(1) Whether a particular social group based on family membership is cognizable depends on the nature and degree of the relationships involved and how those relationships are regarded by the society in question.
(2) To establish eligibility for asylum on the basis of membership in a particular social group composed of family members, an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.
Matter of L-E-A-, Respondent
Decided May 24, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Whether a particular social group based on family membership is cognizable depends
on the nature and degree of the relationships involved and how those relationships are
regarded by the society in question.
(2) To establish eligibility for asylum on the basis of membership in a particular social
group composed of family members, an applicant must not only demonstrate that he or
she is a member of the family but also that the family relationship is at least one central
reason for the claimed harm.
FOR RESPONDENT: Mei F. Chen, Esquire, San Jose, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: George R. Martin, Associate
Legal Advisor
BEFORE: Board Panel: GREER, MALPHRUS, and LIEBOWITZ, Board Members.
GREER, Board Member:
In a decision dated September 10, 2013, an Immigration Judge found the
respondent removable and denied his applications for asylum and
withholding of removal and his request for protection under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res.
39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708
(1984) (entered into force June 26, 1987; for the United States Apr. 18,
1988). The respondent has appealed from that decision. The appeal will
be dismissed in part and the record will be remanded for further proceedings.
The question in this case is whether the respondent, who claims
membership in a particular social group composed of his family, has
established eligibility for asylum under section 208 of the Immigration and
Nationality Act, 8 U.S.C. § 1158 (2012). We conclude that while family
may be a particular social group, membership in such a group does not
necessarily establish a nexus to a ground protected under the Act. Rather,
the respondent must demonstrate that the family relationship is at least
one central reason for the claimed harm to establish eligibility for asylum
on that basis.
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41
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the United
States for the first time in 1998 and departed under a grant of voluntary
departure in May 2011. That same month, the respondent returned to his
parents’ home in Mexico City, Mexico. Previously, members of La Familia
Michoacana, a criminal cartel, had approached the respondent’s father,
who owned a store that sold groceries and general merchandise in the
neighborhood. The cartel members asked if they could sell drugs in the
store, which the cartel viewed as a favorable distribution location. The
respondent’s father refused to allow the cartel to sell drugs in his store.
About a week after the respondent returned to Mexico, he was running
an errand with his cousin and a nephew when they heard gunshots coming
from inside a car. A week later, the respondent was approached by the same
car. Its four occupants identified themselves as members of La Familia
Michoacana. They asked if he would sell drugs for them at his father’s store
because they liked the store’s location. The respondent declined, and the
cartel members indicated that he should reconsider.
The following week, the respondent was again approached by the car.
The four occupants, who were wearing masks, tried to grab him and put him
in the car, but he was able to get away. Soon after, the respondent left for
the border and was ultimately successful in crossing into the United States.
Members of La Familia Michoacana contacted the respondent’s father and
claimed to have kidnapped the respondent, which his father was able
to confirm was untrue. The respondent’s father still operated the store, but
he began paying “rent” to La Familia Michoacana, which made it no longer
profitable. The respondent’s family members who live in Mexico, including
his parents, have not been subjected to additional incidents of harm.
The respondent believes that he was targeted by members of La Familia
Michoacana because of his membership in the particular social group
comprised of his father’s family members, and he asserted a fear
of persecution in the future on this basis. The Immigration Judge found the
respondent credible, but she concluded that La Familia Michoacana was
interested in distributing illegal drugs at the store and increasing its profits,
rather than being motivated to harm his father’s family members based
on their membership in the family itself. In particular, the Immigration Judge
found that the persecutor’s motive related to ownership of the store and,
notably, that if the store were to be sold, they would target the new owner.
On appeal, the respondent argues that he experienced harm rising to the
level of persecution based on his membership in the particular social group
of his father’s family and that he has a well-founded fear of harm on this
basis in the future if returned to Mexico.
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42
We requested supplemental briefing in this case, and the respondent, the
Department of Homeland Security (“DHS”), and amici curiae responded.
Both parties agree that the immediate family unit of the respondent’s father
qualifies as a cognizable particular social group. They also agree that
if family membership is a central reason for persecuting an asylum applicant,
nexus may be established. In addition, the respondent argues that the
Immigration Judge did not make complete findings of fact with regard to his
application for protection under the Convention Against Torture. The amici
curiae generally support the arguments of the respondent.1
II. ANALYSIS
A. Family as a Particular Social Group
We agree with the parties that the members of an immediate family may
constitute a particular social group. We have long recognized that family ties
may meet the requirements of a particular social group depending on the facts
and circumstances in the case. Matter of C-A-, 23 I&N Dec. 951, 959 (BIA
2006) (“Social groups based on innate characteristics such as sex or family
relationship are generally easily recognizable and understood by others
to constitute social groups.”), clarified by Matter of M-E-V-G-, 26 I&N Dec.
227 (BIA 2014), and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014);
Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985) (stating that “kinship
ties” is a common, immutable characteristic), modified on other grounds,
Matter of Mogharrabi, 19 I&N Dec. 439, 441 (BIA 1987); see also Vumi
v. Gonzales, 502 F.3d 150, 155 (2d Cir. 2007) (acknowledging the Board’s
long-standing recognition of family members as a possible particular social
group). The circuit courts have also held that family may constitute
a particular social group. See Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir.
2015); Crespin-Valladares v. Holder, 632 F.3d 117, 124−25 (4th Cir. 2011);
Al-Ghorbani v. Holder, 585 F.3d 980, 995 (6th Cir. 2009); Ayele v. Holder,
564 F.3d 862, 869 (7th Cir. 2009); Gebremichael v. INS, 10 F.3d 28, 36 (1st
Cir. 1993); see also Ramirez-Mejia v. Lynch, 794 F.3d 485, 492−93 (5th Cir.
2015).
A determination whether a social group is cognizable is a fact-based
inquiry made on a case-by-case basis, depending on whether the group is
immutable and is recognized as particular and socially distinct in the relevant
society. See Matter of M-E-V-G, 26 I&N Dec. at 242; Matter of W-G-R-,
26 I&N Dec. at 211–12, vacated in part and remanded on other grounds by
Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016). Not all social groups that
involve family members meet the requirements of particularity and social
1 We acknowledge and appreciate the briefs submitted by the parties and amici curiae.
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43
distinction. See, e.g., Jie Lin v. Ashcroft, 377 F.3d 1014, 1028 (9th Cir. 2004)
(recognizing that “some attenuated family links will not per se suffice to
confer ‘particular social group’ membership”); Matter of S-E-G-, 24 I&N
Dec. 579, 585 (BIA 2008) (holding that a group comprised of “‘family
members,’ which could include fathers, mothers, siblings, uncles, aunts,
nieces, nephews, grandparents, [and] cousins” of “Salvadoran youth who
have been subjected to recruitment efforts by MS-13 and who have rejected
or resisted membership in the gang” is too amorphous to constitute a
cognizable particular social group), clarified by Matter of M-E-V-G-, 26 I&N
Dec. 227, and Matter of W-G-R-, 26 I&N Dec. 208. We agree with the
DHS’s argument that the inquiry in a claim based on family membership will
depend on the nature and degree of the relationships involved and how those
relationships are regarded by the society in question.
Because the facts of this case present a valid particular social group, we
need not further address the circumstances regarding family status that would
or would not support finding that a family is a particular social group.
An applicant for asylum has the burden to establish a cognizable particular
social group, his membership in that group, and persecution or fear of
persecution on account of his membership in that group. Matter of W-G-R-,
26 I&N Dec. at 223. In consideration of the facts of this case and the
agreement of the parties, we have no difficulty identifying the respondent,
a son residing in his father’s home, as being a member of the particular social
group comprised of his father’s immediate family. The key issue we must
consider is whether the harm he experienced or fears is on account of his
membership in that particular social group.
B. Nexus
An asylum applicant’s membership in a family-based particular social
group does not necessarily mean that any harm inflicted or threatened by the
persecutor is because of, or on account of, the family membership. See, e.g.,
id. at 218 (“[W]e must separate the assessment whether the applicant has
established the existence of one of the enumerated grounds (religion, political
opinion, race, ethnicity, and particular social group) from the issue of nexus.
The structure of the Act supports preserving this distinction, which should
not be blurred . . . .”). A persecution claim cannot be established if there
is no proof that the applicant or other members of the family were targeted
because of the family relationship. See Matter of N-M-, 25 I&N Dec. 526,
530 (BIA 2011) (stating that an applicant “must provide some evidence that
an alleged persecutor is motivated by a victim’s protected trait”). If the
persecutor would have treated the applicant the same if the protected
characteristic of the family did not exist, then the applicant has not
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44
established a claim on this ground. See id. at 531 (explaining that
an applicant “must demonstrate that the persecutor would not have harmed
the applicant if the protected trait did not exist”).
Moreover, under section 208(b)(1)(B)(i) of the Act, membership in the
particular social group must be “at least one central reason” for the
persecutor’s treatment of the applicant. See Matter of J-B-N- & S-M-,
24 I&N Dec. 208, 212 (BIA 2007). The protected trait, in this case
membership in the respondent’s father’s family, “cannot play a minor
role”—that is, “it cannot be incidental [or] tangential . . . to another reason
for harm.” Id. at 214.
The question of a persecutor’s motive will involve a particularized
evaluation of the specific facts and evidence in an individual claim. See
Matter of N-M-, 25 I&N Dec. at 532 (“A persecutor’s actual motive is
a matter of fact to be determined by the Immigration Judge . . . .”).
Immigration Judges should consider both direct and circumstantial evidence
regarding a persecutor’s motive, id., and may make reasonable inferences
based on the evidence in the record. See Matter of D-R-, 25 I&N Dec. 445,
453 (BIA 2011), remanded on other grounds, Radojkovic v. Holder, 599
F. App’x 646 (9th Cir. 2015). While some scenarios will present a clear
answer, others will require a more nuanced evaluation.
It is clear that nexus would be established based on family membership
where a persecutor is seeking to harm the family members because of an
animus against the family itself. For illustrative purposes, we consider
the well-known historical scenario of the Bolshevik assassination of
Czar Nicholas II, his wife, Czarina Alexandra, and their five children after
he abdicated the throne in 1917. The immediate family, as well as other
family members, were killed between 1918 and 1919. See Romanov,
19 Encyclopædia Britannica, Inc. 553−54 (1971). While there were political
reasons why they were endangered and killed, it would be difficult to say
either that these individuals did not form a particular social group or that their
family membership was not at least one central reason for their persecution.
This is a classic example of a persecutor whose intent, for at least one central
reason, was to overcome the protected characteristic of the immediate
family.2
2 In Matter of Acosta, 19 I&N Dec. at 222, our original definition of persecution included
“harm or suffering . . . inflicted upon an individual in order to punish him for possessing a
belief or characteristic a persecutor sought to overcome.” However, in Matter of Kasinga,
21 I&N Dec. 357, 365 (BIA 1996), we clarified that a punitive intent is not required and
held, instead, that the focus is only whether the persecutor intended to “overcome [the
protected] characteristic of the victim.” Cf. Pitcherskaia v. INS, 118 F.3d 641, 646 (9th
Cir. 1997) (“Neither the Supreme Court nor this court has construed the Act as imposing a
requirement that the alien prove that her persecutor was motivated by a desire to punish or
inflict harm.”).
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However, if animus against the family per se is not implicated, the
question becomes what motive or motives cause the persecutor to seek to
harm members of an individual’s family. In other words, is the persecutor’s
motive for harming the applicant his or her family status or another factor?
The answer to this question depends on the reasons that generate the dispute.
There are other circumstances where the evidence establishes that one
central reason for the applicant’s harm was his or her family status. These
often arise in cases where the family status is connected to another protected
ground, particularly where there is a political motive, aside from dynastic
succession, that is intertwined with or underlies the dispute. See, e.g., Ayele,
564 F.3d at 869−72 (regarding a claim of membership in a particular social
group based on the applicant’s family, which had been targeted because of
political affiliation and ethnicity); Vumi, 502 F.3d at 154−56 (regarding a
claim based on membership in the family of a person suspected of
participating in the assassination of the former president of the Democratic
Republic of Congo); Gebremichael, 10 F.3d at 35−36 (holding that the
applicant had established persecution on account of his family because he
was accused of aiding the escape of his brother, whom the Ethiopian
Government regarded as an enemy).
However, nexus is not established simply because a particular social
group of family members exists and the family members experience harm.
Thus, the fact that a persecutor has threatened an applicant and members of
his family does not necessarily mean that the threats were motivated by
family ties. See Marin-Portillo v. Lynch, 834 F.3d 99, 102 (1st Cir. 2016)
(finding that the persecutor, who was jailed for murdering the applicant’s
father, threatened the applicant and his family in order to retaliate or to
deter them from seeking revenge against him, rather than because of their
family membership). An applicant cannot establish a claim simply by
showing that he and some other family members faced similar harm. See,
e.g., Perlera-Sola v. Holder, 699 F.3d 572, 576 (1st Cir. 2012) (stating that
the “‘kinship’ criterion . . . applies only where the motivation for persecution
is kinship and not because multiple family members happen to be persecuted
for a common reason but the animus is not kinship”).
Further, the fact that a persecutor targets a family member simply as
a means to an end is not, by itself, sufficient to establish a claim, especially
if the end is not connected to another protected ground. See, e.g.,
Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1165 (9th Cir. 2013) (“If
someone suffers harm on grounds that are associated with group membership
but also apply to many others, then the harm is not because of membership
in a particular social group . . . .”). Circumstances such as these may indicate
that family membership was not at least one central reason that the applicant
was harmed. Ramirez-Mejia, 794 F.3d at 493 (concluding that “the evidence
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46
that gang members sought information from [the applicant] about her
brother, without more, does not support her claim that the gang intended to
persecute her on account of her family”).
For example, in Cambara-Cambara v. Lynch, 837 F.3d 822 (8th Cir.
2016), the applicants were wealthy landowners, and gang members targeted
various members of their family in Guatemala, making extortionate
demands. The Immigration Judge and the Board determined that no nexus
between the harm and their status as family members had been established.
The court affirmed, stating that the applicants “provided no proof that the
criminal gangs targeted members of the family because of family
relationships, as opposed to the fact that, as prosperous businessmen, they
were obvious targets for extortionate demands.” Id. at 826. Similarly, in
Ayala v. Holder, 683 F.3d 15, 17 (1st Cir. 2012), the applicant claimed that
she was harmed based on her membership in a particular social group
comprised of “a family that opposed guerilla warriors.” But the court
disagreed with her argument, stating that “there is no evidence to support the
claim that guerillas targeted [the applicant’s] family members on account of
their membership in the family.” Id.3
According to the facts found by the Immigration Judge in this case, the
cartel attempted to coerce the respondent’s father into selling contraband in
his store. When he refused, the cartel approached the respondent to sell its
product because he was in a position to provide access to the store, not
because of his family membership. The Immigration Judge’s findings in this
regard are not clearly erroneous.4 See Matter of D-R-, 25 I&N Dec. at 453.
As the Immigration Judge determined, the respondent was targeted only
as a means to achieve the cartel’s objective to increase its profits by selling
drugs in the store owned by his father. See Ramirez-Mejia, 794 F.3d at
492−93. Therefore, the cartel’s motive to increase its profits by selling
contraband in the store was one central reason for its actions against the
respondent and his family. Any motive to harm the respondent because he
was a member of his family was, at most, incidental.5 In this regard, we point
3 We recognize that the United States Court of Appeals for the Fourth Circuit has
addressed the interplay of family as a particular social group and nexus in a series of cases
where it found that the applicants satisfied the nexus requirement. See, e.g., Cruz
v. Sessions, 853 F.3d 122, 129−30 (4th Cir. 2017); Hernandez-Avalos v. Lynch, 784 F.3d
944, 949−50 (4th Cir. 2015). While it is not clear how the Fourth Circuit would apply that
precedent to the facts here, this case does not arise in the Fourth Circuit.
4 This case illustrates the importance of complete findings of fact regarding motive, which
the Immigration Judge made here. See Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002).
5 We accept the parties’ position that a separate, independent inquiry into the motivation
of a persecutor towards the respondent’s father, as the defining or primary family member,
is not part of the nexus calculus. Nonetheless, the scope of the motive inquiry necessarily
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out that the evidence does not indicate that the persecutors had any animus
against the family or the respondent based on their biological ties, historical
status, or other features unique to that family unit. See Cambara-Cambara,
837 F.3d at 826 (finding no proof that the applicants’ family was different
from any other family that experienced gang violence). Notably, the
Immigration Judge also found that the cartel would have gone after any
family who owned a business there. In fact, after the respondent departed
for the United States, the cartel coerced his father into paying “rent” to them.
This conduct constitutes criminal extortion and further indicates that the
cartel’s motivation was not based on the family relationship.
It is significant that the cartel directly asked the respondent to sell their
drugs in the store. This act bears no tie to an enumerated ground but is rather
a direct expression of the cartel’s motive to increase its profits by selling
contraband in the store. Accordingly, the Immigration Judge’s finding that
the gang was not motivated to harm the respondent based on family status is
not clearly erroneous.
III. CONCLUSION
We conclude that the respondent did not establish that his membership in
a particular social group comprised of his father’s family members was at
least one central reason for the events he experienced and the harm he
claims to fear in the future. Accordingly, the respondent’s appeal from the
Immigration Judge’s denial of his application for asylum will be dismissed.
However, we agree with the respondent that the Immigration Judge did
not make complete findings of fact needed to assess his claim under the
Convention Against Torture. We will therefore remand the record for that
purpose. Since we are remanding the record for further proceedings
regarding the respondent’s request for protection under the Convention
Against Torture, the parties may also address on remand the significance, if
any, of Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017).
ORDER: The appeal is dismissed in part.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.
encompasses the context in which a family member is identified for harm and how that
relates to the interest in the applicant. We view this as a single inquiry.