Beky Izamar Mazariegos-Rodas v. Merrick B. Garland

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0221p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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BEKY IZAMAR MAZARIEGOS-RODAS; ENGLY YERAICY

│

MAZARIEGOS-RODAS,

│

Petitioners, │

> No. 21-4064

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v. │

│

MERRICK B. GARLAND, Attorney General, │

Respondent. │

┘

On Petition for Review from the Board of Immigration Appeals.

Nos. A 208 174 902; A 208 174 903.

Argued: July 23, 2024

Decided and Filed: September 20, 2024

Before: GILMAN, GRIFFIN, and MATHIS, Circuit Judges.

_________________

COUNSEL

ARGUED: Elinor Ruby Jordan, MICHIGAN IMMIGRANT RIGHTS CENTER, Lansing,

Michigan, for Petitioners. John F. Stanton, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent. ON BRIEF: Elinor Ruby Jordan, Polina Emilova Hristova,

MICHIGAN IMMIGRANT RIGHTS CENTER, Lansing, Michigan, for Petitioners. John F.

Stanton, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 2

GILMAN, J., delivered the opinion of the court in which MATHIS, J., joined. GRIFFIN,

J. (pp. 30–35), delivered a separate opinion concurring in part and dissenting in part.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Beky Izamar Mazariegos-Rodas and Engly

Yeraicy Mazariegos-Rodas (collectively, the Petitioners) are two sisters who are natives and

citizens of Guatemala. The Petitioners, who were left behind in Guatemala as young children

after their parents entered the United States without inspection in 2009, fled to this country in

2015 after gang members threatened to maim and kill them. They also entered the United States

without inspection, and the Department of Homeland Security (DHS) placed them into removal

proceedings shortly thereafter.

Appearing before an immigration judge (IJ), the Petitioners applied for asylum and

withholding of removal under the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1158,

1231(b)(3). The IJ denied the Petitioners’ applications, the Board of Immigration Appeals (BIA)

dismissed their appeal, and the Petitioners filed a timely petition for review with this court. They

contend that (1) the IJ’s bias against the Petitioners’ mother violated their due-process rights,

(2) the IJ erred in concluding that the Petitioners’ proposed particular social group (PSG) of

“Guatemalan female children without parental protection” is not cognizable, and (3) the BIA

erred in concluding that there is no nexus between the harm that the Petitioners suffered and their

other proposed PSG of “the Rodas family.”

The Petitioners’ arguments regarding due-process and the “Guatemalan female children

without parental protection” PSG were not raised before the BIA and are thus unreviewable, but

the BIA’s no-nexus determination with regard to “the Rodas family” PSG is inconsistent with

this court’s precedents. We therefore GRANT the petition for review in part, DISMISS it in

part, VACATE the BIA’s denial of the Petitioners’ application for asylum and withholding of

removal, and REMAND for further proceedings consistent with this opinion.

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I. BACKGROUND

After the Petitioners entered the United States in May 2015, DHS served them with

Notices to Appear in July of that year, charging them with inadmissibility under the INA. The

Petitioners conceded removability as charged. They subsequently applied for asylum and

withholding of removal, asserting that they were entitled to relief based on their membership in

two PSGs: (1) “Guatemalan female children without parental protection,” and (2) “the Rodas

family.”

A. Merits hearing

Both Beky (the older sister) and the Petitioners’ mother Elodia testified before the IJ at a

merits hearing. The Petitioners also proffered written statements from Engly (the younger sister)

and the Petitioners’ father Ovidio, which the IJ accepted.

1. Beky’s testimony

Beky, who was 16 at the time of the hearing, testified through an interpreter about her

experiences in Guatemala. She explained what she knew about the harm that had befallen other

girls in her family. She was told that her distant cousin Michelle “was kidnapped by gangs.” In

addition, Beky testified that an uncle had “tried to hurt” Marleni, a cousin with whom Beky had

lived, but Beky “didn’t know if [Marleni] was raped or not.”

Beky then explained that, on multiple occasions when she was 12 or 13, gang members

attempted to recruit her to sell drugs for them. The first two times that they approached her, the

gang members stated that another girl who was selling drugs “was doing very well” and that

Beky “could make money” if she did the same. When they targeted Beky for the third time, the

gang members’ tactics changed. They forcibly separated Beky from her sister Engly and said

that they knew why Beky did not want to sell drugs—because her parents were in the United

States and that her family had money. The gang members then insisted that Beky “had to” sell

drugs, or else she and Engly “would turn up with [their] tongues cut out.”

As a result of this experience, Beky did not attend school “for a long time,” became

scared of leaving the house, and “cried almost every day” after her aunt (with whom she lived)

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 4

did nothing to help her. Beky testified that she was scared to leave the house because she “felt

that something could happen to [her],” and that gang members would “grab [her], and then [she]

would not ever be back at home.” Although there were “a lot of gang members” where she

lived, Beky stated that she did not personally know anyone else who had been threatened or hurt.

And on cross-examination, she reiterated that she did not know of any friends or classmates who

had been threatened by the gang like she was.

The Petitioners’ aunt eventually noticed that Beky “was not the same” after Beky’s last

encounter with the gang, so she asked if the Petitioners wanted to go to the United States to live

with their parents. Based on their affirmative reply, the Petitioners and their aunt left Guatemala

and entered the United States without inspection in 2015. When Beky was asked if there was

anywhere else in Guatemala where she could have lived, she explained that she did not think so

because her grandparents were “very old” and her aunt had “barely paid attention to [her]” after

getting married.

2. Elodia’s testimony

At the beginning of the hearing, the IJ had—upon learning that Elodia, the Petitioners’

mother, would testify—remarked “Mom, who left her there? . . . I’ll have to tell you; I’m going

to have hard questions for her.” Elodia nevertheless testified, also through an interpreter, after

Beky finished.

Much of Elodia’s testimony concerned her reasons for leaving Guatemala and the harm

that she and her family had faced. She also discussed her fears of her brother-in-law (and the

Petitioners’ uncle) Eleazar. Elodia said that he was a gang member and that he had raped the

Petitioners’ cousin Marleni.

The IJ clearly expressed her disapproval of Elodia’s conduct in abandoning Beky and

Engly in Guatemala, and she also found Elodia’s testimony to be untruthful. After Elodia

finished testifying, the IJ remarked:

But this woman made it all about herself. “Oh, it was more dangerous for me.

Oh, I came because I was in danger.” And she leaves these girls after she’s

already been told by this crazy uncle? Oh, my gosh. It just—I don’t even know

what to say. . . . I didn’t believe [Elodia], and not just because she’s a really bad

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 5

mom. But there’s a lot of reasons here. And she was doing her darndest not to

respond to questions that the government asked her. She was able to answer all

your questions, but as soon as [counsel for the government] started asking

questions—that tells you a lot. So—you can’t come here and lie.

When the hearing continued at a later date, the IJ stated that she “was livid” and “hated

[it]” when Elodia testified because Elodia was “so narcissistic and awful.” The IJ also remarked

that the Petitioners “deserve better” and that she “feel[s] very bad for these girls, but that’s not a

basis for granting asylum.”

3. Engly’s and Ovidio’s statements

Engly and Ovidio did not testify, but submitted written statements. The section of

Engly’s statement that is most relevant to this appeal reads as follows:

The gangs stopped my sister on her way to school three times to ask her to join

their groups. On the third occasion, I was with my sister when they stopped us.

They told her that now they know why she didn’t want to earn money, they

thought that because our parents were living in the U.S. They told Beky that she

had seven or eight days, and then they would demand an answer from her. They

asked her again to join the gang and she said no. At this point, they grabbed me

and didn’t want to let me go. They told Beky that they wouldn’t let me go until

she agreed to join the gang. They said that they would give her one last chance,

or they would find the chance to kills [sic] us both and our families. My sister

said yes to them, just so that they would let go of me and we could get away.

Beky and I got away and after that we didn’t go out or go to school anymore.

As for Ovidio’s statement, the section that is most relevant concerns Eleazar, the

Petitioners’ uncle. Ovidio stated his belief that Eleazar, who was romantically involved with one

of the Petitioners’ aunts, was a gang member because “Eleazar told me of a time he’d been

arrested in Mexico[,] and I saw that he had three dots tattooed on his hand and he told me that

they were gang.” In addition, Ovidio described his fears of Eleazar harming his daughters as

follows:

Since the girls came to the U.S.[,] I heard from [relatives living in Guatemala

that] Eleazar [was] saying he was upset that [] Beky was in the Unites States. I

interpreted that to mean he had plans to harm her and was upset he didn’t get to

bring those plans to completion. I also learned that he hoped to kidnap the girls

and hold them for ransom. I am afraid that if Beky and Engly return, Eleazar is

capable of harming them or doing anything he wishes to them[,] and I think the

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police will not do anything to protect them. I know Eleazar has harmed many

girls and also could kidnap them because their parents, myself and Elodia, are in

the U.S.

The Petitioners also submitted documentary evidence regarding country conditions in

Guatemala, including but not limited to the country’s treatment of girls in general and children

without parental protection in particular.

B. Procedural history

The IJ refused to credit Elodia’s testimony, but credited Beky’s testimony and accepted

the proffered statements by Engly and Ovidio. She nevertheless denied the Petitioners’ claims

for asylum and withholding of removal on the following grounds: (1) the Petitioners did not

suffer harm that rose to the level of past persecution, (2) the proposed PSG comprised of

“Guatemalan female children without parental protection” was not cognizable because it was not

“immutable” or sufficiently “particular,” (3) although family membership constitutes a

cognizable PSG, the Petitioners failed to establish a nexus between the harm they suffered and

either of their proposed PSGs, and (4) the Petitioners had not established that any well-founded

fear of future persecution would be on account of their membership in a cognizable PSG.

In concluding that there was no nexus, the IJ faulted the Petitioners for failing to “show

that the [gang members] had the intent to overcome [the Petitioners’] temporary lack of

supervision.” She similarly concluded that the Petitioners “ha[d] not shown that Eleazar targeted

them based on their family membership.” But other than stating that

“simply because a member of a family has been harmed in the past does not mean that they

. . . were targeted based on that membership,” the IJ provided no explanation as to what she

believed Eleazar’s motives to be. The IJ noted only that “a pedophile’s presence in one’s family

creates an opportunity for abuse; yet no nexus forms without intent to overcome a protected

status.”

Nowhere in the IJ’s opinion did she address whether the Guatemalan government would

be unable or unwilling to control the Petitioners’ persecutors. She instead concluded that the

Petitioners had not established their eligibility for protection under the Convention Against

Torture. But given that the Petitioners indicated on their applications that they were not afraid of

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 7

being subject to torture in Guatemala or any other country, they do not appear to be seeking that

form of relief.

The Petitioners appealed the IJ’s decision to the BIA, and the BIA affirmed. It held that

the IJ did not err in finding Elodia not credible. Contrary to the IJ’s no-persecution finding,

however, the BIA “assum[ed], without deciding, that the harm rose to the level of persecution.”

But the BIA agreed with the IJ “that the gang members were motivated by financial gain

rather than animus toward the [Petitioners’] family.” It cited to the IJ’s finding that “the gang

members never identified the [Petitioners] by name or said anything to indicate that they knew

who they were or that they belonged to the [Rodas] family.” And it stated that although “the

gang members mentioned that the [Petitioners’] parents were in the United States, . . . that does

not establish that the gang members had the intent to overcome the [Petitioners’] temporary lack

of supervision.” As for the Petitioners’ uncle Eleazar, the BIA stated that “while [Eleazar]

previously harmed [the Petitioners’] cousin, this alone is insufficient to establish that he will

target [the Petitioners] based on their familial relationship.”

The BIA then affirmed the IJ’s conclusion that “Guatemalan female children without

parental protection” is not a cognizable PSG. It “point[ed] out that the [Petitioners] do not

meaningfully address the Immigration Judge’s findings that the group is not particular and

overbroad on appeal.” And it concluded that the Petitioners’ assertion that a different IJ had

found a similar group to be cognizable was unpersuasive because “[t]he inquiry of whether a

proposed particular social group is cognizable is conducted on a case-by-case basis.”

Finally, the BIA acknowledged that the nexus standard for withholding of removal is

easier to satisfy than for asylum, but it concluded that the Petitioners had not satisfied that lower

requirement either. The BIA again relied on the fact that the gang members did not refer to the

Petitioners by name, and that “it was unclear [that the gang members] even knew the

[Petitioners] belonged to the [Rodas] family.” It also concluded that there was no nexus between

the Petitioners’ fear of Eleazar and a protected ground because Eleazar had done no more than

“previously harm[] their cousin and became ‘upset’ that the [Petitioners] left Guatemala.” This

timely appeal followed.

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II. ANALYSIS

A. Standard of review

This court has jurisdiction under 8 U.S.C. § 1252 to review the BIA’s final orders of

removal. Umaña-Ramos v. Holder, 724 F.3d 667, 670 (6th Cir. 2013). Where the BIA “issues a

separate opinion, rather than summarily affirming the immigration judge’s decision, we review

the BIA’s decision as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th

Cir. 2009). But where the BIA’s separate opinion adopts an IJ’s reasoning, “this Court also

reviews the [IJ’s] decision.” Id.

“Claims of due-process violations in removal proceedings are reviewed de novo.”

Sebastian-Sebastian v. Garland, 87 F.4th 838, 847 (6th Cir. 2023). This court also reviews de

novo the BIA’s legal determinations, such as whether an applicant’s proposed PSGs are

cognizable under the INA. Sanchez-Robles v. Lynch, 808 F.3d 688, 692 (6th Cir. 2015).

In contrast, “[a] nexus determination is a finding of fact and is thus reviewed under the

substantial-evidence standard.” Sebastian-Sebastian, 87 F.4th at 847 (citing Turcios-Flores

v. Garland, 67 F.4th 347, 357 (6th Cir. 2023). Pursuant to that standard, this court will “uphold

a [BIA] determination as long as it is supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Juan Antonio v. Barr, 959 F.3d 778, 788 (6th

Cir. 2020) (internal quotation marks omitted). But “[a] determination based on flawed reasoning

. . . will not satisfy the substantial evidence standard.” Diaz-Zanatta v. Holder, 558 F.3d 450,

454 (6th Cir. 2009) (quoting Balachova v. Mukasey, 547 F.3d 374, 380 (2d Cir. 2008)). And

where the BIA “ignored declarations and other record evidence” connecting the harm an

applicant suffered to a protected ground, its nexus finding is not supported by substantial

evidence. Juan-Pedro v. Sessions, 740 F. App’x 467, 470, 474 (6th Cir. 2018) (vacating the

BIA’s no-nexus finding). Finally, if an IJ finds the witnesses credible, this court “accept[s] their

factual statements as true.” Mandebvu v. Holder, 755 F.3d 417, 424 (6th Cir. 2014).

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B. Due-process claim

The Petitioners first contend that the IJ’s antipathy towards their mother during their

merits hearing deprived them of a fair hearing and violated their due-process rights. For its part,

the government does not address this argument on the merits, but instead contends that we

cannot consider the due-process claim because it is “unexhausted.” The government’s argument

is based on the Petitioners’ failure to raise their due-process claim before the BIA.

We agree with the government. Courts “may review a final order of removal only if . . .

the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C.

§ 1252(d)(1). This exhaustion requirement is not jurisdictional, but instead a claim-processing

rule subject to either waiver or forfeiture. Santos-Zacaria v. Garland, 598 U.S. 411, 417–23

(2023). Claim-processing rules, however, “may be mandatory in the sense that a court

must enforce the rule if a party properly raises it.” Fort Bend County v. Davis, 587 U.S. 541,

549 (2019) (cleaned up).

The Petitioners argue that, to the extent that they failed to exhaust this claim, any such

failure should be excused because, as this court held in Sterkaj v. Gonzales, 439 F.3d 273,

279 (6th Cir. 2006), a “due process challenge generally does not require exhaustion.” This

exception to the exhaustion requirement is based on the principle that “the BIA lacks authority to

review constitutional challenges.” Id. But Sterkaj also held that an applicant “must raise

correctable procedural errors to the BIA,” id., and this court has determined that due-process

claims “related to agency bias against the petitioner fall within the category of correctable

procedural errors and are thus subject to the statutory exhaustion requirement,” Tomaszczuk

v. Whitaker, 909 F.3d 159, 167 (6th Cir. 2019).

In the alternative, the Petitioners argue that they in fact exhausted this claim when they

challenged the IJ’s finding that their mother was not credible. But, as the government correctly

points out, the Petitioners’ brief before the BIA did not raise a due-process claim. And although

the Petitioners mentioned that the IJ “expressed a dislike of the personal decisions and

personality traits of [the Petitioners’] mother,” their argument focused almost entirely on

explaining alleged inconsistencies in their mother’s testimony relating to the relatives with whom

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the Petitioners had lived in Guatemala. Such a passing reference to the IJ’s bias, without any

citation to relevant caselaw or even a mention of the words “due process,” is not sufficient to

constitute “raising a correctable procedural error to the BIA.” Sterkaj, 439 F.3d at 279 (cleaned

up). This claim is therefore unexhausted, and because the government has raised the exhaustion

issue, we are precluded from deciding it on the merits.

C. The “Guatemalan female children without parental protection” PSG

The Petitioners next contend that the BIA erred in concluding that their proposed PSG

comprised of “Guatemalan female children without parental protection” is not cognizable. For

its part, the government asserts that this argument fails because the Petitioners did not

“meaningfully challenge the [IJ’s] dispositive finding that the proposed group lacked

particularity.” We again agree with the government.

This court has deferred to the BIA’s requirement that a PSG be (1) “immutable,”

(2) “particular,” and (3) “socially distinct” (formerly “socially visible”). Menijar v. Lynch,

812 F.3d 491, 498 (6th Cir. 2015). A group is “immutable” where its members share a

characteristic that they “either cannot change, or should not be required to change because it is

fundamental to their individual identities or consciences.” Umaña-Ramos v. Holder,

724 F.3d 667, 671 (6th Cir. 2013) (citation and internal quotation marks omitted). “Particularity

refers to whether the proposed group can accurately be described in a manner sufficiently distinct

that the group would be recognized, in the society in question, as a discrete class of persons.”

Id. (cleaned up). And “social distinction” (or “social visibility”) “requires that the shared

characteristic of the group should generally be recognizable by others in the community.” Id.

(cleaned up). An applicant’s proposed PSG must satisfy all three of these requirements in order

to constitute a protected ground for purposes of asylum and withholding of removal under the

INA. Menijar, 812 F.3d at 498.

Here, the IJ believed that the “Guatemalan female children without parental protection”

PSG was not immutable or particular, but “has some social visibility.” The BIA affirmed the IJ’s

conclusion, stating that the Petitioners “d[id] not meaningfully address the Immigration Judge’s

findings that the group is not particular and [is] overbroad. . . .”

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On appeal, the Petitioners assert that even though much of their brief before the BIA

focused on immutability, they also sufficiently challenged the IJ’s finding that their “Guatemalan

female children without parental protection” PSG was not particular. They primarily rely on a

sentence in their BIA brief that stated: “[A]s noted in [the Petitioners’] Brief 24, an IJ in Los

Angeles found that ‘young female members of a vulnerable family that cannot protect them’ was

a sufficient particular social group to establish a case for asylum.”

True enough, this court has recognized that where the agency has previously reached the

“opposite conclusion for a similarly situated applicant,” the BIA errs if it “fail[s] to adequately

distinguish” its denial of an applicant’s claim for relief from removal. Kada v. Barr, 946 F.3d

960, 967 (6th Cir. 2020). The BIA should therefore refrain from cursorily disregarding a

decision submitted by an applicant, even if that decision is not binding, simply because the PSG

determination is conducted on a case-by-case basis.

But, as the government points out, the IJ’s opinion upon which the Petitioners rely does

not appear to involve a “similarly situated” applicant or stand for the proposition that they assert.

That opinion instead granted relief based on “the particular social group of [that applicant’s]

family” and did not address the cognizability of a group such as “young members”—whether

male or female—“of a vulnerable family that cannot protect them.” The Petitioners did not

address in their BIA brief how the IJ’s decision supported their position, nor did they mention

the word “particularity” or explain how their proposed PSG would be seen as a “discrete class of

persons” in Guatemala. See Umaña-Ramos, 724 F.3d at 671. Such a bare-bones reference to

seemingly inapposite authority, without at least some attempt at explanation, does not suffice to

have raised an issue before the BIA. See Singh v. Rosen, 984 F.3d 1142, 1155 (6th Cir. 2021)

(noting that the relevant “procedural rules require a party to identify every legal or factual issue

that the party seeks to raise with the [BIA] in the notice of appeal of the immigration judge’s

decision” (citing 8 C.F.R. § 1003.3(b))).

Because the Petitioners did not properly raise this issue before the BIA, they have failed

to exhaust their challenge to the IJ’s finding that the “Guatemalan female children without

parental protection” PSG is insufficiently particular. See 8 U.S.C. § 1252(d)(1). And where, as

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here, the government has raised the exhaustion requirement, we must enforce it. See Part IV.B,

supra. We are therefore precluded from addressing this issue on the merits.

D. Nexus to the Petitioners’ family

The Petitioners also sought asylum and withholding of removal on the basis of their

status as “members of the Rodas family.” Although acknowledging that “family is a

well-established particular social group,” the IJ concluded that there was no nexus between the

harm that the Petitioners suffered and their family membership. The BIA agreed with the IJ,

stating that it “discern[ed] no clear error in the [IJ’s] finding regarding the motive of the

[Petitioners’] alleged persecutors.” On appeal, the Petitioners contend that the BIA’s analysis is

inconsistent with this court’s precedents. We agree.

1. Asylum

An applicant must demonstrate that a protected ground—such as her membership in

a PSG—is “at least one central reason” for her persecution in order to qualify for asylum.

8 U.S.C. § 1158(b)(1)(B)(i). As one of our sister circuits has noted, “[i]t is unrealistic to expect

that a gang would neatly explain . . . all the legally significant reasons it is targeting someone.”

Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017); see also Hermosillo

v. Garland, 80 F.4th 1127, 1132 (9th Cir. 2023) (“[P]ersecutors are hardly likely to provide their

victims with affidavits.” (quoting Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir.

1984))).

Both this court and the BIA have recognized that persecutors can be motivated “both by a

protected ground and other, nonprotected grounds, such as personal pecuniary gain.” Skripkov

v. Barr, 966 F.3d 480, 487 (6th Cir. 2020); In re S-P-, 21 I.&N. Dec. 486, 489 (B.I.A. 1996)

(“Persecutors may have differing motives for engaging in acts of persecution, some tied to

reasons protected under the [INA] and others not. . . . An asylum applicant is not obliged to

show conclusively why persecution has occurred or may occur.”). Applicants in such “mixed-

motives” cases “need only show that [their persecutor] was motivated to [harm them], at least in

part, on account of an enumerated ground.” Bi Xia Qu v. Holder, 618 F.3d 602, 608

(6th Cir. 2010); see also Stserba v. Holder, 646 F.3d 964, 972–73 (6th Cir. 2011) (“[I]n a case of

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mixed motives, the petitioner is eligible for asylum . . . so long as one of the factors motivating

the persecution is a protected ground under the INA.”) (cleaned up) (emphasis in original).

The government argues that, pursuant to this court’s precedents and the BIA’s recent

decision in Matter of M-R-M-S-, 28 I.&N. Dec. 757 (B.I.A. 2023), a mixed-motives analysis is

warranted only if an applicant first proves that her persecutors were motived by animus towards

a protected ground. We find that argument unpersuasive for the reasons set forth below.

a. This court’s precedents

In December 2023, this court issued Sebastian-Sebastian v. Garland, 87 F.4th 838

(6th Cir. 2023). The Sebastian-Sebastian court noted that, “to determine if a central reason for

the applicant’s persecution is a protected ground,” both the BIA and this court must “examin[e]

the nature of the conduct on which an application for asylum is based” and “look[] to the overall

context of the applicant’s situation.” Id. at 847 (alterations in original) (quoting Gilaj

v. Gonzales, 408 F.3d 275, 285 (6th Cir. 2005) (per curiam)). As a result, the BIA “erroneously

stopped short” when it “found one motive and prematurely ended its analysis there, ignoring the

fact that a ‘conclusion that a cause of persecution is [personal] does not necessarily imply that

there cannot exist other causes of persecution.’” Id. at 848 (quoting Osorio v. INS, 18 F.3d 1017,

1028 (2d Cir. 1994)).

The correct approach is instead to consider “whether the [persecutor’s] motives were

‘inextricably intertwined’ with [the applicant’s] particular social groups.” Id. at 850. And as this

court has previously explained, where a persecutor’s views of a PSG “underlay all of his

actions,” his motivations are “inextricably intertwined” with that PSG because there is no way to

“fairly distinguish” the persecutor’s personal motives from his perceptions of the group.

Al-Ghorbani v. Holder, 585 F.3d 980, 998 (6th Cir. 2009), superseded on other grounds by

statute, 8 U.S.C. § 1252(b)(3)(B). The BIA therefore cannot simply attribute a persecutor’s

actions to unprotected grounds, such as personal animus or financial gain, and overlook evidence

suggesting that the persecutor “harmed [the applicant], at least in central part, because [of] . . . a

characteristic that is a core aspect of [the applicant’s] proposed social groups.”

Sebastian-Sebastian, 87 F.4th at 849 (emphasis in original).

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Here, neither the IJ nor the BIA addressed whether the persecutors might have had mixed

motives for targeting the Petitioners. The BIA instead relied on this court’s decision in

Cruz-Guzman v. Barr, 920 F.3d 1033 (6th Cir. 2019), to conclude that an applicant seeking

asylum on the basis of a family-based PSG must provide “evidence of animus towards [the]

family itself.” And when asked about Sebastian-Sebastian at oral argument, counsel for the

government similarly contended that a remand is unnecessary because the Petitioners’

persecutors had not demonstrated any animus toward the Rodas family.

At first glance, this assertion appears reasonable. The Cruz-Guzman court upheld the

BIA’s no-nexus finding because the applicant’s proffered evidence “[did] not show that [the

persecutor’s] actions were motivated by a particular animus toward the [applicant’s] family

itself, as opposed to an ordinary criminal desire for financial gain.” 920 F.3d at 1037. It also

cited the BIA’s statement in Matter of L-E-A-, 27 I.&N. Dec. 40, 45 (B.I.A. 2017), explaining

that “[t]he fact that a persecutor targets a family member simply as a means to an end is not, by

itself, sufficient to establish a claim, especially if the end is not connected to another protected

ground.” Cruz-Guzman, 920 F.3d at 1038.

But Cruz-Guzman does not exist in a vacuum. Rather, we must consider it in the context

of this court’s other precedential opinions on this issue. And this court has, in decisions

predating Cruz-Guzman, recognized that a mixed-motives analysis might be warranted even

where a persecutor (1) has not demonstrated any animus or hostility towards the applicant’s

specific PSG, or (2) targets an applicant as a means to accomplishing some other end.

In Bi Xia Qu v. Holder, 618 F.3d 602 (6th Cir. 2010), for example, the persecutor—“a

‘big thug’ in the [Chinese] underground world [who] had powerful connections in the

government”—kidnapped, physically assaulted, and attempted to rape the applicant after the

applicant’s father was unable to pay back a loan. Id. at 604–05. The applicant claimed that she

was persecuted on account of “her membership in the group of women in China who have been

subjected to forced marriage and involuntary servitude,” and this court agreed. Id. at 608.

Nothing in Bi Xia Qu suggested that the persecutor held any particular animus or hatred

towards “women in China who have been subjected to forced marriage and involuntary

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 15

servitude” as a group. Id. Nor was there any doubt that the persecutor kidnapped the applicant

as a means of achieving a goal—obtaining repayment of a loan—that had no connection to the

applicant’s status as a woman who could be forced into marriage. Id. But this court nevertheless

recognized that, because the persecutor “targeted [the applicant] both to secure the repayment of

his loan from [her] father and because she was a woman whom he could force into marriage in a

place where forced marriages are accepted,” this situation “represent[ed] a mixed motive case.”

Id. (emphasis in original).

Similarly, Al-Ghorbani v. Holder, 585 F.3d 980, 998 (6th Cir. 2009), the persecutor’s

goal in persecuting Abdulmunaem (one of the applicants) was to get him to “giv[e] up his

marriage to” the persecutor’s daughter. After Abdulmunaem fled, the persecutor then persecuted

Salah (the other applicant and Abdulmunaem’s brother) not as an end in itself, but instead to

learn where Abdulmunaem had gone. Id. This court concluded, however, that Abdulmunaem’s

and Salah’s “social class and . . . opposition to Yemeni paternalistic rights” were still central

reasons for their persecution—even though the persecutor’s ultimate goal was to force his

daughter to marry her first cousin—because “the [persecutor’s] personal motives cannot be

unraveled from his motives based on” those protected grounds. Id. at 997–98.

The Jordanian government in Kamar v. Sessions, 875 F.3d 811 (6th Cir. 2017), also

lacked any animus towards the applicant’s PSG comprised of “women who, in accordance with

social and religious norms in Jordan, are accused of being immoral criminals.” Id. at 818.

Rather, because women in this group were often targeted for “honor killings” by their male

relatives, the government forced those women into “protective custody” as a means of preventing

such killings. Id. at 818–19. But this supposedly “protective” custody was in fact “involuntary,

and often involve[d] extended incarceration in jail.” Id. at 819 (citation omitted). This court

recognized that such involuntary incarceration, even if arising out of a desire to protect these

women rather than any animus towards them, was “akin to persecuting the victim[,] as she must

choose between death and an indefinite prison term” because of her status as a member of that

PSG. Id. at 819–20 (internal citation and quotation marks omitted); see also Juan-Pedro

v. Sessions, 740 F. App’x 467, 472 (6th Cir. 2018) (holding that even though a gang was

“motivated by their criminal and financial interests” and had not expressed any animus towards

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 16

Mayans, the applicant’s Mayan ethnicity was still “one central reason” for her persecution where

the gang perceived her as “an attractive target” because of her ethnicity).

In contrast to the BIA’s focus on “animus” in cases involving a family-based PSG, the

INA states only that the persecution must be “on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42) (emphasis

added). And, as the Fourth Circuit has correctly noted, “nothing in the text of the INA . . .

suggests that the phrase ‘on account of’ means one thing in family ties cases and another in

[other] cases.” Chicas-Machado v. Garland, 73 F.4th 261, 267 n.3 (4th Cir. 2023). We

recognize that two of the most straightforward ways for an applicant to satisfy the nexus

requirement are to show that her persecutor either (1) harbored animus towards her protected

characteristic, or (2) sought to harm individuals with that characteristic as an end in itself.

But neither common sense nor the plain text of the INA indicates that those are the only

possible ways to establish that persecution is “on account of” a PSG or any other protected

ground. See 8 U.S.C. § 1101(a)(42).

Consider a hypothetical sex trafficker who exclusively forces blonde, Caucasian women

to join his prostitution ring because he believes that having an all-blonde, all-Caucasian group of

escorts will set him apart from his competitors and benefit him financially. This trafficker is not

targeting these women because of animus towards Caucasian women as a group—if anything, he

perceives Caucasian women in a positive light because of their appeal to his clientele. And

regardless of the trafficker’s views of Caucasian women as a group, a central reason that he is

targeting these women (rather than women of other races) is because he sees them as a means of

achieving greater financial success.

If “on account of” were to mean only “animus” or “not a means to an end,” then we

would be obliged to conclude that these women were not forced into prostitution “on account of”

their race—even though the trafficker targeted them specifically because they were Caucasian

and would have had no interest in them if they were of a different race. We see nothing in either

the text of the INA or our decisions in Bi Xia Qu, Kamar, and Al-Ghorbani that would compel

such a counterintuitive conclusion. See also Matter of Kasinga, 21 I.&N. Dec. 357, 367 (B.I.A.

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 17

1996) (noting that compulsory female genital mutilation can satisfy the nexus requirement “even

if done with ‘subjective benign intent’”).

We also note that Cruz-Guzman did not mention a mixed-motives analysis or discuss

Bi Xia Qu, Al-Ghorbani, or Kamar, so we do not believe that it intended to overrule those cases

to hold that “animus” and “not a means to an end” are the only possible ways to satisfy the nexus

requirement. See Cooper v. MRM Inv. Co., 367 F.3d 493, 507 (6th Cir. 2004) (“Implied

overrulings . . . are disfavored.”); see also United States v. Meek, 32 F.4th 576, 582 (6th Cir.

2022) (“One panel of this Court, in other words, cannot overrule another, let alone two others.”).

And because Cruz-Guzman can be interpreted more narrowly than the government contends, we

do not believe that it necessarily conflicts with our earlier precedents. See Cooper, 367 F.3d at

507 (“When possible, we will distinguish seemingly inconsistent decisions rather than find an

overruling by implication.”).

Cruz-Guzman’s no-nexus determination, although phrased broadly, was based on the

panel’s agreement with the BIA that “the more likely explanation for persecution was basic

criminality as opposed to membership in a social group or other protected status.” 920 F.3d at

1037. Determining what is “the more likely explanation for persecution” in any given case is

necessarily fact-intensive and, for the reasons that we will address in our discussion of the facts

relating to the gang members, see Part II.D.1.c.i, infra, the facts of Cruz-Guzman are materially

different from those of this case.

The government also cites Turcios-Flores v. Garland, 67 F.4th 347 (6th Cir. 2023), for

the proposition that this court has denied family-based asylum claims “due to lack of evidence

[that the] gang possessed animus against [the] applicant’s family.” But the Turcios-Flores court

was summarizing the BIA’s decision when it mentioned animus. 67 F.4th at 357. The court

itself did not base its affirmance on the lack of “any particular animus,” but instead stated that

“the record included no indication that [the applicant’s] connection to her husband’s family

singled her out for gang-driven persecution.” Id. (emphasis added)

There is no basis, however, for us to assume that animus is the only reason for someone

to be “singled out.” Rather, the term “to single out” is defined as “to treat or speak about

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 18

[someone] in a way that is different from the way one treats or speaks about others.”

Merriam-Webster Online, https://www.merriam-webster.com/dictionary/single%20out# (last

visited Sept. 19, 2024). An applicant can thus be “singled out” for persecution on account of a

protected ground where, as the Fourth Circuit has noted, that ground was “at least one central

reason why she, as opposed to another person, was targeted for [persecution].” Alvarez Lagos

v. Barr, 927 F.3d 236, 250 (4th Cir. 2019). And, as is evident from the sex-trafficker

hypothetical discussed above, a persecutor can “single out” or target individuals belonging to a

certain group (such as Caucasian women) for persecution even if the persecutor has no animosity

towards the group. Accordingly, we conclude that our precedents do not require an asylum

applicant to prove animus in order to satisfy the nexus requirement.

b. Matter of M-R-M-S-

The BIA’s recent decision in Matter of M-R-M-S-, 28 I.&N. Dec. 757 (B.I.A. 2023), does

not change our analysis. That decision involved a criminal cartel that forced the applicants off of

land belonging to the applicants because the cartel wanted the land for its own purposes. Id. at

757. The cartel also killed the lead applicant’s grandson for unknown reasons, and despite the

applicants’ speculation that the killing was related to the cartel’s efforts to obtain their land, the

BIA noted that the cartel also forced other families off of land in the same area. Id. at 757–58.

Although nothing in the facts above suggested any connection between the cartel’s

actions and the applicants’ family membership, the BIA went on to state that “[t]o be successful

in an asylum claim based on family membership, an applicant must demonstrate that the

persecutor’s motive for the harm is a desire to overcome the protected characteristic of the

family or otherwise based on animus against the family.” Id. at 760. It also concluded that “[i]f

a persecutor is targeting members of a certain family as a means of achieving some other

ultimate goal unrelated to the protected ground, family membership is incidental or subordinate

to that other ultimate goal and therefore not one central reason for the harm.” Id. at 762.

As a preliminary matter, these statements are dicta because they were “unnecessary to the

decision in the case” where the persecutors were motivated solely by a desire to obtain land. See

Richmond Health Facilities-Kenwood, LP v. Nichols, 811 F.3d 192, 201 n.8 (6th Cir. 2016)

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 19

(quoting Obiter Dictum, Black’s Law Dictionary (10th ed. 2014)). Moreover, an overly

restrictive nexus standard contradicts the BIA’s own pronouncements that “[i]n adjudicating

mixed motive cases, it is important to keep in mind the fundamental humanitarian concerns of

asylum,” and that “[s]uch an approach is designed to afford a generous standard for protection in

cases of doubt.” See In re S-P-, 21 I.&N. Dec. 486, 492 (B.I.A. 1996).

Such an unnecessarily broad holding is also inconsistent with Bi Xia Qu, Al-Ghorbani,

and Kamar for the reasons previously discussed. See Part II.D.1.a, supra. Our sister circuits

have likewise recognized that a protected ground cannot be dismissed as an incidental or

tangential reason for the persecution simply because a persecutor might have pecuniary goals.

See, e.g., Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1158 (11th Cir. 2019) (determining

that an applicant’s familial relationship with his father-in-law was “one central reason” for his

persecution when gang members extorted him in order to recoup the debts that his father-in-law

owed them); Hernandez-Cartagena v. Barr, 977 F.3d 316, 322–23 (4th Cir. 2020) (holding that

an applicant was targeted on account of her family membership when “the threats and violence

against [the applicant and her family members] were designed to get her parents to pay up”)

(emphasis in original); Aldana-Ramos v. Holder, 757 F.3d 9, 19 (1st Cir. 2014) (“There may be

scenarios in which a wealthy family, targeted in part for its wealth, may still be the victims of

persecution as a family.”); Manzano v. Garland, 104 F.4th 1202, 1207 (9th Cir. 2024) (“[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.”) (first alteration in

original) (citation and internal quotation marks omitted).

Similarly, M-R-M-S-’s requirement that the persecutor have “a desire to overcome the

protected characteristic,” 28 I.&N. at 760, is undercut by Sebastian-Sebastian v. Garland,

87 F.4th 838 (6th Cir. 2023). Sebastian-Sebastian involved a Guatemalan woman of Chuj

ethnicity, where this court instructed the BIA to apply a mixed-motives analysis even though the

applicant’s membership in the groups “Guatemalan Chuj [w]omen in domestic relationships who

are unable to leave” and “Guatemalan Chuj [w]omen who are viewed as property by virtue of

their positions within a domestic relationship” was not some obstacle that her mother-in-law had

to “overcome” in order to persecute her. Id. at 848–49. To the contrary, the applicant’s status as

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 20

one of those women made her particularly vulnerable to her mother-in-law’s abuse because

“cultural expectations dictated that a Guatemalan Chuj woman in her position . . . must stay with

her in-laws and have nowhere else to go.” Id. at 849. This court thus recognized that the

applicant’s “mother-in-law harmed her, at least in central part, because [the applicant] could not

leave, a characteristic that is a core aspect of two of her proposed social groups—Guatemalan

Chuj women in domestic relationships who are unable to leave and who are viewed as property

by virtue of their relationship.” Id. (emphasis in original).

True enough, the Supreme Court in National Cable & Telecommunications Assn.

v. Brand X Internet Services (Brand X), 545 U.S. 967, 962 (2005), held that an agency like the

BIA could disagree with (and thus decline to follow) a circuit’s precedents on a question of

statutory interpretation where the statute at issue was ambiguous. And the BIA in M-R-M-S-

expressly disagreed with a decision by the Fourth Circuit that had held that an applicant’s family

membership was a central reason for her persecution when that family membership was “why

she, and not another person, was targeted” as part of a gang’s efforts to recruit her son. 28 I.&N.

at 761–62 (citing Hernandez-Avalos v. Lynch, 784 F.3d 944, 947, 949–50 (4th Cir. 2015)). The

BIA acknowledged that a protected ground is a central reason for the persecution where that

ground “is intertwined with or underlies the dispute,” but then cited Cruz-Guzman v. Barr, 920

F.3d 1033 (6th Cir. 2019), to support its conclusion that family status is typically “at most,

incidental or tangential to more commonplace goals,” such as financial gain or criminal activity.

Id. at 760.

Although M-R-M-S- does not cite either Bi Xia Qu or Al-Ghorbani, the application of

M-R-M-S- to the case before us would effectively overrule those cases’ instruction to consider

the possibility of mixed motives even when a persecutor has financial or criminal goals. The

problem for the BIA, however, is that Brand X, which provided the authority for the BIA’s

decision in M-R-M-S-, stated in no uncertain terms that the “principle” of agencies effectively

overruling federal courts of appeals “follows from Chevron [U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984)] itself.” 545 U.S. at 982. And now that “Chevron is

overruled,” Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024), the BIA has no

legal authority to disregard precedential decisions of this court, see id. at 2266 (“[A]gencies have

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 21

no special competence in resolving statutory ambiguities. Courts do.”); see also id. at 2289

(Gorsuch, J., concurring) (criticizing the BIA’s invocation of Chevron “to overrule a judicial

precedent on which many immigrants had relied”).

For all of these reasons, we reject the government’s bright-line rule that a mixed-motives

analysis is appropriate only where a persecutor (1) demonstrates an animus towards a protected

ground, (2) expresses a desire to “overcome” that ground, or (3) disclaims any intention of

targeting the applicant as a means of accomplishing some other end. We instead conclude that,

pursuant to this court’s precedents, the BIA must review the record as a whole to determine if a

persecutor’s motives are “inextricably intertwined” with an applicant’s PSGs.

Sebastian-Sebastian, 87 F.4th at 850 (citing Al-Ghorbani, 585 F.3d at 998).

c. Application to this case

We acknowledge that not every persecutor’s motives will be “inextricably intertwined”

with a protected ground. Id. If the Petitioners’ persecutors had said only that “we know that you

go to school A” or “we know that you live in neighborhood B”—or if they had said nothing

other than “we will cut your tongue out if you do not sell drugs for us” or “I want to kidnap

you”—then a mixed-motives analysis would be unnecessary unless there were other evidence

connecting those threats to the Petitioners’ family membership.

That, however, is not what happened here. Rather, both the gang members and the

Petitioners’ uncle Eleazar expressly connected their actions to the Petitioners’ family status. We

will therefore address each persecutor in turn.

i. Gang members

Immediately before threatening to maim and kill the Petitioners, the gang members

expressly stated that they (1) knew that the Petitioners’ parents were in the United States, and

(2) believed that Beky had refused to sell drugs because she “had money” from her U.S.-based

parents. This was a notable escalation from the gang members’ previous attempts to entice Beky

into selling drugs, during which they said only that she “could make money.” It was also the

first time that the gang members had mentioned the Petitioners’ family situation.

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 22

The BIA nevertheless concluded that “the gang members were motivated by financial

gain rather than an animus toward [the Petitioners’] family” because “the gang members never

identified the [Petitioners] by name or said anything to indicate that they knew who they were or

that they belonged to the Rodas[] family.” There are several problems with the BIA’s analysis.

First, the BIA’s determination that the sole reason for the persecution was “financial

gain” is undercut by the fact that the gang members never attempted to extort or demand money

directly from the Petitioners. Financial gain could certainly have been one reason—and perhaps

even a “central reason”—why the gang was targeting the Petitioners. But just as the

simultaneous existence of a personal dispute does not eliminate a nexus between the harm

suffered and a protected ground, see Bi Xia Qu v. Holder, 618 F.3d 602, 608 (6th Cir. 2010),

neither does the existence of a pecuniary motive. And the BIA never explains why, if the gang

members’ only possible reason for threatening the Petitioners was financial gain, they would

entrust Beky with drugs to sell rather than simply demand money from her, especially when they

believed that “[she] had money” because her parents were in the United States. The BIA instead

“found one motive”—financial gain—“and prematurely ended its analysis there” without ever

addressing whether that motive was “inextricably intertwined” with a protected ground, or

whether there were other reasons for the persecution. See Sebastian-Sebastian, 87 F.4th at 848.

Even before Sebastian-Sebastian, this court had warned the BIA against assuming that a

persecutor’s motives are solely financial without conducting a mixed-motives analysis. The

persecutors in Skripkov v. Barr, 966 F.3d 480 (6th Cir. 2020), “were upset with [the applicant]

because he refused to go along with their corruption scheme and reported them, which caused

them to lose money.” Id. at 486. Based on these facts, the IJ found that the persecutors were

motivated solely by pecuniary reasons. Id. This court, however, held that such a conclusion

“fail[ed] to take into account the obvious connection between the officers’ corrupt scheme and

[the applicant’s] anticorruption activities.” Id. This “obvious connection” presented “a classic

mixed-motive case where a petitioner’s alleged persecutors are motivated both by a protected

ground and other, nonprotected grounds, such as personal pecuniary gain.” Id. at 486–87.

And whereas the persecutors in Skripkov did not specifically reference the applicant’s

political opinions or otherwise indicate that they saw him as a political activist, see generally id.,

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 23

the connection to a protected ground was explicit here. The gang members themselves expressly

premised their threats on the assumption that Beky was refusing to sell drugs for the gang

because she, as a member of the Rodas family, was receiving money from her U.S.-based

parents. Thus, just as the corrupt officers in Skripkov “lost money precisely because of [the

applicant’s] political opinion against corruption,” the gang members believed that they had been

unable to recruit Beky (and thus increase their drug-selling revenue) “precisely because of”

Beky’s familial relationship with her parents. See id.

None of the cases cited by the government involve the unusual case of a persecutor

expressly discussing a protected ground immediately before engaging in persecution. At best,

Cruz-Guzman v. Barr, 920 F.3d 1033 (6th Cir. 2019), involved members of a gang who, while

attacking the applicant’s mother for failing to meet their extortionary demands, threatened to

rape her daughter (the applicant’s sister) and indicated that they knew the applicant was in the

United States. Id. at 1037. But in the context of extorting the applicant’s mother, this mention of

the applicant living in the United States was more likely an explanation for why the gang

believed that the mother had the money to pay. And given that the gang members did not appear

to follow through on their threats to rape the applicant’s sister after the mother fled, we cannot

say that a passing reference to an applicant during the persecution of a relative is equivalent to

what the Petitioners in this case experienced.

In contrast, Perez Vasquez v. Garland, 4 F.4th 213 (4th Cir. 2021), is squarely on point.

That case involved an applicant who “credibly testified that when the gang first contacted her to

demand extortion payments, they told her that they knew she traveled . . . every month to

withdraw money that her husband sent to her from the United States.” Id. at 225. The Fourth

Circuit explained that, in such a scenario, “even if the gang was motivated by monetary gain, that

reason was inevitably intertwined with Petitioner’s familial relationship to her husband” because

“the gang . . . threatened her and her daughter with death, while explicitly stating that they knew

[that] she received money every month from her husband in the United States.” Id. at 225–26.

The gang members in this case similarly threatened the Petitioners with maiming and

death while explicitly stating that they knew that the Petitioners’ parents were in the United

States and allegedly sending them money. Their decision to escalate their efforts into death

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 24

threats—rather than simply continue to entice Beky—therefore appears to be motivated by their

perception of her as both (1) less susceptible to financial incentives because her parents were in

the United States, and (2) more vulnerable to threats of violence because her parents were not in

Guatemala. Given this “overall context of the [applicants’] situation,” see Sebastian-Sebastian,

87 F.4th at 847 (citation omitted), the BIA must consider on remand whether, “even if the gang

was motivated by monetary gain, that reason was [inextricably] intertwined with [the

Petitioners’] familial relationship” to their parents and thus their family-based PSG, see Perez

Vasquez, 4 F.4th at 225.

ii. Eleazar

In addition to the gang members, the Petitioners also asserted that they had a well-

founded fear of future persecution from their uncle Eleazar. Beky credibly testified that Eleazar

had harmed and perhaps raped a female cousin with whom the Petitioners had lived, and the IJ

described Eleazar as a “pedophile” both in her written opinion and during the course of the

proceedings. The BIA upheld the IJ’s determination that “the respondents were not and will not

be targeted by the gangs or their uncle because of their membership in a [PSG], or any other

protected ground.” And in affirming the IJ’s denial of withholding of removal, the BIA stated

that, “[w]hile the [Petitioners’] uncle previously harmed their cousin and became ‘upset’ that the

[Petitioners] left Guatemala, the Immigration Judge concluded without clear error that this

evidence is insufficient to establish that he will target them based on their family membership.”

Where, as here, the BIA “merely paraphrased the IJ’s findings and expressly concurred

with [the IJ’s] decision,” we “review the decision of the IJ while considering any additional

analysis by the BIA.” Ventura-Reyes v. Lynch, 797 F.3d 348, 358 (6th Cir. 2015). In

characterizing Eleazar as merely being “upset”, the IJ—and thus the BIA when it “discern[ed] no

clear error”—failed to consider all of the relevant evidence in the record. See Juan-Pedro

v. Sessions, 740 F. App’x 467, 470 (6th Cir. 2018) (holding that IJs and the BIA cannot adopt a

“myopic view of the record” and “ignore[] declarations and other materials” that tie a

persecutor’s actions to a protected ground).

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 25

The BIA’s myopic finding that Eleazar “was upset” that Beky was in the United States

was based on Ovidio’s statement, but Ovidio also mentioned that he “learned that [Eleazar]

hoped to kidnap the [Petitioners] and hold them for ransom.” Furthermore, Ovidio explained

that Eleazar, who “has harmed many girls,” also “could kidnap [the Petitioners] because

their parents, myself and Elodia, are in the U.S.” And being kidnapped and held for ransom—

especially by a pedophile—obviously constitutes persecution. See, e.g., Kaur v. Wilkinson,

986 F.3d 1216, 1223 (9th Cir. 2021) (“Similarly, because kidnapping involves the extreme loss

of bodily autonomy, attempted kidnapping can constitute persecution.”).

The IJ acknowledged these facts in the portion of her opinion summarizing Ovidio’s

statement, but then failed to take them into account in her analysis. Her written opinion provided

no explanation as to why she believed Eleazar was targeting the Petitioners and, at

most, appeared to assume that Eleazar’s motives were solely because of his pedophilia. But a

pedophile, like any other persecutor, can have multiple reasons for his actions, and nothing

suggests that Eleazar was sexually assaulting all of the children in town indiscriminately.

Rather, the only child identified in the record as being harmed by Eleazar was one of the

Petitioners’ cousins who, like the Petitioners, is a member of the Rodas family.

And in contrast to the IJ’s assumption that Eleazar was “upset” solely because he wanted

to sexually assault the Petitioners, Ovidio stated that Eleazar was in fact “hop[ing] to kidnap

[them] and hold them for ransom” specifically “because their parents, myself and Elodia, are in

the U.S.” Thus, even if the Eleazar were planning to sexually assault the Petitioners once he

kidnapped them, the IJ and the BIA erred in simply finding that he had only one possible motive

(pedophilia) “and prematurely en[ding] [their] analysis there” without considering whether he

might have other reasons for targeting the Petitioners in particular. See Sebastian-Sebastian

v. Garland, 87 F.4th 838, 848 (6th Cir. 2023) (cleaned up).

We see no meaningful distinction between Eleazar and the persecutor in Bi Xia Qu, who

kidnapped the applicant in part to pressure the applicant’s father to repay a debt. 816 F.3d at

608. Nor is there any difference between Eleazar and the persecutor in Perez Vasquez, who

targeted the applicant to obtain the money that the applicant was receiving from her husband in

the United States. 4 F.4th at 225. As in Perez Vasquez, even if Eleazar was motivated in large

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 26

part because of his pedophilia and greed, those reasons are “[inextricably] intertwined” with the

Petitioners’ family membership because he was targeting them—rather than other children—

specifically because of their relationship to their U.S.-based parents. See id. The BIA therefore

must address on remand whether the Petitioners’ family status “underlay all of [Eleazar’s]

actions.” See Sebastian-Sebastian v. Garland, 87 F.4th at 849 (cleaned up).

d. Proceedings on remand

The BIA’s “denial of relief may be affirmed only on the basis articulated in the decision.”

Daneshvar v. Ashcroft, 355 F.3d 615, 626 (6th Cir. 2004); see also Alcarez-Rodriguez

v. Garland, 89 F.4th 754, 762 (9th Cir. 2023) (noting that courts “cannot affirm the BIA on a

ground upon which it did not rely”) (citation and internal quotation marks omitted). Here,

although the IJ believed that the Petitioners’ experiences were “not egregious enough to

constitute harm”, the BIA “assum[ed], without deciding, that the harm rose to the level of

persecution.” We therefore cannot affirm the BIA’s denial of the Petitioners’ appeal on the basis

of the IJ’s “not egregious enough” conclusion.

Although this court has, on rare occasions, upheld the BIA’s decision “on the basis of

harmless error if the petitioner’s prospects are otherwise so weak that there is no reason to

believe . . . remand might lead to a different result,” Abdulahad v. Garland, 99 F.4th 275, 295

(6th Cir. 2024), this is not one of those rare instances. Threats alone typically do not amount to

persecution, but “immediate and menacing” threats can be sufficient even if they are

unaccompanied by other harm or punishment. Japarkulova v. Holder, 615 F.3d 696, 701

(6th Cir. 2010). And, as this and other courts have held, “immigration judges should consider the

age of a child applicant when assessing whether he or she suffered persecution or legitimately

fears future persecution.” Nabhani v. Holder, 382 F. App’x 487, 492 (6th Cir. 2010); see also

Zhang v. Gonzales, 408 F.3d 1239, 1247 (9th Cir. 2005) (“[T]he harm a child fears or has

suffered . . . may be relatively less than that of an adult and still qualify as persecution.” (citation

omitted)); Kholyavskiy v. Mukasey, 540 F.3d 555, 571 (7th Cir. 2008) (“[T]he BIA had an

obligation to evaluate the impact of [the harm] on a child between the ages of eight and

thirteen.”).

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 27

Here, nothing suggests that the IJ accounted for the Petitioners’ young ages in concluding

that they were not persecuted. Nor did she consider whether children whose cousins had been

kidnapped by gang members would have reasonably found the gang’s threats to be particularly

“immediate and threatening.” See Japarkulova, 615 F.3d at 701. And the IJ’s statement that a

gang member merely “grabbed either Beky or Engly by the hand” minimizes the fact that the

gang (1) forcibly separated the Petitioners, (2) “grabbed [the Petitioners’] hands behind [their]

back” so they could not escape, and (3) refused to release them until Beky agreed to their

demands. We therefore cannot say that the threats in this case, combined with the forced

separation of the Petitioners, are so unlikely to be “immediate and threatening”—especially in

light of the Petitioners’ young ages—as to warrant affirming on the basis of harmless error. On

remand, the BIA may either address the persecution question itself or remand to an IJ for further

consideration, but it must do so in accordance with the caselaw discussed above.

We also note that neither the IJ nor the BIA addressed whether the Guatemalan

government was unable or unwilling to control the Petitioners’ persecutors. Although the IJ

concluded that the Guatemalan government would not acquiesce to torture in denying protection

under the Convention Against Torture (CAT)—a form of relief that the Petitioners did not in fact

seek—the “unable or unwilling” standard for asylum and withholding of removal is less

demanding than the “acquiescence” standard for CAT. See, e.g., Azanor v. Ashcroft, 364 F.3d

1013, 1019 (9th Cir. 2004) (acknowledging that “consent or acquiescence” as required by the

CAT involves more than showing only “that public officials would be merely unable or

unwilling to prevent torture by private parties”); Mouawad v. Gonzales, 485 F.3d 405, 413 (8th

Cir. 2007) (“A government does not acquiesce in the torture of its citizens merely because it is

aware of torture but powerless to stop it, but does cross the line into acquiescence when it shows

willful blindness toward the torture of its citizens by third parties.”) (citations and internal

quotation marks omitted).

The question of whether the Guatemala government was unwilling or unable to control

the Petitioners’ persecutors is thus a question that the BIA should remand to an IJ. See 8 C.F.R.

§ 1003.1(d)(3)(iv)(A) (“The Board will not engage in factfinding in the course of deciding

cases[.]”); see also Turcios-Flores v. Garland, 67 F.4th 347, 358–59 (6th Cir. 2023) (noting that

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 28

“the IJ should make [factual determinations] in the first instance”). Given that the IJ in this case

spent much of the proceedings repeatedly emphasizing her contempt for and hostility towards the

Petitioners’ mother, this case is one in which assignment to a different IJ on remand is

appropriate. See Mapouya v. Gonzales, 487 F.3d 396, 415–16 (6th Cir. 2007) (instructing the

BIA to assign the case to a different IJ even where the applicant did not argue that the IJ was

biased); see also Serrano-Alberto v. Attn’y Gen., 859 F.3d 208, 226 (3d Cir. 2017) (urging

assignment to a different IJ because “[c]onduct by an Immigration Judge that can be perceived as

bullying or hostile can have a chilling effect on a respondent’s testimony and thereby limit his or

her ability to fully develop the facts of the claim”) (citing Matter of Y-S-L-C-, 26 I.&N. Dec. 688,

690 (B.I.A. 2015)). But because the Petitioners did not exhaust their challenge to the IJ’s

determination that “Guatemalan female children without parental protection” is not cognizable,

any such remand is limited to their claims based on their membership in the Rodas family.

2. Withholding of removal

Finally, we turn to the Petitioners’ withholding-of-removal claims. This court has

recognized that, “[w]hereas an asylum claim requires that a statutorily protected ground be ‘at

least one central reason’ for alleged persecution, a withholding of removal claim requires only

that a statutorily protected ground be ‘a reason’ for alleged persecution.” Sebastian-Sebastian

v. Garland, 87 F.4th 838, 851 (6th Cir. 2023) (internal citations omitted). And given that “‘a

reason’ is different from—and weaker than—‘a central reason,’” an applicant who has satisfied

the nexus requirement for asylum necessarily satisfies the less stringent nexus requirement for

withholding of removal. Guzman-Vazquez v. Barr, 959 F.3d 253, 272 (6th Cir. 2020).

The BIA must, for the reasons discussed previously, apply a mixed-motives analysis to

determine whether the Petitioners’ family membership was “one central reason” for their

persecution. See Part II.D.1, supra. And because the “a reason” standard is less demanding than

the “one central reason” standard, the BIA must similarly reconsider whether the Petitioners have

satisfied the nexus requirement for withholding of removal.

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 29

III. CONCLUSION

For all of the reasons set forth above, we GRANT the Petitioners’ petition for review in

part, DISMISS it in part, VACATE the BIA’s denial of the Petitioners’ application for asylum

and withholding of removal, and REMAND for reconsideration consistent with this opinion.

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 30

___________________________

CONCURRING/DISSENTING

___________________________

GRIFFIN, Circuit Judge, concurring in part and dissenting in part. I agree that we must

dismiss in part the petition for review because petitioners exhausted neither their due process

claim nor their challenge concerning the particularity of their proposed “Guatemalan female

children without parental protection” social group, and therefore I join Sections II.B. and II.C. of

the majority opinion. However, I respectfully dissent from the majority opinion’s resolution of

the asylum and withholding-of-removal claims set forth in Section II.D. In my view, under the

substantial-evidence standard, we should uphold the BIA’s ruling that petitioners failed to

establish a sufficient nexus between their persecution and their family membership to advance

their claims. Because I would deny the petition for review as to those issues, I would not remand

and thus concur in part and dissent in part.

I.

A.

We review the immigration court’s factual findings—including the nexus determination

here concerning the “Rodas-Ramirez family” particular social group—for substantial evidence.

See Turcios-Flores v. Garland, 67 F.4th 347, 357 (6th Cir. 2023). Under this highly deferential

standard, we may not disturb the BIA’s nexus finding unless the record compels a conclusion

that petitioners’ kinship motivated the gang and their uncle to persecute them. See id. at 353–54,

357. Put differently, “to say that the Board could find circumstantial proof of persecution in a

given case is not to say that it must, and we can only reverse the Board if the latter is true.”

Cruz-Guzman v. Barr, 920 F.3d 1033, 1037 (6th Cir. 2019) (internal quotation marks omitted).

In my view, the record evidence does not compel a nexus conclusion in petitioners’ favor.

Begin with the gang’s treatment of petitioners. Beky testified that she interacted with

gang members three times. On the first and second occurrences, gang members approached her

on her way to school and asked if she wanted to “make money” by “help[ing] them sell candy,”

which she knew was code for drugs. She knew that “other girls” did so for the gang, but she

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 31

declined. On the third instance, the demand was the same (sell drugs), but the delivery was not.

Gang members stopped Beky and Engly, separated the two, held their hands behind their backs,

and said that “they knew why [Beky] didn’t want to” sell drugs—because, in her words, “my

parents were [in the United States] . . . [and] we had money.” They told Beky that if she did not

start selling drugs, she and her sister “would turn up with [their] tongues cut.” Engly’s written

statement in support is of a piece: “[The gang] told her that . . . they [knew] why she didn’t want

to earn money, they thought that because our parents were living in the U.S.”

Next consider the evidence concerning their uncle, Eleazar (an alleged gang member).

Beky testified that her uncle “tried to hurt” one of her cousins, Marleni, but she did not know “if

[Marleni] was raped or not.” Petitioners’ father, Ovidio, submitted a statement claiming that

Eleazar “was upset that . . . Beky was in the United States,” which he interpreted as meaning that

Eleazar “had plans to harm her and was upset he didn’t get to bring those plans to completion.

[Ovidio] also learned that [Eleazar] hoped to kidnap the girls and hold them for ransom.” And

Ovidio attested that “Eleazar has harmed many girls and also could kidnap [petitioners] because

their parents . . . are in the U.S.”

With respect to the gang members, the BIA concluded this evidence demonstrates that the

gang targeted petitioners “for personal reasons and criminal activity and they have not shown

that one of the reasons they were harmed or have reason to fear harm in the future is a protected

ground.” That is, “the gang members were motivated by financial gain rather than an animus

towards [their] family. . . . [T]he gang members never identified [petitioners] by name or said

anything to indicate that they knew who they were or that they belonged to the Rodas-Ramirez

family.” The BIA acknowledged the gang members linked their threat to the family staying in

the United States but still found that purported link insufficient because it did “not establish that

the gang members had the intent to overcome [petitioners]’ temporary lack of supervision.” As

for petitioners’ uncle, the BIA found that Eleazar’s prior infliction of a harm on a relative did not

establish a causal connection to their entire family and that he did not, and would not, target

them because of their familial status.

This record does not compel a conclusion to the contrary, as it is lacking evidence

that the gang and/or petitioners’ uncle “were motivated by a particular animus toward the

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 32

[Rodas-Ramirez] family itself, as opposed to an ordinary criminal desire for financial gain.”

Id. In other words, substantial evidence demonstrates that harming petitioners’ family was “a

means to achieve some other goal, not an end in itself,” which “does not constitute persecution

on account of family membership.” Majano-De Hernandez v. Barr, 777 F. App’x 810, 812

(6th Cir. 2019) (internal quotation marks omitted). Or, as we said in Lopez-Arias v. Barr,

“substantial evidence in the record indicates that [they were] targeted . . . as a means to access

their wealth . . . from relatives living in the United States. This finding supports a conclusion

that the . . . motivation to extort Petitioners based on their family identity was at most incidental

or tangential to the central reason for their motivation.” 777 F. App’x 793, 797 (6th Cir. 2019).

In sum, our caselaw makes clear that it is petitioners’ burden to establish that their

membership in a particular social group served as “one central reason” for the persecution,

Turcios-Flores, 67 F.4th at 357 (citing 8 U.S.C. § 1158(b)(1)(B)(i)), and we may not disturb the

BIA’s no-nexus finding unless the record compels a conclusion otherwise, id. at 353–54. Indeed,

in other instances of gang persecution, we have upheld such a no-nexus determination when

there was “insufficient evidence that any gang member held any particular animus against [an

asylum seeker’s] family based on some unique family characteristic.” Id. (emphasis added and

citation omitted). Here, the lack of any evidence demonstrating animus toward the petitioners’

family because of their family’s status dooms petitioners’ claims.

B.

The majority opinion charts a different course, largely following the Fourth Circuit’s

decision in Perez Vasquez v. Garland, 4 F.4th 213 (4th Cir. 2021). It emphasizes, for example,

that gang members did not directly extort or demand money from petitioners, that gang members

were generally aware that petitioners’ parents lived in the United States, and that gang members

issued their first and only threat to petitioners upon learning that their family lived in the United

States. And it places much weight on their uncle’s threat to kidnap petitioners and hold them for

ransom—which the majority opinion assumes would be paid by petitioners’ parents.

But that analysis conflates the social groups at issue. It is well established that

“belong[ing] to a group that is perceived . . . as having ready access to funds because of familial

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 33

ties [to] the United States” is insufficient to establish persecution on account of familial status.

See, e.g., Sanchez-Robles v. Lynch, 808 F.3d 688, 692 (6th Cir. 2015). The proposed social

group at issue here is petitioners’ family, and there is nothing in the record to compel the

conclusion that the gang or petitioners’ uncle was motivated by anything more than monetary

gain. Indeed, the opposite is true, for one can reasonably infer the gang was motivated to make

money when members demanded that Beky sell drugs for its benefit; its subsequent violent

threats in response to Beky’s refusal was, in my view, still just a “mean[]” and not an “end.” See

Majano-De Hernandez, 777 F. App’x at 812 (emphasis omitted). The same can be said for the

uncle, who allegedly stated he wanted to “hold them for ransom” but did not connect that threat

to the Rodas-Ramirez family.

The majority opinion also leverages the uncle’s alleged rape of another cousin, but

“absent a pattern of persecution tied to the [petitioners], acts of violence against family members

do not necessarily demonstrate a well-founded fear of persecution.” Akhtar v. Gonzalez,

406 F.3d 399, 405 (6th Cir. 2005) (citation omitted). It is also not correct to assert that the IJ

“appeared to assume that Eleazar’s motives were solely because of his pedophilia.” Rather, the

IJ wrote:

Even if the vague threats Eleazar made in reference to them constituted harm, the

evidence does not show that they were made to overcome Respondents’

membership in the Rodas-Ramirez family. Eleazar did harm [Marleni], yes. But

neither Respondent is [Marleni]. And simply because a member of a family has

been harmed in the past does not mean that they—or any other family members—

were targeted based on that membership.

Stated differently, the IJ concluded petitioners failed to demonstrate “that Eleazar targeted them

based on their family membership.” The IJ’s subsequent reference in a footnote that “a

pedophile’s presence in one’s family creates an opportunity for abuse” just provides a possible

explanation for why abuse occurs. It is by no means is a finding that pedophilia motivated

Eleazar’s threats.

Nor does Sebastian-Sebastian v. Garland dictate a remand to consider a mixed-motives

analysis. 87 F.4th 838 (6th Cir. 2023). There, we concluded that the BIA could have found a

nexus to the petitioner’s social groups and thus remanded for it to conduct a mixed-motives

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 34

analysis in light of its erroneous prior decision that the persecutor’s motives were personal (and

thus “inextricably intertwined” with her particular social groups). Id. at 849–50. But here,

without any evidence linking the persecutors’ “personal disputes” to petitioners’ family because

of their family’s status—and which therefore does not rise to the level of a “central reason” for

persecution—the BIA correctly concluded asylum was inappropriate. See Zoarab v. Mukasey,

524 F.3d 777, 781 (6th Cir. 2008); see also Sagastume-Hernandez v. Garland, 2022

WL 17998882, at *4 (6th Cir. Dec. 30, 2022) (“A mixed-motive analysis still requires the

petitioner to demonstrate that a protected ground motivated the persecution in part.”) (citing

Guzman-Vazquez v. Barr, 959 F.3d 253, 270, 274 (6th Cir. 2020)).

The majority opinion excuses the animus-toward-a-protected-ground requirement that is

well grounded in our caselaw, see Cruz-Guzman, 920 F.3d at 1037–38, asserting instead that

some of our older cases have “recognized that a mixed-motives analysis might be warranted even

where a persecutor (1) has not demonstrated any animus or hostility towards the applicant’s

specific PSG, or (2) targets an applicant as a means to accomplishing some other end.” I

read those cases differently. In each, just like in Sebastian-Sebastian, we concluded that the

record also supported a nexus finding. See Bi Xia Qu v. Holder, 618 F.3d 602, 608 (6th Cir.

2010); Al-Ghorbani v. Holder, 585 F.3d 980, 997–98 (6th Cir. 2009); Kamar v. Sessions, 875

F.3d 811, 818 (6th Cir. 2017). Factual differences in those cases do not license altering our

precedent to the contrary.1

II.

The majority opinion also orders a reconsideration concerning petitioners’

withholding-of-removal claim based on its conclusion that the record compels a finding that

petitioners demonstrated “one central reason” for persecution. See, e.g., Guzman-Vasquez, 959

F.3d at 272–73 (withholding-of-removal claim need only demonstrate the protected social group

was “a reason”). I agree petitioners’ success on this claim rises or falls with the nexus issue.

And it should fall here for the reasons set forth above.

1

And relatedly, those cases do not permit instructing the BIA that its recent Matter of M-R-M-S- decision—

which was issued after the BIA ruled in this matter and arises under the law of the Tenth Circuit—is not good law.

28 I. & N. Dec. 757 (B.I.A. 2023). Because the majority opinion concludes a remand is in order, it is only prudent

that the BIA be the first body to address the impact of M-R-M-S- on this case.

No. 21-4064 Mazariegos-Rodas, et al. v. Garland Page 35

III.

For these reasons, I would dismiss in part and deny in part the petition for review.