- Introduction: Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017)
- Factual and Procedural History: 27 I&N Dec. at 41-42
- Analysis — Family as a Particular Social Group: 27 I&N Dec. at 42-43
- Analysis (General) — Nexus: 27 I&N Dec at 43-46
- Analysis (Specific to the Instant Case) — 27 I&N Dec. at 46-47
- Decision: 27 I&N Dec. 47
On May 24, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) [PDF version]. In the decision, the Board established general rules for determining when an individual who claims membership in a particular social group comprised of his or her own family can be considered to be the member of a particular social group for purposes of seeking asylum and/or withholding of removal. The Board held that “[w]hether 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.” Secondly, the Board held that, in order to establish eligibility for asylum or withholding of removal based on membership in such social group, the asylum 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.”
The Matter of L-E-A- constitutes significant precedent for asylum/withholding applications based on membership in a particular social group comprised of the applicant's family members. In this article, we will examine the facts of the case, the Board's reasoning and decision, and the effect of the new precedent going forward.
The respondent, a native and citizen of Mexico, entered the United States for the first time in 1998 and departed the United States under a grant of voluntary departure in May of 2011. The respondent returned to his parents' home in Mexico City that same month.
Prior to the respondent's return to Mexico City, members of La Familia Machoacana, a criminal cartel in Mexico, approached the respondent's father and asked if they could sell drugs in his store. The cartel stated that it liked the location. The respondent's father refused to allow the cartel to sell drugs in his store.
About one week after returning to Mexico, the respondent heard gunshots coming from inside a car. A week later, the respondent was approached by the same car. The occupants of the car identified themselves as members of La Familia Michoacana. They asked the respondent if he would sell drugs for them at his father's store because they liked the location. The respondent declined. The cartel members indicated that the respondent should reconsider.
One week later, the respondent was approached by the same car. This time, the occupants of the car, who were wearing masks, attempted to seize the respondent. The respondent escaped.
Soon after the kidnapping attempt, the respondent left for the border and successfully crossed into the United States. Members of La Familia Michoacana contacted the respondent's father and claimed to have kidnapped the respondent. The respondent's father confirmed that this was untrue. The respondent's father continued operating his store, but he began paying “rent” to La Familia Micoacana. Although this made the respondent's father's store unprofitable, members of the respondent's family who live in Mexico were not subjected to additional incidents of harm.
The respondent believed 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. He asserted a fear of persecution on that basis in seeking asylum and withholding of removal.
The Immigration Judge found the respondent to be credible. However, the Immigration Judge concluded that La Familia Michoacana was interested in distributing illegal drugs at the respondent's father's store for the purpose of increasing the cartel's own profits. This was different from being motivated to harm the respondent's father and family members based on their membership in the family itself. To this effect, the Immigration Judge found that that the persecutors — being the cartel — was motivated by the desire to increase its own profits by prevailing upon the owner of the store to allow the sale of the cartel's drugs. The Immigration Judge found that if the respondent's father were to sell the store, La Familia Michoacana would simply target the new owner.
On appeal, the respondent argued that he experienced harm rising to the level of persecution based on his membership in the particular social group of his father's family. He also argued that he had a well-founded fear of harm on this basis were he to return to Mexico.
The Board requested supplemental briefing in the case. Both the respondent and the Department of Homeland Security (DHS) agreed that the immediate family unit of the respondent's father qualified as a cognizable particular social group. The parties also agreed that a nexus between membership in a particular social group comprised of an applicant's family and persecution may be established if family membership is one central reason for the persecution. In an additional point, the respondent argued that the Immigration Judge did not make complete findings of fact regarding his application for protection under the Convention Against Torture.
The Board agreed with both the respondent and the DHS that members of a family may constitute a particular social group. This is consistent with a series of existing published BIA decisions cited by the Board:
- Matter of C-A-, 23 I&N Dec. 951, 959 (BIA 2006) [PDF version] (“Social groups based on 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) [PDF version], and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) [PDF version]; and
- Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985) [PDF version] (taking the position that “kinship ties” is a common, immutable characteristic), modified on other grounds, Matter of Mogharrabi, 19 I&N Dec. 439, 441 (BIA 1987) [PDF version].
Various circuit courts have also held that a family can constitute a particular social group. The Board cited to the following non-exhaustive list of examples:
- First Circuit Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993) [PDF version];
- Second Circuit Vumi v. Gonzales, 502 F.3d 150 (2d Cir. 2007) [PDF version];
- Fourth Circuit Crespin-Valladares v. Holder, 632 F.3d 117, 124-125 (4th Cir. 2011) [PDF version];
- Fifth Circuit: Ramirez-Mejia v. Lynch, 794 F.3d 485, 492-93 (5th Cir. 2015) [PDF version];
- Sixth Circuit: Al-Ghorbani v. Holder, 585 F.3d 980, 995 (6th Cir. 2009) [PDF version];
- Seventh Circuit Ayele v. Holder, 564 F.3d 862, 869 (7th Cir. 2009) [PDF version]; and
- Ninth Circuit Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015) [PDF version].
Citing to Matter of M-E-V-G-, 27 I&N Dec. at 242, and Matter of W-G-R-, 26 I&N Dec. at 211-212, vacated in part and remanded on other grounds by Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016), the Board explained that a determination of whether a social group is “cognizable” is a fact-based inquiry that is made on a case-by-case basis. In determining whether a social group is cognizable, the Board considers whether it is “immutable” and “socially distinct in the relevant society.” Accordingly, not every group involving family members will be “cognizable” for purpose of seeking asylum and/or withholding of removal. To this effect, the Board cited to Jie Lin v. Ashcroft, 377 F.3d 1014 (9th Cir. 2004) [PDF version], wherein the Ninth Circuit held that some family links will not per se confer “particular social group” membership. In the Matter of S-E-G-, 24 I&N Dec. 579, 585 (BIA 2008) [PDF version], the Board rejected a claim that a group comprised of “family members” (which in that case could have included fathers, mothers, siblings, uncles, aunts, nieces, nephews, grandparents, and cousins) of a Salvadoran youth who were subjected to recruitment efforts by the MS-13 gang and who rejected or resisted joining such gang comprised a “particular social group” because the group was “too amorphous.”
The Board agreed with the DHS's position that an inquiry into a particular social group claim based on family membership “will depend on the nature and degree of the relationship involved and how those relationships are regarded by society in question.”
The Board held that the facts in the instant case presented a valid particular social group. Accordingly, it did not find it necessary to address the circumstances that would further weigh for or against finding that the family constituted a particular social group.
Citing to the Matter of W-G-R-, 26 I&N Dec. at 223, the Board explained that in an application for asylum, the applicant bears the burden of establishing:
- A cognizable social group;
- His or her membership in that social group; and
- His or her persecution or fear of persecution on account of membership in that social group.
The Board held that based on the facts, the respondent established points 1 and 2. It explained that “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.” Accordingly, the Board shifted its inquiry to evaluating whether the respondent established that he faced persecution on account of his membership in the particular social group comprised of members of his immediate family.
Citing to the Matter of W-G-R-, 26 I&N Dec. at 218, the Board explained that by an asylum applicant's establishing that he or she is a member of a family-based particular social group, does not necessarily mean that the applicant has also established that he or she was threatened or inflicted with harm by the persecutor on account of the family membership. In short, membership in a particular social group and the reason for persecution are clearly separate issues. Citing to the Matter of N-M-, 25 I&N Dec. 526, 530 (BIA 2011) [PDF version], the Board explained that an applicant cannot establish his or her persecution claim without establishing a nexus between his or her membership in the family-based particular social group and the persecution. Specifically, the applicant has the burden of proving that he or she faced or faces persecution because the persecutor was motivated by his or her protected trait. In the instant case, the protected trait was the respondent's membership in the particular social group comprised of his father's immediate family. In a key point, the Board cited to the Matter of N-M-, 25 I&N Dec. at 531, to explain that, if the evidence persecutor would have treated the applicant the same if the protected characteristic of family did not exist, then the applicant would be unable to establish a persecution claim based on his or her membership in the family-based particular social group.
Citing to the Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 212 (BIA 2007) [PDF version], the Board explained that membership in the particular social group must be “at least one central reason” for the persecutor's treatment of the applicant. If the nexus between membership in the particular social group and the persecution is “minor … incidental [or] tangential,” the applicant would be unable to establish the requisite nexus between his or her membership in the particular social group and the persecution.
Citing to the Matter of N-M-, 25 I&N Dec. at 532, the Board explained that “[a] persecutor's actual motive is a matter of fact to be determined by the immigration judge…” Citing to the Matter of D-R-, 25 I&N Dec. 445, 453 (BIA 2011) [PDF version], remanded on other grounds, Radojkovic v. Hilder, 599 F.App'x 646 (9th Cir. 2015), the Board explained that both direct and circumstantial evidence regarding the persecutor's motive should be considered, and that Immigration Judges are permitted to draw “reasonable inferences” based on evidence in the record.
The Board stated that the nexus between membership in a family-based particular social group and persecution would be established by evidence that the persecutor sought to harm the family members because of animus against the family itself. Using an illustrative example, the Board explained that the Bolshevik assassination of Czar Nicholas II, his wife, and their five children after he had abdicated the throne would satisfy this nexus. Although there were political reasons for the persecution, the Board explained that the victims' family membership was undoubtedly “one central reason” for their persecution. In a footnote, the Board explained that in Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996) [PDF version], it held that “punitive intent” on the part of the persecutor is not required, but rather that the persecutor must have intended to “overcome [the protected] characteristic of the victim.”
The Board noted that many individual situations are far less clear than the Bolshevik assassination of Czar Nicholas II and his family. In such cases, the Board explained that, where “animus against the family per se is not implicated, the question becomes what motive or motives caused the persecutor to seek to harm members of an individual's family.” In short, was at least one central reason for the persecution based on the applicant's membership in the particular social group comprised of members of his or her family, or were all of the motives tangential or incidental to that fact?
The Board noted that cases where the evidence establishes that one central reason for the harm was the applicant's family status are often (but not always) those “cases where family status is connected to another protected ground, particularly where there is a political motive, aside from dynastic succession, that is intertwined or underlies the dispute. To this effect, the Board cited to Vumi, 502 F.3d at 154-56, which concerned 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 the Congo.
The Board explained that the nexus is not established merely by the fact that:
- A particular social group of family members exists; and
- The family members experience harm.
For example, in Martin-Portillo v. Lynch, 845 F.3d 99, 102 (1st Cir. 2016), the First Circuit held that the persecutor, who had been jailed for murdering the applicant's father, was motivated by a desire to retaliate or deter the applicant and his family from seeking revenge against him, rather than because of their family membership.
The Board also took the position that the fact that a persecutor targets a family member merely as a “means to an end” is insufficient to establish a claim, especially in cases where the targeting is not connected to another protected ground. To this effect, the Board cited to Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1165 (9th Cir. 2013) [PDF version], wherein the Ninth Circuit stated that “[i]f someone suffers harm on grounds that are associated with group membership but that also apply to many others, then the harm is not because of membership in a particular social group…” The Board explained that such circumstances “may indicate that family membership was not at least one central reason that the applicant was harmed.”
The Board discussed an interesting Eighth Circuit decision in Cambara-Cambara v. Lynch, 837 F.3d 822 (8th Cir. 2016) [PDF version]. The applicants in this case were wealthy landowners. Gang members attacked various members of the applicants' family, making extortionate demands. The Immigration Judge and the Board had held that the applicants failed to establish a nexus between the harm and their status as family members. The Eighth Circuit affirmed the Board's decision, stating that the applicants failed to prove that they had been targeted due to their family relationships as opposed to the fact that they were prosperous businessmen. Furthermore, the Eighth Circuit noted that their status as prosperous businessmen made them “obvious targets for extortionate demands.”
The Board held that, according to the facts found by the Immigration Judge in the case, the cartel endeavored to compel the respondent's father to sell its drugs in his store. After being refused by the father, the cartel approached the respondent because the respondent was in a position to provide access to the store, although not because of his family relationship. The Board held that the Immigration Judge's findings were not clearly erroneous. The Board noted in footnote 4 that “[t]his case illustrates the importance of complete findings of fact regarding [the persecutor's] motive.”
The Board recited the Immigration Judge's determination that the respondent was targeted as a means for the cartel to achieve its objective of increasing its profits by selling drugs at the store owned by his father. Accordingly, the cartel's motive in threatening the respondent of increasing its profits by selling drugs in the respondent's father's store was “one central reason” for its actions against the respondent and his family. Conversely, any motive to harm the respondent on account of his membership in his family “was, at most, incidental.” The Board agreed with the Immigration Judge that the evidence in the record did not indicate that the persecutors — being the members of the cartel — had any animus against the respondent or his family “based on their biological ties, historical status, or other features unique to that family unit.” In a key point, the Board noted that the Immigration Judge found that the cartel would have taken the same actions against any family that owned a business at the same location. To this effect, the Board noted that after the respondent left, the cartel coerced his father into paying “rent” to it in lieu of selling drugs. It took the position that this criminal extortion further indicated that the cartel's motive in targeting the respondent was based on making a profit, not family relationship.
Finally, the Board found it significant that the cartel directly asked the respondent to sell drugs in his father's store. The Board noted that this act bears no relationship to the respondent's membership in the social group comprised of his family, but rather was “a direct expression of the cartel's motive to increase its profits by selling contraband in the store.”
For the preceding reasons, the Board held that the Immigration Judge's finding that the cartel was not motivated to harm the respondent based on his family status was not clearly erroneous.
The Board concluded that the respondent had failed to establish that his membership in his family-based social group was at least one central reason for the events he experienced and the harm he claimed to fear in the future. For this reason, the Board dismissed the respondent's appeal from the Immigration Judge's denial of his asylum application.
However, the Board agreed with the respondent that the Immigration Judge did not make complete findings of fact to assess his eligibility for relief under the Convention Against Torture. Accordingly, the Board remanded the record for further proceedings regarding the respondent's request for protection under the Convention Against Torture.
The Board's decision in the Matter of L-E-A- is instructive in that it sets forth in detail rules for determining whether a nexus exists between membership in a family-based social group and persecution suffered or feared by an applicant for asylum. The decision also addresses the criteria for establishing the existence of a family-based social group in the first place.
In the body of the article, we did not address an interesting point that the Board included in footnote 3 of its decision. The Board suggested that, based on published decisions of the Fourth Circuit, it may have reached a different conclusion in a case presenting the same facts as the Matter of L-E-A- (specifically, that “it is not clear.”) The Board was not required to consider the issue in the instant case because the Matter of L-E-A- arose in the Ninth Circuit, not the Fourth. However, the footnote highlights that the analysis of asylum claims may differ depending on where they arise based on the controlling circuit precedent.
When seeking asylum or any similar form of relief, it is important to consult with an experienced immigration attorney. An attorney may determine what grounds an individual has for relief and how best to pursue any such grounds.