Clarifying the Nexus Requirement: Aquino-Menendez v. Bondi and the Limits of Particular-Social-Group Claims in Gang-Based Persecution

Introduction

In Blanca Aquino-Menendez v. Pamela Bondi, the United States Court of Appeals for the Fourth Circuit confronted an increasingly common fact pattern: an asylum applicant fleeing gang threats in Central America who attempts to frame those threats as persecution “on account of” membership in a particular social group (“PSG”) or political opinion. While the opinion is unpublished and thus non-precedential, it offers a robust re-statement of two doctrinal pillars that shape modern U.S. asylum jurisprudence:

1. The stringent nexus requirement—i.e., the causal connection between the harm feared and a statutorily protected ground; and
2. The equally demanding substantial-evidence standard of review in petitions for review of Board of Immigration Appeals (“BIA”) decisions.

Petitioner Blanca Aquino-Menendez and her minor daughters, citizens of El Salvador, sought asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) after receiving violent threats from presumed gang members. The Immigration Judge (“IJ”) found the threats credible and sufficiently severe to constitute persecution, but ultimately denied relief for failure to prove a nexus to a protected ground. The BIA affirmed, and the Fourth Circuit denied the petition for review.

Summary of the Judgment

The Fourth Circuit—per Judges Benjamin, Berner, and Senior Judge Traxler—held:

• Substantial evidence supported the BIA’s finding that the petitioner did not establish persecution on account of a protected ground (race, religion, nationality, political opinion, or membership in a PSG).
• Because the asylum claim failed on nexus, the more demanding claim for withholding of removal necessarily failed as well (Yi Ni v. Holder).
• The CAT claim also failed; petitioner did not show it was “more likely than not” she would be tortured with government acquiescence if returned to El Salvador.
• Accordingly, the court denied the petition for review in full.

Analysis

1. Precedents Cited and Their Influence

• Velasquez v. Sessions, 866 F.3d 188 (4th Cir. 2017)
  Reiterates that the asylum seeker bears the burden of proving refugee status and that persecution must be attributable to a protected ground committed by, or with the consent of, the government or an entity the government is unwilling or unable to control.
• Yi Ni v. Holder, 613 F.3d 415 (4th Cir. 2010)
  Establishes that withholding of removal requires a higher evidentiary threshold—“clear probability” of persecution—and thus failure to qualify for asylum forecloses withholding relief.
• Cedillos-Cedillos v. Barr, 962 F.3d 817 (4th Cir. 2020)
  Explains that appellate review of nexus findings is limited to whether the agency’s conclusion is supported by “reasonable, substantial, and probative” evidence.
• Arita-Deras v. Wilkinson, 990 F.3d 350 (4th Cir. 2021)
  Clarifies that where the BIA adopts the IJ’s reasoning but adds its own, courts review both decisions yet limit consideration to the incorporated portions.
• Herrera-Martinez v. Garland, 22 F.4th 173 (4th Cir. 2022); Ponce-Flores v. Garland, 80 F.4th 480 (4th Cir. 2023); and Nasrallah v. Barr, 590 U.S. 573 (2020)
  Supply the definitional and evidentiary frameworks for CAT relief and underscore the limited role of appellate courts in disturbing agency fact-finding.

2. Legal Reasoning

The court’s reasoning unfolds in three stages:

1. Finding Past and Future Persecution
   The IJ accepted that death threats by armed gang members constitute “persecution,” satisfying the first asylum element. This was undisputed on appeal.


2. Nexus Analysis—The Crux
   The statutory language (8 U.S.C. § 1101(a)(42)(A)) demands that the harm be “on account of” a protected ground. Here, petitioner advanced two theories:
   • Political Opinion: She implied the gangs opposed her or her husband’s perceived political stance.
   • Particular Social Group (PSG): “Mother of H.I.S.A. and S.N.S.A.”
   The IJ and BIA concluded—without being contradicted by compelling evidence—that there was no indication the assailants targeted her for either reason. The possibility that the men simply wanted her property was an “equally likely” non-protected motive, defeating nexus under INS v. Elias-Zacarias, 502 U.S. 478 (1992) (implicitly relied upon though not cited).


3. Derivative Claims and CAT
   Because mother and daughters’ claims rose or fell together, failure on nexus doomed asylum and withholding. For CAT, the court found no evidence that the Salvadoran government would acquiesce in torture.

3. Impact on Future Litigation

While unpublished, the opinion reinforces trends in Fourth Circuit and nationwide jurisprudence:

• Tougher Path for Gang-Threat Cases: Applicants alleging gang persecution will face heightened scrutiny on the nexus element. Mere threats or violence are insufficient absent proof of why the gang targeted the victim.
• “Family-Specific PSG” Limitations: The court assumed the PSG (“mother of …”) was cognizable yet still denied relief for lack of causal link. Practitioners must therefore marshal evidence of motive, not merely craft a creative PSG definition.
• Strategic Use of Country-Condition Reports: Although country reports often demonstrate governmental inability to control gangs, this alone will not establish nexus or CAT acquiescence without individualized evidence.
• Reaffirmation of Substantial-Evidence Deference: The decision underscores the near-impossibility of overturning agency fact-findings where the record is ambiguous or evenly balanced.

Complex Concepts Simplified

• Nexus Requirement: A legal “because of” link. The harm must be motivated, at least in significant part, by the victim’s race, religion, nationality, political opinion, or PSG membership.
• Particular Social Group (PSG): A collection of persons sharing a common, immutable characteristic (e.g., family ties) that society recognizes as distinct.
• Substantial Evidence Standard: An appellate court must uphold agency findings unless any reasonable fact-finder would be compelled to reach the opposite conclusion.
• Withholding of Removal: A narrower, mandatory protection that bars removal if persecution is “more likely than not.” Automatically fails if asylum fails.
• Convention Against Torture (CAT): Protects individuals from removal when they would “more likely than not” face torture by, or with the acquiescence of, the government.
• “Cleaned up” Citation: A modern citation technique indicating that internal quotation marks, alterations, and citations have been omitted for readability.

Conclusion

Aquino-Menendez v. Bondi adds another brick to the doctrinal wall limiting asylum relief in gang-violence cases. The Fourth Circuit’s analysis reiterates that:

1. Proof of persecution alone is insufficient—applicants must affirmatively connect that persecution to a protected ground.
2. Creative PSG formulations will not succeed without evidence that persecutors actually targeted the applicant on that basis.
3. Appellate courts will rarely overturn BIA nexus determinations under the substantial-evidence test.

For practitioners, the decision is a cautionary tale: invest early in gathering statements, expert reports, or direct evidence illuminating persecutors’ motives; otherwise, even credible and severe threats may fail to cross the statutory threshold. In the broader legal landscape, the case fortifies the “nexus firewall” that distinguishes generalized criminality from true refugee-qualifying persecution—preserving the integrity of humanitarian relief while denying its extension to purely apolitical, criminal victimization.