Silva-Cruz: Nexus Did Not Require an Intent to Overcome a Protected Trait

Does an applicant for asylum or withholding of removal need to prove that a persecutor acted with a specific "intent to overcome" a protected characteristic? In Silva-Cruz v. Blanche, No. 25-7120 (9th Cir. Oct. 13, 2026), the Ninth Circuit held that requiring an "intent to overcome" imposes an overly restrictive legal standard for nexus. However, this ruling does not guarantee protection for victims of general criminal violence: the decision is an unpublished memorandum, the court did not validate the applicants' proposed social group, and it affirmed the denial of relief under the Convention Against Torture (CAT).

The Legal Error in the BIA's Nexus Analysis

The petitioners—Stephanie Dafmin Silva-Cruz, Christian Adrian Leal-Garcia, and their minor child, all natives and citizens of Mexico—appealed a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge's denial of asylum, withholding of removal, and CAT relief. The BIA concluded that the family failed to show a nexus to a protected ground because they did not establish that their attackers sought to "overcome" Leal-Garcia's status in a proposed social group of male residents of Tepic. The BIA reasoned that nexus requires demonstrating "a desire by the persecutor to overcome a characteristic he deems offensive."

The panel majority held that the BIA committed legal error by treating "intent to overcome" as a mandatory requirement (slip op., pages 2–3). The court explained that while proving an intent to overcome a protected trait can satisfy nexus (citing Pitcherskaia v. INS, 118 F.3d 641, 644–45 (9th Cir. 1997)), it is not the only way to do so. Other motivations, such as racial or ethnic animus, also satisfy the nexus requirement without requiring an explicit intent to overcome (citing Sinha v. Holder, 564 F.3d 1015, 1021–23 (9th Cir. 2009); Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1021 n.4 (9th Cir. 2023)).

Different Nexus Standards for Asylum and Withholding

The decision highlights an essential distinction between claims for asylum and claims for withholding of removal. To establish eligibility for asylum under 8 U.S.C. § 1158(b)(1)(B)(i), an applicant must show that a protected ground was "one central reason" for the persecution.

By contrast, an applicant seeking withholding of removal faces a lower nexus threshold. Under 8 U.S.C. § 1231(b)(3), the applicant need only demonstrate that a protected ground was "a reason" for the harm (citing Barajas-Romero v. Lynch, 846 F.3d 351, 359 (9th Cir. 2017)). Because the BIA rejected both claims based entirely on the improper "intent to overcome" demand, the Ninth Circuit remanded the matter for the agency to evaluate the record under the correct standards (slip op., page 3, citing Khudaverdyan v. Holder, 778 F.3d 1101, 1105 (9th Cir. 2015)).

Why CAT Relief Was Denied Based on Post-Harm Residence

Despite remanding the asylum and withholding claims, the Ninth Circuit affirmed the agency's denial of CAT relief. To obtain protection under 8 C.F.R. § 208.16(c)(2), an applicant must prove that it is "more likely than not" that they would be tortured if returned to their country of origin.

The panel held that substantial evidence supported the BIA's decision. Even assuming that Leal-Garcia's past stabbing by local drug dealers constituted past torture, the record showed that the petitioners continued living in Tepic for over a year after the stabbing without experiencing further harm or threats (slip op., page 3). That extended period of unmolested residence meant the record did not compel a finding that future torture was more likely than not.

Understanding the Limits of the Decision and the Dissent

Readers evaluating Silva-Cruz must keep several key limits in mind:

First, as an unpublished memorandum under Ninth Circuit Rule 36-3, the decision is not binding precedent. Second, the court did not hold that "male residents of Tepic" or their family members form a legally cognizable particular social group; the BIA had merely assumed that point for the sake of argument (slip op., page 4, Fletcher, J., dissenting). Additionally, while the court granted a case-specific stay of removal for the petitioners, that order applies only to this proceeding.

In dissent, Circuit Judge W. Fletcher argued that remanding was futile because the violence stemmed from a local drug dealer pressuring Leal-Garcia to sell drugs, without evidence of government connection or a protected ground. However, the majority's ruling remains controlling for the case: because the agency relied on an improper legal rule for nexus, the BIA must re-examine the claim under the proper statutory framework.

Evaluating Your Options in Immigration Proceedings

When appealing an immigration ruling, identifying whether the agency applied an overly restrictive legal test can make a critical difference. If your claim was denied based on nexus, social group recognition, or CAT standards, reviewing the detailed administrative record is the necessary first step. Visit our immigration practice page to learn how our firm reviews immigration decisions, identifies reversible legal errors, and represents clients in agency appeals and federal circuit court petitions.