Vladimir Oliva v. Loretta Lynch , 807 F.3d 53 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1780
VLADIMIR ERNESTO ORTEGA OLIVA, a/k/a Vladimir Ernesto
Ortega Olivia,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 15, 2015 Decided: November 25, 2015
Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Petition for review granted; order reversed in part, vacated in
part, and remanded by published opinion. Judge Wynn wrote the
opinion, in which Judge Diaz and Senior Judge Davis joined.
ARGUED: Jean Zhuang, UNIVERSITY OF VIRGINIA LAW SCHOOL,
Charlottesville, Virginia, for Petitioner. Margaret Judson
Perry, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent. ON BRIEF: Stephen L. Braga, Attorney Director,
Kelsey Bryan, Third Year Law Student, Rachel Wade, Third Year
Law Student, Appellate Litigation Clinic, Doug Ford, Attorney
Director, Sarah Allen, Third Year Law Student, Immigration
Clinic, UNIVERSITY OF VIRGINIA LAW SCHOOL, Charlottesville,
Virginia, for Petitioner. Joyce R. Branda, Acting Assistant
Attorney General, Michelle LaTour, Deputy Director, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
2
WYNN, Circuit Judge:
Vladimir Ernesto Ortega Oliva, a native and citizen of El
Salvador, sought asylum and withholding of removal under the
Immigration and Nationality Act (“INA”). The Board of
Immigration Appeals (“BIA”) denied his petition, affirming the
immigration judge’s (“IJ’s”) determination that Oliva did not
demonstrate a nexus between the persecution he faced and either
of his proposed particular social groups. The BIA further held
that even if Oliva had demonstrated the required nexus, he did
not allege membership in a cognizable particular social group.
We conclude that the BIA erred by interpreting the nexus
requirement too narrowly, and that Oliva successfully
demonstrated that membership in his proposed social groups was
at least one central reason for his persecution. We further
conclude that the BIA failed to adequately address the record
evidence in making its determination that Oliva’s proposed
social groups were not cognizable under the INA. Accordingly,
we grant Oliva’s petition, reverse in part, vacate in part, and
remand for proper consideration of the cognizable social group
issue.
I.
The facts of this matter show that Oliva left his home
country of El Salvador and entered the United States without
authorization in 2007. In July 2010, the Department of Homeland
3
Security served Oliva with a Notice to Appear, charging him with
removability under section 212(a)(6)(A)(i) of the INA, as an
alien present in the United States without admission or parole.
In July 2011, Oliva filed an application for asylum and
withholding of removal.
In 2013, the IJ held a hearing to assess Oliva’s
application. In his testimony and affidavit, Oliva explained
that at the age of sixteen he joined a gang called Mara
Salvatrucha, also known as MS-13, while living in San Rafael
Cedros in El Salvador. 1 He was trained to spy for MS-13 in the
territory of rival gangs.
When he was sixteen or seventeen years old, Oliva witnessed
members of MS-13 brutally murder and dismember a rival gang
member. After seeing this, Oliva decided to distance himself
from the gang.
MS-13 forbids its members from quitting and kills anyone
who attempts to leave the gang. However, MS-13 does allow gang
members to become “inactive” members if they either devote
themselves to the church or get married and start a family. MS-
13 requires inactive members to pay “rent,” a form of monetary
tribute to the gang. A.R. 130. This ensures that inactive
1
The IJ found Oliva to be a credible witness, which means
that his testimony alone “may be sufficient to sustain the
burden of proof without corroboration.” 8 C.F.R.
§ 1208.16(c)(2).
4
members contribute financially to the gang, even if they no
longer contribute physically.
Oliva began distancing himself from the gang and became
more involved in his church. When MS-13 noted his increased
absence from gang activities, gang members started to threaten
Oliva. To escape MS-13, Oliva moved to live with his aunt in
Lourdes Colon, El Salvador, but found that gangs were active
there as well. After about three months in Lourdes Colon, Oliva
moved to San Salvador, the capital of El Salvador, where he
stayed with his godmother for roughly two years.
Around late 1997 or early 1998, Oliva returned to San
Rafael Cedros but tried to stay hidden from MS-13. About a
month after his return, the gang realized he was there.
According to Oliva, the gang “reminded [him] that leaving the
gang was not allowed, and threatened to kill [him] if [he] did
not start paying them ‘rent.’” A.R. 215. After that, Oliva
paid roughly thirty percent of his income to the gang for seven
or eight years.
In 2006, Oliva decided to stop paying rent, and on one
occasion ran from MS-13 gang members to avoid having to pay.
About two months later, in October 2006, members of MS-13
severely beat Oliva to send a message “that if [he] didn’t
continue paying the rent” he would be killed. A.R. 136. After
the beating, Oliva began paying the rent again, and MS-13 “would
5
remind [him] of the rules when they took [his] money.” A.R.
217. Oliva decided to flee to America to protect himself.
Oliva entered the United States without authorization in
2007 and settled down in Virginia. In the summer of 2011, he
began receiving threatening phone calls originating in El
Salvador. The callers told Oliva that if he “cross[es] the
border back into El Salvador they will kill [him] as a
punishment for trying to quit.” A.R. 221.
Despite finding this testimony credible, the IJ denied
Oliva’s application for asylum and withholding of removal. 2 The
IJ found that “[t]he evidence indicates that the gang was not
targeting [Oliva] because of his membership in a group
consisting of former gang members who have either found religion
or started families . . . . Rather, he was targeted for money.”
A.R. 96.
Oliva appealed the IJ’s decision. A one-member panel of
the BIA dismissed the appeal.
2
The IJ determined that Oliva was not entitled to asylum
because he did not qualify for an exception to the one-year
filing deadline for asylum applications. However, this issue is
not before us because the BIA did not address it. Instead, the
BIA determined that even if Oliva had filed his application in
time, he did not establish eligibility for asylum because he did
not demonstrate his membership in a cognizable particular social
group. See infra note 3.
6
II.
The courts of appeals have jurisdiction to review final
orders of removal. 8 U.S.C. § 1252(a)(1); Martinez v. Holder,
740 F.3d 902, 908 (4th Cir. 2014). In this case, the final
order of removal was issued by the BIA. See 8 U.S.C.
§ 1101(a)(47)(B)(i); Martinez, 740 F.3d at 908. We may affirm
the BIA only on the grounds stated in the opinion and may not
substitute what we consider to be “a more adequate or proper
basis” for its conclusions. Crespin-Valladares v. Holder, 632
F.3d 117, 123 (4th Cir. 2011) (quoting SEC v. Chenery Corp., 332
U.S. 194, 196 (1947)).
“[A] decision that an alien is not eligible for admission
to the United States is conclusive unless manifestly contrary to
law.” 8 U.S.C. § 1252(b)(4)(C). We review the BIA’s legal
determinations de novo. Martinez, 740 F.3d at 909. While a
three-member panel of the BIA is entitled to Chevron deference
for its reasonable interpretations of immigration statutes, a
one-member panel of the BIA—like the one in this case—is
entitled to the lesser Skidmore deference. Id. at 909–10; see
Skidmore v. Swift & Co., 323 U.S. 134, 139–40 (1944). In other
words, the opinion of the one-member panel of the BIA is not
controlling upon this Court, but we may consider it as “a body
of experience and informed judgment,” taking into account “the
thoroughness evident in its consideration, the validity of its
7
reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade.” Skidmore, 323 U.S. at 140.
The BIA’s “findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Temu v. Holder,
740 F.3d 887, 891 (4th Cir. 2014) (“We uphold factual findings
unless no rational factfinder could agree with the BIA’s
position.” (citing Crespin-Valladares, 632 F.3d at 124)). The
BIA itself reviews findings of fact made by the IJ for clear
error. See Crespin-Valladares, 632 F.3d at 127 (citing 8 C.F.R.
§ 1003.1(d)(3)(i)).
III.
While Oliva concedes that he is eligible for removal, he
contends that the BIA erred in denying his request for
withholding of removal under section 241(b)(3)(A) of the INA.
Under that section, the Attorney General may not remove an alien
who is otherwise removable “if the Attorney General decides that
the alien’s life or freedom would be threatened in [the country
of removal] because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A). 3
3 Similarly, asylum may be granted if the Attorney General
determines that an alien has established “that race, religion,
8
Oliva argues that his life would be threatened because of
his membership in one of two particular social groups:
(1) “Salvadorans who are former members of MS-13 and who left
the gang, without its permission, for moral and religious
reasons,” and (2) “Salvadorans who were recruited to be members
of MS-13 as children and who left the gang as minors, without
its permission, for moral and religious reasons.” A.R. 3.
The BIA dismissed Oliva’s appeal on two grounds. First,
the BIA held that Oliva’s proposed particular social groups were
not cognizable under the INA. Second, the BIA found that Oliva
failed to demonstrate that the persecution he feared was on
account of his membership in either of his proposed social
groups—the nexus requirement. Oliva challenges both
determinations on appeal.
A.
If the BIA correctly held that Oliva failed to establish a
nexus between his persecution and his proposed social groups,
the Court could affirm the BIA’s decision without reaching the
nationality, membership in a particular social group, or
political opinion was or will be at least one central reason for
persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i).
Because both asylum and withholding of removal claims rely on
the same factual basis, we may look to asylum cases when
deciding whether a petitioner has asserted a valid particular
social group or shown the required nexus in his application for
withholding of removal. See Ai Hua Chen v. Holder, 742 F.3d
171, 184 (4th Cir. 2014) (noting that “the facts that must be
proved are the same” for both claims, although the burden of
proof is higher for withholding of removal).
9
question whether his particular social groups are cognizable
under the INA. See Cordova v. Holder, 759 F.3d 332, 339 (4th
Cir. 2014). Therefore, we begin our analysis by considering
whether Oliva satisfied the nexus requirement.
An applicant must satisfy the nexus requirement by showing
his past or threatened persecution was “on account of” his
membership in that group. 8 U.S.C. § 1101(a)(42)(A). Oliva
argues that the BIA committed reversible error in holding that
he had failed to demonstrate the “on account of” prong. We
agree.
A petitioner must show that his membership in the
particular social group “was or will be a central reason for his
persecution.” Matter of W-G-R-, 26 I. & N. Dec. 208, 224
(B.I.A. 2014) (emphasis added). Stated differently, a protected
ground must be “‘at least one central reason for’ the feared
persecution” but need not be the only reason. Crespin-
Valladares, 632 F.3d at 127 (quoting 8 U.S.C.
§ 1158(b)(1)(B)(i)). Membership in a protected social group may
not, however, be merely “incidental, tangential, superficial, or
subordinate to another reason for harm.” Quinteros-Mendoza v.
Holder, 556 F.3d 159, 164 (4th Cir. 2009) (quoting In Re J-B-N-,
24 I. & N. Dec. 208, 214 (B.I.A. 2007)).
The BIA determined Oliva’s fear of persecution was not on
account of his becoming an inactive gang member, but because of
10
“his specific conduct of violating the [gang’s] rules”—namely
refusing to pay rent. A.R. 6 (citing W-G-R-, 26 I. & N. at
224). This was an overly restrictive view of Oliva’s case. A
close examination of the record illuminates the inextricable
relationship between Oliva’s membership in his proposed social
groups and his refusal to pay rent.
Extortion itself can constitute persecution, even if the
targeted individual will be physically harmed only upon failure
to pay. See Mirisawo v. Holder, 599 F.3d 391, 396 (4th Cir.
2010) (“While ‘persecution’ is often manifested in physical
violence, ‘the harm or suffering [amounting to persecution] need
not be physical, but may take other forms,’ so long as the harm
is of sufficient severity.” (alteration in original) (quoting
H.R. Rep. No 95-1452, at 5 (1978), reprinted in 1978
U.S.C.C.A.N. 4700, 4704)); Jahed v. INS, 356 F.3d 991, 998–99
(9th Cir. 2004). Recognizing that extortion can be a form of
persecution, the appropriate inquiry is thus whether the
extortion occurred on account of protected grounds. See, e.g.,
Aliyev v. Mukasey, 549 F.3d 111, 117–18 (2d Cir. 2008) (holding
that the BIA erred in finding that the petitioner’s extortion
was not on account of his ethnicity when the persecutors made
comments about the petitioner’s ethnic background); Desir v.
Ilchert, 840 F.2d 723, 727-28 (9th Cir. 1988) (finding that
extortion, backed up with physical violence, was on account of
11
both the petitioner’s political beliefs and the personal greed
of the persecutor); cf. Quinteros-Mendoza, 556 F.3d at 164-65
(finding no evidence that gang extortion was on account of a
protected ground).
Here, MS-13’s threats and demands for rent were part of the
persecution Oliva faced and not, for example, a mere precursor
to his persecution. Because it is undisputed that MS-13
extorted Oliva on account of his leaving the gang, the record
compels the conclusion that his persecution was on account of
his status as a former member of MS-13.
Moreover, persecution may be on account of multiple central
reasons or intertwined central reasons, and we have found so
before. For example, in Hernandez-Avalos v. Lynch, the
petitioner, a citizen of El Salvador, was threatened by the Mara
18 gang when she refused to let the gang recruit her twelve-
year-old son. 784 F.3d 944, 947 (4th Cir. 2015). The
petitioner claimed that her persecution was on account of her
membership in a particular social group—her nuclear family. Id.
at 949. The BIA held that the threats were on account of her
refusing to allow her son to engage in criminal activity, not on
account of her family membership. Id. This Court deemed the
BIA’s view manifestly contrary to law and grounded in “an
excessively narrow reading” of the nexus requirement. Id. We
held that “Hernandez’s relationship to her son is why she, and
12
not another person, was threatened with death if she did not
allow him to join Mara 18,” and that “[t]he BIA’s conclusion
that these threats were directed at her not because she is his
mother but because she exercises control over her son’s
activities draws a meaningless distinction.” Id. at 950.
Similarly, in Temu v. Holder, we analyzed the nexus
requirement not by focusing myopically on a particular word or
fact but rather by viewing the case holistically, with an eye to
the full factual context. 740 F.3d at 891–92. The petitioner
claimed that he was persecuted because of membership in a group
of “individuals with bipolar disorder who exhibit erratic
behavior.” Id. at 891. Although the BIA found that Temu was
beaten for being mentally ill and behaving erratically, it
nevertheless held that his persecution was not on account of his
bipolar disorder specifically. Id. at 891–92. We reversed,
holding that no reasonable factfinder could have reached that
conclusion and noting that “to reconcile [the BIA’s] conflicting
findings . . . would demand logical acrobatics.” Id. at 892.
Here, as in Hernandez and Temu, Oliva presented compelling
evidence that the gang did not demand money just for the sake of
personal greed or as a random act of violence, but targeted him
specifically because “leaving the gang was not allowed” unless
he paid rent, A.R. 215, and those were “the rules for people who
are not active members,” A.R. 217. The BIA acknowledged that
13
“gang members began to threaten [Oliva] for ‘rent’ because he
was recognized as a former gang member who no longer
participated in gang activities and did not make payments while
living elsewhere.” A.R. 4 (emphasis added).
Nevertheless, the BIA drew too fine a distinction between
Oliva’s status as a former member of MS-13 and the threats to
kill him for breaking the rules imposed on former members.
While it is true that Oliva’s decision to stop paying rent—like
Hernandez’s decision to resist gang recruitment efforts—was the
immediate trigger for the gang’s brutal assault on Oliva, it was
Oliva’s status as a former gang member that led MS-13 to demand
rent in the first place and to assault him for failure to pay
it. See Hernandez, 784 F.3d at 950.
Finally, the BIA found no connection between the
persecution Oliva faced and the fact that he left the gang “for
moral or religious reasons.” A.R. 6. However, the fact that
Oliva left the gang for moral and religious reasons places him
in the category of former gang members that are required to pay
rent. Thus, the fact that he left MS-13 for moral and religious
reasons is not merely “incidental, tangential, superficial, or
subordinate” to his refusal to pay. Quinteros-Mendoza, 556 F.3d
at 164. Rather, it was a central reason for his persecution. 4
4
We note that the BIA often requires petitioners to add
modifiers onto their social group definition to meet the
14
Even given the deferential standard of review, we conclude
that Oliva faced persecution on account of his membership in a
group of Salvadorans who are former members of MS-13 and who
left the gang, without its permission, for moral and religious
reasons.
B.
Having found that Oliva satisfied the nexus requirement, we
now must consider whether Oliva asserted a cognizable particular
social group. The BIA has held that a particular social group
is cognizable under the INA if the group is: “(1) composed of
members who share a common immutable characteristic, (2) defined
with particularity, and (3) socially distinct within the society
in question.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237
(B.I.A. 2014).
The BIA did not reach the immutability or particularity
prongs because it held that Oliva’s proposed social groups
failed the social distinction requirement. To be socially
particularity requirement. See W-G-R-, 26 I. & N. Dec. at 221–
22 (rejecting a proposed social group consisting of former
members of the Mara 18 gang, because “when a former association
is the immutable characteristic that defines a proposed group,
the group will often need to be further defined” with modifiers,
such as the duration of the individuals’ membership and the
recency of their participation). Requiring each modifier to be
an independent, central reason for the persecution could make it
nearly impossible for petitioners to successfully navigate the
legal requirements for asylum and withholding of removal. And
nothing suggests that there must be a word-for-word match
between the group definition and the motivation of the
persecutors. See Temu, 740 F.3d at 891–92.
15
distinct, a group must be “perceived as a group by society.”
Id. at 240. The BIA determined that “[t]he record contains
little evidence that Salvadoran society perceives individuals
‘who left the [MS-13], without its permission,’ under either of
the two sets of proposed circumstances, as a distinct social
group.” A.R. 5 (second alteration in original).
The BIA stated that Oliva “has identified only one example”
to show social distinction: his assertion that former gang
members suffer employment discrimination. A.R. 5. The BIA
found this example to be insufficient, indicating that it was
not clear from the record that the discrimination was
specifically tied to status as a former gang member.
However, the BIA failed to address any of the other
evidence that Oliva put forth, including evidence of government-
and community-driven programs to help former gang members
rehabilitate themselves and an affidavit from a community
organizer who stated that former gang members who leave the gang
for religious reasons become seriously and visibly involved in
churches. The parties agree that the BIA erred in failing to
address Oliva’s other evidence. Indeed, the government concedes
that the proper course of action is to remand to the BIA for
consideration of the unaddressed evidence. Appellee’s Br. at
47–50.
16
“[W]hen a BIA order does not demonstrate that the agency
has considered an issue, ‘the proper course, except in rare
circumstances, is to remand to the agency for additional
investigation or explanation.’” Cordova, 759 F.3d at 338
(quoting Nken v. Holder, 585 F.3d 818, 822 (4th Cir. 2009)).
Because the BIA order here fails to show that the agency
adequately considered this issue, we remand.
IV.
In sum, we hold that Oliva established a nexus between his
proposed social groups and the persecution he faced. The
success of Oliva’s petition thus depends on whether either of
his proposed social groups is cognizable. In determining that
Oliva had not alleged a cognizable particular social group, the
BIA failed to adequately address Oliva’s evidence. Accordingly,
we grant Oliva’s petition for review, reverse the BIA’s
determination on nexus, and remand this matter to the BIA for
consideration of whether Oliva’s proposed social groups are
cognizable in light of all of the relevant evidence.
PETITION FOR REVIEW GRANTED;
ORDER REVERSED IN PART,
VACATED IN PART, AND REMANDED
17