NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MATEO JUAN TOMAS, No. 22-230 Agency No. Petitioner, A088-124-752 v. MEMORANDUM*
TODD BLANCHE, Acting Attorney General,
Respondent.
ANA TOMAS AGUSTIN, No. 22-231 Agency No. Petitioner, A206-459-290 v.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted February 13, 2026 Seattle, Washington
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: PAEZ and BUMATAY, Circuit Judges, and KASUBHAI, District Judge;** Dissent by Judge Bumatay. Mateo Juan Tomas (“Tomas”) and his daughter, Ana Tomas Agustin (“Tomas
Agustin”) (collectively, “Petitioners”), natives and citizens of Guatemala, petition
for review of the decisions of the Board of Immigration Appeals (“BIA”), dismissing
their appeals from the decision of the Immigration Judge (“IJ”) denying their
applications for relief from removal. Both Petitioners applied for withholding of
removal and protection under the Convention Against Torture (“CAT”). Tomas
Agustin also applied for asylum.1
We review the BIA’s dismissal order and the portions of the IJ’s decision that
the BIA incorporated as its own. Flores Molina v. Garland, 37 F.4th 626, 632 (9th
Cir. 2022). We review de novo whether the agency applied the correct “standard of
persecution.” Urias-Orellana v. Bondi, 146 S. Ct. 845, 849 n.1 (2026). We review
for substantial evidence the agency’s factual findings and the agency’s conclusion
as to whether those facts rise to the level of persecution. Id. at 851. Exercising
jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), we grant the petitions for review and
** The Honorable Mustafa T. Kasubhai, United States District Judge for the District of Oregon, sitting by designation. 1 The IJ issued one decision for both Petitioners. The BIA issued separate decisions denying their appeals. Petitioners appealed separately to this court. Tomas’s appeal is No. 22-230. Tomas Agustin’s appeal is No. 22-231. We consolidate the appeals for purposes of this disposition.
2 22-230 remand for further proceedings consistent with this disposition.
Tomas’s uncle and father have long fought over Tomas’s family home, and
Tomas’s uncle claims that the home belongs to him. Early in the dispute, Tomas’s
uncle physically assaulted Tomas’s father, and Tomas’s father was sent to the
hospital after the attack. Beginning in 2010, while Tomas and his family were living
in the home, the uncle began a campaign to push them out. On five separate
occasions over two years, Tomas’s uncle approached the family home in a drunken
rage and fired his gun at the house while Tomas and his family were inside,
apparently with the intent to kill them. Each time, the uncle screamed threats at
Tomas and his family and demanded that they abandon the home.
The evidence compels the conclusion that Tomas experienced past harm
rising to the level of persecution. The BIA correctly noted that persecution must be
“extreme,” but “any reasonable adjudicator would be compelled to conclude” that
what Tomas experienced was extreme. Urias-Orellana, 146 S. Ct. at 850 (quoting
8 U.S.C. § 1252(b)(4)(B)). “Threats and attacks can constitute persecution even
where an applicant has not been beaten or physically harmed.” Baballah v. Ashcroft,
367 F.3d 1067, 1074 (9th Cir. 2004). When there are multiple threats over a period
of years, coupled with violent confrontations, “a rational factfinder could only
conclude that you have suffered past persecution.” Ruano v. Ashcroft, 301 F.3d
1155, 1157, 1160–61 (9th Cir. 2002). This case is “distinguishable” from a case
3 22-230 based on pure threats, and compels a finding of past persecution, “because [Tomas]
was ‘closely confronted’ and put in harm’s way on numerous occasions by [a man]
he knew to be armed and out to get him.” Id. at 1160.
More serious than the near-miss confrontations in Ruano, id. at 1158, Tomas
was shot at multiple times. Even a single incident of gunfire in one’s direction,
coupled with an anonymous threat, compels a finding of past persecution. Madrigal
v. Holder, 716 F.3d 499, 504 (9th Cir. 2013). The multi-year campaign of gunfire
and threats Tomas endured thus amounts to persecution. Id.; see also Kaur v.
Wilkinson, 986 F.3d 1216, 1223 (9th Cir. 2021) (“[A]ttempted murder constitutes
persecution.”); Baballah, 367 F.3d at 1071, 1074 (emphasizing that the persecutors
“shot bullets in the air over Baballah’s boat”). And the uncle’s prior violence against
Tomas’s father “adds additional strength to his claim of past persecution.” Baballah,
367 F.3d at 1075.
Even if the identity and motive of the persecutor are relevant to the nexus and
other critical inquiries, they are irrelevant to the level of harm that Tomas
experienced, and the agency must undertake those separate inquiries in the first
instance. See Lapadat v. Bondi, 145 F.4th 942, 953 n.7 (9th Cir. 2025).
As for Tomas Agustin, the agency must reconsider whether she experienced
past persecution because it applied the wrong “standard of persecution” to her claim.
Urias-Orellana, 146 S. Ct. at 849 n.1. The BIA suggested that the uncle’s attacks
4 22-230 could only constitute persecution of Tomas Agustin if she “perceived” the gunfire
and threats, citing Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1046 (9th Cir.
2007). This ignores our more recent caselaw. Whether an infant experiences harm
rising to the level of persecution depends on the severity of persecution her family
experiences—including persecution that occurs before she is born—and the
deprivations that follow. Mendoza-Pablo v. Holder, 667 F.3d 1308, 1314–15 (9th
Cir. 2012). On remand, the agency must take into account that Tomas experienced
harm rising to the level of persecution and consider any impacts of that persecution
on Tomas Agustin.2
Because the agency erred in its past persecution determination, the agency
also erred in denying Tomas the regulatory presumption of future persecution, 8
C.F.R. § 1208.16(b)(1)(i), and may have similarly erred as to Tomas Agustin, id.
§ 1208.13(b)(1). And the agency did not make the necessary findings to overcome
the presumption. The BIA emphasized the lack of evidence submitted by Petitioners
in support of their well-founded fears, but a lack of evidence is not a change in
circumstances, and the burden was on the government—not Petitioners—to
2 Given the IJ’s limited findings, the BIA may find it necessary to remand to the IJ for further fact finding. Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MATEO JUAN TOMAS, No. 22-230 Agency No. Petitioner, A088-124-752 v. MEMORANDUM*
TODD BLANCHE, Acting Attorney General,
Respondent.
ANA TOMAS AGUSTIN, No. 22-231 Agency No. Petitioner, A206-459-290 v.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted February 13, 2026 Seattle, Washington
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: PAEZ and BUMATAY, Circuit Judges, and KASUBHAI, District Judge;** Dissent by Judge Bumatay. Mateo Juan Tomas (“Tomas”) and his daughter, Ana Tomas Agustin (“Tomas
Agustin”) (collectively, “Petitioners”), natives and citizens of Guatemala, petition
for review of the decisions of the Board of Immigration Appeals (“BIA”), dismissing
their appeals from the decision of the Immigration Judge (“IJ”) denying their
applications for relief from removal. Both Petitioners applied for withholding of
removal and protection under the Convention Against Torture (“CAT”). Tomas
Agustin also applied for asylum.1
We review the BIA’s dismissal order and the portions of the IJ’s decision that
the BIA incorporated as its own. Flores Molina v. Garland, 37 F.4th 626, 632 (9th
Cir. 2022). We review de novo whether the agency applied the correct “standard of
persecution.” Urias-Orellana v. Bondi, 146 S. Ct. 845, 849 n.1 (2026). We review
for substantial evidence the agency’s factual findings and the agency’s conclusion
as to whether those facts rise to the level of persecution. Id. at 851. Exercising
jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), we grant the petitions for review and
** The Honorable Mustafa T. Kasubhai, United States District Judge for the District of Oregon, sitting by designation. 1 The IJ issued one decision for both Petitioners. The BIA issued separate decisions denying their appeals. Petitioners appealed separately to this court. Tomas’s appeal is No. 22-230. Tomas Agustin’s appeal is No. 22-231. We consolidate the appeals for purposes of this disposition.
2 22-230 remand for further proceedings consistent with this disposition.
Tomas’s uncle and father have long fought over Tomas’s family home, and
Tomas’s uncle claims that the home belongs to him. Early in the dispute, Tomas’s
uncle physically assaulted Tomas’s father, and Tomas’s father was sent to the
hospital after the attack. Beginning in 2010, while Tomas and his family were living
in the home, the uncle began a campaign to push them out. On five separate
occasions over two years, Tomas’s uncle approached the family home in a drunken
rage and fired his gun at the house while Tomas and his family were inside,
apparently with the intent to kill them. Each time, the uncle screamed threats at
Tomas and his family and demanded that they abandon the home.
The evidence compels the conclusion that Tomas experienced past harm
rising to the level of persecution. The BIA correctly noted that persecution must be
“extreme,” but “any reasonable adjudicator would be compelled to conclude” that
what Tomas experienced was extreme. Urias-Orellana, 146 S. Ct. at 850 (quoting
8 U.S.C. § 1252(b)(4)(B)). “Threats and attacks can constitute persecution even
where an applicant has not been beaten or physically harmed.” Baballah v. Ashcroft,
367 F.3d 1067, 1074 (9th Cir. 2004). When there are multiple threats over a period
of years, coupled with violent confrontations, “a rational factfinder could only
conclude that you have suffered past persecution.” Ruano v. Ashcroft, 301 F.3d
1155, 1157, 1160–61 (9th Cir. 2002). This case is “distinguishable” from a case
3 22-230 based on pure threats, and compels a finding of past persecution, “because [Tomas]
was ‘closely confronted’ and put in harm’s way on numerous occasions by [a man]
he knew to be armed and out to get him.” Id. at 1160.
More serious than the near-miss confrontations in Ruano, id. at 1158, Tomas
was shot at multiple times. Even a single incident of gunfire in one’s direction,
coupled with an anonymous threat, compels a finding of past persecution. Madrigal
v. Holder, 716 F.3d 499, 504 (9th Cir. 2013). The multi-year campaign of gunfire
and threats Tomas endured thus amounts to persecution. Id.; see also Kaur v.
Wilkinson, 986 F.3d 1216, 1223 (9th Cir. 2021) (“[A]ttempted murder constitutes
persecution.”); Baballah, 367 F.3d at 1071, 1074 (emphasizing that the persecutors
“shot bullets in the air over Baballah’s boat”). And the uncle’s prior violence against
Tomas’s father “adds additional strength to his claim of past persecution.” Baballah,
367 F.3d at 1075.
Even if the identity and motive of the persecutor are relevant to the nexus and
other critical inquiries, they are irrelevant to the level of harm that Tomas
experienced, and the agency must undertake those separate inquiries in the first
instance. See Lapadat v. Bondi, 145 F.4th 942, 953 n.7 (9th Cir. 2025).
As for Tomas Agustin, the agency must reconsider whether she experienced
past persecution because it applied the wrong “standard of persecution” to her claim.
Urias-Orellana, 146 S. Ct. at 849 n.1. The BIA suggested that the uncle’s attacks
4 22-230 could only constitute persecution of Tomas Agustin if she “perceived” the gunfire
and threats, citing Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1046 (9th Cir.
2007). This ignores our more recent caselaw. Whether an infant experiences harm
rising to the level of persecution depends on the severity of persecution her family
experiences—including persecution that occurs before she is born—and the
deprivations that follow. Mendoza-Pablo v. Holder, 667 F.3d 1308, 1314–15 (9th
Cir. 2012). On remand, the agency must take into account that Tomas experienced
harm rising to the level of persecution and consider any impacts of that persecution
on Tomas Agustin.2
Because the agency erred in its past persecution determination, the agency
also erred in denying Tomas the regulatory presumption of future persecution, 8
C.F.R. § 1208.16(b)(1)(i), and may have similarly erred as to Tomas Agustin, id.
§ 1208.13(b)(1). And the agency did not make the necessary findings to overcome
the presumption. The BIA emphasized the lack of evidence submitted by Petitioners
in support of their well-founded fears, but a lack of evidence is not a change in
circumstances, and the burden was on the government—not Petitioners—to
2 Given the IJ’s limited findings, the BIA may find it necessary to remand to the IJ for further fact finding. Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012). As the BIA noted, the IJ failed to make any findings as to how much of the uncle’s terror campaign Tomas Agustin experienced. Nor did the IJ make any findings as to how the terror campaign impacted Tomas Agustin in her infancy, including the harms that followed from being “forced to flee.” See Mendoza- Pablo, 667 F.3d at 1314.
5 22-230 introduce evidence showing a change in circumstances. 8 C.F.R.
§ 1208.16(b)(1)(ii); id. § 1208.13(b)(1)(ii). Further, the BIA did not discuss safe
relocation.
Finally, the agency tied its analysis of Tomas’s CAT claim to its erroneous
determination that he did not establish past harm rising to the level of persecution.
And the agency similarly tied Tomas Agustin’s withholding and CAT claims to the
flawed past persecution analysis. The agency must reconsider each claim on
remand.3
PETITIONS GRANTED; REMANDED.
3 Tomas’s motion to stay removal, Dkt. 25, No. 22-230, is GRANTED.
6 22-230 FILED MAY 21 2026
BUMATAY, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
Our standard of review in immigration cases is well-established. “[W]e may
reverse only if the evidence compels a conclusion contrary to the” Board of
Immigration Appeals’ (“BIA”). Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th
Cir. 2023). That is one of the most deferential standards in the law. We can’t
substitute our judgment for the BIA’s—no matter how much we disagree. Because
the record doesn’t compel the conclusion that Mateo Juan Tomas or his daughter,
Ana Tomas Agustin, experienced past persecution, I respectfully dissent.
“[P]ersecution is an extreme concept that does not include every sort of
treatment our society regards as offensive.” Ghaly v. I.N.S.¸ 58 F.3d 1425, 1431 (9th
Cir. 1995) (simplified). In this case, Tomas and his daughter were caught in the
middle of a family feud. Tomas’s elderly uncle had a longstanding conflict with
Tomas’s father about inheritance of a house. Tomas’s uncle also had a drinking
problem. Apparently, on five occasions, Tomas’s drunken uncle shot a gun in the
direction of Tomas’s house. While the house sustained some damage, no one was
ever injured in the incidents. Tomas never alleged that his uncle shot a gun directly
at any person. It was always the house that was the target. Police arrested the
drunken uncle at least six times. While frightening, it wasn’t frightening enough for
Tomas to leave the house or ensure his daughter was safe away from the house. He
continued to live there with his daughter for two years after the uncle’s last shooting
1 22-230 incident. Clearly this was an unfortunate family feud, but these facts don’t require
that the BIA find persecution. See Sharma v. Garland, 9 F.4th 1052, 1061 (9th Cir.
2021) (“serious maltreatment that is sustained and recurring is more likely to compel
the conclusion of past persecution, whereas sporadic incidents, unaccompanied by
an ongoing pattern of harm, less so.”).
Because Tomas failed to establish past persecution, no presumption of future
persecution exists. See id. at 1060. And the record supports the BIA’s conclusion
that Tomas failed to demonstrate a clear probability of future persecution—his
family has continued to safely reside in the home, and no evidence supports that his
uncle, who would be in his 80s by now, will seek to harm Tomas or his daughter.
Substantial evidence also supports the denial of Tomas’s daughter’s claims.
It is a well-established rule in our court “that injuries to a family must be considered
in an asylum case where the events that form the basis of the past persecution claim
were perceived when the petitioner was a child.” Hernandez-Ortiz v. Gonzales, 496
F.3d 1042, 1046 (9th Cir. 2007) (emphasis added). It is uncontested that, as an infant
at the time, she did not perceive the uncle’s shootings. And nothing in Mendoza-
Pablo v. Holder, 667 F.3d 1308 (9th Cir. 2012), changed that rule. Indeed, Mendoza-
Pablo reiterated that rule. Id. at 1314. Nor can the BIA properly overrule our
precedent.
We thus should have left undisturbed the BIA’s rulings and denied the
2 22-230 petition.
3 22-230