Unreported / Non-Citable
Background
Nelson Alexander Campos Cisnero and his son, Leonardo Adonay Campos Rodriguez, petitioned for review of decisions by an immigration judge and the Board of Immigration Appeals denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture. The unpublished memorandum was submitted without oral argument in San Francisco on October 27, 2026, and filed November 5, 2026, in Ninth Circuit No. 23-2020. The panel consisted of Circuit Judges Clifton, Bybee, and Sung.
Nelson described a May 2018 encounter in which gang members detained him, forced him to disrobe at gunpoint, and threatened to kill him while determining whether he belonged to a rival gang. He also described abandoning construction and other jobs after gangs threatened workers or excluded people from rival territories. Leonardo separately described being beaten by gang-member classmates after refusing to join their gang and being pressured to join repeatedly, almost daily. The immigration judge treated each petitioner’s experience principally as a single incident and found insufficient past persecution.
The court reviewed the agency’s factual findings for substantial evidence and its legal conclusions de novo. Because the Board adopted and affirmed the immigration judge’s decision, the court reviewed that decision as the Board’s. It also limited review to the grounds the agency actually used, leaving unaddressed issues for the agency on remand.
The Court’s Holding
The court held that the immigration judge committed legal error by failing to mention Nelson’s evidence that he had repeatedly abandoned jobs because of gang threats and territorial restrictions. Those earlier incidents could help establish a pattern of persecution closely tied to Nelson, so the agency could not resolve his past-persecution claim by focusing only on the May 2018 detention. Under Flores Molina, failing to consider highly probative or potentially dispositive evidence makes an agency decision legally defective.
The court also rejected the immigration judge’s treatment of Nelson’s proposed particular social group, described as imputed gang affiliation of a rival gang. Although the judge assumed the group was cognizable, the judge reasoned that Nelson could not belong to it because the gang released him after deciding he was not a rival. The Ninth Circuit explained that the detention, forced disrobing, and death threats occurred while the gang suspected rival affiliation, and Nelson’s release after that suspicion ended supported rather than defeated the conclusion that imputed membership was one central reason for the harm. The evidence therefore compelled the required nexus. The court did not decide the government’s cognizability challenge because the immigration judge made no finding on that issue.
For Leonardo, the court held that the agency again overlooked highly probative evidence by calling the school beating a single incident without addressing repeated recruitment threats occurring almost daily, which could show a targeted pattern amounting to persecution. The court reached a different result on torture protection: Nelson reported little or no physical harm and no prolonged mental suffering qualifying as torture, the record contained scant evidence about the extent of Leonardo’s physical injuries, and fear of investigation as new arrivals did not establish a more-likely-than-not risk of torture with governmental acquiescence. A separate argument about torture by law enforcement or security forces was unexhausted.
Key Takeaways
- An immigration judge must address highly probative evidence of repeated gang threats rather than characterize a petitioner’s experiences as one isolated incident.
- A gang’s later conclusion that a victim is not a rival member does not negate persecution inflicted while the gang imputed rival membership to that victim.
- The Ninth Circuit granted both petitioners’ applications for asylum and withholding of removal but denied their requests for Convention Against Torture protection.
- The court left the cognizability of imputed rival-gang membership undecided because the immigration judge had assumed cognizability without making a finding.
- The petitions were granted in part, denied in part, and remanded, and the petitioners’ motion to stay removal was granted pending issuance of the mandate.
Why It Matters
The decision distinguishes the reason harm occurs from the reason it stops. For Nelson, release after the gang rejected its suspicions helped demonstrate that the earlier detention and threats were connected to imputed rival-gang membership, preventing the agency from using the end of the encounter to erase the protected-ground nexus present while the harm occurred.
The memorandum also shows that omission of material evidence can independently undermine an immigration decision, while the torture rulings were sustained because the record did not compel a finding of severe pain or suffering or a more-likely-than-not risk of future torture with governmental acquiescence. The disposition is nonprecedential except as permitted by Ninth Circuit Rule 36-3.