Application for asylum, withholding of removal, & relief under the Convention Against Torture (CAT); Threat of violence & persecution; Membership in “particular social group”; Whether the Board of Immigration Appeals (BIA) engaged in “improper factfinding” when it reviewed an issue the immigration judge (IJ) never reached; “Nexus”; 8 CFR § 1003.1(d)(3)(i); Standard to be applied to nexus determinations; Guzman-Vazquez v Barr

In this appeal from the denial of an application for asylum, withholding of removal, and protection under the CAT, the court upheld the BIA’s conclusion that petitioner-Vasquez-Rivera failed to show that three of her proffered “protected groups” were cognizable, defined groups subject to violence in El-Salvador. But as to the fourth group, her family, it held that the BIA engaged in “de novo factfinding” when it conducted a “nexus” analysis where the IJ never addressed this issue. Vasquez-Rivera was illegally brought into the U.S. when she was 9 years old. She was 13 when her asylum hearing was held. She and her mother testified that she would be under the threat of gang violence, including rape, if she was returned to El Salvador. The IJ concluded she did not meet her burden for asylum and denied her petition for asylum as well as for withholding of removal and CAT protection. The BIA affirmed. She proposed four groups as subjecting her to the risk of violence – “(1) Salvadoran women and girls whose parents live outside the country; (2) her family; (3) family members of persons targeted for gang recruitment whose family is threatened when they refuse to join the gangs; and (4) young Salvadoran women considered to be property of the gangs.” The court agreed with “the BIA and the IJ’s conclusion that Vasquez-Rivera failed to identify sufficient evidence in the record establishing that three of these groups (all proposed groups except her family) are perceived as distinct social groups in El Salvador.” As to the family group, the BIA assumed this was a cognizable group but determined that there was no nexus between that group and any perceived or experienced harm. The court held that because the IJ never reached the nexus issue and just found that all four groups were not cognizable, “the BIA’s conclusions as to the nexus required to prove asylum for this social group lack support in the record and constitute improper de novo factfinding.” As to what nexus standards should be applied, in Guzman-Vazquez, the court recently “held that applicants for withholding of removal ‘must demonstrate that a protected ground was at least one reason for their persecution.’” While the court noted the conflicts among the circuits in this regard, the BIA is to “apply circuit nexus precedent to Vasquez-Rivera’s asylum claim and claim for withholding of removal based on her membership in her family.” As for the CAT claim, the proffered “general evidence fails to demonstrate that Vasquez-Rivera herself ‘faces a particularized and likely threat of torture at the hands of a public official, or with the consent or acquiescence of a public official,’ in El Salvador.” It granted in part and denied in part the petition for review, vacated the BIA’s decision as to the asylum and withholding of removal claims based on family membership, and remanded.