In a precedential decision interpreting the nexus requirement under asylum law, the U.S. Court of Appeals for the Fourth Circuit adopted a broad view of what it means for an applicant to be persecuted “on account of” his or her religion. Chicas-Machado v. Garland, 73 F.4th 261 (4th Cir. 2023). The petitioner, Ms. Chicas-Machado, is a Christian and was an active member of a Pentecostal church in El Salvador. While living in El Salvador, she was approached by MS-13 gang members who wanted her to participate in their criminal enterprise by serving as a lookout for police cars. She testified that they specifically approached her because no one would suspect her of participating in criminal activity because she is Christian. She was threatened with death unless she agreed to participate and later received a second death threat after reporting the earlier threat to the police.

The question before the Fourth Circuit was whether the threats received by Ms. Chicas-Machado constitute persecution “on account of” a protected ground. The Fourth Circuit noted that death threats on their own constitute persecution and therefore there was no question as to whether the seriousness of the harm Ms. Chicas-Machado endured rose to the level of persecution. The only question was whether she could establish that this persecution was “on account of” her religion — specifically, whether her religion was “one central reason” for the death threats.

The Fourth Circuit found that the BIA had erred in finding that religion was not one central reason for the persecution and noted that establishing a nexus to the protected ground does not depend on the ultimate goal of the persecutor or why the protected ground let them to target the applicant. Simply put, it did not matter that the gang members were not motivated by a desire to stop Ms. Chicas-Machado from practicing her religion, but rather by a desire to increase the strength of their criminal enterprise. The Fourth Circuit found that “MS-13 members sought out Chicas-Machado and demanded that she assist them because of her position in, work for, and attendance at church; and then, because she refused to assist them, they escalated their conduct to persecution of her.” The Fourth Circuit concluded that Ms. Chicas-Machado’s religion was “one central reason” that she, and not some other person, was targeted by gang members.

In a strongly worded dissenting opinion, Judge Agee disagreed with the majority’s conclusion, finding that Congress intended asylum protections for religious refugees to be limited to cases where a persecutor intended to suppress the religious practices of the refugee. Religious persecution is therefore based on a desire to prevent the adherent from practicing the religion openly or altogether. Since there is no evidence that MS-13 was motivated by a desire to prevent Ms. Chicas-Machado from practicing her religion, Judge Agee found no error in the BIA’s conclusion that her religion was not “one central reason” for the persecution that she suffered.

Implications for Practitioners   

The decision in Chicas-Machado is a positive one in that it may allow more noncitizens to qualify for asylum protection. Under the Fourth Circuit framework, there is no need to show that a persecutor is motivated to overcome or suppress the protected characteristic of the applicant. The majority opinion noted that this is the same framework the court has long used in analyzing asylum cases based on the particular social group protected ground.

It is also important to note that both the majority and the dissent agree that restriction on practice of religion, suppression of religion, or disparate treatment because of religion will constitute persecution. While several other courts have found that suppression of religious practice on its own constitutes persecution, the Fourth Circuit had not up until this point opined on this topic. Therefore, this case is helpful for asylum practitioners, not only in its framing of the “nexus” requirement but also in opening the door to a broad definition of the persecution itself.