Third Circuit Abolishes “Subordination” and “Animus” Tests for Asylum Nexus and Re-focuses CAT Acquiescence on State Capability
Commentary on Hector Tipan Lopez v. Attorney General of the United States, No. 24-1444 (3d Cir. June 30 2025)

1. Introduction

Hector David Tipan Lopez, an Evangelical Christian from Quito, Ecuador, endured a brutal campaign of violence by “the Lobos” gang after he began persuading youths to abandon drugs. He entered the United States in 2023 and sought:

• Asylum and withholding of removal under the Immigration and Nationality Act (INA); and
• Protection under the Convention Against Torture (CAT).

The Immigration Judge (IJ) acknowledged past persecution but denied relief, finding no causal “nexus” between that persecution and any protected ground (religion, race, political opinion). The IJ also thought Ecuador would not acquiesce to torture. The Board of Immigration Appeals (BIA) affirmed.

On petition for review, the United States Court of Appeals for the Third Circuit— in an opinion by Judge Ambro, joined in part by Judges McKee and Hardiman—remands in significant part. The opinion rejects two analytic approaches the BIA and some IJs had begun using: (i) a “subordination-based” test that disqualifies a protected ground if it is less important than a non-protected motive, and (ii) an “animus-based” test that requires evidence of persecutor hostility toward the protected trait. It also clarifies that CAT acquiescence analysis must consider whether the foreign state can protect the applicant, not merely whether it tries.

2. Summary of the Judgment

• Religion Nexus: The panel holds that the BIA applied the wrong test. Ndayshimiye controls: once a protected ground is “one central reason,” it need not be the dominant reason. The Court also rejects any requirement that the persecutor harbor “animus” or hatred toward the protected trait. The case is remanded for the BIA to reevaluate nexus under the correct standard.
• Race & Political Opinion Nexus: Substantial evidence supports the BIA’s finding that neither was a central reason; petition denied as to these grounds.
• CAT Claim: The IJ focused on Ecuador’s anti-gang efforts without deciding whether Ecuador is capable of preventing torture. That omission requires remand for proper acquiescence analysis.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• Ndayshimiye v. Attorney General, 557 F.3d 124 (3d Cir. 2009) – Cornerstone precedent holding that a protected ground cannot be discounted merely because another motive is stronger; introduced the “incidental/tangential/superficial” versus “central” dichotomy.
• Ghanem v. Attorney General, 14 F.4th 237 (3d Cir. 2021) – Reiterated that several central reasons may coexist; no hierarchy required.
• Gonzalez-Posadas (2015) & Thayalan (2021) – Defined “central” as “essential or principal” but consistent with Ndayshimiye.
• In re M-R-M-S-, 28 I.&N. Dec. 757 (BIA 2023) – The BIA decision whose quotation of “subordinate to another reason” collided with Third Circuit precedent; cited by the BIA here and became the flash-point.
• Fourth Circuit cases (Alvarez Lagos, Perez Vasquez) – Rejected subordination logic; BIA distinguished them via M-R-M-S-; the Third Circuit interprets that move as legal error.
• CAT Line: Myrie (2017), Quinteros (2019), Herrow (2024) – Provide the two-step “capability” analysis and define acquiescence as requiring more than effort.

3.2 Court’s Legal Reasoning

1. Textual Focus – “One Central Reason”.
   The statutory phrase allows multiple central motives. Any motive that is more than incidental or superficial counts, even if subordinate to another. The Court reads the BIA’s reliance on M-R-M-S- and its dismissal of Fourth Circuit authority as tacit re-adoption of the forbidden subordination hierarchy.
2. Rejection of an Animus Requirement.
   The INA speaks about motivation, not hostility. Persecution may be instrumental (e.g., coercing recruitment) rather than hateful. Imposing an “animus” gloss conflicts with BIA precedent (Kasinga) and international guidance.
3. Application to the Record.
   Because the IJ and BIA applied incorrect legal standards for religion, the substantial-evidence question cannot be reached; remand is obligatory under INS v. Ventura.
4. CAT – Effort vs Capability.
   Under Quinteros the inquiry is: (a) what will likely happen if the applicant seeks protection? (b) will that response amount to acquiescence? The IJ catalogued Ecuador’s crack-down measures but never answered whether those measures would work. The Court demands an explicit capability finding.

3.3 Likely Impact of the Decision

• Uniform Standard inside the Third Circuit. All IJs and the BIA must now avoid both the “dominant/subordinate” hierarchy and any animus test when cases are reviewed from within the Circuit.
• Practical Litigation Effects. Asylum counsel can prevail on mixed-motive cases without proving hatred or primary motive; evidence that a protected ground played a meaningful role suffices.
• Inter-Circuit Tension. Some circuits still use animus language or have not squarely rejected the subordination concept. This decision may deepen divergence and invite Supreme Court resolution.
• CAT Jurisprudence Clarified. DHS cannot defeat CAT claims merely by showing the foreign state is trying. IJs must weigh efficacy: corruption, resources, historical success, and local reach of the state apparatus.
• Agency Guidance & Training. USCIS, EOIR and DHS training materials may need revision to remove ambiguous “animus” phrasing and to stress the capability component in CAT cases.

4. Complex Concepts Simplified

• Protected Ground: The five characteristics in the statute: race, religion, nationality, political opinion, particular social group.
• Nexus (“One Central Reason”): The protected ground must be an important cause of the persecution—more than a side note, but not necessarily the main or only cause.
• Subordination-Based Test: A now-rejected view that if motive A is less important than motive B, motive A cannot be “central.”
• Animus-Based Test: An equally rejected notion that the persecutor must show hatred toward the protected trait; motivation for other reasons (e.g., leverage, coercion) would not suffice.
• Convention Against Torture (CAT) “Acquiescence”: Protection applies if (i) torture is more likely than not and (ii) a public official, by consent, complicity, or willful blindness, would allow it. Courts must examine the actual ability of the state to intervene, not just its official stance or good intentions.

5. Conclusion

In Hector Tipan Lopez the Third Circuit fortifies asylum jurisprudence by eliminating two doctrinal drifts that threatened to narrow protection: the idea that a protected ground loses force when “subordinate” to crime or profit, and the idea that only persecutorial hatred triggers the statute. Simultaneously, it sharpens CAT analysis, insisting that tribunals examine whether the foreign government can in fact shield the applicant. Going forward, asylum seekers within the Circuit need only prove that a protected ground was a meaningful driver of harm, while CAT applicants can overcome official anti-gang rhetoric by demonstrating ineffectiveness on the ground. The decision thus re-aligns agency adjudication with statutory text, prior Circuit precedent, and the humanitarian purpose of refugee and torture protections.