Zapien Diaz: Gang Fear and Missing Articles Did Not Establish the Required Connection

Fear of cartel violence did not establish the missing connection to a protected ground, and a few excluded articles did not show that counsel’s error could have changed the outcome. In Zapien Diaz v. Blanche, No. 17-72534 (9th Cir. Oct. 22, 2026), the Ninth Circuit upheld denial of withholding of removal and Convention Against Torture protection, as well as denial of a motion to remand based on ineffective assistance of counsel.

The five-page memorandum is a nonprecedential disposition under Ninth Circuit Rule 36-3. It reviews the agency’s determinations on the evidence presented in this petition.

The court reviewed the agency’s factual findings on persecution, nexus and likely torture for substantial evidence. A different result had to be compelled by the record, rather than merely supported by some evidence. It reviewed denial of remand for abuse of discretion. Memorandum pages 2, 4. Those review standards explain why the panel left the agency’s decisions in place.

The first proposed group failed on its definition

Silvestre Zapien Diaz proposed a social group of Mexican nationals returning to Mexico. The panel found it indistinguishable from the returning-Mexicans group rejected as too broad in Delgado-Ortiz v. Holder, 600 F.3d 1148 (9th Cir. 2010). It also rejected the argument that the authorities offered displaced that precedent. Memorandum page 2.

That was a group-definition issue. Evidence that a person is returning from the United States does not, on its own, resolve whether the proposed group meets the legal requirements for withholding protection.

The alternative group and political opinion failed for a different reason

Zapien also relied on a proposed group of people who refuse to support or join gangs and cartels, and an anti-gang political opinion. For those theories, the record failed to establish the required connection between the feared persecution and the asserted protected ground. It showed a generalized fear of crime, rather than a particularized fear based on the proposed group or opinion. Page 3.

The memorandum applied the withholding rule from Barajas-Romero v. Lynch, 846 F.3d 351, 358–59 (9th Cir. 2017): A protected ground must be “a reason” for persecution. That test is less demanding than asylum’s “one central reason” nexus standard; the evidence here still failed to supply the connection. Naming a protected-ground theory did not supply evidence that the feared persecutor would act for that reason.

Because the nexus failure independently defeated the alternative-group theory, the BIA did not need to decide whether that proposed group was legally cognizable.

The CAT claim needed evidence of his own likely risk

CAT protection required a showing that torture was more likely than not, involving an official or official acquiescence. The panel found the record did not compel that conclusion. It identified evidence of Mexican authorities’ efforts between 2011 and 2016 to investigate, prosecute and imprison cartel members, supporting the agency’s conclusion on government opposition to that violence. Pages 3–4.

The personal-risk evidence also fell short. Zapien did not identify a gang member who had targeted him or shown a particular interest in harming him. His testimony described a general fear of being perceived as having money after returning. The court found that insufficient to compel CAT protection on this record.

The court relied on country evidence covering 2011–2016 in a petition docketed in 2017. A current claim requires current evidence about the applicant, feared harm and government response. Memorandum page 3.

The counsel-error argument faced two separate obstacles

Zapien sought remand because counsel had submitted evidence late. He conceded that he had not complied with Matter of Lozada and argued the BIA should have examined the record for clear and obvious ineffective assistance. The panel found that he had supplied no authority establishing that this late evidentiary filing qualified for the clear-and-obvious ineffective-assistance exception discussed in Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir. 2000). Requiring compliance was therefore not an abuse of discretion. Page 4.

The panel also gave a separate reason for denying remand: The omitted material had not been shown capable of changing the result. The speculative articles did not establish the missing nexus, cure the identified group problem or compel a different CAT outcome in light of the existing record. Pages 4–5.

Those are distinct inquiries. Explaining an exception to procedural requirements would not itself establish prejudice. Likewise, describing potentially useful evidence does not excuse failing to address the procedural requirements. Zapien’s argument failed because he supplied no authority connecting the late filing to the recognized exception.

What a missing-evidence comparison should show

The prejudice inquiry was whether excluded evidence “may have changed the result,” under Hernandez-Ortiz v. Garland, 32 F.4th 794, 801 (9th Cir. 2022). Here, the speculative articles left the identified nexus and personal-risk gaps intact. Our guide to counsel-error evidence shows how to compare a particular omitted item with the actual reason for denial. Memorandum pages 4–5.

The court denied the petition and the requested stay. Page 5. Our new-evidence reopening guide addresses the separate requirements for material that was previously unavailable; counsel error and the requested procedural remedy must be evaluated on their own terms.

Bring the agency decisions, counsel’s filing history and the complete omitted materials for review. Mishra X can assess both the procedural showing and the evidence’s proposed effect on the denied claim.