Martinez-Buendia v. Holder

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3792

D ORIS M ARTINEZ-B UENDIA,

Petitioner,

v.

E RIC H. H OLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

A RGUED M AY 19, 2010—D ECIDED A UGUST 10, 2010

Before F LAUM, M ANION, and H AMILTON, Circuit Judges.

F LAUM, Circuit Judge. Petitioner Doris Martinez-

Buendia appeals her denial of asylum and withholding

of removal. Martinez-Buendia is a fifty-year-old optome-

trist from Colombia. She came to the United States in

2005 and applied for asylum on the ground that she

was being persecuted by the Revolutionary Armed Forces

of Colombia (the Fuerzas Armadas Revolucionarias

de Colombia—commonly known as the “FARC”) on

account of her anti-FARC political position and her in-

2 No. 09-3792

volvement with a social group called the “Health Bri-

gades.” About two years before Martinez-Buendia fled

Colombia, the FARC began harassing her with phone

calls and letters demanding that she give public credit

to the FARC for the health care work she organized

in rural communities through the Heath Brigades. As

Martinez-Buendia continually refused the FARC’s de-

mands, the FARC’s actions grew increasingly vio-

lent towards her. The FARC escalated from making

threatening phone calls and leaving threatening letters

to attacking a Health Brigade caravan and kidnaping

her sister. After Martinez-Buendia’s sister escaped, the

FARC kidnaped Martinez-Buendia’s brother-in-law. The

final incident before Martinez-Buendia fled involved a

FARC member following Martinez-Buendia into a cab

while she was delivering school supplies to an under-

resourced school, holding a gun to her head, and threat-

ening that if she did not give the FARC credit for the

Health Brigades, they would do far worse to her than

they did to her sister. Upon arriving in the United States,

Martinez-Buendia filed for asylum, withholding of re-

moval, and relief under the Convention Against Torture.

An Immigration Judge (“IJ”) denied her application in

an oral decision on March 26, 2008. The Board of Immi-

gration Appeals (the “Board”) affirmed the IJ’s decision

on October 15, 2009 on the ground that Martinez-Buendia

had not established that the past persecution she

suffered in Colombia was on account of her political

opinion or membership in a particular social group. This

appeals follows. For the reasons set forth below, we

reverse the decision of the Board and grant the petition

for review.

No. 09-3792 3

I. Background

A. Martinez-Buendia’s Experiences with the FARC

As an initial matter, we note that the facts of this case

are undisputed. Martinez-Buendia was the only witness

to testify at the hearing and the IJ found her completely

credible.

Martinez-Buendia is a Colombian citizen from Bogota

who has dedicated her life to helping others. She is

a optometrist and holds a master’s degree in health

administration. Martinez-Buendia attended university

in the mid-1980s, where she became involved in a clinical

practicum providing free health services to impoverished

communities in Colombia. Her practicum experience set

her down a career path of providing health services to

communities in need. In 2000, Martinez-Buendia began

organizing Health Brigades, groups of volunteer health

care providers and other individuals who travel to

remote areas of Colombia to provide health services. The

Health Brigades organized by Martinez-Buendia gen-

erally operated in areas around Barranquilla, where

Martinez-Buendia lived and worked, and Bogota, where

Martinez-Buendia’s family lived. In addition to her

work organizing Health Brigades, Martinez-Buendia

also taught courses at the Metropolitan University in

Barranquilla and worked as an optometrist. Martinez-

Buendia is unmarried. Her mother and five siblings all

still live in Bogota.

Beginning in 2004, members of the FARC began con-

tacting Martinez-Buendia by telephone and leaving

notes at her office, on her car, and at her home de-

manding that she start publicly attributing her Health

4 No. 09-3792

Brigade work to FARC. The FARC members threatened

to harm Martinez-Buendia if she did not comply. At

first Martinez-Buendia ignored the threats because she

thought they were pranks by her students. However, in

November 2004 it became clear that these threats

were not a prank. That month, Martinez-Buendia orga-

nized a Health Brigade trip to the municipality of

Icononzo. Martinez-Buendia’s sister and brother-in-law

were participating in this trip. While traveling to

Icononzo, a group of FARC members intercepted the

Health Brigade. The FARC members read the names of

the Health Brigade members from a list to the group,

and physically attacked several members of the Health

Brigade, including Martinez-Buendia. During the commo-

tion, a government helicopter flew by and began shooting

at the FARC members. Once the shooting began, the

FARC members quickly grabbed several members of the

Health Brigade, including Martinez-Buendia’s sister,

Mercedes. Martinez-Buendia heard one of the FARC

members say, “I have Doris already,” which she believes

meant that the FARC intended to capture her instead

of her sister. The FARC also spray-painted the Health

Brigade cars with statements such as “S.O.B. dogs from

the government.” Martinez-Buendia and her brother-in-

law managed to get to the next town and get a new

vehicle to get to Bogata. Once they returned home

they called the police. The Department of Security Admin-

istration installed a recording device on Mercedes’s

phone to intercept any calls from the FARC.

Over the next few months Martinez-Buendia received

several phone calls from the FARC on her home phone

No. 09-3792 5

and on Mercedes’s phone. During one of those phone

calls, the FARC member told Martinez-Buendia that

they had her sister and that they would kill her unless

Martinez-Buendia agreed to work for the FARC cause.

Martinez-Buendia testified that she always hung up and

never spoke to the person on the phone. When the IJ

questioned Martinez-Buendia about why she did not

go along with the FARC to save her sister, Martinez-

Buendia said that she was unable to work for the

FARC “because it is a rebel group to the democracy of

Colombia, because they have harmed a lot of Colombia

and my beginnings would not let me or allow me to

do this.” In February 2005, Martinez-Buendia was in

Bogota visiting her mother. While at her mother’s house,

Mercedes showed up in the middle of the night visibly

beaten, wearing men’s clothing, and very thin from

having been infected with a parasite. Martinez-Buendia

testified that Mercedes told the family that she escaped

in the night. Martinez-Buendia also testified, and pro-

vided documentation, that Mercedes suffered, and con-

tinues to suffer, severe psychological damage from her

experience in captivity. In March 2005, Mercedes’s hus-

band was captured by the FARC and died in their cus-

tody because he did not have access to proper medicine.

Because of Mercedes’s kidnaping, Martinez-Buendia

did not organize any Health Brigades during 2005. How-

ever, at some point in 2005, Martinez-Buendia did go

to a community meeting in Puerto Colombia. After drop-

ping off school supplies at a school in Puerto Colom-

bia, Martinez-Buendia got into a taxi. An armed member

of the FARC followed her into the taxi, pointed a gun

6 No. 09-3792

at her, and threatened to kill her unless she began doing

work for the FARC. The individual gave Martinez-

Buendia thirty days to appear before the FARC. After

this incident, Martinez-Buendia fled to the United States

and applied for asylum.

B. Procedural History

Martinez-Buendia filed an application for asylum,

withholding of removal, and relief under the Conven-

tion Against Torture on October 28, 2005. The Depart-

ment of Homeland Security initiated removal pro-

ceedings against her on December 8, 2005. After a series

of continuances, Martinez-Buendia had a hearing before

an IJ on March 26, 2008. She had an attorney present. The

IJ found Martinez-Buendia’s testimony consistent and

credible. The IJ also found that Martinez-Buendia had

suffered harm that rose to the level of past persecution.

However, the IJ denied relief because he found that

Martinez-Buendia did not suffer past persecution on

account of her political opinion or her membership in a

particular social group. Martinez-Buendia appealed the

IJ’s decision to the Board. The Board held that the

FARC’s actions were motivated by the FARC’s own

political agenda and not by a desire to punish Martinez-

Buendia for her political opinion. The Board also held

that Martinez-Buendia had not established that she be-

longed to a cognizable social group because the Health

Brigades did not have a common quality binding its

members that is either unchangeable or fundamental

to their identities. In the alternative, the Board held

No. 09-3792 7

that Martinez-Buendia failed to show that the FARC

persecuted her to punish or overcome her membership

in the Health Brigades. Because Martinez-Buendia

did not demonstrate that her past persecution was on

account of her political opinion or social group member-

ship, she could not establish a well-founded fear of per-

secution on account of those factors.

II. Discussion

This is an appeal from the Board’s denial of relief. The

board issued its own opinion, independent from the IJ’s

oral order. Therefore, we review only the Board’s opinion.

Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007). We

review the Board’s determination of facts, including

that Martinez-Buendia failed to establish statutory eligi-

bility for asylum, for substantial evidence. Mabasa v.

Gonzales, 455 F.3d 740, 744 (7th Cir. 2006); 8 U.S.C.

§ 1252(b)(4)(B) (stating that factfindings by the agency

are “conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary”). Under this

standard, we only reverse “if the evidence presented . . .

was such that a reasonable factfinder would have to

conclude that the requisite fear of persecution existed.”

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

To qualify for asylum, an applicant must show a rea-

sonable possibility of persecution on account of her race,

religion, nationality, membership in a particular social

group, or political opinion. 8 U.S.C. §§ 1158(b)(1)(A),

1101(a)(42). Because Martinez-Buendia filed her claim

in 2005, the REAL ID Act of 2005 governs. The Act

8 No. 09-3792

requires Martinez-Buendia to show that one of five pro-

tected grounds was or would be a central reason for

her persecution. See 8 U.S.C. §§ 1101(a), 1158(b)(1)(B). A

showing of past persecution creates a well-founded fear

of future persecution. 8 U.S.C. § 1101(a)(42)(A). The IJ

and the Board both found that Martinez-Buendia faced

persecution in the past. Therefore, the only findings

challenged in this appeal are the Board’s findings that

the persecution Martinez-Buendia faced was not be-

cause of her political opinion and that the persecution

was not because of her membership in a particular

social group.

In proving that she was persecuted on account of her

political opinion, an imputed political opinion, or her

membership in a social group, Martinez-Buendia must

put forth either direct or circumstantial evidence that

the FARC’s prior persecution of Martinez-Buendia was

motivated by one of those factors. Elias-Zacarias, 502 U.S.

at 483. However, in certain cases, “the factual circum-

stances alone may constitute sufficient circumstantial

evidence of a persecutor’s . . . motives.” Espinosa-Cortez

v. Attorney General, 607 F.3d 101 (3d Cir. 2010) (quoting

Canales-Vargas v. Gonzales, 441 F.3d 739, 744 (9th Cir. 2006)).

A. Persecution on Account of Political Opinion

The Board found that Martinez-Buendia did not rea-

sonably show that the FARC targeted her on account of

her actual or perceived political opinion. In coming to

this conclusion, the Board mainly relied on three cases:

Hernandez-Baena v. Gonzales, 417 F.3d 720 (7th Cir. 2005);

No. 09-3792 9

Matter of S-E-G, et al., 24 I. & N. Dec. 579, 588-89 (BIA

2008); and Matter of T-M-B-, 21 I. & N. Dec. 775 (BIA 1997).

Before this court, the government relies on the same

three cases as the Board and additionally points our

attention to INS v. Elias-Zacarias, 502 U.S. 478 (1992) and

Espinosa-Cortes v. Attorney General, 607 F.3d 101 (3d Cir.

2010).

INS v. Elias-Zacarias is the predecessor to the other

pertinent cases, so we begin there. In Elias-Zacarias the

Supreme Court addressed the question of “whether a

guerrilla organization’s attempt to coerce a person into

performing military service necessarily constitutes perse-

cution on account of political opinion.” 502 U.S. at 579.

The Court determined that the question was fact-specific

and therefore such coercion was not necessarily persecu-

tion on account of political opinion. Id. Under the

specific facts of Elias-Zacarias, the Court found that the

guerrilla organization’s attempt to coerce the petitioner

into performing military service did not constitute perse-

cution on account of political opinion. Id. at 483. Two

uniformed guerrillas went to the home of Elias-Zacarias

when he was eighteen and attempted to recruit him to

fight with them. Id. at 479-80. He refused to join the

guerrilla army and fled to the United States out of fear

of future persecution. Id. After he fled, the guerrillas

returned twice more to attempt to recruit him. Id. Elias-

Zacarias testified that he refused to join the guerrillas

because he was afraid the government would retaliate

against him for joining. Id. In assessing these facts, the

Court rejected the Ninth Circuit’s contention that “a

guerrilla organization’s attempt to conscript a person

into its military forces necessarily constitutes persecution

10 No. 09-3792

on account of political opinion because the person

resisting forced recruitment is expressing a political

opinion hostile to the persecutor.” Id. at 481. In rejecting

the Ninth Circuit’s position, the Court reasoned that:

Even a person who supports a guerrilla movement

might resist recruitment for a variety of reasons—fear

of combat, a desire to remain with one’s family and

friends, a desire to earn a better living in civilian life,

to mention a few. The record in the present case not

only failed to show a political motive on Elias-

Zacarias’ part; it showed just the opposite.

Id. at 482. The Court went on to state that Elias-Zacarias

had to show that the record compelled the conclusion

that the guerrillas will persecute him because of his

political opinion, rather than because of his refusal to

fight with them. Based on the limited evidence that the

guerrilla group attempted to recruit Elias-Zacarias and

he refused, the Court found that there was not sufficient

evidence to compel the finding that he was persecuted

on account of his political opinion.

Contrary to the government’s position in this appeal,

Elias-Zacarias does not stand for the proposition that

attempted recruitment by a guerrilla group will never

constitute persecution on account of the asylum seeker’s

political beliefs. Rather, Elias-Zacarias instructs courts to

carefully consider the factual record of each case when

determining whether the petitioner’s fear of future perse-

cution due to his refusing recruitment attempts con-

stitutes persecution on account of political beliefs. Elias-

Zacarias does not draw a bright-line rule one way or the

other. Therefore, we turn our attention to the record.

No. 09-3792 11

The record in this case demonstrates that Martinez-

Buendia was persecuted in the past, and therefore has a

legitimate fear of future persecution, on account of her

political beliefs. Unlike the record in Elias-Zacarias, the

specific facts of this case make it clear that Martinez-

Buendia politically opposed the FARC and that her

political beliefs were the reason for her refusal to

cooperate with the FARC. While the reason behind Elias-

Zacarias’s refusal to fight with the guerillas was not

clear, the record in this case is explicit and uncontra-

dicted: Martinez-Buendia refused to align with the FARC

because of her political views. Unlike the attempt to

recruit Elias-Zacarias to fight, the FARC did not ask

Martinez-Buendia to do anything she would not other-

wise do, nor did they ask her to refrain from doing some-

thing she otherwise would do. The FARC demanded

that Martinez-Buendia continue doing what she was

doing, but simply allow them to take credit for the

political goodwill she engendered with the populations

she served. Martinez-Buendia refused because, “[the

FARC] is a rebel group to the democracy of Colombia,

because they have harmed a lot of Colombia and my

beginnings would not allow me to do this.” (IJ Hearing

Testimony, R. 152.) It is exactly this type of testi-

mony—indicating that the refusal to cooperate was based

on a political opinion—that Elias-Zacarias was missing.

Also, unlike the record in Elias-Zacarias, the record in

this case makes it clear that the FARC imputed an anti-

FARC political opinion to Martinez-Buendia which led

to the increasingly violent nature of their persecution of

her. There is uncontested evidence in the record that

12 No. 09-3792

the FARC views members of Health Brigades as

political opponents. A 2002 Report by the Immigration

and Naturalization Service indicates that individuals

who do humanitarian work, such as working with

Health Brigades, are at a “great risk” of attack by the

FARC or other armed groups in Colombia. The report

quotes an Amnesty International Colombia Country

Specialist, “You cannot do humanitarian work without

being perceived as a political threat by one or all of the

armed groups.” (R. 387.) The report finds that this is

largely because the various political groups in Colombia

use Health Brigades to garner political support. (Id.) This

report leads us to the conclusion that the FARC viewed

Martinez-Buendia as a political opponent and sought

to sway her politically so that they could take credit for

the humanitarian work that she performed.

Martinez-Buendia’s persistent refusal to politically

align with the FARC despite the increasingly violent

nature of the persecution would have only strengthened

the FARC’s belief that she was a political opponent. The

FARC initially attempted to recruit Martinez-Buendia

through phone calls and threatening notes. If Martinez-

Buendia had fled to the United States after only these

recruiting attempts and sought asylum, the government’s

contention that this case is on all fours with Elias-Zacarias

still would not be appropriate, but it would be much

closer—recruitment attempts were made; the individual

ignored or rejected the attempts; the individual fled to the

United States and sought asylum. However, Martinez-

Buendia’s story does not end there. After these early

refusals, that the FARC escalated the violent nature of

No. 09-3792 13

their recruitment attempts. The FARC’s increasingly

violent actions, which the Board found amounted to

persecution, came in response to Martinez-Buendia’s

refusal to politically align her humanitarian work with

the FARC. While it may be unclear whether the FARC

initially targeted her to overcome her political stance,

the later persecution came as a result of her refusal to

cooperate with the FARC to advance their political agenda.

This post-refusal persecution is a key difference between

Martinez-Buendia’s situation and that of Elias-Zacarias,

and leads us to the inference that the FARC targeted

Martinez-Buendia to overcome the anti-FARC political

opinion they attributed to her. See Delgado v. Mukasey, 508

F.3d 702, 706-07 (2d Cir. 2007) (“It did not necessarily

follow that, because Petitioner’s original kidnaping

had not been politically motivated, her refusal to

provide further technological assistance did not support

a well-founded fear of future persecution on account of

an imputed political opinion.”); Espinosa-Cortez, 607

F.3d 101 (distinguishing Espinosa-Cortez’s situation

from Elias-Zacarias’s situation in part because the

Espinosa-Cortez family was approached by the FARC on

multiple occasions and the petitioner repeatedly refused

to cooperate with the FARC). Furthermore, when the

FARC spray-painted the Health Brigade cars with “S.O.B.

dogs from the government,” they made it clear that

they interpreted Martinez-Buendia’s repeated refusal to

cooperate as her expressing an anti-FARC political opinion.

The other cases relied on by the Board and the gov-

ernment similarly only push us toward the conclusion

that Martinez-Buendia’s case does compel the conclu-

14 No. 09-3792

sion that she was persecuted on account of her political

beliefs. For example, the Board relied on Hernandez-Baena

v. Gonzales, 417 F.3d 720 (7th Cir. 2005). In Hernandez-

Baena, we found that a man seeking asylum did not

demonstrate that he was persecuted on account of his

political beliefs when he had been threatened by the

FARC because of his refusal to sell FARC members

certain military supplies. 417 F.3d at 721-22. It was illegal

for Hernandez-Baena to sell military supplies to anyone

without the proper credentials; the FARC members

lacked such credentials. Id. After the petitioner refused

to sell the goods to the FARC member, another FARC

member came to the store and threatened to kill him. Id.

The petitioner fled his home that night and abandoned

his store. About a week after he fled, a FARC member

called him and told him that his “death sentence” had

been signed. Id. No further calls came. Seven months later,

the petitioner fled the country and came to the United

States. Id. The IJ found, and the Board affirmed, that the

FARC’s conduct did not amount to persecution, and

even if it did amount to persecution, such persecution

was not on account of the petitioner’s political opinion.

Id. at 722. In affirming this decision, we pointed to the

petitioner’s own testimony that he refused to comply

with the FARC members because he did not want to go to

jail for violating Colombian law. Id. at 723-24. It is this

testimony that makes Hernandez-Baena inapplicable to

this case. Both Hernandez-Baena and Martinez-Buendia

were persecuted, assuming the threats Hernandez-Baena

received constituted persecution, because they refused

to cooperate with the FARC. However, Hernandez-

No. 09-3792 15

Baena refused to cooperate because he did not want to

break the law, while Martinez-Buendia refused to co-

operate because she was politically opposed to the

FARC. If political opposition is the reason an individual

refuses to cooperate with a guerrilla group, and that

individual is persecuted for his refusal to cooperate,

logic dictates that the persecution is on account of the

individual’s political opinion; if the refusal to cooperate

is for a non-political reason, the persecution would not be

on account of the individual’s political beliefs (unless

the petitioner can show that the persecutor imputed a

particularly political belief on him based on his refusal

to cooperate).

The two BIA decisions relied on by the Board and the

respondents are similarly distinguishable. In In re T-M-B-,

the Board held that the individual applying for

asylum could not show that she was persecuted on

account of her political opinion when revolutionaries

persecuted her due to her failure to provide them with

financial contributions. The BIA found that the revolution-

aries’ motive was economic, not political, which was

evidenced by the revolutionaries’ attempts to extort

money from a large number of individuals with finan-

cial backgrounds similar to that of the individual at

issue. In Matter of S-E-G, et al., 24 I. & N. Dec. 579 (BIA

2008), the BIA held that the two individuals seeking

asylum after they refused to join the MS-13 gang could not

demonstrate that they were persecuted or would be

persecuted on account of their political opinions. Neither

case is applicable here because their records lack

evidence that the petitioner refused the demands of the

persecutor because of his or her political opinion.

16 No. 09-3792

This case is much more similar to Espinosa-Cortez than

any case relied on by the Board. In Espinosa-Cortez, the

Third Circuit found that the Espinosa-Cortez family did

have a reasonable fear of persecution on account of a

political opinion that the FARC imputed to the family

members. 607 F.3d 101. The court relied on three key

factors that distinguish Espinosa-Cortez from Elias-

Zacarias and compelled the conclusion that the situation

warranted asylum for the family: (1) Espinosa-Cortez

had a direct affiliation with the Colombian government

and military, (2) Espinosa-Cortez engaged in protracted

resistance to the FARC’s recruitment efforts, and

(3) Espinosa-Cortez made his anti-FARC stance known

to the FARC. Id. at 109-14. Martinez-Buendia’s situation

is similar in all three aspects. First, it is clear that the

FARC considered Martinez-Buendia to be connected to

the government. Although Martinez-Buendia’s political

affiliations were not as direct as those of Espinosa-Cortez,

who was openly active in the Liberal Party, the message

the FARC spray-painted on Martinez-Buendia’s car at

the time they kidnaped her sister shows that they at-

tributed pro-government political views to Martinez-

Buendia. This fits with the other evidence in the record

that the FARC views humanitarian workers, including

those involved in Health Brigades, as political opponents.

Second, similar to Espinosa-Cortez, Martinez-Buendia

resisted numerous recruitment attempts and threats.

607 F.3d at 111-13. Even more compelling than what

occurred to the Espinosa-Cortez family, where the

No. 09-3792 17

FARC recruitment efforts never escalated past threats 1 ,

Martinez-Buendia faced intense violence and still refused

to cooperate. Lastly, while there is no evidence that

Martinez-Buendia directly communicated her anti-

FARC political opinion to a FARC member as clearly as

Espinosa-Cortez did, the only logical conclusion that

the FARC could have drawn from her non-responsive-

ness in the face of their extreme violence is that she

was politically opposed to their cause. Martinez-

Buendia’s act of hanging up the phone when FARC

members called threatening to kill her sister if she

did not comply is a clear non-verbal statement that

she opposed the FARC.

B. Persecution on Account of Membership in a Social

Group

Martinez-Buendia also challenges the Board’s findings

that the Health Brigades are not a cognizable social group

for the purpose of asylum and that, if the Health Brigades

were a cognizable social group, the FARC did not perse-

cute Martinez-Buendia on account of her membership

in the Health Brigades. Because this record compels the

conclusion that Martinez-Buendia was persecuted in the

past on account of her political opinion, and therefore

1

Espinosa-Cortez was kidnaped in 1984 due to his wealth.

However, because it was clear that the 1984 kidnaping had no

connection to Espinosa-Cortez’s political opinions and because

it was not one of the predicate occurrences to the family

fleeing Colombia, it was not relied on at the hearing.

18 No. 09-3792

has a legitimate fear of future persecution on account

of her political beliefs, we need not reach the question

of whether she also qualifies for asylum due to persecu-

tion on account of her membership in a social group.

III. Conclusion

For the reasons stated above, we grant the petition

for review.

H AMILTON, Circuit Judge, concurring. I concur fully in

the court’s opinion, which shows that we must grant

the petition for review because petitioner Martinez-

Buendia was persecuted by the FARC on the basis of her

political opinions. I write separately to note that I believe

the Board of Immigration Appeals also applied too

narrow a concept of a “social group” when evaluating

petitioner’s leadership in the brigadas de salud (Health

Brigades) in Colombia. If we were not ordering the

Board to grant refugee status to petitioner based on

political persecution, I would order a remand to the

Board for further development and consideration of the

social group issue.

To gain asylum in the United States, it is not enough

for a refugee to show only that she was persecuted or

No. 09-3792 19

at grave risk in her home country. She must also show

that she suffered or faces persecution for a statutory

reason: “on account of race, religion, nationality, member-

ship in a particular social group, or political opinion.”

8 U.S.C. § 1101(a)(42) (definition incorporated in 8 U.S.C.

§ 1158(b)(1)(A)).

In this case, the Board characterized petitioner’s social

group argument as one based on “membership in a

group consisting of educators and healthcare profes-

sionals ‘who are able to go places . . . the FARC . . .

cannot . . . and win the hearts and minds of the citizens.’ ”

According to the Board, the immigration judge properly

rejected that argument because petitioner had not shown

a “common quality binding the group members that is

either unchangeable or fundamental to their identities

such that a cognizable group exists.” Nor, said the

Board, had she shown “that the FARC was targeting her

to punish her for or to overcome her group membership.”

In my view, the Board’s rejection of this argument was

based on two closely related errors. First, it did not recog-

nize that the statutory definition can reach a social

group defined by its activities, at least where the persecu-

tion is based on those activities. Second, the Board failed

to consider the extent to which this petitioner was

acting as a matter of conscience when she acted so as

to draw the attention and wrath of the FARC.

Social Group Defined by Activity that Draws Persecution: If

the FARC’s only reason for targeting petitioner Martinez-

Buendia was that she refused to act as a means to the

FARC’s ends, she would be like many other Colombian

20 No. 09-3792

citizens who are ineligible for asylum in the United

States. They are targeted not as a coherent group with a

set of deeply-held beliefs, but rather as one of an undif-

ferentiated mass of people who suffer terribly because

of the FARC’s brutal methods. See, e.g., Delgado v.

Mukasey, 508 F.3d 702, 706 n.2 (2d Cir. 2007) (rejecting

petitioner’s claim that Colombian computer experts

constitute a social group because she was kidnapped to

help the FARC set up a computer network); accord,

Ahmed v. Ashcroft, 348 F.3d 611, 619 (7th Cir. 2003)

(no “social group” claim from “danger . . . affecting the

population in a relatively undifferentiated way”). Without

more, nothing would distinguish petitioner from any-

one else the FARC sought to coopt for its mission, and

she would be ineligible for asylum in the United States.

The Board erred as a matter of fact and law, however,

when it characterized petitioner’s proposed social group

as one defined merely by the fact that the FARC targets

members to get access to people and resources. The

evidence in this record goes much further toward distin-

guishing members of the Health Brigades from the tragic

and undifferentiated mass of other FARC victims. Peti-

tioner was not targeted solely because she was in a

position to help the FARC reach the rural poor. She

relied on a 2002 report published by the Immigration and

Naturalization Service itself to show that the Health

Brigades can qualify as a social group under United

States immigration law. The report explains that the

FARC is engaged in a systematic campaign targeting

humanitarian groups generally—and the Health Bri-

gades specifically—because they are often aligned with

No. 09-3792 21

political groups opposed to the FARC. The FARC sees

these humanitarian groups as its competitors for con-

trol over the towns and regions where both they and the

FARC operate. These assertions, like all the evidence

petitioner presented, were credited by the immigration

judge and deserved greater consideration by the Board.

With respect to this evidence, the Board erred as a

matter of law in requiring petitioner to show a “common

quality binding the group members together that is either

unchangeable or fundamental to their identities.” The

decision of this court cited by the Board, Najafi v. INS, 104

F.3d 943 (7th Cir. 1997), did not actually adopt such

a demanding standard. That case is consistent with the

Board’s own broader standard: a group of people who

are “unable by their own actions, or as a matter of con-

science should not be required, to avoid persecution.”

In re Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985); accord,

Lwin v. INS, 144 F.3d 505, 512 (7th Cir. 1998) (adopting

standard from Acosta).

In applying that standard, we have gone so far as to

hold that a social group may be defined merely by the

fact that its members share a certain characteristic and

are systematically persecuted solely because they share

that characteristic. In Tapiero de Orejuela v. Gonzales,

423 F.3d 666, 672 (7th Cir. 2005), we found that the peti-

tioners were members of a persecuted social group

because the FARC had persecuted them based on their

membership in “a distinct social group: the educated,

landowning class of cattle farmers targeted by FARC.”

There was no evidence in Tapiero de Orejuela that Colom-

22 No. 09-3792

bian cattle farmers feel their cattle-farmer identity so

strongly that it could be considered fundamental, or

that one becomes a cattle farmer out of a moral or near-

religious belief that it is the right thing to do. There

was some limited evidence that the petitioners’ identity

in that group had become immutable. Most important,

however, there was evidence that the FARC system-

atically persecuted educated cattle farmers as a group,

and that it persecuted these specific educated cattle

farmers simply because they belonged to that group.

That was enough to find a protected “social group.”

Defining a social group based solely on its persecution

as a social group would not be inconsistent with the

Board’s decision in Acosta, which reasoned that “social

group” should be defined no more broadly than the

narrower categories of eligibility like race and nation-

ality. When a person is persecuted because of her race

or nationality, we do not ask her to prove how deeply

she feels her racial or national identity. Nor must she

prove that she feels a kinship with people who share

that identity. True, those characteristics are immutable,

and many people may in fact feel a strong racial or

national identity in part because that identity cannot

be changed. But that is not why we provide asylum to

people persecuted because of their race or nationality.

We provide asylum because those people are being perse-

cuted simply for who they are. I can think of no good

reason why the statute would treat differently a member

of a social group who is persecuted for who she is, at

least as long as the petitioner, as in Tapiero de Orejuela, can

show that the group is coherently defined and that she

No. 09-3792 23

was indeed persecuted simply because she is a member

of the group.

Social Group Membership Based on Conscience: Because

of the Board’s second error in this case, however, peti-

tioner’s social-group theory does not require the Board

or the court to go so far as we did in Tapiero de Orejuela. The

Board’s second error was to downplay both the Acosta

standard’s extension to persecuted social groups defined

by conscience and the facts showing that petitioner was

persecuted for acting according to her conscience. Peti-

tioner offered uncontested evidence that she was an

active leader in a group of people who provided health

care to the poor, and that she, at least, engaged in that

activity as a matter of conscience. For the same reasons

of conscience, she refused to leave the group in response

to the FARC’s threats and kidnaping. The immigration

judge credited her testimony. On this record, we can

and should acknowledge her dedication, and her courage.

If petitioner and other Health Brigade members were

persecuted because they were providing health care to

the poor as a matter of religious faith and practice,

there would be little doubt that they could qualify for

asylum. If petitioner and other Health Brigade mem-

bers were providing health care as an exercise of their

secular ethical values that also can fairly be described as

matters of conscience, the question should be no more

difficult under the Acosta standard.

In sum, the facts and law relevant to petitioner’s claim

for refugee status as a member of a persecuted social

group deserved closer consideration. Future petitioners

may offer evidence that they joined groups like the

24 No. 09-3792

Health Brigades as a matter of conscience and that they

have been persecuted, or that they face future persecu-

tion, on account of their membership in and work on

behalf of the Health Brigades. They should not be

denied asylum simply because that membership may

appear more fluid than membership in a racial, ethnic,

or religious group, or because their involvement is the

result of secular ethical values instead of religious faith.

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