United States Court of Appeals For the First Circuit

No. 20-1912

RICARDO JOSE PINEDA-MALDONADO,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Howard and Gelpí, Circuit Judges.

Kimberly A. Williams, with whom Jeffrey B. Rubin, Todd C. Pomerleau, and Rubin Pomerleau PC were on brief, for petitioner.

Yanal H. Yousef, Trial Attorney, Office of Immigration Litigation, with whom Brain M. Boynton, Acting Assistant Attorney General, Civil Division, Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, and Sherease Pratt, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

January 24, 2024 BARRON, Chief Judge. Ricardo Jose Pineda-Maldonado

("Pineda-Maldonado") is a native and citizen of El Salvador. He

petitions for review of the decision by the Board of Immigration

Appeals ("BIA") that denied his application for asylum and claims

for withholding of removal and protection under the Convention

Against Torture ("CAT"). We grant the petition, vacate the BIA's

decision, and remand for further proceedings consistent with this

decision.

I.

After fleeing El Salvador, Pineda-Maldonado entered the

United States without inspection on or about April 29, 2016. He

was charged with removal in July of 2016. He then applied for

asylum and brought claims for withholding of removal and protection

under the CAT.1 During his removal proceedings, Pineda-Maldonado

put forth the following evidence through a declaration and

testimony.

In August of 2014, Pineda-Maldonado's father, Victor

Manuel Pineda-Benitez, was murdered in El Salvador by "cattle

thieves" to whom the father owed a gambling-related financial debt.

More than a year later, in early February of 2016, Pineda-Maldonado

1 Pineda-Maldonado also moved to terminate his agency proceedings based on the Supreme Court's holding in Pereira v. Sessions,

(2018). Both the Immigration Judge ("IJ") and the BIA denied his motion, and he does not contest the agency's denial on appeal.

- 2 - "began receiving telephone calls" from the cattle thieves in which

they threatened to kill both Pineda-Maldonado and his brother

unless the father's gambling debt was paid. The cattle thieves

also made these death threats out of a concern that Pineda-

Maldonado and his brother would take "reprisals" against them for

their having murdered his father.

Later in February of 2016, the cattle thieves approached

Pineda-Maldonado on the street and questioned him about his

father's debt. They beat Pineda-Maldonado during the encounter

and threatened to take his life unless he paid the debt. Pineda-

Maldonado attempted to file a police report about the incident,

but the police refused to file the report or even to investigate.

Soon thereafter, as Pineda-Maldonado was leaving a

soccer game, police officers detained him, searched his

belongings, physically beat him, and, while doing so, asked him if

he was Victor's son. When Pineda-Maldonado answered that he was,

the police officers beat him more forcefully.

Following the beating, Pineda-Maldonado saw members of

the local police meeting with the cattle thieves. Not long after,

Pineda-Maldonado fled El Salvador and entered the United States

without inspection.

The "IJ" assigned to the removal proceedings deemed

Pineda-Maldonado credible but rejected his application for asylum,

denied both his withholding of removal and CAT claims, and entered

- 3 - a final order of removal against him. Pineda-Maldonado appealed

the IJ's decision to the BIA, which affirmed "for the reasons

articulated in [the IJ's] decision" while "emphasiz[ing]" certain

findings that the IJ had made. Pineda-Maldonado then filed this

timely petition for review.

II.

"Where, as here, the BIA 'adopts and affirms the IJ's

ruling' but nevertheless 'examines some of the IJ's conclusions,'

we review both the BIA and IJ opinions as a unit," Gómez-Medina v.

Barr,

(1st Cir. 2020) (quoting Perlera-Sola v.

Holder,

(1st Cir. 2012)), referring to the IJ

and BIA together as the "agency." In conducting our review, we

defer to the agency's factual determinations "as long as those

determinations are supported by substantial evidence," but we

review questions of law de novo. Ahmed v. Holder,

(1st Cir. 2010).

III.

We start with Pineda-Maldonado's challenge to the denial

of his CAT claim. To succeed on his request for protection under

the CAT, Pineda-Maldonado must show that "it is more likely than

not that he will be tortured if returned to his home country."

Bonnet v. Garland,

(1st Cir. 2021) (quoting

Mazariegos v. Lynch,

(1st Cir. 2015)).

- 4 - Under the CAT, torture involves, among other things, "an

act causing severe physical or mental pain or suffering . . . by

or at the instigation of or with the consent or acquiescence of a

public official." Romilus v. Ashcroft,

(1st Cir.

2004) (quoting Elien v. Ashcroft,

(1st Cir.

2004)); see

(a)(1). "[M]ental pain or suffering

. . . caused by or resulting from" threats of "imminent death"

constitutes "torture."

(a)(4); Ali v. Garland,

(1st Cir. 2022). Evidence of past torture "is

relevant to the question of whether [an individual] is more likely

than not to face future torture." Hernandez-Martinez v. Garland,

(1st Cir. 2023); see

(c)(3).

We begin with Pineda-Maldonado's challenge to the

agency's finding that he had not been tortured in the past. He

contends that finding cannot be sustained because neither the IJ

nor the BIA addressed the features of the evidence in the record

that bear most directly on that finding. Reviewing for whether

the agency's factual findings of no torture are supported by

substantial evidence on the record as a whole, Rodríguez-Villar v.

Barr,

(1st Cir. 2019), we agree that the finding

cannot be sustained.

The IJ did refer to the record evidence that supportably

shows that the cattle thieves had "threatened" Pineda-Maldonado.

The IJ also referred to the record evidence that the cattle thieves

- 5 - had encountered Pineda-Maldonado on the street in February of 2016

and told him that he "had to leave" El Salvador if he did not pay

the debt in question. In addition, the IJ noted that the cattle

thieves had physically assaulted Pineda-Maldonado during that same

encounter with him. But, while not all threats may cause torture

threats of imminent death may. See Lobo v. Holder,

(1st Cir. 2012). Yet, the IJ failed to assess -- at least in

any express way -- whether the cattle thieves' death threats were

threats of imminent death. Indeed, the IJ did not refer to the

threats as being death threats at all.

Of course, there is no requirement that a finding that

a death threat was not a threat of imminent death be express. Cf.

Pulisir v. Mukasey,

(1st Cir. 2008)

(acknowledging that an IJ may make implicit subsidiary findings of

fact); Rotinsulu v. Mukasey,

(1st Cir. 2008)

(same). But we cannot infer that the IJ based her no-past-torture

finding on an implicit finding that the threats were not of

imminent death. The IJ neither referred to the threats as death

threats nor mentioned the features of the record that supportably

(even if not conclusively) show that the threats did involve

threats of that sort -- namely, the evidence that the cattle

thieves had threatened to kill Pineda-Maldonado repeatedly within

a short period of time, culminating in their threat to do so while

- 6 - they were both beating him and telling him that he better leave

the country if he was not going to pay off the debt.

Moreover, even if we were to assume that the IJ had made

an implicit finding that the cattle thieves' threats did not amount

to torture because they were not threats of imminent death, the IJ

still "fail[ed] to articulate [her] reasoning on this issue with

sufficient particularity and clarity" to permit us to "infer the

factual or legal basis for [that] determination." H.H. v. Garland,

(1st Cir. 2022) (internal quotations omitted).

Accordingly, we cannot sustain the agency's decision denying the

CAT claim on the ground that Pineda-Maldonado failed to show that

he had been subject to torture in the past. See

(a)(4)(iii); Rodríguez-Villar,

(vacating

findings of no past torture and no past persecution where the

agency "failed to assess" whether the threats directed at the

applicant were death threats and thus "turn[ed] a blind eye to

salient facts" by "fail[ing] to grapple with the grave nature of

th[ose] threats" (quoting Sihotang v. Sessions,

(1st Cir. 2018))).

The IJ did separately conclude that "[t]here is

insufficient evidence that [Pineda-Maldonado] would be tortured in

the future" if he were removed to El Salvador. But, as we have

explained above, evidence of past torture is relevant to a

determination of whether there is a basis for finding that a person

- 7 - seeking CAT protection has met the burden to show a likelihood of

being subjected to torture in the future. See

(c)(3)(i) (directing that evidence relevant to the

possibility of future torture includes "[e]vidence of past

torture"); Hernandez-Martinez,

; see also Romilus,

(analyzing past incidents in determining likelihood

of future torture). Thus, our reasons for concluding that the

IJ's no-past-torture finding cannot be sustained also preclude us

from concluding that the IJ's no-future-torture finding can be

sustained. See Ali,

.

There does remain the BIA's decision that affirms the

IJ's denial of Pineda-Maldonado's CAT claim. But the BIA purported

to be relying only on "the reasons articulated in [the IJ's]

decision." Thus, that ruling provides no independent basis for our

concluding that the agency adequately explained the decision to

deny Pineda-Maldonado's CAT claim. See Ordonez-Quino v. Holder,

(1st Cir. 2014) (granting a petition for review

where the BIA adopted and affirmed the IJ's decision that "ignored

or unreasonably interpreted crucial . . . evidence" and provided

no further reasons for the denial on that basis); see also Cabrera

Vasquez v. Barr,

, 224 n.3 (4th Cir. 2019) ("The agency

did not consider whether the death threats [against petitioner]

constituted torture under the CAT. . . . Upon remand, therefore,

we expect that if there is a finding that the threats [the

- 8 - petitioner] received do not amount to torture, it will be

accompanied by meaningful reasoning."). Accordingly, we grant the

petition as to the CAT claim, vacate the agency's order denying

it, and remand for proceedings consistent with this opinion.2

IV.

We turn, then, to the portions of the petition for review

that challenge the agency's denial of Pineda-Maldonado's

application for asylum and its rejection of his claim for

withholding of removal. Here, too, we conclude that there is merit

to the petition.

2 We see no basis for concluding that the agency's errors in failing to address critical evidence were harmless, nor does the Attorney General contend that they were. We note, too, that the Attorney General -- understandably -- makes no argument that the IJ's statement that Pineda-Maldonado "ha[d] not established that it is more likely than not that officials in El Salvador would consent, acquiesce, turn a blind eye or actively engage in the torture of the respondent" amounts to a determination that Pineda- Maldonado failed to show that, even if he had established that the mistreatment that he would likely face in El Salvador if he returned to that country would rise to the level of torture, he failed to show that officials in El Salvador would "consent, acquiesce, turn a blind eye or actively engage" in it. See H.H.,

(explaining that "a government's 'acquiescence' to torture for purposes of the CAT may include a showing of willful blindness," which involves showing a "likelihood of a foreign government's awareness of torture" as well as "a likely breach of the government's duty to intervene to prevent the torture"); cf. Perez-Trujillo v. Garland,

(1st Cir. 2021).

- 9 - A.

To be eligible for asylum, see

(b)(1)(A),

an applicant must show that he or she is "unable or unwilling to

avail himself or herself of the protection of[] [any country of

his or her nationality] 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,"

(a)(42)(A). Asylum is "proper in mixed-motive cases

even where one motive would not be the basis for asylum, so long

as one of the statutory protected grounds is 'at least one central

reason' for the persecution." Aldana-Ramos v. Holder,

(1st Cir. 2014) (quoting

(b)(1)(B)(i)).

We have explained that an asylum applicant's showing

that he has suffered past persecution "creates a rebuttable

presumption of a well-founded fear of future persecution." Paiz-

Morales v. Lynch,

(1st Cir. 2015) (quoting Singh

v. Holder,

(1st Cir. 2014)). We have also held

that "credible death threats" can "amount to past persecution."

Aguilar-Escoto v. Garland,

(1st Cir. 2023); see

Javed v. Holder,

(1st Cir. 2013). We have

made clear as well that "the addition of physical violence,

although not required, makes a threat more likely to constitute

persecution." Javed,

.

- 10 - To be eligible for withholding of removal, a claimant

must demonstrate "a clear probability that, if returned to his

homeland, he will be persecuted on account of a statutorily

protected ground." Sanchez-Vasquez v. Garland,

(1st Cir. 2021). This "clear probability" standard "is even

higher" than the asylum standard. Villalta-Martinez v. Sessions,

(1st Cir. 2018); see Barnica-Lopez v. Garland,

(1st Cir. 2023) ("'[W]ithholding of removal

requires . . . a clear probability of persecution, rather than

merely [the] well-founded fear of persecution' required for

asylum, and subjective fear is only relevant for the latter."

(second alteration in original) (quoting Sanchez-Vasquez,

)). In the case of withholding of removal, as in the case of

asylum, evidence of past persecution creates a rebuttable

presumption of future persecution. Rotinsulu,

(citing

(b)(1)).

B.

The agency's denial of Pineda-Maldonado's application

for asylum rested on two grounds. The first was Pineda-Maldonado's

asserted failure to show either (1) that the mistreatment that he

had shown that he had been subjected to in the past rose "to the

level" of persecution or (2) that he had a well-founded fear of

being subjected to mistreatment that would rise to that level in

the future. The second was that he had failed to show the requisite

- 11 - nexus between the mistreatment that grounded his application for

asylum and a protected status. Pineda-Maldonado contends that

neither ground holds up. We agree.

1.

As to the first ground, the IJ found both that Pineda-

Maldonado failed to show that the cattle thieves' mistreatment of

him in El Salvador rose to the level of persecution and that he

failed to show that he otherwise had a well-founded fear of

persecution. But Pineda-Maldonado's arguments that neither

finding can be sustained persuade us.

The IJ's finding that the cattle thieves' mistreatment

did not rise to the level of persecution is one of fact that we

must uphold so long as it is supported by substantial evidence.

See Ahmed,

. But just as threats of death may cause

torture when they are threats of imminent death, see Ali,

, threats of death constitute persecution when they are

threats of that unusual kind, see, e.g., Aguilar-Escoto,

; Javed,

; Amouri v. Holder,

(1st Cir. 2009). Yet, the IJ based her finding that the cattle

thieves' mistreatment did not rise to the level of persecution on

the same stripped-down description of that mistreatment that we

have concluded fails to suffice to explain the agency's

determination that Pineda-Maldonado had not been tortured in the

past. Thus, we may not sustain that finding any more than we may

- 12 - sustain the IJ's no-past-torture finding. See Rodríguez-Villar,

(vacating a finding of no past persecution for

an applicant who suffered two threatening phone calls, two home

invasions, and a beating over the course of approximately nineteen

months where the agency "failed to grapple with the grave nature

of the [death] threats"); Un v. Gonzales,

, 209-

10 (1st Cir. 2005) (granting a petition for review and remanding

for the agency to consider whether two confrontations over the

course of four months, one of which included death threats,

constituted past persecution); Aguilar-Escoto,

(finding reversible error where the agency failed to analyze "or,

indeed, mention . . . whether the death threats [the applicant]

experienced coupled with physical violence rose to the level of

persecution").

The Attorney General does point out that "mistreatment

ordinarily must entail more than sporadic abuse in order to

constitute persecution[,]" Bocova v. Gonzalez,

(1st Cir. 2005), superseded in unrelated part by

(i), as recognized in Ivanov v. Holder,

(1st Cir. 2013).3 And the IJ did find that the beating that Pineda-

Maldonado received from the cattle thieves and the beating that he

We have acknowledged, however, that "a death threat in the 3

midst of a single act of violence" may be "enough to establish past persecution." Thapaliya v. Holder,

(1st Cir. 2014).

- 13 - received from the police were two separate incidents that occurred

over the course of two different months.

But even if we were to set aside the beating that Pineda-

Maldonado endured at the hands of the police officers on the ground

that it was an incident that was isolated from the cattle thieves'

mistreatment, there would remain the question of whether the cattle

thieves' mistreatment in and of itself rose to the level of

persecution. The IJ made no finding, however, that the cattle

thieves' mistreatment of Pineda-Maldonado merely consisted of a

series of isolated incidents, none of which rose to the level of

persecution. Nor does the Attorney General argue that the record

could support any such finding. And, we note, the record

supportably shows that, within the same month, the cattle thieves

not only lodged death threats against Pineda-Maldonado, both by

phone and in person, but also that, in making them, the cattle

thieves consistently focused their attention on both his father

and his father's debt. Thus, with no ruling by the agency on this

factual point, we see no basis for upholding the agency's denial

of asylum, as we see no basis for concluding that the record

compels the finding that the cattle thieves' mistreatment was not

serious enough to qualify as persecution because that mistreatment

consisted of only isolated incidents that were not in themselves

serious enough to be so deemed.

- 14 - Turning to the IJ's separate finding that Pineda-

Maldonado had failed to meet his burden to show that he had a well-

founded fear of future persecution should he return to El Salvador,

we again confront a finding of fact. See Ahmed,

.

But this factual finding also provides no basis for our sustaining

the agency's denial of his asylum application.

The IJ made this determination on the ground that Pineda-

Maldonado's brother, who Pineda-Maldonado claimed was in hiding,

lived in a different town and had not been subject to any further

harm or threats. But, as we have said, a finding of past

persecution triggers a presumption of future persecution. See

Uruci v. Holder,

(1st Cir. 2009). And yet the

IJ did not apply that presumption here, precisely because she found

that there had been no showing of past persecution. Accordingly,

we cannot sustain the agency's denial of the asylum application

based on the finding that Pineda-Maldonado failed to meet his

burden to show that he would be subject to future persecution.

See Sok v. Mukasey,

(1st Cir. 2008); Hernandez-

Barrera v. Ashcroft,

(1st Cir. 2004) ("[T]he absence

of reasoned discussion of past persecution undercuts any

meaningful review of the [agency's] fear of future persecution

finding, because we do not know whether [the applicant] should

have had the benefit of the regulatory presumption of fear of

persecution based on prior events." (second and third alterations

- 15 - in original) (quoting El Moraghy v. Ashcroft,

, 204-

05 (1st Cir. 2003))).

We add only that the fact that the BIA affirmed the IJ's

denial of the asylum application also provides no basis for our

sustaining the agency's denial of that application on the ground

that Pineda-Maldonado had not met his burden to show either that

the past mistreatment that he had endured rose to the level of

persecution or that the mistreatment that he feared that he would

endure in the future would rise to such level. And that is because

the BIA provided no justification for affirming the IJ's denial of

the asylum application beyond the reasons that the IJ gave for

denying it.

2.

The agency did also provide an independent ground for

its decision to deny Pineda-Maldonado's asylum application: he

failed to show the required nexus between the persecution that

grounds his asylum application and one of the five statutorily

enumerated protected statuses. See

(a)(42)(A).

The protected ground to which Pineda-Maldonado claims his

persecution bears a nexus is family membership. See Aldana-Ramos,

. But, we are persuaded by Pineda-Maldonado's

arguments that this ground for denying his asylum application is

also wanting.

- 16 - We have confronted the question of when alleged

persecution is "on account of" family status in a variety of

contexts, see, e.g., Aldana-Ramos,

; Villalta-Martinez,

; Enamorado-Rodriguez v. Barr,

(1st Cir.

2019); Giraldo-Pabon v. Lynch,

(1st Cir. 2016);

Aguilar-De Guillen v. Sessions,

(1st Cir. 2018); Loja-

Tene v. Barr,

(1st Cir. 2020); Barnica-Lopez,

; Sosa-Perez v. Sessions,

(1st Cir. 2018). But we

have not been "entirely clear" about "when an asylum applicant is

persecuted 'on account of' membership in a family unit." Marín-

Portillo v. Lynch,

, 102 n.4 (1st Cir. 2016).

We have been clear that "[t]he mere fact that [a family]

received threats as a family unit, without more, 'does not convert

[a] non-protected criminal motivation into persecution on the

basis of family connections.'" Barnica-Lopez,

-32

(quoting Loja-Tene,

). The more elusive question is

the one that this case squarely implicates: what must that "more"

entail?

We have explained that for persecution to have been "on

account of" family membership the reason for the persecution

"cannot be 'incidental, tangential, superficial, or subordinate to

another reason for [the] harm.'" Sanchez-Vasquez,

(quoting Singh v. Mukasey,

(1st Cir. 2008)). Rather,

"family membership . . . must be at the root of the persecution,

- 17 - so that family membership itself brings about the persecutorial

conduct." Barnica-Lopez,

(quoting Ruiz-Escobar v.

Sessions,

(1st Cir. 2018)).

That does not mean, however, that such membership must

have been the sole reason for the persecution. See Aldana-Ramos,

. Family membership need only "qualify as [one]

'central reason' for the harm." Sanchez-Vasquez,

.

Given this body of precedent, we do not disagree with

the agency that, insofar as the record supportably shows in this

case that the mistreatment at issue was solely driven by a

"personal" dispute, there would be no basis for overturning the

agency's nexus finding. As we have explained, "[e]vents that stem

from personal disputes are generally not enough to show the

required nexus," Barnica-Lopez,

(alteration in

original) (quoting Sompotan v. Mukasey,

(1st Cir.

2008)), in cases in which an asylum applicant claims to have been

subjected to persecutorial conduct on account of family status.

And in line with that precedent, we have "long 'viewed disputes

motivated by revenge as personal in nature,'"

(quoting Marín-

Portillo,

), just as we have deemed disputes over

money to be, see Villalta-Martinez,

.

Nonetheless, in Marín-Portillo,

, we

were careful to acknowledge a potential concern with

characterizing mistreatment alleged to be "on account of" family

- 18 - status as merely stemming from a personal dispute. The concern

was with construing the nexus requirement in a manner that would

"effectively swallow[] the rule that family membership is a

protected social group."

We acknowledged that this concern

stemmed from the reality that victims of persecution "on account

of" family status may be "regularly -- and perhaps invariably --

targeted, whether for retribution or otherwise, because of the

actions of another member of their family."

Accordingly, our

analysis in Marín-Portillo made clear the fact-dependent nature of

the nexus inquiry in cases involving claims of persecution "on

account of" family status.

With respect to that point, in Marín-Portillo we

rejected on nexus grounds a claim of family-status-based

persecution in which the petitioner claimed that he was being

persecuted by the individual who had murdered the petitioner's

father. And, in doing so, we focused our analysis on what the

record revealed about whether the petitioner himself had taken any

actions that led the alleged persecutor to either want vengeance

against the petitioner or to fear that the petitioner would take

revenge on him for his murder of the petitioner's father. See

. We also emphasized in so ruling that "[w]e d[id] not

intend for [our] opinion to shed light on the question of whether

petitioners may claim persecution on account of family membership

- 19 - when they are targeted as retaliation for the actions of another

family member."

at 102 n.4 (emphasis added).

We do recognize that the agency here found that Pineda-

Maldonado had failed to meet his burden to show that family

membership was "one central reason" for the alleged persecution in

this case. See Aldana-Ramos,

. We recognize, too,

that this determination is one of fact that we must sustain unless

the record "compel[s] the contrary conclusion." See Jimenez-

Portillo v. Garland,

(1st Cir. 2022) (alteration

in original) (quoting Lopez de Hincapie v. Gonzales,

(1st Cir. 2007)).

Moreover, the record does plainly show that the cattle

thieves were of the view that Pineda-Maldonado owed them his

father's debt and that they were motivated to mistreat him by their

desire to get him to pay that debt. Thus, in that sense, there

was clearly a pecuniary motive for the mistreatment. We also note

that there is no evidence that the cattle thieves had any invidious

animus against Pineda-Maldonado's family unconnected to the debt.

So, in that respect as well, this is not a straightforward case of

family-based persecution.

Nonetheless, there is no question on this record that

the cattle thieves were targeting Pineda-Maldonado because they

deemed him to be indebted to them. Yet, there is nothing in the

record that could explain why the cattle thieves deemed Pineda-

- 20 - Maldonado to be indebted to them apart from their knowledge that

he was a member of his father's family.

For example, nothing in the record indicates that

Pineda-Maldonado in fact had acquired a legal obligation to pay

his father's debt in consequence of his family status, such that

the debt on that basis could fairly be understood to be Pineda-

Maldonado's in his own right. See Rui Sheng Zhu v. Holder,

(9th Cir. 2010) (noting that the families of debtors

who owe money to the Chinese government themselves owe the debt

under Chinese law); Yin Guan Lin v. Holder,

(7th Cir. 2011). Nor do we see how the cattle thieves' choice to

target Pineda-Maldonado for the mistreatment could be deemed to

stem from their determination that he had special access to the

money that they sought, such that their motivation to target him

for mistreatment could be deemed on that basis to stem from some

attribute of his apart from his familial status as his father's

son. See Villalta-Martinez,

. Rather, from all

that the record reveals, the cattle thieves deemed Pineda-

Maldonado as having "owed" the debt solely due to the "actions of

another family member" -- namely, those of his father in incurring

the debt -- and his familial tie to that family member. Marín-

Portillo,

n.4.

There also is nothing in any of our precedents that

requires a different conclusion. Indeed, a comparison of the facts

- 21 - here to those in our most analogous precedent, Ruiz-Varela v. Barr,

(1st Cir. 2020), leads us to conclude that substantial

evidence does not support the agency's no-nexus finding here.

Ruiz-Varela involved a claim of family-based persecution

by a petitioner who was the son of a small-business owner who was

being extorted for protection money.

. The

petitioner contended that he was being targeted by his persecutors

to exert pressure on the father to give in to the extortion.

.

We explained that the record showed that, even if the

father was the only one being extorted, (1) the petitioner was

working alongside his father at the small business and was

frequently there when the alleged persecutors came to demand the

protection money,

; (2) other family members, who

lived either nearby and frequented the small business or in a

residence affixed to the backside of the building in which the

business was located, were not themselves targeted for

mistreatment,

; and (3) there was no indication in the

one instance in which the alleged persecutors shot at the

petitioner that they were motivated to do so because of his

familial tie to his father,

Thus, we concluded that the

evidence did not compel the conclusion that the petitioner was

mistreated on account of his family status to pressure his father

because the evidence showed that the alleged persecutors had

- 22 - available for targeting, but did not pursue, "other ready, familial

targets" in their attempts to extort the father.

.

The record here is very different. The only other living

family member of whom the evidence supportably shows the cattle

thieves were aware was Pineda-Maldonado's brother. Cf.

at 126

n.2 (finding it relevant that it could be easily inferred from the

record that the alleged persecutors knew the petitioner's father

had other nearby family members). But the record supportably shows

that Pineda-Maldonado's brother was himself the target of multiple

death threats by the cattle thieves over the telephone during

February of 2016.

The agency did determine that the fact that the brother

was not thereafter targeted by the cattle thieves supported the

conclusion that Pineda-Maldonado had failed to show that he had a

well-founded fear of persecution on account of a protected ground.

But there is no evidence in the record that Pineda-Maldonado's

brother was proximate to the place where Pineda-Maldonado was

beaten by the cattle thieves in the only instance in the record

that shows them to have encountered Pineda-Maldonado face-to-face.

Nor is there any evidence in the record of the brother being

otherwise proximate to the cattle thieves during the relevant time

and their choosing not to target him as they targeted Pineda-

Maldonado when they encountered him.

- 23 - Thus, in contrast to the situation in Ruiz-Varela, there

is no record evidence here to show that the alleged persecutors

chose not to target another family member even though that family

member was available to be targeted. Finally, unlike the alleged

persecutors in Ruiz-Varela, the cattle thieves during their

beating of Pineda-Maldonado did in fact identify Pineda-

Maldonado's father's debt as their motivation for the

confrontation and ensuing assault. Accordingly, we do not see how

we could say on this record that substantial evidence supports the

finding that the family-based reason for targeting Pineda-

Maldonado was "subordinate to" the pecuniary-based one, such that

the family-based reason was not itself "at the root" of the alleged

persecutorial conduct, see Barnica-Lopez,

, and

so "a central reason" for the mistreatment even if not the sole

one, see Sanchez-Vasquez,

(internal quotations

omitted).

We reach a similar conclusion with respect to whether

Pineda-Maldonado has shown the claimed nexus to family status

notwithstanding that the evidence shows that the cattle thieves

were concerned that Pineda-Maldonado would seek retribution

against them for having murdered his father. The fact that the

cattle thieves were motivated in targeting Pineda-Maldonado in

part to protect themselves, because they feared Pineda-Maldonado

would retaliate against them, is not disputed by the parties. But

- 24 - that fact does not in and of itself suffice to end the inquiry

into whether family status was "a central reason" for their having

targeted him, Aldana-Ramos,

(emphasis added), any

more than the fact that the cattle thieves sought money in

targeting Pineda-Maldonado due to his father's debt could end such

an inquiry. The question remains as to whether there was any

reason for the cattle thieves to fear that Pineda-Maldonado would

retaliate against them apart from the mere fact that he was his

father's son. Nothing in the record indicates, though, that

Pineda-Maldonado had taken any actions or made any statements that

could have led the cattle thieves to fear that he would harm them.

Thus, this case is not like Marín-Portillo, in which the

record supportably showed that the perpetrator of the asserted

persecution was aware that his target -- the petitioner -- was

interested in holding the perpetrator accountable for his murder

of the target's father and had already taken actions to do so.

See

. The record suffices instead to show here

only that the sole basis for the alleged persecutors' fear of

reprisals by Pineda-Maldonado was that they knew that he had a

familial tie to the person whom they had murdered. So, here too,

we conclude that, for all the record shows, family membership was

"at the root" of the alleged persecutorial conduct, see Barnica-

Lopez, 59 F.4th at 530.

- 25 - In concluding that any persecution that Pineda-Maldonado

suffered was "on account of" his family status, we emphasize that

our reasoning accords with the Seventh Circuit's in Gonzalez Ruano

v. Barr,

(7th Cir. 2019). There, the court

held that an asylum applicant had shown persecution "on account

of" his family status where the "relationship to his wife was the

reason he, and not someone else, was targeted" by a persecutor who

wanted to "possess" the applicant's wife.

And that was so,

the court explained, because there was no action by the applicant

apart from his having the familial tie that could explain the

targeting.

We note, too, that our decision accords with the Eleventh

Circuit's conclusion in Perez-Sanchez v. U.S. Attorney General,

(11th Cir. 2019), that persecution was on account of

family status where a cartel targeted an individual to pay back a

debt said individual's father-in-law owed to the cartel. The court

reasoned there that "it [was] impossible to disentangle" the

applicant's family status from the cartel's pecuniary motives

because "[a]bsent the familial relationship between [the asylum

applicant] and [his father-in-law], the cartel would never have

hunted [the applicant] . . . down."

. For the reasons

we have given, here as well we find it "impossible to disentangle

[Pineda-Maldonado's] relationship to his [father] from the [cattle

- 26 - thieves'] pecuniary motives: they are two sides of the same coin."

We do recognize that some circuits appear to have held

that animus toward a protected group must motivate the persecution

for an applicant to be eligible for asylum. See, e.g., Orellana-

Recinos v. Garland,

(10th Cir. 2021) (upholding

an agency's conclusion that threatening a mother in an effort to

recruit her son to join a gang did not constitute persecution on

account of family membership because the agency could have

reasonably found "that the gang members had no animus against [the

petitioner's] family per se"); Cruz-Guzman v. Barr,

(6th Cir. 2019) (affirming the BIA's conclusion that the

petitioner failed to show that the gang was "motivated by

particular animus" toward the petitioner's family); Berrios-Bruno

v. Garland, No. 18-60276,

, at *5-6 (5th Cir. Aug.

16, 2021) (affirming the BIA's conclusion that the gang targeted

the petitioner "only to effectuate its interests in maintaining a

viable extortion regime" and not because of animus against the

family to which the petitioner belonged). But, insofar as those

circuits have, we cannot agree. The asylum statute does not say

anything to suggest that "animus" toward a particular social group

is required for an applicant to be eligible for asylum, as it uses

the phrase "on account of." See

(b)(1)(A);

(a)(42)(A).

- 27 - Nor does the Attorney General identify any binding

agency precedent that sets forth a test other than the one that we

apply here, which requires only that the petitioner show that a

protected ground is "a central reason" for the persecution for the

petitioner to show that the persecution was "on account of" that

ground. Indeed, while the BIA has noted that a nexus "would be

established based on family membership where a persecutor is

seeking to harm the family members because of an animus against

the family itself," Matter of L-E-A-,

(BIA

2017), overruled on other grounds by Matter of L-E-A-,

(A.G. 2019) (emphasis added), the BIA determined there

only that animus is a sufficient reason to find that persecution

is on account of family membership, not that it is a necessary

one, see id. at 45 ("However, if animus against the family per se

is not implicated . . . . [t]here are other circumstances where

the evidence establishes that one central reason for the

applicant's harm was his or her family status.").4

4It is not entirely clear what the BIA and some of our sister circuits mean by "animus." But if "animus" is meant to refer to hatred of, or antagonism toward, the petitioner's family, we do not read any of our precedents in this realm that refer to "animus" to require a showing of such hatred or antagonism. Rather, all of them are compatible with the conclusion that a nexus to family status may be shown on the basis of evidence akin to the evidence that we conclude supportably shows such a nexus here. See Sanchez v. Garland,

(1st Cir. 2023); Perlera-Sola v. Holder,

(1st Cir. 2012); Barnica-Lopez,

; Jimenez-Portillo,

; Ruiz-Varela,

; Gómez-Medina v. Barr,

(1st Cir. 2020).

- 28 - Finally, we emphasize that in concluding that

substantial evidence does not support the agency's finding that

Pineda-Maldonado showed his family status only to have been

"incidental" to both the cattle thieves' desire to obtain money

from him and their fear of future retaliation by him, we do not

thereby construe the nexus requirement to be any less demanding

than it was intended to be. Rather, we construe it in a manner

that accords with the notion that an asylum applicant must show

that they have a well-founded fear of persecution that is based on

"something that . . . is beyond the power of an individual to

change," as such a showing "preserve[s] the concept that refuge is

restricted to individuals who are . . . unable by their own actions

. . . to avoid persecution." Matter of Acosta,

(BIA 1985); see, e.g., Cece v. Holder,

(7th Cir. 2013) (recognizing deference to Acosta's formulation

of particular social group as being "defined by a characteristic

that is either immutable or is so fundamental to individual

identity or conscience that a person ought not be required to

change"); Diaz-Reynoso v. Barr,

(9th Cir.

2020); Canales-Rivera v. Barr,

(4th Cir. 2020);

Koudriachova v. Gonzales,

(2d Cir. 2007).

3.

In sum, we conclude that the petition for review must be

granted as to the challenge to the agency's denial of Pineda-

- 29 - Maldonado's asylum application. The agency's denial of that

application cannot be sustained on either the ground that Pineda-

Maldonado has failed to show the requisite well-founded fear of

being subject to mistreatment that would rise to the level of

persecution or the ground that, in any event, Pineda-Maldonado has

not shown the requisite nexus between the mistreatment to which he

was subjected and a protected status. Accordingly, the BIA's

decision denying Pineda-Maldonado's asylum application is vacated

and remanded for further proceedings consistent with this

decision.

C.

That leaves only Pineda-Maldonado's petition for review

of the agency's denial of his claim for withholding of removal.

The agency denied Pineda-Maldonado's claim for withholding of

removal on the ground that the standard for demonstrating

entitlement to such withholding is higher than the standard for

demonstrating entitlement to asylum and thus that because Pineda-

Maldonado failed to show the latter he also failed to show the

former. See Villalta-Martinez,

. But, for the

reasons we have explained, we find that the agency erred in denying

Pineda-Maldonado's petition for asylum. We therefore conclude

that the agency's denial of Pineda-Maldonado's claim for

withholding of removal on the ground that his asylum application

was denied is also in error. And because the agency provided no

- 30 - other justification that could suffice to sustain that denial, we

grant Pineda-Maldonado's petition for review of the denial of his

claim for withholding of removal.5

V.

For the foregoing reasons, we grant Pineda-Maldonado's

petition for review of the denial of his application for asylum

and his claims for withholding of removal and protection under the

Convention Against Torture. We vacate the BIA's decision and

remand for further proceedings consistent with this opinion.

5 We recognize there is a circuit split as to whether the "one central reason" standard is the proper nexus standard in mixed- motive cases for both asylum and withholding of removal or if withholding of removal is subject to a lower "a reason" standard, whether "central" or not. Compare Barajas-Romero v. Lynch,

(9th Cir. 2017) (holding that the proper standard for withholding of removal is "'a reason' rather than 'one central reason'" and that the "a reason" standard is "less demanding"), and Guzman-Vazquez v. Barr,

(6th Cir. 2020), with Gonzalez-Posadas v. Att'y Gen.,

, 685 n.6 (3d Cir. 2015) ("We believe that the [BIA's] decision in Matter of C- T-L- to extend the 'one central reason' test to withholding of removal was sound and we likewise adopt that conclusion now."), and Quituizaca v. Garland,

(2d Cir. 2022). But, as we conclude that Pineda-Maldonado's challenge succeeds under even the "one central reason" standard, we need not address the issue here. See Chavez v. Garland,

, 430 n.4 (1st Cir. 2022).

- 31 -