De Souza Silva: When an Asylum Decision Overlooks Harm to Religious Practice

Being able to worship only in hiding can change daily life: the clothes you wear, the music you play and the people you gather with. When fear forces those choices, an asylum account needs to explain that loss as well as the threats or attacks that caused it.

That was the missing question in De Souza Silva v. Bondi, 139 F.4th 1137 (9th Cir. 2025). The immigration judge believed a Brazilian woman’s account but denied asylum. The Ninth Circuit returned her case because neither the judge nor the Board of Immigration Appeals had analyzed how the mistreatment restricted her ability to practice Candomblé, an Afro-Brazilian religion.

Her account connected the attacks to her faith

Silvana De Souza Silva had practiced Candomblé since her early teens. She initially attended ceremonies secretly because her Catholic parents disapproved. Later, she and her husband worshipped with a friend, Simone, and her family. The opinion recounts that intruders killed Simone’s father in 2010 because of his religious practice, threatened the household and demanded that they leave the neighborhood.

Neighbors knew the families were close and that De Souza Silva practiced Candomblé. Her home was repeatedly vandalized with religious slurs and demands to leave. She described her children’s bullying at school and difficulty finding work that she attributed to her religion. Those experiences supplied the background to two later attacks.

In August 2021, someone threw a rock through the family’s window with a note targeting their religion and saying they were unwelcome. A month later, a masked gunman entered the home while her husband was away. He grabbed her neck, held a gun to her head and threatened to kill the family if they stayed, invoking Simone’s father’s murder. The account in De Souza Silva connects the warning, property attacks and earlier killing to the fear she described.

Afterward, she, her husband and their youngest son fled to the United States. Her application also explained that she had already been practicing in hiding before the final threat. That detail made the effect on worship part of the existing record, rather than a new explanation first offered to the appeals court.

The denial focused on harm without examining religious practice

The immigration judge found De Souza Silva credible. The judge nevertheless concluded that the harm fell short of persecution, pointing to the absence of significant or lasting physical injury or medical treatment from the armed encounter. The judge treated the employment explanation as speculation and the insults, bullying and graffiti as discrimination rather than persecution.

The Board affirmed. It said the judge had properly considered the incidents together, including the offensive messages, death threat and economic deprivation. But the agency reasoning described in De Souza Silva left a particular question unanswered: How had those experiences affected her freedom to practice her faith?

The Ninth Circuit identified that specific omission. Its concern was more precise than whether the decisions had listed the incidents or used the word “cumulative.” The court found that neither decision mentioned or analyzed the restrictive effects on religious practice, even though the application, testimony and country evidence addressed them.

The court looked at what religious practice was still possible

The court explained that persecution analysis can include psychological and economic harm as well as physical violence. For a religious claim, the inquiry also examines how substantially the government, or people it cannot or will not control, has restrained religious practice. That additional dimension mattered to the cumulative assessment here.

The religious-practice analysis in De Souza Silva used earlier cases to show the difference. As the opinion recounts Krotova v. Gonzales, 416 F.3d 1080 (9th Cir. 2005), an attack left a small congregation too frightened to keep gathering. In its contrasting discussion of Nagoulko v. INS, 333 F.3d 1012 (9th Cir. 2003), the applicant continued attending weekly services and doing extensive public religious work. What worship remained possible helped explain the different assessments.

Drawing on Zhang v. Ashcroft, 388 F.3d 713 (9th Cir. 2004), the court also explained why an official ban or complete prevention of worship was unnecessary for restrictions to matter. Religious freedom includes practicing publicly as well as privately. Being driven into secrecy can therefore be a serious part of the harm the agency must evaluate.

Clothing, music and gatherings made the restriction concrete

De Souza Silva’s evidence described more than an abstract wish to worship openly. Her application said she practiced in hiding at different members’ homes. Her testimony explained the fear attached to being identified and the difficulty of wearing religious colors and clothing. The country evidence described recognizable dress and adornments, easily identifiable percussion-rich worship music, and restrictions on ceremonies and temple gatherings.

The court’s discussion of that evidence in De Souza Silva connected secrecy to the way this religion was practiced. Clothing, music and dance were meaningful parts of worship. The agency needed to assess what the threats and other mistreatment had done to those activities. The country reports supplied context for her experience; their historical accounts concerned the record before the court.

The armed warning also had a specific context. It explicitly targeted Candomblé, referred to a person killed for practicing the same faith and followed escalating attacks on the home. The court distinguished that record from the threat case the agency had relied on, Duran-Rodriguez v. Barr, 918 F.3d 1025 (9th Cir. 2019). The religious connection and property attacks explained why the comparison required closer attention to this record.

The case returned for reconsideration of the asylum claim

The Ninth Circuit granted the petition and returned the asylum claim for reconsideration in De Souza Silva. The agency was to reassess past persecution with the effect on religious practice included, then address the remaining asylum requirements. The appeal concerned her asylum claim; the opinion’s first footnote identifies the other protection claims and her son’s separate application as unchallenged.

The agency’s alternative relocation finding also depended on that reassessment. Under the regulatory version the court identified and applied, a finding of past persecution would create a favorable presumption and place the burden of rebuttal on the government. The relocation reasoning in De Souza Silva explained why the disputed past-persecution finding could change who had to prove safe and reasonable relocation. It therefore returned those connected questions to the agency.

A present-day appeal also requires care about the court’s role. Our Urias-Orellana analysis explains substantial-evidence review of the agency’s application of the persecution standard. Counsel should identify the particular error claimed and the record supporting it. In De Souza Silva, the court’s stated reason for remand was the missing analysis of religious practice.

Show how the harm changed your actual practice

For a review of a similar concern, put the written decisions beside the application, testimony and evidence already submitted. Identify what you ordinarily did to practice your faith, what changed after the mistreatment, and why. Explain whether gatherings stopped or moved, clothing was concealed, music was restricted, or public observance became unsafe. Use your own experience and available evidence rather than assume another applicant’s history fits yours.

Then connect each restriction to the decision’s reasoning. A report describing attacks on places of worship can provide context; testimony explaining how those attacks affected your own attendance or observance supplies a different part of the account. The task is to show the effect on religious life clearly enough for the decision-maker to evaluate it with the other harm.

Our Nababan analysis addresses a different stage: reopening a completed case based on changed conditions affecting public evangelism. De Souza Silva concerns the harm assessment in the asylum merits decision. Keeping the procedural stage clear helps identify which evidence and argument the next filing needs.