Quituizaca v. Garland

19-3470-ag
Quituizaca v. Garland
In the
United States Court of Appeals
For the Second Circuit
________
A UGUST TERM 2021
ARGUED: JANUARY 18, 2022
DECIDED: NOVEMBER 1, 2022
No. 19-3470-ag
X AVIER PUCHA Q UITUIZACA ,
AKA MANUEL S ANCHEZ RODRIGUEZ ,
Petitioner,
v.
MERRICK B. G ARLAND,
U NITED S TATES A TTORNEY G ENERAL ,
Respondent.
________
On Petition for Review of a Final Decision
of the Board of Immigration Appeals.
________
Before: KEARSE, WALKER , and SULLIVAN, Circuit Judges.
________
Xavier Pucha Quituizaca petitions for review of a Board of
Immigration Appeals (BIA) decision affirming an Immigration
Judge’s denial of his application for asylum and withholding of

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2 No. 19-3470
removal under the Immigration and Nationality Act and protection
under the Convention Against Torture (CAT). Quituizaca argues that
the agency erred in denying his withholding of removal claim when
it required that he demonstrate that his ethnicity was “at least one
central reason” motivating his claimed persecution. He also
challenges the BIA’s denial of his asylum claim and its finding that he
waived his CAT claim.
We hold that the withholding of removal statute is ambiguous
as to the showing required to establish that a protected ground, such
as ethnicity, motivated a persecutor. We also hold that the BIA’s
interpretation that the “one central reason” standard applies to
withholding of removal claims is reasonable and thus entitled to
deference. Because we find that the BIA’s denial of Quituizaca’s
asylum and withholding claims are supported by substantial
evidence and that Quituizaca waived his CAT claim, we DENY the
petition.
Judge Sullivan concurs in Parts II and III and in the judgment,
and files a separate concurring opinion as to Part I.
________
R EBECCA R UTH PRESS , UnLocal, Inc. Community
Immigration Legal Services, New York, NY
(Xavier Pucha Quituizaca, pro se, Batavia, NY, on
the briefs), for Petitioner.
MICHELE Y. F. S ARKO , Office of Immigration
Litigation (Timothy G. Hayes, Senior Litigation
Counsel, on the brief), for Jeffrey Bossert Clark,

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3 No. 19-3470
Acting Assistant Attorney General—Civil
Division, U.S. Department of Justice, Washington,
DC, for Respondent.
________
JOHN M. WALKER , JR ., Circuit Judge:
Xavier Pucha Quituizaca petitions for review of a Board of
Immigration Appeals (BIA) decision affirming an Immigration
Judge’s (IJ’s) denial of his application for asylum and withholding of
removal under the Immigration and Nationality Act (INA) and
protection under the Convention Against Torture (CAT). Quituizaca
argues that the agency erred in denying his withholding of removal
claim when it required that he demonstrate that his ethnicity was “at
least one central reason” motivating his claimed persecution. He also
challenges the BIA’s denial of his asylum claim and its finding that he
waived his CAT claim.
We hold that the withholding of removal statute is ambiguous
as to the showing required to establish that a protected ground, such
as ethnicity, motivated a persecutor. We also hold that the BIA’s
interpretation that the “one central reason” standard applies to
withholding of removal claims is reasonable and thus entitled to
deference. Because we find that the BIA’s denial of Quituizaca’s
asylum and withholding claims are supported by substantial
evidence and that Quituizaca waived his CAT claim, we DENY the
petition.
Judge Sullivan concurs in Parts II and III and in the judgment,
and files a separate concurring opinion as to Part I.

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BACKGROUND
Quituizaca, a native and citizen of Ecuador, entered the United
States in 2006 unlawfully without inspection. In 2018, the
government opened removal proceedings against him. Quituizaca
appeared before an IJ and conceded removability but applied for
asylum, withholding of removal, and protection under CAT, any of
which would have provided him with relief from the removal
proceedings.
The facts in this appeal are undisputed. Quituizaca’s requests
for relief arise out of allegations that he was twice attacked by the
“Morocha Kigwas,” a gang in Ecuador that he claims targeted him
because of his indigenous Quechua ethnicity. At the hearing before
the IJ, Quituizaca testified that in 2003, gang members boarded a bus
“full of indigenous people” who were mostly of high school age.1 The
gang removed Quituizaca—then 18 years old and returning from
work—from the bus, robbed him at knifepoint, and beat him when he
tried to run away. When asked why he thought he was “singled out,”
Quituizaca explained that the gang routinely patrolled the buses.2 He
did not report the robbery to the police because he claimed that they
did not “listen to indigenous people.”3
Two years later, the same gang again confronted Quituizaca.
This time, Quituizaca was with his brother and friends at a bus stop
around midnight. The gang demanded their money, jackets, and
shoes. Quituizaca complied, but one of his friends who resisted and
tried to fight back was fatally stabbed by the gang’s leader. The leader
1 Certified Administrative Record (“CAR”) 99–100.
2 CAR 99.
3 CAR 101.

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5 No. 19-3470
then hit Quituizaca and threatened that Quituizaca and his family
would meet the same fate as his friend if he reported anything to the
police.4 Quituizaca did not report these events. Although
Quituizaca’s asylum application and an affidavit from his brother
state that the gang called Quituizaca “Indian” and “indigenous,”5
Quituizaca did not testify that the gang used those words. He also
testified that he was robbed several more times after 2005. When
asked why he believed he had been targeted, he responded that it was
because he had witnessed his friend’s murder.
Following the hearing, the IJ denied all of Quituizaca’s requests
for relief. The IJ rejected the asylum and withholding of removal
claims because it found that Quituizaca’s proposed social group—
“individuals who refuse to pay gangs or [who are] subject to their
will”—was “too diffuse.”6 Quituizaca’s CAT claim was denied
because he failed to establish that he would likely be tortured by or
with the acquiescence of the Ecuadorian government.
Quituizaca appealed to the BIA on the grounds that the IJ
should have made an explicit credibility finding and addressed his
ethnicity-based claims. The BIA dismissed his appeal. It found that
the IJ failed to make an explicit credibility finding, but that the IJ
assumed that Quituizaca was credible. So, the BIA did not find that
remand on this issue was necessary. And although the BIA
acknowledged that the IJ did not “sufficiently consider” Quituizaca’s
4 The BIA incorrectly recounted that Quituizaca was not harmed
during the 2005 incident. He testified before the IJ that he was kicked and
struck in the head with a knife, and the BIA explicitly “assume[d]
[Quituizaca]’s credibility for purposes of [its] decision.” CAR 4–5.
5 CAR 247, 252, 344.
6 CAR 57.

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6 No. 19-3470
ethnicity-based claims, it did not remand on this basis either.7 The
BIA upheld the IJ’s dismissal because Quituizaca had not shown
sufficient proof that his ethnicity was “one central reason” for the
harm he suffered to support either his asylum or withholding claims.
While the BIA acknowledged Quituizaca’s belief that he was targeted
because of his ethnicity, it concluded that the evidence demonstrated
that the gang was motivated by a “criminal desire to obtain money
and goods.”8 Moreover, Quituizaca failed to show that his proposed
social groups—“Quechua being persecuted by gangs in Ecuador” or
“witness[es] to gang crime”—were “socially distinct and particular.”9
Finally, the BIA found that Quituizaca waived his CAT claim because
he did not challenge the IJ’s determination of that issue. Quituizaca
now petitions for review.
DISCUSSION
Quituizaca advances three arguments on appeal. He argues
that the BIA applied the wrong legal standard to his withholding of
removal claim. He contends the BIA overlooked credible testimony
in support of both his asylum and withholding claims. And he
disputes that he waived his CAT claim.
I. The Motive Standard for Withholding of Removal Claims
An alien who fears persecution in his native country may apply
for withholding of removal or asylum to avoid removal. If an
applicant satisfies the eligibility requirements for withholding of
removal, he is automatically entitled to that relief. Asylum, by
7 CAR 5.
8 CAR 6.
9 CAR 5.

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7 No. 19-3470
contrast, is granted at the Attorney General’s discretion, and involves
a lower burden of proof compared to withholding of removal.10 Both
forms of relief require the applicant to establish a nexus between a
statutorily protected ground in the INA—race, religion, nationality,
membership in a particular social group, or political opinion—and
the feared persecution.11 A persecutor may be motivated, however,
by both protected and unprotected grounds. Before 2005, the INA did
not supply a clear standard for analyzing these so-called “mixed
motive” asylum and withholding claims.12 Section 1158(b)(1)(B)(i) of
the REAL ID Act of 200513 has since codified that an asylum applicant
must show that the protected ground is “at least one central reason”
for the persecution.14
The REAL ID Act amendments do not expressly provide that
§ 1158(b)(1)(B)(i)’s “one central reason” motive language also applies
to withholding of removal claims. Section 1231(b)(3)(A), the general
withholding of removal provision, prohibits the Attorney General
from removing an alien “if the Attorney General decides that the
alien’s life or freedom would be threatened in that country because of
10 Among other things, a person seeking asylum need only
demonstrate “a well-founded fear of persecution,” 8 U.S.C.
§ 1101(a)(42)(A), while withholding of removal requires a more “stringent”
showing of a “clear probability” of persecution, INS v. Cardoza-Fonseca, 480
U.S. 421, 443–44 (1987); Y.C. v. Holder, 741 F.3d 324, 333 (2d Cir. 2013). For
this reason, if an asylum applicant fails to show a well-founded fear of
persecution, his application for withholding of removal will also
necessarily fail.
11 See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).
12 See In Re V-T-S-, 21 I. & N. Dec. 792, 796 (BIA 1997) (applying the
“on account of” language from 8 U.S.C. § 1101(a)(42)).
13 Pub. L. No. 109-13, 119 Stat. 302, 303.
14 8 U.S.C. § 1158(b)(1)(B)(i).

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8 No. 19-3470
the alien’s race, religion, nationality, membership in a particular
social group, or political opinion.”15 The REAL ID Act did not amend
this language.16 Instead, the Act amended the withholding statute to
add § 1231(b)(3)(C) as follows: “In determining whether an alien has
demonstrated that the alien’s life or freedom would be threatened for
a reason described in [§ 1231(b)(3)(A)], the trier of fact shall determine
whether the alien has sustained the alien’s burden of proof, and shall
make credibility determinations, in the manner described in clauses
(ii) and (iii) of section 1158(b)(1)(B) of this title.”17
The BIA dismissed Quituizaca’s asylum and withholding
claims because it found that he failed to meet his “burden of
establishing that his ethnicity was one central reason that gang
members robbed and attacked him.”18 So doing, the BIA applied the
asylum statute’s “one central reason” standard to Quituizaca’s
withholding of removal claim.19 Quituizaca argues that
§ 1231(b)(3)(C) requires only that he show that his ethnicity was “a
reason” for the persecution. He contends that because that provision
supplies a less onerous motive standard than the asylum statute, the
BIA erred when it did not apply the withholding statute’s plain text.
We are thus tasked with construing the withholding of removal
provision.20 “[B]ecause the administration of [the INA] is entrusted
15 8 U.S.C. § 1231(b)(3)(A) (emphasis added).
16 See, e.g., Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
17 8 U.S.C. § 1231(b)(3)(C).
18 CAR 6.
19 This has been the BIA’s practice at least since Matter of C-T-L-, 25 I.
& N. Dec. 341 (BIA 2010).
20 We have not yet addressed in a published opinion whether the
“one central reason” standard applies to withholding claims. In

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9 No. 19-3470
to the BIA, our review follows the two-step process outlined in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984).”21 If the statute is clear, we must carry out Congress’s
stated intent. But if provisions in the INA are ambiguous, the BIA’s
interpretations of those provisions, if reasonable, are entitled to
Chevron deference.22 We can conclude that the language is ambiguous
only after “exhaust[ing] all the ‘traditional tools’ of construction.”23
We divine Congress’s intent using the “ordinary tools of statutory
construction,”24 including the “statutory text, structure, and purpose
as reflected in [the statute’s] legislative history.”25 If we are left with
ambiguity after such examination, then we consider whether the
BIA’s interpretation is reasonable.
unpublished—and thus non-precedential summary orders, see 2d Cir. R.
32.1.1(a)—we have cited favorably to Matter of C-T-L-. Whether Matter of C-
T-L- was correctly decided was not at issue in those cases. Nor was it in
dispute when we cited to it in the background section of a recent published
decision. Singh v. Garland, 11 F.4th 106, 114 (2021).
Outside of our circuit, the Third Circuit has adopted Matter of C-T-
L’s reasoning, noting that the Real ID Act reflected “Congress’s intent to
eliminate the confusion and disparity inherent in the ‘mixed motive’
persecution tests in the context of both claims for asylum and claims for
withholding of removal.” Gonzalez-Posadas v. Attorney Gen. U.S., 781 F.3d
677, 685 n.6 (3d Cir. 2015) (quoting Matter of C-T-L, 25 I. & N. Dec. at 348).
A year before the BIA issued Matter of C-T-L-, the Fifth Circuit interpreted
the REAL ID Act to apply the “one central reason” standard to withholding
claims. Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009).
21 Matthews v. Barr, 927 F.3d 606, 612 (2d Cir. 2019) (citation omitted).
22 Negusie v. Holder, 555 U.S. 511, 516, 521 (2009).
23 Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (quoting Chevron, 467
U.S. at 843 n.9).
24 City of Arlington, Tex. v. FCC, 569 U.S. 290, 296 (2013).
25 Catskill Mountains Chapter of Trout Unltd., Inc. v. EPA, 846 F.3d 492,
512 (2d Cir. 2017).

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10 No. 19-3470
A. Chevron Step One
The text of the withholding of removal statute is somewhat
opaque as it pertains to motive. Section 1231(b)(3)(A) provides that
the Attorney General may not remove an alien to a country if “the
alien’s life or freedom would be threatened in that country because of
the alien’s race, religion, nationality, membership in a particular
social group, or political opinion.”26
We begin with the text’s plain meaning.27 When there is no
statutory definition of a term, “we consider the ordinary, common-
sense meaning of the words.”28 Webster’s Third New International
Dictionary defines “because of” to mean “by reason of” or “on
account of.”29 In its ordinary sense, then, “because of” requires some
causal connection between the feared persecution and the statutorily
protected grounds.
Plain meaning “does not turn solely on dictionary definitions”;
it incorporates “the specific context in which that language is used,
and the broader context of the statute as a whole.”30 For that reason,
although “because of” is sometimes synonymous with “but-for”
causation,31 we doubt that interpretation applies in the immigration
context. “But-for” causation would require that the withholding
applicant show that the protected ground was the determinative
26 8 U.S.C. § 1231(b)(3)(A) (emphasis added).
27 Centurion v. Sessions, 860 F.3d 69, 75 (2d Cir. 2017).
28 United States v. Rowland, 826 F.3d 100, 108 (2d Cir. 2016) (internal
citation omitted).
29 1 Webster’s Third New International Dictionary 194 (1966).
30 Jingrong v. Chinese Anti-Cult World All. Inc., 16 F.4th 47, 57 (2d Cir.
2021).
31 Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176-77 (2009).

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11 No. 19-3470
reason he was persecuted.32 It is more than just noteworthy that we
have held that the “plain meaning of the phrase ‘persecution on
account of [a protected ground]’”—synonymous with “because of”—
“does not mean persecution solely on account of [the protected
ground].”33 The INA has long accepted mixed-motive asylum and
withholding of removal claims, and there has never been any
indication from Congress that doing so violates the INA’s text.34 In
our view, the plain text does not clearly provide an answer to the
proper motive standard beyond the obvious proposition that there
must be some degree of causation.
Turning to the statutory context, we generally aim to interpret
a statute “as a symmetrical and coherent regulatory scheme.”35
Applying the same motive standard to asylum and withholding
claims promotes a harmonious reading of the INA. To establish
asylum eligibility, an applicant must be a “refugee,” defined as any
alien who has been persecuted or who has a well-founded fear of
persecution “on account of race, religion, nationality, membership in a
particular social group, or political opinion.”36 Section
1158(b)(1)(B)(i) clarifies that, for asylum claims, “on account of” a
32 See, e.g., id. (holding the Age Discrimination in Employment Act of
1967 does not authorize mixed-motive age discrimination claims and that
the plaintiff must prove that age was the “but-for” cause of the adverse
action).
33 Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir. 1994) (first emphasis
added).
34 Acharya v. Holder, 761 F.3d 289, 298 (2d Cir. 2014) (noting that
“mixed motives asylum claims continue to be viable, and the BIA has so
held”) (internal citation omitted); see also In Re S-P-, 21 I. & N. Dec. 486, 495
(BIA 1996).
35 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000).
36 8 U.S.C. § 1101(a)(42) (emphasis added).

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12 No. 19-3470
protected ground means that the protected ground must be “one
central reason” for the persecution. To qualify for withholding, an
applicant must show persecution “because of” any of the five
protected grounds. As noted above, “because of” and “on account
of” are synonyms, and courts use them interchangeably when
interpreting the INA.37 Applying the “one central reason” standard
to withholding claims would thus avoid an internal contradiction in
the Act.38
On the other hand, as Quituizaca points out, Congress did not
expressly incorporate the “one central reason” language into the
withholding statute as it did in the asylum provision. The REAL ID
Act also added language discussing the effect of corroborating
evidence on an asylum applicant’s burden of proof and the standard
by which to judge an asylum applicant’s credibility.39 Congress then
incorporated those two new provisions from the asylum statute—
§§ 1158(b)(1)(B)(ii) and (iii), respectively—into § 1231(b)(3)(C) of the
withholding statute. But Congress did not cross-reference
§ 1158(b)(1)(B)(i), which includes the “one central reason” standard,
in the withholding statute. When “Congress has simultaneously
chosen to amend one statute in one way and a second statute in
another way, we normally assume the differences in language imply
differences in meaning.”40 Because “[t]he absent provision cannot be
37 See, e.g., INS v. Elias-Zacarias, 502 U.S. 478, 481, 483 (1992).
38 Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 180 (2012) (“[T]here can be no justification for
needlessly rendering provisions in conflict if they can be interpreted
harmoniously.”).
39 8 U.S.C. §§ 1158(b)(1)(B)(ii), (iii).
40 Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009,
1018 (2020).

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13 No. 19-3470
supplied by the courts,”41 the omission suggests that Congress did not
intend for the “one central reason” standard to apply to withholding
claims.
We are not persuaded by the government’s proposed reason
for the omission. It suggests that § 1158(b)(1)(B)(i) was not cross-
referenced because that section requires an asylum applicant to
establish that he is a “refugee,” which is a term of art in the asylum
context, and not relevant for withholding claims. But, as at least one
other circuit has noted, reference to an applicant’s refugee status
elsewhere in the asylum statute did not stop Congress from
incorporating those provisions into the withholding statute.42 Taken
together, the foregoing suggests that the structure of the statute fails
to shed additional light on the appropriate motive standard.
Quituizaca disagrees. He argues that Congress unambiguously
made the burden lower for withholding applicants to establish
motive than for asylum applicants. He relies on the amendment to
the withholding statute in § 1231(b)(3)(C), which provides:
In determining whether an alien has demonstrated
that the alien’s life or freedom would be
threatened for a reason described in subparagraph
(A) [i.e., race, religion, nationality, membership in
a particular social group, or political opinion], the
trier of fact shall determine whether the alien has
sustained the alien’s burden of proof, and shall
make credibility determinations, in the manner
41 Scalia & Garner, Reading Law 94 (2012).
42 Guzman-Vazquez v. Barr, 959 F.3d 253, 273 (6th Cir. 2020) (noting
that 8 U.S.C. § 1158(b)(1)(B)(ii) also refers to an applicant’s burden to
“demonstrate that the applicant is a refugee”).

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14 No. 19-3470
described in clauses (ii) and (iii) of section
1158(b)(1)(B) of this title.43
Quituizaca maintains that he need only show that the protected
ground is “a reason” for the feared persecution. He is not alone in
this interpretation—two sister circuits have endorsed it as the
unambiguous standard.44 We do not think, however, that
§ 1231(b)(3)(C) settles the issue. To start, Quituizaca does not address
the phrase “because of” in § 1231(b)(3)(A) and his proposed standard
seemingly reads that language out of the withholding statute. We are
disinclined to find statutory meaning to be unambiguous if doing so
requires us to ignore other words in the text of the statute.45
Moreover, Quituizaca’s interpretation is not the most natural
reading of § 1231(b)(3)(C). Section 1231(b)(3)(C) articulates the
burden of proof for a withholding applicant and the method by which
a trier of fact assesses the applicant’s credibility. The phrase “a
reason” in § 1231(b)(3)(C) appears as part of the prepositional phrase,
“for a reason described in subparagraph (A).” The reasons in
subparagraph (A) are the statutorily protected grounds listed in
§ 1231(b)(3)(A). The context suggests that the phrase functions as a
placeholder to avoid having to repeat the list of the five protected
grounds. For example, we could alter the prepositional phrase to read
“as described in subparagraph (A)” without altering the subsection’s
meaning. At a minimum, we are not persuaded that Congress
unambiguously supplied a substantive motive standard in a
43 8 U.S.C. § 1231(b)(3)(C) (emphasis added).
44 Guzman-Vazquez, 959 F.3d at 272; Barajas-Romero v. Lynch, 846 F.3d
351, 358–59 (9th Cir. 2017).
45 State St. Bank & Tr. Co. v. Salovaara, 326 F.3d 130, 139 (2d Cir. 2003);
see also Scalia & Garner, Reading Law 174 (2012) (surplusage canon).

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15 No. 19-3470
dependent clause. Congress does not tend to “hide elephants in
mouseholes.”46
The plain text, structure, and context of the withholding statute
do not clearly point to a motive standard for withholding claims.
Having exhausted these avenues, we pause briefly to consider if
Congress’s intent is discernable from the legislative history.47 “We
are generally reluctant to employ legislative history at step one of
Chevron analysis . . . .”48 But “Congress’s interpretative cues” may
occasionally “speak directly or clearly to the point in dispute.”49 That
did not happen here.
At best, the House conference report explains that the proposed
revisions in the REAL ID Act would provide a “uniform standard for
assessing motivation” in “mixed motive” asylum cases “in keeping
with decisions of reviewing courts.”50 But the report is silent as to the
motive standard for withholding of removal claims, including
whether Congress intended to weigh motive in withholding and
asylum claims differently—the precise issue here.
We thus conclude that the INA does not unambiguously
provide the proper standard for assessing motive in withholding of
removal claims and therefore we cannot resolve this question at step
one of Chevron.
46 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).
47 Mizrahi v. Gonzales, 492 F.3d 156, 158 (2d Cir. 2007).
48 Catskill Mountains Chapter of Trout Unltd., Inc., 846 F.3d at 515
(internal citation omitted).
49 Mizrahi, 492 F.3d at 173 (citing Gen. Dynamic Land Sys., Inc. v. Cline,
540 U.S. 581, 586 (2004)).
50 H.R. Rep. No. 109-72, at 163 (2005) (Conf. Rep.).

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16 No. 19-3470
Before we proceed to step two, we pause to address the
concurrence’s view that the statute’s meaning is not only “plain” but
requires a showing of “but-for” causation.51 So doing, the
concurrence introduces a new test that was not presented to us on
appeal and that is more stringent than the “one central reason”
standard pressed by the government.
The concurrence’s approach would introduce further
ambiguity into the INA, rather than clarify the statute. The
concurrence offers no persuasive response to our point that plain
meaning is also determined by the “broader context of the statute as
a whole.”52 The phrases “on account of” and “because of” are used
interchangeably in the INA and its implementing regulations.53
Given that, we do not see how the concurrence sufficiently reconciles
the INA’s definition of the phrase “on account of” to mean “one
central reason” in the asylum context,” with an interpretation of its
equivalent “because of” to mean “but for” when used instead in the
withholding of removal statute.
51 Concurrence at 2-3.
52 Yates v. United States, 574 U.S. 528, 537 (2015) (plurality opinion)
(internal quotation marks omitted).
53 See INS v. Elias-Zacarias, 502 U.S. 478, 481, 483 (1992); 8 U.S.C. §
1231(b)(3)(A) (prohibiting the Attorney General from removing an alien if
“the alien’s life or freedom would be threatened in that country because of
the alien’s race, religion, nationality, membership in a particular social
group, or political opinion” (emphasis added); 8 C.F.R. § 1208.16(b)
(requiring the applicant for withholding of removal to establish 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” (emphasis added)).

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17 No. 19-3470
The concurrence relies on common interpretations of other
statutes that the phrase “because of” equates to “but-for” causation.
See Concurrence at 3. Claims of age discrimination , or that a credit
report violated the Fair Credit Reporting Act, both cited by the
concurrence as an example, require proof that age or the credit report,
respectively, be the but-for cause of the adverse action.54 The
implication is that the adverse action has already happened and
whatever evidence to establish but-for causation or refute it exists too.
But the language of the withholding statute under the INA differs
from those other provisions in a fundamental respect. A withholding
applicant from a particular country must establish a “clear
probability” that he will be persecuted if he returns there. An
applicant need not have already suffered past persecution to establish
eligibility for withholding. The applicant in effect is seeking to
prevent the prospect of an adverse action—namely, the risk of future
persecution. A but-for standard in this context would seemingly
require the applicant have insight into the motivations of the
hypothetical future persecutor that sufficiently removes any doubt
that the persecutor would be motivated by anything else. At a
minimum, the proof that can be marshalled to rectify past conduct
appears to us distinct from that which would be needed to establish a
persecutor’s potential future conduct.
The concurrence also explains that the “but-for” requirement is
consistent with the well-accepted proposition that a petitioner has a
higher burden to establish eligibility for withholding of removal than
for asylum. Nothing in our opinion calls into question the fact that
the asylum applicant need only show a “well-founded fear of
54 See, e.g., Babb v. Wilkie, 140 S. Ct. 1168, 1176 (2020) (citing Gross v.
FBL Fin. Srvs., Inc., 557 U.S. 167, 177 (2009)).

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18 No. 19-3470
persecution,” while an applicant seeking withholding of removal
must demonstrate the higher standard of a “clear probability of
persecution.”55 If a petitioner cannot establish a well-founded fear to
be eligible for asylum relief, he will necessarily be ineligible to obtain
withholding too, regardless of the applicable motive standard. See
Osorio, 18 F.3d at 1032. There is no reason for us to believe that
Congress would have wanted to heighten the burden in withholding
of removal claims even further by requiring “but-for” causation when
establishing the likelihood of an occurrence that has yet to take place,
which is what the withholding of removal provision necessitates.
While establishing eligibility for withholding remains a high bar,
neither the text of the INA, its implementing regulations, nor our case
law applying the same require that a withholding applicant have the
benefit of a crystal ball to divine the future persecutor’s motives with
such clarity as the “but-for” standard demands.
B. Chevron Step Two
Our task at step two is to determine “whether the agency’s
answer is based on a permissible construction of the statute.”56 We
defer to the agency’s interpretation as long as it is not “arbitrary or
capricious in substance, or manifestly contrary to the statute.”57 Here
the BIA interprets § 1231(b)(3), governing withholding of removal
claims, to include the “one central reason” standard.58 We find that,
in doing so, the BIA provides a reasonable explanation to resolve the
55 Compare 8 U.S.C. § 1101(a)(42)(A), with Gao v. Barr, 968 F.3d 137, 141
n.2 (2d Cir. 2020).
56 Chevron, 467 U.S. at 843.
57 Mayo Found. for Med. Educ. & Rsch. v. United States, 562 U.S. 44, 53
(2011).
58 Matter of C-T-L-, 25 I. & N. Dec. at 350.

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19 No. 19-3470
ambiguity, which relies on statutory interpretation principles and is
supported by practical considerations and the agency’s prior
decisions.
Prior to the REAL ID Act’s enactment, the BIA applied the same
motive standard to asylum and withholding claims.59 The BIA’s
current interpretation maintains this consistency absent clear
congressional intent to the contrary. In such a situation, it is
reasonable to “borrow[]” a motive standard that already appears in
the INA and with which litigants, the BIA, and courts are already
familiar.60 Applying the “one central reason” standard to both
asylum and withholding claims also reflects the textual similarities
between the two statutes, which require that an applicant face
persecution “on account of” or “because of” a protected trait,
respectively. Plus, a universal motive standard aligns with our prior
recognition that an applicant’s “failure to demonstrate eligibility for
asylum automatically leads to a denial of withholding of
deportation.”61 For these reasons, the BIA’s reasonable interpretation
is entitled to deference. Accordingly, the BIA did not apply the
incorrect legal standard when using the “one central reason”
standard in assessing Quituizaca’s application for withholding of
removal.
59 See, e.g., In Re V-T-S-, 21 I. & N. Dec. at 796.
60 Martel v. Clair, 565 U.S. 648, 660 (2012).
61 Carranza-Hernandez v. INS, 12 F.3d 4, 7 (2d Cir. 1993).

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20 No. 19-3470
II. Sufficient Evidence Supports the BIA’s Conclusion that
Quituizaca was Not Entitled to Asylum or Withholding of
Removal
We turn now to whether substantial evidence supports the
BIA’s conclusion that Quituizaca failed to show that his Quechua
ethnicity was one central reason for the harm he suffered.62
When, as here, the BIA issues its own opinion and does not
adopt or simply supplement the IJ’s analysis, we review the BIA’s
decision.63 We review factual findings under the substantial evidence
standard, treating them as “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”64
62 Although Quituizaca previously asserted membership in a
particular social group as an alternative basis for asylum, he abandoned this
claim in his petition. We thus consider it waived. Zhang v. Gonzales, 426
F.3d 540, 545 n.7 (2d Cir. 2005).
We briefly address whether the BIA acted ultra vires in reaching
Quituizaca’s ethnicity-based claims, which it acknowledges the IJ did not
“sufficiently consider.” CAR 5. The BIA is prohibited from “engag[ing] in
factfinding in the course of deciding cases.” 8 C.F.R. § 1003.1(d)(3)(iv);
Weinong Lin v. Holder, 763 F.3d 244, 247 (2d Cir. 2014) (noting that
impermissible fact-finding “constitutes reversible error”). But the BIA
relied on the IJ’s findings, including crediting Quituizaca’s testimony that
“he believed that he was targeted because he was indigenous,” to analyze
Quituizaca’s ethnicity-based claims. CAR 55. Moreover, we require
petitioners to raise issues in their briefs, lest they waive such challenges.
Quituizaca did not argue that the BIA engaged in its own factfinding; so, he
has waived that argument. To the extent Quituizaca’s counsel seemingly
raised the issue at oral argument, it is “well established that arguments
raised for the first time at oral argument are deemed ‘waived.’” Gao v. Barr,
968 F.3d 137, 141 n.1 (2020) (citation omitted).
63 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
64 8 U.S.C. § 1252(b)(4)(B).

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21 No. 19-3470
Questions of law and the BIA’s application of law to undisputed facts
are reviewed de novo.65 Because the BIA assumed that Quituizaca’s
testimony was credible, we make the same assumption.66
Substantial evidence supports the BIA’s determination that
Quituizaca did not carry his burden of proof as to his eligibility for
either asylum or withholding of removal and that his ethnicity was
not one central reason motivating the two robberies. A protected
ground cannot be “incidental” or “tangential” to another reason for
harm.67 The BIA emphasized the lack of testimony to establish that
Quituizaca was targeted because he is indigenous. When specifically
asked why he was “singled out” on the bus, Quituizaca responded
simply that the gangs were “always . . . on the buses.”68 Quituizaca’s
written statement reflects his understanding that the gang sought his
money and property: he describes defending himself from an
“attack[] by a robber who wanted to steal [his] jacket.”69
Contrary to Quituizaca’s view, we do not agree that the BIA
ignored evidence supporting his mixed-motive claim. We do not
demand that the BIA “expressly parse or refute on the record” each
individual argument or piece of evidence that a petitioner offers.70
Although Quituizaca’s asylum application noted that the gang
members in 2003 called him “Indian,” he did not mention this at all
in his testimony. Instead, when asked whether the gang said
65 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
66 Zelaya-Moreno v. Wilkinson, 989 F.3d 190, 196 (2d Cir. 2021).
67 In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007).
68 CAR 99.
69 CAR 249.
70 Xiao Ji Chen v. U.S. Dep’t of Just., 471 F.3d 315, 336 n.17 (2d Cir.
2006); see also Morales v. INS, 208 F.3d 323, 328 (1st Cir. 2000) (holding that
the BIA need not discuss each piece of evidence in a decision).

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22 No. 19-3470
anything, he responded only that they “told [him] to give them all the
money.”71 And while Quituizaca described the bus as being “full of
indigenous people,” he also testified that most of the people who
“normally” took the buses were students.72 Quituizaca was not a
student, and was instead returning from work. He did not state that
the gang targeted anyone else on the bus. The BIA concluded that the
evidence established the greater probability that the gang was
motivated to harm him based on “incentives presented to ordinary
criminals rather than . . . persecution.”73 “[T]o obtain judicial reversal
of the BIA’s determination,” Quituizaca needed to show “that the
evidence he presented was so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution.”74
Quituizaca has not done that.75
Substantial evidence also supports the BIA’s determination that
Quituizaca did not demonstrate a link between his ethnicity and
future persecution.76 Although Quituizaca’s brother, who is in the
United States, declared that the family “still received threatening
messages,”77 his mother, who continues to live in Ecuador, did not
corroborate this statement. She stated that her life would be at risk
not because of threats or harm from the gang, but because if
Quituizaca were to return, he would be unable to support her
71 CAR 98–99.
72 CAR 99–100.
73 Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (per curiam).
74 Elias-Zacarias, 502 U.S. at 483–84.
75 While the BIA arguably could have done more to explain why
Quituizaca’s evidence was insufficient, we affirm because the decision is
still supported by substantial evidence.
76 8 U.S.C. § 1231(b)(3).
77 CAR 252.

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23 No. 19-3470
financially as he does from the United States. Nor was there any
evidence of harm to other members of Quituizaca’s family, including
his daughter, in Ecuador. On this record, the BIA did not err in
concluding that Quituizaca did not meet his burden to show fear of
future harm based on his ethnicity.78
III. Petitioner Waived His Challenge to the Denial of His CAT
Claim
Finally, Quituizaca failed to administratively exhaust review of
his CAT claim.79 We require the “[p]etitioner to raise issues to the BIA
in order to preserve them for judicial review.”80 Quituizaca’s
counseled brief to the BIA contended only that “the immigration
judge erred in denying his applications for asylum and withholding
of removal.”81 Mentioning the CAT claim in a prayer for relief is
insufficient to “preserve a claim.”82 Similarly, the bare assertion that
“police [do] not provide any protection”83 did not suffice to challenge
the IJ’s denial of his CAT claim before the BIA. Thus, we will not
disturb the BIA’s dismissal based on its conclusion that Quituizaca
waived his claim for CAT relief.
78 8 U.S.C. § 1229a(c)(4)(B); Melgar de Torres v. Reno, 191 F.3d 307, 313
(2d Cir. 1999).
79 Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).
80 Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (per curiam).
81 CAR 31.
82 Foster, 376 F.3d at 78.
83 CAR 33.

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24 No. 19-3470
C ONCLUSION
For the foregoing reasons, we DENY the petition for review.84
84 Quituizaca previously filed a motion pro se to stay his removal
proceedings pending a decision in this appeal. We now DENY the motion
for a stay as moot.

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R ICHARD J. S ULLIVAN, Circuit Judge, concurring in part and concurring in the
judgment:
Like the Majority, I would deny Xavier Pucha Quituizaca’s petition for
review of the decision of the Board of Immigration Appeals (the “BIA”), but I
would take a different path to that conclusion as it pertains to Pucha Quituizaca’s
application for withholding of removal. Accordingly, while I concur in the
judgment of the Court and in the reasoning of Parts II and III of the Majority’s
Discussion section, I write separately as to Part I.
In the Agency proceedings under review, the BIA denied Pucha
Quituizaca’s claims for asylum and withholding of removal – both of which he
based on his allegation that gang members in his native country of Ecuador had
twice attacked him because of his indigenous Quechua ethnicity – finding that he
had failed to establish that his ethnicity was “one central reason” for the attacks.
Certified Admin. Record at 6. It is undisputed that, for purposes of his asylum
claim, Pucha Quituizaca needed to show that his ethnicity was “at least one central
reason” for his alleged persecution in Ecuador. 8 U.S.C. § 1158(b)(1)(B)(i). But the
parties dispute whether, under 8 U.S.C. § 1231(b)(3), Pucha Quitizaca’s
withholding-of-removal claim is subject to a looser, more lenient standard for

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2
showing a causal nexus between his claimed protected ground (ethnicity) and his
claimed persecution (the gang attacks). The government maintains that the “at
least one central reason” standard specified in the asylum statute also applies to
withholding-of-removal claims. Government Br. at 19. For his part, Pucha
Quituizaca contends that the withholding-of-removal statute requires him merely
to show that his ethnicity was “a reason” for the attacks. Pucha Quituizaca Br. at
10 (emphasis added). The Majority finds ambiguity as to whether the
withholding-of-removal statute supports the government’s or Pucha Quituizaca’s
proposed reading, but defers under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), to the Agency’s “reasonable”
interpretation as set forth in Matter of C-T-L-, 25 I. & N. Dec. 341 (BIA 2010).
I see no such ambiguity. Rather, I find it plain that the withholding-of-
removal statute – which provides that “the Attorney General may not remove an
alien to a country if . . . the alien’s life or freedom would be threatened in that
country because of the alien’s race [or other protected ground],” 8 U.S.C.
§ 1231(b)(3)(A) (emphasis added) – calls for a motive standard at least as strict as
the asylum statute’s “one central reason” standard, id. § 1158(b)(1)(B)(i).

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3
As the Majority observes, “‘because of’ is sometimes synonymous with ‘but-
for’ causation.” Maj. Op. at 11 (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176
(2009)). That strikes me as an understatement. In the very case cited by the
Majority, the Supreme Court unequivocally stated that “the ordinary meaning of
[a statute’s] requirement that an [actor] took adverse action ‘because of’ [a
specified factor] is that [the specified factor] was the ‘reason’ that the [actor] decided
to act.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (emphasis added).
Therefore, the Court held that to prevail “under the plain language of” such a
statute, a litigant “must prove that [the specified factor] was the ‘but-for’ cause of
the [relevant action]” – i.e., that the relevant action “would not have occurred
without” the specified factor. Id. at 176–77 (emphasis added). Nothing in Gross
suggests that the Supreme Court’s reasoning was limited to the specific context of
the age-based employment discrimination claims at issue there. On the contrary,
the Court relied on common dictionaries, a well-known treatise on tort law, and
the reasoning of cases interpreting similar language in the Racketeer Influenced
and Corrupt Organizations Act and Fair Credit Reporting Act. See id. at 176–77.
And in the years since Gross, the Supreme Court has only doubled down on its

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4
“insistence on but-for causality” as the proper construction of “statutes using the
term ‘because of.’” Burrage v. United States, 571 U.S. 204, 213 (2014).
Although the Majority is quick to discount the ordinary meaning of the
phrase, “because of,” see Maj. Op. at 11, I do not think we are free to do so. See,
e.g., Spadaro v. United States Customs & Border Prot., 978 F.3d 34, 46 (2d Cir. 2020)
(“[W]hen the language of a statute is unambiguous, judicial inquiry is complete.”);
United States v. Balde, 943 F.3d 73, 81 (2d Cir. 2019) (“Statutory analysis necessarily
begins with the plain meaning of a law’s text and, absent ambiguity, will generally
end there.” (citation omitted)). Indeed, the Supreme Court has repeatedly taken
pains to caution – “[w]ith regard to this very statutory scheme” – that the
“ordinary and obvious meaning of the [text] is not to be lightly discounted,” and
to instruct that we must “consider[] ourselves bound to assume that the legislative
purpose is expressed by the ordinary meaning of the words used.” INS v. Cardoza-
Fonseca, 480 U.S. 421, 431 (1987).
And even if we were free to do so, I would see no good reason to doubt that
the phrase “because of,” as used in the withholding-of-removal statute, requires
the same but-for causation that it refers to in other federal statutes and at common
law. The Majority expresses “doubt” that that meaning would “appl[y] in the

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5
immigration context,” since “‘[b]ut-for’ causation would require that the
withholding applicant show that the protected ground was the reason he was
persecuted.” Maj. Op. at 11 (emphasis in original). Any suggestion of such a
requirement, the Majority reasons, is foreclosed by our holding that
“mixed[-]motives asylum claims continue to be viable” even in the wake of the
REAL ID Act’s 2005 amendments to the asylum provision in the Immigration and
Nationality Act (the “INA”). Acharya v. Holder, 761 F.3d 289, 298 (2d Cir. 2014)
(emphasis added; citation omitted).
But it does not follow, from the proposition that mixed-motives asylum
claims are viable, that mixed-motives withholding claims must also be viable. We
have long recognized that “the burden of proof necessary to establish a successful
request for withholding of [removal] is higher than that necessary to establish a
successful request for asylum,” such that “an applicant who is not eligible for
asylum is a fortiori ineligible for withholding of [removal].”1 Osorio v. INS, 18 F.3d
1 While the Majority acknowledges that the withholding statute’s “clear probability of
persecution” standard is stricter than the asylum statute’s “well-founded fear of persecution”
standard, they argue that they see “no reason . . . to believe that Congress would have wanted to
heighten the burden in withholding of removal claims even further by requiring ‘but-for’
causation.” Maj. Op. at 18. Yet as the Supreme Court explained in Cardoza-Fonseca, that argument
“sorely fails because it does not take into account the fact that an alien who satisfies the applicable
standard under [the asylum statute] does not have a right to remain in the United States; he or
she is simply eligible for asylum, if the Attorney General, in his discretion, chooses to grant it. An
alien satisfying [the withholding-of-removal statute]’s stricter standard, in contrast, is

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6
1017, 1032 (2d Cir. 1994) (citing Cardoza-Fonseca, 480 U.S. at 446). Indeed, even the
Ninth Circuit – whose precedents the Majority otherwise affords significant
weight in finding the withholding-of-removal statute ambiguous, see Maj. Op. at
14 (citing Barajas-Romero v. Lynch, 846 F.3d 351, 358–59 (9th Cir. 2017)) – has
repeatedly acknowledged as much, see, e.g., Zehatye v. Gonzales, 453 F.3d 1182, 1190
(9th Cir. 2006) (holding that since the “standard for withholding of removal is
more stringent than the . . . standard governing asylum,” it necessarily follows that
when an alien “could not establish her eligibility for asylum, . . . she [is also] not
eligible for withholding of removal”); Villegas Sanchez v. Garland, 990 F.3d 1173,
1183 (9th Cir. 2021) (holding same).
For all these reasons, I would hold that “the withholding-of-removal
statute’s use of ‘because of’ unambiguously requires a statutorily covered motive
to be a but-for motive.”2 Guzman-Vazquez v. Barr, 959 F.3d 253, 288 (6th Cir. 2020)
automatically entitled to withholding of deportation.” 480 U.S. at 443 (first and second emphases
in original; third emphasis added).
2 The Majority faults this Concurrence for “introduc[ing] a new test that was not presented to us
on appeal and that is more stringent than the ‘one central reason’ standard pressed by the
government.” Maj. Op. at 16. But while I am mindful of the principle of party presentation, see
generally United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579–81 (2020), so too am I mindful of the
even more fundamental principle that “[i]t is emphatically the province and duty of the judicial
department to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)
(emphasis added). As the Supreme Court has repeatedly instructed, Marbury’s axiomatic
principle does not apply with any less force in cases where – as here – both parties happen to be
wrong on the meaning of the law. Since “our judgments are precedents, . . . the proper

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7
(Murphy, J., dissenting); see generally id. at 286–90 (Murphy, J., dissenting) (laying
out fuller analysis for this point, with which I agree entirely). Consequently, I
cannot agree with the Majority’s “view” that “the plain text does not clearly
provide an answer to the proper motive standard beyond the obvious proposition
that there must be some degree of causation.” Maj. Op. at 12.
But even if I did share the view that section 1231(b)(3)(A)’s plain text was
effectively silent on the applicable motive or causation standard for withholding
claims, I would find that the statutory structure and context eliminated any
ambiguity about whether the text could bear the reading that Pucha Quituizaca
suggests. Indeed, I would so conclude for the reasons that are stated – and stated
well – in the Majority’s own opinion. For starters, I agree with the Majority that
we should interpret the INA “as a symmetrical and coherent regulatory scheme.”
Id. at 12 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000)). And while I would maintain that the most “harmonious reading of the
administration of [public] law cannot be left merely to the stipulation of parties.” Young v. United
States, 315 U.S. 257, 259 (1942); see also Utah Pub. Serv. Comm'n v. El Paso Nat. Gas Co., 395 U.S. 464,
467 (1969) (“The Department of Justice, . . . by stipulation or otherwise[,] has no authority to
circumscribe the power of the courts . . . .”); Teva Pharms. USA, Inc. v. Sandoz, Inc., 574 U.S. 318,
343 (2015) (Thomas, J., dissenting) (“[B]ecause . . . the ultimate meaning of a statute[] binds the
public at large, it should not depend on the specific [position] presented [by a party] in a
particular . . . case.”).

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8
INA,” id., would – in line with the INA’s general scheme of imposing higher
burdens on withholding applicants than on asylum applicants, see Cardoza-Fonseca,
480 U.S. at 446; Osorio, 18 F.3d at 1032 – apply a “more stringent” motive standard
to withholding claims than to asylum claims, Zehatye, 453 F.3d at 1190 (emphasis
added), the Majority makes clear that applying a less stringent motive standard to
withholding claims than to asylum claims would be in active disharmony with the
INA’s statutory scheme. Likewise, I agree entirely with the Majority’s rejection
of – and its persuasive rationale for rejecting – Pucha Quituizaca’s attempt to read
significance into the appearance of the phrase “a reason” in section 1231(b)(3)(C).
See Maj. Op. at 14–15.
What, then, is left to point in the other direction? First, apparently, is the
bare fact that the Sixth and Ninth Circuits have “endorsed” Pucha Quituizaca’s
proposed reading. Id. at 14 & n.43 (citing Guzman-Vazquez v. Barr, 959 F.3d 253,
273 (6th Cir. 2020); Barajas-Romero, 846 F.3d at 358–59). But “our [C]ourt is not
bound by the holdings of other federal courts of appeal.” Rates Tech. Inc. v.
Speakeasy, Inc., 685 F.3d 163, 173–74 (2d Cir. 2012). Rather, our sister circuits’
decisions are merely “persuasive” authority. Charles W. v. Maul, 214 F.3d 350, 357
(2d Cir. 2000). In other contexts, we have characterized persuasive authorities as

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9
being “‘entitled to respect’ to the extent they have the ‘power to persuade.’” Faber
v. Metro. Life Ins. Co., 648 F.3d 98, 105–06 (2d Cir. 2011) (quoting Skidmore v. Swift
& Co., 323 U.S. 134, 140 (1944) (other citation omitted)); see also Thomas W.
Merrill, Judicial Deference to Executive Precedent, 101 Yale L.J. 969, 1007–08 (1992)
(likening the deference we afford to decisions of our sister circuits to the “power
to persuade” standard under the Skidmore deference regime). In other words, the
“[d]ecisions of . . . other courts of appeals” are “looked to only for their persuasive
effect,” but “[i]f they fail to persuade by the use of sound and logical reasoning,
they will not be followed.” City Stores Co. v. Lerner Shops of D.C., Inc., 410 F.2d
1010, 1014 (D.C. Cir. 1969). And here, the Majority offers no explanation as to why
the logic of Guzman-Vazquez or Barajas-Romero should persuade us to find
ambiguity in an otherwise-unambiguous statute.
The only remaining reason why the withholding-of-removal statute might
be susceptible to ambiguity, on the Majority’s read, is that the government lacks a
persuasive explanation for the omission of the phrase “one central reason” in
section 1231(b)(3)(A). See Maj. Op. at 13–14. True, that might be good evidence
that the withholding-of-removal statute embraces a motive standard other than the
“one central reason” standard specified in the REAL ID Act’s amendments to the

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10
INA’s corresponding asylum provision. 8 U.S.C. § 1158(b)(1)(B)(i). But “[w]here
does that leave us?” Guzman-Vazquez, 959 F.3d at 289 (Murphy, J., dissenting). In
my view, it simply leads us back to the question of whether the applicable motive
standard for withholding claims requires a causal nexus that is tighter (i.e.,
“but-for”) or looser (i.e., “a reason”) than “one central reason.” Again, the
Majority has already explained persuasively why Pucha Quituizaca’s argument in
favor of the looser nexus is far from “the most natural reading of” the statute. Maj
Op. at 15. And so, we “are left only with the plain meaning of ‘because of,’ which
requires a [protected ground] to be a but-for reason for persecution,” and with the
inferences to be drawn from the INA’s “longstanding” statutory structure under
which “mandatory withholding-of-removal relief requires immigrants to meet a
standard higher than the standard for discretionary asylum relief.” Guzman-
Vazquez, 959 F.3d at 289 (Murphy, J., dissenting) (emphasis in original).
For the reasons stated above, I cannot join the Majority’s holding in Part I
that section 1231(b)(3)(A) is sufficiently ambiguous as to permit the reading
proposed by Pucha Quituizaca. See Maj. Op at 7–20. I would instead hold that,
under the plain text and structure of the INA as amended by the REAL ID Act, it
is unambiguous that an applicant for withholding of removal must show that his

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11
claimed protected ground was (or will be) the but-for cause of his claimed
persecution.3
Nevertheless, I agree with the starting point of the Majority’s analysis in
Part II: that to prevail on his underlying withholding claim, Pucha Quituizaca
needed to show at least that his ethnicity was “one central reason” for the alleged
gang attacks, and that to prevail on his petition for review, in turn, he would need
to establish that when the BIA found that he had failed to make such a showing,
its decision was unsupported by substantial evidence. I concur fully in the
3 The Majority argues that applying a but-for motive or causation standard to withholding-of-
removal claims would produce the absurd result of functionally “requir[ing] that a withholding
applicant have the benefit of a crystal ball to divine the future persecutor’s motives with such
clarity as the ‘but-for’ standard demands.” Maj. Op. at 19; see generally id. at 17–18. That argument
misses the mark, as a matter of both statutory interpretation and immigration law. For starters,
the canon against absurdity, “as is true of any guide to statutory construction, only serves as an
aid for resolving an ambiguity; it is not to be used” – as the Majority would use it here – “to beget
one.” Callanan v. United States, 364 U.S. 587, 596 (1961) (emphasis added). And in any event,
applying a but-for causation standard to the withholding statute’s “clear probability”
requirement would not, as the Majority speculates, “require the applicant have insight into the
motivations of the hypothetical future persecutor that sufficiently removes any doubt that the
persecutor would be motivated by anything else.” Maj. Op. at 18. That is because “[t]he
withholding standard . . . has no subjective component,” and instead “is concerned only with
objective evidence of future persecution” – such as the applicant’s “demonstrat[ing] that he suffered
past persecution based on one of the enumerated grounds,” or that other individuals in the
country of removal are currently suffering persecution “because of” their membership in the
same “race, religion, nationality, . . . particular social group, or political [group]” as the applicant.
Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020) (emphasis added; internal quotation marks
omitted). I see nothing unnatural, either linguistically or logically, about saying that “race,
religion, nationality, membership in a particular social group, or political opinion,” 8 U.S.C.
§ 1231(b)(3)(A), must be the but for-cause of the past or current persecution cited by the applicant
as “objective evidence” that he, too, would “more likely than not . . . suffer such future persecution
if returned to the country of removal,” Scarlett, 957 F.3d at 327–28 (citations omitted).

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12
Majority’s reasoning from that point forward, to the effect that the BIA’s decision
was supported by substantial evidence. See id. at 20–23. And because I also concur
fully in the majority’s holding in Part III, that Pucha Quituizaca waived his
challenge to the Immigration Judge’s denial of his claim for relief under the
Convention Against Torture, see id. at 24, I ultimately concur in the Court’s
judgment denying his petition for review, see id.

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