Applications for asylum & withholding of removal under the Immigration & Nationality Act (8 USC §§ 1158 & 1231(b)(3)); Finding that there was no “nexus” between the harm to petitioners & their family membership; Sebastian-Sebastian v Garland; Whether petitioners’ due process claim was “unexhausted”; Whether their argument about a particular social group (PSG) of “Guatemalan female children without parental protection” was reviewable; Board of Immigration Appeals (BIA); Immigration judge (IJ)

The court held that the BIA’s determination there was no nexus between the harm to petitioners and their family membership was inconsistent with the court’s precedent, which does not require asylum applicants to prove “animus” to satisfy the nexus requirement. But petitioners’ arguments as to due-process and their proposed PSG of “Guatemalan female children without parental protection” were unreviewable where they were not raised before the BIA. Petitioners are sisters from Guatemala who entered the country illegally. They came to join family after gang members threatened to maim or kill them. The IJ denied their applications for asylum and withholding of removal and the BIA dismissed their appeal. They first argued that the IJ was biased against them after the “IJ clearly expressed her disapproval of” their mother for leaving them in Guatemala. The government argued that the court could not consider petitioners’ claim that basing their application denial on their mother’s testimony violated their due-process rights because their failure to raise this claim before the BIA left it “unexhausted.” The court agreed that the claim was unexhausted and concluded that “because the government has raised the exhaustion issue,” the court could not decide it on the merits. The court also determined that petitioners failed to exhaust their challenge to the IJ’s finding that their PSG of Guatemalan female children without parental protection was not “sufficiently particular.” But the court held that the BIA erred when it agreed with the IJ’s finding that there was no nexus between the harm to petitioners and their family membership. The BIA failed to apply the court’s precedent. The IJ and the BIA should have considered that there may have been “mixed-motives” for the persecutors’ alleged “targeting” of petitioners. The court rejected the government’s assertion that it was necessary to show animus toward the family, holding that “our precedents do not require an asylum applicant to prove animus in order to satisfy the nexus requirement.” On remand, the BIA must consider whether petitioners’ “family status” was the underlying reason for the threats and actions against them, along with other issues, such as petitioners’ young ages and the Guatemalan government’s willingness to step in. The court granted the petition for review, dismissed it in part, vacated the BIA’s denial of petitioners’ application for asylum and withholding of removal, and remanded.