Nery Adeli Salguero Sosa v. MERRICK B. GARLAND, Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NERY ADELI SALGUERO SOSA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-70961
Agency No.
A087-365-423
ORDER
Filed August 15, 2023
Before: Sidney R. Thomas and Milan D. Smith, Jr., Circuit
Judges, and George H. Wu,* District Judge.
Order;
Concurrence by Judge Milan D. Smith, Jr.;
Dissent by Judge Callahan
* The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.

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SUMMARY**
Immigration
The panel denied a petition for panel rehearing and a sua
sponte request for rehearing en banc in a case in which the
panel: (1) held that the Board of Immigration Appeals
legally erred by failing to conduct cumulative-effect review
in assessing petitioner’s evidence of past persecution, and
(2) remanded for the BIA to reassess the evidence under the
correct legal framework.
Concurring in the denial of rehearing en banc, Judge M.
Smith addressed the dissent’s inaccurate discussion of the
facts and law in this case. Judge M. Smith wrote that despite
the dissent’s claim, the panel’s decision did not invent the
cumulative-effect-review requirement; rather that
interpretation of the asylum and withholding regulations has
been a part of Ninth Circuit and BIA precedent for a quarter
century. Judge M. Smith also wrote that it is black-letter law
that this court reviews de novo the legal contention that the
agency erred by failing to conduct the required cumulative
error review, and that where this court finds that the agency
erred by failing to consider the cumulative effect, it cannot
reach the agency’s bottom-line determination that no past
persecution occurred, and instead must remand for the
agency to reconsider its determination applying the correct
the legal standard.
Dissenting from the denial of rehearing en banc, Judge
Callahan, joined by Judges Ikuta, R. Nelson, Bumatay, and
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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SALGUERO SOSA V. G ARLAND 3
VanDyke, wrote that the panel could have held that remand
was required because the BIA failed to consider petitioner’s
argument that the immigration judge erred by failing to
consider his past harm cumulatively. Instead, the majority
opinion—based on a misreading of this court’s prior
opinions and without consideration of the practical
consequences—unnecessarily created a new requirement
that when determining whether a petitioner’s past
mistreatment rises to the level of persecution, the BIA must
apply cumulative-effect review. Judge Callahan wrote that
this court’s evaluation of the agency’s analysis of cumulative
effect should remain a part of this court’s substantial
evidence review, where a lack of analysis of cumulative
effects may indicate that the agency’s decision is not
supported by substantial evidence in the record. However,
there is no support for the proposition that the BIA’s failure
to consider the cumulative effect of alleged incidents of past
persecution amounts to a legal error. Judge Callahan also
reiterated, as noted by Judge Wu in his partial concurrence,
that the opinion provides no guidance on how the agency
should carry out such a new, mandatory cumulative-effect
review.

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4 SALGUERO SOSA V. G ARLAND
ORDER
A majority of the panel has voted to DENY
Respondent’s petition for panel rehearing only (Dkt. No.
67). Judges S.R. Thomas and M. Smith voted to deny the
petition, and Judge Wu voted to grant it.
A judge sua sponte requested a vote on whether to rehear
the matter en banc, and the matter failed to receive a majority
of the votes of the nonrecused active judges in favor of en
banc consideration. See Fed. R. App. P. 35(a).
The petition for panel rehearing only is DENIED. The
sua sponte request for rehearing en banc is also DENIED.
M. SMITH, Circuit Judge, concurring in the denial of
rehearing en banc:
Whenever the issues in a case are fairly presented in the
disposition of the original panel, and any dissent from a
denial of rehearing en banc merely highlights issues
previously presented, it is rarely necessary to prepare a
concurrence to an order denying rehearing en banc. In this
case, however, even though the government did not request
rehearing en banc, one of my colleagues sua sponte did so.
The sua sponte call failed to convince a majority of our court
and now gives rise to the dissent filed with this order.
Because the dissent inaccurately discusses both the facts and
the law in this case, this is the rare instance in which I feel
compelled to respond in order to obviate confusion on the
relevant issues in the future.
Since at least 1998, the Board of Immigration Appeals
(BIA) and our court has interpreted “past persecution” in the

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SALGUERO SOSA V. G ARLAND 5
asylum and withholding-of-removal regulations to require
cumulative-effect review: that “[t]he key question” when
evaluating a claim of past persecution “is whether, looking
at the cumulative effect of all the incidents that a petitioner
has suffered, the treatment he received rises to the level of
persecution.” Sharma v. Garland, 9 F.4th 1052, 1061 (9th
Cir. 2021) (quoting Gormley v. Ashcroft, 364 F.3d 1172,
1176–77 (9th Cir. 2004), which in turn is quoting Singh v.
INS, 134 F.3d 962, 967 (9th Cir. 1998)). This case presented
two narrow, second-order questions regarding what to do in
the rare instance where the agency departs from that well-
established requirement:
• First, when a petitioner argues that the BIA and
Immigration Judge (IJ) failed to conduct cumulative-
effect review, is that a contention of legal error subject
to de novo review or factual error subject to substantial-
evidence review?
• Second, if our court determines that the agency failed to
conduct cumulative-effect review, do we remand the
case back to the agency for it to reconduct its past-
persecution analysis with the error corrected, or do we
ignore the error and move on to consider the agency’s
bottom-line past-persecution finding?
As in all other cases where a petitioner argues that the
BIA employed an incorrect legal framework, we held that de
novo review applies. Based on the IJ’s plain admission in
his decision that he did not conduct cumulative-effect
review, we determined that legal error occurred. Complying
with the ordinary-remand rule, we did not reach the agency’s
bottom-line conclusion that Salguero Sosa failed to establish
past persecution. Instead, we remanded the case back to the

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agency to reconsider Salguero Sosa’s proffered evidence of
past persecution while employing the cumulative-effect
legal framework that decades of agency and circuit
precedent requires—an utterly ordinary
immigration/administrative law decision.
Nonetheless, after the government chose not to seek
rehearing en banc, one of my colleagues sua sponte
requested that our court do so. Now after that request failed
to convince a majority of our court that rehearing en banc
was needed, one of my colleagues pens a dissent that makes
much ado about nothing. Try as it might, the dissent cannot
conjure a boogeyman from a decision that combined a
repeatedly reaffirmed interpretation with basic
administrative law principles to grant a narrow remand.
ANALYSIS
I. For Decades, Precedent Has Required Cumulative-
Effect Review
Despite the dissent’s claim, our decision did not invent
the cumulative-effect-review requirement. That common-
sense interpretation flows from the language of the asylum
and withholding regulations and has been a part of Ninth
Circuit and BIA precedent for a quarter century.
Let’s start with some general principles. When
evaluating applications for asylum and withholding of
removal, IJs and the BIA determine whether individual
applicants have met statutory criteria for relief. By statute,
an applicant is eligible for asylum if he or she has “a well-
founded fear of persecution” on account of a protected
ground. 8 U.S.C. § 1101(a)(42). Also by statute, an
applicant is entitled to withholding of removal if his or her

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SALGUERO SOSA V. G ARLAND 7
“life or freedom would be threatened” on account of a
protected ground. Id. § 1231(b)(3)(A). Asylum and
withholding regulations interpret that statutory language to
mean that an applicant is entitled to a rebuttable presumption
of future persecution if he or she has suffered “past
persecution.” 8 C.F.R. §§ 208.13(b)(1), 208.16(b)(1).
For decades, our court has interpreted this “past
persecution” regulatory language to mean that “[t]he key
question” when determining past persecution “is whether,
looking at the cumulative effect of all the incidents that a
petitioner has suffered, the treatment he received rises to the
level of persecution.” Sharma, 9 F.4th at 1061; Salguero
Sosa v. Garland, 55 F.4th 1213, 1218 (9th Cir. 2022)
(collecting cases with cumulative-effect rule statements).
Nor is our court alone in interpreting “past persecution”
in this manner. The BIA has long asked whether “incidents,”
when viewed “[i]n the aggregate, . . . rise to the level of
persecution.” Matter of O-Z- & I-Z-, 22 I. & N. Dec. 23, 26
(BIA 1998). Moreover, the UNHCR Handbook—which we
look to as “persuasive authority in interpreting the scope of
refugee status,” Miguel-Miguel v. Gonzales, 500 F.3d 941,
949 (9th Cir. 2007) (citation omitted)—has this to say on the
subject:
[A]n applicant may have been subjected to
various measures not in themselves
amounting to persecution . . . . In such
situations, the various elements involved
may, if taken together, produce an effect on
the mind of the applicant that can reasonably

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8 SALGUERO SOSA V. G ARLAND
justify a claim to well‑founded fear of
persecution on “cumulative grounds.”
UNHCR, Handbook on Procedures and Criteria for
Determining Refugee Status and Guidelines on International
Protection (rev. 2019). Indeed, in its petition for panel
rehearing only, the government acknowledged that
cumulative-effect review is an established “agency
interpretation.” Moreover, it is not difficult to imagine how
resounding a loss the agency would suffer before a federal
court if it reversed course and attempted to interpret the
asylum and withholding-of-removal regulations to mandate
single-incident review—that no matter how wretched
applicants’ lives are, they are not entitled to relief unless they
can point to one definitive incident that itself rises to the
level of persecution.
It is only the dissent that makes the full-throated
argument that there is no requirement of cumulative-effect
review. To do so, the dissent attempts a sleight of hand with
the Korablina cumulative-effect formulation: that
“persecution may be found by cumulative, specific instances
of violence and harassment.” Korablina v. INS, 158 F.3d
1038, 1044 (9th Cir. 1998). In its view, this “may” language
“undermines” there being a requirement of cumulative-
effect review because “[m]ay be found” and “must be
evaluated” are “not equivalent.” The dissent is correct that
“may” and “must” are different words, but it overlooks that
“may” and “must” also modify different words in our court’s
decisions. The language from Korablina we quote says that
“[p]ersecution may be found” through cumulative effects;
“must” would make no sense to modify “persecution”
because several low-level harms do not amount to
persecution, while one instance of serious harm (e.g.,

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SALGUERO SOSA V. G ARLAND 9
attempted murder) can rise to the level of persecution. By
contrast, our opinion says that “incidents must be evaluated
cumulatively.” Put otherwise: Our “must” language refers
to how past persecution is evaluated, while Korablina’s
“may” language refers to whether, when that framework is
applied, an applicant’s past experiences actually rise to the
level of persecution.
By zeroing in on a single linguistic difference, the dissent
overlooks important context. The dissent’s exclusive focus
on the Korablina formulation also fails to account for the
other common formulation of the cumulative-effect
requirement used in Sharma and elsewhere: that “[t]he key
question” is “whether, looking at the cumulative effect of all
the incidents that a petitioner has suffered, the treatment he
received rises to the level of persecution.” 9 F.4th at 1061.1
The cumulative-effect requirement has been in place for a
quarter century, and the dissent’s context-devoid reading of
two words does nothing to displace it.
1 Dissenting from the panel opinion, Judge Wu did not go quite as far as
my dissenting colleague here and suggested only that “there is a
question” whether cumulative-effect review is required by precedent.
Salguero Sosa, 55 F.4th at 1225 (Wu, J., dissenting in part). The partial
dissent quoted three different articulations of cumulative-effect review:
(1) that “[w]e look at the totality of the circumstances in deciding
whether a finding of persecution is compelled”; (2) that “the cumulative
effect of several incidents may constitute persecution”; and (3) that
“[t]he key question is whether, looking at the cumulative effect of all the
incidents . . . , the treatment . . . rises to the level of persecution.” Id. at
1225. While Judge Wu raised the “question,” he did not provide an
alternative reading. And it is unclear to me how else to read these rule
statements other than that they stand for the proposition that cumulative-
effect review is a necessary part of past-persecution analysis.

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II. Precedent Requires De Novo Review Followed by a
Remand
With it established that our precedent requires
cumulative-effect review, we can now turn to the only
questions actually decided in this case: (A) What standard of
review applies to a petitioner’s contention that the agency
failed to conduct cumulative-effect review? and (B) What is
the remedy? Fortunately, black-letter law supplies the
answer to each question. When reviewing agency action, we
review contentions of legal error de novo. When we find a
legal error, we do not reach the agency’s bottom-line
determination (here, that no past persecution occurred); we
remand for the agency to reconsider its determination with
the legal error corrected.
The dissent argues that, by subjecting a legal error to de
novo review and then remanding, we found an
impermissible “work around” to the substantial-evidence
standard of review that applies to our review of the agency’s
“administrative findings of fact.” 8 U.S.C. § 1252(b)(4)(B).2
But employing different standards of review for legal and
factual questions is Appellate Review 101. We did not
impermissibly “work around” substantial-evidence review;
that standard of review (applicable only to factual findings)
simply had no bearing on our review of Salguero Sosa’s
2 For purposes of this concurrence, I will assume arguendo that our court
has “consistently held that we review a denial of asylum based on a
failure to show past persecution for substantial evidence.” But in reality,
whether the agency’s past-persecution determination is reviewed de
novo or for substantial evidence is the subject of an intra-circuit split.
See, e.g., Flores Molina v. Garland, 37 F.4th 626, 633 n.2 (9th Cir.
2022). That intra-circuit split has no bearing on our decision, as we did
not actually review the agency’s past-persecution determination—just
the legal framework the agency used to make that determination.

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SALGUERO SOSA V. G ARLAND 11
contention that the agency applied an incorrect legal
framework.
A. Ninth Circuit Precedent Requires De Novo
Review
Our court (and every other federal court) reviews de
novo whether an administrative agency committed legal
error.
Let’s return to basic principles. Broadly speaking,
petitioners assert two types of substantive errors following
the denial of asylum and withholding of removal. The first
is legal error: The BIA was mistaken in what it required the
petitioner to show. The second is factual error: The BIA was
mistaken in concluding that the petitioner failed to make that
showing. Different standards of review attend to these
different types of error. “We review legal questions raised
in a petition for review . . . de novo and any factual findings
for substantial evidence.” Tomczyk v. Garland, 25 F.4th
638, 643 (9th Cir. 2022) (en banc).
Here, both on appeal to the BIA and in his petition for
review before our court, Salguero Sosa contended that the IJ
erred in interpreting “past persecution” to require one of his
past incidents to itself constitute persecution. See Salguero
Sosa, 55 F.4th at 1218, 1220. In other words, he contended
that the agency was mistaken in what it required him to show
to earn relief. Therefore, we applied de novo review.
In doing so, we followed the approach our court has
taken with closely analogous contentions. Consider the two
examples we offered (id. at 1219):
Nexus Framework. Asylum requires a protected ground
be “at least one central reason” for persecution, while
withholding requires that a protected ground be “a reason”

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for persecution. Compare 8 U.S.C. § 1158(b)(1)(B)(i)
(asylum), with id. § 1231(b)(3)(C) (withholding).
Withholding’s “a reason” standard includes “weaker
motives.” Garcia v. Wilkinson, 988 F.3d 1136, 1146 (9th
Cir. 2021) (citation omitted). In Garcia, the petitioner
“contend[ed] that the BIA applied an erroneous legal
standard to its nexus analysis for her withholding of removal
claim” by applying the heightened asylum standard. Id. We
explained that “[w]e review de novo whether the BIA
applied the wrong legal standard.” Id. Applying de novo
review, we “agree[d]” with the petitioner and “remand[ed] .
. . for the BIA to consider whether [the petitioner] is eligible
for withholding of removal under the proper ‘a reason’
standard.” Id. at 1146–48.
Government-Acquiescence Framework. Article I of the
Convention Against Torture (CAT) requires an applicant to
show his or her torture would occur with “the consent or
acquiescence” of a government official. A previous iteration
of the CAT implementing regulations interpreted
“acquiescence” to require the government’s actual
knowledge of, and consent to, an applicant’s torture. Zheng
v. Ashcroft, 332 F.3d 1186, 1194 (9th Cir. 2003). We
explained that “[w]e review de novo the BIA’s interpretation
of purely legal questions,” subject to applicable deference
doctrines like Chevron. Id. at 1193–94. Applying de novo
review, we found that the BIA’s interpretation contradicted
the “clear intent” of CAT. Id. at 1194. We did not “review
the evidence under the correct standard of acquiescence to
determine if substantial evidence supports the BIA’s
conclusion” and instead “remand[ed] to the BIA to give [it]
the first opportunity to apply the correct standard.” Id. at
1196–97.

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SALGUERO SOSA V. G ARLAND 13
The dissent would have us evaluate an alleged
cumulative-effect error “under the existing substantial
evidence standard.” However, taking the dissent’s approach
would make the cumulative-effect requirement “an outlier in
immigration and administrative law.” Salguero Sosa, 55
F.4th at 1219. In Garcia and Zheng, we remanded as soon
as we determined there was legal error. The dissent would
foreclose that approach here. In the dissent’s view, it is not
enough that a petitioner shows that the BIA applied the
wrong legal framework, the petitioner must also show that
the record compels the conclusion that he or she suffered
past persecution. But it offers no good reason why our court
should treat a cumulative-effect error “differently than we
treat other . . . assertion[s] of legal error.” Id.
First, the dissent argues that we cannot rely on the
above Garcia and Zheng analogies because each involved a
“an interpretation of Congressional intent.” While our rule
is rooted in the language of the asylum and withholding
regulations (supra section I), such a regulation-versus-
statute distinction is immaterial: We interpret both de novo,
applying Chevron deference (for statutes) and Kisor
deference (for regulations) if applicable.3
3 The dissent also asserts in one sentence that we imposed a “new,
judicially imposed procedural rule.” It does not explain this allegation,
but it seems to suggest that our decision violates the Supreme Court’s
instruction that we are “‘generally not free to impose’ additional judge-
made procedural requirements on agencies.” Garland v. Ming Dai, 141
S. Ct. 1669, 1677 (2021) (quoting Vt. Yankee Nuclear Power Corp. v.
Nat. Res. Def. Council, Inc., 435 U.S. 519, 524 (1978)). But we are not
imposing a judge-made procedural requirement—like the deemed-true-
or-credible rule from Ming Dai, which required IJs to make explicit
credibility findings. See 141 S. Ct. at 1677. As explained, cumulative-
effect review is an interpretation of what substantive showing the

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Second, the dissent objects that the cases we cite for the
cumulative-effect requirement are cases in which “the IJ did
consider cumulative effect[s]” and we reviewed the agency’s
no-past-persecution finding for substantial evidence. We
recognized as much in our opinion:
Korablina, for instance, took a textbook rule-
application-conclusion approach to the issue
of whether the petitioner had suffered past
persecution. We first described the
governing legal rule, Korablina, 158 F.3d at
1044 (“Persecution may be found by
cumulative, specific instances of violence
and harassment . . . .”), and then applied that
rule to Korablina’s testimony, id. at 1044–45
(“Cumulatively, the experiences suffered by
Korablina compel the conclusion that she
suffered persecution.”). The bottom-line
factual conclusion (that substantial evidence
did not support the BIA’s finding of no past
persecution) necessarily resulted from the
application of the legal rule we had stated
(that incidents must be evaluated
cumulatively).
Salguero Sosa, 55 F.4th at 1219. As we explained, there is
nothing untoward with discerning a legal rule from a case
that is ultimately decided on substantial-evidence grounds.
When we review the BIA’s denial of relief, we (1) assess an
applicant’s factual showing against (2) the statutory
regulatory “past persecution” language requires. This is heartland say-
what-the-law-is territory for the federal judiciary, not a Ming Dai /
Vermont Yankee problem.

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SALGUERO SOSA V. G ARLAND 15
requirements for relief. When we do (1), we necessarily
must explain (2). Our court’s prior statements about
cumulative-effect review are not somehow rendered dicta
because they preceded substantial-evidence conclusions.
Instead, those statements—spread across double-digit cases
and over twenty-five years—are better understood as simply
meaning what they say: Past-persecution analysis requires
cumulative-effect review.
References to cumulative-effect review will naturally
come in two different types of decisions. In the rare instance
like this case where the agency failed to conduct cumulative-
effect review, we explain what the agency was obligated to
do, find legal error, and remand for reconsideration. In
typical cases like those the dissent helpfully collects where
the agency properly applied cumulative-effect review, we
state the cumulative-effect rule only as a backdrop against
which to deferentially evaluate the agency’s past-
persecution finding. In either situation, the cumulative-
effect rule constitutes a governing legal framework, not
merely an element of the agency’s factual analysis. A
contention that the agency departed from that framework is
an assertion of a legal error that we review de novo.
B. Supreme Court Precedent Requires Remand
Supreme Court precedent regarding the ordinary-remand
rule requires that, after detecting a cumulative-effect error,
we remand the case back to the agency. In INS v. Ventura,
537 U.S. 12 (2002) (per curiam), the Supreme Court
summarily reversed our court’s decision in which we found
error (regarding nexus) and, instead of remanding, went on
to reach an issue the BIA had not considered (changed
circumstances). Id. at 13–14. The Supreme Court faulted
our court for not “respect[ing] the BIA’s role as fact-finder”

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and held that, “[g]enerally speaking,” a court of appeals
should remand after finding error in order to “giv[e] the BIA
the opportunity to address the matter in the first instance in
light of its own expertise.” Id. at 16–17; see also Gonzales
v. Thomas, 547 U.S. 183, 183–85 (2006) (per curiam) (once
again summarily reversing our court for violating the
ordinary-remand rule).
As the “ordinary” modifier suggests, the ordinary-
remand rule admits an exception—albeit one that applies
“only in narrow circumstances.” Calcutt v. FDIC, 143 S. Ct.
1317, 1321 (2023) (per curiam). Our court need not remand
“where ‘[t]here is not the slightest uncertainty as to the
outcome’ of the agency’s proceedings on remand” after the
error identified by our court has been corrected. Id. at 1321
(quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767
n.6 (1969)).
The dissent relies on Chand v. INS, 222 F.3d 1066 (9th
Cir. 2000) to argue that, contrary to the ordinary-remand
rule, our court should “review[] [a] past persecution finding
for substantial evidence even when explicitly recognizing
the agency’s failure to analyze cumulative effect[s].” In
doing so, the dissent tries to undermine the ordinary-remand
rule’s general application by pointing to a case that fell
within that rule’s narrow exception.
In Chand, the petitioner was an ethnic Indian and
practicing Hindu who lived in Fiji during a coup that brought
to power ethnic-Fijian nationalists. See id. at 1069-70. In
the aftermath of the coup, Chand was beaten three times by
the Fijian military, had his home raided and forcibly seized
by the Fijian military, and had the Hindu temple he attended
burned to the ground. See id. at 1073–76 & n.14. The
agency found no past persecution, and Chand filed a petition

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SALGUERO SOSA V. G ARLAND 17
for review. Our court recognized that “the BIA made no
attempt to assess Chand’s claim cumulatively.” Id. at 1074.
But given the severity of the harm that Chand had suffered,
our court concluded that “[t]here is no doubt” that he
suffered past persecution—rendering remand back to the
agency unnecessary. Id. at 1076 (emphasis added); accord
Calcutt, 143 S. Ct. at 1321 (“not the slightest uncertainty”).
Here, we were not presented with an overwhelming
record comparable to that in Chand. So, rather than overstep
our court’s role, we respected the agency’s role as factfinder
and remanded for it to conduct the past-persecution analysis
in the first instance while applying the correct legal
framework.
C. Sister-Circuit Precedent Supports Our Decision
Given that our decision is dictated in large part by
Supreme Court precedent regarding the ordinary-remand
rule, our decision unsurprisingly has the support of our sister
circuits. Each circuit that has been presented with the
argument that the agency failed to conduct cumulative-effect
review has remanded after finding such a failure on the
agency’s part. They have not, as the dissent would have it,
looked past the agency’s legal error to apply substantial-
evidence review to the agency’s bottom-line factual finding
that was made pursuant to an incorrect legal framework.
The dissent argues that our sister circuits’ precedent is
otherwise, and on this point in particular, “I would my horse
had the speed of” the dissent’s pen. William Shakespeare,
Much Ado About Nothing, act I, sc. 1, ls. 139–40. In just one
brief footnote, the dissent asserts that “[m]ost of our sister
circuits also appear to evaluate cumulative effect[s] as part
of the substantial evidence standard.” But even a cursory
read of the dissent’s cited authorities dispels that

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“appear[ance]” and instead shows that our decision has the
unbroken support of our sister circuits. Let’s walk through
each of the decisions the dissent cites—and those it
conveniently omits:
Begin with the sister-circuit decisions that the dissent
chose not to include in its footnote. The Second, Fifth, and
Seventh Circuits apply de novo review to a petitioner’s
contention that the agency failed to conduct cumulative-
effect review and then remand if they determine such an
error occurred. The Second Circuit faulted the agency for
“the IJ’s apparent (and erroneous) technique of addressing
the severity of each event in isolation, without considering
its cumulative significance,” and “remand[ed] to the BIA . .
. . [to] reconsider the [petitioners’] application in light of the
foregoing.” Poradisova v. Gonzales, 420 F.3d 70, 79 (2d
Cir. 2005). The Fifth Circuit considered petitioner’s
“conten[tion] that the IJ committed legal error by not
considering the incidents of harm in the aggregate,” but
denied the petition for review because nothing in “the IJ’s
decision establishe[d] that the IJ analyzed each incident of
harm in isolation.” Eduard v. Ashcroft, 379 F.3d 182, 188
(5th Cir. 2004) (emphasis added). The Seventh Circuit
squarely held: “[T]he BIA did not employ the correct
standard in evaluating [the petitioner’s] claims. The proper
course of action in these circumstances is not for us to decide
the question of past persecution in the first instance, but to
allow the BIA to re-evaluate the evidence under the proper
standard.” Kholyavskiy v. Mukasey, 540 F.3d 555, 571 (7th
Cir. 2008). So, three decisions left out of the dissent’s
footnote all support the approach we took here.
Now, turn to the decisions on which the dissent relies.
Like the above, one decision conducts de novo review and
remands for the agency to reconsider its past-persecution

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SALGUERO SOSA V. G ARLAND 19
analysis. The remaining decisions are simply irrelevant to
the issue presented in this case: What standard of review
applies when a petitioner contends that the agency failed to
conduct cumulative-effect review?
Mislabeled De Novo Decision. The First Circuit
decision cited by the dissent uses substantial-evidence
wording, but it ultimately remanded the case to the BIA to
“determine whether the harms [the petitioner] suffered . . .
meet the standard of past persecution, viewed in the
aggregate.” Ordonez-Quino v. Holder, 760 F.3d 80, 92 (1st
Cir. 2014). How else is one to understand this holding
except that the First Circuit found legal error in the agency’s
analysis? In substantial-evidence reversals, the factual issue
in question has been definitively established in the
petitioner’s favor based on a court of appeals’ determination
that “any reasonable adjudicator would be compelled to
conclude” that the agency’s finding was erroneous. 8
U.S.C § 1252(b)(4)(B). It would be nonsensical for a court
of appeals to remand a case back to the agency for it to
reconsider the factual finding that the court already
definitively settled. Given this, the First Circuit’s decision
can be read only as an imprecisely articulated application of
de novo review followed by a remand.
Irrelevant Category of Decisions #1. The Third, Fourth,
Sixth, and Eighth Circuit decisions cited by the dissent
involve petitioners who argued not that the agency failed to
conduct cumulative-effect review but that the agency failed
to consider a whole category of potentially probative
evidence. Fei Mei Cheng v. Att’y Gen., 623 F.3d 175, 193
(3d Cir. 2010) (“the Board failed to consider some of the
most serious threats levelled at [the petitioner]”); Baharon v.
Holder, 588 F.3d 228, 233 (4th Cir. 2009) (“the IJ and BIA
were not then free to base their decision on only isolated

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20 SALGUERO SOSA V. G ARLAND
snippets of that record while disregarding the rest”); Haider
v. Holder, 595 F.3d 276, 288 (6th Cir. 2010) (the IJ
“neglected to discuss in his analysis section the repeated
stops and searches, the theft of merchandise, or [a] variety of
threats”); Ngengwe v. Mukasey, 543 F.3d 1029, 1037 (8th
Cir. 2008) (“[t]he IJ did not consider . . . that [the
petitioner’s] in-laws confiscated all of her property, and
threatened to take her children”). A separate Due Process-
based doctrine, which our court already recognizes, governs
how to review such an argument. See Cole v. Holder, 659
F.3d 762, 771–72 (9th Cir. 2011) (“[W]here there is any
indication that the BIA did not consider all of the evidence
before it, a catchall phrase does not suffice, and the decision
cannot stand. Such indications include misstating the record
and failing to mention highly probative or potentially
dispositive evidence.”).
Irrelevant Category of Decisions #2. The cited Tenth
and Eleventh Circuit decisions do not involve petitioners
who contended that the agency failed to conduct cumulative-
effect review. Instead, when reviewing agency decisions
that correctly conducted cumulative-effect review, those
decisions set forth a cumulative-effect rule statement and
then evaluated the agency’s no-past-persecution factual
finding against that rule. See Ritonga v. Holder, 633 F.3d
971, 975–76 (10th Cir. 2011) (“[w]e do not look at each
incident in isolation, but instead consider them collectively,
because the cumulative effects of multiple incidents may
constitute persecution,” and “[a]fter reviewing the record,
we conclude the BIA’s determination . . . is supported by
substantial evidence”); Delgado v. Att’y Gen., 487 F.3d 855,
860–62 (11th Cir. 2007) (per curiam) (“[i]n determining
whether an alien has suffered past persecution, the IJ must
consider the cumulative effects of the incidents,” and “based

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SALGUERO SOSA V. G ARLAND 21
on the cumulative effect of the two attacks, the continued
threatening calls, and the incidents involving the car,
Delgado and Ramon have met their burden”). As explained,
this category of cases does not in anyway undermine our
application of de novo review when presented with a
petitioner who does contend that the BIA failed to conduct
cumulative-effect review. Supra section I.A.
Thus, our sister circuits’ decisions say the opposite of
what the dissent suggests they “appear[]” to say. The four
circuits that have considered cases similar to this one have
taken the same approach: de novo review of the petitioner’s
contention of legal error, followed by a remand if such an
error is found.
III.The Dissent’s Fall-Back Arguments Are Inaccurate
Precedent requires cumulative-effect review (supra
section I) and that we subject contentions of cumulative-
effect error to de novo review (supra section II). Unable to
dislodge this precedent, the dissent makes two fallback
arguments: that our holding was unnecessary to the
disposition, and that it will have negative consequences. The
record rebuts both contentions.
A. Our Cumulative-Effect Holding Was Necessary
to the Disposition
Simply put, we needed to explain that remand was
required because the government argued that Salguero Sosa
failed to identify an error warranting remand. Before our
panel, the government argued that remand was inappropriate
because, in its view, cumulative-effect review is not a legal
requirement but is instead just a framing device a petitioner
can use when making a substantial-evidence argument. See
Salguero Sosa, 55 F.4th at 1219. By arguing that we “did

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22 SALGUERO SOSA V. G ARLAND
not even need to discuss legal error” and that our cumulative-
effect holding was “totally unnecessary to the disposition of
the case,” Judge Callahan’s dissent simply overlooks the
arguments with which we were presented in this case.
Indeed, it was not until its petition for panel rehearing
only that the government made the remand-accepting
argument on which the dissent now piggy-backs. By doing
so, the government took a heads-I-win, tails-you-lose
approach to this case. At the panel stage, the government
argued: The court should not remand because cumulative-
effect review is not a legal requirement. After we rejected
that argument, the government then argued at the panel-
rehearing stage: The court’s discussion of cumulative-effect
review being a legal requirement was unnecessary—it
should just remand. At a minimum, the government
forfeited this remand-accepting argument by raising it for the
first time in its petition for panel rehearing. See Picazo v.
Alameida, 366 F.3d 971, 971–72 (9th Cir. 2004) (order).
B. Our Decision’s Impact is Limited
Cumulative-effect review has been a part of past-
persecution analysis for a quarter century. All we did in this
case was remand for further proceedings in the rare instance
where the agency deviated from that precedent and practice.
Nonetheless, the dissent contends that our decision will have
“[c]onsiderable [n]egative [i]mplications” for the BIA and
our court.
First, the dissent argues that our opinion “offers no
guidance for the agency on how to conduct [cumulative-
effect] review, or how to indicate it has done so.” But history
and the dissent itself indicate that the BIA is perfectly
capable of conducting cumulative-effect review. The
cumulative-effect requirement goes back to 1998 (supra

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SALGUERO SOSA V. G ARLAND 23
section I), and the dissent helpfully overviews “multiple
examples of where the cumulative effect [of various
incidents] provided the basis for a finding of past
persecution.” As the dissent notes: “[I]n Korablina, the IJ
did consider cumulative effect[s] when evaluating
persecution.” Similarly, the dissent observes that in Guo,
“the agency actually performed a cumulative-effect
analysis.” In the same breadth that the dissent paints
cumulative-effect review as an impossible-to-understand
requirement, it points to several cases in which the agency
applied that requirement without any issue.
Moreover, our panel opinion has been on the books now
for over half a year—in that time, there has been just one
cumulative-effect remand. See Feh v. Garland, 2023 WL
3243987, at *2 (9th Cir. May 4, 2023) (unpublished).
Finally, as we emphasized, a petitioner must exhaust a
cumulative-effect argument in his or her appeal to the BIA,
which gives the BIA an opportunity to correct any defects in
the IJ’s analysis or, if it chooses, to affirm on alternative
grounds (e.g., a lack of nexus or changed country
conditions). See Salguero Sosa, 55 F.4th at 1219 n.1.
Second, the dissent laments that we do not address how
to resolve a case where “the agency makes some sort of
statement that cumulative effects were considered,” and asks
“will that [statement] be controlling, or will we be allowed
(or even compelled) to look behind that conclusory
statement?” It is getting difficult to keep track of whether,
in the dissent’s view, we said too much or too little.
Compare Dissent section I.B. (criticizing the majority for
reaching an issue allegedly “unnecessary to the disposition
of this case”), with Dissent section I.C (criticizing the
majority for not providing “guidance” on issues not
presented). In this case, it was clear from the face of the IJ’s

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24 SALGUERO SOSA V. G ARLAND
decision that the agency did not conduct cumulative-effect
review, as “the IJ expressly stated that he ‘evaluate[d] the
nature of each claim the respondent presents in support’ of
past persecution and concluded that ‘in every instance what
the respondent may have experienced was nothing greater
than discrimination focused on him.’” Salguero Sosa, 55
F.4th at 1220. Had we been presented with the situation the
dissent postulates, there are analogous doctrines on which
we could have drawn. See, e.g., Cole, 659 F.3d at 771–72
(explaining that, where a petitioner argues the agency failed
to consider all the relevant evidence, we will look past “a
catchall phrase” if the agency “misstat[ed] the record” or
“fail[ed] to mention highly probative or potentially
dispositive evidence”). Because the dissent’s hypothetical
was far afield from this case, we thought it best to leave the
task of answering that question to our capable colleagues on
future panels who will have the benefit of briefing on the
subject.
Third, the dissent asserts that we leave it unclear whether
our opinion “mean[s] that on appeal we must apply two
standards of review—substantial evidence for the agency’s
factual determination but de novo review of any allegation
the agency did not consider the cumulative effects of the
petitioner’s allegations.” Lest there be any confusion, the
answer is: yes. It is black-letter law that “[w]e review legal
questions raised in a petition for review . . . de novo and any
factual findings for substantial evidence.” Tomczyk, 25
F.4th at 643.
CONCLUSION
Our decision followed precedent from the Supreme
Court, our court, our sister circuits, and the BIA. We
subjected a contention of legal error to de novo review and

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SALGUERO SOSA V. G ARLAND 25
then remanded the case back to the agency after finding that
such an error occurred—a run-of-the-mill
immigration/administrative law decision. Following a failed
sua sponte call that left a majority of our court unpersuaded,
my dissenting colleague simply makes much ado about
nothing.
CALLAHAN, Circuit Judge, joined by IKUTA, NELSON,
BUMATAY, and VANDYKE, Circuit Judges, dissenting
from the denial of rehearing en banc:
We have consistently held that we review a denial of
asylum based on a failure to show past persecution for
substantial evidence. We must affirm unless our review of
the record compels a finding contrary to the agency’s
position. The majority opinion in this case seeks to
unnecessarily create a new requirement for the BIA based on
a misreading of our prior opinions and without consideration
of the practical consequences.
Instead of simply holding that remand was required
because the BIA failed to consider an argument Petitioner
raised on appeal, the majority creates a new rule out of whole
cloth: “when determining whether a petitioner’s past
mistreatment rises to the level of persecution, the BIA must
apply cumulative-effect review.” Sosa v. Garland, 55 F.4th
1213, 1218 (9th Cir. 2022) (emphasis added). It further
holds that the “BIA’s purported failure to do so is a legal
issue we decide de novo.” Id. at 1219.
While our prior opinions recognize that past persecution
may be found based on cumulative evidence, we have never
held that the BIA must apply a cumulative-effect review.

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26 SALGUERO SOSA V. G ARLAND
This error is unnecessary because (1) the case could have
been remanded on the sole basis of the BIA’s failure to
address an argument raised on appeal and (2) where the BIA
fails to consider the cumulative effect of alleged incidents of
past persecution, relief is still available under the existing
substantial evidence standard. Moreover, as noted by Judge
Wu in his partial concurrence, the opinion provides no
guidance on how such a new, mandatory cumulative-effect
review is to be carried out. Id. at 1225-26.
I.
The majority opinion breaks new ground beyond our
precedent by framing cumulative-effect review as a legal
error instead of evaluating it under the proper substantial
evidence review, thereby creating a new, judicially imposed
procedural rule governing the analysis of asylum
applications.
A. The Majority Opinion Incorrectly Applies Our
Precedent and Creates a New Legal Requirement
For Past Persecution Analysis.
I have no dispute with remanding the case on the basis
of the BIA’s failure to address an argument Sosa raised on
appeal. Nor do I dispute the proposition that the cumulative
effect of multiple past incidents may support or undercut the
agency’s determination of past persecution. See Singh v.
INS, 94 F.3d 1353, 1358 (9th Cir. 1996) (“[T]he cumulative
effect of several incidents may constitute persecution.”).
Indeed, the majority opinion cites multiple examples of
where the cumulative effect provided the basis for a finding
of past persecution. See Sosa, 55 F.4th at 1218 (collecting
cases). However, none of those cases supports the
proposition that the BIA’s analysis fails as a matter of law

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SALGUERO SOSA V. G ARLAND 27
when it does not consider the cumulative effect; instead,
those opinions are framed in terms of our well-established
substantial evidence review.
A review of the two principal cases presented by the
opinion confirms this point. In Korablina v. INS, petitioner’s
evidence of past persecution included a physical attack, her
witnessing attacks against her boss who eventually was
“disappeared,” threatening phone calls, and the ransacking
of her workplace. 158 F.3d 1038, 1044–45 (9th Cir. 1998).
The IJ determined that, when considered cumulatively,
petitioner’s experience did not amount to persecution. Id. at
1044. We recited the standard of review for upholding BIA
determinations, specifically noting the BIA determination
must be upheld unless “evidence presented by [the alien]
was such that a reasonable factfinder would have to conclude
the requisite fear of persecution existed” and that the “alien
must demonstrate that ‘the record compels the conclusion’
that she has a well-founded fear of persecution.” Id. at 1041,
1043. In applying that standard, we found that “the credible
evidence compels both a finding of past persecution and a
well-founded fear of future persecution” and noted that “the
IJ’s determination and the BIA’s affirmance that Korablina
experienced merely discrimination are not ‘supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.’” Id. at 1041, 1045.
Nothing in Korablina indicates a rule that failure to
evaluate cumulative impacts constitutes legal error—instead
the case shows that failure to properly consider cumulative
effect can result in an agency finding regarding persecution
that is not supported by substantial evidence. Indeed, in
Korablina the IJ did consider cumulative effect when
evaluating persecution. Id. at 1044 (“However, the IJ found,
citing Ghaly, that her numerous experiences did not amount

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28 SALGUERO SOSA V. G ARLAND
to persecution.”). How can a case in which a cumulative-
effect analysis was undertaken and then overturned for lack
of substantial evidence support the majority opinion’s
holding that failure to evaluate cumulative effect constitutes
legal error? The majority’s own description of Korablina
notes “we held that the BIA’s denial of relief lacked
substantial evidence” because of the BIA’s failure to
evaluate the cumulative effect of multiple instances of
alleged persecution. 55 F.4th at 1218 (emphasis added).
Thus, the majority opinion itself recognizes that Korablina
did not address an error of law, but a lack of substantial
evidence. Id.
Guo v. Sessions similarly lacks any requirement of de
novo review when looking at an agency’s cumulative-effect
analysis. 897 F.3d 1208 (9th Cir. 2018). As with Korablina,
the majority opinion inexplicably uses a case in which the
agency actually performed a cumulative-effect analysis to
bootstrap its holding that a failure to perform such an
analysis constitutes legal error. We held in Guo there was a
lack of substantial evidence supporting the agency’s denial
of relief. Id. at 1213. Petitioner there presented evidence of
a police beating, a short detention, and a weekly reporting
requirement in support of his past persecution. Id. at 1211.
The agency found those actions did not amount to
persecution based on a comparison with other cases
discussing similar situations. We disagreed, stating that the
record as a whole compelled the conclusion that Petitioner
suffered past religious persecution. Id. at 1217. There was
no discussion of error by the BIA for failing to evaluate the
cumulative effect of multiple instances of alleged
persecution.
In its discussion of the “rule” purportedly set forth in
Korablina and Guo, the majority undermines its own

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SALGUERO SOSA V. G ARLAND 29
position. First, it describes the governing legal rule as
“[p]ersecution may be found by cumulative, specific
instances of violence and harassment . . .” Sosa, 55 F.4th at
1219. (citing Korablina, emphasis added). Then, in the
same paragraph, it describes the legal rule as “incidents must
be evaluated cumulatively.” Id. (emphasis added). “May be
found” and “must be evaluated” are not equivalent—the first
falls within our traditional substantial evidence framework
but the latter misstates our precedent to create a new rule of
law in the asylum review process.
While these cases (and others cited by the majority
opinion1) all stand for the proposition that cumulative effect
can be used to support a finding of past persecution (i.e., it
may be considered), none of them contains anything close to
a statement that a failure to evaluate cumulative effect
constitutes a legal error (i.e., it must be considered). Indeed,
the majority cites no case mandating that we view a failure
to consider cumulative effect in the agency’s persecution
analysis as a legal error. Rather, in other cases not discussed
by the opinion, we have reviewed the past persecution
finding for substantial evidence even when explicitly
recognizing the agency’s failure to analyze cumulative
1 See Singh v. INS, 94 F.3d 1353, 1358–59, 1360 (9th Cir. 1996) (noting
“the cumulative effect of several incidents may constitute persecution”
and lack discussion of any failure to include cumulative-effect analysis);
Sharma v. Garland, 9 F.4th 1052, 1057 (9th Cir. 2021) (finding under
substantial evidence review that the record did not compel a conclusion
of persecution, even when considered cumulatively); Ahmed v. Keisler,
504 F.3d 1183, 1194 (9th Cir. 2007) (stating cumulative effect of harm
may be considered in determining whether agency decision is supported
by substantial evidence); Krotova v. Gonzales, 416 F.3d 1080 (9th Cir.
2005) (stated cumulative effect of several incidents may constitute
persecution and evaluated if agency decision was supported by
substantial evidence).

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30 SALGUERO SOSA V. G ARLAND
effect. See, e.g., Chand v. INS, 222 F.3d 1066, 1074–75 (9th
Cir. 2000) (where despite noting “the BIA made no attempt
to assess [petitioner’s] claim cumulatively,” we did not
remand to the agency for a legal error but instead found
under a substantial evidence review that the record
compelled a finding of past persecution).2
Evaluation of the agency’s analysis of cumulative effect
should remain a part of our substantial evidence review,
where a lack of analysis of cumulative effects may indicate
that the agency’s decision is not supported by substantial
evidence in the record. Cumulative-effect analysis can
support a finding of persecution, but it is not an independent
legal requirement imposed on the agency.
B. The Majority Reaches an Issue That Is
Unnecessary to the Disposition of This Case.
As recognized by the majority opinion and argued by the
government’s petition for panel rehearing, Sosa raised a
2 Most of our sister circuits also appear to evaluate cumulative effect as
part of the substantial evidence standard. See Ordonez-Quino v. Holder,
760 F.3d 80, 92 (1st Cir. 2014) (determining BIA decision that failed to
address cumulative-effect was not supported by substantial evidence in
the record); Fei Mei Cheng v. Attorney General of the United States, 623
F.3d 175, 195 (3d Cir. 2010) (same); Baharon v. Holder, 588 F.3d 228,
231, 233 (4th Cir. 2009) (BIA failure to address evidence in the record
compelled the court to reverse BIA determination on past persecution);
Haider v. Holder, 595 F.3d 276, 287–88 (6th Cir. 2010) (IJ failure to
consider relevant facts in the aggregate led to holding that past
persecution finding was not supported by substantial evidence);
Ngengwe v. Mukasey, 543 F.3d 1029, 1037 (8th Cir. 2008) (remanding
a case to the BIA under substantial evidence review); Ritonga v. Holder,
633 F.3d 971, 976 (10th Cir. 2011) (evaluating cumulative effect as part
of substantial evidence review); Delgado v. U.S. Attorney General, 487
F.3d 855, 861-62 (11th Cir. 2007) (same).

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SALGUERO SOSA V. G ARLAND 31
cumulative-effect review argument on appeal and the BIA
failed to address it. See Sosa, 55 F.4th at 1220. This is
sufficient reason to remand a case to the BIA. Thus, the
majority did not even need to discuss legal error for failure
to perform cumulative-effect review or suggest any new rule
of law; the holding is totally unnecessary to the disposition
of this case.
Moreover, the holding is unnecessary to our review of
asylum cases generally. We have a long-standing standard
of substantial evidence review and cumulative effect is
properly considered within that framework. In instances
where the agency has performed a cumulative-effect review
and comes to a conclusion that is not supported by the
record, we can find (and have found) that the agency’s
decision is in error. The same applies if the agency fails to
consider cumulative effect altogether, or only considers
some past instances but not others.
The majority opinion seems concerned that we would
only be able to reverse an agency decision when the record
compels a contrary conclusion. But, that is precisely what
Congress has deemed our review to be—whether the
agency’s decision is supported by substantial evidence.
And, that is exactly the way our cases, which the majority
cites, deal with this issue. We should not attempt to find a
work around of this Congressionally-mandated deferential
standard for review of agency decision-making.
The majority opinion, however, analogizes its approach
to reviewing whether the agency applied an incorrect nexus
framework, citing Garcia v. Wilkinson, 988 F.3d 1136, 1146
(9th Cir. 2021), or government acquiescence framework,
citing Zheng v. Ashcroft, 332 F.3d 1186, 1194–97 (9th Cir.
2003). Sosa, 55 F.4th at 1219. But our precedent (as well

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32 SALGUERO SOSA V. G ARLAND
as cases from the Supreme Court) clearly states application
of the wrong nexus standard to be a legal error, based on
interpretation of the immigration statutes. See Garcia, 988
F.3d at 1146–47. Zheng similarly turns on an interpretation
of Congressional intent and the regulations implementing
the Convention Against Torture. 322 F.3d at 1194–97.
Here, there is no such precedent, and the majority makes no
argument that the immigration statutes or regulations
mandate the BIA consider cumulative-effect review in any
particular way.
C. The Majority Opinion Has Considerable Negative
Implications Which Are Not Addressed.
In addition to erroneously creating a new legal
requirement for review of asylum applications when it was
unnecessary to do so, the panel majority offers no guidance
for the agency on how to conduct such a review, or how to
indicate it has done so. As Judge Wu asks in his partial
concurrence, what are the practical consequences of this new
legal requirement and how shall it be implemented? See
Sosa, 55 F.4th at 1225–26 (Wu, J., partial concurrence).
Does it mean that in each order denying asylum, the IJ must
add the sentence including some sort of magic words to the
effect of “the cumulative effect of petitioner’s alleged harms
do not rise to the level of persecution?” Or if some particular
analysis is required, what does it entail? Does it mean that
on appeal we must apply two standards of review—
substantial evidence for the agency’s factual determination
but de novo review of any allegation the agency did not
consider the cumulative effect of the petitioner’s
allegations? Moreover, if the agency makes some sort of
statement that the cumulative effect was considered, will that
be controlling, or will we be allowed (or even compelled) to
look behind that conclusory statement?

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SALGUERO SOSA V. G ARLAND 33
II.
The majority opinion with its lack of direction further
muddies the already murky waters of immigration law,
creating confusion for immigration judges, petitioners, and
practitioners alike and likely leading to inconsistent
applications. All for something that is unnecessary and not
supported by our precedent—our well-established standard
of substantial evidence review is what was required and all
that needed to be applied here.
For these reasons, I dissent from the denial of rehearing
en banc.

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