Our caselaw establishes that family membership "may constitute membership in a 'particular social group,' " not that families are automatically a particular social group. Id. at 1128 (emphasis added) (quotation omitted); see Gonsalez Padilla v. Barr, 830 F. App'x 182, 184 n.2 (9th Cir. 2020) (noting that precedent "recognize[s] that 'family' could be the basis of a particular social group and it [is] error to not even consider it" (citing Rios, 807 F.3d at 1128)). Third, the dissent argues that the nexus inquiry is not about "whether the persecutors' acts were motivated by an unprotected characteristic."
Even recently, the federal courts continue to hold in immigration cases that Penal Code section 273.5 is categorically a crime of domestic violence. (E.g., Gonsalez Padilla v. Barr (9th Cir. 2020) 830 Fed.Appx. 182, 185.) To succeed in showing that a section 273.5 conviction is not categorically a crime of domestic violence under federal immigration law, a noncitizen would have to show a "realistic probability" that a state conviction falls outside the federal definition, not a "theoretical possibility."