Espinoza-Ochoa v. Garland ( 2023 )

United States Court of Appeals
For the First Circuit
No. 21-1431
JUAN JOSE ESPINOZA-OCHOA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Howard, and Rikelman,
Circuit Judges.
Randy Olen for petitioner.
Robert D. Tennyson, Jr., Trial Attorney, Office of
Immigration Litigation, with whom Bryan Boynton, Acting Assistant
Attorney General, Civil Division, Paul Fiorino, Senior Litigation
Counsel, and Nancy E. Friedman, were on brief, for respondent.
December 27, 2023
RIKELMAN, Circuit Judge. After a gang stole livestock
from his farm in Guatemala and he reported the theft to the police,
Juan Jose Espinoza-Ochoa began receiving death threats. The
threats continued even after he and his family moved repeatedly.
Fearing for his safety and the well-being of his family, Espinoza-
Ochoa fled to the United States, where he was apprehended and
applied for asylum and withholding of removal based on his status
as a landowning farmer. An Immigration Judge ("IJ") found him
credible and concluded that his experiences at the hands of the
gang and the police rose to the level of persecution. But the IJ
nevertheless denied Espinoza-Ochoa's application on the ground
that he failed to establish that the persecution was motivated by
a protected ground. The Board of Immigration Appeals ("BIA")
affirmed, and Espinoza-Ochoa petitioned this court for review.
His petition identifies two errors in the BIA's
analysis. First, Espinoza-Ochoa argues the BIA wrongly rejected
his particular social group ("PSG") as impermissibly circular
simply because he referred to the persecution he had experienced
in describing his PSG. Second, Espinoza-Ochoa argues that he
established a causal nexus between the persecution he endured and
his PSG and that the BIA erred by concluding otherwise. We agree
that Espinoza-Ochoa's proffered PSG is not circular. A review of
a PSG for legal validity must be based on a substantive analysis,
not a superficial "quick look" at the words used. Further, we
- 2 -
conclude that the BIA erred by failing to conduct a mixed-motive
analysis in evaluating whether Espinoza-Ochoa's PSG was "one
central reason" for his persecution. We therefore grant the
petition, vacate the decision of the BIA, and remand for further
proceedings.
I. BACKGROUND
A. Relevant Facts1
Juan Jose Espinoza-Ochoa was born in the Retalhuleu
region of Guatemala and resided there until he fled to the United
States in 2016. In 2004, Espinoza-Ochoa acquired a corn and cattle
farm, where he worked and lived with his wife and children. One
morning in February 2016, Espinoza-Ochoa discovered that a fence
on his property had been cut and that two of his cows were missing.
Vehicle tracks on the property suggested someone had stolen them.
He filed a complaint with the police, who promised to investigate.
But after a day passed and the police had done nothing, he and two
friends began to search for the cattle on their own.
About eight days later, the group spotted one of the
missing cows on land about forty minutes away. Espinoza-Ochoa
recognized the cow because he had branded it with his initials.
1 "We draw the relevant facts from the administrative record,"
including "testimony before the IJ . . . [that] the IJ found to be
credible and corroborated." Barnica-Lopez v. Garland, 59 F.4th
520, 525 n.1 (1st Cir. 2023) (citing Adeyanju v. Garland, 27 F.4th
25, 31 (1st Cir. 2022)).
- 3 -
Once again, he called the police for help, and they said they would
arrive within forty minutes. While he waited, Espinoza-Ochoa
received repeated phone calls from an unknown caller asking for
his location, which he feared were an attempt to find and harm
him.
After several hours, the police arrived, as well as the
owner of the property, whom Espinoza-Ochoa recognized as a member
of a gang. The police initially resisted taking any action but
faced growing pressure from friends and locals who had gathered at
the scene. When the property owner could not prove that he had
purchased the cow lawfully, the police arrested him. Then, amid
the commotion, a child ran up to the suspect, telling him the "boss
is saying you don't have to say anything, he's going to take you
out of jail." Espinoza-Ochoa accompanied the police to the
station, where he was questioned and required to produce personal
documents.
The IJ credited Espinoza-Ochoa's testimony that he
received multiple threats after he found his stolen cow. At least
one threat came from the police: During Espinoza-Ochoa's
questioning at the police station, an officer told him that the
suspect was the officer's brother and warned Espinoza-Ochoa to "be
careful wh[at] you are doing." After the events at the police
station, a gang left threatening notes on the door of Espinoza-
Ochoa's home. As Espinoza-Ochoa testified, he took these threats
- 4 -
seriously because local gangs had previously threatened and killed
farm owners and their relatives after stealing their livestock in
order to intimidate the landowners into abandoning their land or
selling it at a depreciated price. He said he feared even letting
his children go to school.
Amid the threats, Espinoza-Ochoa decided to abandon his
farm and take his wife and children to his father's home in a town
about an hour away. But the gang caught wind of Espinoza-Ochoa's
movements and followed him to his father's town too. He and his
family relocated again, this time to his sister's house, but
Espinoza-Ochoa knew the gang was "still looking for [him]," and
"knew they wouldn't stop." So Espinoza-Ochoa moved his family to
yet another relative's house, and in early April 2016, he left
Guatemala for the United States. Gang members still made death
threats against Espinoza-Ochoa's wife, who remained in Guatemala
with their young children, even after he had left the country.
His family was forced to relocate two more times and remained in
hiding at the time of his testimony before the IJ in 2019.
B. Legal Proceedings
Espinoza-Ochoa entered the United States near Sasabe,
Arizona on May 1, 2016. He was detained by the Department of
Homeland Security and sat for a credible fear interview. After
Espinoza-Ochoa explained many of the facts detailed above, an
- 5 -
asylum officer found him credible. He was then placed in removal
proceedings and served with a notice to appear.
In the Boston Immigration Court, Espinoza-Ochoa applied
for asylum based on membership in a PSG as well as withholding of
removal and protection under the Convention Against Torture
("CAT"). In his application and during his testimony before the
IJ, Espinoza-Ochoa recounted the theft of his livestock and the
threats he received after he turned to the police. Three witnesses
also provided corroborating testimony at a hearing in March 2019.
The IJ found that Espinoza-Ochoa was "a credible
witness" after "observ[ing] [his] candor[,] . . . demeanor and
responsiveness on the witness stand." Specifically, the IJ
concluded that Espinoza-Ochoa was "truthful" about the harm he
experienced, including that a gang member stole his livestock,
that he received "credible threats of death from gang member[s]
who he knew were capable of carrying out such threats," and that
the gang members "acted with impunity" from the police. The IJ
further found that "these threats" rose to the level of
persecution.
Still, the IJ denied Espinoza-Ochoa's request for asylum
for two reasons. First, the IJ concluded that his social
group -- "land-owning farmer, who was persecuted for simply holding
[the] position of farmer and owning a farm, by both the police and
gangs in concert" -- was "impermissibly circular" because it "does
- 6 -
not exist independently of harm." According to the IJ, Espinoza-
Ochoa's use of the words "who was persecuted" in describing his
PSG meant the social group was "defined by the harm that [he] . . .
received" and therefore was legally invalid.
Second, the IJ decided that Espinoza-Ochoa's persecution
bore "no nexus to any enumerated [protected] ground" for seeking
asylum because his status as a landowning farmer lacked a causal
link to either the theft of the cattle or the death threats that
followed. In the IJ's view, the "theft of livestock to force
[Espinoza-Ochoa] to close his farm" was "generalized criminal
activity" motivated by the gang's desire to "eventually take over
the farmland and increase their profit and power in the area."
Relying on since-vacated authority, the IJ explained that
"generalized criminal activity . . . would not generally be a basis
for asylum." See Matter of A-B-, 27 I. & N. Dec. 316, 317 (A.G.
2018), vacated, 28 I. & N. Dec. 307 (A.G. 2021). The IJ also
concluded that the death threats, though credible, lacked a nexus
to Espinoza-Ochoa's social group. The threats were driven by
"revenge" for "report[ing] [the gang] to the police," the IJ
concluded, not by a desire to harm landowning farmers. The IJ
- 7 -
accordingly denied Espinoza-Ochoa's asylum application and his
application for withholding of removal.2
The BIA "adopt[ed] and affirm[ed]" the IJ's decision
that, "even though [Espinoza-Ochoa] demonstrated the threats he
received in Guatemala rose to the level of harm to constitute
persecution," he was ineligible for asylum because "he did not
demonstrate the persecution was on account of a protected ground."
In adopting the IJ's legal analysis on circularity, the BIA agreed
that Espinoza-Ochoa's PSG "is not . . . cognizable . . . because
it does not exist independently from the harm [he] suffered." The
agency also agreed that Espinoza-Ochoa "did not demonstrate a nexus
to any enumerated ground" and that "the theft of two of [his]
cattle and subsequent threats" were "criminal activities."3 Thus,
it affirmed the IJ's denials of withholding of removal and CAT
protection as well. Espinoza-Ochoa timely petitioned this court
for review.
2 The IJ also denied Espinoza-Ochoa's request for protection
under the CAT. Espinoza-Ochoa's briefing before us does not
challenge that denial.
3 Espinoza-Ochoa also argued to the BIA that he was persecuted
on account of his political opinion, but, as the BIA noted, he did
not raise that argument before the IJ. Nonetheless, the BIA stated
that "opposition to a gang's criminal activities does not
constitute a political opinion for purposes of establishing
eligibility for asylum." Espinoza-Ochoa has expressly abandoned
any argument based on political opinion in his petition.
- 8 -
II. STANDARD OF REVIEW
When the BIA adopts the IJ's decision but adds its own
gloss, we "review the decisions of both the BIA and the IJ"
together. Aldana-Ramos v. Holder, 757 F.3d 9, 14 (1st Cir. 2014).
We review the agency's legal conclusions de novo with "some
deference to its interpretations of statutes and regulations
related to immigration matters." Id. (citing Matos-Santana v.
Holder, 660 F.3d 91, 93 (1st Cir. 2011)). We uphold factual
findings unless the record compels a contrary conclusion. Varela-
Chavarria v. Garland, 86 F.4th 443, 449 (1st Cir. 2023).
III. DISCUSSION
We begin with the legal framework governing the issues
raised by Espinoza-Ochoa's petition. An applicant for asylum must
qualify as a "refugee" within the meaning of the Immigration and
Nationality Act ("INA"). 8 U.S.C. § 1158(b)(1)(A). A refugee is
someone "unable or unwilling to return [to] or to avail herself of
the protection of her own country 'because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion.'" De Pena-Paniagua v. Barr, 957 F.3d 88, 92 (1st Cir.
2020) (quoting 8 U.S.C. § 1101(a)(42)(A)). To satisfy the "on
account of" requirement, the protected ground need not be the only
reason for the harm the applicant suffered, but it must be "at
least one central reason for [the] persecuti[on]." 8 U.S.C.
- 9 -
§ 1158(b)(1)(B)(i); accord Barnica-Lopez v. Garland, 59 F.4th 520,
528 (1st Cir. 2023).
A similar test applies to withholding of removal. "To
obtain relief in the form of withholding of removal, an [applicant]
must establish a clear probability that, if returned to his
homeland, he will be persecuted on account of a statutorily
protected ground." Sanchez-Vasquez v. Garland, 994 F.3d 40, 46
(1st Cir. 2021) (citing 8 U.S.C. § 1231(b)(3)(A)). To meet this
standard, an applicant must prove "three discrete elements: a
threshold level of past or anticipated serious harm, a nexus
between that harm and government action or inaction, and a causal
connection to one of the five statutorily protected grounds" under
the asylum statute. Barnica-Lopez, 59 F.4th at 528 (quoting
Sanchez-Vasquez, 994 F.3d at 46). Unlike asylum, withholding of
removal requires "a clear probability of persecution," as opposed
to "a well-founded fear," and an applicant's subjective fear is
not relevant. See id. (first quoting Sanchez-Vasquez, 994 F.3d at
46, and then citing Aguilar-Escoto v. Sessions, 874 F.3d 334, 337-
38 (1st Cir. 2017)). Due to the substantive similarities in the
standards for asylum and withholding of removal claims, "'asylum
precedents may be helpful in analyzing withholding-of-removal
cases,' and vice versa." Id. (quoting Sanchez-Vasquez, 994 F.3d
at 46).
- 10 -
Here, the IJ and BIA found, and the government does not
dispute, that Espinoza-Ochoa credibly testified that he
experienced harm and threats of harm in Guatemala that
"constitute[d] persecution." But the agency concluded that
Espinoza-Ochoa was still ineligible for asylum for two reasons.
First, it held that Espinoza-Ochoa had failed to identify a valid
PSG because the social group he delineated, "land-owning farmer,
who was persecuted for simply holding [the] position of farmer and
owning a farm, by both the police and gangs in concert," was
impermissibly circular. Second, the IJ and BIA each held that,
regardless of whether his asserted PSG was valid, the harm
Espinoza-Ochoa experienced was "generalized criminal activity" and
therefore was not on account of his social group.
We conclude that the BIA committed legal error in both
its PSG and nexus analyses. We first explain why Espinoza-Ochoa's
PSG was not circular and then evaluate whether his PSG was "at
least one central reason" for the harm he suffered. Ultimately,
we remand to the agency to reconsider both issues consistent with
this opinion.
A. The BIA erred by concluding that
Espinoza-Ochoa's PSG was circular.
Under the BIA's well-established interpretation of the
INA, an applicant seeking relief based on his membership in a PSG
"must establish that the group is: (1) composed of members who
- 11 -
share a common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in
question."4 Paiz-Morales v. Lynch, 795 F.3d 238, 244 (1st Cir.
2015) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A.
2014)). The burden of showing membership in a legally cognizable
group rests with the applicant. See id. at 243-44.
The circularity rule resides in the social distinction
requirement and reflects that an eligible PSG must "be perceived
as a group by society," not merely by its persecutors. M-E-V-G-,
26 I. & N. Dec. at 240 (citing In re C-A-, 23 I. & N. Dec. 951,
956-57 (B.I.A. 2006)). Thus, "the persecutors' perception is not
itself enough to make a group socially distinct," and "persecutory
conduct alone cannot define the group." Id. at 242 (citing Matter
of A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 74 (B.I.A. 2007)). The
relevant perspective is that of the rest of society.
The government argues that to avoid circularity, "[a]
sufficiently distinct social group must exist independent of the
persecution" the applicant suffered "and must have existed before
4 Earlier opinions by the BIA and the courts of appeals
referred to the social-distinction factor as "social visibility."
See, e.g., Matter of S-E-G-, 24 I. & N. Dec. 579, 582 (B.I.A.
2008). But the BIA has embraced the term "social distinction" to
clarify that a proffered PSG lacking "ocular visibility" may still
be valid as long as society recognizes that the group exists,
citing as an example a group defined by sexual orientation. Matter
of M-E-V-G-, 26 I. & N. Dec. 227, 240 (B.I.A. 2014); see also
De Pena-Paniagua, 957 F.3d at 95 (citing M-E-V-G-, 26 I. & N. Dec.
at 236).
- 12 -
the alleged persecution began." Perez-Rabanales v. Sessions, 881
F.3d 61, 67 (1st Cir. 2018) (citing Burbiene v. Holder, 568 F.3d
251, 254 (1st Cir. 2009)); see also Rreshpja v. Gonzales, 420 F.3d
551, 556 (6th Cir. 2005). That is certainly a correct statement
of the law, but the government interprets the relevant cases to
stand for a rule that any reference to harm in the formulation of
a PSG is fatal. The BIA agreed, embracing the IJ's statement that
"the phrase 'who was persecuted' renders the particular social
group invalid because it is defined by the harm" Espinoza-Ochoa
had suffered.
But "the shared trait of persecution does not disqualify
an otherwise valid social group." M-E-V-G-, 26 I. & N. Dec. at
243 (citing Cece v. Holder, 733 F.3d 662, 671 (7th Cir. 2013)
(en banc)). Even though "a social group cannot be defined
exclusively by the fact that its members have been subjected to
harm," the BIA's decisions recognize that shared suffering "may be
a relevant factor in considering the group's visibility in
society." A-M-E- & J-G-U-, 24 I. & N. Dec. at 74 (emphasis added).
That the persecutors view the group as distinct "can be
indicative," though not determinative, "of whether society views
the group as distinct." M-E-V-G-, 26 I. & N. Dec. at 242 (emphasis
added). In some circumstances, "[t]he act of persecution . . .
may be the catalyst that causes the society to distinguish" the
group and "consider [it] . . . distinct." Id. at 243. That is
- 13 -
why "a social group determination must be made on a case-by-case
basis" by reviewing the facts of each application, rather than
based on a conclusory judgment that a PSG is circular per se. Id.
at 242; accord A-M-E- & J-G-U-, 24 I. & N. Dec. at 74 (social
distinction requires assessment of "the context of the country of
concern and the persecution feared").
Giving due weight to the BIA's precedents, we have
rejected invitations to treat the circularity rule as a
"categorical" barrier to any PSG that references the suffering of
its members. De Pena-Paniagua, 957 F.3d at 93-94. Instead, we
have treated circularity in line with the general principle that
"[w]hether a particular social group is cognizable is a 'fact-
based inquiry made on a case-by-case basis,'" including "whether
the group is . . . socially distinct in the relevant society."
Varela-Chavarria, 86 F.4th at 452 (quoting Matter of W-Y-C- &
H-O-B-, 27 I. & N. Dec. 189, 191 (B.I.A. 2018)); see also Paiz-
Morales, 95 F.3d at 245 (quoting M-E-V-G-, 26 I. & N. Dec. at 251).
It is true that our cases have sometimes stated that "a
social group cannot be defined by the claimed persecution."
See, e.g., Hernandez-Mendez v. Garland, 86 F.4th 482, 490
(1st Cir. 2023); see also Perez-Rabanales, 881 F.3d at 67;
Burbiene, 568 F.3d at 254. But even in those cases, our analysis
reflected the legal standard as we reaffirm it today: that a social
group cannot be defined "only" by harm, Perez-Rabanales, 881 F.3d
- 14 -
at 67 (quoting Escobar v. Holder, 657 F.3d 537, 545 (7th Cir.
2011)), and must share a common characteristic "other than" the
"risk of being persecuted," Burbiene, 568 F.3d at 254 (quoting
Rreshpja, 420 F.3d at 556).
Circularity issues often have surfaced in cases
addressing gender-based violence and domestic abuse. In De Pena-
Paniagua v. Barr, the BIA had held that the PSG "Dominican women
unable to leave . . . a relationship with the man who abuses them"
was circular because the inability to leave a relationship was
part of the persecution the women experienced. 957 F.3d at 92-
93. On petition to this court, we reversed the BIA for treating
"the circularity [rule] as categorical." Id. at 93. We concluded
that the "categorical rejection of any group defined by its
members' inability to leave relationships with their abusers" was
"arbitrary." Id. We could discern "no logic or reason behind the
assertion that abuse cannot do double duty, both helping to define
the group[] and providing the basis for a finding of persecution."
Id. at 94. On remand, we directed the BIA to "consider, at least,
whether the proffered groups exist and in fact satisfy the
requirements for constituting a particular social group." Id.
Put differently, the BIA had to examine the facts of the specific
case, not just the language used to articulate the PSG.
We applied similar principles to reach the opposite
result in Perez-Rabanales v. Sessions. There, we affirmed the
- 15 -
BIA's dismissal because the applicant had not introduced evidence
indicating that members of the social group "Guatemalan women who
try to escape systemic and severe violence but who are unable to
receive official protection" shared any socially distinguishing
characteristic other than "the[ir] persecution."5 881 F.3d at 67;
see also De Pena-Paniagua, 967 F.3d at 93-94 (discussing Perez-
Rabanales).
Our sister circuits also have recognized that whether a
PSG is circular cannot be based only on an applicant's word choice
in delineating their PSG.6 See, e.g., Grace v. Barr, 965 F.3d 883,
904 (D.C. Cir. 2020). The Court of Appeals for the Ninth Circuit,
for example, requires the BIA to strike the circular language and
"consider whether a petitioner's social group is cognizable if it
is defined without reference to the fact of persecution." Diaz-
5 We also concluded that the "amorphous nature" of the group
"render[ed] the group insufficiently particular." Perez-
Rabanales, 881 F.3d at 66.
6 Despite the government's suggestion to the contrary at oral
argument, we can locate no circuit in which a facially circular
PSG could not be found valid based on evidence that the relevant
society viewed the group as distinct. See, e.g., Jaco v. Garland,
24 F.4th 395, 399, 406-07 (5th Cir. 2021) (holding "Honduran women
unable to leave their relationships" was not cognizable because it
was defined by the harm suffered and the applicant had failed to
show that Honduran society perceived such women as a distinct group
within society); Lushaj v. Holder, 380 F. App'x 41, 43 (2d Cir.
2010) (same for "women whom members of the Haklaj gang wished to
kidnap and force into prostitution, at least in part to punish
their family members for their political activities in Albania"
(alterations and internal quotation marks omitted)).
- 16 -
Reynoso v. Barr, 968 F.3d 1070, 1080-81 (9th Cir. 2020). We agree
that "it is not fair" to evaluate a PSG based merely on a cursory
assessment of the words used. Grace, 965 F.3d at 904 (quoting
Cece, 733 F.3d at 672).
A review of a PSG for legal validity must be based on a
substantive analysis, not a superficial "quick look." The
adjudicator must "determin[e] what underlying characteristics
account for the fear and vulnerability" of the group, and whether
the society views those characteristics as distinct. Id. (quoting
Cece, 733 F.3d at 672). For example, "Salvadoran women who are
unable to leave their domestic relationships where they have
children in common with their partners" is a group that "appears
to be defined in part by the alleged harm." Id. (quoting A-B-, 27
I. & N. Dec. at 321). But if those women's "inability to leave
[their] relationship[s] stems from circumstances independent of
the alleged harm -- for example, legal constraints on
divorce -- then the group would not be circular because the
'inability to leave' does not refer to harm at all." Id. (quoting
De Pena-Paniagua, 957 F.3d at 93-94).
In sum, the BIA, this court, and our sister courts agree
that a PSG's reference to harm does not, on its own, resolve its
legal validity. Instead, further analysis is necessary to evaluate
whether the putative group shares other socially distinctive
characteristics. One way to satisfy that requirement is to strike
- 17 -
the circular language and re-evaluate the PSG, see Diaz-Reynoso,
968 F.3d at 1080-81, though other modes of inquiry may also
suffice.
The BIA and IJ failed to conduct that substantive
analysis here. Instead, they looked at the words used to describe
the PSG and then ended their review. That limited analysis is
inconsistent with binding First Circuit precedent. See De Pena-
Paniagua, 957 F.3d at 93-95.
The government disagrees, arguing that our statement in
Perez-Rabanales that "[a] sufficiently distinct social group must
exist independent of the persecution claimed to have been suffered"
requires affirmance here. 881 F.3d at 67. But the government
misunderstands our holding in that case. As we have already
explained, Perez-Rabanales did not state that any PSG that includes
a reference to the persecution of its members fails as a matter of
law. Rather, it affirmed the BIA because the applicant had not
introduced any facts showing that her PSG was socially distinct.
Id. In other words, Perez-Rabanales treated circularity as a case-
specific inquiry, consistent with the steady drumbeat of BIA, First
Circuit, and other federal precedent cited above, not as a
categorical bar to any social group that references harm. And the
government's brief does not even cite, let alone contend with, our
subsequent explicit rejection of the categorical approach to
circularity in De Pena-Paniagua. See 957 F.3d at 93-94.
- 18 -
Further undermining the government's position, BIA and
circuit court precedent supports the view that "landowning
farmers" can be a valid PSG. To be sure, "landownership does not
automatically confer membership in a particular social group in
all instances." Turcios-Flores v. Garland, 67 F.4th 347, 355
(6th Cir. 2023); accord M-E-V-G-, 26 I. & N. Dec. at 241. But it
is well-established that landowners may have the necessary social
distinction to qualify as a PSG. See A-M-E- & J-G-U-, 24 I. & N.
Dec. at 74; M-E-V-G-, 26 I. & N. Dec. at 241 (landownership may
satisfy "social distinction" requirements in "an underdeveloped,
oligarchical society"). The BIA has made clear that "land
ownership" is an "easily recognizable trait[]" that can form the
basis of a PSG. In re C-A-, 23 I. & N. Dec. at 960. As the Ninth
Circuit has explained, "the easy recognition of landownership" is
not "changed when a petitioner proposes additional
characteristics," like operating a farm on the land, "that other
landowners may or may not share." Cordoba v. Holder, 726 F.3d
1106, 1117 (9th Cir. 2013); see also N.L.A. v. Holder, 744 F.3d
425, 439 (7th Cir. 2014) (upholding as cognizable: "Colombian land
owners who refuse to cooperate with the FARC"); Tapiero de Orejuela
v. Gonzales, 423 F.3d 666, 672-73 (7th Cir. 2005) (upholding as
cognizable: "educated, landowning class of cattle farmers targeted
by FARC"). And BIA precedent indicates that "landowning farmers"
may satisfy immutability and particularity standards too. See
- 19 -
Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (B.I.A. 1985)
(describing the immutability standard), overruled in part on other
grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439, 441 (B.I.A.
1987); Turcios-Flores, 67 F.4th at 355 (holding that "Honduran
rural landowners" shared a "common fundamental characteristic" and
therefore satisfied the immutability standard); M-E-V-G-, 26
I. & N. Dec. at 241 (explaining that "landowners" may satisfy the
particularity standard); Cordoba, 726 F.3d at 1117 (holding that
"wealthy, educated landowners" was particularized and not
overbroad); cf. De Pena-Paniagua, 957 F.3d at 96-97 (concluding
that PSGs constituting large portions of the population can still
satisfy particularity).
Espinoza-Ochoa also introduced case-specific facts that
could support finding that landowning farmers in Guatemala are
socially distinct. To evaluate whether a PSG is socially distinct,
the BIA has said it considers, among other relevant facts: (i)
"whether the society in question recognizes the need to offer
protection to victims of [the persecution], including whether the
country has criminal laws designed to protect [persecution]
victims"; (ii) "whether those laws are effectively enforced";
(iii) "documented country conditions"; (iv) "law enforcement
statistics and expert witnesses"; and (v) "the respondent's past
experiences." Matter of A-R-C-G-, 26 I. & N. Dec. 388, 394-95
(B.I.A. 2014), overruled by A-B-, 27 I. & N. Dec. at 321, vacated,
- 20 -
28 I. & N. Dec. at 307 (reinstating A-R-C-G-). The record here
contains evidence favorable to Espinoza-Ochoa along several of
these factors. He offered testimony and introduced documentary
country-conditions evidence showing that Guatemalan landowners
face "unclear property rights" and are often "forcibly removed"
from their farms, as well as a U.S. State Department report from
2016 assessing that Guatemala lacks "[]effective mechanisms to
address land conflicts." The country-conditions evidence also
explained that legislation to protect farmers had faced political
opposition from agribusiness and described an initiative urging
the government to restore the land of dispossessed farm owners.
Finally, Espinoza-Ochoa testified that family members and
employees of farm owners in his own community had been murdered
after the owners refused to give up their land to the gangs -- and
that he had received grave threats too.
We leave it to the BIA to decide in the first instance
whether Espinoza-Ochoa's social group is socially distinct in
Guatemalan society, consistent with this opinion. See Aldana-
Ramos, 757 F.3d at 16 (remanding due to legal error where facts
"d[id] not preclude and would even allow the BIA to find" a
cognizable PSG). But for the reasons explained above, we conclude
that the agency committed clear legal error by treating the
circularity standard as categorical. If an applicant's proffered
social group, examined without consideration of the potentially
- 21 -
circular language, shares independent socially distinctive
characteristics, then neither the IJ nor the BIA may reject the
group as legally invalid without further substantive analysis. On
remand, the BIA must consider whether the social group of
"landowning farmers" in Guatemala is cognizable under the correct
legal standard. De Pena-Paniagua, 957 F.3d at 94, 95-96.
B. The BIA erred by failing to consider whether
being a landowning farmer was "one central reason"
for the persecution Espinoza-Ochoa experienced.
In addition to demonstrating membership in a protected
group, an asylum applicant must also show that his persecution was
"on account of" that protected ground, 8 U.S.C. § 1101(a)(42)(A),
meaning that the protected ground was "at least one central reason"
for the persecution, id. § 1158(b)(1)(B)(i) (emphasis added). The
burden on Espinoza-Ochoa here was to "establish that he had been
targeted on a protected basis." M-E-V-G-, 26 I. & N. Dec. at 250
(emphasis added).
As its language makes clear, the "one central reason"
test "does not require an asylum applicant to demonstrate that he
was singled out only due to his protected trait." Barnica-Lopez,
59 F.4th at 531 (internal quotation marks omitted) (quoting
Enamorado-Rodriguez v. Barr, 941 F.3d 589, 596 (1st Cir. 2019)).
Relief is still proper even if one reason -- perhaps even the
primary reason -- for the persecution is not a basis for asylum,
"so long as one of the statutory protected grounds is 'at least
- 22 -
one central reason' for the persecution." Aldana-Ramos, 757 F.3d
at 18 (quoting 8 U.S.C. § 1158(b)(1)(B)(i)).
Accordingly, for Espinoza-Ochoa to prevail on a mixed-
motive theory, he "need not prove that a protected ground was the
most important reason" that the gang and the police persecuted
him. Enamorado-Rodriguez, 941 F.3d at 596 (quoting Parussimova v.
Mukasey, 555 F.3d 734, 740 (9th Cir. 2009)). Rather, Espinoza-
Ochoa must show only that being a landowning farmer was not
"incidental, tangential, superficial, or subordinate to another
reason for [the] harm." Barnica-Lopez, 59 F.4th at 531 (quoting
Sanchez-Vasquez, 994 F.3d at 47). Thus, just because the agency
finds that persecutors were motivated by a non-protected ground
does not end the inquiry. "[T]he [immigration] statute require[s]"
the agency to "utilize a mixed-motive or 'at least one central
reason' analysis." Enamorado-Rodriguez, 941 F.3d at 596 (emphasis
added).
For example, the asylum applicant in Enamorado-Rodriguez
alleged that he was beaten by his paternal grandparents because
they hated his mother, citing his nuclear family as his social
group. See id. at 594-95. The IJ found him credible and concluded
that the domestic violence rose to the level of persecution. See
id. But the IJ also found, and the BIA affirmed, that the beatings
were likely on account of his "grandparents' conception of
masculinity," or a reflection of how they had been treated by
- 23 -
elders during their own childhoods, not hatred of his mother. Id.
at 595. The BIA explained that even though Enamorado had
"posit[ed] a plausible alternative motive to the one[s] found by
the IJ," that showing was "insufficient to demonstrate clear
error." Id. But on review, we held that the BIA had erred as a
matter of law "by failing to consider whether Enamorado's
persecution had mixed motivations," in particular, "whether,
despite the possible presence of another motivation, Enamorado's
membership in his mother's family was at least one central reason
for his persecution." Id. at 596.
The agency proceedings here ran afoul of the obligations
under Enamorado-Rodriguez. "Nothing in the IJ's ruling" or the
BIA's decision suggests "that [it] utilized a mixed motive . . .
analysis" or considered whether being a landowning farmer "was at
least one central reason for [Espinoza-Ochoa's] persecution." Id.
Critically, the words "mixed motive" and "one central reason" do
not appear at all in the decisions below (or in the government's
briefing before us). Instead, the IJ merely concluded that cattle
theft was "generalized criminal activity and . . . would not
generally be a basis for asylum," suggesting that the gang's
motivation was greed and wealth.7 It then found that the gang's
7 The BIA and IJ cited the since-vacated decision in Matter
of A-B- for support. A-B- stated that the harm befalling "victims
of private criminal activity," including "victims of gang
- 24 -
threats to kill Espinoza-Ochoa were not "on account of" a protected
ground either; the gang was motivated by "revenge" against
Espinoza-Ochoa for calling the police, not an effort to force a
cheap sale of his farmland.
"Even on its own terms," the agency's conclusion that
Espinoza-Ochoa's persecution was motivated by the greedy desire to
obtain his valuable property, or by revenge, "does not itself
exclude" the possibility that his ownership of a farm was "at least
one of the central reasons" for his persecution. Id. at 596-97
(internal quotation marks omitted) (citation omitted). For
example, we have rejected the argument that just because an
applicant's "wealth is one reason for the alleged persecution,"
then "a protected ground . . . cannot be as well." Aldana-Ramos,
757 F.3d at 18.
So, too, with revenge. Our precedent has "long 'viewed
disputes motivated by revenge as personal in nature.'" Barnica-
violence," will usually lack a nexus to a PSG because "membership
in a purported particular social group 'is often not a central
reason for the threats received'" during ordinary crime, "but
rather is secondary to a grander pattern of criminal extortion."
27 I. & N. Dec. at 317, 322-23 (quoting Velasquez v. Sessions, 866
F.3d 188, 199 (4th Cir. 2017) (Wilkinson, J., concurring)). It
explained that "private criminals are motivated more often by greed
or vendettas than by an intent to overcome the protected
characteristic of the victim." Id. (alterations and internal
quotation marks omitted) (quoting In re Kasinga, 21 I. & N. Dec.
357, 365 (B.I.A. 1996)). We infer from the BIA and IJ's citations
to A-B- that they believed the gangs were motivated by financial
gain, not Espinoza-Ochoa's social group.
- 25 -
Lopez, 59 F.4th at 531 (quoting Marin-Portillo v. Lynch, 834 F.3d
99, 101 (1st Cir. 2016)). "'[P]ersonal disputes are generally not
enough to show the required nexus' between past harm and a
protected ground." Id. (quoting Sompotan v. Mukasey, 533 F.3d 63,
71 (1st Cir. 2008)); but see In re C-A-, 23 I. & N. Dec. at 959
(suggesting that a former police officer could claim asylum if
targeted for "having served as [a] police officer[]" but would
lack nexus if targeted in revenge for "disrupting particular
criminal activity"). But as the Ninth Circuit has said, and we
agree, "even if revenge partially motivate[s]" a persecutor's
mistreatment of an applicant, record evidence can nonetheless
indicate that the applicant's PSG may be "another central reason
for the persecution." Madrigal v. Holder, 716 F.3d 499, 506
(9th Cir. 2013); see also Aldana-Ramos, 757 F.3d at 18-19.
We find that the BIA committed legal error by failing to
consider whether Espinoza-Ochoa's status as a landowning farmer
was a central reason for his persecution. The BIA's error is
particularly notable considering the record before it, which
contained ample findings by the IJ, and "testimony[] deemed
credible by the IJ," to support Espinoza-Ochoa's nexus argument.
Enamorado-Rodriguez, 941 F.3d at 596.
After all, the IJ's own factual findings concluded that
the gangs specifically targeted landowning farmers and stole their
livestock to pressure them to give up their land. These findings
- 26 -
and other record evidence could support a finding that Espinoza-
Ochoa "was more likely to be persecuted by the gang on account of
a protected ground than was any other member of society."
M-E-V-G-, 26 I. & N. Dec. at 250 (citing Matter of S-E-G-, 24
I. & N. Dec. 579, 587 (B.I.A. 2008)). Espinoza-Ochoa offered
uncontradicted testimony that the racketeering scheme involved two
components, summarized in his appellate briefing: "The gangs
subjected the farmers to activities designed to both reduce the
value of their properties, as well as to intimidate them to sell
their farms to . . . 'investors' at reduced prices." He testified
that he was not the first target of the scheme, and that the gang
had previously resorted to murder to intimidate farm owners to
sell or abandon their land. So, when the death threats came for
Espinoza-Ochoa, he believed these threats were credible, as
reflected in the IJ's findings. The gang also pursued and issued
death threats against Espinoza-Ochoa, his wife, and his children
even after Espinoza-Ochoa had abandoned the farm, and his family
remained in hiding for years after he left Guatemala. See
Villalta-Martinez v. Sessions, 882 F.3d 20, 25 (1st Cir. 2018)
(remand for mixed-motive analysis was appropriate where a family
unit "was targeted for persecution even after their financial
resources were exhausted").
If on remand the IJ finds that landowning farmers are a
cognizable PSG, then it should consider in the first instance
- 27 -
whether that PSG was "one central reason" why the gang targeted
Espinoza-Ochoa. Enamorado-Rodriguez, 941 F.3d at 596. Because
the BIA has not yet considered whether Espinoza-Ochoa's status as
a landowning farmer "was . . . a central factor behind the
persecution" he experienced, we remand that question to the agency
and "simply observe that the record is more than sufficient to
allow such a finding."8 Aldana-Ramos, 757 F.3d at 19.
IV. CONCLUSION
For all these reasons, we agree with Espinoza-Ochoa that
legal error infected both the PSG and nexus analyses below.
Accordingly, we GRANT the petition, VACATE the decision below, and
REMAND for further proceedings consistent with this opinion.
8Moreover, if the agency concludes that Espinoza-Ochoa has
met his burden of showing past persecution and is thus entitled to
a presumption of a well-founded fear of future persecution, the
agency should consider on remand whether the government has put
forth sufficient evidence to overcome that presumption. See Olmos-
Colaj v. Sessions, 886 F.3d 168, 180 (1st Cir. 2018) (Barron, J.,
concurring in part).
- 28 -