XAVIER PUCHA QUITUIZACA, AKA MANUEL SANCHEZ RODRIGUEZ v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL
No. 19-3470-ag
United States Court of Appeals For the Second Circuit
DECIDED: NOVEMBER 1, 2022
AUGUST TERM 2021; ARGUED: JANUARY 18, 2022
On Petition for Review of a Final Decision of the Board of Immigration Appeals.
Before: KEARSE,
Xavier Pucha Quituizaca petitions for review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge‘s denial of his application for asylum and withholding of removal under the Immigration and Nationality Act and protection under the Convention Against Torture (CAT). Quituizaca argues that the agency erred in denying his withholding of removal claim when it required that he demonstrate that his ethnicity was “at least one central reason” motivating his claimed persecution. He also challenges the BIA‘s denial of his asylum claim and its finding that he waived his CAT claim.
We hold that the withholding of removal statute is ambiguous as to the showing required to establish that a protected ground, such as ethnicity, motivated a persecutor. We also hold that the BIA‘s interpretation that the “one central reason” standard applies to withholding of removal
Judge Sullivan concurs in Parts II and III and in the judgment, and files a separate concurring opinion as to Part I.
REBECCA RUTH PRESS, UnLocal, Inc. Community Immigration Legal Services, New York, NY (Xavier Pucha Quituizaca, pro se, Batavia, NY, on the briefs), for Petitioner.
MICHELE Y. F. SARKO, Office of Immigration Litigation (Timothy G. Hayes, Senior Litigation Counsel, on the brief), for Jeffrey Bossert Clark, Acting Assistant Attorney General—Civil Division, U.S. Department of Justice, Washington, DC, for Respondent.
JOHN M. WALKER, JR., Circuit Judge:
Xavier Pucha Quituizaca petitions for review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge‘s (IJ‘s) denial of his application for asylum and withholding of removal under the Immigration and Nationality Act (INA) and protection under the Convention Against Torture (CAT). Quituizaca argues that the agency erred in denying his withholding of removal claim when it required that he demonstrate that his ethnicity was “at least one central reason” motivating his claimed persecution. He also challenges the BIA‘s denial of his asylum claim and its finding that he waived his CAT claim.
We hold that the withholding of removal statute is ambiguous as to the showing required to establish that a protected ground, such as ethnicity, motivated a persecutor. We also hold that the BIA‘s interpretation that the “one central reason” standard applies to withholding of removal claims is reasonable and thus entitled to deference. Because we find that the BIA‘s denial of Quituizaca‘s asylum and withholding claims are supported by substantial evidence and that Quituizaca waived his CAT claim, we DENY the petition.
Judge Sullivan concurs in Parts II and III and in the judgment, and files a separate concurring opinion as to Part I.
BACKGROUND
Quituizaca, a native and citizen of Ecuador, entered the United States in 2006 unlawfully without inspection. In 2018, the government opened removal proceedings against him. Quituizaca appeared before an IJ and conceded removability but applied for asylum, withholding of removal, and protection under CAT, any of which would have provided him with relief from the removal proceedings.
The facts in this appeal are undisputed. Quituizaca‘s requests for relief arise out of allegations that he was twice attacked by the “Morocha Kigwas,” a gang in Ecuador that he claims targeted him because of his indigenous Quechua ethnicity. At the hearing before the IJ, Quituizaca testified that in 2003, gang members boarded a bus “full of indigenous people” who were mostly of high school age.1 The gang removed Quituizaca—then 18 years old and returning from work—from the bus, robbed him at knifepoint, and beat him when he tried to run away. When asked why he thought he was “singled out,” Quituizaca explained that the gang routinely patrolled the buses.2 He did not report the robbery to the police because he claimed that they did not “listen to indigenous people.”3
Two years later, the same gang again confronted Quituizaca. This time, Quituizaca was with his brother and friends at a bus stop around midnight. The gang demanded their money, jackets, and shoes. Quituizaca complied, but one of his friends who resisted and tried to fight back was fatally stabbed by the gang‘s leader. The leader then hit Quituizaca and threatened that Quituizaca and his family would meet the same fate as his friend if he reported anything to the police.4 Quituizaca did not report these events. Although Quituizaca‘s asylum application and an affidavit from his brother state that the gang called Quituizaca “Indian” and “indigenous,”5 Quituizaca did not testify that the gang used those words. He also testified that he was robbed several more times after 2005. When asked why he believed he had been targeted, he responded that it was because he had witnessed his friend‘s murder.
Following the hearing, the IJ denied all of Quituizaca‘s requests for relief. The IJ rejected the asylum and withholding of removal claims because it found that Quituizaca‘s proposed social group—“individuals who refuse to pay gangs or [who are] subject to their will“—was “too diffuse.”6 Quituizaca‘s CAT claim was denied because he failed to establish that he would likely be tortured by or with the acquiescence of the Ecuadorian government.
Quituizaca appealed to the BIA on the grounds that the IJ should have made an
DISCUSSION
Quituizaca advances three arguments on appeal. He argues that the BIA applied the wrong legal standard to his withholding of removal claim. He contends the BIA overlooked credible testimony in support of both his asylum and withholding claims. And he disputes that he waived his CAT claim.
I. The Motive Standard for Withholding of Removal Claims
An alien who fears persecution in his native country may apply for withholding of removal or asylum to avoid removal. If an applicant satisfies the eligibility requirements for withholding of removal, he is automatically entitled to that relief. Asylum, by contrast, is granted at the Attorney General‘s discretion, and involves a lower burden of proof compared to withholding of removal.10 Both forms of relief require the applicant to establish a nexus between a statutorily protected ground in the INA—race, religion, nationality, membership in a particular social group, or political opinion—and the feared persecution.11 A persecutor may be motivated, however, by both protected and unprotected grounds. Before 2005, the INA did not supply a clear standard for analyzing these so-called “mixed motive” asylum and withholding claims.12
The REAL ID Act amendments do not expressly provide that
The BIA dismissed Quituizaca‘s asylum and withholding claims because it found that he failed to meet his “burden of establishing that his ethnicity was one central reason that gang members robbed and attacked him.”18 So doing, the BIA applied the asylum statute‘s “one central reason” standard to Quituizaca‘s withholding of removal claim.19 Quituizaca argues that
We are thus tasked with construing the withholding of removal provision.20 “[B]ecause the administration of [the INA] is entrusted to the BIA, our review follows the two-step process outlined in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).”21 If the statute is clear, we must carry out Congress‘s stated intent. But if provisions in the INA are ambiguous, the BIA‘s interpretations of those provisions, if reasonable, are entitled
A. Chevron Step One
The text of the withholding of removal statute is somewhat opaque as it pertains to motive.
We begin with the text‘s plain meaning.27 When there is no statutory definition of a term, “we consider the ordinary, common-sense meaning of the words.”28 Webster‘s Third New International Dictionary defines “because of” to mean “by reason of” or “on account of.”29 In its ordinary sense, then, “because of” requires some causal connection between the feared persecution and the statutorily protected grounds.
Plain meaning “does not turn solely on dictionary definitions“; it incorporates “the specific context in which that language is used, and the broader context of the statute as a whole.”30 For that reason, although “because of” is sometimes synonymous with “but-for” causation,31 we doubt that interpretation applies in the immigration context. “But-for” causation would require that the withholding applicant show that the protected ground was the determinative
reason he was persecuted.32 It is more than just noteworthy that we have held that the “plain meaning of the phrase ‘persecution on account of [a protected ground]‘“—synonymous with “because of“—“does not mean persecution solely on account of [the protected ground].”33 The INA has long accepted mixed-motive asylum and withholding of removal claims, and there has never been any indication from Congress that doing so violates the INA‘s text.34 In our view, the plain text
Turning to the statutory context, we generally aim to interpret a statute “as a symmetrical and coherent regulatory scheme.”35 Applying the same motive standard to asylum and withholding claims promotes a harmonious reading of the INA. To establish asylum eligibility, an applicant must be a “refugee,” defined as any alien who has been persecuted or who has a well-founded fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.”36 Section 1158(b)(1)(B)(i) clarifies that, for asylum claims, “on account of” a
protected ground means that the protected ground must be “one central reason” for the persecution. To qualify for withholding, an applicant must show persecution “because of” any of the five protected grounds. As noted above, “because of” and “on account of” are synonyms, and courts use them interchangeably when interpreting the INA.37 Applying the “one central reason” standard to withholding claims would thus avoid an internal contradiction in the Act.38
On the other hand, as Quituizaca points out, Congress did not expressly incorporate the “one central reason” language into the withholding statute as it did in the asylum provision. The REAL ID Act also added language discussing the effect of corroborating evidence on an asylum applicant‘s burden of proof and the standard by which to judge an asylum applicant‘s credibility.39 Congress then incorporated those two new provisions from the asylum statute—§§ 1158(b)(1)(B)(ii) and (iii), respectively—into
supplied by the courts,”41 the omission suggests that Congress did not intend for the “one central reason” standard to apply to withholding claims.
We are not persuaded by the government‘s proposed reason for the omission. It suggests that
Quituizaca disagrees. He argues that Congress unambiguously made the burden lower for withholding applicants to establish motive than for asylum applicants. He relies on the amendment to the withholding statute in
In determining whether an alien has demonstrated that the alien‘s life or freedom would be threatened for a reason described in subparagraph (A) [i.e., race, religion, nationality, membership in a particular social group, or political opinion], the trier of fact shall determine whether the alien has sustained the alien‘s burden of proof, and shall make credibility determinations, in the manner described in clauses (ii) and (iii) of section 1158(b)(1)(B) of this title.43
Quituizaca maintains that he need only show that the protected ground is “a reason” for the feared persecution. He is not alone in this interpretation—two sister circuits have endorsed it as the unambiguous standard.44 We do not think, however, that
Moreover, Quituizaca‘s interpretation is not the most natural reading of
The plain text, structure, and context of the withholding statute do not clearly point to a motive standard for withholding claims. Having exhausted these avenues, we pause briefly to consider if Congress‘s intent is discernable from the legislative history.47 “We are generally reluctant to employ legislative history at step one of Chevron analysis. . . .”48 But “Congress‘s
At best, the House conference report explains that the proposed revisions in the REAL ID Act would provide a “uniform standard for assessing motivation” in “mixed motive” asylum cases “in keeping with decisions of reviewing courts.”50 But the report is silent as to the motive standard for withholding of removal claims, including whether Congress intended to weigh motive in withholding and asylum claims differently—the precise issue here.
We thus conclude that the INA does not unambiguously provide the proper standard for assessing motive in withholding of removal claims and therefore we cannot resolve this question at step one of Chevron.
Before we proceed to step two, we pause to address the concurrence‘s view that the statute‘s meaning is not only “plain” but requires a showing of “but-for” causation.51 So doing, the concurrence introduces a new test that was not presented to us on appeal and that is more stringent than the “one central reason” standard pressed by the government.
The concurrence‘s approach would introduce further ambiguity into the INA, rather than clarify the statute. The concurrence offers no persuasive response to our point that plain meaning is also determined by the “broader context of the statute as a whole.”52 The phrases “on account of” and “because of” are used interchangeably in the INA and its implementing regulations.53 Given that, we do not see how the concurrence sufficiently reconciles the INA‘s definition of the phrase “on account of” to mean “one central reason” in the asylum context, with an interpretation of its equivalent “because of” to mean “but for” when used instead in the withholding of removal statute.
The concurrence relies on common interpretations of other statutes that the phrase “because of” equates to “but-for” causation. See Concurrence at 3. Claims of age discrimination, or that a credit report violated the Fair Credit Reporting Act, both cited by the concurrence as an example, require proof that age or the credit report, respectively, be the but-for cause of the adverse action.54 The implication is that the adverse action has already happened and whatever evidence to establish but-for causation or refute it exists too. But the language of the withholding
The concurrence also explains that the “but-for” requirement is consistent with the well-accepted proposition that a petitioner has a higher burden to establish eligibility for withholding of removal than for asylum. Nothing in our opinion calls into question the fact that the asylum applicant need only show a “well-founded fear of
persecution,” while an applicant seeking withholding of removal must demonstrate the higher standard of a “clear probability of persecution.”55 If a petitioner cannot establish a well-founded fear to be eligible for asylum relief, he will necessarily be ineligible to obtain withholding too, regardless of the applicable motive standard. See Osorio, 18 F.3d at 1032. There is no reason for us to believe that Congress would have wanted to heighten the burden in withholding of removal claims even further by requiring “but-for” causation when establishing the likelihood of an occurrence that has yet to take place, which is what the withholding of removal provision necessitates. While establishing eligibility for withholding remains a high bar, neither the text of the INA, its implementing regulations, nor our case law applying the same require that a withholding applicant have the benefit of a crystal ball to divine the future persecutor‘s motives with such clarity as the “but-for” standard demands.
B. Chevron Step Two
Our task at step two is to determine “whether the agency‘s answer is based on a permissible construction of the statute.”56 We defer to the agency‘s interpretation as long as it is not “arbitrary or capricious in substance, or manifestly contrary to the statute.”57 Here the BIA interprets
ambiguity, which relies on statutory interpretation principles and is supported by practical considerations and the agency‘s prior decisions.
Prior to the REAL ID Act‘s enactment, the BIA applied the same motive standard to asylum and withholding claims.59 The BIA‘s current interpretation maintains this consistency absent clear congressional intent to the contrary. In such a situation, it is reasonable to “borrow[]” a motive standard
II. Sufficient Evidence Supports the BIA‘s Conclusion that Quituizaca was Not Entitled to Asylum or Withholding of Removal
We turn now to whether substantial evidence supports the BIA‘s conclusion that Quituizaca failed to show that his Quechua ethnicity was one central reason for the harm he suffered.62
When, as here, the BIA issues its own opinion and does not adopt or simply supplement the IJ‘s analysis, we review the BIA‘s decision.63 We review factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”64
Questions of law and the BIA‘s application of law to undisputed facts are reviewed de novo.65 Because the BIA assumed that Quituizaca‘s testimony was credible, we make the same assumption.66
Substantial evidence supports the BIA‘s determination that Quituizaca did not carry his burden of proof as to his eligibility for either asylum or withholding of removal and that his ethnicity was not one central reason motivating the two robberies. A protected ground cannot be “incidental” or “tangential” to another reason for
Contrary to Quituizaca‘s view, we do not agree that the BIA ignored evidence supporting his mixed-motive claim. We do not demand that the BIA “expressly parse or refute on the record” each individual argument or piece of evidence that a petitioner offers.70 Although Quituizaca‘s asylum application noted that the gang members in 2003 called him “Indian,” he did not mention this at all in his testimony. Instead, when asked whether the gang said anything, he responded only that they “told [him] to give them all the money.”71 And while Quituizaca described the bus as being “full of indigenous people,” he also testified that most of the people who “normally” took the buses were students.72 Quituizaca was not a student, and was instead returning from work. He did not state that the gang targeted anyone else on the bus. The BIA concluded that the evidence established the greater probability that the gang was motivated to harm him based on “incentives presented to ordinary criminals rather than . . . persecution.”73 “[T]o obtain judicial reversal of the BIA‘s determination,” Quituizaca needed to show “that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.”74 Quituizaca has not done that.75
Substantial evidence also supports the BIA‘s determination that Quituizaca did not demonstrate a link between his ethnicity and future persecution.76 Although Quituizaca‘s brother, who is in the United States, declared that the family “still received threatening messages,”77 his mother, who continues to live in Ecuador, did not corroborate this statement. She stated that her life would be at risk not because of threats or harm from the gang, but because if Quituizaca were to return, he would be unable to support her financially as he does from the United States. Nor was there any evidence of harm to other members of Quituizaca‘s family, including his daughter, in Ecuador. On this record, the BIA did not err in concluding that Quituizaca did not meet his burden to show fear of future harm based on his ethnicity.78
Finally, Quituizaca failed to administratively exhaust review of his CAT claim.79 We require the “[p]etitioner to raise issues to the BIA in order to preserve them for judicial review.”80 Quituizaca‘s counseled brief to the BIA contended only that “the immigration judge erred in denying his applications for asylum and withholding of removal.”81 Mentioning the CAT claim in a prayer for relief is insufficient to “preserve a claim.”82 Similarly, the bare assertion that “police [do] not provide any protection”83 did not suffice to challenge the IJ‘s denial of his CAT claim before the BIA. Thus, we will not disturb the BIA‘s dismissal based on its conclusion that Quituizaca waived his claim for CAT relief.
CONCLUSION
For the foregoing reasons, we DENY the petition for review.84
RICHARD J. SULLIVAN, Circuit Judge, concurring in part and concurring in the judgment:
Like the Majority, I would deny Xavier Pucha Quituizaca‘s petition for review of the decision of the Board of Immigration Appeals (the “BIA“), but I would take a different path to that conclusion as it pertains to Pucha Quituizaca‘s application for withholding of removal. Accordingly, while I concur in the judgment of the Court and in the reasoning of Parts II and III of the Majority‘s Discussion section, I write separately as to Part I.
In the Agency proceedings under review, the BIA denied Pucha Quituizaca‘s claims for asylum and withholding of removal - both of which he based on his allegation that gang members in his native country of Ecuador had twice attacked him because of his indigenous Quechua ethnicity - finding that he had failed to establish that his ethnicity was “one central reason” for the attacks. Certified Admin. Record at 6. It is undisputed that, for purposes of his asylum claim, Pucha Quituizaca needed to show that his ethnicity was “at least one central reason” for his alleged persecution in Ecuador.
I see no such ambiguity. Rather, I find it plain that the withholding-of-removal statute - which provides that “the Attorney General may not remove an alien to a country if . . . the alien‘s life or freedom would be threatened in that country because of the alien‘s race [or other protected ground],”
As the Majority observes, “‘because of’ is sometimes synonymous with ‘but-for’ causation.” Maj. Op. at 11 (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009)). That strikes me as an understatement. In the very case cited by the Majority, the Supreme Court unequivocally stated that “the ordinary meaning of [a statute‘s] requirement that an [actor] took adverse action ‘because of’ [a specified factor] is that [the specified factor] was the ‘reason’ that the [actor] decided to act.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (emphasis added). Therefore, the Court held that to prevail “under the plain language of” such a statute, a litigant “must prove that [the specified factor] was the ‘but-for’ cause of the [relevant action]” - i.e., that the relevant action “would not have occurred without” the specified factor. Id. at 176-77 (emphasis added). Nothing in Gross suggests that the Supreme Court‘s reasoning was limited to the specific context of the age-based employment discrimination claims at issue there. On the contrary, the Court relied on common dictionaries, a well-known treatise on tort law, and the reasoning of cases interpreting similar language in the Racketeer Influenced and Corrupt Organizations Act and Fair Credit Reporting Act. See id. at 176-77. And in the years since Gross, the Supreme Court has only doubled down on its “insistence on but-for causality” as the proper construction of “statutes using the term ‘because of.‘” Burrage v. United States, 571 U.S. 204, 213 (2014).
Although the Majority is quick to discount the ordinary meaning of the phrase, “because of,” see Maj. Op. at 11, I do not think we are free to do so. See, e.g., Spadaro v. United States Customs & Border Prot., 978 F.3d 34, 46 (2d Cir. 2020) (“[W]hen the language of a statute is unambiguous, judicial inquiry is complete.“); United States v. Balde, 943 F.3d 73, 81 (2d Cir. 2019) (“Statutory analysis necessarily begins with the plain meaning of a law‘s text and, absent ambiguity, will generally end there.” (citation omitted)). Indeed, the Supreme Court has repeatedly taken pains to caution - “[w]ith regard to this very statutory scheme” - that the “ordinary and obvious meaning of the [text] is not to be lightly discounted,” and to instruct that we must “consider[] ourselves bound to assume that the legislative purpose is expressed by the ordinary meaning of the words used.” INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987).
And even if we were free to do so, I would see no good reason to doubt that the phrase “because of,” as used in the withholding-of-removal statute, requires the same but-for causation that it refers to in other federal statutes and at common law. The Majority expresses “doubt” that that meaning would “appl[y] in the immigration context,” since “‘[b]ut-for’ causation would require that the withholding applicant show that the protected ground was the reason he was persecuted.” Maj. Op. at 11
But it does not follow, from the proposition that mixed-motives asylum claims are viable, that mixed-motives withholding claims must also be viable. We have long recognized that “the burden of proof necessary to establish a successful request for withholding of [removal] is higher than that necessary to establish a successful request for asylum,” such that “an applicant who is not eligible for asylum is a fortiori ineligible for withholding of [removal].”1 Osorio v. INS, 18 F.3d 1017, 1032 (2d Cir. 1994) (citing Cardoza-Fonseca, 480 U.S. at 446). Indeed, even the Ninth Circuit - whose precedents the Majority otherwise affords significant weight in finding the withholding-of-removal statute ambiguous, see Maj. Op. at 14 (citing Barajas-Romero v. Lynch, 846 F.3d 351, 358-59 (9th Cir. 2017)) - has repeatedly acknowledged as much, see, e.g., Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006) (holding that since the “standard for withholding of removal is more stringent than the . . . standard governing asylum,” it necessarily follows that when an alien “could not establish her eligibility for asylum, . . . she [is also] not eligible for withholding of removal“); Villegas Sanchez v. Garland, 990 F.3d 1173, 1183 (9th Cir. 2021) (holding same).
For all these reasons, I would hold that “the withholding-of-removal statute‘s use of ‘because of’ unambiguously requires a statutorily covered motive to be a but-for motive.”2 Guzman-Vazquez v. Barr, 959 F.3d 253, 288 (6th Cir. 2020) (Murphy, J., dissenting); see generally id. at 286-90 (Murphy, J., dissenting) (laying out fuller analysis for this point, with which I agree entirely). Consequently, I cannot agree with the Majority‘s “view” that “the plain text does not clearly provide an answer to the proper motive standard beyond the obvious proposition that there must be some degree of causation.” Maj. Op. at 12.
But even if I did share the view that section 1231(b)(3)(A)‘s plain text was effectively silent on the applicable motive or causation standard for withholding claims, I would find that the statutory structure and context eliminated any ambiguity about whether the text could bear the reading that Pucha Quituizaca suggests. Indeed, I would so conclude for the reasons that are stated - and stated well - in the Majority‘s own opinion. For starters, I agree with the Majority that we should interpret the INA “as a symmetrical and coherent regulatory scheme.” Id. at 12 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)). And while I would maintain that the most “harmonious reading of the INA,” id., would - in line with the INA‘s general scheme of imposing higher burdens on withholding applicants than on asylum applicants, see Cardoza-Fonseca, 480 U.S. at 446; Osorio, 18 F.3d at 1032 - apply a “more stringent” motive standard to withholding claims than to asylum claims, Zehatye, 453 F.3d at 1190 (emphasis added), the Majority makes clear that applying a less stringent motive standard to withholding claims than to asylum claims would be in active disharmony with the INA‘s statutory scheme. Likewise, I agree entirely with the Majority‘s rejection of - and its persuasive rationale for rejecting - Pucha Quituizaca‘s attempt to read significance into the appearance of the phrase “a reason” in section 1231(b)(3)(C). See Maj. Op. at 14-15.
What, then, is left to point in the other direction? First, apparently, is the bare fact that the Sixth and Ninth Circuits have “endorsed” Pucha Quituizaca‘s proposed reading. Id. at 14 & n.43 (citing Guzman-Vazquez v. Barr, 959 F.3d 253, 273 (6th Cir. 2020); Barajas-Romero, 846 F.3d at 358-59). But “our [C]ourt is not bound by the holdings of other federal courts of appeal.” Rates Tech. Inc. v. Speakeasy, Inc., 685 F.3d 163, 173-74 (2d Cir. 2012). Rather, our sister circuits’ decisions are merely “persuasive” authority. Charles W. v. Maul, 214 F.3d 350, 357 (2d Cir. 2000). In other contexts, we have characterized persuasive authorities as being “‘entitled to respect’ to the extent they have the ‘power to persuade.‘” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 105-06 (2d Cir. 2011) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (other citation omitted)); see also Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 Yale L.J. 969, 1007-08 (1992) (likening the deference we afford to decisions of our sister circuits to the “power to persuade” standard under the Skidmore deference regime). In other words, the “[d]ecisions of . . . other courts of appeals” are “looked to only for their persuasive effect,” but “[i]f they fail to persuade by the use of sound and logical reasoning, they will not be followed.” City Stores Co. v. Lerner Shops of D.C., Inc., 410 F.2d 1010, 1014 (D.C. Cir. 1969). And here, the Majority offers no explanation as to why the logic of Guzman-Vazquez or Barajas-Romero
The only remaining reason why the withholding-of-removal statute might be susceptible to ambiguity, on the Majority‘s read, is that the government lacks a persuasive explanation for the omission of the phrase “one central reason” in section 1231(b)(3)(A). See Maj. Op. at 13-14. True, that might be good evidence that the withholding-of-removal statute embraces a motive standard other than the “one central reason” standard specified in the REAL ID Act‘s amendments to the INA‘s corresponding asylum provision.
For the reasons stated above, I cannot join the Majority‘s holding in Part I that section 1231(b)(3)(A) is sufficiently ambiguous as to permit the reading proposed by Pucha Quituizaca. See Maj. Op at 7-20. I would instead hold that, under the plain text and structure of the INA as amended by the REAL ID Act, it is unambiguous that an applicant for withholding of removal must show that his claimed protected ground was (or will be) the but-for cause of his claimed persecution.3