PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`No. 21-1381
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`
`ODALIS MIREIDA CHICAS-MACHADO,
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` Petitioner,
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` v.
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`MERRICK B. GARLAND, Attorney General,
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` Respondent.
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`
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`On Petition for Review of an Order of the Board of Immigration Appeals.
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`Argued: September 16, 2022
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`Decided: July 13, 2023
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`Before AGEE and HARRIS, Circuit Judges, and MOTZ, Senior Circuit Judge.
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`Petition for review granted in part, denied in part, and remanded by published opinion.
`Senior Judge Motz wrote the opinion, in which Judge Harris joined. Judge Agee wrote an
`opinion concurring in part and dissenting in part.
`
`
`
`
`ARGUED: Daniel Warren Thomann, DANIEL THOMANN, P.C., Chicago, Illinois, for
`Petitioner.
` Kevin Conway, UNITED STATES DEPARTMENT OF JUSTICE,
`Washington, D.C., for Respondent. ON BRIEF: Brian Boynton, Acting Assistant
`Attorney General, Justin Markel, Senior Litigation Counsel, Office of Immigration
`Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
`D.C., for Respondent.
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`
`
`
`
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`

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`DIANA GRIBBON MOTZ, Senior Circuit Judge:
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`An Immigration Judge (IJ) denied Odalis Mireida Chicas-Machado asylum,
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`withholding of removal, and protection under the Convention Against Torture (CAT). The
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`Board of Immigration Appeals (BIA) affirmed, and Chicas-Machado now petitions for
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`review. We grant the petition for review in part, deny it in part, and remand the case to the
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`BIA for further proceedings consistent with this opinion.
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`I.
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`
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`Chicas-Machado, a native and citizen of El Salvador, started attending an
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`evangelical church, the Pentecostal Church, in 2014. She became a member in 2015, and
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`eventually acted as the church’s secretary.
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`Late in 2015, members of the MS-13 gang began to harass and insult Chicas-
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`Machado several times a week when she left her home to walk to and from church. Chicas-
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`Machado testified that the MS-13 members considered her “their enemy because I used to
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`spread the Word of God and because I wanted [to] tell the young people to attend church.”
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`When asked if the gang members cared about her religion when harassing her, she stated,
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`“They didn’t care, no.” She explained, “[T]hey didn’t care that I was Christian . . . they
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`could do with me whatever they pleased to do with me . . . .”
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`Approximately a year after this harassment began, MS-13 gang members escalated
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`their conduct and threatened Chicas-Machado with death. On December 4, 2016, they
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`confronted Chicas-Machado at one of her neighbors’ stores near her home. There they
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`ordered her to “collaborate with them . . . [to] tell them every time that a police car went
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`there . . . [since] because [she] was Christian . . . no one will suspect . . . [her].” Instead of
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`doing as the gang members ordered, Chicas-Machado reported their threat to the police.
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`The police officers promised that they would try to detain the gang members.
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`Two days later, on December 6, 2016, MS-13 members again threatened her — this
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`time they went to her own home. They told her that they had learned that she had filed a
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`police report and threatened to rape and kill her. Chicas-Machado knew at the time that
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`MS-13 had disfigured and then murdered her uncle when he refused to join them. She also
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`knew that MS-13 had threatened a member of her church “the same way” they had
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`threatened her and killed him days later. Accordingly, in response to the threats, she left
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`El Salvador on December 16, 2016 (arriving in the United States on December 24, 2016).
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`Chicas-Machado filed for asylum and withholding of removal, contending that MS-
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`13 gang members targeted her because of her membership in, attendance at, and service
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`for the Pentecostal Church. In support of her application, she submitted evidence aiming
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`to establish both that MS-13 persecuted her personally and that the gang systematically
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`persecuted Evangelical Christians. She also based her claim for asylum and withholding
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`of removal on fear of persecution as a member of two proposed social groups:
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`(1) Salvadorans who refuse to comply with gang orders for moral and religious reasons,
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`and (2) Salvadorans who file police reports against gangs. Additionally, she applied for
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`protection under the CAT and submitted evidence of massive human rights violations in
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`El Salvador, as well as other relevant country conditions evidence.
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`
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`An IJ denied Chicas-Machado’s application. The IJ found Chicas-Machado
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`credible but concluded that she failed to establish her eligibility for asylum, withholding of
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`removal, or CAT protection. The IJ determined that Chicas-Machado’s persecution did
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`not have a nexus to her religion. In addition, the IJ concluded that her two proposed social
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`groups were not socially distinct and cognizable, and that she was not entitled to CAT
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`protection because she presented no evidence that she had been subjected to torture in
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`which the government of El Salvador acquiesced, or that she would be subjected to such
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`treatment upon return to El Salvador.
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`On March 12, 2021, the BIA, without adopting the IJ’s opinion, issued an opinion
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`agreeing with the IJ on every issue. The BIA did not disturb the IJ’s credibility finding but
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`nonetheless found that Chicas-Machado’s claimed persecution was not on account of her
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`religion. The BIA also agreed with the IJ’s conclusions finding Chicas-Machado ineligible
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`for CAT protection and determining that her two proposed social groups were not
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`cognizable. Chicas-Machado now seeks review of that decision.
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`Because the BIA issued its own opinion without adopting that of the IJ, we review
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`only the BIA’s opinion. See Martinez v. Holder, 740 F.3d 902, 908 (4th Cir. 2014). We
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`consider the BIA’s legal conclusions de novo, and determine whether substantial evidence
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`supports its factual findings. Hernandez-Avalos v. Lynch, 784 F.3d 944, 948 (4th Cir.
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`2015). The BIA errs “when it . . . distorts or disregards important aspects of the alien’s
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`claims.” Jian Tao Lin v. Holder, 611 F.3d 228, 235, 237 (4th Cir. 2010) (citation omitted)
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`(holding that the BIA erred when basing a credibility determination on “unrelated facts” in
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`a manner “manifestly contrary to law”).
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`4
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`II.
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`A.
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`Chicas-Machado contends that the BIA erred in failing to find a nexus between her
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`religion and the persecution she experienced. To be eligible for asylum, Chicas-Machado
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`must show that she is a “refugee” as defined by the Immigration and Nationality Act (INA).
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`Sorto-Guzman v. Garland, 42 F.4th 443, 448 (4th Cir. 2022). A refugee seeking asylum
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`must prove she “(1) has a well-founded fear of persecution; (2) on account of a protected
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`ground [e.g., race, religion, nationality, membership in a particular social group, or political
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`opinion]; (3) by an organization that the Salvadoran government is unable or unwilling to
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`control.”1 Hernandez-Avalos, 784 F.3d at 949.
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`
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`To establish a well-founded fear of persecution, an asylum applicant “may show
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`that [s]he was subjected to past persecution, in which case [s]he is entitled to a rebuttable
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`presumption that [s]he has a well-founded fear of future persecution.” Tairou v. Whitaker,
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`909 F.3d 702, 707 (4th Cir. 2018). We have long and repeatedly held that a death threat
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`qualifies as persecution. See Sorto-Guzman, 42 F.4th at 449; Hernandez-Avalos, 784 F.3d
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`at 949; Crespin-Valladares v. Holder, 632 F.3d 117, 126 (4th Cir. 2011); Qiao Hua Li v.
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`Gonzales, 405 F.3d 171, 177 (4th Cir. 2005). Chicas-Machado received at least one death
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`threat. She has thus established that she experienced persecution.
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`We turn to the question of whether this persecution of Chicas-Machado was “on
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`account of” her religion. To establish this an asylum applicant need not demonstrate that
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`1 That the Salvadoran government is unable or unwilling to control MS-13 gang
`members is not disputed in this appeal.
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`5
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`a protected ground, like religion, is the sole reason for persecution but only that it is “at
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`least one central reason” for
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`the persecution.
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` 8 U.S.C. §§ 1101(a)(42)(A),
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`1158(b)(1)(B)(i). But the protected ground “cannot be [simply] incidental, tangential,
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`superficial, or subordinate to another reason for harm.” Quinteros-Mendoza v. Holder, 556
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`F.3d 159, 164 (4th Cir. 2009) (citing In re J-B-N-, 24 I. & N. Dec. 208, 214 (BIA 2007)).
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`Whether an asylum applicant has established nexus is a question of fact, which we review
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`to determine whether substantial evidence supports the BIA’s conclusion. See Cortez-
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`Mendez v. Whitaker, 912 F.3d 205, 209 (4th Cir. 2019).
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`
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`The BIA found that MS-13 gang members “told [Chicas-Machado] they wanted her
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`assistance because no one would suspect she would be working with the gang based on her
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`activity and conduct with the church.” From this fact the BIA decided that gang members
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`“saw her as an asset they could exploit to further their criminal enterprise.” The BIA then
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`concluded that religion was not a motive for MS-13’s persecution of Chicas-Machado.
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`In reaching this conclusion on nexus, the BIA ignored the well-established principle,
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`set forth above, that proof of persecution on account of a protected ground need not be the
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`sole reason for persecution to qualify an applicant for asylum. See Quinteroz-Mendoza,
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`556 F.3d at 164. Review of the record demonstrates that Chicas-Machado established that
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`one central reason MS-13 chose to target her was her religion. Even the motive for the
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`gang’s persecution that the BIA recognized — her use as a potential asset to the gang
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`because “no one would suspect [her]” given “her activity and conduct with the
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`church” — was inextricably intertwined with her religion. See Cruz v. Sessions, 853 F.3d
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`6
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`122, 129 (4th Cir. 2017) (holding that the BIA errs when it fails to consider intertwined
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`reasons for persecution); Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015) (same).
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`Our precedent repeatedly rejecting “excessively narrow reading[s]” of the
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`requirement that persecution be on account of a protected status controls the outcome in
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`this case.2 See Hernandez-Avalos, 784 F.3d at 949. For example, in Salgado-Sosa v.
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`Sessions, a claimant argued that gangs threatened him because of family ties to his
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`stepfather. 882 F.3d 451, 457 (4th Cir. 2018). We held that the BIA erred in rejecting his
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`claim by focusing on whether his family was persecuted on account of a protected ground,
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`rather than whether he was persecuted on a protected ground, i.e., his relationship to his
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`family. Id. We concluded that the claimant’s family ties were at least one central reason
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`for his feared persecution. Id. This was so because the record established that the threats
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`he received were on account of his stepfather’s conflict with a gang, not his own. Id.
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`2 We have never before considered a case where a gang targeted a person for
`assistance or forced labor because of her religion and then threatened her for refusing to
`aid them. Such cases are rare, but in the only two cases (both unpublished) that we have
`located in which our sister circuits have addressed similar factual situations, they have
`recognized the potential nexus in such circumstances between the persecution of an
`applicant and her religion. See Azurdia-Hernandez v. U.S. Att’y Gen., 812 F. App’x 935,
`937–39 (11th Cir. 2020) (finding that the BIA erred in failing to give reasoned
`consideration to a religion-based persecution claim when a cartel asked petitioner to
`launder money because “they trusted her because of her religion,” and threatened her when
`she refused); Kasama v. Gonzales, 219 F. App’x 28, 31 (2d Cir. 2007) (finding nexus where
`petitioner was persecuted after refusing conscription because of his religious beliefs).
`Moreover, the Eleventh Circuit explained that “we cannot rule out -- as a matter of law --
`that an asylum applicant might demonstrate religion-based persecution based on evidence
`that he was targeted for forced labor or some other oppressive treatment because the
`persecutor perceived some positive attribute . . . associated with the persecuted person’s
`religion that would serve the persecutor’s goals.” Azurdia-Hernandez, 812 F. App’x at
`939.
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`at 457–58. In addition, the factual findings adopted by the BIA showed that the claimant’s
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`demonstrated harm was on account of his family ties, and we held that the BIA thus
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`contradicted itself in finding no nexus. Id. at 458.
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`The same rationale that compelled a finding of nexus in Salgado-Sosa applies here.
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`Just as Salgado-Sosa offered evidence that clearly established that he was persecuted on
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`account of his stepfather’s conflict with a gang, and thus on account of his relationship
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`with his stepfather, here, Chicas-Machado offered evidence that clearly established that
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`she was persecuted on account of her membership in, service for, and ties to the church.
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`Moreover, the BIA’s finding of lack of nexus here, like that in Salgado-Sosa, contradicted
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`its own factual findings. For the BIA itself found that the gang members targeted Chicas-
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`Machado for assistance “because no one would suspect she would be working with the
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`gang based on her activity and conduct with the church.” (emphasis added).
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`In Hernandez-Avalos v. Lynch we also rejected a narrow interpretation of the nexus
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`requirement. There, we reversed the BIA’s finding that there was no nexus to a protected
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`ground when a gang threatened the petitioner for trying to prevent her son from joining the
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`gang. We concluded that the petitioner had established such a nexus because her familial
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`relationship to her son “is why she, and not another person, was threatened with death.”
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`Hernandez-Avalos, 784 F.3d at 950. The BIA had reasoned that the gang’s threats were
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`“directed at her not because she is his mother but because she exercises control over her
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`son’s activities.” Id. In reversing the BIA’s decision, we explained that this was “a
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`meaningless distinction under these facts.” Id. The BIA relied on a similarly meaningless
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`distinction when reviewing Chicas-Machado’s case. Here, the gang’s threats of death were
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`directed at Chicas-Machado, and not another person, because she was a practicing
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`Christian and an active member of an evangelical church, which made her useful to the
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`gang.3
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`Nevertheless, the dissent insists that MS-13 members “threatened Chicas-Machado
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`for two reasons only: (1) she refused to serve as a police spotter, and (2) she reported the
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`gang’s recruitment effort to the police.” Six years ago, in Cruz v. Sessions, we expressly
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`rejected this precise theory: we held that retaliation for reporting — or threatening to report
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`— activity to the police did not negate what would otherwise be nexus to a protected
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`ground. 853 F.3d at 129. In Cruz, we reversed the BIA and explained that it erred in not
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`recognizing persecution “on account of” a protected ground (Cruz’s relationship with her
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`husband) even though the persecutor, much like the persecutors here, escalated his conduct
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`to persecution only after the applicant threatened to involve the police.
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`3 The dissent criticizes our reliance on Salgado-Sosa and Hernandez-Avalos because
`they involved persecution based on family ties, rather than religion, and because Chicas-
`Machado did not specifically rely on those cases in making her arguments. With respect
`to the dissent’s first criticism, nothing in the text of the INA or our case law suggests that
`the phrase “on account of” means one thing in family ties cases and another in religious
`persecution cases. It is therefore irrelevant that Salgado-Sosa and Hernandez-Avalos
`involved nexus based on family ties; the question at issue — whether the applicant’s feared
`persecution is “on account of” a protected ground — is the same. With respect to the
`dissent’s second criticism, the cases relied on by the parties are, of course, not the only
`authority that a court can or should consider in reaching its decision. See Kamen v. Kemper
`Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (explaining that “the court is not limited to the
`particular legal theories advanced by the parties, but rather retains the independent power
`to identify and apply the proper construction of governing law”); cf. Jefferson v. Sewon
`Am., Inc., 891 F.3d 911, 923 (11th Cir. 2018) (“[P]arties cannot waive the application of
`the correct law.”). Notably, the dissent itself fully embraces the principle that a court may
`consult cases not cited by the parties, as it very heavily relies on Cortez-Mendez v.
`Whitaker, 912 F.3d 205, 210 (4th Cir. 2019), which also involved persecution based on
`family ties, and on which the Government did not base its arguments, or even cite.
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`In that case, Cruz’s husband went missing while on a fishing trip with his employer,
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`a drug-trafficker. Id. at 125. Cruz went to the boat dock to search for her husband and
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`questioned the employer about her husband’s whereabouts; he told her to stop asking
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`questions, to which she responded that she would file a police report. Id. At that point, the
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`employer threatened that Cruz would suffer the same fate as her husband, and then began
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`threatening her family at their home. Id.
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`In her asylum application Cruz asserted that the employer persecuted her because
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`of her familial ties to her husband, but the IJ and BIA instead held, as the dissent would
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`here, that the sole motive for the persecution was to prevent contact with the police. Id.
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`at 126. We rejected this rationale and held that “the BIA and IJ applied an improper and
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`excessively narrow interpretation of the evidence relevant to the statutory nexus
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`requirement.” Id. at 129. We criticized the BIA’s “shortsighted[] focus[]” on the
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`employer’s expressed concern about Cruz contacting the police, rather than the familial
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`relationship that prompted Cruz to confront the employer and express her intent to contact
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`the police, leading to the employer’s persecution of her. Id. We explained that this was a
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`“misapplication of the statutory nexus standard,” and that the full record compelled a
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`conclusion that the employer’s persecution of Cruz was on account of her family ties.4 Id.
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`Erecting a barrier, as the dissent attempts to do, between the gang members’ activity
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`recruiting Chicas-Machado for assistance and their actions persecuting her would be taking
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`the same “overly restrictive view” of the facts establishing nexus in an asylum case that we
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`have previously warned against. See Oliva, 807 F.3d at 59–60 (reversing the BIA’s finding
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`of no nexus where a gang persecuted an asylum applicant for refusing to pay extortion
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`demands that were only issued because of the applicant’s membership in a particular social
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`group). While a refusal to comply with a gang’s demands may be “the immediate trigger
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`for the gang’s [] assault,” an asylum applicant has established nexus where, as here, a
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`protected ground is the reason the gang issued its demand in the first place. Id. at 60.
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`The dissent’s arguments rest heavily on Cortez-Mendez v. Whitaker, but that case
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`does not counsel a different outcome here. In Cortez-Mendez, we rejected a nexus claim
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`because
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`the petitioner presented no “relevant evidence,” only “unsubstantiated
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`4 The dissent seeks to distinguish Cruz because in that case there was “extensive
`evidence” of persecution over two years. But nothing in Cruz suggests that its holding
`applies only to the facts of that case. Rather, even though Cruz was decided only six years
`ago, we have often relied on Cruz and applied its holding to other facts. See Perez Vasquez
`v. Garland, 4 F.4th 213, 225 (4th Cir. 2021); Alvarez Lagos v. Barr, 927 F.3d 236, 247,
`250 (4th Cir. 2019); Aleman-Medrano v. Garland, No. 20-1821, 2021 WL 5054688, at *4
`(4th Cir. Nov. 1, 2021). Indeed, less than two years ago, in Aleman-Medrano (an argued
`but unpublished case), we recognized that Cruz had “rejected precisely [the] rationale” that
`“a desire to retaliate against [an asylum applicant] for filing a criminal complaint” negated
`the nexus between the subsequent persecution and “the reason why [the applicant], and not
`some other person, was targeted.” 2021 WL 5054688, at *4. Cruz constitutes binding
`circuit precedent that persecution aimed at punishing a victim for involving the police does
`not negate nexus to a protected ground. That principle applies as strongly here as it did in
`Cruz.
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`speculation,” that gangs targeted him because of his father’s disabilities “as opposed to
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`[his] rejection of gang membership.” 912 F.3d at 210–11. We concluded that “[a]t most,
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`Cortez-Mendez demonstrated that the gangs may have targeted him because of his
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`poverty,” which is not a protected ground. Id. at 210 (emphasis added). Thus, evidentiary
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`insufficiency doomed the asylum claim in Cortez-Mendez. 912 F.3d at 210. There is no
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`similar evidentiary insufficiency here. The IJ found Chicas-Machado credible, and the
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`BIA did not disturb that finding. Indeed, the BIA credited Chicas-Machado’s testimony
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`and recognized that the gang targeted her “because no one would suspect she would be
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`working with the gang based on her activity and conduct with the church.” (emphasis
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`added).
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`MS-13 members sought out Chicas-Machado and demanded that she assist them
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`because of her position in, work for, and attendance at church; and then, because she
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`refused to assist them, they escalated their conduct to persecution of her. As we have
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`explained within, time and again we have held that facts such as these establish nexus
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`between a well-founded fear of persecution and a protected ground — here, religion. See
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`Salgado-Sosa, 882 F.3d at 457; Cruz, 853 F.3d at 129; Oliva, 807 F.3d at 59–60;
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`Hernandez-Avalos, 784 F.3d at 949–50;5 Alvarez Lagos v. Barr, 927 F.3d 236, 247, 250
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`(4th Cir. 2019) (reversing the BIA’s finding that a gang targeted an asylum applicant solely
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`because she failed to give them money and not on account of her membership in a certain
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`social group); Temu v. Holder, 740 F.3d 887, 891–92 (4th Cir. 2014) (vacating the BIA’s
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`no nexus finding because “it would demand logical acrobatics” to reconcile the BIA’s
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`narrow and contradictory nexus analysis).
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`B.
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`The BIA’s error in applying our nexus precedent in and of itself requires reversal of
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`its nexus finding. However, we briefly address two additional errors — one legal and one
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`factual — that the BIA made in rejecting Chicas-Machado’s nexus claim.
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`1.
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`The additional legal error is that the BIA required Chicas-Machado to prove nexus
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`by a higher standard than the INA requires. The BIA concluded that because MS-13’s
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`persecution “was not motivated to stop or hinder her from practicing her religion,” Chicas-
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`Machado had not established the required nexus. (emphasis added). The dissent similarly
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`would require Chicas-Machado to prove that MS-13’s intent was to stop or hinder her
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`5 The dissent disagrees with the holding in Hernandez-Avalos, devoting an extensive
`discussion to criticism of that opinion. Notwithstanding this criticism, Hernandez-Avalos
`remains binding precedent, on which our court has repeatedly relied. See e.g., Salgado-
`Sosa, 882 F.3d at 458; Cruz, 853 F.3d at 128–129; Oliva, 807 F.3d at 60; Alvarez Lagos v.
`Barr, 927 F.3d at 250 n.2; see also Gonzalez Ruano v. Barr, 922 F.3d 346, 353–56 (7th
`Cir. 2019) (relying on Hernandez-Avalos in reversing the BIA’s determination that a man’s
`persecution did not have nexus to the proposed social group of his wife’s family).
`Moreover, Hernandez-Avalos hardly constitutes the only precedent supporting our holding
`in this case.
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`religious practice. But nothing in the INA or our case law requires an asylum applicant to
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`establish nexus in this manner. Rather, “[i]t is well-settled that an applicant establishes the
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`required nexus when she demonstrates that her proposed protected status ‘was or will be a
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`central reason for [her] persecution.’” Alvarez Lagos, 927 F.3d at 250 (quoting Oliva, 807
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`F.3d at 59) (alteration in original). This standard does not depend on the ultimate goal of
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`the persecutors or on why the protected ground led them to persecute an applicant. Instead,
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`the BIA and reviewing courts consider only whether the applicant can demonstrate that the
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`persecution was “on account of” a protected ground — here, religion. See 8 U.S.C.
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`§ 1101(a)(42)(A).
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`The dissent’s attempts to justify the narrow standard used by the BIA in fact
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`illustrate the problems with that standard. The dissent states that religious persecution is
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`about restrictions on the right to “practice” one’s religion, and argues that, for that reason,
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`Chicas-Machado’s case should not be covered by asylum protections against religious
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`persecution. There is no dispute over the fact that Chicas-Machado’s activities —
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`spreading the word of God, acting as the church’s secretary, and telling young people to
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`attend church — constitute religious practice. So the only disputed issue is whether, in
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`targeting Chicas-Machado because of her religious activities and then threatening to
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`murder her, MS-13 restricted or suppressed her ability to participate in these religious
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`activities.
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`The answer must be yes. As the BIA itself recognized, MS-13 gang members
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`targeted Chicas-Machado for assistance because of her religious activities and conduct.
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`The gang then threatened Chicas-Machado with death. Being coerced by death threats to
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`assist a gang because its members view her religiosity as an asset is plainly a “serious
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`measure[] of discrimination imposed on [Chicas-Machado] because [she] practise[s] [her]
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`religion.” See Office of the United Nations High Commissioner for Refugees, Handbook
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`on Procedures and Criteria for Determining Refugee Status ¶ 72 (1979, reissued 2019).
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`Whether we label the persecution Chicas-Machado experienced as a restriction on practice
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`of religion, suppression of religion, or disparate treatment because of religion, this
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`persecution falls squarely within the bounds of what the United Nations Handbook and
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`Congress would consider religious persecution.6
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`In justifying its conclusion that Chicas-Machado did not experience religious
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`persecution, the dissent finds it dispositive that “[t]he gang never threatened to harm
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`Chicas-Machado if she didn’t renounce her faith” or “abandon her religious practices.”
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`Under the dissent’s standard, a persecutor apparently must phrase a threat as an ultimatum
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`or a verbal command to stop practicing her religion (e.g., “stop practicing your religion or
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`die”) to be guilty of religious persecution. But targeting a victim for persecution because
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`of her religion has a chilling effect, even when the threat or persecution is not delivered in
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`the form of an ultimatum or command. And, as the dissent recognizes, this chilling effect,
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`6 The Handbook emphasizes that “[p]ersecution for ‘reasons of religion’ may
`assume various forms.” Office of the United Nations High Commissioner for Refugees,
`Handbook on Procedures and Criteria for Determining Refugee Status ¶ 72; see also id.
`¶ 12. The Handbook also provides examples of instances when discrimination amounts to
`persecution, such as when it imposes restrictions on the “right to practise [one’s] religion.”
`See id. ¶ 54. Our holding that MS-13’s death threats restricted Chicas-Machado’s right to
`practice her religion and constitute religious persecution is completely consistent with the
`Handbook’s guidance.
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`and its resulting suppression of religious practice, is exactly the harm from which Congress
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`seeks to protect asylees and refugees.7
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`The reluctance of both the BIA and the dissent to recognize Chicas-Machado’s
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`persecution conflicts with the clear text of the INA. The policy arguments advanced by
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`the dissent for a narrow conception of “practice of religion” and “religious persecution” do
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`not overrule the statutory requirement set forth in the INA.
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`2.
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`The additional factual error, which may have contributed to its improper finding on
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`nexus, is the BIA’s misunderstanding of the record evidence. In its one paragraph
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`discussion of the nexus between the persecution of Chicas-Machado and her religion, the
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`BIA concluded that “when asked whether the gang cared that she was a Christian, she
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`affirmed that ‘[t]hey didn’t care, no[.]’” The BIA used this isolated statement from Chicas-
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`Machado’s testimony to bolster its conclusion that she had not demonstrated nexus
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`between MS-13’s persecution of her — threatening her with death — and her religion. But
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`7 In response, the dissent states that it “acknowledge[s] that an applicant might
`demonstrate persecution on account of religion if she can show that she was singled out for
`some form of disparate treatment because of her religion and that such treatment reasonably
`chilled her religious practices.” This acknowledgment requires a holding finding nexus
`here. The IJ expressly found Chicas-Machado credible, and she testified that MS-13 gang
`members singled her out for death threats in her neighbor’s store and then in her home,
`because of her religious beliefs and ties to the church. Such persecution and death threats
`surely constitute disparate treatment. Moreover, this persecution so chilled Chicas-
`Machado’s religious practice that she fled her home, leaving behind her church (a church
`she attended daily and for which she often proselytized), precisely because of MS-13’s
`threats of violence. After receiving those threats and fleeing for her life, Chicas-Machado
`can no longer attend her church, let alone act as its secretary or proselytize and “spread the
`word” of God in her Salvadoran community.
`16
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`actually, the context of this small quotation makes clear that Chicas-Machado was only
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`repeating that the MS-13 members did not regard her religion as a reason not to harass, or
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`persecute, her, i.e., they did not care that she was Christian, because her religion would not
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`prevent them from persecuting her:
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`Judge: What did they say to you about your religion?
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`Petitioner: They said that they didn’t care that I was Christian, that
`they could do with me whatever they pleased to do with me,
`whatever they want, they wanted to do with me. They
`consider me their enemy because I used to spread the Word of
`God and because I wanted to tell the young people to attend
`church.
`
`. . .
`
`Judge: What did they say to you about your spreading the Word of
`God?
`
`Petitioner: That the Christian – it didn’t matter that I was Christian,
`that they could do whatever they wanted to do with me.
`
`Judge: They didn’t care that you were a Christian?
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`Petitioner: They didn’t care, no.
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`In the context of her entire testimony, the few words relied on by the BIA are entirely
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`consistent with Chicas-Machado’s contention that MS-13 targeted her for persecution
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`because of her religion. The BIA must consider facts relevant to the nexus determination
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`“holistically, with an eye to the full factual context.” Oliva, 807 F.3d at 60. It failed to do
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`that in this case.
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`It is also relevant that during this portion of her testimony, Chicas-Machado was not
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`referring to the gang’s death threats in December of 2016. Instead, she was describing the
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`harassment she experienced walking to and from church during the preceding year. The
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`BIA erred in using Chicas-Machado’s unrelated testimony about her year of harassment to
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`negate the clear nexus between her position in the church and the gang’s undisputed
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`persecution of her in December. While the dissent contends that we are improperly
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`considering Chicas-Machado’s history of harassment by gang members to further support
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`her religious persecution claim, we are doing exactly the opposite: correcting the BIA’s
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`improper conflation of testimony relating to these separate interactions.
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`C.
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`In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the
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`INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated
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`past persecution on account of religion, and is therefore entitled to the presumption of a
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`well-founded fear