An immigration judge and the Board of Immigration Appeals (BIA) denied an asylum claim based on lack of nexus between the applicant’s “particular social group” and the harm she suffered during an attempted robbery. The Ninth Circuit affirmed the BIA’s denial in a split decision, while one justice issued a stinging dissent. Rodriguez-Zuniga v. Garland, No. 19-72024 (9th Cir. June 7, 2023).

The applicant, Ms. Rodriguez-Zuniga, and her son fled Guatemala and entered the United States without authorization. They applied for asylum and related relief in removal proceedings. Ms. Rodriguez-Zuniga claimed that she suffered past persecution by gangs based on her political opinion (namely her refusal to submit to violence by criminal groups/gangs) and/or her membership in at least one of three purported particular social groups (PSGs): 1) Guatemalan families that lack an immediate family male protector; 2) Guatemalan women; and/or 3) immediate family members of Doris Amanda Rodriguez-Zuniga.

Ms. Rodriguez-Zuniga testified that a few months prior to coming to the United States, she had visited a bank to withdraw money. While exiting the bank, a woman whom she believed belonged to a gang threatened to harm her or her son if she did not hand over the money. The woman threatened Ms. Rodriguez-Zuniga promising that her son would “pay for it” if she refused to give her the money.

On appeal of the BIA’s decision affirming the immigration judge’s denial of asylum, the majority of the Ninth Circuit panel found that, assuming Ms. Rodriguez-Zuniga expressed a political opinion or her purported PSGs were cognizable, these grounds were not a central reason (for asylum) or even any reason (for withholding of removal) for the attempted robbery. See Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017). Notably, the majority cited the finding by the immigration judge that the particular social group “Guatemalan women” is cognizable because of the “high level of violence committed against Guatemalan women” and their “need [for] specialized protection,” indicating they are viewed as a distinct group as compared to the general population in Guatemala. However, the majority ultimately concluded that Ms. Rodriguez-Zuniga was not targeted on account of her gender and nationality. Turning to Ms. Rodriguez-Zuniga’s purported PSG “Guatemalan families that lack an immediate male family protector,” the majority found the group was not cognizable because the evidence did not establish that such families “are perceived as a group by society.”

On her political opinion claim, the majority agreed that Ms. Rodriguez-Zuniga did not present evidence to show she expressed a political opinion. According to the majority, refusing to hand over the money to the robber did not count as a political opinion because it was not a “sufficiently conscious and deliberate expression of a political opinion.” See also De Valle v. INS, 901 F.2d 787, 791 (9th Cir. 1990) (citation omitted). Instead, the majority believed that Ms. Rodriguez-Zuniga was simply reacting to being robbed and found that “most people who resist criminal activity directed towards them do so for obvious non-political self-interested reasons, they don’t want to be a victim of a crime.”

Lastly, while the majority recognized family membership as a generally cognizable group, it did not find a nexus sufficient for asylum or withholding of removal. The court emphasized that “to establish a nexus between her family membership and her harm, Ms. Rodriguez-Zuniga must show that her family membership was a reason motivating the robber to target her.” The majority also rejected Rodriguez-Zuniga’s “extortion-plus” claim under Ayala v. Sessions, 855 F.3d 1012 (9th Cir. 2017), explaining that “extortion-plus” is simply the recognition that a persecutor can hold multiple motives for harming someone. Here, the majority concluded there were no other motives, and that the non-violent attempted robbery was “wholly economically motivated (as robberies usually are).”

On consideration of Ms. Rodriguez-Zuniga’s claim under the Convention Against Torture, the majority believed much of it was waived or unsupported by the record. The majority denied Ms. Rodriguez-Zuniga’s claim of asylum and related relief.

There is a vigorous 22-page dissenting opinion that disagrees with much of the majority’s opinion, finding that the robber indeed persecuted Ms. Rodriguez-Zuniga and her son on account of their family membership, thus satisfying the nexus requirement.

Conclusion

The Ninth Circuit denied Ms. Rodriguez-Zuniga’s petition for review, arguably setting difficult precedent for family-based claims involving extortion by criminal groups. Practitioners, therefore, need to distinguish their client’s case from the facts in this one by showing that even though their client may have been targeted for a financial reason, they were also targeted for a separate reason based on the client’s protected characteristic. As the majority in Rodriguez-Zuniga confirmed, family membership is a cognizable PSG in the Ninth Circuit, and it also suggested that gender plus nationality alone might be as well. Practitioners should continue to identify on the record before the immigration judge all potentially viable PSGs and work diligently with their client and witnesses to demonstrate nexus to a protected ground, beyond any financial motivation the persecutor may have possessed.