Aldana Ramos v. Holder, Jr. ( 2014 )


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  •           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.
    June 27, 2014
    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
    -2-
    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
    -3-
    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.
    -4-
    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.
    -5-
    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."
    -6-
    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.
    -7-
    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, ___ F.3d ___, 
    2014 WL 1910962
    , at *1 (1st Cir. May 14, 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)).
    -8-
    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."
    -9-
    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
    that a family may be a particular social group simply by virtue of
    4
    A strand of cases within the Ninth Circuit held that a
    family could never be a particular social group, but those cases
    were overruled by the en banc court. See Thomas v. Gonzales, 
    409 F.3d 1177
    , 1180 (9th Cir. 2005) (en banc), vacated on other
    grounds, 
    547 U.S. 183
     (2006).
    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).
    -10-
    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"); Thomas v. Gonzales, 
    409 F.3d 1177
    , 1188-89
    (9th Cir. 2005) (en banc) ("[T]here is nothing in the statute . . .
    to suggest that membership in a family is insufficient, standing
    alone, to constitute a particular social group in the context of
    establishing eligibility for asylum or withholding of removal."),
    vacated on other grounds, 
    547 U.S. 183
     (2006); 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.    As the BIA has explained, 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).                 A "purely
    linguistic analysis of this ground" shows that it can encompass
    -11-
    "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 kindred interests," including based on "family
    background."     
    Id. at 232-33
    .       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 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;
    and the appearance of unmarked cars and heavily armed men at their
    aunt's house four hours away.       Additionally, petitioners point to
    -12-
    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 neatly fit 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).
    The government attempts a recharacterization of the
    facts.    It   argues   that   "there   were   no   'threats'   [against
    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.
    -13-
    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 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
    of such a connection: they testified to their belief that the
    murder charges were dismissed because the local judge was paid off.
    -14-
    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,
    . . . and not on account of a protected characteristic of the
    -15-
    respondents' father or of their family."       This conclusion, of
    course, is directed toward Haroldo and not toward the 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.   We see no support in this record for the BIA
    and IJ's conclusions that petitioners were targeted based solely on
    their family's wealth, as that conclusion is directly at odds with
    the strong inference from petitioners' credible testimony.7
    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 for three reasons. First, there is nothing in the
    record whatsoever to support the inference; such a conclusion would
    be based on pure speculation. Second, the record actually suggests
    that the "Z" gang did know about petitioners' true financial
    -16-
    Independently, petitioners also correctly point out that
    asylum is still proper in mixed-motive cases even where one motive
    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.
    situation, since the "Z" gang witnessed directly the difficulty
    petitioners had in gathering the ransom money even in the face of
    an immediate death threat against their father. Moreover, there is
    evidence of a connection between the "Z" gang and Marlon Martínez's
    son; Martínez likely knew of the petitioners' financial situation
    because they approached him to sell the car dealership. Finally,
    even if this inference were plausible on this record, the BIA never
    actually drew the inference.
    -17-
    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,
    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.
    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).
    -18-
    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
    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.9
    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,
    9
    The record shows that all members of petitioners' family
    that the record identifies as living in Guatemala at the relevant
    time were targeted by the "Z" gang: Haroldo, both petitioners, and
    their aunt. That distinguishes this case from those past decisions
    in which we held that petitioners had not proven persecution "on
    account of" their family membership in part because other members
    of their family in the country were not being persecuted. See,
    e.g., Dias Gomes v. Holder, 
    566 F.3d 232
    , 234 (1st Cir. 2009);
    Ruiz, 
    526 F.3d at 37
    ; see also Escobar-Hernandez v. Holder, 
    473 F. App'x 785
    , 785 (9th Cir. 2012).
    -19-
    
    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.
    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.
    -20-