Gloris Sarai Vasquez-Rivera v. MERRICK B. GARLAND, Attorney General

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0055p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GLORIS SARAI VASQUEZ-RIVERA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
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No. 21-3344
On Petition for Review from the Board of Immigration Appeals;
No. A 206 806 492.
Decided and Filed: March 15, 2024
Before: GRIFFIN, BUSH, and READLER, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Paul Grotas, THE GROTAS FIRM, P.C., New York, New York, for Petitioner.
Victor M. Lawrence, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. The Board of Immigration Appeals dismissed
Gloris Sarai Vasquez-Rivera’s appeal from the denial of her application for asylum, withholding
of removal, and protection under the Convention Against Torture. She now seeks review of that
order, alleging that she faces a threat of violence and persecution if she returns to El Salvador.
We grant in part and deny in part the petition for review.
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I.
Vasquez-Rivera, a native and citizen of El Salvador, entered the United States in June
2014, when she was nine years old. Her entry was not authorized by the United States. So the
Department of Homeland Security served Vasquez-Rivera with a notice to appear in removal
proceedings and charged her as a noncitizen present in the United States without being admitted
or paroled after inspection by an immigration officer. See 8 U.S.C. § 1182(a)(6)(A)(i). She was
released to her parents, who had been living in Ohio.
Vasquez-Rivera appeared before an immigration judge (IJ). Through counsel, she
admitted the allegations set forth in the notice to appear and conceded removability as charged.
Vasquez-Rivera applied for asylum and withholding of removal as well as for Convention
Against Torture protection.
A hearing was held to consider her application. Both Vasquez-Rivera, then 13 years old,
and her mother, Rosa Rivera-Menjivar, appeared as witnesses. According to their testimony,
Vasquez-Rivera came to the United States because of her fear of gang violence in El Salvador.
Vasquez-Rivera had been living in El Salvador with her maternal aunt, Raquel, Raquel’s
husband, Roberto, and Vasquez-Rivera’s maternal uncle, Cristian. The bus service to Vasquez-
Rivera and Cristian’s school was suspended when gang members threatened the bus driver and
demanded money from him. And when Vasquez-Rivera and Cristian instead walked to school,
gang members harassed Cristian and threatened to harm his family if he did not join the gang.
Raquel and Roberto became afraid that something would happen to Vasquez-Rivera and
Cristian, fearing that gang members would rape Vasquez-Rivera. These fears were not
unfounded—Vasquez-Rivera and Rivera-Menjivar also testified about other gang-related
incidents involving their extended family: gang members shot and killed Rivera-Menjivar’s
uncle in 2006, demanded money from Rivera-Menjivar’s aunt and fired shots at her house in
2006, demanded money from Rivera-Menjivar’s mother in 2007, and raped Rivera-Menjivar’s
aunt and cousin in 2008. Ultimately, Vasquez-Rivera and Cristian stopped attending school and
left El Salvador for the United States.

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After the hearing, the IJ denied Vasquez-Rivera’s application and ordered her removal to
El Salvador. Starting with Vasquez-Rivera’s request for asylum, the IJ described Vasquez-
Rivera’s proposed social groups as: (1) Salvadoran women and girls whose parents live outside
the country; (2) her family; (3) family members of persons targeted for gang recruitment whose
family is threatened when they refuse to join the gangs; and (4) young Salvadoran women
considered to be property of the gangs. The IJ found that Vasquez-Rivera and her mother were
credible witnesses and that Vasquez-Rivera had provided corroboration in support of her claims.
But none of Vasquez-Rivera’s particular social groups, the IJ found, were cognizable for
purposes of federal immigration law.
That left her request for withholding of removal and for protection under the Convention
Against Torture (CAT). Because Vasquez-Rivera had failed to establish eligibility for asylum,
the IJ held that she also failed to satisfy the burden for withholding of removal. As for Vasquez-
Rivera’s request for CAT protection, the IJ determined that she had failed to show that she would
more likely than not face harm rising to the level of torture in El Salvador or that the Salvadoran
government would be willfully blind to any problems that she might have.
Vasquez-Rivera appealed to the BIA. The BIA affirmed the IJ’s determination that
Vasquez-Rivera failed to establish that three of her four proposed particular social groups were
“distinct” in El Salvador, meaning her membership in those groups could not form the basis of
her claims for asylum and withholding of removal. As for the remaining particular social group,
Vasquez-Rivera’s family, the BIA affirmed on different grounds. Assuming that Vasquez-
Rivera’s family constituted a distinct social group, the BIA agreed with the IJ’s purported
“determination that [Vasquez-Rivera] did not establish a nexus between this group and the harm
she experienced and fears.” Finally, the BIA affirmed the IJ’s determination that Vasquez-
Rivera had failed to demonstrate eligibility for CAT protection. With that, the BIA dismissed
Vasquez-Rivera’s appeal. This timely petition for review followed.
II.
We review the BIA’s decision as the final agency determination. Khalili v. Holder, 557
F.3d 429, 435 (6th Cir. 2009). To the extent the Board adopted the IJ’s reasoning, we

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necessarily review the IJ’s decision as well. Sanchez-Robles v. Lynch, 808 F.3d 688, 692 (6th
Cir. 2015). We review legal conclusions de novo. See Zometa-Orellana v. Garland, 19 F.4th
970, 976 (6th Cir. 2021). And we review factual findings for substantial evidence, id., meaning
“the administrative findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B).
Asylum and Withholding of Removal. To be eligible for asylum, Vasquez-Rivera
must show that she meets the definition of a “refugee.” See 8 U.S.C. §§ 1101(a)(42),
1158(b)(1)(B)(i); Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010). That requires
her to prove that she is “unable or unwilling” to return to El Salvador because of past persecution
or “a well-founded fear of persecution on account of” a protected group, which includes
membership in a particular social group. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i); see
Zometa-Orellana, 19 F.4th at 976. To make that showing, Vasquez-Rivera must demonstrate
that: (1) her treatment in El Salvador constitutes past persecution or that she has a well-founded
fear of future persecution; (2) there was a connection between her persecution and her
membership in a particular social group (the “nexus” requirement); and (3) the persecution was
committed by the government, or by non-government actors whom the government was unable
or unwilling to control. Id.; see Gonzalez Ortiz v. Garland, 6 F.4th 685, 688 (6th Cir. 2021).
Removal has different elements. To qualify for withholding of removal, Vasquez-Rivera
must show that, if removed to El Salvador, her “life or freedom would be threatened [there]
because of” a protected ground. 8 U.S.C. § 1231(b)(3)(A); see Zaldana Menijar v. Lynch, 812
F.3d 491, 498 (6th Cir. 2015). The Supreme Court has long recognized that protection from
removal requires a more “stringent” showing of persecution than what is required for asylum.
See INS v. Cardoza-Fonseca, 480 U.S. 421, 443–44 (1987); 2 Litigation of International
Disputes in U.S. Courts § 10:24. Demonstrating eligibility for asylum requires the noncitizen to
show past persecution or a “well-founded fear of persecution.” 8 U.S.C. § 1101(a)(42). A “well-
founded fear” of persecution can exist even “when there is less than a 50% chance of the
occurrence taking place.” Cardoza-Fonseca, 480 U.S. at 431. For withholding of removal, by
contrast, the noncitizen must demonstrate an objective, “clear probability of persecution” in the
proposed country of removal. INS v. Stevic, 467 U.S. 407, 430 (1984). We have interpreted

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“clear probability” to mean that persecution is more likely than not. Sebastian-Sebastian v.
Garland, 87 F.4th 838, 851 (6th Cir. 2023). Withholding claims thus fail when applicants cannot
show a well-founded fear of persecution under the more forgiving asylum standard. See Andret
v. Garland, No. 23-3426, 2024 WL 167115, at *6 (6th Cir. Jan. 16, 2024) (citing Dieng v.
Holder, 698 F.3d 866, 871 (6th Cir. 2012)).
Vasquez-Rivera based her claims for asylum and withholding of removal on her
membership in four particular social groups. A cognizable social group has three elements:
(1) members must share an immutable characteristic; (2) the group must have discrete and
definable boundaries; and (3) society must actually perceive the purported group as a distinct
class of persons. Cruz-Guzman v. Barr, 920 F.3d 1033, 1036 (6th Cir. 2019). Whether a
proposed particular social group is cognizable is a legal determination, where “decisions as to the
underlying elements are factual determinations subject to the substantial evidence standard.”
Turcios-Flores v. Garland, 67 F.4th 347, 354 (6th Cir. 2023) (citation omitted).
We agree with both the BIA and the IJ’s conclusion that Vasquez-Rivera failed to
identify sufficient evidence in the record establishing that three of these groups (all proposed
groups except her family) are perceived as distinct social groups in El Salvador. A cognizable
social group “must share a narrowing characteristic other than their risk of being persecuted.”
Kante v. Holder, 634 F.3d 321, 327 (6th Cir. 2011). Yet each of Vasquez-Rivera’s proposed
groups is replete with generalities rather than specifics. Case in point, the record as to country
conditions shows merely that women and children in El Salvador generally suffer from
criminality and mistreatment, including rape and child exploitation, offenses the Salvadoran
government does not effectively prosecute. To the same end, the record does not establish that
Salvadoran society “actually perceives” Vasquez-Rivera’s proposed social groups “as a distinct
class of persons.” Cruz-Guzman, 920 F.3d at 1036. Groups like those proffered by Vasquez-
Rivera lack the specificity necessary to qualify as a particular social group. See, e.g., Perez v.
Garland, No. 20-4172, 2021 WL 4988351, at *3 (6th Cir. Oct. 27, 2021) (finding “young
Guatemalan men between the ages of 15 and 25 who have opposed gang activity and lack
protection” was a group “too vague and broad to meet the requirements of a particular social
group”).

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Vasquez-Rivera responds that the country-conditions evidence “establishes . . . the
existence of special laws set out to protect [a] vulnerable group,” mistreated women. But the
BIA found that the existence of laws to protect certain groups of people does not show that these
groups are “set apart, or distinct, from other persons within the society in some significant way.”
That those laws serve an important purpose, in other words, does not also demonstrate the
existence of particular social groups.
Vasquez-Rivera also faults the BIA’s social-distinction analysis as cursory. But the BIA
“need not write an exegesis on every contention.” Hernandez-Perez v. Whitaker, 911 F.3d 305,
319 (6th Cir. 2018) (quoting Trujillo Diaz v. Sessions, 880 F.3d 244, 255 (6th Cir. 2018)). What
it must do is “consider the issues raised, and announce its decision in terms sufficient to enable a
reviewing court to perceive that it has heard and thought and not merely reacted.” Scorteanu v.
INS, 339 F.3d 407, 412 (6th Cir. 2003) (citation omitted). Here, the BIA did so—it reviewed the
IJ’s analysis of three of Vasquez-Rivera’s proposed social groups, cited precedent on the social-
distinction issue, and held that Vasquez-Rivera failed to identify sufficient record evidence
establishing that those groups were perceived as socially distinct in El Salvador. So long as we
are satisfied that the BIA’s “grounds for decision are clear,” and we can engage in “meaningful
judicial review under our usual substantial-evidence test,” there is no basis to conclude that the
BIA committed a legal error. Palucho v. Garland, 49 F.4th 532, 539–40 (6th Cir. 2022).
That leaves Vasquez-Rivera’s final proposed social group: her family. Although the IJ
also deemed Vasquez-Rivera’s family non-cognizable as a distinct social group, the BIA charted
a different course. Operating under the assumption that Vasquez-Rivera’s family so qualified,
the BIA affirmed on a different ground: the IJ’s purported determination that Vasquez-Rivera
failed to establish a nexus between that group and any harm that she experienced or feared.
Typically, “[w]e review a nexus determination—a finding of fact—under the substantial
evidence standard.” Turcios-Flores, 67 F.4th at 357 (citation omitted). At the same time, the
BIA is prohibited from “engag[ing] in de novo review of findings of fact determined by an [IJ].”
8 C.F.R. § 1003.1(d)(3)(i); see Guillory v. Lynch, 630 F. App’x 556, 564 (6th Cir. 2015). So
where the IJ has not made a finding of fact on a disputed matter, and such a finding is necessary

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to resolution, the BIA must remand to the IJ to make the required finding; it may not conduct its
own fact-finding. 8 C.F.R. § 1003.1(d)(3)(iv).
Here, the BIA attributed analysis to the IJ that the IJ never undertook. Finding that none
of Vasquez-Rivera’s proposed social groups were cognizable, the IJ concluded that her asylum
claims failed. With respect to Vasquez-Rivera’s family in particular, the IJ found that Vasquez-
Rivera “did not establish that her family was or will be identified as a distinct group.” As a
result, the IJ never resolved whether Vasquez-Rivera could prove a nexus between her
membership in her family and her persecution. The only reference to the nexus requirement in
the IJ’s opinion is with respect to a different particular social group—“Salvadoran women and
girls whose parents live outside the country.” There, the IJ found that “even if this [were] a
cognizable group, there is no nexus” between Vasquez-Rivera’s claim and this group. But the IJ
made no similar finding regarding the family-as-a-particular-social-group claim. So the BIA’s
conclusions as to the nexus required to prove asylum for this social group lack support in the
record and constitute improper de novo factfinding. See 8 C.F.R. § 1003.1(d)(3)(i).
On remand, the BIA may choose from different paths in resolving Vasquez-Rivera’s
remaining asylum and withholding of removal claims. It may consider affirming on the basis
that, as the IJ concluded, the proposed social group—Vasquez-Rivera’s family—is not
cognizable. Separately, turning to nexus, it could consider her claim based on the facts that the
IJ found, see Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per curiam), or, if necessary,
remand to the IJ to make additional findings on the nexus element, see 8 C.F.R.
§ 1003.1(d)(3)(iv) (stating that the BIA itself is an appellate body, and can remand to the IJ for
“further factfinding”); Lin v. Garland, 81 F.4th 629, 639 (6th Cir. 2023) (quoting Qu v. Holder,
618 F.3d 602, 609 (6th Cir. 2010)).
That raises the question of what nexus standards the BIA should apply. The Attorney
General or the Secretary of Homeland Security may grant asylum if “the applicant [can] establish
that race, religion, nationality, membership in a particular social group, or political opinion was
or will be at least one central reason for persecuting the applicant.” See 8 U.S.C.
§ 1158(b)(l)(A)–(B)(i). By comparison, to grant withholding of removal, the Attorney General
must determine that the applicant’s “life or freedom would be threatened” in the country to

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which she would otherwise be removed “because of [her] race, religion, nationality, membership
in a particular social group, or political opinion.” See id. § 1231(b)(3)(A). By their terms, those
two statutory nexus standards are not the same (“one central reason” versus “because of”). And
between the two, withholding of removal’s “because of” standard would appear to be the more
daunting one.
A divided panel of this court, however, recently determined otherwise. In Guzman-
Vazquez v. Barr, we held that applicants for withholding of removal “must demonstrate that a
protected ground was at least one reason for their persecution.” 959 F.3d 253, 274 (6th Cir.
2020). But see id. at 286–90 (Murphy, J., dissenting). In effect, Guzman-Vazquez reads
“because of” to mean “at least one reason.” That conclusion seemingly was inspired by Barajas-
Romero v. Lynch, a Ninth Circuit decision that turned more on that court’s understanding of
congressional purpose than it did the statutory language at issue, see, e.g., id. at 271–74 (quoting
Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017)). In dissent, Judge Murphy drew upon
the law’s text as well as precedent to conclude that “the Supreme Court and this Court have
repeatedly held that ‘because of’ adopts at least but-for causation.” Id. at 276 (Murphy, J.,
dissenting).
Guzman-Vazquez also had the effect of reducing the nexus showing needed to justify
withholding of removal below that needed to justify asylum relief. The majority opinion crafted
a standard that, in essence, amounts to “at least one reason,” a benchmark lower than the asylum
“one central reason” requirement. Id. at 274 (majority opinion); see also id. at 288 (Murphy, J.,
dissenting). That result is hard to square with the traditional understanding that “asylum requires
a lower standard of proof” than does withholding of removal. See Law of Asylum in the United
States § 2:2 (2023 ed.); Guzman-Vazquez, 959 F.3d at 289 (Murphy, J., dissenting); Cardoza-
Fonseca, 480 U.S. at 443 (explaining that satisfying the stricter withholding standard
automatically entitles the applicant to relief, whereas meeting the asylum standard does not).
Others have said the same. In the wake of Guzman-Vazquez, Judge Sullivan of the
Second Circuit adopted Judge Murphy’s reasoning in his concurring opinion in Quituizaca v.
Garland, 52 F.4th 103, 120 (2d Cir. 2022) (Sullivan, J., concurring) (“And so, ‘we are left only
with the plain meaning of “because of,” which requires a [protected ground] to be a but-for

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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.’” (citing Guzman-
Vazquez, 959 F.3d at 289 (Murphy, J., dissenting))). As more jurists consider the question,
Judge Murphy’s and Judge Sullivan’s shared textual analysis may well carry the day. Perhaps a
future case will present our en banc Court or the Supreme Court with the opportunity to clarify
the matter. As Judge Murphy’s dissent first explained, as Judge Sullivan’s analysis confirms,
and as the volume of cases in this area cements, there is reason to do so. But for now, we
remand to the BIA to apply circuit nexus precedent to Vasquez-Rivera’s asylum claim and claim
for withholding of removal based on her membership in her family.
Vasquez-Rivera also argues that remand is warranted based on the IJ’s and BIA’s
reliance on Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), which has since been vacated by
Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021). Additional analysis on that point, however, is
unnecessary. The vacated portion of Matter of A-B- does not affect the BIA’s social-distinction
analysis, and we have already determined that remand is warranted with respect to the BIA’s
nexus analysis.
* * *
CAT Protection. The BIA affirmed the IJ’s determination that Vasquez-Rivera had failed
to establish eligibility for CAT protection. To so qualify, Vasquez-Rivera must show that she
would more likely than not be subjected to torture if removed to El Salvador. See Ramaj v.
Gonzales, 466 F.3d 520, 532 (6th Cir. 2006) (citing 8 C.F.R. § 1208.16(c)(2)). Torture, in this
context, means “any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted, when such pain or suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official capacity.”
Zaldana Menijar, 812 F.3d at 501 (cleaned up).
Substantial evidence supports the BIA’s conclusion. While acknowledging the
regrettable violence and crime in El Salvador, the BIA found that the record failed to establish
that, upon her removal to El Salvador, Vasquez-Rivera would more likely than not be subjected

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to torture by, at the instigation of, or with the consent or acquiescence of a public official or other
person acting in an official capacity. The BIA pointed out that Salvadoran officials had never
subjected Vasquez-Rivera to any harm, nor was there any indication of their specific disinterest
in her wellbeing.
Vasquez-Rivera argues that the country-conditions evidence in the record shows that the
police force in El Salvador suffers from corruption and criminality, that rape and other sexual
crimes against women are widespread in the country, and that the Salvadoran government does
not effectively enforce its laws prohibiting corruption and rape. But this general evidence fails to
demonstrate that Vasquez-Rivera herself “faces a particularized and likely threat of torture at the
hands of a public official, or with the consent or acquiescence of a public official,” in El
Salvador. Marqus v. Barr, 968 F.3d 583, 587 (6th Cir. 2020) (citation omitted).
III.
For these reasons, we grant in part and deny in part the petition for review, vacate the
BIA’s decision with respect to Vasquez-Rivera’s claims for asylum and withholding of removal
based on her membership in her family, and remand for further proceedings.

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