposition of 

Rodriguez-Zuniga’s claim. In Tchoukhrova v. Gonzales, 

404 F.3d 1181 (9th Cir. 2005), vacated on other grounds, 

549 U.S. 801 (2006), this court made clear that the 

threatened harm against Nelson can support RodriguezZuniga’s own asylum application:
RODRIGUEZ-ZUNIGA V. GARLAND 39

[W]hen it is only the child who is the direct 

victim, a narrow interpretation of our asylum 

laws could have devastating practical effects: 

Facing imminent removal, parents could be 

forced to make a choice between abandoning 

their child in the United States or taking him 

to a country where it is likely that he will be 

persecuted.

. . . .

Our precedent supports the pragmatic 

approach applied here by the agency. When 

confronting cases involving persecution of 

multiple family members, we have not 

formalistically divided the claims between 

“principal” and “derivative” applicants but 

instead, without discussion, have simply 

viewed the family as a whole . . . .

Id. at 1191-92.

Thus, should Nelson succeed on his asylum claim, 

Rodriguez-Zuniga herself may also be afforded relief. As I 

explain in the next section, however, this court’s decision in 

Ayala v. Sessions, 855 F.3d 1012 (9th Cir. 2017), supports 

the conclusion that Rodriguez-Zuniga independently 

satisfies the nexus requirement for withholding of removal.
40 RODRIGUEZ-ZUNIGA V. GARLAND

B. The majority’s nexus holding with respect to 

Rodriguez-Zuniga conflicts with this court’s decision 

in Ayala, which held that an extortionist’s financial 

motivation does not preclude a nexus finding based 

on family membership

In Ayala, the petitioner claimed that “she and her 

husband were the subjects of extortion because of his 

family’s ownership of hotels.” 855 F.3d at 1020. The court 

held that the IJ erred in concluding that “the only motivation 

indicated throughout is extortion” despite Ayala’s testimony 

that she was afraid of being targeted on the basis of her 

marriage to a hotel owner. Id. The persecutors’ financial 

motivation was insufficient to defeat a nexus finding because 

Ayala testified that she “faced extortion[] and threats of 

violence[] not only for economic reasons, but also because 

of her family ties.” Id. at 1021 (citing Rios v. Lynch, 807 

F.3d 1123, 1128 (9th Cir. 2015)). 

The majority attempts to distinguish Ayala, alleging that 

Ayala brought “an ‘extortion-plus’ claim, that is, a claim that 

the petitioner was independently targeted, not just for 

money, but also because of a protected ground.” Majority 

Op. at 20-21 (emphasis in original). But the majority asserts 

that “common sense tell us that will often, indeed usually, 

not be the case.” although it “is possible—someone could 

be motivated to extort a particular person by, say, animus 

towards their family.” Id. at 21.

But nowhere in Ayala does the court suggest that a 

showing of “animus” on the part of the persecutor is 

necessary and, indeed, Ayala herself made no such showing. 

See Ayala, 855 F.3d at 1016, 1020-21. The IJ’s error lay in 

discounting Ayala’s testimony that she had been extorted in 

the past on the basis of her family membership, not in 
RODRIGUEZ-ZUNIGA V. GARLAND 41

discounting testimony that she had been extorted on the 

basis of hatred or animus toward her family. See id. Ayala

is thus directly on point because we have before us a similar 

case of “extortion-plus.”

Having failed to distinguish Ayala, the majority attempts 

to diminish its weight by claiming that the IJ in that case 

committed legal error by “categorically holding that, if a 

persecutor is motivated by a financial goal, i.e., to extort, he 

cannot also be motivated by a petitioner’s protected 

characteristic.” Majority Op. at 21. But contrary to the 

majority’s characterization, the IJ in Ayala made no such 

categorical pronouncement. The Ayala court was, in fact, 

quite clear that the IJ’s mistake was akin to that made in this 

case:

During the hearing, Ayala claimed that a 

“group of people” was targeting her because 

“[m]y husband’s family owned hotels and I 

believe they wanted to extort us and that is 

why we were being followed.” At the end of 

the hearing, the IJ stated that he was 

affirming the asylum officer’s decision 

“because the only motivation indicated 

throughout is extortion, criminal acts.” He 

did not offer any other explanation.

Ayala, 855 F.3d at 1012 (emphasis added).

In a last-ditch effort to escape Ayala’s clear implications, 

the majority argues that “even the panel in Ayala expressed 

some reservations . . . over whether the petitioner would 

actually succeed before the agency.” Majority Op. at 22. 

But such reservations are hardly surprising considering 

Ayala’s failure to present the court with factual evidence to 
42 RODRIGUEZ-ZUNIGA V. GARLAND

support her theoretically valid nexus theory. The Ayala

court summarized the record as follows:

[Ayala] first entered the United States in 

1991 . . . . [S]he remained in the United States 

until December 1998, when she left with her 

husband for Guatemala.

Ayala stayed in Guatemala for only one 

month. Soon after returning to Guatemala, 

she and her husband were followed by a car 

while riding their motorcycle. Although 

Ayala got off the motorcycle at her husband’s 

urging, he continued riding, and the car 

followed him. Later that day, he was found 

badly beaten. Her husband then told her to 

return to the United States with their child. 

During that same month in Guatemala, Ayala 

also received threatening phone calls at her 

house.

Ayala returned to the United States in 

January 1999 . . . . While she has been in the 

United States, her family in Guatemala has 

continued to face threats. In 2007, her 

husband was murdered, and at some point in 

2012, unknown assailants shot at her 

mother’s house.

Ayala, 855 F.3d at 1016. Based on these facts, “Ayala 

claimed that a ‘group of people’ was targeting her because 

‘[m]y husband’s family owned hotels and I believe they 

wanted to extort us and that is why we were being 

followed.’” Id. (alteration in original). On the record before 

it, the agency might well have found that Ayala had not 
RODRIGUEZ-ZUNIGA V. GARLAND 43

provided “some evidence . . . , direct or circumstantial” that 

her persecutors were in fact motivated by her relationship to 

her husband’s family. See Elias-Zacharias, 502 U.S. at 483 

(emphasis in original).

But in the present case, the record does not require that 

we simply infer a nexus between persecution and a protected 

ground. The agency here “accord[ed] . . . full evidentiary 

weight” to Rodriguez-Zuniga’s testimony that the robber 

warned her “that if she didn’t give [the robber] . . . money, 

[the robber] was going to hurt [her] son,” and that she was 

being targeted because her “family was here and that [she] 

had a lot of money that [she] could give them.” And when 

Rodriguez-Zuniga refused, the robber said that RodriguezZuniga’s “son was going to pay for it.”

Rodriguez-Zuniga did not guess at the woman’s motives; 

she instead credibly testified that her would-be persecutor 

told her why she was being targeted. And “there was no 

testimony or other evidence inconsistent with [RodriguezZuniga’s] recounting of her experiences, and there was no 

reason to doubt the truth, or ‘persuasiveness,’ of her 

narrative” concerning the words that were uttered to her by 

her would-be persecutor. See Plancarte Sauceda v. 

Garland, 23 F.4th 824, 827 (9th Cir. 2022).

Unlike in Ayala, then, there is no ambiguity as to why 

Rodriguez-Zuniga was targeted. Rodriguez-Zuniga’s 

potential persecutors knew her identity and the identities of 

her family members, and their representative targeted 

Rodriguez-Zuniga using her relationship to her son and 

because of her relationship to her husband. RodriguezZuniga has therefore satisfied her burden of establishing that 

her family membership was at least “a reason” for her 

persecutors’ actions. See Barajas-Romero v. Lynch, 846 
44 RODRIGUEZ-ZUNIGA V. GARLAND

F.3d 351, 357-58 (9th Cir. 2017) (holding that, to meet the 

nexus requirement for a withholding-of-removal claim, an 

applicant need show only that a protected ground is “a 

reason” for her feared harm).

C. The nexus standard for family-based particular 

social groups is not dependent on the persecutor’s 

singular “actual” motivation

In determining whether a nexus exists between 

persecution and a protected ground, the majority erroneously 

limits consideration to the persecutor’s singular “actual” or 

“intrinsic” motivation. See Majority Op. at 18, 18 n.2. But 

an asylum seeker need prove only that any prospective 

persecution “would be ‘on account of’ one of the five 

[protected grounds],” or that those protected grounds would 

be “one central reason” for the harm. Barajas-Romero, 846 

F.3d at 357-58. In contrast, a person seeking withholding of 

removal must prove that her “life or freedom will be 

threatened in [her] home country . . . ‘because of’ one of the 

five [protected grounds],” or that those protected grounds 

would be “a reason” for the harm. Id.

Neither asylum claims nor withholding-of-removal 

claims require that a protected ground be “the persecutor’s 

actual motivation,” see Majority Op. at 18, for inflicting the 

harm. Even under asylum’s more stringent “at least one 

central reason” standard, “persecution may be caused by 

more than one central reason, and an asylum applicant need 

not prove which reason was dominant.” Parussimova, 555 

F.3d at 741. By eliminating a petitioner’s ability to establish 

a nexus to a protected ground where “the persecutor’s actual 

motivation for threatening a person is to extort money from 

a third person,” see Majority Op. at 18, the majority departs 

from this court’s precedents that affirm the principle that 
RODRIGUEZ-ZUNIGA V. GARLAND 45

“[p]eople, including persecutors, often have mixed 

motives.” Garcia v. Wilkinson, 988 F.3d 1136, 1143 (9th 

Cir. 2021) (quoting Barajas-Romero, 846 F.3d at 357).

The majority states that it does not deny the “basic 

principle” that “a petitioner may be entitled to relief when a 

persecutor holds multiple or mixed motivations.” See

Majority Op. at 18 n.2. But the effect of failing to consider 

alternative motives for persecutory acts when the persecutor 

also holds a financial motivation (which, in the majority’s 

view, is “the persecutor’s actual motivation,” see id. at 18) 

is to deny that basic principle.

The crux of the majority’s rationale seems to be that 

family membership in a case such as this is not “the actual 

motivation” for persecution because it is a means to an end. 

See id. at 31-32 But “[a] person may have ‘a reason’ to do 

something that is not his ‘central’ reason or even ‘one central 

reason.’” Barajas-Romero, 846 F.3d at 359. And so, to the

extent that the majority’s holding is directed at RodriguezZuniga and others similarly situated (rather than at Nelson), 

it is inconsistent with the more lenient nexus requirement for 

withholding-of-removal claims.

Moreover, a motive is not only “a reason” but also “a 

‘central reason’ if the persecutor would not have harmed the 

applicant if such motive did not exist.” Parussimova, 555 

F.3d at 741. To satisfy asylum’s nexus standard, “an 

applicant must prove that such ground was a cause of the 

persecutors’ acts.” Id. And a but-for cause is certainly a 

cause. See id. Thus, for someone like Nelson, who becomes 

the indirect target of extortionist threats presented to his 

mother, both nexus standards are satisfied.

The majority’s narrow focus on a persecutor’s financial 

motivation is also difficult to reconcile with binding 
46 RODRIGUEZ-ZUNIGA V. GARLAND

Supreme Court precedent. In INS v. Elias-Zacharias, 502 

U.S. 478, 481-82 (1992), the Supreme Court held that 

whether a persecutor’s motives are themselves political is 

“irrelevant” to establishing a nexus to a protected political 

opinion. Instead, reviewing courts must ask whether the 

persecutor is motivated by what they perceive to be the 

victim’s protected political opinion. Id. at 482.

That same principle applies here. Our inquiry should not 

be based on whether the persecutors’ acts were motivated by 

an unprotected characteristic, such as a desire for financial 

gain, but rather on whether they were related to one of 

Rodriguez-Zuniga’s or Nelson’s protected grounds—such as 

family membership. See id. (“[T]he ordinary meaning of the 

phrase ‘persecution on account of [a protected ground]’ in [8 

U.S.C. § 1101](a)(42) is persecution on account of the 

victim’s [protected ground], not the persecutor’s.”) 

(emphasis in original). That the potential persecutors in the 

present case also had an economic motivation is thus an 

insufficient basis for us to dismiss their interest in 

Rodriguez-Zuniga’s and Nelson’s family membership, just 

as the nonpolitical motivations of the persecutors in 

Elias-Zacharias were insufficient to allow the court to 

dismiss their interest in the petitioner’s protected 

characteristics. See id.

D. The majority fails to hold the agency accountable for 

several procedural missteps

1. The agency failed to independently analyze the 

likelihood that Rodriguez-Zuniga and Nelson 

would be subject to future harm

Both the IJ and the BIA erred in relying on a negative 

past-persecution finding to reflexively dispose of 

Rodriguez-Zuniga’s and Nelson’s future-persecution claim. 
RODRIGUEZ-ZUNIGA V. GARLAND 47

The majority outlines the IJ’s well-founded-fear finding as 

follows: “The IJ noted that, having found Rodriguez-Zuniga 

could not ‘claim past persecution on account of a protected 

ground, it necessarily follow[ed] she also cannot claim a 

well-founded fear of future persecution on account of the 

same protected ground.’” See Majority Op. at 24 (alteration 

in original) (quoting the IJ).

No additional analysis was provided by the BIA. 

Instead, the BIA stated that Rodriguez-Zuniga “did not 

establish a nexus between the single incident she 

experienced or the harm she fears and either her family 

membership, or her status as a Guatemalan woman.” Id. at 

25. And it did so without considering Rodriguez-Zuniga’s 

extensive evidence in support of her well-founded fear of 

future persecution. The BIA’s single sentence is not an 

analysis; it is a conclusion, and an unsupported one at that.

Settled law clearly provides that the failure to establish a 

nexus for past harm does not preclude a petitioner from 

establishing a nexus with respect to likely future harm, even 

if the claim rests upon the same proffered evidence and 

protected grounds. See, e.g., Regalado-Escobar v. Holder, 

717 F.3d 724, 729-30 (9th Cir. 2013) (remanding for the BIA

to consider whether a petitioner had established a wellfounded fear of future persecution on account of a protected 

ground, despite affirming the BIA’s conclusion that the 

petitioner had failed to establish a nexus to that same 

protected ground for past persecution); Spesovska v. Holder, 

311 F. App’x 946, 948-49 (9th Cir. 2009) (granting the 

petition for review and remanding “[b]ecause the BIA did 

not address the question of [the petitioner]’s individualized 

risk of future persecution based on her religion,” 

notwithstanding its conclusion that substantial evidence 
48 RODRIGUEZ-ZUNIGA V. GARLAND

supported the BIA’s determination that her past harm had 

not occurred “on account of” religion).

A contrary interpretation is untenable because the pastpersecution and well-founded-fear inquiries are distinct 

from one another and encompass different factors. To 

establish past persecution, a petitioner must provide 

evidence that “(1) he has endured serious harm such that his 

‘treatment rises to the level of persecution’; (2) ‘the 

persecution was committed by the government, or by forces 

that the government was unable or unwilling to control’; and 

(3) ‘the persecution was on account of one or more protected 

grounds.’” Singh v. Garland, 48 F.4th 1059, 1067 (9th Cir. 

2022) (quoting Kaur v. Wilkinson, 986 F.3d 1216, 1221-22 

(9th Cir. 2021)).

By contrast, to demonstrate a well-founded fear of future 

persecution, a petitioner need not make such a showing. The 

petitioner may instead either (1) “establish[] ‘a pattern or 

practice of persecution of people similarly situated,’” or (2) 

“prove that she is a member of a ‘disfavored group’ coupled 

with a showing that she, in particular, is likely to be targeted 

as a member of that group.” Sael v. Ashcroft, 386 F.3d 922, 

925 (9th Cir. 2004) (quoting Knezevic v. Ashcroft, 367 F.3d 

1206, 1213 (9th Cir. 2004), and Mgoian v. INS, 184 F.3d 

1029, 1035 n.4 (9th Cir. 1999)); accord, e.g., Halim v. 

Holder, 590 F.3d 971, 977 (9th Cir. 2009). Under the latter 

approach, “the ‘more serious and widespread the threat’ to 

the group in general, ‘the less individualized the threat of 

persecution needs to be.’” Sael, 386 F.3d at 925 (quoting 

Mgoian, 184 F.3d at 1035 n.4).

The distinction between the past-persecution and the 

well-founded-fear analyses bears directly on the nexus issue. 

Suppose an IJ found that an LGBTQ petitioner who faced 
RODRIGUEZ-ZUNIGA V. GARLAND 49

removal to a country that criminalizes same-sex relations 

had faced a single incident of past harm that was not “on 

account of” her sexual identity or orientation, but rather was 

an act of random violence. The law does not allow the IJ to 

entirely bypass the pattern-or-practice and disfavored-group 

inquiries by categorically declaring, as she did here, that 

“because the Court has previously found [that] [the LGBTQ 

petitioner] cannot claim past persecution on account of a 

protected ground, it necessarily follows [that] she also 

cannot claim a well-founded fear of persecution on account 

of the same protected ground.”

Elsewhere in the decision, the IJ acknowledged the 

evidence that Rodriguez-Zuniga had presented in support of 

her claim of a well-founded fear of future persecution when 

the IJ stated that “the record shows that there is a high level 

of violence against Guatemalan women,” including “sexual 

assault, torture, and mutilation,” and recognizing the “very 

high” levels of “impunity for the perpetrators of such 

crimes” due to “the government[’s] fail[ure] to enforce its 

laws against rape and domestic abuse.” Yet the IJ 

inexplicably failed to consider Rodriguez-Zuniga’s claim 

that, “as an alternative to past persecution, [she] satisfies the 

requirement of well-founded fear of future persecution” on 

account of her membership in the cognizable social group of 

“Guatemalan women.”

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

by a petitioner.” Antonio v. Garland, 58 F.4th 1067, 1075 

(9th Cir. 2023) (quoting Sagaydak v. Gonzales, 405 F.3d 

1035, 1040 (9th Cir. 2005)). And the “[f]ailure to address a 

social group claim, or failure to analyze such a claim under 

the correct legal standard, ‘constitutes error and requires 

remand.’” See id. (quoting Rios v. Lynch, 807 F.3d 1123, 

1126 (9th Cir. 2015)).
50 RODRIGUEZ-ZUNIGA V. GARLAND

Remand is required even if, as the majority suggests, see

Majority Op. at 22-23, the IJ did not intend to announce a 

categorical rule, but instead inartfully summarized her 

implicit findings on nexus with respect to future persecution. 

“[T]he basis for an agency determination ‘must be set forth 

with such clarity as to be understandable. It will not do for 

a court to be compelled to guess at the theory underlying the 

agency’s action.’” Recinos de Leon v. Gonzales, 400 F.3d 

1185, 1189 (9th Cir. 2005) (quoting SEC v. Chenery Corp., 

332 U.S. 194, 196-97 (1947)).

2. The agency failed to properly consider RodriguezZuniga’s political-opinion claim

In addition to claiming before the agency that she feared 

persecution by reason of her family membership and her 

status as a Guatemalan woman, Rodriguez-Zuniga 

contended that she was at risk due to her political opinion. 

Yet the IJ did not address this claim in any way, much less 

in a meaningful one. And again, “IJs and the BIA are not 

free to ignore arguments raised by a petitioner.” Antonio v. 

Garland, 58 F.4th 1067, 1075 (9th Cir. 2023) (quoting 

Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005)).

The majority states that the BIA addressed RodriguezZuniga’s political-opinion argument by “concluding that she 

presented no evidence [that] ‘she ever expressed a political 

opinion.’” Majority Op. at 13 (quoting the BIA). But the 

BIA abused its discretion in so doing because its singlesentence resolution of the issue—in a footnote, no less—did 

not satisfy its duty to “explain what factors it has considered 

or relied upon.” Kalubi v. Ashcroft, 364 F.3d 1134, 1140 

(9th Cir. 2004) (citing Rodriguez-Matamoros v. INS, 86 F.3d 

158, 160 (9th Cir. 1996)); see also, e.g., Movsisian v. 

Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (“We have 
RODRIGUEZ-ZUNIGA V. GARLAND 51

long held that the BIA abuses its discretion when it fails to 

provide a reasoned explanation for its actions.”); Mattis v. 

INS, 774 F.2d 965, 967 (9th Cir. 1985) (“[W]e require that 

[the BIA’s] stated reasons evidence its consideration of all 

relevant factors. Cursory, summary or conclusory 

statements are inadequate.” (citations omitted)).

The majority expands on the BIA’s single-sentence, 

footnoted rationale for nearly five pages. See Majority Op. 

at 13-15, 32-33. But “reviewing courts remain bound by 

traditional administrative law principles, including the rule 

that judges generally must assess the lawfulness of an 

agency’s action in light of the explanations the agency 

offered for it rather than any ex post rationales a court can 

devise.” Garland v. Ming Dai, 141 S. Ct. 1669, 1679 (2021). 

The BIA’s cursory ruling on Rodriguez-Zuniga’s 

political-opinion claim was also erroneous because the BIA 

arrived at its evidentiary conclusion without the benefit of a 

factual finding by the IJ. The BIA’s regulations are 

unequivocal: the BIA cannot engage in its own factfinding. 

8 C.F.R. § 1003.1(d)(3)(iv)(A) (2022) (“The Board will not 

engage in factfinding in the course of deciding cases . . . .”). 

This court, in Rodriguez v. Holder, 683 F.3d 1164 (9th Cir. 

2012), has said the same:

Where the IJ has not made a finding of fact 

on a disputed matter, and such a finding is 

necessary to resolution of the case, the BIA 

must remand to the IJ to make the required 

finding; it may not conduct its own factfinding. Where the BIA fails to follow its 

own regulations and makes factual findings, 

“it commits an error of law, which we have 

jurisdiction to correct.”
52 RODRIGUEZ-ZUNIGA V. GARLAND

Id. at 1170 (citations omitted) (quoting Padmore v. Holder, 

609 F.3d 62, 67 (2d Cir. 2010)); see also, e.g., Brezilien v. 

Holder, 569 F.3d 403, 413 (9th Cir. 2009) (“[W]here the IJ 

has not made a necessary factual finding, the regulation 

requires the BIA to remand the factual inquiry to the IJ rather 

than making its own factual finding on the matter.”).

Here, the IJ entirely neglected to consider, even 

cursorily, that Rodriguez-Zuniga had asserted a political 

opinion as a protected ground. The BIA thus had no lawful 

basis to reach a conclusion on this issue. See Solorio Mejia 

v. Barr, 833 F. App’x 455, 457 n.2 (9th Cir. 2020) (“The 

Board lacked authority to correct the IJ’s failure to make a 

factual determination about whether the cartel imputed a 

political opinion to Solorio Mejia.”). And the defect is not 

curable by the majority conducting independent factfinding 

of its own or by offering rationales that were not put forth by 

the BIA itself. The case should therefore be remanded.

3. The agency erred in its analysis of RodriguezZuniga’s request for protection under the 

Convention Against Torture (CAT)

Finally, the agency erred in its analysis of RodriguezZuniga’s request for protection under the CAT. The 

majority avoids this issue by opining that Rodriguez-Zuniga 

has waived any argument regarding this claim because she 

“does not argue that the agency erred in finding that she 

presented insufficient evidence that the Guatemalan 

government would consent to her torture.” Majority Op. at 

25.

To the contrary, Rodriguez-Zuniga argues that the 

agency erred in failing to consider evidence favorable to her 

CAT claim, and that she has “articulated a specific 

individualized threat of torture.” Government acquiescence 
RODRIGUEZ-ZUNIGA V. GARLAND 53

is part and parcel of the legal meaning of torture, which is 

defined under the CAT not just as an act imposing severe 

pain or suffering, but rather

any act by which severe pain or suffering, 

whether physical or mental, is intentionally 

inflicted on a person . . . when such pain or 

suffering is 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.

8 C.F.R. § 1208.18(a)(1); see also, e.g., Ornelas-Chavez v. 

Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006) (“To qualify 

for protection under CAT, Ornelas-Chavez must establish 

that he suffered torture, i.e., severe pain or suffering 

intentionally inflicted for discriminatory purposes “by or at 

the instigation of or with the consent or acquiescence of a 

public official or other person acting in an official 

capacity.”); Hernandez v. Barr, 830 F. App’x 804, 807 (9th 

Cir. 2020) (Hunsaker, J., dissenting) (“[T]he definition of 

‘torture’ encompasses government ‘acquiescence’ . . . .”). 

By challenging the agency’s finding that she was not more 

likely than not to be tortured, Rodriguez-Zuniga therefore 

necessarily challenges the agency’s findings both as to the 

severity of the harm that she was likely to suffer and as to 

acquiescence by the Guatemalan government.

Once the obstacle of waiver is removed, the agency’s 

analytical errors are readily apparent. As a threshold matter, 

this court has held that “a CAT applicant may satisfy his 

burden with evidence of country conditions alone.” AguilarRamos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010). The 

IJ’s guiding principle that “a pattern of human rights 
54 RODRIGUEZ-ZUNIGA V. GARLAND

violations alone is insufficient to show a particular applicant 

would be in danger of torture if returned to that country” is 

therefore contrary to the law of this circuit. 

The agency also erred in failing to consider “all evidence 

relevant to the possibility of future torture.” See 8 C.F.R. 

§ 1208.16(c)(3). Specifically, it did not discuss, in analyzing 

Rodriguez-Zuniga’s CAT claim, the evidence that 

Rodriguez-Zuniga had presented with the respect to the 

danger that she was likely to face as a woman in Guatemala. 

The agency’s failure to discuss that evidence suggests that 

the agency ignored its own regulation:

When nothing in the record or the BIA’s 

decision indicates a failure to consider all the 

evidence, a “general statement that [the 

agency] considered all the evidence before 

[it]” may be sufficient. But, where there is 

any indication that the BIA did not consider 

all of the evidence before it, a catchall phrase 

does not suffice, and the decision cannot 

stand. Such indications include misstating 

the record and failing to mention highly 

probative or potentially dispositive evidence.

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

(brackets in original) (emphasis added) (quoting Almaghzar 

v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006)).

Moreover, “in assessing a CAT claim from an applicant 

who has posited multiple theories for why he might be 

tortured, the relevant inquiry is whether the total probability 

that the applicant will be tortured—considering all potential 

sources of and reasons for torture—exceeds 50 percent.” 

Velasquez-Samayoa v. Garland, 49 F.4th 1149, 1154 (9th 
RODRIGUEZ-ZUNIGA V. GARLAND 55

Cir. 2022) (emphasis in original). The agency was thus 

required to consider not only the country-conditions 

evidence, but also to consider it in conjunction with evidence 

of the prior threats against Rodriguez-Zuniga and her son.

Finally, “the IJ and BIA erred by construing 

‘government acquiescence’ too narrowly.” See AguilarRamos, 594 F.3d at 705. The IJ based her acquiescence 

conclusion solely on “the Guatemalan government[’s 

having] taken steps to combat criminal violence and combat 

human rights,” and that “[t]he Guatemalan constitution and 

laws also prohibit torture or cruel, inhuman, and degrading 

treatment.” But this court has found error where “the BIA 

focused only on the national government’s efforts and not 

their efficacy.” See Barajas-Romero v. Lynch, 846 F.3d 351, 

363 (9th Cir. 2017). “[T]he ‘efficacy of the government’s 

efforts to stop the . . . violence,’ not just the willingness of 

the national government to do so, must be examined.” Id.

(quoting Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. 

2013)).

Indeed, in the same opinion where the IJ lauded the 

Guatemalan government’s efforts, she also observed that 

“[i]mpunity for the perpetrators of . . . crimes against women 

remain[s] very high, and the government is failing to enforce 

its laws against rape and domestic abuse,” and that “[t]he 

record details often brutal violence against women by gangs, 

government authorities, and society in general.” (emphasis 

added). A State Department report concerning human rights 

in Guatemala remarked that “[p]rincipal human rights 

abuses included widespread institutional corruption, 

particularly in the police and judicial sectors; police and 

military involvement in serious crimes, such as kidnapping, 

drug trafficking, trafficking in persons, and extortion; and 

societal violence, including lethal violence against women.” 
56 RODRIGUEZ-ZUNIGA V. GARLAND

The report further noted that “[g]angs, organized crime, and 

narcotics trafficking organizations committed considerable 

violence; corruption and inadequate investigation made 

prosecution of such crimes difficult.”

The agency therefore erred in its consideration of 

government acquiescence by limiting its analysis to the 

formalized existence of governmental efforts to protect its 

citizens. Whatever the merits of her CAT claim, RodriguezZuniga is entitled to a procedurally adequate adjudication.

CONCLUSION

The majority hesitates to apply what it characterizes as 

the “arcane requirements” of our settled law because it is 

concerned that doing so might lead to results that are not 

“what . . . Congress meant by providing relief for refugees.” 

Majority Op. at 28. But our duty is to apply the law, not to 

rewrite it.

In any event, the majority’s fear that “[s]omething has 

gone terribly wrong when judges conclude that relief for 

persecution and torture is mandated just because someone 

was the victim of a brief and failed robbery attempt in their 

home country,” Majority Op. at 28, is unfounded. To apply 

this court’s precedent would not require the BIA to afford 

relief to Rodriguez-Zuniga and Nelson. Instead, “[w]hen we 

remand due to the BIA’s legal error, we allow the BIA to 

exercise its judgment and administrative expertise using the 

appropriate legal standards. In such cases . . . we do not 

instruct the BIA as to any required outcome on remand.” 

Kotasz v. INS, 31 F.3d 847, 851 (9th Cir. 1994) (citation 

omitted).

Although I believe that substantial evidence should 

compel the agency to conclude that Rodriguez-Zuniga and 
RODRIGUEZ-ZUNIGA V. GARLAND 57

Nelson have satisfied the nexus requirement, the agency 

must still determine whether they are likely to suffer future 

harm rising to the level of persecution. It must also consider 

whether the Guatemalan government would be unable or 

unwilling to protect them from such persecution, and 

whether they would be able to reasonably relocate within 

Guatemala. They thus have many hurdles yet to clear, but in 

my view they have cleared enough to be entitled to 

reconsideration. I therefore respectfully dissent.