Aldana-Ramos v. Holder

• Decision Date: 08 August 2014
• Docket Number: No. 13–2022.,13–2022.
• Citation: 757 F.3d 9
• Court: U.S. Court of Appeals — First Circuit
• Parties: Elvis Leonel ALDANA–RAMOS; Robin Obdulio Aldana–Ramos, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

757 F.3d 9

Elvis Leonel ALDANA–RAMOS; Robin Obdulio Aldana–Ramos, Petitioners,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 13–2022.

United States Court of Appeals,First Circuit.

June 27, 2014.

Amended Aug. 8, 2014.

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.

Before LYNCH, Chief Judge, TORRUELLA and THOMPSON, Circuit Judges.

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 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 Elvis and Robin to pawn the car dealership to Marlon Martínez, a family friend and business associate.¹Martínez 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.

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.

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.”

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.

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, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)) (internal quotation marks omitted); accord Sam v. Holder, 752 F.3d 97, 99 (1st Cir.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, 112 S.Ct. 812. 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)).

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...