Corpeno-Romero v. Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CANDELARIA DE LOS ANGELES No. 23-576

CORPENO-ROMERO; JAVI

Agency Nos.

ALEXANDER CORNEJO-

A215-944-680

CORPENO,

A215-944-681

Petitioners,

OPINION

v.

MERRICK B. GARLAND, Attorney

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted May 17, 2024

San Francisco, California

Filed October 22, 2024

Before: Sidney R. Thomas, Consuelo M. Callahan, and

Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge Sanchez;

Partial Dissent and Partial Concurrence by Judge Callahan

2 CORPENO-ROMERO V. GARLAND

SUMMARY*

Immigration

Granting in part and denying in part a petition for review

of a decision of the Board of Immigration Appeals, and

remanding, the panel held that petitioners Candelaria De Los

Angeles Corpeno-Romero and her child Javi Alexander

Cornejo-Corpeno both established that they suffered harm

rising to the level of persecution and that such harm was on

account of a protected ground.

The panel held that the record compelled the conclusion

that members of the M-18 gang who murdered Javi’s father

Carlos were willing and capable of doing the same to Javi

and Candelaria. Javi’s persecution began soon after the men

who had murdered his father were released from prison,

when members of M-18 began following Javi from school to

his home and threatening to kill him and Candelaria. The

threat was not idle, as one of the men who threatened Javi’s

life was the same person who had been convicted of

murdering his father, and Candelaria testified credibly that

M-18 held a grudge against the family due to their perceived

cooperation with the police after Carlos’s murder. And days

after M-18’s death threat, armed men broke into Javi and

Candelaria’s home “looking for someone.” The panel

explained that a petitioner need not wait for the threat of

violence to materialize where death threats are specific,

menacing, and credible.

*

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

been prepared by court staff for the convenience of the reader.

CORPENO-ROMERO V. GARLAND 3

The panel held that the agency erred by failing to assess

whether M-18’s death threat caused Javi significant actual

suffering or harm. By not addressing uncontradicted

evidence that Javi currently experiences post-traumatic

stress disorder from having his life threatened by the men

who murdered his father, the agency ignored the actual harm

Javi continues to suffer from his experience.

The agency also erred by failing to consider Javi’s

experience from the perspective of his relatively young

age. In light of the specific and menacing nature of M-18’s

death threat against Javi by men involved in the murder of

his father, the violent near-confrontation at Javi and

Candelaria’s home by armed men soon thereafter, and the

significant emotional trauma that Javi experienced as a

fourteen-year-old and continues to endure, the record

compelled a finding of past persecution.

The panel concluded that the agency also erred by

treating M-18’s two alleged motives—targeting Javi to

increase the size of M-18 and targeting him because of his

status as Carlos’s son—as mutually exclusive, and in failing

to acknowledge the possibility of mixed motives. The

evidence compelled the conclusion that Javi’s and

Candelaria’s relationship to Carlos was a reason of primary

importance to the gang members and was essential to their

decision to target and threaten them. Thus, petitioners met

the “one central reason” nexus standard for asylum, as well

as the weaker “a reason” standard for withholding of

removal, based on their membership in a social group

comprised of immediate family members of Carlos.

The panel remanded for the agency to determine whether

the final element of the past persecution analysis—whether

the persecution was committed by the government or by

4 CORPENO-ROMERO V. GARLAND

forces that the government was unable or unwilling to

control— was satisfied, and whether petitioners otherwise

established a well-founded fear of future persecution.

Dissenting in part and concurring in part, Judge Callahan

agreed that the BIA erred in concluding that there was an

insufficient causal nexus between Javi’s relationship to his

father and being targeted by M-18, but she disagreed that the

record compelled a finding that petitioners’ past experiences

were so extreme that they constituted persecution. First, the

agency’s failure to mention certain factors did not

necessarily mean they failed to consider them. Additionally,

the majority improperly diverted focus from the conduct of

the perpetrator to petitioner’s claimed subjective

psychological harm. Moreover, the majority supplanted the

BIA’s substantially supported view of the facts with its own

preferred version of the facts, thereby exceeding the

“carefully circumscribed” bounds of this court’s substantial

evidence review of BIA decisions.

COUNSEL

Sean P. Perdomo, I, (argued), Bay Area Immigration, San

Francisco, California; Mario Salgado, Salgado & Associates

PA, San Francisco, California; for Petitioner.

Zachary S. Hughbanks (argued), Trial Attorney; Timothy B.

Stanton, Senior Trial Attorney; Sheri R. Glaser, Senior

Litigation Counsel; Brian M. Boynton, Principal Deputy

Assistant Attorney General; United States Department of

Justice, Civil Division/Office of Immigration Litigation,

Washington, D.C.; for Respondent.

CORPENO-ROMERO V. GARLAND 5

OPINION

SANCHEZ, Circuit Judge:

Candelaria De Los Angeles Corpeno-Romero and her

child Javi Alexander Cornejo-Corpeno (“Petitioners”) seek

review of a decision of the Board of Immigration Appeals

(“BIA”) ordering them removed to El Salvador. The BIA

affirmed the immigration judge’s (“IJ”) denial of

Petitioners’ applications for asylum, withholding of

removal, and protection under the Convention Against

Torture (“CAT”). We have jurisdiction under 8 U.S.C.

§ 1252. We grant the petition in part, deny the petition in part,

and remand to the BIA for further proceedings consistent with

this opinion.1

I.

Candelaria and her son Javi arrived in the United States

in 2018. The Department of Homeland Security (“DHS”)

initiated removal proceedings against them in September of

that year. Candelaria and Javi conceded removability and,

in July 2019, filed applications for asylum, withholding of

removal, and CAT protection.

At the removal hearing, Candelaria and Javi presented

evidence about their experience in El Salvador before

coming to the United States. The evidence in the record

consists of the testimony of Candelaria, Javi, and licensed

clinical social workers who provided expert testimony about

1

In this opinion, we address the agency’s determination of no past

persecution and its application of the nexus standard with regard to

Petitioners’ asylum and withholding of removal claims. We address

Petitioners’ other arguments and claims in an unpublished memorandum

disposition filed concurrently with this opinion.

6 CORPENO-ROMERO V. GARLAND

Javi’s current psychological condition. We summarize the

evidence in the record and the agency’s decisions below.2

A.

We begin with the testimony of Candelaria, which went

uncontested by DHS and was accorded “full evidentiary

weight” by the IJ. Because the agency found Candelaria

credible, her “statements must be taken as true” for purposes

of this appeal. Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th

Cir. 2021) (quoting Mendez-Gutierrez v. Gonzales, 444 F.3d

1168, 1171 (9th Cir. 2006)). Candelaria testified that she

had three children in El Salvador—including Javi—with a

man named Carlos Rodolfo Cornejo-Montano. Carlos was

married to another woman and lived two hours away but was

involved in Candelaria’s children’s lives.

In August 2010, Javi’s father Carlos was shot and killed

by members of the M-18 gang after he stopped making

extortion payments. Carlos’s sister asked Candelaria to go

with her to the police station to identify the men whom

police had detained on suspicion of killing Carlos. At the

station, police identified two men through one-way glass as

members of M-18. Candelaria noticed that one of the men

was tall, thin, bearded, and had a large “18” tattooed on the

2

The agency referred to Candelaria as the “lead respondent” and noted

that Javi was named as a derivative beneficiary on her asylum application

and also filed a separate Form I-589 on his own behalf. “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.” Tchoukhrova v. Gonzales, 404 F.3d

1181, 1192 (9th Cir. 2005) (collecting cases), cert. granted, judgment

vacated on other grounds, 549 U.S. 801 (2006). Consistent with this

“pragmatic” approach, the agency analyzed Candelaria’s and Javi’s

claims together. We follow the same approach here.

CORPENO-ROMERO V. GARLAND 7

left side of his neck. Carlos’s sister later told Candelaria that

M-18 members had demanded that Carlos’s family withdraw

any report made to the police about Carlos’s murder. The

gang threatened to kill Carlos’s family for cooperating with

the police, which forced the family to flee their hometown.

The two men were convicted and sentenced to long prison

terms.

In July 2018, the men convicted of murdering Carlos

were released from prison. Around the same time, M-18

gang members began to harass Javi, who was then fourteen

years old. On three separate occasions, M-18 gang members

followed Javi as he left school and rode the bus home. The

men would stay on the bus until Javi got off at his stop and

then disappear.

On the third occasion, M-18 gang members surrounded

Javi and grabbed him while waiting for the bus. The men

demanded that Javi join their gang or else they would kill

him, Candelaria, and his family. Candelaria testified that the

men threatened Javi and his family and “told him that they

had already investigated and found out that he was the son

of [Chicharron],” Carlos’s nickname. According to

Candelaria, the men told Javi that they “knew everything

about him” and called Javi the “faggot son” of Carlos. Javi

managed to free himself and run to the safety of other people.

When Javi arrived home, he was “frightened,” “terrorized,”

and crying, and he begged Candelaria not to send him to

school anymore.

Several days later, while Candelaria was selling food

from her street cart with Javi, two men walked by and stared

at them. Javi told Candelaria that these were the same men

who had followed him after school and confronted him.

Candelaria immediately recognized one of the men as the

8 CORPENO-ROMERO V. GARLAND

gang member she had seen at the police station with a large

“18” tattoo on the side of his neck—the same person who

was later convicted of killing Carlos. Candelaria believed

that M-18 held a “grudge” against Carlos’s family—

including Javi—because of the family’s perceived

cooperation with the police after Carlos’s murder. She took

Javi and fled five hours north to her sister’s house.

Once there, Candelaria heard from a neighbor that armed

men had broken into her home. The neighbor called

Candelaria “to tell [her] that some men had entered [her]

house, they were armed and they were looking for

someone.” At that point, Candelaria decided that Javi was

no longer safe in El Salvador, and she fled north to the

United States with him.

In support of Petitioners’ applications for asylum,

withholding of removal, and CAT protection, Javi submitted

a declaration which the IJ found consistent with Candelaria’s

testimony. In the declaration, Javi stated that he was “not

really sure” why the M-18 members targeted him, and he

explained that he fled El Salvador with his mother because

he “did not want to be murdered” like his father.

Petitioners also submitted a letter signed by two licensed

clinical social workers that summarized a “comprehensive

mental health evaluation” of Javi. The evaluation concluded

that “Javi’s experience of having his life threatened after

losing his father has left a profound psychological impact”

which “meets criteria for diagnosis of Post-Traumatic Stress

Disorder (PTSD).” The evaluation stated that, since leaving

El Salvador, “Javi has experienced regular nightmares and

flashbacks involving the men who threatened him” and

otherwise “exhibits significant post-trauma symptomology.”

CORPENO-ROMERO V. GARLAND 9

B.

An immigration judge resolved Petitioners’ claims

together in an oral decision dated August 1, 2019. The IJ

analyzed Candelaria’s testimony “for consistency,

specificity, and persuasiveness” at the hearing, found that

she testified “credibly,” and accorded her testimony “full

evidentiary weight.” Similarly, both DHS and the IJ

accepted Petitioners’ offers of proof that Javi and the expert

witnesses would testify consistently with their written

statements, and DHS declined to cross-examine them.

Candelaria and Javi claimed they were persecuted in El

Salvador by the M-18 gang and fear further harm upon

removal to El Salvador based upon their status as immediate

family members of Carlos Rodolfo Cornejo-Montano,

among other particular social groups.

The IJ denied Petitioners’ asylum and withholding of

removal claims on the ground that they did not establish past

persecution or a well-founded fear of future persecution in

El Salvador on account of a protected ground. The IJ

concluded that the cumulative harm—which, in the IJ’s

view, amounted to “one incident of Javi being confronted by

some alleged gang members where they did not physically

harm him” as well as an unfulfilled threat—did not amount

to past persecution. The IJ then held that Candelaria and Javi

did not establish an objectively reasonable fear of future

persecution because the harm they feared was one of

“generalized violence” from “criminal elements,” as

opposed to harm on account of a statutorily protected

ground.

The BIA dismissed Petitioners’ appeal and affirmed the

IJ’s decision in an unpublished decision. The BIA upheld

the denial of their claims for asylum and withholding of

10 CORPENO-ROMERO V. GARLAND

removal on the ground that they failed to establish past

persecution or the nexus requirement. The BIA agreed with

the IJ that their experiences in El Salvador, even considered

cumulatively, did not rise to the level of past persecution. As

for nexus, the BIA assumed that the particular social group

comprised of the “family of Carlos Rodolfo Cornejo-

Montano” was cognizable but nevertheless concluded that

Candelaria’s and Javi’s familial status was not “one central

reason” or even “a reason” for their persecution. The BIA

found that “the gang members’ unsuccessful attempt to

recruit [Javi] does not establish a motivation to punish him

or [Candelaria] for their family membership but rather a

desire to enlist a new gang member into their ranks.” This

petition for review followed.

II.

Our review is limited to the BIA’s decision, except to the

extent it expressly adopts the IJ’s opinion. See Singh v.

Garland, 97 F.4th 597, 602 (9th Cir. 2024) (quoting

Soriano-Vino v. Holder, 653 F.3d 1096, 1099 (9th Cir.

2011)). We review the agency’s factual findings for

substantial evidence and legal questions de novo. See

Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020).

Where, as here, the BIA determines whether the

petitioner’s past harm rose to the level of persecution, we

have held alternatively that the BIA’s determination is

reviewed de novo or for substantial evidence. See, e.g.,

Kaur, 986 F.3d at 1221 (reviewing de novo); Sharma v.

Garland, 9 F.4th 1052, 1060 (9th Cir. 2021) (reviewing for

substantial evidence). We need not address which standard

should apply because we conclude that the harm suffered by

Javi and Candelaria rose to the level of persecution even

under the substantial evidence standard, which affords

CORPENO-ROMERO V. GARLAND 11

greater deference to the BIA’s determinations. See Singh,

97 F.4th at 603.

A.

To qualify for asylum or withholding of removal based

on a claim of past persecution, Candelaria and Javi must

show that (1) their past treatment in El Salvador rose to the

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

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

committed by the government or by forces that the

government was unable or unwilling to control. See Flores

Molina v. Garland, 37 F.4th 626, 633 (9th Cir. 2022)

(citations omitted). At the first step, the agency concluded

that Candelaria’s and Javi’s past experience in El Salvador

did not rise to the level of persecution. The agency’s

conclusion is unsupported by substantial evidence.

Persecution is an “extreme concept that means

something considerably more than discrimination or

harassment.” Sharma, 9 F.4th at 1060 (quoting Donchev v.

Mukasey, 553 F.3d 1206, 1213 (9th Cir. 2009)).

“Determining whether the facts compel a conclusion of past

persecution is ultimately a fact-bound endeavor that is not

reducible to a set formula.” Id. at 1061. In each case, “the

key question is whether, looking at the cumulative effect of

all the incidents that a Petitioner has suffered, the treatment

he received rises to the level of persecution.” Id. (citation

omitted).

Petitioners often point to threats made against them in

support of their claims of past persecution, as Candelaria and

Javi do here. To be sure, “mere threats, without more, do

not necessarily compel a finding of past persecution.” See

id. at 1062 (quoting Villegas Sanchez v. Garland, 990 F.3d

1173, 1179 (9th Cir. 2021)). That is because “[t]hreats

12 CORPENO-ROMERO V. GARLAND

themselves are sometimes hollow and, while uniformly

unpleasant, often do not effect significant actual suffering or

harm.” Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.

2003) (quoting Lim v. I.N.S., 224 F.3d 929, 936 (9th Cir.

2000)).

But not all threats are hollow. We have long recognized

that “credible death threats alone can constitute

persecution.” Duran-Rodriguez v. Barr, 918 F.3d 1025,

1028 (9th Cir. 2019) (cleaned up and emphasis added)

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

“What matters in assessing the sufficiency of the threat to

establish persecution is whether the group making the threat

has the will or the ability to carry it out.” Aden v. Wilkinson,

989 F.3d 1073, 1083 (9th Cir. 2021) (cleaned up and citation

omitted). We have “repeatedly held that threats may be

compelling evidence of past persecution, particularly when

they are specific and menacing and are accompanied by

evidence of violent confrontations, near-confrontations and

vandalism.” Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th

Cir. 2004).

In analyzing the past persecution claim, the agency

acknowledged that “death threats combined with instances

of harm may constitute persecution when made by an

individual or group capable of carrying out the threats.”

Nevertheless, the agency did not assess whether M-18 was,

in fact, capable of carrying out its death threat against

Petitioners. After reciting the underlying facts, the agency

simply said: “Although reprehensible, the facts presented by

the respondents, even when considered cumulatively, do not

rise to the level of persecution.”

We disagree. The record compels the conclusion that the

men who murdered Javi’s father were willing and capable of

CORPENO-ROMERO V. GARLAND 13

doing the same to Javi and Candelaria. Javi’s persecution

began soon after the men who had murdered his father were

released from prison. Members of M-18, a violent street

gang, located and identified Javi and began to follow him

from school to his home. These men “knew everything

about” Javi and called him the “faggot son” of Carlos. They

surrounded Javi and threatened to kill him and Candelaria.

The threat was not idle; one of the men who threatened Javi’s

life was the same person who had been convicted of

murdering his father. Candelaria testified credibly that M-

18 held a “grudge” against Carlos’s family, including Javi,

because of the family’s perceived cooperation with the

police after Carlos’s murder. And days after M-18’s death

threat, armed men broke into Javi and Candelaria’s home

“looking for someone.”

Our caselaw does not require that a petitioner wait for

the threat of violence to materialize before seeking the

protections of asylum law. “Even if an applicant does not

suffer physical violence, we have ‘consistently held that

death threats alone can constitute persecution.’” Singh v.

Garland, 57 F.4th 643, 653 (9th Cir. 2023) (quoting

Canales-Vargas v. Gonzales, 441 F.3d 739, 743–44 (9th Cir.

2006) (collecting cases)); see also Flores Molina, 37 F.4th

at 634; Kaur, 986 F.3d at 1223, 1227 (reiterating that death

threats “alone” can constitute persecution “because murder

is perhaps the ultimate threat to bodily integrity”). Here, the

death threat against Javi was specific, menacing, and

credible. The fact that M-18 repeatedly stalked Javi and,

days after threatening his life, broke into his home looking

for someone while armed, shows that “the threat of harm—

and possibly death—was imminent.” Knezevic v. Ashcroft,

367 F.3d 1206, 1212 (9th Cir. 2004) (finding past

persecution where petitioners fled their hometown because

14 CORPENO-ROMERO V. GARLAND

they “realized the threat of harm—and possibly death—was

imminent”); see also Fon v. Garland, 34 F.4th 810, 815 (9th

Cir. 2022) (“[P]ersecutors showed that they had the will or

the ability to carry out their death threat by visiting

Petitioner’s home and ransacking it.”).

The agency also failed to assess whether M-18’s death

threat caused Javi significant actual suffering or harm. We

have recognized that death threats alone may rise to the level

of past persecution “when the threats are so menacing as to

cause significant actual suffering or harm.” Duran-

Rodriguez, 918 F.3d at 1028 (citing Lim, 224 F.3d at 936).

Here, two expert witnesses evaluated Javi and concluded

that “Javi’s experience of having his life threatened after

losing his father has left a profound psychological impact,”

which “meets criteria for diagnosis of Post-Traumatic Stress

Disorder (PTSD).” They wrote that, since leaving El

Salvador, “Javi has experienced regular nightmares and

flashbacks involving the men who threatened him” and

otherwise “experiences post-trauma symptoms on a regular

basis.” The expert witnesses also documented other

“intrusive symptoms” that, taken together, “make it hard for

[Javi] to focus in school, interrupt his sleep, and make it hard

to heal as he is regularly re-experiencing the trauma.” In

failing to address uncontradicted evidence that Javi currently

experiences PTSD as a result of having his life threatened by

the men who murdered his father, the agency ignored the

actual harm Javi continues to suffer from his experience in

El Salvador.

While the dissent suggests that this court breaks new

ground by focusing on evidence of Javi’s PTSD, our cases

have long recognized that emotional and psychological

harm may constitute evidence of past persecution. In

Mashiri, 383 F.3d at 1120, we observed that

CORPENO-ROMERO V. GARLAND 15

“[p]ersecution may be emotional or psychological, as well

as physical,” citing Duarte de Guinac v. I.N.S., 179 F.3d

1156, 1163 (9th Cir. 1999) and Kovac v. I.N.S., 407 F.2d

102, 105–07 (9th Cir. 1969). The petitioner’s testimony of

the “constant fear and anxiety” she experienced from a death

threat, near-confrontation with a violent mob, and other acts

of vandalism was “compelling evidence of the emotional

trauma she endured” and compelled a finding of past

persecution. Id. at 1120‒21; see also Khup v. Ashcroft, 376

F.3d 898, 904 (9th Cir. 2004) (concluding the IJ failed to

address whether “the arrest, torture, and killing of [a] fellow

preacher, and the terror these acts would have aroused”

compelled a finding of past persecution); Mendoza-Pablo v.

Holder, 667 F.3d 1308, 1313–14 (9th Cir. 2012) (holding

that the harms suffered by a child’s family “must be

considered in assessing whether the events of his childhood

rise to the level of past persecution”). Because emotional

trauma is a form of persecution, evidence in support of such

claim may be adduced, as was here, through witness

testimony of the traumatic events in question as well as

expert testimony of its psychological after-effects.3

3

The dissent’s suggestion that evidence of emotional trauma is not

probative of a claim of persecution rests on a misreading of Antonio v.

Garland, 58 F.4th 1067 (9th Cir. 2023) and related cases. Our prior

caselaw has made clear that asylum applicants are not required to

produce evidence of lasting physical or psychological injury. See

Antonio, 58 F.4th at 1074 (“‘[W]e do not require severe injuries to meet

the serious-harm prong of the past-persecution analysis.’” (quoting Singh

v. Garland, 48 F.4th 1059, 1068 (9th Cir. 2022)); Kaur, 986 F.3d at

1225‒26 (“The BIA committed legal error by requiring Kaur to produce

additional evidence of ongoing trauma or psychological treatment to

establish a claim to past persecution.”). But that does not mean that when

such evidence of actual harm is presented, the BIA can choose to ignore

it.

16 CORPENO-ROMERO V. GARLAND

Finally, the agency failed to consider Javi’s experience

from the perspective of his relatively young age. We have

called age a “critical” factor in assessing persecution for

teenagers older than Javi, see Singh v. Garland, 57 F.4th at

654 (sixteen–eighteen-year-olds), and we have held that the

agency commits legal error when it fails to “measure the

degree of their injuries by their impact on children of their

ages.” Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1046

(9th Cir. 2007); see also Sangha v. I.N.S., 103 F.3d 1482,

1487 (9th Cir. 1997) (concluding that a fifteen-year-old boy

was persecuted when his father was beaten, and the boy was

forcibly recruited and threatened with death). The agency

committed the same legal error here, which compounded the

flaws in its past persecution analysis.

In light of the specific and menacing nature of M-18’s

death threat against Javi by men involved in the murder of

his father, the violent near-confrontation at Javi and

Candelaria’s home by armed men soon thereafter, and the

significant emotional trauma that Javi experienced as a

fourteen-year-old and continues to endure, we conclude that

the record compels a finding of past persecution.

B.

Petitioners’ past persecution claims also require them to

show a causal nexus between their persecution and a

protected ground. See Rodriguez-Zuniga v. Garland, 69

F.4th 1012, 1016 (9th Cir. 2023) (citations omitted). The

protected grounds under the Immigration and Nationality

Act (“INA”) are “race, religion, nationality, membership in

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

§ 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A).

Candelaria and Javi allege that their removal to El

Salvador would result in persecution on account of their

CORPENO-ROMERO V. GARLAND 17

status as immediate family members of Carlos Rodolfo

Cornejo-Montano, which they contend qualifies as a

“particular social group” under the INA. Below, the agency

assumed that Candelaria’s and Javi’s family membership

qualifies as a particular social group, and DHS has not

challenged that assumption on appeal. “Because we are

bound to consider only the grounds relied upon by the

agency,” we apply the same assumption. See Garcia v.

Wilkinson, 988 F.3d 1136, 1143 (9th Cir. 2021) (cleaned up).

Candelaria and Javi must therefore show a causal nexus

between their past or feared future harm in El Salvador and

their familial relationship to Carlos. They seek relief under

both asylum and withholding of removal, which have

different nexus standards. For withholding of removal,

Candelaria and Javi must prove that a protected ground was

“a reason” for their persecution, which means they must

provide evidence that their persecutors were motivated “at

least in part” because of their relationship to Carlos.

Barajas-Romero v. Lynch, 846 F.3d 351, 358 (9th Cir.

2017). For asylum, they must show that their relationship to

Carlos was “one central reason” for the persecution, which

is a more demanding standard. 8 U.S.C. § 1158(b)(1)(B)(i);

see also Barajas-Romero, 846 F.3d at 360. We have defined

“one central reason” as “a reason of primary importance to

the persecutors, one that is essential to their decision to act.”

Manzano v. Garland, 104 F.4th 1202, 1206–07 (9th Cir.

2024) (quoting Rodriguez Tornes v. Garland, 993 F.3d 743,

751 (9th Cir. 2021)).

Assessing whether an asylum applicant has met either

nexus standard often requires acknowledging the possibility

that persecutors may have mixed motives for their actions.

Barajas-Romero, 846 F.3d at 357. When the record reveals

mixed motives for persecution, the one central reason

18 CORPENO-ROMERO V. GARLAND

standard requires the protected ground to be “primary,

essential, or principal.” Manzano, 104 F.4th at 1207

(quoting Kaur v. Garland, 2 F.4th 823, 835 (9th Cir. 2021)).

The protected ground cannot play a “minor role—that is, it

cannot be incidental, tangential, superficial, or subordinate

to another reason for harm.” Id. (quoting Kaur, 2 F.4th at

835). “But a motive may be a central reason even if the

protected ground was not the only reason for persecution.”

Id. (cleaned up) (quoting Garcia, 988 F.3d at 1143–44).

“Indeed, that an unprotected ground also constitutes a

central reason for persecution does not bar asylum.” Id.

(cleaned up) (quoting Rodriguez Tornes, 993 F.3d at 751).

There are at least two ways to demonstrate the causal link

required to meet the “one central reason” standard. First, “a

motive is a ‘central reason’ if the persecutor would not have

harmed the applicant if such motive did not exist and the

motive was more than ‘incidental’ or ‘tangential.’” Id.

(quoting Rodriguez Tornes, 993 F.3d at 751). Second, “a

motive is a ‘central reason’ if that motive, standing alone,

would have led the persecutor to harm the applicant.” Id.

(quoting Rodriguez Tornes, 993 F.3d at 751). In other

words, a motive that is sufficient to cause the persecution

meets the standard. Id. “Because a persecutor’s actual

motive is a matter of fact, we review that finding for

substantial evidence.” Vasquez-Rodriguez v. Garland, 7

F.4th 888, 893 (9th Cir. 2021) (cleaned up).

Here, the agency denied Petitioners relief under asylum

and withholding of removal on the ground that they failed to

establish a nexus between their alleged persecution and their

status as immediate family members of Carlos Rodolfo

Cornejo-Montano. In so doing, the agency failed to

acknowledge the possibility of mixed motives. The agency

instead reasoned that “the gang members’ unsuccessful

CORPENO-ROMERO V. GARLAND 19

attempt to recruit [Javi] does not establish a motivation to

punish him or [Candelaria] for their family membership but

rather a desire to enlist a new gang member into their ranks.”

The agency erred by treating M-18’s two alleged

motives—targeting Javi to increase the size of M-18 and

targeting him because of his status as Carlos’s son—as

mutually exclusive. On the contrary, the evidence compels

the conclusion that Javi’s and Candelaria’s relationship to

Carlos was “a reason of primary importance” to the gang

members and was “essential to their decision” to target and

threaten them. Manzano, 104 F.4th at 1206–07 (quoting

Rodriguez Tornes, 993 F.3d at 751). Candelaria and Javi

have met the “one central reason” standard for asylum,

which means they have necessarily satisfied the weaker “a

reason” standard for withholding of removal as well. See

Barajas-Romero, 846 F.3d at 360.

As noted above, Candelaria explained that M-18 held a

“grudge” against Carlos’s family because of the family’s

perceived cooperation with the police after Carlos’s murder.

She then credibly testified—at least six times—that before

confronting Javi the M-18 members had “investigated” him

and determined that he was Carlos’s son. For example,

Candelaria explained that after the M-18 members who

murdered Carlos were released from prison, they started

investigating Javi, and then “investigated more.” Candelaria

testified that M-18 threatened Javi and his family because

“they had already investigated and found out he was the son

of [Chicharron],” Carlos’s nickname. M-18’s efforts to track

down Javi and learn “everything about him”—and the fact

that at least one of Carlos’s convicted killers was involved

in the gang’s intimidation efforts and death threat—is

powerful evidence that Javi’s relationship to Carlos did not

play a “minor role” and was not “incidental, tangential,

20 CORPENO-ROMERO V. GARLAND

superficial, or subordinate to another reason for harm.”

Manzano, 104 F.4th at 1207 (quoting Kaur, 2 F.4th at 835).

Candelaria also testified that the M-18 members insulted

Javi while confronting him by calling him the “faggot son”

of Carlos, which is direct evidence of animus toward Javi

precisely for his relationship to his father Carlos. And the

record demonstrates that M-18 only began targeting Javi and

Candelaria after his father’s convicted killers were released

from prison upon completion of their eight-year sentences,

which reinforces Candelaria’s testimony that M-18 targeted

Javi because of their “grudge” against his family, and not

solely for recruitment.

In short, Javi’s familial status “caused the gang members

to initiate their threats” and “remained front and center

during his encounters with them.” Manzano, 104 F.4th at

1210. The record compels the conclusion that Candelaria

and Javi were targeted because of their relationship to

Carlos.

In reaching this conclusion, we do not suggest that Javi’s

status as Carlos’s son was the only reason M-18 targeted

him. The record also supports the inference that M-18

targeted Javi to augment their ranks, as the agency

concluded. The M-18 members forcefully demanded that

Javi join their gang, and on cross-examination Candelaria

admitted that M-18 often threatens boys and their families

with death as a means of recruitment. For his part, Javi

acknowledged that he “was not really sure” why the M-18

members targeted him. But even if M-18 was motivated in

part by increasing the size of their gang, Javi’s “persecution

may [nevertheless] be caused by more than one central

reason, and he need not prove which reason was dominant.”

CORPENO-ROMERO V. GARLAND 21

Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th

Cir. 2017) (en banc) (citation omitted).

We have cautioned against relying on false dichotomies

in the nexus analysis. In Parada v. Sessions, for example,

we found it “immaterial” that a guerrilla group’s “attempted

conscription” of the petitioner “would have served the dual

goals of filling their ranks” and “retaliating against the

[petitioner’s] family” because “the latter is a protected

ground, even if the former is not.” 902 F.3d 901, 911 (9th

Cir. 2018) (cleaned up); see also Del Carmen Molina v.

I.N.S., 170 F.3d 1247, 1250 (9th Cir. 1999) (“While the

guerrillas’ threats may have been motivated in part by an

interest in recruiting her, this does not defeat [petitioner]’s

asylum claim.” (emphasis in original)). And in Garcia v.

Wilkinson, we reversed the BIA for ignoring uncontradicted

testimony that the persecutors, in addition to other motives,

“specifically sought out the ‘particular social group’ of [the

petitioner’s] family.” 988 F.3d at 1145 (quoting Parada,

902 F.3d at 909‒10). Similarly here, the agency’s nexus

analysis ignored uncontradicted testimony that M-18—

including the same man who was convicted of killing

Carlos—targeted Javi and Candelaria because of their status

as Carlos’s family members.4

We hold that the record compels the conclusion that

Candelaria’s and Javi’s relationship to Carlos was one

central reason for their persecution. The weaker “a reason”

4

DHS’s counterargument largely rests on an overreading of Rodriguez-

Zuniga v. Garland, 69 F.4th 1012 (9th Cir. 2023). The evidence of M-

18’s motive to persecute Candelaria and Javi based on their familial

relationship is far more substantial here because a convicted murderer

investigated, targeted, confronted, and then threatened the son of his

prior murder victim.

22 CORPENO-ROMERO V. GARLAND

standard is therefore necessarily satisfied. See Barajas-

Romero, 846 F.3d at 360. We grant Candelaria’s and Javi’s

petition for review as to the agency’s nexus finding for both

their asylum and withholding of removal claims.

III.

We hold that Candelaria and Javi have established both

that they suffered harm rising to the level of persecution and

that they suffered such harm on account of a protected

ground. We remand for the agency to determine (1) whether

the final element of the past persecution analysis, whether

the persecution was committed by the government or by

forces that the government was unable or unwilling to

control, is satisfied, or (2) whether Petitioners have

otherwise established a “well-founded fear of future

persecution.” See Hussain v. Rosen, 985 F.3d 634, 645‒46

(9th Cir. 2021).

PETITION GRANTED IN PART AND DENIED IN

PART; REMANDED.

CORPENO-ROMERO V. GARLAND 23

CALLAHAN, Circuit Judge, dissenting in part and

concurring in part:

I concur in Parts I and II(B) of the majority opinion but

otherwise respectfully dissent. While I agree the BIA erred

in finding an insufficient causal nexus between Javi

Alexander Cornejo-Corpeno’s (“Javi”) relationship to his

father and being targeted by M-18, I dissent because

Petitioners have not shown that the record compels a finding

that their past experiences with M-18 in El Salvador were so

extreme that they constituted persecution within the meaning

of the Immigration and Nationality Act (“INA”).

I.

“Persecution, we have repeatedly held, is an extreme

concept that means something considerably more than

discrimination or harassment.” Sharma v. Garland, 9 F.4th

1052, 1060 (9th Cir. 2021) (internal quotation marks and

citation omitted). “Accordingly, some circumstances that

cause petitioners physical discomfort or loss of liberty do not

qualify as persecution, despite the fact that such conditions

have caused the petitioners some harm.” Fon v. Garland, 34

F.4th 810, 813 (9th Cir. 2022) (internal quotation marks and

citation omitted).

As the majority acknowledges, determining whether a

given set of negative experiences rises to the level of past

persecution is “ultimately a fact-bound endeavor.” Sharma,

9 F.4th at 1061. “When it comes to questions of fact—such

as the circumstances surrounding . . . alleged persecution—

the INA provides that a reviewing court must accept

‘administrative findings’ as ‘conclusive unless any

reasonable adjudicator would be compelled to conclude to

the contrary.’” Garland v. Ming Dai, 593 U.S. 357, 365

24 CORPENO-ROMERO V. GARLAND

(2021) (quoting 8 U.S.C. § 1252(b)(4)(B)). So,

notwithstanding our court’s vacillating prior statements of

the standard, the Supreme Court directs that we review a

denial of asylum due to failure to show past persecution for

substantial evidence—not de novo.

The majority purports to apply substantial evidence

review, but its analysis hardly resembles that “highly

deferential” standard. Ming Dai, 593 U.S. at 365. The

majority identifies three supposed errors committed by the

agency: (1) it “did not assess whether M-18 was, in fact,

capable of carrying out its death threat against Petitioners”

(Op. at 12); (2) it “failed to assess whether M-18’s death

threat caused Javi significant actual suffering or harm” (Op.

at 14); and (3) it “failed to consider Javi’s experience from

the perspective of his relatively young age” (Op. at 16).

While the BIA did not explicitly discuss each of these factors

in its written decision, that does not necessarily mean it

failed to consider these aspects of the case—as each would

have been obvious to it. Moreover, even assuming the

agency erred in the ways the majority asserts, those legal

errors would not permit the leap the majority then takes to

impose its own view of the record on the agency.

After discussing the agency’s purported legal errors at

length, the majority holds in a single concluding sentence—

with no comparison to past cases or discussion of the Sharma

factors 1 —that the record compels a finding of past

persecution. In doing so, the majority exceeds the “carefully

1

See Sharma, 9 F.4th at 1063 (identifying seven non-exhaustive factors

for establishing past persecution, including “physical violence and

resulting serious injuries, frequency of harm, specific threats combined

with confrontation, length and quality of detention, harm to family and

close friends, economic deprivation, and general societal turmoil”).

CORPENO-ROMERO V. GARLAND 25

circumscribed” bounds of our review of BIA decisions.

Ming Dai, 593 U.S. at 365; see also Prasad v. I.N.S., 47 F.3d

336, 340 (9th Cir. 1995) (“We are not permitted to substitute

our view of the matter for that of the Board.”).

II.

A.

First, the majority faults the agency for not assessing

whether M-18 was “capable of carrying out” its threat to kill

Javi and his family if Javi did not join their ranks. Op. at 12–

13. But the BIA expressly acknowledged that death-threats-

plus-harm may constitute persecution when made by one

“capable of carrying out the threats.” The BIA could not

have failed to recognize the lethal power of M-18, as it was

aware that members of M-18 had already killed Javi’s father.

Additionally, Petitioners’ brief to the BIA confirmed what

the agency already knew from the countless gang-related

asylum claims from Central America that M-18 is “a

powerful criminal gang infamous for brutality and cold-

blooded killings.” There is no reason to think the BIA found

the death threat did not amount to persecution because M-18

was not capable of killing either of the Petitioners. Rather,

as discussed in Section III, infra, the BIA could have

reasonably discounted the seriousness of the threat because

of the relatively short duration of the encounter and lack of

accompanying violence.

B.

Second, the majority holds the BIA erred by failing to

assess whether M-18’s death threat caused Javi actual

suffering or harm. I do not agree. Citing Duran-Rodriguez

v. Barr, the majority notes “credible death threats alone can

constitute persecution.” Op. at 12 citing 918 F.3d 1025,

26 CORPENO-ROMERO V. GARLAND

1028 (9th Cir. 2019) (citing Navas v. I.N.S., 217 F.3d 646,

658 (9th Cir. 2000). The majority, however, fails to

acknowledge that death threats alone constitute persecution

“in only a small category of cases . . . .” 918 F.3d at 1028

(citing Lim v. I.N.S., 224 F.3d 929, 936 (9th Cir. 2000)). To

qualify, a threat must be “so menacing as to cause significant

actual suffering or harm.” Id. In applying this precedent,

the majority makes three significant errors: (1) the majority

improperly shifts the focus from the threat itself to the

claimed subjective harm of Petitioner; (2) the majority

impermissibly assumes the agency did not consider the

evidence of psychological harm despite record evidence to

the contrary; and (3) the majority improperly determines

Petitioner’s PTSD diagnosis constitutes “significant actual

suffering or harm” compelling a finding that the death threat

amounts to past persecution.

i.

The majority improperly diverts focus from the threat at

issue to Petitioner’s claimed subjective harm. Here, the

harm is only relevant as a metric to determine whether the

threat to Javi was “so menacing” as to qualify as past

persecution. Duran-Rodriguez, F.3d 918 at 1028. This

makes sense, for “‘it is the conduct of the persecutor’ that is

relevant to evaluating whether past treatment rises to the

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

suffering’ the petitioner experienced.” Antonio v. Garland,

58 F.4th 1067, 1074 (9th Cir. 2023) (quoting Flores Molina

v. Garland, 37 F.4th 626, 636 (9th Cir. 2022), in turn quoting

Kaur v. Wilkinson, 986 F.3d 1216, 1226 (9th Cir. 2021)).

Related evidence then—e.g. evidence of accompanying

violence or, as relevant here, evidence of harm—may be

used to determine the severity of the threat, but the ultimate

focus must remain on the conduct of the perpetrator. In

CORPENO-ROMERO V. GARLAND 27

accordance with this well-established principle, the BIA

properly focused on the conduct of the gang members: their

surrounding of Javi, grabbing him by the hands, and

threatening him and his family with death if he did not join

their ranks. Focusing on the threat and the circumstances

surrounding it in the moment is not only required by our

precedent but also a far more reliable way to determine

persecution than focusing on an expert opinion of the

applicant’s mental state long after the fact.

The importance of this principle is highlighted by the

instant case, where the claimed harm is a PTSD diagnosis,

which is inherently subjective. By shifting the focus away

from the threat to Javi’s PTSD, the majority flouts our

precedent and creates an inequitable rule. By way of

example, take two similarly situated individuals: Individual

A and Individual B. Both are told the same threat by the

same perpetrator. Individual A is unaffected by the threat.

Individual B is shaken by the threat and suffers PTSD as a

result. Under the majority’s analysis Individual B could

establish past persecution based on the PTSD resulting from

the threat. Individual A, however, though subject to the same

threat, would be unable to establish past persecution. This

result is unsupported by precedent and counter to well-

established principles of asylum law requiring courts to

focus on the conduct of the perpetrator, not the subjective

psychological harm of the petitioner.

ii.

The majority concludes “[i]n failing to address

uncontradicted evidence that Javi currently experiences

PTSD . . . the agency ignored the actual harm Javi continues

to suffer . . . .” Op. at 14. This conclusion is belied by the

record. There is no question the agency was aware of the

28 CORPENO-ROMERO V. GARLAND

expert witness testimony and supporting documents

discussing Javi’s psychological state and diagnosis of PTSD.

Indeed, as cited by the BIA in its review of the record, the IJ

explicitly identified the expert witness testimony and the

supporting documents as evidence it considered. Despite

this fact, the majority maintains its unsupported assumption

that the agency “failed to address” this evidence. This

assumption and the resulting conclusion are wrong.

Accordingly, the BIA did not err.2

iii.

Undeterred by these initial errors, the majority takes one

last flawed step in its threat analysis and determines Javi’s

PTSD diagnosis compels a finding of significant “actual

suffering or harm.” Op. at 14–16. This too is wrong. The

majority cites no case where this court has ever found that a

diagnosis of PTSD following a death threat establishes

“actual suffering or harm” compelling the conclusion that a

death threat constitutes persecution. Even worse, the

majority cites no case where this court has ever found that

any degree of psychological or emotional injury establishes

“actual suffering or harm” compelling the conclusion that a

death threat constitutes persecution. In fact, our line of

death-threat cases do not turn on the degree of psychological

2

Petitioners themselves do not raise this error in their briefs—which do

not mention Javi’s PTSD—and they did not argue to the BIA that the IJ

erred in not discussing the PTSD diagnosis. That this argument was

waived and unexhausted makes the majority’s reversal particularly

questionable. See 8 U.S.C. § 1252(d)(1) (exhaustion of administrative

remedies); Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir.

2023) (enforcing § 1252(d)(1) as mandatory claim-processing rule under

Santos-Zacaria v. Garland, 598 U.S. 411 (2023)); Singh v. Ashcroft, 361

F.3d 1152, 1157 n.3 (9th Cir. 2004) (“Issues not raised in an appellant’s

opening brief are typically deemed waived.”).

CORPENO-ROMERO V. GARLAND 29

suffering a given threat has inflicted on the survivor. Rather,

we have exclusively evaluated death threats in the context of

accompanying “evidence of violent confrontations, near-

confrontations and vandalism” to determine whether a given

threat is so severe as to amount to persecution. Mashiri v.

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

Despite this dearth of legal support, the majority

attempts to say it does not break new ground because this

court has long recognized that emotional and psychological

harm may constitute “evidence of past persecution.” Op. at

14–15. But the majority is doing something very different

here. Here, the majority concludes a PTSD diagnosis

establishes “actual suffering or harm” compelling the

conclusion that a death threat constitutes persecution. The

majority cites no case supporting this conclusion, and I have

found none. This is the definition of breaking new ground

whether the majority wishes to acknowledge it or not.

Contrary to the majority’s novel opinion, the agency did

not err. The record supports a conclusion that Javi’s PTSD

diagnosis falls outside the small number of cases where

death threats alone constitute persecution. The agency’s

determination, thus, is consistent with our past decisions and

supported by substantial evidence.

C.

In its third and final claim of error, the majority faults the

agency for failing to consider Javi’s relatively young age in

its past persecution analysis. True, the BIA’s decision does

not, on its face, refer to Javi’s age at the time of the bus-stop

attack. However, in describing the attack, the BIA cited to a

three-page range of the hearing transcript wherein

Candelaria stated that Javi was 14 years old at the time; and

it was reviewing the IJ’s decision which opened by stating

30 CORPENO-ROMERO V. GARLAND

Javi’s age (by then, 15 years old). The BIA was certainly

aware of Javi’s youth when it upheld the IJ’s finding of no

past persecution. The BIA clearly, if implicitly, considered

Javi’s age and I know of no authority that requires the BIA

to say it did so explicitly. Just because the BIA did not

explain exactly how it weighed Javi’s age does not mean that

it did not consider his age—or that its conclusion is

unsupported by substantial evidence.

What the majority really seems to be saying is that no

reasonable fact finder who considered Javi’s age could

conclude he was not “persecuted.” But, given the limited

number of Ninth Circuit death-threat cases involving

children in their teens or younger, the BIA was not required

to reach any particular conclusion as to the severity of Javi’s

encounters with M-18. The three cases the majority cites

regarding youthful victims involved objectively more severe

attacks than what Javi experienced at the bus stop. In

Hernandez-Ortiz v. Gonzales, the applicant brothers based

their claims on harms the Guatemalan army inflicted on their

family members when the applicants were age seven and

nine: beating and kidnapping their father and killing their

older brother. 3 496 F.3d 1042, 1044 (9th Cir. 2007). In

Singh v. Garland, the petitioner was twice physically

attacked—first kicked and hit, next beaten with hockey

sticks “all over his back and arms” and threatened with

3

Unlike the present case, Hernandez-Ortiz was addressing a

circumstance in which the applicants themselves were not targeted by

the family’s persecutors. But we adopted a “legal rule that injuries to a

family must be considered in an asylum case where the events that form

the basis of the past persecution claim were perceived when the

petitioner was a child.” Id. at 1046. Thus, Hernandez-Ortiz does not

speak to the agency’s duty when considering the claim of a minor like

Javi who is directly victimized.

CORPENO-ROMERO V. GARLAND 31

death—when he was between ages 16 and 18. 57 F.4th at

649. And in Sangha v. I.N.S., the petitioner at age 15

witnessed four armed men break into his family’s home and

beat his father while demanding the father “give over”

petitioner and his brother. 103 F.3d 1482, 1486 (9th Cir.

1997).

On this record, the BIA’s failure to explicitly mention

Javi’s age does not compel the conclusion that it did not

consider Javi’s age in assessing the severity of his

experience with M-18.

III.

Reasonable minds can differ as to whether Javi’s

experience amounted to persecution under the INA. Eight

years after the murder of his father, when Javi was 14 years

old, two men followed him at a distance on two separate

occasions as he took the bus home from school. There was

no interaction, the men just watched him. On a third

occasion, while Javi was waiting for the bus, five or six men

with “18” tattoos surrounded Javi and “grabbed him by the

hands,” “very hard”. As Javi would later learn, one or two

of the assailants had been convicted of killing his father. The

attackers told him he “had to unite with them” and if he

didn’t join them, they would kill him and his family. As

people started to gather in the area, Javi managed to escape

and run away. Somewhere between three days and two

weeks later, two of the attackers—at least one of whom

Candelaria recognized as having been convicted of Carlos’s

murder—passed by and “stared at” Javi while he and

Candelaria were selling food from their street cart outside

their home. Soon after, Candelaria fled with her children to

her sister’s house, and that night Candelaria’s neighbor

32 CORPENO-ROMERO V. GARLAND

called to tell her that (otherwise unidentified) armed men had

entered her house and were “looking for someone.”

Would this chain of events reasonably terrify a 14-year-

old and his mother? Would the record support a finding that

this amounted to past persecution? Yes, of course. Would

any reasonable fact finder be compelled to find this

amounted to persecution under our precedent, however? I

do not think so.

A.

“[P]ast-persecution analysis is best answered by

comparing the facts of [a] [p]etitioner’s case with those of

similar cases.” Singh, 57 F.4th at 654 (internal quotation

marks and citation omitted). Viewed through the requisite

deferential lens, substantial evidence supports the BIA’s

finding that Petitioners’ experiences were not severe enough

to constitute persecution when compared to prior death-

threat cases. For instance, the BIA compared this case to

Mashiri v. Ashcroft, where we held past persecution was

compelled based on the combination of a death-threat note

“invok[ing] the terror of Germany’s Nazi past,” petitioner’s

tires being slashed, her home being “ransacked in a

particularly violent way,” petitioner having to run from a

threatening mob, and violent attacks on all three of her

immediate family members—all escalating over a period of

six years. 383 F.3d at 1116–20. That was the context of our

observation—emphasized by the majority—that “threats

may be compelling evidence of past persecution, particularly

when they are specific and menacing and are accompanied

by evidence of violent confrontations, near-confrontations

and vandalism.” Id. at 1119; Op. at 12.

By comparison, a reasonable fact finder would not be

compelled to find the gang members’ actions toward Javi

CORPENO-ROMERO V. GARLAND 33

equally “menacing” or “violent.” For a few weeks, at most,

gang members followed Javi from a distance and then on one

occasion surrounded him and grabbed him, hard, by the

hands. The record contains no suggestion that the men were

armed in any fashion; and they did not physically harm Javi

or even restrain him aggressively enough to prevent his

escape. Of course, their vocal threat to kill him and his

family if he did not join the gang makes the encounter more

severe. As the majority repeatedly notes, “[d]eath threats

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

(emphasis added). However, those cases are rare, so rare in

fact that this court has found none. Duran-Rodriguez, 918

F.3d at 1028 (noting death threats alone constitute

“persecution in only a small category of cases”) (internal

quotation and citation omitted); see also supra Section II(B).

Here, the agency was considering a single death threat, not

repeated threats. And given that Javi was only briefly

detained and there is no other evidence the assailants harmed

Javi or his mother, 4 the evidence does not compel the

majority’s view that the threat was “so menacing” as to

compel a finding of persecution. Cf. Lim v. I.N.S., 224 F.3d

929, 936 (9th Cir. 2000) (“In certain extreme cases, we have

held that repeated and especially menacing death threats can

constitute a primary part of a past persecution claim . . . .”).

B.

Contrary to our congressionally-limited role, the

majority views Petitioners’ testimony in the most extreme

light—assuming Carlos’s murder eight years before the bus-

stop attack and the home invasion shortly after Petitioners’

4

As discussed below, the limited evidence of a home intrusion after Javi

and Candelaria fled did not establish the identity of the intruders or their

affiliation.

34 CORPENO-ROMERO V. GARLAND

flight both compel a finding of past persecution. However,

a reasonable fact finder would not necessarily consider

Carlos’s murder part of Javi’s persecution. M-18 did not kill

Carlos on account of his relationship to Javi (or Candelaria).

He was killed for not being able to keep up with the gang’s

extortion demands—a tragic reason, but not one that

compels the protection of our asylum laws. While Carlos’s

death was surely devastating to Javi, who was then 7 years

old, Javi was not a witness to the killing. Further, he did not

know his father was killed by gang members until his mother

told him when he was older, and even then, she did not tell

him why they had targeted his father. Thus, this is not a case

of a death threat being made soon after the perpetrators have

killed a petitioner’s family member. Cf. Navas v. I.N.S., 217

F.3d 646, 652, 658 (9th Cir. 2000) (finding past persecution

compelled where 17-year-old was chased and shot at by

Salvadoran soldiers who had just murdered his aunt, and

who then threatened to kill him and his mother). In short,

Carlos’s killing was not necessarily part of Javi’s alleged

persecution.5

C.

The majority makes yet another assumption by accepting

that the armed men who reportedly entered Candelaria’s

home after she and her children had fled were M-18

members. There is very little in the record about this

apparent break-in: just one sentence in one of Candelaria’s

declarations about the call she received from her neighbor.

That sentence does not convey that Candelaria received any

identifying information about the intruders, and the

5

Nevertheless, Javi’s relationship to Carlos clearly motivated the alleged

persecution, as explained in Part II(B). of the majority opinion, in which

I concur.

CORPENO-ROMERO V. GARLAND 35

neighbor’s perception that the intruders were “looking for

someone” does not necessarily mean they were looking for

Javi. Country conditions evidence offered by Petitioners

reflects that El Salvador is “the most dangerous country in

the world not engulfed in an ongoing war” and is plagued by

violence from the Mara Salvatrucha (MS-13) gang in

addition to M-18. The majority relies on its assumption that

M-18 came looking for Javi that night to support its view

that harm was imminent (Op. at 12–14, 16, 19–20), but the

BIA was not required to make that same assumption.

One view of the record is that Javi experienced three

instances of stalking, plus a non-violent confrontation with a

death threat, followed by a stare-down on the sidewalk.

Under that permissible view of the facts, the BIA could

reasonably conclude that they did not amount to past

persecution. See, e.g., Lanza v. Ashcroft, 389 F.3d 917, 920–

24, 934 (9th Cir. 2004) (upholding agency finding of no past

persecution where three men broke into petitioner’s house,

pushed her, punched her, called her names, threatened to kill

her and her young daughter, and continued to look for her

after she fled).

IV.

Evidence of Javi being attacked because he is Carlos’s

son could and should factor into a fear-of-future-persecution

analysis. See Lim, 224 F.3d at 933, 935–36 (holding that a

series of death threats by phone and letter did not compel

past persecution but did trigger a well-founded fear of future

persecution). Our unanimous holding that the causal nexus

standard was satisfied (see Op., Part II(B)) means that,

contrary to the IJ’s finding, Petitioners were not merely

asserting a fear of generalized violence by criminal

elements. On remand, Petitioners should be given the

36 CORPENO-ROMERO V. GARLAND

opportunity to establish a well-founded fear of persecution

based on their familial relationship to Carlos. However, this

record does not compel that the burden should be flipped to

DHS to rebut a presumption of future persecution.6

The majority reaches a conclusion that past persecution

is compelled by ignoring evidence and precedent favorable

to the BIA’s view of the facts. Although Candelaria and Javi

have experienced great loss and frightening episodes in El

Salvador, a reasonable fact finder could conclude that they

were not “persecuted” within the meaning of the INA.

Because the majority distorts existing precedent and

supplants the BIA’s substantially supported view of the facts

with its own preferred version in holding past persecution

was compelled, I concur only in Parts I and II(B) of the

majority opinion and otherwise respectfully dissent.

6

The majority appropriately remands this matter for the agency to

determine whether the final element of a past persecution analysis—

governmental inability or unwillingness to control the persecutors—is

satisfied. Thus, on remand the burden will not yet have shifted to DHS.

But that shifting will result if Petitioners show that the El Salvadoran

government is unable or unwilling to control M-18, as previous

applicants have sometimes succeeded in demonstrating. See, e.g., J.R.

v. Barr, 975 F.3d 778, 782 (9th Cir. 2020).