Jose Maria Rivera v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-2351
___________________________
Jose Maria Rivera; Emperatriz Del Carmen Rivera Delgado; Jose Maria Rivera
Delgado; Morena Del Carmen Delgado DeRivera; Reyes Alexander Barahona
Delgado
Petitioners
v.
Merrick B. Garland, Attorney General of the United States
Respondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: March 13, 2024
Filed: July 5, 2024
____________
Before GRUENDER, SHEPHERD, and GRASZ, Circuit Judges.
____________
GRUENDER, Circuit Judge.
Jose Maria Rivera (“Rivera”); his wife, Morena Del Carmen Delgado De
Rivera (“Morena”); their two children, Emperatriz Del Carmen Rivera Delgado and
Jose Maria Rivera; and Morena’s son, Reyes Alexander Barahona Delgado
(“Reyes”) petition for review of the Board of Immigration Appeals (“BIA”) order
dismissing the appeal of the Immigration Judge’s (“IJ”) decision denying the family

-- 1 of 13 --

-2-
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). We deny the petition for review in part, grant the petition in part, vacate
in part the decision of the BIA, and remand for proceedings consistent with this
opinion.
I.
Rivera was the pastor of a Christian church in El Salvador. He and other local
pastors routinely evangelized to gang members, and when they did, other gang
members would sometimes tell them to stop preaching or chase them away. Gang
members once told Rivera himself to stop preaching. When his church held services,
gang members posted themselves outside the building to monitor who attended. He
explained that his church, unlike some others in the region, had trouble with gang
members because the church tried to “stick close to the word of God” and refused to
participate in “illicit” activities.
Through his ministry, Rivera met Ronal Granadeno, a member of the MS-13
gang. They developed a relationship over three years, throughout which Rivera
consistently preached the Gospel to Granadeno. The gang did not seem to care until
Granadeno decided to join Rivera’s church, at which point Granadeno’s fellow gang
members became upset and ordered Granadeno not to leave town.
Soon after, Granadeno, Rivera, Morena, and Rivera and Morena’s daughter
were leaving church together when two gang members attacked them. The gang
members said that they would kill the men because “no one messes with them” and
that Granadeno “belonged to them, not to Christ.” The men hit Rivera in the head,
held him down, placed a gun to his head, and pulled the trigger. The gun did not
fire. They pulled the trigger two more times, but the gun still did not fire. The men
then shot and killed Granadeno, who was lying face-down five meters from Rivera.
After murdering Granadeno, the men returned to Rivera and kicked him. They also
threw Morena against the wall. Later, when Rivera was asked whether the men said
anything about his church during the attack, he said they told Morena that they were
going to kill her “because we had protected [Granadeno].”

-- 2 of 13 --

-3-
After the men left, Rivera called the police. The police told Rivera that he
and his family needed to leave because the gang may return and kill them “for being
witnesses and for reporting the homicide.” He stayed for a while and even resumed
holding worship services until, one day, someone at church warned him that the gang
was planning to kill him that day. He and his family fled and ultimately made their
way to the United States. After Rivera and his family left El Salvador, gang
members began threatening Rivera’s stepson, Reyes. They told Reyes that, if he lied
to them, they would do the same thing to him that they intended to do to Rivera and
the rest of the family. Reyes subsequently fled to the United States as well.
Rivera applied for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”) on behalf of himself and his family, including
Reyes. Reyes also separately submitted an application alleging additional grounds
for asylum, withholding of removal, and protection under the CAT. After a hearing,
the IJ issued a decision, finding both Reyes and Rivera credible. The IJ concluded
that Rivera had adequately showed that he suffered past persecution but failed to
demonstrate that this persecution was “on account of” his religion or any other
protected ground. The IJ reasoned that the gang was angry that Rivera “interfer[ed]
with the gang’s ranks by convincing [Granadeno] to leave the [gang]” and that
Rivera’s religion was therefore only “incidental” to his persecution. Thus, the IJ
concluded, Rivera and his family were not entitled to asylum or withholding of
removal. The IJ also denied CAT relief. Reyes’s additional claims were predicated
on his assertion that he was a member of a particular social group, Rivera’s family,
that entitled him to protection. The IJ found that, even if Reyes’s membership in
Rivera’s family satisfied the particular social group requirement, he had not
demonstrated the existence of the requisite “animus” against that family. Rivera,
Reyes, and their family appealed to the BIA. The BIA dismissed the appeal,
concluding that there was no clear error in the IJ’s findings that Rivera’s religion
was not one central reason that the gang targeted him and that Reyes’s membership
in Rivera’s family was not why he was threatened. Rivera and his family now
petition for review of the BIA’s decision denying their asylum and withholding of
removal claims, including review of Reyes’s separate asylum claim.

-- 3 of 13 --

-4-
II.
“We review the denial of an application for asylum, withholding of removal,
or CAT relief for substantial evidence . . . , and we review questions of law de novo.”
Uriostegui-Teran v. Garland, 72 F.4th 852, 8555 (8th Cir. 2023) (internal citations
omitted). “Under the substantial evidence standard, the agency’s findings of fact
must be upheld unless the alien demonstrates that the evidence he presented not only
supports a contrary conclusion but compels it.” Id. “Only the BIA order is subject
to our review, including the IJ’s findings and reasoning to the extent they were
expressly adopted by the BIA.” Id. Where, as here, “the BIA essentially adopted
the IJ’s opinion while adding some of its own reasoning, we review both decisions.”
Alanwoko v. Mukasey, 538 F.3d 908, 912 & n.2 (8th Cir. 2008).
Rivera argues that we should grant the petition for three reasons: (1) the BIA
decision was issued by an improperly appointed Board member, (2) the record
compels the conclusion that religion was at least one central reason for Rivera’s
persecution, and (3) the agency failed to address the issue of future persecution.
Reyes also argues separately that the BIA erred in concluding he was not being
persecuted for his membership in a particular social group and that the agency did
not analyze his claims carefully enough. We address each of these arguments in turn.
A.
Rivera first argues that the BIA’s decision is void because an “improperly
appointed” Department of Justice attorney, John Crossett, issued the decision.
Crossett is a BIA employee, and in October 2022, he was appointed by the Attorney
General to serve as a “temporary” BIA member. Rivera asserts that Crossett was
never properly appointed as a temporary Board member because the version of 8
C.F.R. § 1003.1(a)(4) (2022) in effect at the time provided that “[t]he Director [of
the Executive Office for Immigration Review] may in his discretion designate
[certain individuals] . . . to act as temporary Board members for terms not to exceed
six months.” The regulation further provides that, in certain instances, the Director
must get the approval of the Deputy Attorney General to make these designations,
see id., but it is entirely silent as to the role of the Attorney General himself in the

-- 4 of 13 --

-5-
designation or appointment of temporary Board members. Rivera interprets this
silence to mean that § 1003.1(a)(4) grants the Director the exclusive authority to
designate and appoint temporary Board members and that the Attorney General
surrendered his own authority to do so when he promulgated this regulation.1 Thus,
Rivera contends, since Crossett was appointed by the Attorney General, he was
never properly appointed.
Rivera misreads the regulation. The Attorney General has authority over
issues of immigration, and he has the power to delegate that authority to inferior
officers. See 8 U.S.C. § 1103(g)(2). He made such a delegation to the Director in 8
C.F.R. §1003.1(a)(4) by granting the Director the authority to “designate” temporary
Board members. But this does not mean that such Board members cannot be
appointed by the Attorney General. Section 1003.1(a)(1) clearly states that Board
members are “appointed by” the Attorney General. 8 C.F.R. § 1003.1(a)(1).
Temporary Board members are still Board members—the only difference in their
responsibilities or power relates to en banc matters. See 8 C.F.R. § 1003.1(a)(4).
Thus, the regulation provides that the Attorney General may make formal Board
member appointments, temporary or otherwise. See Mboba v. Garland, 2023 WL
4836671 at *8 (5th Cir. Jul. 27, 2023) (“Thus, a contextual reading of the regulations
clearly indicates that the Attorney General appoints [temporary Board members].”);
89 Fed. Reg. 22630, 22631 (Apr. 2, 2024) (explaining the 2024 amendment, which
explicitly authorizes the Attorney General to make appointments, is intended to
“more clearly reflect how temporary Board members are appointed” because, though
the Director typically selects Board members, they have always been “appointed and
reappointed . . . by the Attorney General”). The provision authorizing the Director
1 Section 1003(a)(1) was subsequently amended to address this ambiguity. It
now states that the Attorney General may, “[u]pon the recommendation of the
Director,” exercise “his discretion [to] appoint” temporary board members. 8 C.F.R.
§ 1003.1(a)(4) (2024).

-- 5 of 13 --

-6-
to designate temporary Board members is not in tension with this conclusion.2 We
conclude that the Attorney General properly appointed Crossett.
Rivera also argues that, even if Crossett was properly appointed in the first
instance, his decision was still invalid because, at the time it was issued, he was
serving an impermissible second consecutive six-month term as a temporary Board
member. Section 1003.1(a)(4) (2022) authorized the appointment of “temporary
Board members for terms not to exceed six months.” Rivera reads this to mean that
such individuals cannot be reappointed. He points out that the regulation governing
the appointment of temporary IJs, 8 C.F.R. § 1003.10(e)(1)(i)-(ii), specifically
provides for “renewable” terms but the regulation governing the appointment of
temporary Board members does not. Although the regulation does not explicitly
authorize the renewal of a term or appointment of a temporary Board member to an
additional term, it also does not prohibit it. There is no ambiguity in the text of the
regulation; it simply does not address the issue of additional terms. Thus, again, we
conclude that the regulation “just means what it means.” Kisor v. Wilkie, 588 U.S.
558, 574-75 (2019). Further, to read the absence of “renewable” to mean that the
Attorney General cannot appoint the same individual to multiple terms in the same
role would be inconsistent with the Attorney General’s broad power to make
appointments and delegate his duties to subordinates. See 8 U.S.C. § 1103(g); 28
U.S.C. §§ 509-510. The Attorney General exercised that power when he appointed
Crossett to two terms, the second of which started the day after the first ended.
Nothing in the text of the regulation related to temporary Board members or the
2 This situation is distinguishable from United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260, 266 (1954) where the court determined that, by
implementing a regulation directing the BIA to decide cases in their discretion, the
Attorney General exclusively and fully delegated his authority to decide such
matters to the BIA. The court determined this was the proper reading of the
regulation because it was impossible for cases to truly be decided in the BIA’s
discretion if the Attorney General also retained power to interfere at any time. In
contrast, here, there is no conflict or inconsistency created even if both the Attorney
General and Director may make temporary Board member appointments.

-- 6 of 13 --

-7-
statutes empowering the Attorney General to make such appointments supports the
conclusion that he is somehow limited in doing so when the appointments are
consecutive. Thus, the Attorney General can appoint temporary Board members to
consecutive terms, and Crossett’s reappointment was not barred.
B.
We turn next to the merits of Rivera’s asylum claim. To qualify for asylum,
an applicant must show that he is an alien who is “unable or unwilling to return to”
his home country because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or
political opinion. 8 U.S.C. § 1101(a)(42)(A). There is no dispute that Rivera
satisfies the persecution requirement: the BIA affirmed the IJ’s finding that Rivera
suffered “serious harm, significant enough to establish persecution if tied to a
protected ground.” The critical question then becomes whether that serious harm
was “on account of” a protected ground.3 The only “protected ground” raised in
Rivera’s petition is his religion. Thus, to show that his persecution is “tied to a
protected ground,” Rivera must demonstrate that his religion “was or will be at least
one central reason for” his persecution. Garcia-Moctezuma v. Sessions, 879 F.3d
863, 867 (8th Cir. 2018). This means that “the protected ground cannot be incidental
or tangential to the persecutor’s motivation.” Id. at 868 (internal quotation marks
omitted). The IJ and the BIA concluded that religion was not one central reason
Rivera was attacked. Rivera claims that the BIA committed legal error in this
analysis and that substantial evidence does not support the finding that no nexus
existed between Rivera’s persecution and his religion. He also argues that it was
3 Rivera also sought withholding of removal. To “qualify for withholding of
removal, an applicant has the burden of showing a clear probability that his life or
freedom would be threatened in the proposed country of removal on account of race,
religion, nationality, membership in a particular social group, or political opinion.”
Malonga v. Mukasey, 546 F.3d 546, 551 (8th Cir. 2008) (citation and internal
quotation marks omitted); see 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16(b). Thus,
his withholding of removal claim also turns on this question of nexus.

-- 7 of 13 --

-8-
error for the BIA to not make separate factual findings about his risk of future
persecution.
1.
First, we consider the legal analysis of the BIA and the IJ. To establish nexus,
a protected ground must be one central reason for the persecution, not the only
central reason. See Garcia-Moctezuma, 879 F.3d at 867. An applicant is “not
obliged to show conclusively why persecution has occurred or may occur,” Hassan
v. Ashcroft, 388 F.3d 661, 666 (8th Cir. 2004), but instead, he must offer “some
evidence” that the persecutors were motivated to harm him “at least in part, on
account of a protected ground,” Malonga v. Holder, 621 F.3d 757, 766 (8th Cir.
2010). If there is a possibility that the persecution at issue involved multiple
motivations, not all of which are protected grounds, the agency must then “carefully
examine the record to determine whether the evidence shows that the persecution
also occurred on account of a protected ground.” De Brenner v. Ashcroft, 388 F.3d
629, 636 (8th Cir. 2004).
The BIA and IJ both failed to conduct the required careful examination of the
record to determine whether religion may have been one of multiple central reasons
for the gang members’ persecution of Rivera. See id. Instead, the IJ summarily
concluded that “[t]he evidence . . . shows that the gang attacked him and [Granadeno]
because [Granadeno] left the gang.” The IJ found that there was no other evidence
of persecution apart from that incident and “[t]hus, [Rivera’s] religion remain[ed] an
incidental factor to the gangsters’ motivations.” The BIA adopted this conclusion.
In other words, both the BIA and the IJ treated the conclusion that one central reason
for Rivera’s persecution was the gang’s anger about Granadeno leaving the gang as
proof that Rivera’s religion was not one central reason for the persecution. Neither
the BIA nor the IJ considered the possibility that Rivera’s religion could have been
an additional central reason for his persecution. This was error.
The BIA and IJ opinions also signal an impermissibly narrow view of what it
means to be persecuted “on account of” religion. As the Fourth Circuit recently
recognized in Chicas-Machado v. Garland, even if “a refusal to comply with a

-- 8 of 13 --

-9-
gang’s demands may be the immediate trigger for the gang’s assault, an asylum
applicant has established nexus where . . . a protected ground is the reason the gang
issued its demand in the first place.” 73 F.4th 261, 268 (4th Cir. 2023) (internal
quotation marks omitted). Similarly, even if the ultimate “trigger” for the gang
members’ attack on Rivera and Granadeno was Granadeno leaving the gang, this
does not disapprove the possibility that religion was an underlying central reason for
the attack. See id. (condemning the agency’s analysis for disregarding that it was
the applicant’s “position in, work for, and attendance at church” that made her a
target for forceful recruitment because she would not be suspected of working with
them); cf. Argueta-Hernandez v. Garland, 87 F.4th 698, 711-12 (5th Cir. 2023)
(vacating and remanding for further analysis because the BIA acknowledged that the
applicant was targeted because of his position and reputation as a good person but
did not consider that he was “considered . . . a good person because he was a well-
known religious leader who was ‘not doing bad things’”).
The BIA’s truncated analysis stopped with consideration of whether Rivera’s
religion was the final “trigger” for his persecution. The BIA emphasized that Rivera
was targeted “because he convinced [Granadeno] to leave the gang” but did not look
for or grapple with evidence of the causal relationship between Rivera’s religion and
his work to convince Granadeno to leave the gang. This was error and an
“oversimplification” of the nexus analysis that failed to account for the possibility
that religion could have been an additional central motive for the gang members’
actions. See De Brenner, 388 F.3d at 637 (rejecting the BIA’s analysis that did not
“carefully examin[e] the record for particularized evidence of imputed political
opinion”); see also Argueta-Hernandez, 87 F.4th at 710 (explaining that “the nexus
requirement is not an either-or proposition” and the analysis was not limited to
whether the applicant “explicitly said he was not allowed to preach or otherwise
exercise his religious rights” (internal quotation marks omitted)).
The BIA and IJ also relied on facts not supported by substantial evidence and
failed to consider significant evidence relevant to Rivera’s claim that he was
persecuted on account of his religion. First, the IJ found that the gang “never
prevented [Rivera] from preaching,” otherwise “prevented him from practicing his

-- 9 of 13 --

-10-
religion,” or “threatened [Rivera] about his religious activities or beliefs.” But,
during the hearing before the IJ, Rivera was directly asked, “Did [the gang] ever tell
you to stop preaching,” and he responded, “on one occasion, yes.” Although Rivera
pointed this out to the BIA, the BIA never addressed it, instead broadly affirming
the IJ’s factfinding. Second, during Rivera’s testimony, counsel asked Rivera: “Did
the men mention to you anything about your church before they were beating you or
before they shot [Granadeno]?” And Rivera responded: “They told my wife that
because we had protected him, they were going to kill her. And that’s why—that
they were going to kill us.” In the IJ’s discussion of the facts, the IJ quotes Rivera’s
response to this question to support the conclusion that Rivera and his wife were
going to be killed because Rivera and his wife “had protected” Granadeno. But the
most logical and natural reading of this sentence is that “we” refers to the church
about which Rivera was directly asked. Again, Rivera highlighted this testimony to
the BIA, but the BIA did not address it. Third, neither the IJ nor the BIA addressed
Rivera’s written statement that, during the altercation, the gang members said that
Granadeno “belonged to them, not to Christ” before killing him. Nor did the BIA or
the IJ grapple with Rivera’s testimony that the gang members attempted to shoot
him before Granadeno, which undermines the BIA and IJ’s conclusion that he was
targeted primarily because he witnessed Granadeno’s murder.
The BIA also did not address the evidence put forward by Rivera of other
Christians being killed or threatened by the same gang for evangelizing, of other
gang members being killed for becoming Christians, or of how his church’s specific
religious beliefs put them at odds with the gang. Rivera identified specific examples
of other pastors being killed or harmed while evangelizing and of former gang
members being killed for trying to leave gang life to join Christian churches. He
testified that he knew that the gang will not leave “religious individuals” alone “after
they’ve tried to help somebody leave the gang,” not just once they are successful in
doing so. In fact, he testified that he has never seen any other religious individual
left alone after trying to help someone leave gang life. He also testified that his
church particularly had trouble with gang members because “we are a church that
we really try to stick close to the word of God” and therefore he and his church

-- 10 of 13 --

-11-
members “don’t have the liberty to do things that are [illicit] . . . [and] that’s what
[the gangs] want you to do.” Rivera also acknowledged that he knew some churches
did coexist with the gangs without issue, even if gang members joined their
churches, because they were willing to “collaborate with [the gangs] or cooperate
with them [in] . . . whatever illegal activity they want to do.” He explained, however,
that his religious beliefs did not allow him or his church to do that. The BIA should
have considered whether this evidence supported the inference that a second central
reason that Rivera was targeted was his religious views and the actions he took in
accordance with those views—like helping Rivera leave the gang.
In addition to its legal error, the BIA erred by not considering this evidence.
Cf. De Brenner, 388 F.3d at 636 (reversing the BIA’s no-nexus finding where the
BIA gave “no recognition of the undisputed evidence that [persecutors] imputed
political opinion to [the asylum seeker]” and concluding that it did not matter that
De Brenner was likely targeted in part for her affluence, so long as there was also
evidence that her political affiliation was a central reason for the persecution).
Accordingly, we vacate the BIA’s decision on the issue of nexus. See Zheng v.
Gonzales, 415 F.3d 955, 960 (8th Cir. 2005) (vacating and remanding for lack of
substantial evidence where the IJ and BIA failed to consider significant evidence in
the applicant’s favor). On remand, the BIA should conduct the proper legal analysis
and consider all of the credible evidence relevant to whether Rivera’s religion was
an additional central reason for his persecution, particularly the undisputed portions
of Rivera’s testimony. In doing so, it should bear in mind that, even if a protected
ground was not the final “trigger” for persecution, persecution may, at least in some
circumstances, be “on account of” religion if it is the practice of an individual’s
religion which leads to him being targeted in the first instance. See Chicas-
Machado, 73 F.4th at 266.
2.
Rivera also argues that the IJ and BIA erred by not conducting additional fact
finding on the issue of future persecution. However, as the Attorney General points
out, Rivera presented no evidence that he would be persecuted for religion in the

-- 11 of 13 --

-12-
future, apart from that evidence related to his past-persecution claim. Though
“remand is appropriate to allow the BIA to address [issues] in the first instance”
when it has failed to address an argument, Omondi v. Holder, 674 F.3d 793, 801 (8th
Cir. 2012), we do not find the BIA failed to address one here. Because the BIA
determined that Rivera put forward no evidence of future persecution apart from
what was raised and should have been considered in the context of past persecution,
it did not err in finding that the nexus determination was “dispositive” of the entire
asylum claim. However, because the IJ and BIA relied on facts not supported by the
evidence and committed legal error in its nexus analysis, we note that the BIA may
be required to revisit the question of “future persecution” after fully addressing the
question of past persecution. See Bushira v. Gonzales, 442 F.3d 626, 630 (8th Cir.
2006) (explaining that “proof of past persecution entitles the asylum applicant to a
presumption that [he] has a well-founded fear of future persecution”).
C.
Turning to Reyes’s separate asylum claim, Reyes argues that the BIA erred
by (1) “skipping required factfinding on future persecution” and (2) “making a
contradictory finding on nexus.” As to “skipping factfinding,” Reyes, like Rivera,
offered no evidence of future persecution apart from that considered in conjunction
with his past-persecution argument; thus, the court did not err by declining to make
additional findings on this point. As to nexus, Reyes argued that, in addition to being
persecuted for his religion (a claim which rises and falls with Rivera’s), he was also
a target because of his membership in a particular social group, Rivera’s family. The
IJ held that Reyes’s claim failed because he had not demonstrated that the gang
“h[e]ld any animus toward him or the family as a whole.” Though Reyes objects to
the IJ and BIA’s brief analysis on this point, the IJ determined that he had failed to
show nexus because the mere fact “that the gangsters questioned him concerning his
mother’s whereabouts” did not “show[] that the gangsters hold any animus toward
him or the family as a whole.” The gang members did threaten to harm him but only
if he lied about his family’s whereabouts—not simply because he was a member of
that family. The record does not compel the conclusion that his membership in the
family was one central reason that he was threatened. See Garcia-Moctezuma 879

-- 12 of 13 --

-13-
F.3d at 868. Thus, we deny the petition for review as to Reyes’s separate asylum
claim.4
III.
For the foregoing reasons, we deny the petition for review as to Reyes’s
individual asylum claim, grant the petition for review as to Rivera’s claims on behalf
of himself and his family, vacate in part the BIA’s decision, and remand for further
proceedings consistent with this opinion.
______________________________
4 We note that, in the event that the BIA finds on remand that Rivera and his
family are entitled to asylum or withholding of removal, Reyes would be entitled to
such protection alongside the rest of Rivera’s family.

-- 13 of 13 --