Rape-Based Asylum Claims Require Case-Specific Proof of “Nexus,” Not Gender Assumptions

Introduction

In Maria Cortez Pineda v. Pamela Jo Bondi, Attorney General (4th Cir. Feb. 4, 2026) (unpublished), the Fourth Circuit denied a petition for review challenging the Board of Immigration Appeals’ (BIA) denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

The petitioner, Maria Sarai Cortez Pineda, a citizen of El Salvador, suffered a brutal 2014 abduction and rape. She sought relief primarily on the theory that the harm was persecution “on account of” her membership in gender-based and motherhood-based “particular social groups” (PSGs), and that Salvadoran conditions (gang dominance, police corruption, and gendered violence) created a continuing risk of harm.

The key issues were: (1) whether her proposed PSGs were legally cognizable; (2) whether the rape and feared future harms were connected by the required nexus to a protected ground; (3) whether future-persecution theories were exhausted before the BIA and preserved on appeal; and (4) whether the record compelled CAT relief.

Summary of the Opinion

  • The court did not decide whether the petitioner’s proposed gender/motherhood PSGs were cognizable (despite arguments invoking Loper Bright Enterprises v. Raimondo to reconsider deference to BIA PSG doctrine).
  • It held that substantial evidence supported the BIA’s dispositive finding of no nexus between the rape and any protected ground, treating the incident as a crime of opportunity rather than persecution motivated by group membership.
  • It declined to consider certain future-persecution theories because they were not properly raised to the BIA (failure to exhaust) and, independently, were not developed as appellate arguments (abandonment/waiver).
  • It affirmed denial of CAT relief because the record did not compel findings that torture was more likely than not, or that any harm would occur with government consent or acquiescence.

Analysis

Precedents Cited

1) Standard of review: deference to agency fact-finding

  • Moreno-Osorio v. Garland, 2 F.4th 245 (4th Cir. 2021): The court reiterated the framework for review—factual findings for substantial evidence, legal conclusions de novo. This mattered because the nexus determination was treated as fact-bound.
  • Rivas de Nolasco v. Bondi, 150 F.4th 350 (4th Cir. 2025): Guided the scope of review when the BIA issues its own reasoning; the Fourth Circuit focused on the BIA’s opinion rather than the IJ’s.
  • Nolasco v. Garland, 7 F.4th 180 (4th Cir. 2021): Supplied the “two plausible results” rule—reversal only if evidence compels the petitioner’s view. This was central: even if gender-motive was plausible, the record did not compel it.

2) Asylum/withholding framework and the PSG test

  • Velasquez v. Sessions, 866 F.3d 188 (4th Cir. 2017): The applicant bears the burden and must show persecution on account of a protected ground, by government or forces the government is unable/unwilling to control.
  • Yi Ni v. Holder, 613 F.3d 415 (4th Cir. 2010): Withholding requires a higher probability (“clear probability”), so failure on asylum typically dooms withholding.
  • Lizama v. Holder, 629 F.3d 440 (4th Cir. 2011): Recited the BIA’s three-factor PSG approach (immutability, social visibility/distinction, particularity). The BIA relied on particularity and social distinction to reject the proposed groups; the Fourth Circuit bypassed this by resolving on nexus.

3) Post-Chevron landscape (raised, but avoided)

  • Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024): Cited for the proposition that courts are “no longer required” to defer to agency statutory interpretations in the same manner as before. The petitioner urged the court to discard the BIA’s multi-factor PSG test and adopt immutability alone. The panel expressly found it unnecessary to decide, signaling that Loper Bright arguments may be consequential in future PSG disputes, but also that courts can still deny relief on other statutory elements (like nexus).

4) Gender-based PSG authority from other circuits; Fourth Circuit’s non-decision

  • Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007), and Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005): Cited for the proposition that being female can constitute an immutable trait relevant to PSG analysis in certain contexts.
  • Alfaro-Zelaya v. Bondi, 157 F.4th 587 (4th Cir. 2025): The panel used it to illustrate the Fourth Circuit’s practice of assuming cognizability without deciding when another element is dispositive; it also distinguished Alfaro-Zelaya on remand mechanics (there, a country-conditions/nexus argument was at issue).

5) Nexus doctrine: motive is “critical”

  • Cedillos-Cedillos v. Barr, 962 F.3d 817 (4th Cir. 2020): Defined “one central reason” and stressed that the protected ground must be more than incidental/tangential.
  • I.N.S. v. Elias-Zacarias, 502 U.S. 478 (1992): Anchored the requirement of some evidence—direct or circumstantial—of persecutor motive, and the “compel” standard for overturning the BIA.
  • Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014): Quoted for the idea that the “perpetrator’s mindset” is central to “on account of.”
  • Tepas v. Garland, 73 F.4th 208 (4th Cir. 2023): Reinforced that generalized crime/unrest is insufficient; also cited for the proposition that future persecution can establish eligibility absent past persecution—though here the future theories were not properly preserved.
  • Angoucheva v. I.N.S., 106 F.3d 781 (7th Cir. 1997) (Rovner, J., concurring): Invoked to recognize rape as violent aggression/power, but the panel used that recognition to caution against simplistic motive assumptions rather than to infer nexus.

6) Issue preservation: exhaustion and appellate waiver

  • Cabrera v. Barr, 930 F.3d 627 (4th Cir. 2019): A petitioner exhausts by raising the argument to the BIA.
  • Santos-Zacaria v. Garland, 143 S. Ct. 1103 (2023): Exhaustion under 8 U.S.C. § 1252(d)(1) is a mandatory claims-processing rule, not jurisdictional, but still enforceable when invoked by the government.
  • Suarez-Valenzuela v. Holder, 714 F.3d 241 (4th Cir. 2013), and Grayson O Co. v. Agadir Int'l LLC, 856 F.3d 307 (4th Cir. 2017): Used to find abandonment/waiver where issues are not developed in the opening brief.

7) Private violence and Matter of A-B-

  • Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) ("A-B- I") and Matter of A-B-, 28 I&N Dec. 307, 308-09 (A.G. 2021) ("A-B-II"): The petitioner argued the IJ improperly relied on A-B- I, later vacated by A-B-II. The Fourth Circuit agreed that A-B- I’s broad language was problematic but treated any error as harmless because the IJ and BIA denied relief for lack of nexus rather than a categorical rule against private-violence claims.

8) CAT doctrine: probability and state involvement

  • Herrera-Martinez v. Garland, 22 F.4th 173 (4th Cir. 2022): Defined CAT elements (severe pain, intentional infliction, and public-official consent/acquiescence).
  • Ponce-Flores v. Garland, 80 F.4th 480 (4th Cir. 2023): Emphasized deference to agency predictions on future harm and acquiescence absent compelled contrary evidence.
  • Nasrallah v. Barr, 590 U.S. 573 (2020): Confirmed substantial-evidence review for CAT factual findings.
  • Ibarra Chevez v. Garland, 31 F.4th 279 (4th Cir. 2022): Supported that the BIA properly applies clear-error review to the IJ’s “predictive factual determination.”

Legal Reasoning

1) The opinion’s decisive move: nexus as the bottleneck

Although the case presented a high-stakes question—whether “Salvadoran women” (and related formulations) can qualify as a PSG, potentially reshaped by Loper Bright Enterprises v. Raimondo—the court treated that debate as nonessential. It assumed (without deciding) that the PSG hurdle could be cleared and asked whether the petitioner proved the separate statutory element: the persecution was “on account of” that protected ground.

On the record presented, the panel held that the BIA’s view was permissible: the attackers’ motive was unknown and could reasonably be seen as opportunistic—targeting someone walking alone at night in an isolated area—rather than targeting her because she belonged to “Salvadoran women” or “Salvadoran single mothers.”

2) Rejection of “rape is inherently gendered, therefore nexus” as a legal shortcut

The petitioner’s argument effectively sought an inference: if rape is a gendered act, then rape of a woman is necessarily “on account of” gender. The court refused to transform that inference into a rule. It acknowledged that rape is commonly an expression of power and domination, but insisted that asylum nexus remains a fact-specific motive inquiry requiring “some evidence” of why these perpetrators harmed this victim.

Importantly, the panel did not say gender can never be “one central reason” for rape. It said this record did not compel that conclusion, and under substantial-evidence review the BIA’s contrary inference controlled.

3) Administrative law and procedure: exhaustion and waiver independently limited review

The petitioner had advanced an additional future-persecution narrative at the IJ (risk of arrest after miscarriage given strict abortion laws; mistreatment as a single mother), but did not meaningfully press those theories to the BIA, and did not develop them as discrete issues in the opening appellate brief. The court enforced both constraints: (a) failure to exhaust before the agency (as a claims-processing bar when invoked), and (b) abandonment/waiver on appeal.

4) CAT: the missing link of state involvement and compelled probability

For CAT, the court deferred to the agency’s factual findings that the petitioner did not show it was more likely than not she would be tortured, nor that any harm would occur with the consent or acquiescence of Salvadoran officials. The panel found no legal error in the BIA’s application of clear-error review to predictive findings.

Impact

  • Rape-based asylum claims in the Fourth Circuit will turn heavily on motive evidence. This decision underscores that, even for crimes widely recognized as gendered, adjudicators may require concrete, case-specific indicia of persecutor motive (statements, pattern evidence tied to a group, targeting markers, or well-developed country-conditions linkage).
  • Country-conditions evidence must be tethered to nexus. The opinion signals that generalized descriptions of gender violence and impunity, without clear linkage to why the applicant was targeted, may not overcome substantial-evidence deference—especially if not squarely argued as an error (the opinion contrasts this posture with Alfaro-Zelaya v. Bondi).
  • Post-Loper Bright PSG challenges may not matter if nexus fails. Even if future panels revisit the BIA’s three-factor PSG test, applicants still must prove the “on account of” element; the case is a template for courts to avoid PSG doctrinal fights by deciding on nexus.
  • Procedural rigor is outcome-determinative. The decision is also a warning that future-persecution theories must be (1) explicitly raised to the BIA and (2) fully developed in the opening brief on petition for review.
  • CAT claims remain difficult without state acquiescence evidence. Allegations of corruption or inability to protect must be developed into the CAT-specific showing that officials would consent to or acquiesce in torture, and that torture is more likely than not.

Complex Concepts Simplified

“Particular social group” (PSG)
One of the five protected grounds in asylum law. Under the BIA’s common approach (cited via Lizama v. Holder), PSGs must be defined by immutable traits, be socially distinct, and be sufficiently particular. Here, the court did not resolve the PSG definition dispute.
Nexus / “on account of” / “one central reason”
The applicant must show the protected characteristic was a meaningful motivating reason for the harm, not merely incidental. The focus is on why the persecutor acted (I.N.S. v. Elias-Zacarias; Cedillos-Cedillos v. Barr).
Substantial evidence / “compel” standard
A reviewing court does not decide what it thinks is most likely; it asks whether any reasonable adjudicator could agree with the agency. If multiple interpretations are plausible, the agency wins (Nolasco v. Garland).
Exhaustion (8 U.S.C. § 1252(d)(1))
Issues generally must be presented to the BIA before a federal court can review them. After Santos-Zacaria v. Garland, this is not jurisdictional, but it is enforceable when the government raises it.
CAT “acquiescence”
CAT relief requires not just severe harm, but a showing that it would occur by, or with the consent or acquiescence of, a public official (Herrera-Martinez v. Garland). Inability to prevent crime is not automatically acquiescence.

Conclusion

This unpublished Fourth Circuit decision’s practical rule is clear: even when the harm is rape, asylum and withholding still require evidence that the attack occurred “on account of” a protected ground. The court refused to equate the gendered nature of rape with automatic nexus, and it deferred to the BIA’s permissible view that the crime was opportunistic given the sparse motive record.

Equally important, the opinion demonstrates how issue preservation can control outcomes: future-persecution theories not properly exhausted or developed will not be reached. Finally, the CAT holding confirms that applicants must connect feared harm to both probability and state involvement, not merely dangerous country conditions.