In re L-E-A
| Decision Date | 24 May 2017 |
| Docket Number | Interim Decision #3893 |
| Citation | 27 I&N Dec. 40 |
| Parties | Matter of L-E-A-, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) Whether a particular social group based on family membership is cognizable depends on the nature and degree of the relationships involved and how those relationships are regarded by the society in question.
(2) To establish eligibility for asylum on the basis of membership in a particular social group composed of family members, an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.
FOR RESPONDENT: Mei F. Chen, Esquire, San Jose, California
GREER, Board Member:
In a decision dated September 10, 2013, an Immigration Judge found the respondent removable and denied his applications for asylum and withholding of removal and his request for protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988). The respondent has appealed from that decision. The appeal will be dismissed in part and the record will be remanded for further proceedings.
The question in this case is whether the respondent, who claims membership in a particular social group composed of his family, has established eligibility for asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (2012). We conclude that while family may be a particular social group, membership in such a group does not necessarily establish a nexus to a ground protected under the Act. Rather, the respondent must demonstrate that the family relationship is at least one central reason for the claimed harm to establish eligibility for asylum on that basis.
The respondent is a native and citizen of Mexico who entered the United States for the first time in 1998 and departed under a grant of voluntary departure in May 2011. That same month, the respondent returned to his parents' home in Mexico City, Mexico. Previously, members of La Familia Michoacana, a criminal cartel, had approached the respondent's father, who owned a store that sold groceries and general merchandise in the neighborhood. The cartel members asked if they could sell drugs in the store, which the cartel viewed as a favorable distribution location. The respondent's father refused to allow the cartel to sell drugs in his store.
About a week after the respondent returned to Mexico, he was running an errand with his cousin and a nephew when they heard gunshots coming from inside a car. A week later, the respondent was approached by the same car. Its four occupants identified themselves as members of La Familia Michoacana. They asked if he would sell drugs for them at his father's store because they liked the store's location. The respondent declined, and the cartel members indicated that he should reconsider.
The following week, the respondent was again approached by the car. The four occupants, who were wearing masks, tried to grab him and put him in the car, but he was able to get away. Soon after, the respondent left for the border and was ultimately successful in crossing into the United States. Members of La Familia Michoacana contacted the respondent's father and claimed to have kidnapped the respondent, which his father was able to confirm was untrue. The respondent's father still operated the store, but he began paying "rent" to La Familia Michoacana, which made it no longer profitable. The respondent's family members who live in Mexico, including his parents, have not been subjected to additional incidents of harm.
The respondent believes that he was targeted by members of La Familia Michoacana because of his membership in the particular social group comprised of his father's family members, and he asserted a fear of persecution in the future on this basis. The Immigration Judge found the respondent credible, but she concluded that La Familia Michoacana was interested in distributing illegal drugs at the store and increasing its profits, rather than being motivated to harm his father's family members based on their membership in the family itself. In particular, the Immigration Judge found that the persecutor's motive related to ownership of the store and, notably, that if the store were to be sold, they would target the new owner. On appeal, the respondent argues that he experienced harm rising to the level of persecution based on his membership in the particular social group of his father's family and that he has a well-founded fear of harm on this basis in the future if returned to Mexico.
We requested supplemental briefing in this case, and the respondent, the Department of Homeland Security ("DHS"), and amici curiae responded. Both parties agree that the immediate family unit of the respondent's father qualifies as a cognizable particular social group. They also agree that if family membership is a central reason for persecuting an asylum applicant, nexus may be established. In addition, the respondent argues that the Immigration Judge did not make complete findings of fact with regard to his application for protection under the Convention Against Torture. The amici curiae generally support the arguments of the respondent.1
We agree with the parties that the members of an immediate family may constitute a particular social group. We have long recognized that family ties may meet the requirements of a particular social group depending on the facts and circumstances in the case. Matter of C-A-, 23 I&N Dec. 951, 959 (BIA 2006) (), clarified by Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014); Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985) (), modified on other grounds, Matter of Mogharrabi, 19 I&N Dec. 439, 441 (BIA 1987); see also Vumi v. Gonzales, 502 F.3d 150, 155 (2d Cir. 2007) (). The circuit courts have also held that family may constitute a particular social group. See Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015); Crespin-Valladares v. Holder, 632 F.3d 117, 124-25 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980, 995 (6th Cir. 2009); Ayele v. Holder, 564 F.3d 862, 869 (7th Cir. 2009); Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993); see also Ramirez-Mejia v. Lynch, 794 F.3d 485, 492-93 (5th Cir. 2015).
A determination whether a social group is cognizable is a fact-based inquiry made on a case-by-case basis, depending on whether the group is immutable and is recognized as particular and socially distinct in the relevant society. See Matter of M-E-V-G, 26 I&N Dec. at 242; Matter of W-G-R-, 26 I&N Dec. at 211-12, vacated in part and remanded on other grounds by Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016). Not all social groups that involve family members meet the requirements of particularity and socialdistinction. See, e.g., Jie Lin v. Ashcroft, 377 F.3d 1014, 1028 (9th Cir. 2004) (); Matter of S-E-G-, 24 I&N Dec. 579, 585 (BIA 2008) (), clarified by Matter of M-E-V-G-, 26 I&N Dec. 227, and Matter of W-G-R-, 26 I&N Dec. 208. We agree with the DHS's argument that the inquiry in a claim based on family membership will depend on the nature and degree of the relationships involved and how those relationships are regarded by the society in question.
Because the facts of this case present a valid particular social group, we need not further address the circumstances regarding family status that would or would not support finding that a family is a particular social group. An applicant for asylum has the burden to establish a cognizable particular social group, his membership in that group, and persecution or fear of persecution on account of his membership in that group. Matter of W-G-R-, 26 I&N Dec. at 223. In consideration of the facts of this case and the agreement of the parties, we have no difficulty identifying the respondent, a son residing in his father's home, as being a member of the particular social group comprised of his father's immediate family. The key issue we must consider is whether the harm he experienced or fears is on account of his membership in that particular social group.
An asylum applicant's membership in a family-based particular social group does not necessarily mean that any harm inflicted or threatened by the persecutor is because of, or on account of, the family membership. See, e.g., id. at 218 ( ...
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