55 F.4th 1213
9th Cir.2022Background
- Petitioner Nery Adeli Salguero Sosa, a Guatemalan national with dwarfism and an advocate for dwarf rights, overstayed a U.S. visa and applied for asylum, withholding of removal, and CAT protection.
- He testified to multiple incidents he says constituted past persecution: childhood/educational mistreatment, employment discrimination, repeated assaults/robberies (including a severe beating), anonymous death threats, social ostracism (including a pressured abortion of his partner), and his brother’s death after allegedly inadequate hospital care.
- The IJ and then the BIA denied asylum, withholding, and CAT: concluding the harms amounted to discrimination not persecution, applying asylum’s heightened nexus standard to withholding, and finding insufficient evidence of government acquiescence for CAT.
- Salguero Sosa appealed to the Ninth Circuit. The court granted the petition in part, remanding asylum and withholding claims for further proceedings and affirming denial of CAT relief.
- The Ninth Circuit held the BIA erred as a matter of law by failing to perform a cumulative-effect review of past harms and by applying the wrong nexus standard to withholding; it declined to decide PSG/disfavored-group questions pending remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA was required to perform a cumulative-effect review when assessing past persecution (asylum & withholding) | BIA failed to consider the cumulative impact of multiple incidents; cumulative-review is required | Government argued cited cases were fact‑specific and do not establish a freestanding legal requirement for cumulative review | Court held BIA must conduct cumulative-effect review for past-persecution claims; failure to do so is legal error and remanded asylum and withholding claims |
| Proper nexus standard for withholding of removal | Withholding requires only that a protected ground be “a reason” for persecution | BIA applied asylum’s stricter “at least one central reason” standard to withholding | Court held BIA applied the wrong (heightened) nexus standard to withholding and remanded for correct legal standard |
| Whether petitioner is member of a disfavored particular social group (dwarfs; human-rights defenders) and has well‑founded fear of future persecution | Salguero Sosa: he belongs to PSG(s) and faces future persecution | BIA: no pattern/practice of persecution; not a disfavored group; no individualized risk shown | Court declined to resolve now—remanded because proper past-persecution finding on remand may change nexus/disfavored-group analysis |
| CAT relief — government acquiescence to torture | Petitioner: more likely than not he would be tortured with government acquiescence if returned | Government/BIA: record does not show government would acquiesce; evidence is insufficient | Court held substantial evidence supports BIA’s denial of CAT relief and affirmed that denial |
Key Cases Cited
- Sharma v. Garland, 9 F.4th 1052 (9th Cir. 2021) (discussing cumulative-effect analysis for past persecution)
- Korablina v. INS, 158 F.3d 1038 (9th Cir. 1998) (multiple incidents considered cumulatively can compel finding of persecution)
- Guo v. Sessions, 897 F.3d 1208 (9th Cir. 2018) (consideration of combined harms in past-persecution analysis)
- Singh v. INS, 94 F.3d 1353 (9th Cir. 1996) (single incident may not suffice; cumulative harms may constitute persecution)
- Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) (explaining asylum’s "one central reason" vs. withholding’s "a reason" nexus standards)
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (describing the highly deferential substantial-evidence standard for reviewing BIA factual findings)