In re a-M-E

• Citation: 24 I&N Dec. 69
• Decision Date: 31 January 2007
• Docket Number: Interim Decision No. 3550.
• Parties: In re A-M-E & J-G-U-, Respondents.
• Court: U.S. DOJ Board of Immigration Appeals

24 I&N Dec. 69

In re A-M-E & J-G-U-, Respondents.

Interim Decision No. 3550.

Board of Immigration Appeals.

Decided as amended January 31, 2007.¹

(1) Factors to be considered in determining whether a particular social group exists include whether the group's shared characteristic gives the members the requisite social visibility to make them readily identifiable in society and whether the group can be defined with sufficient particularity to delimit its membership.

(2) The respondents failed to establish that their status as affluent Guatemalans gave them sufficient social visibility to be perceived as a group by society or that the group was defined with adequate particularity to constitute a particular social group.

FOR RESPONDENT: Roberto Tschudin Lucheme, Esquire, Glastonbury, Connecticut.

BEFORE: Board Panel: HURWITZ, Acting Vice Chairman; HOLMES and MILLER, Board Members.

HOLMES, Board Member.

The United States Court of Appeals for the Second Circuit has remanded this case for consideration of the question whether "affluent Guatemalans" are members of a particular social group within the definition of a "refugee" in section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (2000). Ucelo-Gomez v. Gonzales, 448 F.3d 180 (2d Cir. 2006).² As discussed below, we conclude that the Immigration Judge did not err in ruling that the respondents failed to establish that "affluent Guatemalans" are a particular social group within the meaning of the Act. We further find no error in his ruling that the respondents did not otherwise demonstrate that they were persecuted or face a well-founded fear of persecution on account of a protected ground in the refugee definition. We will therefore dismiss the respondents' appeal from the Immigration Judge's decision denying their applications for asylum and withholding of removal.³

I. FACTUAL AND PROCEDURAL HISTORY

The respondents are a married couple from Guatemala. They entered the United States in August 2001 using forged travel visas and false names. In sworn statements completed upon arrival at the San Ysidro Port of Entry, the male respondent indicated that he left his home country to come to the United States to "look for work" and the female respondent indicated that she came to visit her uncle in Los Angeles. In response to the question whether they had "any fear or concern about being returned to [Guatemala] or being removed from the United States," both respondents answered, "No."

In proceedings before the Immigration Judge, the respondents conceded removability but requested relief based on their claim of persecution.⁴ In her asylum application filed on January 2, 2003, the female respondent provided the following account of events in Guatemala:

My sister was kidnapped in December of 1996, and held until January, 1997. She was shot in the leg during the kidnapping. I started receiving extortionious [sic] threats, and threats against my life and that of my husband. We were forced to continually change our location, and such threats against ourselves continued until we sought refuge in the United States.

We feel that at the very least, we will be harassed and threatened by the same group or groups that persecuted us in the past, and at worse, we could be found, kidnapped, physically harmed, even killed. The motivation for these threats are the same as those that caused harm to my sister: class hatred by organized political gangs.

At the hearing before the Immigration Judge, the respondents claimed to have been persecuted on account of membership in a particular social group composed of "higher socio-economic" Guatemalans. The Second Circuit summarized the female respondent's testimony before the Immigration Judge as follows:

She came from a well-off family; she and her husband had a good life in Guatemala; they own a house that is presently rented out; the couple employed a housekeeper; and she attended college and obtained a teacher's degree.

In December 1996, the couple received anonymous phone calls demanding ransom for the release of [her] sister, and threatening that, unless the ransom was paid, they would face the same fate.

By reason of telephonic and written threats, [the respondents] moved (in October 1998) to another town in Guatemala but the threats resumed several months later, forcing them to move once more.

After their final relocation, [the respondents] were unemployed and subsisted off savings and investment income.

[The female respondent] twice reported the threats to the police, to no apparent effect.

The couple never paid her sister's ransom, but the sister was released by her captors after they "saw her wounded in her leg."

Ucelo-Gomez v. Gonzales, supra, at 182-83.

At the conclusion of the hearing, the Immigration Judge asked who was included within the proposed particular social group. Counsel for the respondents explained, "Basically, they are comprised on a relative scale at a higher socio-economic level, so they're being persecuted for that reason." The Immigration Judge then asked what information indicates "that people like this are being persecuted." Counsel for respondents replied:

Well, it's rather ambiguous, Your Honor. For example, if you're looking through the Country Report, when people are being victimized in Guatemala, there's official reports . . . that it may be criminal activity, but NGOs report that it . . . seems like there's evidence that it may be related to other reasons . . . .

After further questioning, counsel for the respondents described the proposed social group as "the upper class."

The Immigration Judge denied asylum and withholding of removal, finding, in part, that the respondents failed to demonstrate that "affluent Guatemalans" were a particular social group. In so concluding, he applied Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985), and Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991), a decision of the Second Circuit, the circuit in which this case arises. Under these cases, he found that the proposed group was not a particular social group because the group's shared characteristic was not "immutable," the group was not readily "identifiable," and it was "too broad[ly]" defined to be a social group for purposes of obtaining asylum. He also found that the respondents had not provided sufficient evidence to show that similarly-situated Guatemalans could be identified by would-be persecutors. In particular, he found that there was "nothing in the background materials to indicate that wealthy Guatemalans are specifically being targeted for persecution." Additionally, he found no evidence that the persons calling the respondents were motivated to persecute them on account of their social group membership or any other protected ground.⁵

In their appellate brief, the respondents, through counsel, conceded that persecution based on "wealth alone is insufficient" to meet the nexus requirement and argued that the persecution "was motivated in part by [their] political opinion/membership etc." This concession was consistent with our holdings in several published decisions that "in the absence of evidence to suggest other motivations, evidence that the perpetrators were motivated by a victim's wealth will not support a finding of persecution." Matter of S-V-, 22 I&N Dec. 1306, 1310 (BIA 2000) (holding, in a case involving fear of kidnaping by Colombian guerrillas, that actions motivated by "perceived wealth" were insufficient, without more, to support a finding of persecution based on membership in a particular social group), overruled on other grounds by Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003); see also Matter of V-T-S-, 21 I&N Dec. 792, 799 (BIA 1997) (finding that where the "common trait shared by the victims of kidnappings in the Philippines is wealth, i.e., their ability to pay large ransoms," the respondent did not demonstrate that persecution was on account of an enumerated ground); Matter of T-M-B-, 21 I&N Dec. 775, 779 (BIA 1997) (finding no persecution on account of a protected ground where "the NPA's practice of securing financial support by the threats of force and actual harm [was] motivated by the victim's wealth, not the victim's political opinion"), rev'd, Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (en banc) (finding imputed political opinion on the facts); cf. Bolshakov v. INS, 133 F.3d 1279, 1281 (9th Cir. 1998) (holding that successful Russians targeted by criminals for extortion were not persecuted on account of a statutorily protected ground).

The respondents' arguments on appeal consisted of four paragraphs addressing the requisite nexus to a protected ground, the final one of which stated the substance of the argument as follows:

The Respondents membership in the upper-class of Guatemala, and the history suffered by the family at the hands of terrorists, indicates they are targets of persecution. The IJ felt wealth alone is insufficient, and that is conceded. But, at trial, counsel for the Respondents indicated that in the U.S. State Department Country Report for Guatemala, p. 8, that there was a report that a nun was killed in Guatemala City, in what was reported as an attempted carjacking, but "various human rights groups did not rule out the possibility of political motive." The IJ noted that the nun dealt with war victims, and thus felt convinced that this could serve as some kind of imputed political ideology. This same issue was raised by counsel at trial, when he argued that the position of the Respondents was akin to a "mixed motives" case-as amply demonstrated by the case of the nun cited in the Country Report. See also, Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (Persecution does not necessarily entail persecution for reasons exclusive to five classes. Thus if persecutor was motivated in part by victim's political opinion/membership etc., a successful claim to asylum can be made.)

Given the evidence of record, the nature of...