In re N-M

• Decision Date: 09 June 2011
• Docket Number: Interim Decision #3717
• Parties: Matter of N-M-, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

25 I&N Dec. 526 (BIA 2011)

Matter of N-M-, Respondent

Interim Decision #3717

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

Decided June 9, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Opposition to state corruption may, in some circumstances, constitute the expression of political opinion or give a persecutor a reason to impute such an opinion to an alien.

(2) For claims arising under the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 302, a showing of retaliation for opposing governmental corruption is, by itself, insufficient to establish eligibility for relief; instead, an alien must persuade the trier of fact that his or her actual or imputed anticorruption belief (or other protected trait) was one central reason for the harm.

(3) In making the nexus determination, an Immigration Judge should consider: (1) whether and to what extent the alien engaged in activities that could be perceived as expressions of anticorruption beliefs; (2) any direct or circumstantial evidence that the persecutor was motivated by the alien's actual or perceived anticorruption beliefs; and (3) any evidence regarding the pervasiveness of corruption within the governing regime.

FOR RESPONDENT: Hugo F. Larios, Esquire, Tempe, Arizona

FOR THE DEPARTMENT OF HOMELAND SECURITY: Erica L. Seger, Assistant Chief Counsel

BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.

FILPPU, Board Member:

In this case we address an asylum claim founded on opposition to official corruption (or "whistleblowing") in the context of the "at least one central reason" nexus standard set forth in section 208(b)(1)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(i) (2006).

In a decision dated July 7, 2009, an Immigration Judge granted the respondent's applications for asylum and withholding of removal pursuant to sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3) (2006), and 8 C.F.R. §§ 1208.13 and 1208.16 (2009). The Department of Homeland Security ("DHS") has appealed from that decision. The appeal will be sustained and the record will be remanded to the Immigration Judge.

We review an Immigration Judge's findings of fact, including credibility findings, to determine whether they are "clearly erroneous." 8 C.F.R. § 1003.1(d)(3)(i) (2011). We review de novo all questions of law, discretion, and judgment and any other issues in appeals from decisions of Immigration Judges. 8 C.F.R. § 1003.1(d)(3)(ii). Because the respondent filed her application after May 11, 2005, it is governed by the provisions of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 302 ("REAL ID Act"). See Matter of S-B-, 24 I&N Dec. 42, 45 (BIA 2006).

We concur with the Immigration Judge's determination that the respondent demonstrated extraordinary circumstances sufficient to excuse the untimely filing of her asylum application. See sections 208(a)(2)(B), (D) of the Act; 8 C.F.R. § 1208.4(a)(5)(i) (2011). To the extent that the DHS challenges the respondent's credibility on appeal, we find no clear error in the Immigration Judge's credibility finding. 8 C.F.R. § 1003.1(d)(3)(i). However, we are unconvinced that the respondent has met her burden of proving that her political opinion, or any other ground specified in the definition of a "refugee," is "one central reason" for the harm she experienced or the harm she fears. Sections 101(a)(42), 208(b)(1)(B)(i) of the Act, 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i) (2006).

The Immigration Judge found that from 1991 to 2004, the respondent worked in a variety of administrative positions at a state-run agency in Colombia that provides medical services. From 1998 to 2004, the agency began replacing state employees with private contractors as part of a privatization effort. During this period, the respondent was pressured to hire certain contractors outside the official approval process and to falsify statistical information, which she refused to do. In retaliation, she was overworked and forced to transfer to another division. The respondent also asserts, although the Immigration Judge did not make findings in this regard, that her superiors auctioned off medical appointments and pressured her to join a particular political party, which she declined to do.

The Immigration Judge observed that after the respondent transferred divisions, she continued to resist corruption within her agency by voicing concerns regarding improperly vetted contracts, refusing to certify payment for work that was unfinished, and speaking out against building a costly filing system. The DHS argues that the record also shows that the respondent reported her concerns on several occasions to the internal audit department at her agency and that, in all instances, this department honored her concerns by not accepting the contracts that she opposed. The Immigration Judge did not address this aspect of the record.

The Immigration Judge found that from December 2003 to May 2004, the respondent received threatening phone calls from anonymous callers, which escalated in frequency and severity. The callers threatened to kill her and her son if she did not leave the country and warned her not to report the calls to thepolice. In response to these threats, she and her son left for the United States in June 2004. When her son returned to Colombia in July 2004, he was contacted by individuals who threatened to kill him and the respondent if she returned to Colombia. She resigned from her position at the agency in September 2004 and has had no problems since.

The respondent argues that her resistance to corruption within her agency constituted the expression of a political opinion and that she was persecuted on account of this resistance. She relies on precedent of the United States Court of Appeals for the Ninth Circuit holding that whistleblowing against government officials "may constitute political activity sufficient to form the basis of persecution on account of political opinion," even absent an espoused political theory, so long as the alien's actions are "directed toward a governing institution" and not just "individuals whose conduct is aberrational." Grava v. INS, 205 F.3d 1177, 1181 (9th Cir. 2000).

We agree that, in some circumstances, opposition to state corruption may provide evidence of an alien's political opinion or give a persecutor reason to impute such beliefs to an alien. See Zhang v. Gonzales, 426 F.3d 540, 547 (2d Cir. 2005) (rejecting "any categorical distinction between opposition to extortion and corruption and other disputes with government policy or practice"); Black's Law Dictionary 1196 (8th ed. 2004) (defining "political" as "[p]ertaining to politics; of or relating to the conduct of government"). Campaigning against state corruption through classic political activities such as founding or being active in a political party that opposes state corruption, attending or speaking in political rallies on the issue of eradicating state corruption, or writing or distributing political materials criticizing state corruption would likely constitute the expression of political opinion or may lead a persecutor to impute such an opinion to an alien. See Musabelliu v. Gonzales, 442 F.3d 991, 995 (7th Cir. 2006) (stating that "[s]omeone who campaigns against the government and urges the voters to throw the rascals out is engaged in political speech," as is "someone who writes an op-ed piece of otherwise urges the people to rid themselves of corrupt officials"). It is also possible that exposing or threatening to expose government corruption to higher government authorities, the media, or nongovernmental watchdog organizations could constitute the expression of a political opinion.¹

Here, the Immigration Judge appears to have found that the respondent's actions against corrupt government officials—her refusals to falsify statistical information and certify payment for incomplete work, outspokenness against rebuilding a costly filing system, and opposition to awarding contracts that she deemed improperly vetted—were evidence that she held a political opinion.²Even assuming that the respondent held a political opinion (or that her persecutors imputed a political opinion to her), however, we are not satisfied that the respondent has demonstrated that this opinion was "one central reason" that she experienced threatening phone calls. Section 208(b)(1)(B)(i) of the Act.

The United States Supreme Court has held that to satisfy the nexus requirement for asylum and withholding of removal, it is not sufficient that the persecutor act from "a generalized 'political' motive." INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992). Instead, an alien must demonstrate that the persecutor harmed or may harm him "because of the alien's political opinion or other protected trait. Id. at 483. In Elias-Zacarias, the Supreme Court held that an alien who resisted recruitment attempts by guerrilla forces in Guatemala had failed to demonstrate that the guerrillas would persecute him because of his political opinion, rather than because of his refusal to fight with them. Id. Thus, simply demonstrating resistance to pressure to engage in certain acts and consequent retaliation for this resistance is insufficient to establish a nexus. Rather, an alien must provide some evidence, direct or circumstantial, that the persecutor's motive to persecute arises from the alien's political belief. Id.

In so holding, the majority did not adopt the dissent's argument that because a persecutor is more concerned with suppressing a victim's actions than with the victim's subjective reasons for engaging in such acts, an inquiry into an individual persecutor's motivation is unnecessary so long as an alien demonstrates that the persecution occurred in response to an act manifestinga political opinion. Compa...