Aldana Ramos v. Holder, Jr. , 757 F.3d 9 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2022
ELVIS LEONEL ALDANA-RAMOS; ROBIN OBDULIO ALDANA-RAMOS,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
William P. Joyce and Joyce & Associates P.C. on brief for
petitioners.
Stuart F. Delery, Assistant Attorney General, Civil Division,
Song Park, Senior Litigation Counsel, and Sunah Lee, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.
August 8, 2014
Amended Opinion
LYNCH, Chief Judge. Petitioners Elvis Leonel Aldana
Ramos ("Elvis") and Robin Obdulio Aldana Ramos ("Robin") seek
review of an order of the Board of Immigration Appeals ("BIA")
denying their applications for asylum, withholding of removal, and
protection under the Convention Against Torture ("CAT"). The BIA
concluded that the petitioners had not made the requisite showings
that they were or will be persecuted on account of membership in a
protected social group or that it is more likely than not that they
would be tortured by government authorities upon returning to their
home country. Because the BIA's conclusion as to the asylum claim
is legally flawed and is not supported by the record as currently
developed, we grant the petition in part and remand to the BIA for
further proceedings as to the asylum and withholding of removal
claims. We deny the petition as to the CAT claim.
I.
We recount the facts as presented by the record, noting
that the Immigration Judge ("IJ") found that petitioners were
credible. Elvis and Robin are brothers and are natives and
citizens of Guatemala. At the time of the relevant events, Elvis
was 20 years old and Robin was 18. Their father, Haroldo Aldana-
Córdova ("Haroldo"), owned a successful used car business and a
real estate rental business in Salamá, Guatemala. Elvis and Robin
worked with their father in the family business. The family was
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relatively well-off and was able to travel to the United States on
vacation.
On February 4, 2009, Haroldo asked Elvis and Robin to
attend to certain ongoing used car and property rental business
concerns while he showed a rental apartment to potential tenants in
another town. Both Elvis and Robin were to meet with a buyer
interested in purchasing a truck, and Elvis was later supposed to
show a rental property to potential tenants. Elvis later called
Haroldo to tell him that the buyer was interested in purchasing a
truck from the dealership, but there was no answer on Haroldo's
phone. Elvis left Robin to conclude the truck sale while he went
to show the apartment. Soon after, an unknown person approached
Robin at the dealership and told him that Haroldo had been
kidnapped for ransom. Robin called Elvis, who immediately went to
the police station to report the kidnapping. According to the
petitioners, the police took no real action on the kidnapping
report. Elvis and Robin later learned that the kidnappers belonged
to a group known as the "Z" gang, a well known criminal
organization in Guatemala with ties to drug trafficking.
On February 5, Haroldo called Elvis and Robin and told
them that his kidnappers demanded one million quetzales
(approximately $125,000) in ransom by noon of that day and would
kill him if they did not pay the entire ransom. The next day,
Haroldo called again to repeat the message. Haroldo instructed
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Elvis and Robin to pawn the car dealership to Marlon Martínez, a
family friend and business associate.1 Martínez already owed
Haroldo's family 150,000 quetzales but he did not help them raise
the ransom money.
Over the next three days, Elvis and Robin collected
400,000 quetzales and paid it to the kidnappers. The kidnappers
continued to refuse to release Haroldo until the ransom was paid in
full. Around that same time, men in vehicles without license
plates began driving around petitioners' home. The brothers found
the action intimidating. According to an affidavit Elvis later
submitted, this was a threatening tactic frequently used by the "Z"
gang.
Eventually, Elvis and Robin borrowed the remaining
600,000 quetzales, largely from relatives, and paid the sum over to
the kidnappers. The brothers state that they completely exhausted
their financial resources in doing so. The kidnappers told the
brothers where they could retrieve their father. When they arrived
at that location, they could not find him. Nor did he turn up.
Four days later, the police called Elvis and told him Haroldo had
been murdered and his body had been found in a different town.
1
The record is not entirely clear regarding Martínez's
profession, but it appears that he was a sort of lender who would
buy or offer mortgages on distressed properties at high margins.
In the United States, he might be called a loan shark.
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After Haroldo's murder, several members of the "Z" gang
were arrested and charged with the killing. One of those members
was Marlon Martínez, Jr., the son of Haroldo's business associate.
The brothers eventually learned that the Martínez family was
involved in the entire kidnapping and intimidation ordeal. The
charges against all of the suspects were eventually dropped; Elvis
testified that the reason the charges were dropped was that the
judge was paid off.
Although Haroldo was dead and the ransom paid, the
threats against petitioners resumed. About a month after Haroldo's
funeral, Elvis was followed from the dealership by a car with no
license plates, which he recognized as one of the same cars that
had earlier circled his house. In fear, Elvis abandoned his car
and fled on foot after evading the follower. To keep Robin safe,
Elvis sent him to stay with their aunt in a different town, about
four hours away from their home. Elvis eventually joined them,
after receiving continuing threats from unmarked cars. Elvis had
taken to traveling to work at odd hours, using different vehicles
with tinted windows. Eventually, unmarked cars began appearing at
petitioners' aunt's house. On one occasion, she saw several
heavily armed men get out of the cars and circle the house as if
they were looking for someone.
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By mid-2009, the brothers fled to the United States.
Robin entered on a tourist visa on March 3, 2009, and Elvis entered
on a tourist visa on July 5, 2009.
On February 5, 2010, petitioners filed their timely
application for asylum and withholding of removal. Petitioners
argued that they were persecuted on account of their membership in
a particular social group, which they defined as their immediate
family. The case was referred to the Immigration Court for removal
proceedings.
An IJ heard the case in January 2012. The IJ found that
petitioners' testimony was credible, noting that it "was internally
consistent and consistent as well with the detailed written
statement that they each offered in support of their applications."
The IJ went on to deny their applications "for failure to make a
nexus between the past persecution that they claim on account of
[their] membership in their nuclear family and any of the
enumerated grounds." The IJ explained that "the social group
claimed does not meet the requirements of particular social
visibility and . . . that, rather, the respondents' family has been
a victim of criminal activity in the country of Guatemala." The IJ
also denied the application under the CAT, finding that petitioners
made "no claim that they would be tortured by the government of
Guatemala if returned to that country."
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Petitioners appealed to the BIA. The BIA affirmed,
adopting the IJ's decision and supplementing it with its own
findings. Specifically, the BIA concluded that "[t]he evidence
shows that criminals kidnapped the respondents' father to obtain
money from him and his family[;] it does not demonstrate that the
harm [they] suffered in Guatemala was on account of their race,
religion, nationality, membership in a particular social group, or
political opinion." It further concluded that "[t]he respondents
did not demonstrate that Marlon Martínez . . . or Mr. Martínez's
son was associated with the 'Z' gang or that they sought to harm
the respondents for any reason including on account of a protected
ground."2 The BIA concluded that although Haroldo was certainly
the victim of "a terrible crime," the crime was motivated by the
"Z" gang's perception of his wealth "and not on account of a
protected characteristic of the respondents' father or of their
family." Elvis and Robin timely petitioned this court for review.
2
With respect to the relationship between Martínez's son and
the "Z" gang, the IJ explicitly found that the parties
"responsible" for the kidnapping and murder were the "Z" gang and
Martínez's son. This finding is reversible by the BIA only if it
is "clearly erroneous." 8 C.F.R. § 1003.1(d)(3)(i). The joint
criminal responsibility for the events at issue gives rise to a
strong inference that there was some relationship between
Martínez's son and the "Z" gang. Absent a holding by the BIA that
the IJ's finding was clearly erroneous or some explanation
rebutting this inference, the BIA's conclusion that there was no
association is not supported by the record.
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II.
Where the BIA adopts an IJ's decision and supplements the
decision with its own findings, as here, we review the decisions of
both the BIA and the IJ. See Romilus v. Ashcroft, 385 F.3d 1, 5
(1st Cir. 2004). We must uphold the BIA's decision if it is
"supported by reasonable, substantial, and probative evidence on
the record considered as a whole." I.N.S. v. Elias-Zacarias, 502
U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)) (internal
quotation marks omitted); accord Sam v. Holder, 752 F.3d 97, 99
(1st Cir. 2014). "To reverse the BIA['s] finding we must find that
the evidence not only supports [a contrary] conclusion, but compels
it . . . ." Elias-Zacarias, 502 U.S. at 481 n.1. We review the
BIA's legal conclusions de novo, although we grant some deference
to its interpretations of statutes and regulations related to
immigration matters. Matos-Santana v. Holder, 660 F.3d 91, 93 (1st
Cir. 2011).
To qualify for asylum, petitioners must establish that
they are "refugee[s]." 8 U.S.C. § 1158(b)(1)(A); 8 C.F.R.
§ 1208.13(a). A refugee is "someone who is unable or unwilling to
return to his home country due to persecution or a well-founded
fear of future persecution 'on account of race, religion,
nationality, membership in a particular social group, or political
opinion.'" Silva v. Gonzales, 463 F.3d 68, 71 (1st Cir. 2006)
(quoting 8 U.S.C. § 1101(a)(42)(A)).
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The IJ's conclusion turned entirely on whether
petitioners had established a sufficient "nexus" between their
claimed persecution and the particular social group -- that is,
whether they were persecuted "on account of" their family
membership.3 The BIA's opinion likewise focused on the "on account
of" element. Because understanding petitioners' claimed social
group and persecution is necessary to determining whether the
persecution was "on account of" membership in the social group, we
address each of these elements in turn. We do so bearing in mind
the Supreme Court's instruction that the "ordinary . . . rule" is
to remand to the BIA to allow it to make case-specific
determinations in the first instance. I.N.S. v. Orlando Ventura,
537 U.S. 12, 18 (2002).
A. Particular Social Group
In this case, petitioners argue that they are members of
a "particular social group," which they define as their immediate
family. It is well established in the law of this circuit that a
3
The IJ did make a stray reference to "social visibility" --
that is, the requirement that a particular social group must be
identifiable, see Larios v. Holder, 608 F.3d 105, 108-09 (1st Cir.
2010); Gebremichael v. I.N.S., 10 F.3d 28, 36 (1st Cir. 1993) --
but offered no specific factual findings or legal rationales to
explain why petitioners' family could not be a particular social
group on that basis. In its brief, the government encourages us to
characterize the "thrust" of the IJ's decision to focus on the
conclusion "that Petitioners failed to establish a nexus between
what had happened to them and their father . . . and a statutorily
protected ground," not that their family could not be a "particular
social group."
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nuclear family can constitute a particular social group "based on
common, identifiable and immutable characteristics." Gebremichael
v. I.N.S., 10 F.3d 28, 36 (1st Cir. 1993); see Ruiz v. Mukasey, 526
F.3d 31, 38 (1st Cir. 2008) ("Kinship can be a sufficiently
permanent and distinct characteristic to serve as the linchpin for
a protected social group within the purview of the asylum laws.").
And we are not aware of any circuit that has reached a contrary
conclusion.4
Although the record is not entirely clear, the BIA
appears to have concluded in this case that a family cannot qualify
as a particular social group unless a member of the family (or,
perhaps, the family itself) can also claim another protected
ground. Specifically, the BIA stated: "[T]he 'Z' gang was
motivated by criminal intent to misappropriate money from the
respondents' father and not on account of a protected
characteristic of the respondents' father or of their family."
(emphasis added).5 The law in this circuit and others is clear
4
A strand of cases within the Ninth Circuit held that a
family could never be a particular social group. Although the
Ninth Circuit's en banc decision overruling those cases was later
vacated by the Supreme Court, see Thomas v. Gonzales, 409 F.3d
1177, 1180 (9th Cir. 2005) (en banc), vacated, 547 U.S. 183 (2006),
we are not aware of any later cases citing that strand.
5
The BIA also elaborated later: "The respondents' broad
claim that they were persecuted on account of their membership in
a particular social group, which they define as their own nuclear
family, without more, is inadequate to show the required nexus for
asylum and withholding of removal." (emphasis added).
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that a family may be a particular social group simply by virtue of
its kinship ties, without requiring anything more. See
Gebremichael, 10 F.3d at 35-36 & n.20 (explaining that a family may
be a particular social group and that, although social group
membership often overlaps with other protected grounds, "social
group persecution can be an independent basis of refugee status");
see also Ruiz, 526 F.3d at 38 (explaining that asylum claim can
succeed where "family membership itself brings about the
persecutorial conduct"); Iliev v. I.N.S., 127 F.3d 638, 642 (7th
Cir. 1997) (requiring petitioner to "demonstrate that his family
was a particular target for persecution" without requiring showing
of additional protected ground).
Our interpretation is consistent with the language of the
statute. The BIA has used the principle in its interpretation of
the statute that there is no indication that Congress intended the
phrase "membership in a particular social group" to have any
particular meaning, and Congress borrowed the term directly from
the United Nations Protocol Relating to the Status of Refugees,
Jan. 31, 1967, 19 U.S.T. 6223. See In re Acosta, 19 I. & N. Dec.
211, 232 (B.I.A. 1985). Ultimately using the doctrine of ejusdem
generis, the BIA has noted that a "purely linguistic analysis of
this ground" shows that it can encompass "persecution seeking to
punish either people in a certain relation, or having a certain
degree of similarity, to one another or people of like class or
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kindred interests," including based on "family background." Id. at
232-33 (citing G. Goodwin-Gill, The Refugee in International Law 31
(1983)). And although this ground "may frequently overlap with
persecution on other grounds such as race, religion, or
nationality," id. at 233, there is no indication in the text that
it must overlap. The BIA has interpreted the phrase "persecution
on account of membership in a particular social group" to mean
"persecution that is directed toward an individual who is a member
of a group of persons all of whom share a common, immutable
characteristic." Id.
The factual record here does not preclude and would even
allow the BIA to find that petitioners are members of a particular
social group by virtue of their family relationship, without any
need to show a further protected ground. We express no opinion on
whether such a finding is compelled by the record or whether
petitioners' family in particular meets the criteria for a
particular social group, leaving the issue to the BIA in the first
instance. See Orlando Ventura, 537 U.S. at 18.
B. Persecution
Next, petitioners argue that they were persecuted in
Guatemala. They recount the series of crimes committed against
their family: the kidnapping, ransom, and murder of their father;
intimidation using unmarked vehicles during the kidnapping period;
resumed intimidation in the same manner after their father's death;
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and the appearance of unmarked cars and heavily armed men at their
aunt's house four hours away. Additionally, petitioners point to
their own testimony, which the IJ concluded was credible, that they
fear they will be killed if they are sent back to Guatemala.
Whether a set of experiences rises to the level of
persecution is decided on a case-by-case basis, Raza v. Gonzales,
484 F.3d 125, 129 (1st Cir. 2007), although "[t]o rise to the level
of persecution, the sum of an alien's experiences must add up to
more than ordinary harassment, mistreatment, or suffering," Lopez
de Hincapie v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007).
"[T]hreats of murder would fit neatly under this carapace." Lopez
de Hincapie, 494 F.3d at 217. This case includes far more than
mere threats of murder.6 And other circuits have held that factual
scenarios very similar to this one did rise to the level of
persecution. See Tapiero de Orejuela v. Gonzales, 423 F.3d 666,
672-73 (7th Cir. 2005) (finding persecution against wealthy family
where paramilitary group followed them, murdered father, demanded
money, and threatened remaining family members).
6
Cf. Reyes Beteta v. Holder, 406 F. App'x 496, 498-99 (1st
Cir. 2011) (finding no persecution on the basis that applicant was
a child at the time of relatives' murders and did not remember
them, that murderers were unknown and so no motive or nexus to
protected ground could be established, and that petitioner was not
followed when he moved to a farm outside of the city). The facts
here are easily distinguishable from Reyes Beteta: petitioners were
adults at the time of their father's murder, knew which group was
responsible for the murder, were harassed afterward, and were
followed to a town four hours away.
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The government attempts a recharacterization of the
facts. It argues that "there were no 'threats' [against
petitioners after their father's death] because the people [in the
unmarked cars] never approached or spoke to Elvis or anyone at his
aunt's house." We disagree. No reasonable factfinder could so
interpret the facts here. Petitioners testified credibly that the
unmarked cars were subjectively intimidating, that they were a
common intimidation tool used by the "Z" gang, and, according to
Elvis's affidavit, that heavily armed men got out of the vehicles
at their aunt's house and walked around the property, when that had
never happened before. If the government intends a rule that there
is no persecution or even threats where threats are not verbalized,
it is wrong as a matter of law. Cf. Un v. Gonzales, 415 F.3d 205,
209-10 (1st Cir. 2005) (recognizing the possibility of "implicit"
death threats and that those threats, taken in context with other
hostile actions including more explicit threats, could support a
finding of persecution). The fact that no words were exchanged
does not mean those actions were not threatening.
"Persecution also 'always implies some connection to
government action or inaction,' whether in the form of direct
government action, 'government-supported action, or government's
unwillingness or inability to control private conduct.'" Ivanov v.
Holder, 736 F.3d 5, 12 (1st Cir. 2013) (quoting Sok v. Mukasey, 526
F.3d 48, 54 (1st Cir. 2008)). Here, petitioners offered evidence
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of such a connection: they testified to their belief that the
murder charges were dismissed because the local judge was paid off.
They also testified that the police were unwilling or unable to
investigate the "Z" gang's activities, particularly the kidnapping.
And they were found credible.
The BIA never addressed whether this testimony
established the necessary connection between petitioners'
experiences and the Guatemalan government's unwillingness or
inability to control private conduct. We leave the question to the
BIA on remand but observe that this testimony would at least allow
such a finding.
For these reasons, we conclude that the record does not
preclude but permits the BIA to find that persecution occurred
here. We again express no opinion as to whether such a finding is
compelled on this record. See Orlando Ventura, 537 U.S. at 18.
C. "On Account Of"
The final element of the asylum claim, and the most
contested in this case, is whether the BIA applied the correct
analysis to determine whether petitioners were persecuted "on
account of" their membership in their family. Both the BIA and the
IJ concluded that petitioners had not drawn a sufficient connection
between their membership in their nuclear family and the criminal
actions taken against them. The BIA concluded that the "Z" gang
"targeted [Haroldo] because they believed he was a wealthy person,
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. . . and not on account of a protected characteristic of the
respondents' father or of their family." This conclusion, of
course, is directed toward Haroldo and not toward petitioners.
Petitioners argue that this focus on Haroldo fails to
account for their own claims. They make two further arguments that
the BIA's conclusion entirely misses the focus of what the family
as a particular social group means. First, and most importantly,
they argue that the BIA's conclusion that petitioners were targeted
on the basis of wealth is unsupported by the record. Petitioners
point to their credible testimony that they exhausted all of their
own and their family's financial resources in trying to raise the
money to ransom their father, and yet were still followed by
members of the "Z" gang in unmarked cars even after their father's
funeral. That testimony creates an inference that the "Z" gang
targeted petitioners because of their membership in a particular
(and perhaps somewhat prominent) family.
Neither the BIA nor the IJ ever addressed this argument.
That is insufficient.7
Independently, petitioners also correctly point out that
asylum is still proper in mixed-motive cases even where one motive
7
In its brief, the government suggests that the BIA could
infer that the "Z" gang subjectively believed that petitioners
still had access to more money. That approach, not articulated by
the BIA, fails because the BIA never actually drew the inference.
See Patel v. Holder, 707 F.3d 77, 80 n.1 (1st Cir. 2013) ("[O]ur
review is limited to the reasoning articulated below . . . .").
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would not be the basis for asylum, so long as one of the statutory
protected grounds is "at least one central reason" for the
persecution. 8 U.S.C. § 1158(b)(1)(B)(i). In other words, even
though criminal targeting based on wealth does not qualify as
persecution "on account of" membership in a particular group, see
Sicaju-Diaz v. Holder, 663 F.3d 1, 3-4 (1st Cir. 2011), the statute
still allows petitioners to claim asylum if petitioners' family
relationship was also a central reason for the persecution against
them.
The BIA, however, concluded that because the initial
crimes were at least partly motivated by wealth, none of the
persecution against petitioners could have been based on a
protected ground. Specifically, the BIA explained:
The respondent's [sic] father was a victim of
a terrible crime in Guatemala by the "Z" gang
who targeted him because they believed he was
a wealthy person. Thus, the "Z" gang was
motivated by criminal intent to misappropriate
money from the respondents' father and not on
account of a protected characteristic of
respondents' father or of their family.
It is unclear whether the BIA intended a general rule to this
effect or meant that on these facts, the existence of a wealth
motive forecloses the possibility of a protected ground. In either
case, we are aware of no legal authority supporting the proposition
that, if wealth is one reason for the alleged persecution of a
family member, a protected ground -- such as family membership --
cannot be as well. To the contrary, the plain text of the statute,
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which allows an applicant to establish refugee status if the
protected ground is "at least one central reason" for the
persecution, clearly contemplates the possibility that multiple
motivations can exist, and that the presence of a non-protected
motivation does not render an applicant ineligible for refugee
status. See 8 U.S.C. § 1158(b)(1)(B)(i).
To be sure, if wealth is the sole reason for targeting a
group of people, the fact that the group is a family unit does not
convert the non-protected criminal motivation into persecution on
the basis of family connections. See Perlera-Sola v. Holder, 699
F.3d 572, 577 (1st Cir. 2012).8 Each case depends on the facts.
There may be scenarios in which a wealthy family, targeted in part
for its wealth, may still be the victims of persecution as a
family. For instance, a local militia could single out a prominent
wealthy family, kidnap family members for ransom, effectively drive
the family into poverty, and pursue them throughout the country in
order to show the local community that even its most prominent
8
Likewise, a personal vendetta against individuals, even if
they are a family group, does not rise to the level of persecution
"on account of" family membership if the risk of harm "aris[es]
solely out of a personal dispute." Costa v. Holder, 733 F.3d 13,
17 (1st Cir. 2013); see also Vasiliu v. Ashcroft, 123 F. App'x 12,
13 (1st Cir. 2005) (explaining that evidence showed only a personal
vendetta, not persecution on account of a protected ground); cf.
Ruiz, 526 F.3d at 38 (recognizing that a vendetta "against a
particular family" for reasons other than mere personal antipathy
may establish persecution on account of family membership).
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families are not immune and that the militia's rule must be
respected. That is one of a number of examples.
In this case, we leave to the BIA the question of whether
the family relationship was, in addition to wealth, a central
factor behind the persecution. At this stage in the proceedings,
we simply observe that the record is more than sufficient to allow
such a finding.
III.
The BIA also rejected petitioners' claim for CAT
protection. A petitioner seeking CAT protection must show "it is
more likely than not" that he would be subject to torture "by or
with the acquiescence of a government official." Nako v. Holder,
611 F.3d 45, 50 (1st Cir. 2010). As the BIA noted, there is no
evidence of government acquiescence here. According to
petitioners' testimony, and in contrast to their description of
police inaction following the kidnapping, the police did
investigate their father's murder and made arrests in the case.
The only evidence that could arguably be construed to show
government acquiescence in the "Z" gang's activities was Elvis's
testimony that the judge who released the suspects had been paid
off, but petitioners have made no showing that similar bribery
would likely occur in a future case. Without a showing of
government participation or acquiescence, petitioners' claim for
CAT protection fails.
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IV.
The BIA's decision as to petitioners' asylum claim was
not supported by substantial evidence because it neglected the
evidence in support of petitioners' claim and was based on a legal
error because it did not allow for the possibility of mixed
motives. The decision as to the CAT claim, on the other hand, was
supported by substantial evidence. Consequently, the petition for
review is granted in part and denied in part. We vacate the BIA's
decision as to the asylum and withholding of removal claims and
remand for further proceedings consistent with this opinion.
So ordered.
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