Nora Flores Rodriguez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORA FLORES RODRIGUEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-170
Agency No. A208-746-443
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 9, 2023
San Francisco, California
Before: FRIEDLAND and R. NELSON, Circuit Judges, and KATZMANN**,
Judge.
Dissent by Judge R. NELSON.
Nora Flores Rodriguez, a native and citizen of El Salvador, petitions for
review of an order of the Board of Immigration Appeals (“BIA”) affirming the
decision of an immigration judge (“IJ”) denying her application for asylum and
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gary S. Katzmann, Judge for the U.S. Court of
International Trade, sitting by designation.
FILED
MAR 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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withholding of removal. We grant the petition in part and remand her withholding
of removal claim.
Flores Rodriguez’s application described her experiences of harm at the
hands of two abusers in El Salvador: a man who sexually abused her when she was
a child and a gang member who sexually harassed and threatened her with rape
when she was a young adult. The BIA concluded that there was no nexus between
this harm and Flores Rodriguez’s proposed particular social group (“PSG”) of
“Salvadoran women.” Instead, the agency determined that the child abuse was
motivated by sexual deviancy and the gang member’s behavior was just a random
“criminal action” that could be attributed to her unwillingness to agree to be the
gang member’s girlfriend.
Because there is no evidence in the record of the child abuser’s motives, the
lack-of-nexus determination as to that harm was appropriate, but substantial
evidence does not support the lack-of-nexus determination with respect to the gang
member’s harm. The record compels the conclusion that Flores Rodriguez’s
identity as a Salvadoran woman was at least a reason for the gang member’s
abuse.1
1 Flores Rodriguez identified her proposed PSG as “Salvadoran women” but
used that term seemingly synonymously with “women in El Salvador.” Consistent
with this, the IJ recognized that Flores Rodriguez was really making a primarily
gender-based argument and that “Salvadoran women” was being used essentially

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as a synonym for “women in El Salvador.” The IJ then rejected her asylum and
withholding claims because the IJ concluded that the group lacked particularity and
because Flores Rodriguez did not demonstrate that the gang member “wanted to
persecute females.”
The dissent parses the PSG definition into two separate grounds that it
argues independently require a nexus to the gang member’s abuse. It quotes a
sentence fragment from Flores Rodriguez’s brief to support its interpretation of her
PSG. The quoted comment was made in response to the IJ’s misunderstanding that
her proposed PSG could encompass all women throughout the world. Flores
Rodriguez’s full sentence read: “Also, the IJ’s contention that the PSG would
constitute half of the world’s population ignores the fact that the PSG is defined
not by the physical presence of a women in El Salvador, but rather her identity as a
woman and her nationality, Salvadoran.” In this statement, Flores Rodriguez was
clarifying that her proposed PSG was not boundless; she was referring to the
specific set of women who live in El Salvador (i.e., Salvadoran women)—not
suggesting that “any female who happens to be visiting or vacationing in El
Salvador” would be included, as the IJ had apparently interpreted it. This
clarification did not change the proposed PSG; the proper nexus analysis is
whether Flores Rodriguez faces persecution “on account of” her membership in
this PSG, as a “Salvadoran woman” or “woman in El Salvador.” 8 U.S.C.
§ 1101(a)(42)(A).
To the extent that the IJ also parsed the definition into two elements (gender
and nationality) and required an independent showing of animus for each, this was
erroneous. By the IJ’s admission and other record evidence, it is clear that Flores
Rodriguez’s “nationality” is offered as one of the elements defining the immutable
characteristic of the PSG, not as a separate protected ground. At the nexus stage,
the IJ was not being asked to conduct two independent inquiries as to whether the
harm occurred because Flores Rodriguez “was from El Salvador” and also because
she was a woman. Rather, the inquiry required by the statute is whether she faced
persecution because “she was a Salvadoran woman,” as a member of the proposed
PSG. See id. Accordingly, it is fashioning two separate grounds of “Salvadorans”
and “women,” even though the PSG has been specifically argued by Flores
Rodriguez as “Salvadoran women” that would, in the dissent’s words, “wrongly
reframe[]” the definition. Instead, the two elements should be treated as the two
sides of a coin creating a single definition of the PSG. Given this interpretation,
the record compels the conclusion that the persecution was motivated at least in
part by Flores Rodriguez’s membership in this group of “Salvadoran women,” as
explained herein.

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The agency erred in failing to consider the country conditions evidence
submitted by Flores Rodriguez, which depicts a high prevalence of sexual violence
against and mistreatment of women attributable to women’s subordination in
Salvadoran society. See Hernandez-Montiel v. INS, 225 F.3d 1084, 1096-97 (9th
Cir. 2000), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th
Cir. 2005) (en banc) (indicating that evidence of cultural norms and widespread
harm against a particular group in the country can help establish a persecutor’s
motives). Flores Rodriguez submitted expert testimony explaining that men in El
Salvador—and gang members, in particular—view women as property, and that
sexual violence is used as a mechanism to subjugate and punish women for
disobedience. These behaviors are reinforced by legal and social impunity for
violence against women.
The behavior of the gang member who abused Flores Rodriguez reflects a
In any event, because the BIA did not explicitly address the definition of the
proposed PSG, nor the question whether such a group is a cognizable protected
ground, we need not review this issue. See Garcia v. Wilkinson, 988 F.3d 1136,
1143 (9th Cir. 2021) (reviewing nexus as the “only . . . grounds relied upon by
th[e] agency” when BIA determines that petitioner failed to establish nexus,
without explicitly deciding whether proposed particular group is cognizable). The
BIA decided only the nexus issue, and as explained herein, repeated the IJ’s error
in concluding that being a Salvadoran woman was not even “a” reason for the
attempted rape and other sexual harassment Flores Rodriguez faced. See Barajas-
Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017). Moreover, we have held that
“women in a particular country . . . could form a particular social group.” See
Perdomo v. Holder, 611 F.3d 662, 667 (9th Cir. 2010).

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motivation consistent with this country conditions evidence. The gang member’s
threats that he would “make [her] his in a bad way” and that she would “pay the
consequences if [she] was not his,” coupled with his persistent stalking and attempt
to physically assault her, indicate an intent to punish her for being a Salvadoran
woman who defied the cultural perception of his dominance. See Garcia v.
Wilkinson, 988 F.3d 1136, 1143-45 (9th Cir. 2021) (holding that statements by the
persecutor can serve as circumstantial evidence of a persecutor’s motives). The
agency’s conclusion that he wanted to sexually assault her because “he liked her,
and she was not willing to agree to be his girlfriend” and not because of her status
as a woman in Salvadoran society makes no sense. It not only ignores the clear,
insidious implications of the gang member’s comments but also misunderstands
the nature of sexual violence. He abused her at least in part because she was a
Salvadoran woman over whom he wanted to—and considered himself entitled to—
exert control. Cf. Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1076 (9th Cir.
2004) (recognizing that sexual violence is not driven by poor self-control or sexual
attraction but rather motivated by a desire for domination and rejecting the
argument that attraction to a woman can defeat a nexus to a protected ground in a
case where the persecution is rape). We therefore remand Flores Rodriguez’s
withholding of removal claim for further consideration. See Barajas-Romero v.
Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (holding that an applicant need only

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demonstrate that a protected ground was “a reason”—at least one among many
reasons—for the persecution for a withholding of removal claim).
We do not remand Flores Rodriguez’s asylum claim, however, because her
identity as a Salvadoran woman may have been one of several reasons for her
abuser’s behavior, and the record does not compel the conclusion that it was
“central” to his motivation. See Garcia, 988 F.3d at 1143.
PETITION GRANTED IN PART, DENIED IN PART, AND
REMANDED.

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1
Flores Rodriguez v. Garland, No. 22-170
R. NELSON, Circuit Judge, dissenting:
I respectfully dissent from the majority’s decision to grant the petition in part.
The majority properly denies all relief based on Nora Flores Rodriguez’s childhood
abuse and asylum relief based on a gang member’s harassment later in her life. But
the majority errs in relying on that same evidence of gang member harassment to
remand as to her withholding-of-removal claim. I would deny the petition.
Flores Rodriguez has consistently defined the proposed particular social group
as “Salvadoran women”—a group Flores Rodriguez noted was expressly defined by
both gender and nationality. Flores Rodriguez’s briefing emphasizes this point
repeatedly, making clear that her proposed group “is defined not by the physical
presence of a wom[a]n in El Salvador, but rather her identity as a wom[a]n and her
nationality, Salvadoran.”1 So based on Flores Rodriguez’s own framing, the inquiry
should be whether the harassment was motivated in part by her gender and her
nationality. INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (“[T]he statute makes
motive critical.”).
1 These are not simply semantics; the narrowing was purposeful because Flores
Rodriguez must also show that her proposed social group is “particular.” See Reyes
v. Lynch, 842 F.3d 1125, 1135 (9th Cir. 2016) (explaining that the “particularity”
requirement “distinguish[es] between social groups that are discrete and those that
are amorphous”).
FILED
MAR 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Given Flores Rodriguez’s express framing of the issue, the IJ and the BIA
properly conducted a nexus analysis based on both gender and nationality. The
incidents occurred “without any mention” of nationality, and “the record reveals no
causal connection between this characteristic” and the gang member’s harassment.
See Parussimova v. Mukasey, 555 F.3d 734, 742 (9th Cir. 2009). Rather, as the IJ
noted, Flores Rodriguez has not even “attempted to connect or show that [her harms]
would have only arisen because she was from El Salvador as opposed to having her
be a female from a different place or different country.” Neither the IJ nor the BIA
can be be found to err in properly rejecting the very arguments raised by Flores
Rodriguez below.
The majority reframes Flores Rodriguez’s particular social group as focusing
on culture, rather than nationality. And then it concludes that remand is proper
because the gang member’s harassment was “consistent with” El Salvador’s
apparent culture of violence against and mistreatment of women. Yet even assuming
culture is a useful proxy for nationality, Flores Rodriguez’s harms flowed from the
gang member’s culture, not her culture as the victim. Cf. Elias-Zacarias, 502 U.S.
at 482 (explaining that there is only protection for “persecution on account of the
victim’s political opinion, not the persecutor’s”). Though the incidents of
harassment were extremely unfortunate, there is no evidence that they were
motivated by Flores Rodriguez’s own nationality, citizenship, or cultural heritage.

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3
Moreover, the majority’s conclusions are far from “compelled” by the record
as the substantial evidence standard requires. Singh v. Garland, 57 F.4th 643, 651
(9th Cir. 2022). Flores Rodriguez did not testify, so the only case-specific evidence
of nexus comes from four paragraphs in an affidavit describing a handful of incidents
in 2015. There, Flores Rodriguez recounts briefly how the gang member harassed,
threatened, and grabbed her. But unlike other cases in which we have granted
petitions for review, the limited record lacks any overt statements of motivation or
bias showing a nexus to a protected ground—and especially not a protected ground
advanced by Flores Rodriguez. Cf. Bringas-Rodriguez v. Sessions, 850 F.3d 1051,
1073 (9th Cir. 2017) (en banc). The affidavit says only that the gang member
expressed that he “liked” her and thought she “was pretty.”
The majority instead relies heavily on themes from country reports to
conclude that the gang member possessed “an intent to punish her for being a
Salvadoran woman who defied the cultural perception of his dominance.” That the
gang member was attempting to enforce unique Salvadoran cultural norms is one
possible reading of the record. But it is not the only reasonable reading; one can
easily imagine the same unfortunate incidents taking place in a country lacking the
Salvadoran machismo culture. Indeed, the agency found that the incidents occurred
for personal, not cultural, reasons: the gang member “liked her” and harassed her
when “she was not willing to agree to be his girlfriend.” The record seems at least

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4
equally amenable to such a reading, and so we are required to defer to it. See Singh
v. Barr, 935 F.3d 822, 826–27 (9th Cir. 2019) (per curiam) (deferring to agency
determination where evidence “could perhaps suggest” political animus but “could
just as easily indicate” another motivation).
In sum, the majority compounds several errors. It overturns the proper
analysis of the IJ and BIA below in rejecting the particular social group advanced
by Flores Rodriguez. It wrongly reframes the particular social group and then errs
in its nexus analysis even under this newly reframed particular social group. Finally,
it errs in applying our substantial evidence standard. I would deny the petition and
therefore respectfully dissent.

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