Hector David Tipan Lopez v. ATTORNEY GENERAL UNITED STATES OF AMERICA On Petition for Review of an Order of the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 24-1444
_____________
HECTOR DAVID TIPAN LOPEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. BIA-1: A246-618-807)
Immigration Judge: Adam Panopoulos
Argued on January 22, 2025
Before: HARDIMAN, McKEE, and AMBRO, Circuit Judges
(Opinion filed: June 30, 2025)

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Rebecca Hufstader
Robert Jackel (Argued)
Emily G. Thornton
Legal Services of New Jersey
100 Metroplex Drive
Suite 402
Edison, NJ 08818
Counsel for Petitioner
Pamela Bondi
Laura H. Hickein
Russel J. Verby (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
Anne K. Dutton
University of California College of the Law, San Francisco
Center for Gender & Refugee Studies
200 McAllister Street
San Francisco, CA 94102
Counsel for Amicus-Petitioner

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________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
Hector David Tipan Lopez suffered persecution at the
hands of a local gang, the Lobos, in his home country of
Ecuador. He came to the United States and sought asylum and
withholding of removal under the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1158(b)(1)(A), as well as protection
under the United Nations Convention Against Torture and
Other Cruel, Inhumane and Degrading Treatment or
Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100–
20, 1465 U.N.T.S. 85 (“CAT”); 8 C.F.R. §§ 1208.16–1208.18
(implementing regulations). He petitions us for review of his
final order of removal by the Board of Immigration Appeals
(“BIA”).
The INA requires an asylum seeker to “establish that
race, religion, nationality, membership in a particular social
group, or political opinion was or will be at least one central
reason for persecuting” him. 8 U.S.C. § 1158(b)(1)(B)(i).
Tipan Lopez argued that he had been persecuted on three of
these grounds: religion, race, and political opinion. An
Immigration Judge (IJ) denied his application, and the BIA
affirmed. He petitions us for review of (1) whether the BIA
applied the right legal standard for the nexus between his
persecution and his religion and (2) whether substantial
evidence supported the BIA’s decision that there was no
connection between his persecution and any of his protected

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characteristics. We remand the religious-nexus question to the
BIA with instructions not to apply the following:
• a subordination-based test, which rejects a protected
ground as a central reason for persecution if it is
subordinate to an unprotected reason; or
• an animus-based test requiring a persecutor to show
hostility toward a protected ground for it to count as a
central reason.
We therefore do not reach whether substantial evidence
supported the BIA’s no-nexus-with-religion finding. We deny
Tipan Lopez’s petition for review as to the BIA’s no-nexus
findings for race and political opinion.
The CAT requires applicants to show that “it is more
likely than not . . . [they] would be tortured if removed to the
proposed country of removal,” 8 C.F.R. § 1208.16(c)(2), and
the torture would happen “with the consent or acquiescence
of[] a public official,” id. § 1208.18(a)(1). We remand Tipan
Lopez’s CAT claim for the BIA to determine whether Ecuador
can protect him from torture, a determination relevant to
acquiescence that the BIA did not make.
I. BACKGROUND
A. Factual Background
Tipan Lopez is from Quito, Ecuador, where he lived
until 2023. In 2016, he converted to Evangelical Christianity.
Motivated by his new faith, he began encouraging young drug
addicts to stop drug use. The Lobos were a local gang that

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dealt drugs. Concerned that Tipan Lopez was hurting their
drug sales, they targeted him over several years to stop his
evangelizing.
• They robbed him of $600, his phone, his glasses, and
his jewelry in December 2020.
• A month later, they castigated him for “preaching the
word of God” because it decreased their drug sales,
kidnapped him, took him to a deserted area, beat him,
robbed him, and shot him through the finger.
• In April 2021, the Lobos broke his clavicle and stabbed
him in the neck.
• They showed him the following August that the entire
gang had his picture and then broke a bottle and used it
to cut his arm.
• The intimidation continued in the ensuing months. The
gang demanded $10,000 from Tipan Lopez to make up
for lost sales, cut his leg, and burned his hand with a
cigarette.
• They then robbed him and shot him in the hip in early
2022.
• They tore out one of his fingernails with pliers and put
a bag full of pepper spray over his head in September
2022.
• Two months later, they caused him to crash his car
during a vehicle chase and then robbed and threatened
to kill him and to impale his rectum.

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Tipan Lopez did not seek medical care or make a police report
after any of these incidents. He distrusted the police because
he had heard about and seen them taking bribes and letting
criminals go free.1
Motivated by the threats from the Lobos, Tipan Lopez
entered the United States in February 2023 without inspection.
He believed returning to any part of Ecuador could result in his
torture and death at the hands of the Lobos.
B. Procedural History
The Department of Homeland Security began removal
proceedings after Tipan Lopez’s arrest for domestic violence
in March 2023. In June 2023, he applied for asylum and
withholding of removal under the INA and protection under
the CAT.
The IJ denied relief in September 2023. He first found
that Tipan Lopez was credible, “corroborated his claim with
personal evidence and background country conditions,” and
had suffered persecution. Administrative Record (AR) 78.
The IJ then examined whether Tipan Lopez had “establish[ed]
that race, religion, nationality, membership in a particular
social group, or political opinion was or will be at least one
central reason for” his persecution. 8 U.S.C.
§ 1158(b)(1)(B)(i). He determined that Tipan Lopez’s religion
was not a central reason for his past or feared future
persecution. The Lobos “made it clear to [Tipan Lopez] that
1 The dissent notes that Tipan Lopez “never reported his
alleged torture to the police,” but does not note the reasons
why. Diss. Op. at 14.

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they knew . . . [he] was speaking about his faith to other
people,” AR 79, but their “animus towards [him] was driven
by anger that they could not sell drugs to as many people as
they had in the past,” AR 81.
The IJ also ruled that there was no nexus between Tipan
Lopez’s race and his persecution because “[t]he mere fact that
[he] was insulted [with a racial slur] during these encounters
[with the Lobos] does not indicate that race was a central
reason for why the physical attacks occurred.” AR 80. As for
political opinion, the IJ ruled that “the evidence does not show
that [Tipan Lopez] was communicating an opinion against
gang authority in Ecuador, such that the court can infer that
[his] actions were perceived by his persecutor as an expression
of any political opinion held by [him].” AR 82–83.
In reviewing the CAT claim, the IJ assumed it was more
likely than not that the Lobos would target Tipan Lopez if he
returned to Ecuador and that their anticipated conduct would
constitute torture. Yet, Tipan Lopez failed to show
acquiescence by public officials because: (1) he did not make
police reports or show that the government would willfully
ignore his torture; (2) bragging statements by the Lobos that
they controlled the police could not establish that their control
was real; (3) Tipan Lopez’s personal observations about the
police were general and unsupported; and (4) despite gang
influence on the government, Ecuador is making significant
efforts to crack down on gangs. In short, “the evidence
show[ed] that the government of Ecuador identifie[d] such
instances of [gang-related] corruption and attempt[ed] to root
it out.” AR 85. The IJ therefore concluded that “Ecuadorian
police authorities would respond to [Tipan Lopez’s] expression
of fear of harm from the Lobos, and that . . . likely response

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would not demonstrate consent, acquiescence, or willful
blindness.” AR 86.
Tipan Lopez appealed the IJ’s decision to the BIA. It
affirmed, characterizing Tipan Lopez’s religion as, “at most,
incidental or tangential to more commonplace goals, including
financial gain and furthering, or preventing interference in, a
criminal enterprise.” AR 4 (quoting In re M-R-M-S-, 28 I.&N.
Dec. 757, 760 (B.I.A. 2023)). It also relied on M-R-M-S- to
reject principles from Fourth Circuit cases on which Tipan
Lopez had relied. Those cases held that a subordination-based
test for nexus—to repeat, rejecting a protected ground as a
central reason for persecution if it is subordinate to an
unprotected reason—is impermissible. Similarly, the BIA
found that Tipan Lopez’s race and political opinions were not
central reasons for his persecution, relying on the IJ’s
reasoning.
As for the CAT claim, the BIA found no clear error in
the IJ’s finding that the Ecuadorian government would respond
appropriately to Tipan Lopez’s situation if he reported it. The
BIA also agreed with the IJ’s conclusion that Tipan Lopez
failed to demonstrate acquiescence by the Ecuadorian
government.
II. JURISDICTION & STANDARD OF REVIEW
The BIA had jurisdiction under 8 C.F.R.
§§ 1003.1(b)(3), 1240.15. Tipan Lopez timely petitioned us
for review. See 8 U.S.C. § 1252(b)(1). We have jurisdiction
to review final orders of removal under § 1252(a)(1), (a)(5),
and venue is proper in this Circuit because the removal
proceeding took place in New Jersey, id. § 1252(b)(2).

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We review both the BIA’s and the IJ’s opinions when
“the BIA has substantially relied on” the latter. Herrera-Reyes
v. Att’y Gen., 952 F.3d 101, 106 (3d Cir. 2020) (internal
quotation marks omitted). That review is de novo on whether
the BIA applied the right legal standard for religious nexus, see
id., but the BIA’s factual findings are reviewed under the
substantial-evidence standard, which requires that we deny a
petition for review “unless any reasonable adjudicator would
be compelled to conclude to the contrary,” 8 U.S.C.
§ 1252(b)(4)(B). That standard applies to the BIA’s factual
findings related to the nexus between Tipan Lopez’s
persecution and his religion, race, and political opinions.
The CAT claim falls under two standards of review:
A Convention claimant must satisfy a two-
pronged test, showing both that (1) if he returned
home, he would be tortured, and (2) the
government would acquiesce to that
torture. Myrie v. Att’y Gen., 855 F.3d 509, 516–
17 (3d Cir. 2017). We have made clear that each
prong has two steps. Id. For Prong 1, an
immigration judge must ask: (1A) What harm
will the claimant likely suffer if he returns home?
and (1B) Would that harm amount to
torture? Id. For Prong 2, the judge asks:
(2A) How will public officials likely respond to
that harm? and (2B) Would that response amount
to acquiescence? Id. Steps 1A and 2A are factual
questions, so the [BIA] must review them for
clear error. Id. And Steps 1B and 2B are legal
questions, so the [BIA] must review them de
novo. Id.

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Llanes-Quinteros v. Att’y Gen., No. 22-1036, 2023 WL
4116625, at *1 (3d Cir. June 22, 2023); see Myrie, 855 F.3d at
516–17. We review steps 1A and 2A for substantial evidence
and steps 1B and 2B de novo. See Figueroa v. Att’y Gen., 998
F.3d 77, 93 (3d Cir. 2021).
III. ANALYSIS
A. Legal Standard for Nexus between Religion and
Persecution
1. Subordination-Based Test for Nexus
The BIA had defined “one central reason” as any reason
that is not “incidental, tangential, superficial, or subordinate to
another reason for harm.” In re J-B-N- & S-M-, 24 I. & N. Dec.
208, 214 (B.I.A. 2007). But our Court rejected the
“subordinate” part of that test in Ndayshimiye v. Att’y Gen.,
557 F.3d 124 (3d Cir. 2009), concluding that
the mixed-motives analysis [of nexus] should not
depend on a hierarchy of motivations in which
one is dominant and the rest are
subordinate . . . . [A] persecutor may have more
than one central motivation for his or her actions;
whether one of those central reasons is more or
less important than another is irrelevant.
Id. at 129. “[T]he presence of multiple motivations for
persecution . . . is not disqualifying.” Ghanem v. Att’y Gen.,
14 F.4th 237, 247 (3d Cir. 2021).

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The BIA here relied on M-R-M-S-. Tipan Lopez points
out that M-R-M-S- quoted the rejected “subordinate to another
reason” language. 28 I. & N. Dec. at 759 (quoting J-B-N- & S-
M-, 24 I. & N. Dec. at 214); see also id. at 762 (“If a persecutor
is targeting members of a certain family as a means of
achieving some other ultimate goal unrelated to the protected
ground, family membership is incidental or subordinate to that
other ultimate goal and therefore not one central reason for the
harm.” (emphasis added)). The BIA in M-R-M-S-
acknowledged that this subordination-based test conflicted
with Third Circuit law but applied it anyway. See id. at 759
n.6 (“Although the United States Court of Appeals for the
Third Circuit generally agrees with the [BIA’s] interpretation
of the ‘one central reason’ standard, it has rejected the
requirement that a protected ground not be subordinate to
another reason for harm.”).
Tipan Lopez contends that the BIA impermissibly
applied that test to his case.2 The Government responds that
the BIA’s decision here did not rely on the subordination-based
test from M-R-M-S-, instead citing the case only for other
propositions.
Tipan Lopez has the better argument. In a footnote, the
BIA’s decision explained that M-R-M-S- rejected principles
from Fourth Circuit cases on which Tipan Lopez relied. See
AR 4 n.2. Those cases, which he cited in his briefing before
the BIA, held that a subordination-based test for nexus is
impermissible. See AR 18 (citing Alvarez Lagos v. Barr, 927
F.3d 236, 250 (4th Cir. 2019) (“The protected ground need not
2 He also contends that M-R-M-S- is limited to family-based
claims. We need not reach that issue.

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be the only reason—or even the dominant or primary reason—
for the persecution.”)); AR 22 (citing Perez Vasquez v.
Garland, 4 F.4th 213, 225 (4th Cir. 2021) (holding that a
protected ground can still be a central reason even if it is
intertwined with monetary motives)). Analyzing that footnote
in context, the BIA did rely on the subordination-based test
from M-R-M-S-, contrary to our precedent.
The Government also suggests that intervening
decisions have overruled or modified our precedent on
subordination. It emphasizes cases establishing that “[f]or a
protected characteristic to qualify as ‘one central reason,’ it
must be an essential or principal reason for the persecution.”
Thayalan v. Att’y Gen., 997 F.3d 132, 142 (3d Cir. 2021)
(quoting Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 685
(3d Cir. 2015)). But the cases do not conflict. In the same
sentence that Gonzalez-Posadas outlines the “essential or
principal” test, it also favorably quotes the test from
Ndayshimiye. Gonzalez-Posadas, 781 F.3d at 685. Thayalan
and Gonzalez-Posadas define “central” as “essential or
principal,” and Ndayshimiye holds that, among multiple central
reasons, one cannot be discounted because it is subordinate to
another.3
The dissent suggests that we use “guilt-by-citation
reasoning” to conclude that “the [BIA] committed legal error
3 Further, “to the extent that [a newer case] is read to be
inconsistent with earlier case law, the earlier case
law . . . controls.” Holland v. N.J. Dep’t of Corr., 246 F.3d
267, 278 n.8 (3d Cir. 2001). Even if there were a conflict
between Ndayshimiye (2009) and Thayalan (2021) or
Gonzalez-Posadas (2015), Ndayshimiye would control.

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simply by citing M-R-M-S-.” Diss. Op. at 4. Not so. The BIA
used M-R-M-S- to reject Fourth Circuit cases, which
themselves rejected a subordination-based test for nexus. Its
“double negative” amounts to the BIA adopting that test, which
is directly contrary to our precedents. Our dissenting colleague
thinks it is “a stretch” for us to rely on “a single citation in a
footnote” because we cannot find “an improper quotation in
the [BIA’s] opinion.” Diss. Op. at 5. To be sure, if the BIA
had directly relied on the language in M-R-M-S- that we
expressly rejected, its error would be obvious. As it stands
now, we must analyze (1) the BIA’s citation to M-R-M-S- in a
footnote, (2) citations from Tipan Lopez’s brief before the BIA
to Fourth Circuit cases that this footnote alludes to but does not
cite, and (3) the Fourth Circuit decisions themselves, to
understand the error. That it is hidden makes it no less
erroneous. If anything, it raises suspicion that something is
amiss.
The dissent argues further that those Fourth Circuit
cases are inconsistent with our Court’s precedents. It focuses
on one proposition for which Tipan Lopez cited Alvarez Lagos,
927 F.3d at 250, in his briefing before the BIA: that nexus is
satisfied when “the protected ground is the reason that an
individual, and not someone else, is targeted for persecution.”
AR 18. But, contrary to the dissent, that is not the only
proposition for which Tipan Lopez cited the case.4 Indeed, in
4 Our dissenting colleague suggests that we treat citing a case
as sufficient to raise all arguments that flow from it. Diss.
Op. at 5–6. To the contrary, we are addressing the specific
propositions for which Lopez cited Alvarez Lagos.
Moreover, the pages of M-R-M-S- that the Board cited in
rejecting Tipan Lopez’s appeal focused not only on but-for

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the very same paragraph, he also used Alvarez Lagos to argue
that “[t]he protected ground need not be the only reason—or
even the dominant or primary reason—for the persecution.”
927 F.3d at 250. As explained above, that is exactly what we
held in Ndayshimiye, 557 F.3d at 129 (“[T]he mixed-motives
analysis [of nexus] should not depend on a hierarchy of
motivations in which one is dominant and the rest are
subordinate.”). By using M-R-M-S- (which directly conflicts
with Ndayshimiye) to reject Alvarez Lagos (which has the same
relevant holding as Ndayshimiye), the BIA rejects
Ndayshimiye.
As for Perez Vasquez, the dissent may be right that its
analysis of “intertwined explanations for persecution” conflicts
with our precedent. Diss. Op. at 11. But that is not what the
BIA used M-R-M-S- to reject in our case. The portion of M-R-
M-S- that the BIA cites, AR 4 n.2, concluded that “[i]f a
persecutor is targeting members of a certain family as a means
of achieving some other ultimate goal unrelated to the
protected ground, family membership is incidental or
subordinate to that other ultimate goal and therefore not one
central reason for the harm,” 28 I. & N. Dec. at 762 (emphasis
added). As with Alvarez Lagos, the BIA’s rejection of Perez
Vasquez implicitly adopted a subordination-based test.
causal reasoning, but also on a subordination-based test.
See 28 I. & N. Dec. at 761 (characterizing the Fourth
Circuit’s precedent as “expand[ing] the nexus inquiry to
include family status as a central reason even when it is
‘incidental’ and ‘subordinate to another reason for harm’”
(emphasis added, internal citation and quotation marks
omitted)); contra Diss. Op. at 6 n.1.

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In short, the BIA relied on a subordination-based test
that our Court has rejected. Its argument that our Court
implicitly overturned that rejection fails. We thus remand the
nexus determination for religion to the BIA with instructions
not to apply a subordination-based test, and instead to apply
the legal standard from Ndayshimiye and Ghanem.
2. Animus-Based Test for Nexus
Tipan Lopez, alongside the Center for Gender and
Refugee Studies as an amicus curiae, contends that the IJ
misinterpreted the nexus test by requiring hostility by the
persecutor against the protected ground. In immigration law,
this is called an animus-based test. The Government did not
respond to this contention.
The IJ indeed applied an impermissible animus-based
test for nexus. The plain language of the statute requires only
that a protected characteristic is “at least one central reason”
for the harm. 8 U.S.C. § 1158(b)(1)(B)(i). Moreover, the BIA
has rejected a hostility requirement for nexus. See In re
Kasinga, 21 I. & N. Dec. 357, 365 (B.I.A. 1996) (en banc)
(“[S]ubjective ‘punitive’ or ‘malignant’ intent is not required
for harm to constitute persecution.”). The Department of
Homeland Security’s prevailing interpretation agrees. See
USCIS: RAIO D IRECTORATE – L ESSON PLAN , N EXUS AND THE
PROTECTED G ROUNDS, at 11 (Jan. 30, 2025) (“Punitive or
malignant intent, or an intent to overcome the protected
trait, . . . is not required for an applicant to establish a nexus to
a protected ground.”). International law authorities suggest the
same. See UNHCR, Handbook on Procedures and Criteria for
Determining Refugee Status, HCR/1P/4/ENG/REV.4, at 176
(Feb. 2019) (“There is no need for the persecutor to have a

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punitive intent to establish the causal link. The focus is on the
reasons for the applicant’s feared [harm] within the overall
context of the case, and how he or she would experience the
harm rather than on the mind-set of the perpetrator.”).5
Declining to require animus by the persecutor also
makes sense on a practical level. A protected ground can
motivate persecution even when the persecutor has no hostility
toward that ground. For instance, gang members might attack
an indigenous person because they want him to join their gang.
In doing so, they might leverage to their advantage negative
stereotypes or impediments he experiences as a result of his
indigenous identity, not because of a dislike of indigenous
people. See Saban-Cach v. Att’y Gen., 58 F.4th 716, 732 (3d
Cir. 2023). Or a terrorist might target an escapee’s family
member to force the escapee to return, not because of any
animosity toward the family. See Gebremichael v. INS, 10
F.3d 28, 36 (1st Cir. 1993). Requiring animus would allow
these forms of persecution against protected grounds to slip
through the cracks.
The IJ, in a portion of his decision adopted by the BIA,
found no nexus between religion and persecution because
Tipan Lopez had “not met his burden of proving that the gang
was motivated to harm him on each of these occasions because
of animus against his race or his religious faith.” AR 80
5 International law is relevant because Congress created our
national asylum process to align with international refugee
law. INS v. Cardoza-Fonseca, 480 U.S. 421, 436–37
(1987).

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(emphasis added).6 This legal standard for nexus is incorrect
because it imposes an animus element that is not required.
Our dissenting colleague believes “the IJ used ‘animus’
as a shorthand for the proper (objective) legal standard [the
“one central reason” standard], not as a heightened supplement
to it.” Diss. Op. at 7. In support of that proposition, he points
to cases outside the immigration context that use the word
“animus” in the way he favors, as well as out-of-circuit
authority and one immigration opinion from our Court. Id. at
6–9.
The cases outside the immigration context are
irrelevant. We are operating in a field of law—immigration—
in which “animus” has a specific meaning. See, e.g.,
Mazariegos-Rodas v. Garland, 122 F.4th 655, 668 (6th Cir.
2024) (describing “animus or hostility” and “animus or hatred”
in the nexus context); Orellana-Recinos v. Garland, 993 F.3d
851 (10th Cir. 2021) (quoting an IJ who described “tak[ing]
animus out on” someone, which only makes sense if animus is
defined as hatred or hostility, not as intent or motivation
(brackets omitted)).
The dissent’s out-of-circuit authority notes that it is “not
entirely clear what the BIA and some of our sister circuits mean
by ‘animus,’” but then goes on to offer only one explicit
definition of the term: “hatred of, or antagonism toward,” a
trait. Pineda-Maldonado v. Garland, 91 F.4th 76, 89 n.4 (1st
Cir. 2024). Finally, the precedential opinion from our Court
6 Tipan Lopez only challenges the legal standard for nexus
with respect to his religion claim, not his race or political-
opinion claims.

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that the dissent cites, Ghanem, seems to use “animus” to mean
“hatred.” 14 F.4th at 247. The relevant passage describes how
“the animus toward Ghanem extended far beyond his family’s
manifestations of displeasure.” Id. In that phrase, “hatred or
hostility toward Ghanem” would also work. Using our
dissenting colleague’s preferred definition—“intent or
motivation toward Ghanem”—makes little sense. In short,
“animus,” widely recognized as the incorrect legal standard, is
not an implicit and generic shorthand for the appropriate one,
the “one central reason” standard.
In sum, by relying on both subordination- and animus-
based tests, the IJ and the BIA applied the wrong legal
standards for the nexus between religion and persecution. We
grant Tipan Lopez’s petition for review as to the no-nexus-
with-religion finding and remand to the BIA to reconsider the
issue without applying either impermissible test.
3. Harmless Error
Our dissenting colleague suggests that even if the BIA
used the wrong legal standard for nexus, we can affirm because
the error was harmless. Diss. Op. at 9. We disagree. We apply
harmless error in immigration cases when “it is highly probable
that the error did not affect the outcome of the case.” Li Hua
Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011). That
high standard is not met here. The dissent emphasizes that the
persecutors’ motivations matter, not the petitioner’s. Diss. Op.
at 10. But the Lobos castigated Tipan Lopez for “preaching
the word of God,” AR 152, and brought up his religious views
and motivations on more than one occasion, AR 147.

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If the IJ assessed whether the Lobos hated Tipan Lopez
because of his Evangelical Christian beliefs, perhaps it made
sense to conclude they did not hold such animus. The same
could be said for the BIA’s implicit adoption of a
subordination-based test; under the deferential substantial-
evidence standard, the record might support the position that
religion was subordinate to monetary motives. But if the BIA
and IJ had to reexamine the evidence using neither a
subordination- nor an animus-based test, the case could come
out differently. It is not our role to make that determination in
the first instance. INS v. Ventura, 537 U.S. 12, 16 (2002)
(“Generally speaking, a court of appeals should remand a case
to an agency for decision of a matter that statutes place
primarily in agency hands.”). We thus remand.
B. Substantial Evidence for Nexus7
1. Race
Tipan Lopez has indigenous heritage. He presented
evidence that indigenous people face discrimination in
Ecuador and that he struggled with such discrimination during
his education and professional life. The Lobos used a racial
slur against indigenous people when they first targeted Tipan
Lopez. But he presented no further evidence that the attacks
were connected to his race. We therefore deny his petition for
review of the link between his persecution and race. Tipan
Lopez does not demonstrate that race was a “central reason”
7 Because the BIA applied the wrong legal standard for nexus
to the religion claim, we need not assess whether
substantial evidence supported its no-nexus finding. We
instead remand that issue to the BIA.

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for his persecution under 8 U.S.C. § 1158(b)(1)(B)(i). Based
on the “incidental, tangential, or superficial role” test from
Ndayshimiye, 557 F.3d at 130, the racial slur was merely
incidental to the persecution. Substantial evidence supported
the IJ and the BIA’s finding.
2. Political Opinions
Tipan Lopez contends that gangs in Ecuador are
political actors given their influence in government and that his
anti-drug activity amounted to an expression of an anti-gang
political opinion. In support of that position, he cites record
evidence that he opposed drug addiction, that the Ecuadorian
government failed to respond to addiction, that the police were
corrupt, and that gangs were politically powerful in Ecuador.
The Government points out that Tipan Lopez does not argue
(nor would the evidence support) that the Lobos imputed an
anti-gang political opinion to him. It also emphasizes that
opposition to addiction motivated him more than opposition to
dealing, so finding that he held an anti-gang political opinion
involves an inferential leap.
Our review asks whether substantial evidence supports
this finding. The IJ concluded that “[e]ven though [Tipan
Lopez] expressed an opinion against drugs, it does not
logically follow that such an opinion automatically amounts to
an expression of an anti-drug gang political opinion.” AR 82.
The Lobos “knew [Tipan Lopez] was telling people not to do
drugs, but the evidence does not show that [he] was
communicating an opinion against gang authority in Ecuador,
such that the court can infer that [his] actions were perceived
by his persecutor as an expression of any political opinion held
by [him].” AR 82–83.

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21
“Holding a political opinion, without more, is not
sufficient to show persecution on account of that political
opinion . . . . There must be evidence that the gang knew of [the
applicant’s] political opinion and targeted him because of it.”
Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 609 (3d Cir.
2011) (internal citation omitted). A reasonable IJ could find
that the evidence does not establish knowledge or targeting in
Tipan Lopez’s case.
C. CAT Claim
“No State Party shall expel, return . . . or extradite a
person to another State where there are substantial grounds for
believing that he would be in danger of being subjected to
torture.” Convention Against Torture, art. III, 23 I.L.M. 1027,
1028 (1984). “The burden of proof is on the applicant . . . to
establish that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal. The
testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration.” 8 C.F.R.
§ 1208.16(c)(2); see also Sevoian v. Ashcroft, 290 F.3d 166,
174–75 (3d Cir. 2002) (applying the standard from
§ 1208.16(c)(2)). If Tipan Lopez shows that it is more likely
than not he would be tortured on returning to Ecuador, he then
must establish that the torture would be “inflicted by, or at the
instigation of, or with the consent or acquiescence of, a public
official acting in an official capacity or other person acting in
an official capacity.” 8 C.F.R. § 1208.18(a)(1). Put simply,
would the official yield to or accept the torture occurring?
“Acquiescence of a public official requires that the
public official, prior to the activity constituting torture, have

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22
awareness of such activity and thereafter breach his or her legal
responsibility to intervene to prevent such activity.” Herrow
v. Att’y Gen., 93 F.4th 107, 116 (3d Cir. 2024) (quoting 8
C.F.R. § 1208.18(a)(7)). An asylum seeker can establish
acquiescence by showing willful blindness from his home
government. Id. at 116–17. In making such a determination,
the agency must consider first “how public officials will likely
act in response to the harm the petitioner fears,” and second,
“whether the likely response from public officials qualifies as
acquiescence.” Myrie, 855 F.3d at 516. We review the first
question for substantial evidence and the second de novo. Id.
at 516–17; Llanes-Quinteros, 2023 WL 4116625, at *1
(citations omitted).
The IJ assumed, as do we, that Tipan Lopez established
it is more likely than not he would be tortured if he returned to
Ecuador. See id. (outlining this consideration as the first step
of the analysis). As to Ecuador’s likely response, the IJ first
made factual findings that Ecuador “identifies” and “attempts
to root . . . out” corruption. AR 85. Tipan Lopez did not
communicate with the police, so the IJ relied on the general
conditions of the country. Ecuador has a high murder rate, with
gang involvement in politics and a crisis of gang violence. But
in response to this situation, the Ecuadorian government
declared a state of emergency, created a joint taskforce
between the military and police to target gang activity, and
allowed the police to use more force when confronting gang
activity. A reasonable adjudicator could conclude, as the IJ
did, that Ecuador is attempting to address gang violence,
satisfying the substantial-evidence standard that applies to
factual findings.

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23
Having made that finding about how officials would
respond to Tipan Lopez’s torture, the IJ then ruled as a matter
of law that the response would not qualify as acquiescence. We
have instructed IJs and the BIA not to focus on efforts over
outcomes. Quinteros v. Att’y Gen., 945 F.3d 772, 788 (3d Cir.
2019). In other words, it matters whether a government can
prevent torture, not just whether it is trying. See,
e.g., Pieschacon-Villegas v. Att’y Gen., 671 F.3d 303, 312 (3d
Cir. 2011); Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 351
(3d Cir. 2008).8 Efforts notwithstanding, the BIA is “required
to consider whether the government . . . is capable of
preventing the harm.” Quinteros, 945 F.3d at 788.
The dissent does not read Quinteros to stand for the
proposition that “fervent but unsuccessful resistance to torture”
can be acquiescence. Diss. Op. at 13 n.4. We disagree. When
we told the BIA “to consider whether the government . . . is
capable of preventing the harm,” Quinteros, 945 F.3d at 788,
we did not include a bad-faith requirement. We asked about
the home government’s ability, not its intentions. Perhaps that
is why our dissenting colleague seems to acknowledge that his
position may require “revisit[ing]” Quinteros’s holding. Diss.
Op. at 13 n.4. The dissent also suggests that the IJ’s predictive
8 The dissent emphasizes that government officials in
Gomez-Zuluaga “were aware of the fact [the petitioner] had
been kidnapped and threatened,” Diss. Op. 12 (quoting 527
F.3d at 350–51), but these officials were a “police officer”
and “military officer” that she “had been dating,” 527 F.3d
at 350–51. This was “different than filing an official police
report without response,” and we merely suggested that, on
remand, those facts “may be circumstantial evidence” of
acquiescence. Id. at 351.

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24
finding suffices for consideration of whether Ecuador can
prevent harm to Tipan Lopez. Id. at 13 n.5. We again see
things differently. That is the IJ’s conclusion, but the
underlying reasoning applied the wrong legal standard,
impermissibly considering only efforts, not outcomes.
The IJ here noted attempts, not results, and found only
that Ecuador is trying to root out gang-related corruption, not
that it is succeeding. We therefore grant Tipan Lopez’s
petition for review as to the CAT claim and remand for the BIA
to analyze whether Ecuador can prevent the harm he would
likely face. Based on its finding, the BIA must then consider
whether Ecuador would acquiesce to his torture.
* * *
We grant Tipan Lopez’s petition for review as to the
BIA’s no-nexus finding between his religion and his
persecution, and we remand for it to reconsider the issue
without applying subordination- or animus-based tests. We
also grant the petition as to the BIA’s determination that
Ecuador will not acquiesce to his torture. We remand for it to
determine in the first instance whether Ecuador can protect him
from torture and then to reconsider whether Ecuador would
acquiesce to his torture. We deny Tipan Lopez’s petition for
review of the BIA’s no-nexus finding between his persecution
and his race or political opinions.

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1
Hector David Tipan Lopez v. Attorney General, No. 24-1444
HARDIMAN, Circuit Judge, concurring in part and
dissenting in part.
Hector David Tipan Lopez seeks review of a Board of
Immigration Appeals decision denying his applications for
asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). I would hold that the Board
applied the correct legal standards in adjudicating these claims
and that substantial evidence supported its factual
determinations. Because the majority reaches that result only
on Tipan Lopez’s race and political opinion asylum claims, I
respectfully dissent in part.
I
A
To gain asylum, Tipan Lopez must show “a nexus
between the alleged protected grounds and the feared or past
persecution.” Hernandez Garmendia v. Att’y Gen., 28 F.4th
476, 483 (3d Cir. 2022). When an asylum seeker alleges that
his persecutor harbors multiple motivations, the Immigration
and Nationality Act (INA) requires him to “establish that race,
religion, nationality, membership in a particular social group,
or political opinion was or will be at least one central reason
for” the persecution. 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis
added).
We addressed the “one central reason” requirement in
Ndayshimiye v. Attorney General, 557 F.3d 124 (3d Cir. 2009).
There, the Board had interpreted “one central reason” to

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2
exclude persecutorial motives that are “incidental, tangential,
superficial, or subordinate to another reason for harm.” Id. at
128 (citation omitted). We rejected that definition in part,
holding that “one central reason” does not exclude motivations
that are “subordinate to” other reasons for persecution. Id. at
129. We explained that “the mixed-motives analysis should not
depend on a hierarchy of motivations.” Id. Because the “plain
language” of the INA “indicates that a persecutor may have
more than one central motivation for his or her actions,” it is
“irrelevant” that “one of those central reasons is more or less
important than another.” Id. So we rejected a subordination-
based test for evaluating mixed-motive asylum claims. Id. at
129–30.
We also made clear that not all alleged persecutory
motives satisfy the nexus requirement. In mixed-motive cases,
an asylum applicant still must show that an impermissible
motivation was a “central” reason for his persecution. 8 U.S.C.
§ 1158(b)(1)(B)(i). So we agreed with the Board that
“incidental, tangential, or superficial” reasons for persecution
do not satisfy the nexus requirement. Ndayshimiye, 557 F.3d at
130.
Subsequent decisions of this Court reaffirmed the
Ndayshimiye rule. See, e.g., Gonzalez-Posadas v. Att’y Gen.,
781 F.3d 677, 685 (3d Cir. 2015) (“For a protected
characteristic to qualify as ‘one central reason’, it must be an
essential or principal reason for the persecution.”); Thayalan v.
Att’y Gen., 997 F.3d 132, 142–43 (3d Cir. 2021) (“The
characteristic must be both a but-for cause of the persecution
and it must play more than a minor role that is neither
incidental nor tangential to another reason for the harm or a
means to a non-protected end.” (cleaned up)); Ghanem v. Att’y
Gen., 14 F.4th 237, 247 (3d Cir. 2021) (“Whether [a] central

-- 26 of 38 --

3
reason[] is more or less important than another is irrelevant.”
(cleaned up)). The upshot is this: applicants for asylum need
not identify the dominant reason for their persecution, but they
still must show that impermissible motivations played more
than “an incidental, tangential, or superficial role.”
Ndayshimiye, 557 F.3d at 130.
The IJ faithfully applied that standard here. He stated
that Tipan Lopez had to show that “a statutorily protected
ground would be one central reason for any future harm against
him,” A.R. 79, and he repeated that standard throughout his
opinion. He found that “neither the respondent’s race or
ethnicity, nor his religion, were a central reason why the gang
was motivated to target him for harm,” so he concluded that
Tipan Lopez “failed to establish” the requisite nexus. A.R. 80,
83.
The Board followed suit. It explained in more detail that
“a respondent cannot establish a protected ground is ‘one
central reason’ for harm when the protected ground is ‘at most,
incidental or tangential to more commonplace goals, including
financial gain and furthering, or preventing interference in, a
criminal enterprise.’” A.R. 4 (quoting In re M-R-M-S-, 28 I. &
N. Dec. 757, 760 (B.I.A. 2023)). The Board agreed with the IJ
that Tipan Lopez was targeted for persecution because he
interfered with a gang’s illicit drug trade, so it concluded that
nexus was lacking.
B
The majority reads these decisions differently. It says
that the Board ignored our precedent by employing both a

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4
“subordination-based” and “animus-based” approach to the
nexus requirement. I disagree.
1
Consider first the majority’s claim that the Board used
a “subordination-based test.” Maj. Op. 12. Unable to locate the
words “subordinate” or “dominant” in the Board’s opinion, the
majority instead seizes on the Board’s citation to a different
agency decision. As the majority explains, the Board twice
cited its own decision in M-R-M-S-, which had defined
“central” to exclude motivations that are “incidental,
tangential, superficial, or subordinate to another reason for
harm.” 28 I. & N. Dec. at 759 (emphasis added) (citation
omitted). Because we rejected part of that standard in
Ndayshimiye, the majority says the Board committed legal
error simply by citing M-R-M-S-.
I reject that guilt-by-citation reasoning. To be sure, the
standard described in M-R-M-S- partially deviates from our
precedent—a point which M-R-M-S- itself recognized. See 28
I. & N. Dec. at 759 n.6 (noting that we “rejected the
requirement that a protected ground not be subordinate to
another reason for harm”). But the Board did not invoke M-R-
M-S- to endorse its use of a subordination-based approach to
the nexus requirement. In fact, the one time the Board quoted
M-R-M-S-, it omitted subordination language. See A.R. 4 (“[A]
respondent cannot establish a protected ground is ‘one central
reason’ for harm when the protected ground is ‘at most,
incidental or tangential to more commonplace goals, including
financial gain and furthering, or preventing interference in, a
criminal enterprise.’” (quoting In re M-R-M-S-, 28 I. & N. Dec.
at 760)).

-- 28 of 38 --

5
Unable to identify an improper quotation in the Board’s
opinion, the majority pivots to a single citation in a footnote.
There, the majority observes, “the BIA’s decision explained
that M-R-M-S- rejected principles from Fourth Circuit cases on
which Tipan Lopez relied.” Maj. Op. 11 (citing A.R. 4 n.2).
Because the Fourth Circuit has “held that a subordination-
based test for nexus is impermissible,” the majority concludes
that the Board endorsed such a test by implication. Maj. Op.
11.
That is a stretch. Tipan Lopez cited Alvarez Lagos v.
Attorney General, a Fourth Circuit decision, for the proposition
that nexus is satisfied when “the protected ground is the reason
that an individual, and not someone else, is targeted for
persecution.” A.R. 18 (citing Alvarez Lagos v. Att’y Gen., 927
F.3d 236, 250 (4th Cir. 2019)). The Board rejected that but-for
causal reasoning in M-R-M-S-, observing that “[t]he question
asked under the Fourth Circuit’s approach—why an applicant,
and not others, is targeted—is relevant in evaluating the
reasons for harm, but it is not the end of the analysis.” 28 I. &
N. Dec. at 761. That view accords with our own precedent. See
Thayalan, 997 F.3d at 142–43 (“The characteristic must be
both a but-for cause of the persecution and it must play more
than a minor role that is neither incidental nor tangential to
another reason for the harm or a means to a non-protected end.”
(cleaned up)). So when the Board in Tipan Lopez’s appeal
noted that M-R-M-S- “rejected the reasoning the respondent
cites from cases in the United States Court of Appeals for the
Fourth Circuit,” it did not surreptitiously endorse a
subordination-based approach to the nexus requirement.1 A.R.
1 The majority notes that Tipan Lopez also relied on Alvarez
Lagos for another proposition: that “[t]he protected ground
need not be the only reason—or even the dominant or primary

-- 29 of 38 --

6
4 n.2; cf. United States v. Payo, 135 F.4th 99, 108 (3d Cir. 2025)
(“[S]imply citing a case . . . is not sufficient to raise all
arguments that might flow from it.” (citation omitted)).
2
Similar tunnel vision leads the majority to find an
“animus-based test” in the Board’s decision. It is true, as the
majority notes, that the IJ in Tipan Lopez’s case used the word
“animus” three times in its seven-page decision. And I agree
that our cases have seldom required asylum seekers to show
that their persecutors harbored malicious intent. But those
premises do not establish the conclusion that the Board applied
the wrong standard to Tipan Lopez’s asylum claim.
reason—for the persecution.” Maj. Op. 14 (citing Alvarez
Lagos, 927 F.3d at 250). While accurate, that observation does
not help my colleagues’ argument. The Board in Tipan Lopez’s
appeal explained that, at pages 761 to 762 of M-R-M-S-, it had
“rejected the reasoning the respondent cites from cases in the
United States Court of Appeals for the Fourth Circuit.” A.R. 4
n.2. At those pages of M-R-M-S-, the Board focused
specifically on the Fourth Circuit’s use of but-for causal
reasoning, not its rejection of a subordination-based test for
nexus. See 28 I. & N. Dec. at 761 (“The question asked under
the Fourth Circuit’s approach—why an applicant, and not
others, is targeted—is relevant in evaluating the reasons for
harm, but it is not the end of the analysis.”). So the Board in
Tipan Lopez’s appeal cited M-R-M-S- to reject the Fourth
Circuit’s novel but-for causation approach to the nexus
requirement, not to adopt a subordination-based test.

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7
The IJ did not require Tipan Lopez to show “hostility by
the persecutor against” his religion. Maj. Op. 15. Several times
the IJ correctly identified the applicable legal standard as “one
central reason.” See A.R. 79, 80–83. And he denied relief not
because Tipan Lopez failed to show that the Lobos gang
members hated Christians but because “the respondent’s
religion and religious beliefs were not a central reason for why
the respondent was attacked or threatened.” A.R. 80. So
context suggests that the IJ used “animus” as a shorthand for
the proper (objective) legal standard, not as a heightened
supplement to it.
Our own cases have used “animus” in this way. Title
VII, for instance, prohibits sex discrimination regardless of
whether the employer’s “motivation is desire or hatred,” or its
acts are “hostile or paternalistic.” Durham Life Ins. Co. v.
Evans, 166 F.3d 139, 148 (3d Cir. 1999). But we still identify
“discriminatory animus” as a key ingredient to employment
discrimination claims. See, e.g., Fuentes v. Perskie, 32 F.3d
759, 765 (3d Cir. 1994) (“[T]he factual dispute at issue is
whether discriminatory animus motivated the employer, not
whether the employer is wise, shrewd, prudent, or
competent.”). And we use the word often in our immigration
decisions. See, e.g., Ghanem, 14 F.4th at 247 (observing that
the Board “failed to account for ample evidence in the record
that the animus toward Ghanem extended far beyond his
family’s manifestations of displeasure with his perceived
political opinions”).2
2 The majority observes that swapping out the phrase “animus
toward Ghanem” with the phrase “hatred or hostility toward
Ghanem” would “also work.” Maj. Op. 18. But it provides no
evidence that the Ghanem Court actually used “animus” in this

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8
The majority insists that “‘animus’ has a specific
meaning” in the immigration context. Maj. Op. 17. But
curiously, the executive branch and international law
authorities it relies upon do not even mention the word
“animus,” let alone attempt to define it. See USCIS: RAIO
D IRECTORATE – L ESSON PLAN , N EXUS AND THE PROTECTED
G ROUNDS , at 11 (Jan. 30, 2025); UNHCR, Handbook on
Procedures and Criteria for Determining Refugee Status,
HCR/1P/4/ENG/REV.4, at 176 (Feb. 2019).
The majority cites two out-of-circuit decisions to bolster
its contention that “animus” is a term of art in the immigration
context. See Maj. Op. 17 (citing Mazariegos-Rodas v. Garland,
122 F.4th 655, 668 (6th Cir. 2024) and Orellana-Recinos v.
Garland, 993 F.3d 851 (10th Cir. 2021)). While Mazariegos-
Rodas does link “animus” to a hostility requirement, Orellana-
Recinos is much less clear on the question. There, the Tenth
Circuit used the word throughout its opinion, ultimately
concluding that nexus was lacking because “the gang members
had no animus against [the victim’s] family per se.” Orellana-
Recinos, 993 F.3d at 858. Hardly confirming the majority’s
assertion, Orellana-Recinos indicates that federal courts
sometimes use the word “animus” in the same way the Board
did here.
“[A]nimus” has bedeviled other federal courts, as well.
For instance, the First Circuit—one of the few to expressly
reject an animus component to the nexus requirement—has
acknowledged that it is “not entirely clear what the BIA and
way. In fact, context suggests that the Court used the word in
much the same way as the Board did here—as shorthand for
the proper standard. See Ghanem, 14 F.4th at 247.

-- 32 of 38 --

9
some of our sister circuits mean by ‘animus.’” Pineda-
Maldonado v. Garland, 91 F.4th 76, 89 n.4 (1st Cir. 2024).
When confronted with First Circuit precedents that had used
the word, the Pineda-Maldonado Court clarified that it did “not
read any of” them “to require a showing of . . . hatred or
antagonism.” Id. A survey of our sister courts therefore shows
only confusion about the word “animus,” not consensus around
some immigration-specific meaning.
These observations explain how “animus” is not a term
of art in the immigration context and can serve as shorthand for
“discriminatory intent” or “discriminatory motivation” rather
than “hatred” or “hostility.” Because context suggests that the
IJ used “animus” in this way, I discern no reversible error in
his decision.
C
Even if the Board used the wrong standard in resolving
Tipan Lopez’s asylum claim, its error was harmless. See Li Hua
Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011). That’s
because substantial evidence more than supports the Board’s
determination that money, not religion, motivated the gang to
persecute Tipan Lopez.
The record shows that the Lobos gang repeatedly
blamed Tipan Lopez for a decline in their drug profits. Because
Tipan Lopez “was preaching the word of God to the young,”
gang members explained, they “were not selling drugs as
before.” A.R. 152. They complained that Tipan Lopez was
“getting involved with their clients” and even demanded
$10,000 as “compensation [for] them not selling the drugs that
they were selling before.” A.R. 155, 159–60. In fact, when
asked if “the whole reason [the gang members] were so angry

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10
with you is because you were essentially taking business from
them,” Tipan Lopez responded “[y]es, that’s what they told
me.” A.R. 180. So the record makes plain that drug profits, not
religion, motivated the Lobos gang to target Tipan Lopez.3
Tipan Lopez resists that conclusion. He contends that,
because faith inspired him to advocate against drug use, any
persecution because of that advocacy is necessarily based on
religion. But in an asylum case, “[i]t is the persecutors’ actual
motivation, not the petitioner’s beliefs, that are determinative.”
Ghanem, 14 F.4th at 245. So the fact that Tipan Lopez was
religiously motivated says nothing about what motivated his
persecutors.
Relying on Fourth Circuit precedent, Tipan Lopez also
argues that the gang’s financial motives were “‘inextricably
intertwined’ with his religion.” Tipan Lopez Br. 38 (quoting
Chicas-Machado v. Garland, 73 F.4th 261, 266 (4th Cir.
2023)). Because gang members repeatedly tied Tipan Lopez’s
faith to their declining profits, he insists that it is impossible to
separate the two motivations. But this argument runs headlong
3 In an attempt to criticize the Board’s decision, the majority
notes that “the Lobos castigated Tipan Lopez for ‘preaching
the word of God,’ and brought up his religious views and
motivations on more than one occasion.” Maj. Op. 18 (cleaned
up). But scattered rhetoric is not enough to show nexus, as the
majority itself recognizes. See Maj. Op. 19 (“The Lobos used
a racial slur against indigenous people when they first targeted
Tipan Lopez. But he presented no further evidence that the
attacks were connected to his race. We therefore deny his
petition for review of the link between his persecution and
race.” (cleaned up)).

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11
into Ndayshimiye. There, we explained that “factually
intertwined explanations for persecution are irrelevant where
the proximate motivation for mistreatment of an applicant is
not a protected ground.” Ndayshimiye, 557 F.3d at 132. So even
though the asylum seeker in that case could show that his
nationality was bound up with the land dispute that caused his
persecution, we held that there was an insufficient nexus
because the former motivation was incidental to the latter one.
The same is true here—even if the two motivations were
intertwined, religion was still incidental to the gang’s financial
objectives.
* * *
Tipan Lopez was persecuted because he interfered with
a gang’s drug trafficking operation, not on account of any
protected ground. Because the majority reaches that result with
respect to race and political opinion, I join Part III.B of its
opinion. As for Tipan Lopez’s religious asylum claim, I would
hold that the Board applied the correct legal standard and that,
in any event, “[r]emand for reconsideration under the corrected
mixed-motives standard is . . . not necessary.” Id. at 131.
II
The majority also remands Tipan Lopez’s CAT claim,
concluding that the IJ failed to consider whether Ecuador is
“capable of preventing” Tipan Lopez’s torture. Maj. Op. 23
(cleaned up). While I agree that Tipan Lopez’s CAT claim turns
on the meaning of “acquiescence,” I disagree that the Board
applied the wrong legal standard in answering that question.
The majority faults the Board for “focus[ing] on efforts
over outcomes.” Maj. Op. 23. My colleagues cite Gomez-

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12
Zuluaga v. Attorney General, 527 F.3d 330 (3d Cir. 2008) and
Pieschacon-Villegas v. Attorney General, 671 F.3d 303 (3d Cir.
2011) for the proposition that “it matters whether a government
can prevent torture, not just whether it is trying.” Maj. Op. 23
(citations omitted). But neither case suggests that efforts and
outcomes are equally important to the acquiescence inquiry.
Consider Gomez-Zuluaga. We held there that “[t]he
mere fact that the Colombian government [was] engaged in a
protracted civil war with [a paramilitary group] [did] not
necessarily mean that it [could not] remain willfully blind to
the torturous acts of the [group].” Gomez-Zuluaga, 527 F.3d at
351. That was because, despite the government’s war efforts,
Gomez-Zuluaga produced record evidence that government
officials “were aware of the fact that she had been kidnapped
and threatened” by the group but indicated that they “would do
nothing to stop it.” Id. at 350–51. We rejected a similar
categorical rule in Pieschacon-Villegas. The Board there had
asserted that “CAT protection does not extend to persons who
fear entities that a government is unable to control.”
Pieschacon-Villegas, 671 F.3d at 312 (cleaned up). We
disagreed, suggesting instead that a government acquiesces to
torture if it believes its law enforcement efforts will not
succeed and retreats in the face of violence. Id.
Neither decision, however, required the Government to
prove the law enforcement capabilities of an alien’s home
country. To permit a finding of acquiescence when the record
shows fervent attempts to resist gang violence would redefine
that word.4 Our cases are instead best read to establish that,
4 Unlike the majority, I do not read Quinteros v. Attorney
General, 945 F.3d 772 (3d Cir. 2019) to distort “acquiescence”
in this way. Quinteros must be read in light of Gomez-Zuluaga

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13
when a petitioner has record evidence of willful blindness to
torture, neither a government’s tepid resistance nor its inability
to control it will categorically preclude a finding of
acquiescence.
The IJ dutifully applied that standard here. His opinion
incorporated a memorandum explaining that “[a] government’s
opposition to or inability to control a group does not bar a
showing of acquiescence to torture.” A.R. 76 (citations
omitted). The IJ then made a predictive finding “that if the
respondent reported threats or attacks from the Lobos to the
Ecuadorian National Civil Police, the police would act in a way
to prevent such harm from occurring to the respondent.”5 A.R.
86. This result, the IJ explained, “would not demonstrate
consent, acquiescence, or willful blindness.” Id. The Board
agreed, finding “that the respondent has not demonstrated the
requisite consent or acquiescence by a public official.” A.R. 4–
5. I see no reversible error in this thorough analysis.
The IJ’s predictive finding was also supported by
substantial evidence. Tipan Lopez never reported his alleged
and Pieschacon–Villegas, both of which it cites with approval.
See id. at 788 n.79. But to the extent that Quinteros interpreted
“acquiescence” to capture fervent but unsuccessful resistance
to torture, it should be revisited.
5 This is precisely the finding that the majority instructs the
agency to explore on remand. See Maj. Op. 4 (“We remand
Tipan Lopez’s CAT claim for the BIA to determine whether
Ecuador can protect him from torture, a determination relevant
to acquiescence that the BIA did not make.”). So it is unclear
what more the majority would like the Board to do.

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14
torture to the police. So rather than citing his own experiences,
he relied almost entirely on news clippings and country
conditions reports, both of which show a government
committed to stamping out gang violence. For example, one
article reported that Ecuador declared a state of emergency to
address rising gang violence in 2022. A year later, another
outlet reported that the Ecuadorian “government wants
criminal gangs to be classified as terrorists to allow the armed
forces to be deployed against the unprecedented tide of drug
gang killings.” A.R. 430. And when “28 candidates in local
elections in cities across” Ecuador were accused “of having
possible ties to drug trafficking,” the national government
opened investigations and referred them for prosecution. A.R.
434. These efforts hardly indicate that Ecuador is “yield[ing]
to or accept[ing]” gang-initiated torture. Maj. Op. 21.
For these reasons, the majority’s decision to remand
Tipan Lopez’s claim for relief under the Convention Against
Torture is especially untenable.
III
The Board’s decision identified and applied the correct
legal standards governing Tipan Lopez’s asylum and CAT
claims. To the extent my colleagues hold otherwise, I
respectfully dissent.

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