United States Court of Appeals For the First Circuit

No. 13-2022

ELVIS LEONEL ALDANA-RAMOS; ROBIN OBDULIO ALDANA-RAMOS,

Petitioners,

v.

ERIC H. HOLDER, JR., Attorney General of the United States,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge, Torruella and Thompson, Circuit Judges.

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.

June 27, 2014 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

-2- 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

-3- Elvis and Robin to pawn the car dealership to Marlon Martínez, a

family friend and business associate.1 Martínez 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.

1 The record is not entirely clear regarding Martínez's profession, but it appears that he was a sort of lender who would buy or offer mortgages on distressed properties at high margins. In the United States, he might be called a loan shark.

-4- 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.

-5- 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."

-6- 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.

2 With respect to the relationship between Martínez's son and the "Z" gang, the IJ explicitly found that the parties "responsible" for the kidnapping and murder were the "Z" gang and Martínez's son. This finding is reversible by the BIA only if it is "clearly erroneous."

(d)(3)(i). The joint criminal responsibility for the events at issue gives rise to a strong inference that there was some relationship between Martínez's son and the "Z" gang. Absent a holding by the BIA that the IJ's finding was clearly erroneous or some explanation rebutting this inference, the BIA's conclusion that there was no association is not supported by the record.

-7- 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,

(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,

(1992) (quoting 8 U.S.C. § 1105a(a)(4)) (internal

quotation marks omitted); accord Sam v. Holder, ___ F.3d ___,

(1st Cir. May 14, 2014). "To reverse the BIA['s]

finding we must find that the evidence not only supports [a

contrary] conclusion, but compels it . . . ." Elias-Zacarias,

n.1. 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,

(1st Cir. 2011).

To qualify for asylum, petitioners must establish that

they are "refugee[s]."

(b)(1)(A);

(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,

(1st Cir. 2006)

(quoting

(a)(42)(A)).

-8- 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 account

of" element. Because understanding petitioners' claimed social

group and persecution is necessary to determining whether the

persecution was "on account of" membership in the social group, we

address each of these elements in turn. We do so bearing in mind

the Supreme Court's instruction that the "ordinary . . . rule" is

to remand to the BIA to allow it to make case-specific

determinations in the first instance. I.N.S. v. Orlando Ventura,

(2002).

A. Particular Social Group

In this case, petitioners argue that they are members of

a "particular social group," which they define as their immediate

family. It is well established in the law of this circuit that a

3 The IJ did make a stray reference to "social visibility" -- that is, the requirement that a particular social group must be identifiable, see Larios v. Holder,

(1st Cir. 2010); Gebremichael v. I.N.S.,

(1st Cir. 1993) -- but offered no specific factual findings or legal rationales to explain why petitioners' family could not be a particular social group on that basis. In its brief, the government encourages us to characterize the "thrust" of the IJ's decision to focus on the conclusion "that Petitioners failed to establish a nexus between what had happened to them and their father . . . and a statutorily protected ground," not that their family could not be a "particular social group."

-9- nuclear family can constitute a particular social group "based on

common, identifiable and immutable characteristics." Gebremichael

v. I.N.S.,

(1st Cir. 1993); see Ruiz v. Mukasey,

(1st Cir. 2008) ("Kinship can be a sufficiently

permanent and distinct characteristic to serve as the linchpin for

a protected social group within the purview of the asylum laws.").

And we are not aware of any circuit that has reached a contrary

conclusion.4

Although the record is not entirely clear, the BIA

appears to have concluded in this case that a family cannot qualify

as a particular social group unless a member of the family (or,

perhaps, the family itself) can also claim another protected

ground. Specifically, the BIA stated: "[T]he 'Z' gang was

motivated by criminal intent to misappropriate money from the

respondents' father and not on account of a protected

characteristic of the respondents' father or of their family."

(emphasis added).5 The law in this circuit and others is clear

that a family may be a particular social group simply by virtue of

4 A strand of cases within the Ninth Circuit held that a family could never be a particular social group, but those cases were overruled by the en banc court. See Thomas v. Gonzales,

(9th Cir. 2005) (en banc), vacated on other grounds,

(2006). 5 The BIA also elaborated later: "The respondents' broad claim that they were persecuted on account of their membership in a particular social group, which they define as their own nuclear family, without more, is inadequate to show the required nexus for asylum and withholding of removal." (emphasis added).

-10- its kinship ties, without requiring anything more. See

Gebremichael,

-36 & n.20 (explaining that a family may

be a particular social group and that, although social group

membership often overlaps with other protected grounds, "social

group persecution can be an independent basis of refugee status");

see also Ruiz,

(explaining that asylum claim can

succeed where "family membership itself brings about the

persecutorial conduct"); Thomas v. Gonzales,

(9th Cir. 2005) (en banc) ("[T]here is nothing in the statute . . .

to suggest that membership in a family is insufficient, standing

alone, to constitute a particular social group in the context of

establishing eligibility for asylum or withholding of removal."),

vacated on other grounds,

(2006); Iliev v. I.N.S.,

(7th Cir. 1997) (requiring petitioner to "demonstrate

that his family was a particular target for persecution" without

requiring showing of additional protected ground).

Our interpretation is consistent with the language of the

statute. As the BIA has explained, there is no indication that

Congress intended the phrase "membership in a particular social

group" to have any particular meaning, and Congress borrowed the

term directly from the United Nations Protocol Relating to the

Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223. See In re

Acosta,

(B.I.A. 1985). A "purely

linguistic analysis of this ground" shows that it can encompass

-11- "persecution seeking to punish either people in a certain relation,

or having a certain degree of similarity, to one another or people

of like class or kindred interests," including based on "family

background."

. And although this ground "may

frequently overlap with persecution on other grounds such as race,

religion, or nationality,"

, there is no indication in

the text that it must overlap.

The factual record here does not preclude and would even

allow the BIA to find that petitioners are members of a particular

social group by virtue of their family relationship, without any

need to show a further protected ground. We express no opinion on

whether such a finding is compelled by the record or whether

petitioners' family in particular meets the criteria for a

particular social group, leaving the issue to the BIA in the first

instance. See Orlando Ventura,

.

B. Persecution

Next, petitioners argue that they were persecuted in

Guatemala. They recount the series of crimes committed against

their family: the kidnapping, ransom, and murder of their father;

intimidation using unmarked vehicles during the kidnapping period;

resumed intimidation in the same manner after their father's death;

and the appearance of unmarked cars and heavily armed men at their

aunt's house four hours away. Additionally, petitioners point to

-12- their own testimony, which the IJ concluded was credible, that they

fear they will be killed if they are sent back to Guatemala.

Whether a set of experiences rises to the level of

persecution is decided on a case-by-case basis, Raza v. Gonzales,

(1st Cir. 2007), although "[t]o rise to the level

of persecution, the sum of an alien's experiences must add up to

more than ordinary harassment, mistreatment, or suffering," Lopez

de Hincapie v. Gonzales,

(1st Cir. 2007).

"[T]hreats of murder would neatly fit under this carapace." Lopez

de Hincapie,

. This case includes far more than

mere threats of murder.6 And other circuits have held that factual

scenarios very similar to this one did rise to the level of

persecution. See Tapiero de Orejuela v. Gonzales,

,

672-73 (7th Cir. 2005) (finding persecution against wealthy family

where paramilitary group followed them, murdered father, demanded

money, and threatened remaining family members).

The government attempts a recharacterization of the

facts. It argues that "there were no 'threats' [against

6 Cf. Reyes Beteta v. Holder,

(1st Cir. 2011) (finding no persecution on the basis that applicant was a child at the time of relatives' murders and did not remember them, that murderers were unknown and so no motive or nexus to protected ground could be established, and that petitioner was not followed when he moved to a farm outside of the city). The facts here are easily distinguishable from Reyes Beteta: petitioners were adults at the time of their father's murder, knew which group was responsible for the murder, were harassed afterward, and were followed to a town four hours away.

-13- petitioners after their father's death] because the people [in the

unmarked cars] never approached or spoke to Elvis or anyone at his

aunt's house." We disagree. No reasonable factfinder could so

interpret the facts here. Petitioners testified credibly that the

unmarked cars were subjectively intimidating, that they were a

common intimidation tool used by the "Z" gang, and that heavily

armed men got out of the vehicles at their aunt's house and walked

around the property, when that had never happened before. If the

government intends a rule that there is no persecution or even

threats where threats are not verbalized, it is wrong as a matter

of law. Cf. Un v. Gonzales,

(1st Cir. 2005)

(recognizing the possibility of "implicit" death threats and that

those threats, taken in context with other hostile actions

including more explicit threats, could support a finding of

persecution). The fact that no words were exchanged does not mean

those actions were not threatening.

"Persecution also 'always implies some connection to

government action or inaction,' whether in the form of direct

government action, 'government-supported action, or government's

unwillingness or inability to control private conduct.'" Ivanov v.

Holder,

(1st Cir. 2013) (quoting Sok v. Mukasey,

(1st Cir. 2008)). Here, petitioners offered evidence

of such a connection: they testified to their belief that the

murder charges were dismissed because the local judge was paid off.

-14- They also testified that the police were unwilling or unable to

investigate the "Z" gang's activities, particularly the kidnapping.

And they were found credible.

The BIA never addressed whether this testimony

established the necessary connection between petitioners'

experiences and the Guatemalan government's unwillingness or

inability to control private conduct. We leave the question to the

BIA on remand but observe that this testimony would at least allow

such a finding.

For these reasons, we conclude that the record does not

preclude but permits the BIA to find that persecution occurred

here. We again express no opinion as to whether such a finding is

compelled on this record. See Orlando Ventura,

.

C. "On Account Of"

The final element of the asylum claim, and the most

contested in this case, is whether the BIA applied the correct

analysis to determine whether petitioners were persecuted "on

account of" their membership in their family. Both the BIA and the

IJ concluded that petitioners had not drawn a sufficient connection

between their membership in their nuclear family and the criminal

actions taken against them. The BIA concluded that the "Z" gang

"targeted [Haroldo] because they believed he was a wealthy person,

. . . and not on account of a protected characteristic of the

-15- respondents' father or of their family." This conclusion, of

course, is directed toward Haroldo and not toward the petitioners.

Petitioners argue that this focus on Haroldo fails to

account for their own claims. They make two further arguments that

the BIA's conclusion entirely misses the focus of what the family

as a particular social group means. First, and most importantly,

they argue that the BIA's conclusion that petitioners were targeted

on the basis of wealth is unsupported by the record. Petitioners

point to their credible testimony that they exhausted all of their

own and their family's financial resources in trying to raise the

money to ransom their father, and yet were still followed by

members of the "Z" gang in unmarked cars even after their father's

funeral. That testimony creates an inference that the "Z" gang

targeted petitioners because of their membership in a particular

(and perhaps somewhat prominent) family.

Neither the BIA nor the IJ ever addressed this argument.

That is insufficient. We see no support in this record for the BIA

and IJ's conclusions that petitioners were targeted based solely on

their family's wealth, as that conclusion is directly at odds with

the strong inference from petitioners' credible testimony.7

7 In its brief, the government suggests that the BIA could infer that the "Z" gang subjectively believed that petitioners still had access to more money. That approach, not articulated by the BIA, fails for three reasons. First, there is nothing in the record whatsoever to support the inference; such a conclusion would be based on pure speculation. Second, the record actually suggests that the "Z" gang did know about petitioners' true financial

-16- Independently, petitioners also correctly point out that

asylum is still proper in mixed-motive cases even where one motive

would not be the basis for asylum, so long as one of the statutory

protected grounds is "at least one central reason" for the

persecution.

(b)(1)(B)(i). In other words, even

though criminal targeting based on wealth does not qualify as

persecution "on account of" membership in a particular group, see

Sicaju-Diaz v. Holder,

(1st Cir. 2011), the statute

still allows petitioners to claim asylum if petitioners' family

relationship was also a central reason for the persecution against

them.

The BIA, however, concluded that because the initial

crimes were at least partly motivated by wealth, none of the

persecution against petitioners could have been based on a

protected ground. Specifically, the BIA explained:

The respondent's [sic] father was a victim of a terrible crime in Guatemala by the "Z" gang who targeted him because they believed he was a wealthy person. Thus, the "Z" gang was motivated by criminal intent to misappropriate money from the respondents' father and not on account of a protected characteristic of respondents' father or of their family.

situation, since the "Z" gang witnessed directly the difficulty petitioners had in gathering the ransom money even in the face of an immediate death threat against their father. Moreover, there is evidence of a connection between the "Z" gang and Marlon Martínez's son; Martínez likely knew of the petitioners' financial situation because they approached him to sell the car dealership. Finally, even if this inference were plausible on this record, the BIA never actually drew the inference.

-17- It is unclear whether the BIA intended a general rule to this

effect or meant that on these facts, the existence of a wealth

motive forecloses the possibility of a protected ground. In either

case, we are aware of no legal authority supporting the proposition

that, if wealth is one reason for the alleged persecution of a

family member, a protected ground -- such as family membership --

cannot be as well. To the contrary, the plain text of the statute,

which allows an applicant to establish refugee status if the

protected ground is "at least one central reason" for the

persecution, clearly contemplates the possibility that multiple

motivations can exist, and that the presence of a non-protected

motivation does not render an applicant ineligible for refugee

status. See

(b)(1)(B)(i).

To be sure, if wealth is the sole reason for targeting a

group of people, the fact that the group is a family unit does not

convert the non-protected criminal motivation into persecution on

the basis of family connections. See Perlera-Sola v. Holder,

(1st Cir. 2012).8 Each case depends on the facts.

8 Likewise, a personal vendetta against individuals, even if they are a family group, does not rise to the level of persecution "on account of" family membership if the risk of harm "aris[es] solely out of a personal dispute." Costa v. Holder,

(1st Cir. 2013); see also Vasiliu v. Ashcroft,

(1st Cir. 2005) (explaining that evidence showed only a personal vendetta, not persecution on account of a protected ground); cf. Ruiz,

(recognizing that a vendetta "against a particular family" for reasons other than mere personal antipathy may establish persecution on account of family membership).

-18- There may be scenarios in which a wealthy family, targeted in part

for its wealth, may still be the victims of persecution as a

family. For instance, a local militia could single out a prominent

wealthy family, kidnap family members for ransom, effectively drive

the family into poverty, and pursue them throughout the country in

order to show the local community that even its most prominent

families are not immune and that the militia's rule must be

respected. That is one of a number of examples.

In this case, we leave to the BIA the question of whether

the family relationship was, in addition to wealth, a central

factor behind the persecution. At this stage in the proceedings,

we simply observe that the record is more than sufficient to allow

such a finding.9

III.

The BIA also rejected petitioners' claim for CAT

protection. A petitioner seeking CAT protection must show "it is

more likely than not" that he would be subject to torture "by or

with the acquiescence of a government official." Nako v. Holder,

9 The record shows that all members of petitioners' family that the record identifies as living in Guatemala at the relevant time were targeted by the "Z" gang: Haroldo, both petitioners, and their aunt. That distinguishes this case from those past decisions in which we held that petitioners had not proven persecution "on account of" their family membership in part because other members of their family in the country were not being persecuted. See, e.g., Dias Gomes v. Holder,

(1st Cir. 2009); Ruiz,

; see also Escobar-Hernandez v. Holder,

(9th Cir. 2012).

-19-

(1st Cir. 2010). As the BIA noted, there is no

evidence of government acquiescence here. According to

petitioners' testimony, and in contrast to their description of

police inaction following the kidnapping, the police did

investigate their father's murder and made arrests in the case.

The only evidence that could arguably be construed to show

government acquiescence in the "Z" gang's activities was Elvis's

testimony that the judge who released the suspects had been paid

off, but petitioners have made no showing that similar bribery

would likely occur in a future case. Without a showing of

government participation or acquiescence, petitioners' claim for

CAT protection fails.

IV.

The BIA's decision as to petitioners' asylum claim was

not supported by substantial evidence because it neglected the

evidence in support of petitioners' claim and was based on a legal

error because it did not allow for the possibility of mixed

motives. The decision as to the CAT claim, on the other hand, was

supported by substantial evidence. Consequently, the petition for

review is granted in part and denied in part. We vacate the BIA's

decision as to the asylum and withholding of removal claims and

remand for further proceedings consistent with this opinion.

So ordered.

-20-