Alicia Naranjo Garcia v. Robert Wilkinson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALICIA NARANJO GARCIA, No. 19-72803

Petitioner,

Agency No.

v. A215-670-558

ROBERT M. WILKINSON, Acting

Attorney General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted November 16, 2020

Seattle, Washington

Filed February 18, 2021

Before: Ronald M. Gould and Michelle T. Friedland,

Circuit Judges, and Stephen R. Bough, * District Judge.

Opinion by Judge Gould

*

The Honorable Stephen R. Bough, United States District Judge for

the Western District of Missouri, sitting by designation.

2 NARANJO GARCIA V. WILKINSON

SUMMARY **

Immigration

Granting in part Alicia Naranjo Garcia’s petition for

review of the Board of Immigration Appeals’ decision

affirming an immigration judge’s denial of asylum,

withholding of removal, and protection under the

Convention Against Torture, and remanding, the panel

concluded that substantial evidence did not support the

Board’s determination that Garcia was not persecuted on

account of her membership in social groups comprised of her

family or property owners.

As an initial matter, because the Board assumed without

explicitly deciding that Garcia’s social groups comprised of

her family or property owners were cognizable, the panel

assumed for the sake of argument that both social groups

were cognizable.

The panel held that the Board erred in concluding that

Garcia failed to establish a nexus between her persecution

and her status as a property owner. The panel explained that

it read the Board’s decision as recognizing that property

ownership was a cause—and moreover, the real reason—

Garcia was targeted, but still found that she was not targeted

“on account of” property ownership. The panel wrote that

under this court’s case law, it is sufficient under mixed-

motive precedent for the petitioner to show that a protected

ground was a cause of the persecutors’ acts.

**

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

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

NARANJO GARCIA V. WILKINSON 3

The panel held that the Board also erred in its analysis of

nexus based on Garcia’s family association. Observing that

there is a fine line between showing “animus” toward family,

which does establish nexus, and “purely personal

retribution,” which does not, the panel wrote that the Board’s

analysis of this issue ignored pertinent and uncontroverted

evidence. The panel wrote that sweeping retaliation towards

a family unit over time, such as was the case here, can

demonstrate a kind of “animus” distinct from “purely

personal retribution.” The panel explained that such

targeting is sufficient to demonstrate nexus if the petitioner

shows via uncontradicted testimony that persecutors

specifically sought out the particular social group of family.

The panel remanded for the agency to clarify its asylum

nexus determination, and to analyze in the first instance

whether Garcia’s property ownership or family membership

are cognizable social groups in this context, and whether the

other elements of Garcia’s asylum claim were satisfied. The

panel also remanded Garcia’s withholding claim because the

Board’s decision was inconsistent with any serious analysis

of the difference between the “one central reason” nexus

standard for asylum relief, and the “a reason” standard for

withholding relief.

The panel held that substantial evidence supported the

Board’s denial of CAT protection because Garcia failed to

establish a clear probability of being tortured if returned to

Mexico.

4 NARANJO GARCIA V. WILKINSON

COUNSEL

Sarah A. Nelson (argued), Certified Law Student; Thomas

V. Burch and Anna W. Howard, Supervising Attorneys;

University of Georgia School of Law, Athens, Georgia, for

Petitioner.

Jessica D. Strokus (argued), Trial Attorney; Anthony C.

Payne, Assistant Director; Joseph H. Hunt, Assistant

Attorney General; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

OPINION

GOULD, Circuit Judge:

Alicia Naranjo Garcia (“Garcia”) is a native and citizen

of Mexico. Garcia petitions for review of the Board of

Immigration Appeals (“BIA”) decision affirming the

Immigration Judge’s (“IJ”) denial of her application for

asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). The Knights

Templar, a local drug cartel, murdered Garcia’s husband,

twice threatened her life, and forcibly took her property in

retaliation for helping her son escape recruitment by fleeing

to the United States. We have jurisdiction under 8 U.S.C.

§ 1252, and we grant the petition in part and remand.

I

In 2012, while Garcia was living in Apatzingán,

Michoacán, Mexico, members of the Knights Templar drug

cartel (“the Templars”) kidnapped her husband. The cartel

sought property Garcia’s husband had inherited from his

NARANJO GARCIA V. WILKINSON 5

parents. The cartel kept him for two days, letting him go

when he agreed to turn over the deed to a house he owned in

Apatzingán, which was different from the house in which he

and Garcia lived. One month later, after Garcia’s husband

had already turned the property over, he was found dead

from a gunshot at the base of his skull with his body left near

the home that he and Garcia shared. Garcia told police

officers about her husband’s property dispute with the cartel.

Garcia spoke at her husband’s funeral, asserting that the

Templars were responsible for his death. A local cartel

leader then “called [her] out and told [her] not to be saying”

that the Templars killed her husband, that what was at stake

was her and her children’s well-being, and implied that if she

did not say anything they would “let [her] live there in

peace.” For the next five-and-a-half years, Garcia said

nothing, and the Templars did not “bother” her. The police

never arrested anyone in connection with Garcia’s husband’s

death.

Garcia has two children, both of whom are United States

citizens and live in the United States. 1 In August 2017,

Garcia’s 18-year-old son went to Mexico to visit her. In

February 2018, cartel members targeted Garcia again when

they tried to recruit her son into the Templar ranks after

finding out that he was in Mexico. Garcia learned of the

cartel’s recruitment efforts and helped him to escape by

buying a plane ticket for him to return to the United States.

Shortly thereafter, on April 25, 2018, two cartel members

came to Garcia’s family home to tell her that she “only had

a month to leave.” From experience with the cartels, Garcia

1

Garcia and her husband previously entered the United States

without inspection in 1997. She left and returned to Mexico in 2005.

Her two children were born in the United States during that period.

6 NARANJO GARCIA V. WILKINSON

knew that if she disobeyed, cartel members would kill her.

The cartel members told her that “once [she] left, they would

keep the property,” referring to the house in which she was

currently living. In response to the cartel’s threats, Garcia

left Mexico on May 13, 2018. She knew that when the cartel

says they are going to take property, “they just say it, and

then they keep it.” Garcia did not report the Templars’ threat

to the police because she thought the Templars would find

out and she feared what would happen if they did.

Garcia entered the United States on May 21, 2018. On

June 20, 2018, the Department of Homeland Security

initiated removal proceedings by filing a Notice to Appear

(“NTA”) in immigration court, charging Garcia with

inadmissibility under INA § 212(a)(7)(A)(i)(I), 8 U.S.C.

§ 1182(a)(7)(A)(i)(I). On July 17, 2018, Garcia appeared

before an immigration judge (“IJ”) and conceded the

allegations in the NTA. The IJ sustained the charge of

inadmissibility. On August 16, 2018, Garcia submitted an I-

589, Application for Asylum and for Withholding of

Removal.

On September 28, 2018, Garcia appeared pro se before

an IJ for an individual hearing on the merits of her

application. Garcia testified to the Templars’ role in her

husband’s murder, her son’s fleeing to the United States, and

the loss of her family’s property. Garcia also testified that

she did not feel she would be safe anywhere else in Mexico

because of the Templars’ threats. She has no family in

Mexico outside of Michoacán and her children all live in the

United States. She testified that she did not believe she could

live with her parents in Michoacán, the area where she

previously lived and her husband was killed, because if she

went “to live with them, then [the Templars are] going to

start taking it out on [her parents] too.” When asked if she

NARANJO GARCIA V. WILKINSON 7

could live in Mexico City, Garcia stated that she didn’t

know, but would be “scared,” and that “[w]herever you go,

right away [the Templars] find out.”

When asked about other family members, Garcia

testified that her brother, Pedro Naranjo Garcia (“Pedro”),

had worked for the Templars and was currently incarcerated

in Morelia, Michoacán, Mexico. At the time, Garcia

believed Pedro had served three years of what she thinks is

a 45-year sentence. The record does not specify for what

crime Pedro was convicted. Garcia also testified that she has

a nephew who was killed by an unknown assailant on

December 9, 2009.

Despite finding Garcia’s testimony credible, the IJ

denied her any relief. The IJ said: “Whether specifically

mentioned or not, the court has considered all of the

testimony and documentary evidence contained in the

application in this decision.” The IJ incorporated by

reference an addendum of law discussing the relevant legal

standards for asylum, withholding of removal, and CAT

protection.

The IJ found that two events to which Garcia testified

qualified as persecution: (1) the Templars’ 2012 death threat

after her husband’s funeral, when combined with her

husband’s murder; and (2) the cartel’s 2018 threats in

connection with leaving her home. But even though Garcia

demonstrated past persecution, the IJ denied relief because

the IJ concluded that these threats were not made “on

account of” any protected ground. Instead, the IJ found that

the cartel persecuted Garcia because it “wanted either her

property or . . . found an excuse by her son’s defiance of the

recruitment over him to also get rid of [her] and displace her

from her property.” The IJ noted that Garcia, proceeding pro

se, “did not claim membership in a particular social group,”

8 NARANJO GARCIA V. WILKINSON

and that she provided insufficient testimony or evidence that

she was threatened “because she was a family member of her

husband.” Also, the IJ determined that Garcia could not

show that Mexican governmental officials were unable or

unwilling to control the cartel. As a result, the IJ decided

that Garcia was not entitled to a presumption of future

persecution.

Without that presumption, the IJ then found that Garcia’s

fear of future persecution was subjectively, but not

objectively, reasonable. In so deciding, the IJ noted that

Garcia did not report the 2012 and 2018 death threats to the

police, and she did not show that it would be unreasonable

for her to relocate elsewhere within Mexico. Because of

that, the IJ denied Garcia’s asylum application. The IJ also

denied Garcia’s withholding of removal claim, finding that

because she did not meet the threshold showing for asylum,

she could not have met “the more stringent requirement for

withholding.” Finally, the IJ denied Garcia’s CAT

application, finding that she was unable to show it was more

likely than not that she will be tortured in Mexico, because

the Mexican government “fights corruption” and “was able

to apprehend at least one cartel member and sentence him

for 45 years as evidenced by the case of her own brother.”

Garcia timely appealed the IJ’s decision to the Board of

Immigration Appeals (“BIA”). Garcia, who was represented

by counsel in that appeal, contended that she was persecuted

on account of her membership in social groups consisting of

(1) her family and (2) property owners. The BIA accepted

for the sake of argument that these were cognizable social

groups but nonetheless affirmed the IJ’s determinations on

Garcia’s asylum, withholding, and CAT claims. The BIA

reasoned as follows:

NARANJO GARCIA V. WILKINSON 9

First, the BIA denied Garcia’s asylum claim solely on

the nexus ground, holding that she was not persecuted “on

account of” any protected ground. The BIA stated that it

would “express no opinion” about the IJ’s other reasons for

denying this relief. Second, the BIA denied her withholding

of removal claim, stating that: “As [Garcia] did not satisfy

the lower standard of proof for asylum, it necessarily follows

that she did not satisfy the more stringent standard for

withholding of removal.” The BIA rejected Garcia’s

contention that the IJ’s analysis of this issue was too cursory

or used the wrong legal standard, noting that the addendum

of law the IJ incorporated into her oral decision explicitly

recognized the difference in the nexus inquiry between

asylum and withholding of removal (“one central reason” as

opposed to “a reason,” respectively). Third, and finally, the

BIA denied Garcia’s request for CAT relief by concluding

that the IJ “did not clearly err in predicting the likelihood of

[Garcia’s] future torture in Mexico, even considering the

prior threats.”

This timely petition for review followed.

II

Because the BIA conducted a de novo review of the IJ’s

decision, our review is “limited to the BIA’s decision except

to the extent that the IJ’s opinion is expressly adopted [by

the BIA].” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.

2006) (citation omitted). “Where, as here, the BIA has

reviewed the IJ’s decision and incorporated portions of it as

its own, we treat the incorporated parts of the IJ’s decision

as the BIA’s.” Molina-Estrada v. INS, 293 F.3d 1089, 1093

(9th Cir. 2002). In reviewing the BIA’s decisions, we

consider only the grounds relied upon by that agency. “If we

conclude that the BIA’s decision cannot be sustained upon

its reasoning, we must remand to allow the agency to decide

10 NARANJO GARCIA V. WILKINSON

any issues remaining in the case.” Regalado-Escobar v.

Holder, 717 F.3d 724, 729 (9th Cir. 2013) (citation omitted).

We examine the BIA’s “legal conclusions de novo and

its factual findings for substantial evidence.” Bringas-

Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017)

(en banc) (citations omitted). 2 Substantial evidence review

means that the BIA’s determinations will be upheld “if the

decision is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.”

Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir. 2008)

(quotation marks and citation omitted). We may only

reverse the agency’s determination where “the evidence

compels a contrary conclusion from that adopted by the

BIA.” Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010).

“While this standard is deferential, ‘deference does not mean

blindness.’” Parada v. Sessions, 902 F.3d 901, 909 (9th Cir.

2

Garcia argues that the BIA’s asylum and withholding of removal

determinations should be reviewed de novo. Although we typically

review these determinations for substantial evidence, there is support in

our cases for Garcia’s position that de novo review applies here. When

an applicant is deemed credible, we have considered nexus issues to be

questions of law entitled to de novo review. See Singh v. Ilchert, 63 F.3d

1501, 1506 (9th Cir. 1995) (reviewing de novo the BIA’s decision that

the petitioner was not persecuted “on account of” imputed political

opinion when the IJ made a favorable credibility finding), superseded by

statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d

734, 739–40 (9th Cir. 2009); see also Baghdasaryan v. Holder, 592 F.3d

1018, 1022 n.4 (9th Cir. 2010) (citing Singh v. Ilchert for the proposition

that nexus issues have been reviewed de novo when the applicant is

deemed credible but declining to decide the issue). Because Garcia’s

petition for review should be granted as to her asylum and withholding

claims under either standard, it is unnecessary to reach the issue of

whether we review those determinations de novo or for substantial

evidence.

NARANJO GARCIA V. WILKINSON 11

2018) (quoting Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir.

2004) (en banc)).

III

As a removable noncitizen, Garcia bears the burden of

demonstrating asylum eligibility by showing that she is a

refugee within the meaning of the Immigration &

Nationality Act (“INA”). INA § 208(b)(1)(B)(i), 8 U.S.C.

§ 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a). A “refugee” is

defined as any person who is unwilling or unable to return to

her home country “because of persecution or a well-founded

fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political

opinion.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A).

The applicant must demonstrate a nexus between her past or

feared harm and a protected ground. Barajas-Romero v.

Lynch, 846 F.3d 351, 359–60 (9th Cir. 2017). Specifically,

the protected characteristic must be “a central reason” for the

past or feared harm. Id. If the applicant can demonstrate

past persecution by showing persecution and nexus, a

rebuttable presumption arises that she has a well-founded

fear of future persecution. 8 C.F.R. § 1208.13(b)(1). An

applicant who has not shown past persecution may still

qualify for asylum if she can show her claimed fear of future

persecution is both “subjectively genuine” and “objectively

reasonable.” Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th

Cir. 2007) (en banc).

The BIA did not disturb the IJ’s finding that Garcia is

credible. Accordingly, we view her as credible and must

accept Garcia’s testimony as true. See Kalubi v. Ashcroft,

364 F.3d 1134, 1137 (9th Cir. 2004) (“Testimony must be

accepted as true in the absence of an explicit adverse

credibility finding.”). The BIA also did not disagree with

the IJ’s determination that the Templars’ death threats in

12 NARANJO GARCIA V. WILKINSON

2012 and 2018, when combined with Garcia’s husband’s

murder, qualified as persecution. But the IJ concluded that

Garcia did not prove past persecution because the threats

were not made “on account of” any protected ground,

thereby precluding Garcia from taking advantage of a

rebuttable presumption that she has a well-founded fear of

future persecution. On appeal, the BIA accepted for the sake

of argument that family membership and property ownership

were cognizable social groups, but the BIA denied Garcia’s

asylum claim by affirming the IJ’s decision that she was not

persecuted “on account of” any protected ground. The BIA

declined to express an opinion about the IJ’s other reasons

for denying asylum. Because we may consider only the

grounds relied upon by that agency, Regalado-Escobar,

717 F.3d at 729, this petition for review turns primarily on

the issue of nexus.

A

We first conclude that substantial evidence does not

support the BIA’s conclusion that Garcia was not persecuted

“on account of” her membership in a particular social group.

Garcia contends that she is a member of two particular

social groups: family association and property ownership.

The BIA assumed without explicitly deciding that these two

groups are cognizable protected grounds. The BIA then

determined that, even if Garcia’s alleged groups were

cognizable, she had failed to establish a nexus. Because we

are bound to consider “only the grounds relied upon by th[e]

agency,” we also assume for the sake of argument that these

are both cognizable social groups for purposes of evaluating

the BIA’s nexus determination. Regalado-Escobar,

717 F.3d at 729.

NARANJO GARCIA V. WILKINSON 13

If removed to Mexico, Garcia fears she will be

persecuted on account of family association and property

ownership. To prevail, Garcia must show that either family

association or property ownership was “one central reason”

for the persecution she experienced. See 8 U.S.C.

§ 1158(b)(1)(B)(i). That issue is not simple because of the

possibility of mixed motives: “People, including

persecutors, often have mixed motives.” Barajas-Romero,

846 F.3d at 357. Our mixed-motive cases make clear that

the petitioner need not show that the protected ground was

the only reason for persecution. See Parussimova v.

Mukasey, 555 F.3d 734, 742 (9th Cir. 2009) (recognizing

that “persecutors are hardly likely to submit declarations

explaining exactly what motivated them to act” (citation

omitted)). We explained further:

[A] motive is a “central reason” if the

persecutor would not have harmed the

applicant if such motive did not exist.

Likewise, a motive is a “central reason” if

that motive, standing alone, would have led

the persecutor to harm the applicant. . . .

[P]ersecution may be caused by more than

one central reason, and an asylum applicant

need not prove which reason was dominant.

Nevertheless, to demonstrate that a protected

ground was “at least one central reason” for

persecution, an applicant must prove that

such ground was a cause of the persecutors’

acts.

Id. at 741.

The source of Garcia’s feared persecution is the

Templars drug cartel. An applicant’s uncontroverted

14 NARANJO GARCIA V. WILKINSON

credible testimony as to the persecutor’s motive may be

sufficient to establish nexus. See, e.g., Parada v. Sessions,

902 F.3d 901, 910 (9th Cir. 2018) (petitioner’s credible

testimony established that the persecution he and his family

suffered was “on account of” his family’s government and

military service). In this case, the evidence submitted by

Garcia was compelling. Garcia credibly testified that the

Templars killed her husband even after he had handed over

his property, threatened her and her children when she spoke

out about her husband’s murder, tried to recruit her son into

its ranks, ordered her to leave when she helped her son

escape, threatened to harm her if she did not leave within one

month, and told her the cartel would keep her property when

she left.

On all of these important points, the BIA accepted

Garcia’s credible testimony and even agreed with the IJ that

Garcia was targeted because the cartel either (1) “wanted to

obtain [her family] properties as part of their criminal

scheme,” or (2) “found an excuse by her son’s defiance of

the recruitment over him to also get rid of [Garcia] and

displace her from her property.” As we read its decision, the

BIA recognized that property ownership was a cause—and

moreover, the real reason—Garcia was targeted, but it still

found that she was not targeted “on account of” property

ownership. But to the contrary, under our case law, it is

sufficient under our mixed-motive precedent for the

petitioner to show that a protected ground “was a cause of

the persecutors’ acts.” See Parussimova, 555 F.3d at 741.

Because the BIA concluded that Garcia failed to establish a

nexus between her persecution and her status as a property

owner despite acknowledging the ways in which Garcia’s

property ownership played an important role in her

persecution, we hold that the BIA erred in its nexus analysis.

We remand for the agency to clarify its decision and to

NARANJO GARCIA V. WILKINSON 15

analyze in the first instance whether property ownership is a

cognizable social group in this context, and whether the

other elements of Garcia’s asylum claim are satisfied.

B

The BIA’s analysis of whether Garcia was persecuted on

account of family association was also flawed. Again, the

BIA assumed that family membership was a cognizable

protected ground. The BIA’s decision acknowledges that if

Garcia had shown evidence of “animus” towards her family,

then she would have demonstrated nexus to a protected

ground. Agreeing with the BIA, the Government argues that

neither personal retribution nor being a family member of an

individual who resisted gang recruitment establishes nexus.

See Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir.

2001) (finding that “[p]urely personal retribution” is not

persecution “on account of” a protected ground); Henriquez-

Rivas v. Holder, 707 F.3d 1081, 1092–93 (9th Cir. 2013)

(noting that general opposition to gangs and gang

recruitment are not protected grounds). True enough, but the

line between “animus” (providing nexus) and “purely

personal retribution” (no nexus) is a fine one, and the BIA’s

analysis ignores pertinent and uncontroverted evidence.

Our decision in Parada v. Sessions—concluding that

substantial evidence did not support the BIA’s determination

that Quiroz Parada was not persecuted “on account of”

family association—is instructive. See 902 F.3d at 910.

Quiroz Parada or members of his family had experienced

murder, physical assault, home invasions, and specific death

threats. Id. at 909. We held that the BIA’s “glib

characterization” of Quiroz Parada’s experience as “threats

against his family and attempt[s] to recruit him” was

insufficient to explain a finding of no nexus to family

association because Quiroz Parada’s “credible testimony”

16 NARANJO GARCIA V. WILKINSON

had established that members of a guerrilla political party,

FMLN, “specifically sought out the ‘particular social group’

of his family.” Id. at 909–10. It was “immaterial” that the

FMLN’s attempts to conscript Quiroz Parada would have

served the “dual goals” of pursuing their political objectives

“and of retaliating against the Quiroz Parada family”

because “the latter is a protected ground, even if the former

is not.” Id. at 911; see also Salgado-Sosa v. Sessions,

882 F.3d 451, 458 (4th Cir. 2018) (concluding that

petitioner’s kinship ties were a central reason for the harm

he feared, and also concluding that “the IJ and BIA erred by

focusing narrowly on the ‘immediate trigger’ for MS-13’s

assaults—greed or revenge—at the expense of . . . the very

relationships that prompted the asserted persecution”).

Garcia or members of her family similarly have

experienced murder, specific death threats, forcible taking of

property, attempted conscription, and retaliation for failed

conscription. Furthermore, the timing of the persecution and

statements by the persecutor may constitute circumstantial

evidence of motive. See Deloso v. Ashcroft, 393 F.3d 858,

865–66 (9th Cir. 2005) (timing); Gafoor v. INS, 231 F.3d

645, 651–52 (9th Cir. 2000) (persecutor statements),

superseded by statute on other grounds as stated by

Parussimova, 555 F.3d at 739–40. The cartel in part targeted

Garcia’s husband to obtain his property, but Garcia’s

husband was still killed even after he had turned over the

property deed, which suggests the cartel may have targeted

him for reasons beyond the possibility of stealing his

property. Beyond that, the cartel then sought out Garcia at

her husband’s funeral, a uniquely family affair, threatening

her so that she would remain silent about his death. Parada,

902 F.3d at 910. The cartel sought out Garcia once again

after she helped her son escape to the United States to avoid

the Templars’ recruitment efforts. In this coercive effort, the

NARANJO GARCIA V. WILKINSON 17

Templars forced her from her home and took her property.

Parada indicates that such sweeping retaliation towards a

family unit over time can demonstrate a kind of animus

distinct from “purely personal retribution.” See id. This

kind of targeting is sufficient to demonstrate nexus if the

petitioner shows via uncontradicted testimony that

persecutors “specifically sought out the ‘particular social

group’ of his family.” Id. We therefore conclude that the

BIA erred in its nexus analysis, and we remand for the

agency to clarify its decision and to analyze in the first

instance whether Garcia’s family membership is a

cognizable social group in this context, and whether the

other elements of Garcia’s asylum claim are satisfied. See

Baghdasaryan v. Holder, 592 F.3d 1018, 1023, 1025–26

(9th Cir. 2010) (holding the BIA erred in holding that

petitioner had failed to establish nexus where it “ignored”

concrete evidence that a protected ground motivated the

petitioner’s persecution).

IV

We next conclude that the BIA erred in its analysis of

Garcia’s withholding of removal claim by erroneously

conflating the nexus standard for withholding with the nexus

standard for asylum. We review de novo whether the BIA

applied the wrong legal standard to Garcia’s withholding of

removal claim. Bringas-Rodriguez, 850 F.3d at 1059.

The Attorney General must, in general, withhold

removal of a noncitizen if the noncitizen’s life or freedom

would be threatened “because of [their] race, religion,

nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1231(b)(3)(A); see also INS

v. Stevic, 467 U.S. 407, 424–25 (1984). To succeed, an

applicant must show a “clear probability” of persecution

because of a protected ground. Stevic, 467 U.S. at 429–30.

18 NARANJO GARCIA V. WILKINSON

Demonstrating a clear probability “requires objective

evidence that it is more likely than not that the [noncitizen]

will be subject to persecution upon deportation.” Zehatye v.

Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006). A person

seeking asylum has the burden of proving that their

persecution was “on account of” a protected ground, see

8 U.S.C. § 1101(a)(42)(A), while a withholding of removal

applicant must prove that her life or freedom would be

threatened “because of” a protected characteristic, 8 U.S.C.

§ 1231(b)(3)(A). “The words ‘on account of’ and ‘because

of’ address the persecutor’s motive for persecuting the

victim.” Barajas-Romero, 846 F.3d at 357. An asylum

applicant must demonstrate that a protected ground was “at

least one central reason” for her persecution. 8 U.S.C.

§ 1158(b)(1)(B)(i). A withholding of removal applicant, on

the other hand, must prove only that a cognizable protected

ground is “a reason” for future persecution. Barajas-

Romero, 846 F.3d at 359.

The “clear probability” standard for withholding is a

more stringent burden of proof than the standard for asylum,

which does not require that the applicant demonstrate that

harm would be more likely than not to occur. See id. But

the requirement that an applicant demonstrate that a

protected characteristic would be “a reason” for future

persecution is a “weaker motive” than the “one central

reason” required for asylum. Id. “A person may have ‘a

reason’ to do something that is not his ‘central’ reason or

even ‘one central reason.’” Id. Thus, although the overall

standard of proof is more difficult to meet in withholding

cases, the motive for persecution is easier to show. See id.

at 360 (“Since in withholding the petitioner must show a

probability, not just a well-founded fear, of persecution,

Congress may have diluted the nexus requirement in order

NARANJO GARCIA V. WILKINSON 19

to afford more protection against mistaken deportations

where a protected ground played into that likelihood.”).

Garcia contends that the BIA applied an erroneous legal

standard to its nexus analysis for her withholding of removal

claim, warranting remand. We agree. In Barajas-Romero v.

Lynch, we held that the phrase “a reason” includes “weaker

motives” than “one central reason.” Id. at 359. Because the

BIA had erroneously used the “one central reason” standard

to decide the applicant’s withholding claim, we remanded to

the BIA to decide the case under the correct “a reason”

standard. Id. at 360. We explained that Congress had

amended the asylum statute in 2009 to clarify that the burden

of proof for persecutor motive is “at least one central

reason.” Id. at 358 (citing 8 U.S.C. § 1158(b)(1)(B)(i)).

Because Congress had not chosen to also amend the

withholding statute to adopt that standard, we stressed that

Congress’s choice to keep the “a reason” standard for

withholding “appears to have been the product of a

deliberate choice, rather than a mere drafting oversight.” Id.;

see also Kucana v. Holder, 558 U.S. 233, 249 (2010)

(“Where Congress includes particular language in one

section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.”).

The difference between the motive standards matters,

particularly in cases like this one, in which the BIA’s

decision turns on its nexus determination. Barajas-Romero

underscores the importance of understanding the proper

nexus inquiry in close cases. There, the evidence suggested

that the police had initially kidnapped and tortured the

petitioner to extort money from him, but when he voiced a

political opinion during his kidnapping, the torture arguably

intensified and became worse. Id. at 360. The government

20 NARANJO GARCIA V. WILKINSON

argued that the police were not aware of his political

opinions before abusing him, so his persecution could not

have been “on account of” his political opinions. Id. We

explained, however, that the evidence was “not

unambiguous” on this point, such that a remand of the

petitioner’s withholding of removal claim was proper for the

BIA to consider whether application of the correct nexus

standard might cause a different outcome. Id. Because the

evidence in Garcia’s case is similarly “not unambiguous,”

we remand to the BIA.

The Government contends that the BIA “plainly applied”

the different withholding nexus standard by citing to the IJ’s

boilerplate addendum of law. We reject that contention.

Although the BIA decision cited the IJ’s addendum of law

and our Barajas-Romero decision, which distinguished

between the “one central reason” and “a reason” standards,

the BIA’s analysis is inconsistent with any serious

consideration of the difference. In denying Garcia’s

withholding of removal claim, the BIA here stated: “As

[Garcia] did not satisfy the lower standard of proof for

asylum, it necessarily follows that she did not satisfy the

more stringent standard for withholding of removal.”

(emphasis added). Even though the BIA followed this

statement with a paragraph explaining that the standards are

different, the BIA’s use of “necessarily follows”

demonstrates a type of piggy-backing analysis that we now

reject as inconsistent with the statutory text and Barajas-

Romero.

V

Finally, we conclude that substantial evidence does

support the BIA’s denial of CAT relief. To gain CAT relief,

Garcia had the burden to prove that it is more likely than not

that (1) she, in particular, would be (2) subject to harm

NARANJO GARCIA V. WILKINSON 21

amounting to torture (3) by or with the acquiescence of a

public official, if removed. 8 C.F.R. § 1208.16(c)(2);

Wakkary v. Holder, 558 F.3d 1049, 1067–68 (9th Cir. 2009).

While the same “more likely than not” standard applies to

CAT protection as withholding of removal under INA § 241,

8 U.S.C. § 1231, CAT applicants must demonstrate that the

feared harm is greater in that it must rise to the level of

torture. Tamang v. Holder, 598 F.3d 1083, 1095 (9th Cir.

2010). That is not a minor distinction. Torture is defined as

“any act by which severe pain or suffering, whether physical

or mental, is intentionally inflicted . . . .” 8 C.F.R.

§ 1208.18(a)(1). “Torture is an extreme form of cruel and

inhuman treatment and does not include lesser forms of

cruel, inhuman or degrading treatment or punishment that do

not amount to torture.” 8 C.F.R. § 1208.18(a)(2). Protection

“under CAT is based entirely on an objective basis of fear;

there is no subjective component to [an applicant’s] fear of

torture.” Tamang, 598 F.3d at 1095. Thus, speculative fear

of torture is not sufficient to satisfy the applicant’s burden.

Matter of V-X-, 26 I. & N. Dec. 147, 154 (BIA 2013).

Substantial evidence supports the BIA’s determination

that there is not a greater than fifty percent chance that

Garcia will experience torture if removed. The agency’s fact

finding is conclusive unless a reasonable adjudicator would

be compelled to conclude to the contrary. INA

§ 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992). The BIA here

concluded that the IJ did not err in predicting Garcia’s

likelihood of future torture “even considering the prior

threats, given that [Garcia] was never physically harmed by

anyone in Mexico, did not attempt to relocate within

Mexico, the Templars is the only cartel that she has had

problems with, and the Mexican government is taking steps

to combat corruption and cartel violence.” The BIA could

22 NARANJO GARCIA V. WILKINSON

have reasonably given weight to the fact that Garcia lived

peacefully in Michoacán between 2012 and 2018, when the

Templars did not “bother[]” her. Garcia testified that she

believed she would not be safe living with her parents

elsewhere in Mexico, and that she was not sure if she could

live peacefully in Mexico City, but a speculative fear of

torture is insufficient to satisfy the “more likely than not”

standard. See Cole v. Holder, 659 F.3d 762, 770 (9th Cir.

2011). The record does not compel the conclusion that

Garcia will more likely than not be tortured if removed to

Mexico, and for that reason we must deny relief on

Petitioner’s CAT claim. 3

VI

For these reasons, we conclude that the BIA erred in its

nexus analysis for both Garcia’s asylum claim and her

withholding of removal claim. We remand with instructions

for the BIA to reconsider Garcia’s asylum claim, and for the

BIA to consider whether Garcia is eligible for withholding

of removal under the proper “a reason” standard. We deny

the petition as it relates to Garcia’s claim for relief under

CAT.

PETITION GRANTED IN PART; REMANDED.

3

Because that reason alone precludes CAT relief, we need not and

do not reach any issue related to government acquiescence in or willful

blindness to torture.