You were a police officer back home. A gang leader told you to quit and leave the country or die. You kept working anyway, they shot at you, and only after they threatened your brother did you finally resign and flee. On August 13, 2026, the Ninth Circuit held that none of that counts toward your asylum claim — and two of the three judges who decided the case said, in writing, that the rule they were applying doesn’t make sense.
What the court actually held
The case is Gonzalez-Argueta v. Blanche, No. 25-557 (9th Cir. Aug. 13, 2026). Miguel Gonzalez-Argueta was a police officer in El Salvador. An MS-13 leader known as “Killer” told him directly to quit the force and leave the country or be killed. Gonzalez-Argueta stayed on the job. Killer’s crew later ran his vehicle off the road and opened fire in a shootout with the soldiers Gonzalez-Argueta was patrolling with. Days after that, three men stopped his brother, driving Gonzalez-Argueta’s car, and delivered a final warning: next time, he doesn’t live. Only then did Gonzalez-Argueta resign and flee to the United States.
He applied for asylum and withholding of removal based on his membership in the particular social group of former Salvadoran police officers. The immigration judge found him credible on every fact and denied relief anyway. The BIA affirmed. The Ninth Circuit denied the petition.
The reason is a rule from Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011), and Sanjaa v. Sessions, 863 F.3d 1161, 1165 (9th Cir. 2017): when a petitioner’s claimed particular social group is “former [police officer],” the court considers only the persecution that happened after he left that role. Every threat, the shootout, the message carried by his brother — all of it happened while Gonzalez-Argueta was still on the force, so under Ayala and Sanjaa none of it counts toward the nexus between the harm and his status as a former officer. Because he and his family were never touched after he actually resigned, the nexus failed.
Why this matters even though the panel thinks the rule is wrong
Judge Bea wrote the majority opinion denying the petition, then wrote a separate concurrence — joined by Judge Desai — calling the result illogical. His point: requiring proof of persecution that specifically post-dates resignation creates “a perverse incentive.” To win, Gonzalez-Argueta would have needed to quit the force and then wait for Killer to make good on a threat that already told him, explicitly, to quit and leave. Judge Desai’s separate concurrence goes further, urging the full Ninth Circuit to take the case en banc and adopt a test that actually accounts for the fact that a former-officer social group is, by definition, targeted for what its members did while still serving.
None of that changes the outcome here, and it does not change the law for a case in your office tomorrow. Ayala and Sanjaa remain controlling. What it does is put a target on the rule. Three sitting Ninth Circuit judges have now said in a published opinion that this precedent produces an absurd result, and one has expressly called for en banc review. That is not dicta you can ignore — it is a roadmap.
What this means for a pending or future case
If your client’s asylum claim rests on former status — former police officer, former soldier, former informant, former party official, anything with “former” in front of it — go back through the file and separate the evidence into two piles: what happened while your client still held the role, and what happened after.
The Ayala/Sanjaa rule means the first pile, standing alone, does not establish nexus, no matter how severe. A shooting, a kidnapping attempt, an assassination list with your client’s name on it — if it happened before departure, current Ninth Circuit law treats it as persecution on account of the job, not the former-job status, and disregards it for nexus purposes.
What you need is evidence in the second pile: a threat received after your client left the position, a message relayed to family after departure, information from someone still in the home country confirming your client is still being sought because he used to be a police officer or soldier. If that evidence is thin, that thinness is the whole case, and it needs to be developed before the merits hearing, not discovered at oral argument on a petition for review.
Separately, preserve the argument. If your case is anywhere before final adjudication — at the immigration judge level, on appeal to the BIA, or on petition for review — put on the record that Ayala and Sanjaa have now been criticized by three sitting circuit judges in a published concurrence calling for en banc reconsideration. You are not asking an IJ or a BIA panel to disregard controlling precedent; you are building the record so the argument is preserved if the circuit does what Judge Desai is asking it to do.
The mistake I see most often
Attorneys plead “former police officer” or “former soldier” as the social group and then build the whole case around the incidents that made the client run — the threats, the ambush, the reason for leaving. That is exactly the evidence Ayala and Sanjaa say doesn’t count. If there is no post-departure contact at all, the case has a structural nexus problem that no amount of pre-departure detail fixes, and that needs to be diagnosed at intake, not at the merits hearing.
The second mistake is treating the pre-departure evidence as worthless and leaving it out. It isn’t worthless — it corroborates why the persecutor would still be looking, and both concurring judges in Gonzalez-Argueta say it should be considered. Keep it in the record for the argument you’re preserving, even though it can’t carry the nexus by itself under current law.
What to do now
Pull every case in your office built on a former-status particular social group and check it against this rule before the next filing deadline, not after a denial. If there’s no post-departure evidence, get declarations from family or contacts still in the home country describing continued threats or inquiries. If the case is already on petition for review or headed there, cite the concurrences and preserve the en banc argument.
If you or a family member has an asylum claim built around persecution as a former police officer, soldier, or official, the timing of the evidence can decide the case under current Ninth Circuit law. There is no charge for the consultation. Call (562) 495-0554 or book at blerner.timetap.com.
This article is general information about United States immigration law and is not legal advice. Reading it does not create an attorney-client relationship. Immigration outcomes depend on the specific facts of each case. Law Offices of Brian D. Lerner, A Professional Corporation, 3233 E. Broadway, Long Beach, CA 90803. Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law, The State Bar of California Board of Legal Specialization.