Hernandez-Romero v. Garland: Nexus and Evidence Standards for Withholding of Removal and CAT Relief in Gang-Related Persecution

Introduction

In Hernandez-Romero v. Garland (10th Cir. Apr. 14, 2025), the U.S. Court of Appeals for the Tenth Circuit addressed two central questions in immigration relief:

• Whether an applicant’s membership in an indigenous group can supply the “nexus” required for withholding of removal when facing gang-related harm; and
• What level of evidence suffices to prove that torture is “more likely than not” under the Convention Against Torture (CAT).

Petitioner José Daniel Hernandez-Romero, a Guatemalan national and Maya indigenous man, sought withholding of removal and CAT protection after experiencing extortion, beatings, and threats from the Mara Salvatrucha (MS) gang. Both an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) denied relief, and the Tenth Circuit affirmed.

Summary of the Judgment

Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), the Tenth Circuit reviewed de novo the legal issues and applied a “substantial evidence” standard to factual findings. The court held:

• No “nexus” existed between MS’s persecution and Petitioner’s indigenous status: gang members targeted him for extortion, not because he was Maya.
• Generalized evidence of Guatemala’s crime rate and police corruption did not establish that torture was “more likely than not” with government acquiescence.
• The denials of withholding of removal and CAT relief were supported by substantial evidence and proper legal reasoning.

The petition for review was therefore denied.

Analysis

1. Precedents Cited

• Xue v. Lynch, 846 F.3d 1099 (10th Cir. 2017) – affirmed that BIA factual findings are conclusive unless no reasonable adjudicator could reach the same conclusion.
• Garland v. Ming Dai, 593 U.S. 357 (2021) – emphasized the “highly deferential” substantial-evidence standard in withholding and removal proceedings.
• Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005) – defined the asylum nexus test (“central reason”) and suggested its extension to withholding claims.
• Htun v. Lynch, 818 F.3d 1111 (10th Cir. 2016) – clarified that CAT applicants must prove it is “more likely than not” they would be tortured and that torture requires state consent or acquiescence.
• Escobar-Hernandez v. Barr, 940 F.3d 1358 (10th Cir. 2019) – held that country-wide crime statistics do not demonstrate individualized risk of torture.

2. Legal Reasoning

The court’s decision unfolds in two key steps:

1. Withholding of Removal (8 U.S.C. § 1231(b)(3))
   Petitioner had to show a “clear probability” of persecution on account of a protected ground (race, nationality, particular social group). His proposed group—“indigenous Guatemalan men”—failed because:
   • He admitted MS extorted and beat Guatemalans regardless of indigenous status.
   • His own testimony attributed MS’s actions to greed, not anti-indigenous animus.
2. CAT Relief (8 C.F.R. § 1208.16(c))
   To qualify, Petitioner needed to demonstrate that torture was “more likely than not” and imposed by state actors or with their acquiescence. The evidence consisted of:
   • Country reports on gang violence and police corruption;
   • Personal anecdotes of threats.
   The court held such general evidence insufficient to establish an individualized, government-linked risk of torture.

3. Impact

Hernandez-Romero reinforces two important principles in Tenth Circuit immigration law:

• Nexus Requirement for Withholding: Applicants facing non-state actors (e.g., gangs) must clearly tie the persecutor’s motive to a protected characteristic. Broad group membership labels—without evidence of targeted animus—will not suffice.
• Individualized CAT Showing: Country-level data on violence or corruption does not automatically prove that a particular applicant will face state-sanctioned torture. Petitioners need specific evidence linking their personal risk to government acquiescence.

Future cases involving gang persecution will likely cite this decision to highlight the requirement of precise, motive-focused evidence for both withholding and CAT claims.

Complex Concepts Simplified

• Withholding of Removal: A mandatory form of protection that prevents an individual from being returned to a country where their life or freedom would be threatened on account of a protected ground.
• Particular Social Group: A “group of persons all of whom share a common, immutable characteristic” (e.g., indigenous ethnicity) recognized under U.S. immigration law.
• Substantial Evidence Standard: A deferential review in which factual findings stand unless “any reasonable adjudicator would be compelled” to find otherwise.
• Convention Against Torture (CAT): An international treaty implemented in U.S. law that protects individuals from removal to countries where they would likely face torture by or with the consent of a public official.
• “More Likely Than Not” Standard: A preponderance-type burden requiring applicants to show a greater than 50% chance of suffering torture.

Conclusion

Hernandez-Romero v. Garland clarifies that:

• Persecution by non-state actors demands a clear, protected-ground nexus, not mere group membership labels.
• CAT relief requires an individualized showing of likely torture with state involvement—general country conditions are insufficient.

This decision will guide practitioners and courts in rigorously assessing the motive behind gang violence and the adequacy of evidence for state-linked torture, ensuring that only well-substantiated claims succeed under the stringent standards of withholding and CAT protection.