Johana Cece v. Eric Holder, Jr.

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 11‐1989

JOHANA CECE,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

____________________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A096 158 857

____________________

ARGUED OCTOBER 5, 2011 — DECIDED FEBRUARY 6, 2012

REARGUED EN BANC SEPTEMBER 27, 2012

DECIDED AUGUST 9, 2013

____________________

Before EASTERBROOK, Chief Judge, and POSNER, FLAUM,

MANION, KANNE, ROVNER, WOOD, WILLIAMS, SYKES, TINDER,

and HAMILTON, Circuit Judges.

2 No. 11-1989

ROVNER, Circuit Judge. United States asylum laws grant

refuge to those who have been persecuted in foreign lands

because of race, religion, nationality, membership in a par-

ticular social group, or political opinion. The complexity sur-

faces when we try to define terms such as persecution and

“social group”—the latter of which has perplexed this court

and others, and is in the spotlight once again in this case.

I.

Johana Cece, a native of Albania, arrived in the United

States in 2002, and sought asylum within the requisite time

allotted. The immigration judge deemed Cece credible, and

therefore we use her testimony and the immigration judge’s

factual findings as a basis to set forth the facts of the case.

Cece lived with her family in Korçë, Albania until her

parents left the country in 2001. As a young woman living

alone in Albania, Cece caught the attention of a well-known

local criminal gang that was notorious for forcing women

into prostitution rings. One of the leaders of that gang, a

man Cece knew as “Reqi,” began following her around

town, offering her rides, and inviting her on dates. Cece

knew Reqi by reputation—that is, for his membership in a

gang known for its participation in prostitution rings, mur-

der of other gang members, and the drug trade. Cece also

testified that the gang members appeared to enjoy complete

immunity from the law. Cece had long seen Reqi near her

high school, where he cruised the area looking for girls and

offering drugs to young women. Cece had heard that one of

these women had been kidnapped by Reqi and forced into

prostitution. Reqi’s stalking culminated in a confrontation on

June 4, 2001, when Reqi followed Cece into a cosmetics store,

cornered her, and pinned her to a wall. There he confronted

No. 11-1989 3

her and asked her why she would not go out with him. Reqi

made it clear to Cece that he could not be stopped and that

he would find her and do whatever he wanted to her. She

told him to let go, but he merely tightened his grip and held

her there. There were several people in the store, but no one

came to her aid. Cece surmised that they too were frightened

by Reqi. Cece’s friend convinced her to report the assault to

the police, but the police perfunctorily dismissed her accusa-

tion, claiming she lacked proof.

A few days later someone threw a rock through Cece’s

window. She stopped going out, stopped going to school,

and made plans to leave Korçë.

Cece moved 120 miles north to Tirana to stay with her

sister, who lived in a university dormitory, but her safety

there was short-lived. A year later, her sister left the country

and, without access to the dormitory or family with whom

to live, Cece was once again left alone to fend for herself. As

a single woman living alone in Albania, Cece claims she re-

mained a target no matter where she lived.

In 2002, fearing for her safety, Cece fraudulently pro-

cured an Italian passport and came to the United States un-

der the Visa Waiver Program. Less than a year later, she ap-

plied for asylum and withholding of removal, asserting that

she feared returning to Albania because she believed that as

a young woman living alone she would be kidnapped and

forced to join a prostitution ring.

At Cece’s hearing, Dr. Bernd Fischer, a Professor in Bal-

kan History at the Indiana University–Purdue University

Fort Wayne and an expert on Albania, testified that Cece’s

4 No. 11-1989

experience was “unfortunately usual.” (R. 223). Dr. Fischer

described a very serious problem of human trafficking for

prostitution in Albania in which gangs, often with the pro-

tection, and at times the participation of the police, kidnap

women and spirit them out of the country either through

Greece, Kosova, or across the Adriatic Sea to Italy. Dr. Fisch-

er described how anomalous it is for a single woman to live

by herself in Albania, that such a woman would be an ideal

target for a trafficker, particularly if she had been such a tar-

get in the past, and that the problem was pervasive through-

out Albania and not limited to Cece’s home village of Korçë.

Dr. Fischer testified that although gang members primarily

target women between the ages of sixteen and twenty-six,

many women outside of the target age range are also forced

into prostitution. Finally, he noted that the Albanian judicial

system does not adequately enforce laws against traffickers.

Reports issued by the U.S. State Department in 2004 corrob-

orated his representations of a large-scale problem with hu-

man trafficking in Albania. (R. 573-84).

The immigration judge granted Cece asylum in 2006,

concluding that she belonged to the group of “young wom-

en who are targeted for prostitution by traffickers in Alba-

nia,” and that the Albanian government was unwilling or

unable to protect such women. (R. 128-29). He noted in par-

ticular that Albania stands out in Europe as a major country

of origin of traffickers in prostitution; the government’s judi-

cial system is not effective against the problem; Albania suf-

fers from a major and ongoing trafficking of young women

by gangs; and there is no prospect in the foreseeable future

of the government being able or willing to address the prob-

No. 11-1989 5

lem. (R. 129). The immigration judge also found Cece’s tes-

timony credible and her fear reasonable.

The Board of Immigration Appeals vacated the decision

of the immigration judge, however, finding that Cece failed

to establish past persecution and had successfully relocated

within Albania. (R. 330-31). Specifically, the Board held that

the immigration judge erred in determining that Cece was a

member of a social group of young women who have been

targeted for prostitution by traffickers, noting its precedent

that a social group must have social visibility and share a

narrowing characteristic other than the risk of being perse-

cuted.

On remand, the immigration judge expressed concern

with the Board’s conclusion that Cece did not belong to a

protectable social group and that she could safely relocate

within the country. (R. 114-116, 119-120). The immigration

judge, however, recognized that he was bound by the

Board’s determinations and denied the application for asy-

lum. The Board dismissed Cece’s second appeal, emphasiz-

ing that Cece’s proposed group was defined in large part by

the harm inflicted on its members and did not exist inde-

pendently of the traffickers. 1 The Board also concluded that

1The Board appropriately abandoned its criticism that Cece had failed to

demonstrate “social visibility.” Between the time of the first and second

Board appeals, this Court rejected a social visibility analysis and

concluded that applicants need not show that they would be recognized

as members of a social group to qualify for withholding. See Gatimi v.

Holder, 578 F.3d 611, 614-15 (7th Cir. 2009) (noting that homosexuals

might well pass as heterosexual, and women who have not yet

undergone genital mutilation look no different than other women).

6 No. 11-1989

there was insufficient evidence in the record that internal re-

location was not reasonable. (R. 9).

Cece appealed to this Court and over one dissent, the

panel denied Cece’s petition for review, agreeing with the

Board that Cece had not named a cognizable social group

and that the Board had sufficient evidence to conclude that

Cece could relocate safely within Albania. We granted

Cece’s petition for rehearing en banc and vacated the panel’s

opinion and judgment.

II.

To be eligible for asylum, an applicant must show that

she is “unable or unwilling to return” to the country of his

nationality “because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, mem-

bership in a particular social group, or political opinion.” 8

U.S.C. §1101(a)(42)(A). An applicant who successfully

proves that she was subject to past persecution is presumed

to have a well-founded fear of future persecution, which the

Attorney General can rebut by demonstrating a change in

conditions in the applicant’s home country. 8 C.F.R. §

1208.13(b)(1); Mustafa v. Holder, 707 F.3d 743, 750-751 (7th

Cir. 2013). The applicant must show that she fits within one

of those categories and that there is “a nexus between her

fear of future persecution and one of those five protected

grounds.” Escobar v. Holder, 657 F.3d 537, 542 (7th Cir. 2011);

Ishitiaq v. Holder, 578 F.3d 712, 715 (7th Cir. 2009).

The primary question in this case is whether Cece has

proffered a particular social group that is cognizable under 8

U.S.C. § 1101(a)(42)(A). Whether a group constitutes a par-

No. 11-1989 7

ticular social group under the Immigration and Nationality

Act is a question of law that we review de novo, while giving

Chevron deference to the Board’s reasonable interpretation

set forth in precedential opinions interpreting the statute.

Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467

U.S. 837, 842-43 (1984); Escobar, 657 F.3d at 542. See also, Ayala

v. Holder, 640 F.3d 1095, 1096-97 (9th Cir. 2011) (whether a

group constitutes a particular social group under the Immi-

gration and Nationality Act is a question of law, which a

court of appeals reviews de novo); Castaneda-Castillo v. Hold-

er, 638 F.3d 354, 363 (1st Cir. 2011) (same); Crespin-Valladares

v. Holder, 632 F.3d 117, 124 (4th Cir. 2011) (same); Gomez-

Zuluaga v. Att’y Gen. of United States, 527 F.3d 330, 339 (3d

Cir. 2008) (same); Malonga v. Mukasey, 546 F.3d 546, 553 (8th

Cir. 2008) (same); Castillo-Arias v. United States. Att’y Gen.,

446 F.3d 1190, 1195 (11th Cir. 2006) (same); Cruz-Funez v.

Gonzales, 406 F.3d 1187, 1191 (10th Cir. 2005) (same).

Under the deference analysis set forth in Chevron, if con-

gressional purpose is clear, we must give it effect. Chevron,

467 U.S. at 842-43. We also give deference to precedential

decisions of the Board. Id. at 843; Escobar, 657 F.3d at 542.

Our duty at this stage is to uphold the Board's determination

if it is supported by substantial evidence—that is, reasona-

ble, substantial, and probative evidence on the record con-

sidered as a whole. Escobar, 657 F.3d at 545. If Congress has

directly spoken to the precise question at issue, then a court

must follow that clear guidance. Chevron, 467 U.S. at 842-43.

If, however, the statute is silent or ambiguous, the court

must defer to authoritative agency interpretations of the law.

Id. at 844. Congress did not directly address what it meant

8 No. 11-1989

by a protected “social group” in the Immigration and Na-

tionality Act, so we look to see how the agency has inter-

preted the statute.

The Board took on the task of defining “social group” in

Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (1985), overruled,

in part, on other grounds by Matter of Mogharrabi, 19 I. & N.

Dec. 439, 439 (BIA 1987) limiting it to groups whose mem-

bership is defined by a characteristic that is either immutable

or is so fundamental to individual identity or conscience that

a person ought not be required to change. Id. This Circuit

has deferred to the Board’s Acosta formulation of social

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

The immutable or fundamental characteristic might be

membership in an extended family, sexual orientation, a

former association with a controversial group, or member-

ship in a group whose ideas or practices run counter to the

cultural or social convention of the country. The latter group

might seem plausibly alterable, but we respect an individu-

al’s right to maintain characteristics that are “fundamental to

their individual identities.” Escobar, 657 F.3d at 545. Cece

could find a man to marry to protect her (and anachronisti-

cally, the lawyer representing the government in this case

inquired why she had not done just that (R. 172)), but this is

the type of fundamental characteristic change that we do not

ask of asylum applicants. See, e.g., Agbor v. Gonzales, 487 F.3d

499, 502 (7th Cir. 2007) (women who are opposed to and fear

female genital mutilation); Sarhan v. Holder, 658 F.3d 649, 654

(7th Cir. 2011) (women who “in accordance with social and

religious norms in Jordan, are accused of being immoral

criminals and, as a consequence, face the prospect of being

No. 11-1989 9

killed without any protection from the Jordanian govern-

ment.”); and Yadegar-Sargis v. INS, 297 F.3d 596, 603 (7th Cir.

2002) (Christian women in Iran who do not wish to adhere

to the Islamic female dress code). See also Al-Ghorbani v.

Holder, 585 F.3d 980, 996 (6th Cir. 2009) (social group that

opposes the repressive and discriminatory Yemeni cultural

and religious customs that prohibit mixed-class marriages

and require paternal consent for marriage); Safaie v. INS, 25

F.3d 636, 640 (8th Cir. 1994) (Iranian women who advocate

women’s rights or who oppose Iranian customs relating to

dress and behavior); 2 Fatin v. INS, 12 F.3d 1233, 1241 (3d Cir.

1993) (Iranian women who refuse to conform to the govern-

ment's gender-specific laws and social norms).

Members of a social group need not be swimming

against the stream of an embedded cultural norm. Some-

times the characteristic is immutable because a shared past

experience or status has imparted some knowledge or label-

ing that cannot be undone. Acosta, 19 I. & N. Dec. at 233.

Thus we have held that former truckers (or, more generally,

those with a special skill needed by the persecutors) consti-

tute a social group because their past actions and acquisition

of skills are unchangeable, Escobar, 657 F.3d at 545-46; as do

the subordinates of the attorney general of Colombia who

had information about insurgents plaguing that nation,

Sepulveda v. Gonzales, 464 F.3d 770, 771-72 (7th Cir. 2006);

former members of a violent and criminal faction in Kenya,

Gatimi v. Holder, 578 F.3d 611, 614 (7th Cir. 2009); tattooed,

2Both Al-Ghorbani and Safaie, supra, have been superseded on other grounds

by statute, 8 U.S.C. § 1252(b)(3)(B), as recognized in Rife v. Ashcroft, 374 F.3d

606, 614-15 (8th Cir. 2004).

10 No. 11-1989

former Salvadoran gang members who had since turned to

God, Benitez Ramos v. Holder, 589 F.3d 426, 428-29 (7th Cir.

2009); parents of Burmese student dissidents, Lwin, 144 F.3d

at 512; and the educated, landowning class of cattle farmers

targeted by Columbian rebels, Tapiero de Orejuela v. Gonzales,

423 F.3d 666, 672 (7th Cir. 2005). See also Lukwago v. Ashcroft,

329 F.3d 157, 178 (3d Cir. 2003) (former Ugandan child sol-

diers who have escaped abduction, enslavement and tor-

ture).

In order to compare Cece’s social group with the likes of

those above, we must first determine the contours of her so-

cial group. Both the parties and the immigration courts were

inconsistent, and the description of her social group varied

from one iteration to the next. The inconsistencies, however,

do not upset the claim. See In re Kasinga, 21 I. & N. Dec. 357,

(BIA 1996) (the Board, recognizing that both the Immigration

and Naturalization Service and the applicant “advanced

several formulations of the ‘particular social group’ at is-

sue”). And in one form or another, both Cece and the immi-

gration judge articulated the parameters of the relevant so-

cial group.

On her application for asylum, Cece explains that she is a

“perfect target” of forced prostitution because she is a

“young Orthodox woman living alone in Albania.” (R. 669).

The immigration judge, in initially granting Cece asylum,

collapsed this definition and described her social group as

first, “a social group consisting of young women who are

targeted for prostitution by traffickers in Albania,” (R. 128)

and then a “social group consisting of women in danger of

being trafficked as prostitutes.” (R. 131). Thus the immigra-

No. 11-1989 11

tion judge omitted the important characteristic that Cece

lived alone. 3 There is no doubt that it should have been in-

cluded in the immigration judge’s description of social

group, as so much of the testimony before him centered on

Cece’s status as a woman living alone. Cece testified at

length that women do not live alone in Albania (R. 147-148,

167, 195, 674), that she did not know anyone who lived alone

(R. 167, 173,195, 207); that she was afraid to live alone, (167,

171, 197, 300, 674) and most importantly that she was target-

ed because she was living alone. See (R. 147-148, 158, 166,

172-73, 195, 197, 300, 304, 305). Similarly, the Albanian ex-

pert’s testimony was focused on the risk of women who

lived alone in Albania. (R. 229-30). Cece’s brief before this

Court noted several times that the Board failed to consider

this formulation of the group. Opening Brief of Appellants

before the three-judge panel of this Court, at 20, 22, 27.

We could surmise that the immigration judge’s descrip-

tion of Cece’s social group as one consisting of “young

women who are targeted for prostitution by traffickers in

Albania,” (R. 128) or “women in danger of being trafficked

as prostitutes,” (R. 131) was simply shorthand for describing

women who are vulnerable to trafficking. And we know that

women in Albania become vulnerable to targeting when, for

example, they lack protection from husbands and family

members. We need not do too much surmising, however,

3Occasionally the adjudicators or parties refer to Cece as “single,” which

appears, in this context, to be shorthand for living alone, see Opening

Brief of Appellants before the three-judge panel of this Court, at 20, 22,

27, 28 (contending that Cece is member of a group of “young, single,

women in Albania.”)

12 No. 11-1989

because the immigration judge’s order on remand—and re-

ally the only order that matters on this appeal—specifically

concludes that her characteristics are “namely that she is a

young woman from a minority religion who has lived by her-

self most of the time in Albania, and thus is vulnerable, par-

ticularly vulnerable to traffickers for this reason.” (R. 120)

(emphasis ours). 4

The Board’s order rejects Cece=s social group as being not

cognizable under the Act because it “is defined in large part

by the harm inflicted on the group, and does not exist inde-

pendently of the traffickers.” (R. 9). This is not a reasoned

conclusion. As we have just described, the characteristics of

the group consist of the immutable or fundamental traits of

being young, female, and living alone in Albania. Even if the

group were defined in part by the fact of persecution (and

we do not believe it to be), that factor would not defeat

recognition of the social group under the Act. Although it is

true that “where a proposed group is defined only by the

characteristic that it is persecuted, it does not qualify as a

‘social group,’” the Board of Immigration Appeals has never

required complete independence of any relationship to the

4 The immigration judge’s decision on remand is the only one which we

review, as the former has been vacated. We refer to the earlier decision

only to determine how Cece’s social group has been articulated through-

out the litigation. Our review then is of the immigration judge’s second

opinion of December 1, 2008, as supplemented by the Board’s opinion of

March 31, 2011 dismissing her appeal. See Barma v. Holder, 640 F.3d 749,

751 (7th Cir. 2011) (“Where, as here, the BIA agrees with the IJ’s decision

but supplements that decision with its own explanation for rejecting the

appeal, we review the IJ’s decision as supplemented by the BIA's reason-

ing.”).

No. 11-1989 13

persecutor. Escobar, 657 F.3d at 545 (emphasis ours). And just

because all members of a group suffer persecution, does not

mean that this characteristic is the only one that links them.

Id. at 545-46. A social group “cannot be defined merely by the

fact of persecution” or “solely by the shared characteristic of

facing dangers in retaliation for actions they took against al-

leged persecutors.” Jonaitiene v. Holder, 660 F.3d 267, 271-72

(7th Cir. 2011) (emphasis ours). That shared trait, however,

does not disqualify an otherwise valid social group. Escobar,

657 F.3d at 547 (instructing that we cannot tease out one

component of the group’s characteristics to defeat the defini-

tion of social group). It certainly did not invalidate the social

group in Agbor which consisted of “women who fear being

circumcised should they return to their home countries,” de-

spite the fact that the group was defined in large part by the

persecution inflicted on the group. Agbor, 487 F.3d at 502.

Nor did it disqualify “women in Jordan who have (alleged-

ly) flouted repressive moral norms, and thus who face a high

risk of honor killing.” Sarhan, 658 F.3d at 654, 655. These

women still had the immutable characteristics of gender, na-

tionality, and the inability to alter their past labels of non-

conformist.

“Women who fear female genital circumcision” sound a

lot like “women who fear prostitution,” thus demonstrating

that it is not fair to conclude that the group is defined by the

harm or potential harm inflicted merely by the language

used rather than determining what underlying characteris-

tics account for the fear and vulnerability. The Board=s cases

instruct that we must look to see whether the group shares

Acommon characteristics that members of the group either

14 No. 11-1989

cannot change, or should not be required to change, because

such characteristics are fundamental to their individual

identities.@ Escobar, 657 F.3d at 545 (citing Gatimi, 578 F.3d at

614, In re Kasinga, 21 I. & N. Dec. 357, 365-66 (BIA 1996)). In

this case, although it is true that these women are linked by

the persecution they suffer—being targeted for prostitu-

tion—they are also united by the common and immutable

characteristic of being (1) young, (2) Albanian, (3) women,

(4) living alone. For this reason we disagree with the Sixth

Circuit’s conclusion in Rreshpja v. Gonzales, that the social

group of “young (or those who appear to be young), attrac-

tive Albanian women who are forced into prostitution” does

not constitute a social group because it is circularly defined

by the fact that it suffers persecution. Id. 420 F.3d 551, 555-56

(6th Cir. 2005). 5

Our conclusion is consistent with a parallel line of rea-

soning found in mixed motive cases. The Board of Immigra-

tion Appeals and this Court have long recognized that per-

secution can exist in a mixed motive case in which the perse-

cutor targets an individual for more than one reason and one

of the reasons does not warrant protection under the Act.

Under the mixed-motives doctrine, an applicant may qualify

for asylum so long as the applicant demonstrates by either

direct or circumstantial evidence that his persecutors were

motivated, at least in part, by one of the enumerated

5 The Second Circuit has also addressed a similar issue in Gjura v. Holder,

502 Fed. App’x 91 (2d Cir. 2012), but in that case the court skirted the

issue of whether “young, unmarried Albanian women could constitute a

social group” and found instead that the applicant, Gjura, had failed to

establish a nexus. Id.

No. 11-1989 15

grounds. Mustafa v. Holder, 707 F.3d 743, 751 (7th Cir. 2013). 6

See also Bueso-Avila v. Holder, 663 F.3d 934, 937 (7th Cir. 2011)

(“[A]n individual may qualify for asylum if his or her perse-

cutors have more than one motive as long as one of the mo-

tives is specified in the Immigration and Nationality Act.”).

Suppose, for example, that Muslims in a particular coun-

try are wildly disfavored and frequently persecuted by the

government. Wealthy Muslims, however, are tolerated be-

cause of their vast contribution to the poor country’s busi-

ness, tax base and overall wealth. The government, on the

other hand, routinely beats, jails and strips of rights poor

Muslims. Although the United States does not grant asylum

based on poverty, the fact that the persecuted group shares

this common characteristic does not disqualify the group

from seeking asylum based on religious persecution. We

cannot tease out one component of a group’s characteristics

to defeat the definition of social group. Escobar, 657 F.3d at

547.

Both dissents submit that Cece is not in the group of

young Albanian women living alone because her own expert

6The REAL ID Act of 2005 now requires an applicant to show that one of

the five protected grounds was at least one “central reason” for his per-

secution. See 8 U.S.C. § 1158(b)(1)(B)(i). Cece filed her asylum claim in

2002, thus pre-REAL ID standards and case law apply. See Dawoud v.

Gonzales, 424 F.3d 608, 613 (7th Cir. 2005). In any event, the “central rea-

son” for her persecution is that she was a young woman living alone,

and as such she would qualify even under the Real ID Act as the ground

need only be “central.” A ground may be a secondary (or tertiary, etc.)

reason and still justify asylum provided the applicant can show that the

protected status played more than a minor role in motivating a persecu-

tor. Shaikh v. Holder, 702 F.3d 897, 902 (7th Cir. 2012).

16 No. 11-1989

defined “young” as 16 to 26 or 27, and Cece is now 34. He

testified, however, that “this is just a targeted age group.

There are many examples of people outside of the targeted

age group being kidnapped and trafficked.” (R. 255). In this

case, the Petitioner is part of a group of young Albanian

women who live alone. Neither their age, gender, nationali-

ty, or living situation are alterable. These characteristics

qualify Cece’s proposed group as a protectable social group

under asylum law.

Demonstrating that an asylum applicant belongs to a

cognizable social group is only the first step in determining

asylum. Recall that an applicant must show not only that she

fits within a cognizable social group but also that there is a

nexus between the persecution and the membership in the

social group. Escobar, 657 F.3d at 542; Ishitiaq, 578 F.3d at 715.

Justice Alito, while on the Third Circuit, described the steps

as follows:

The alien must (1) identify a group that constitutes a

‘particular social group’ within the interpretation just

discussed, (2) establish that he or she is a member of

that group, and (3) show that he or she would be per-

secuted or has a well-founded fear of persecution

based on that membership.

Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). He then went

on to note that, “to the extent that the petitioner in this case

suggests that she would be persecuted or has a well-founded

fear that she would be persecuted in Iran simply because she

is a woman, she has satisfied the first of the three elements

that we have noted.” Id. As we are about to see, it is the nex-

us requirement where the rubber meets the road.

No. 11-1989 17

Those who fear that the slope leading to asylum has been

made too slick by broad categories need not worry. The im-

portance of the “on account of” language must not be over-

looked. It is this requirement that should assuage Judge

Easterbrook’s fears that “[t]his makes eligible for asylum

everyone who faces a substantial risk of harm in his native

land, no matter the reason.” Post at 32. Although the catego-

ry of protected persons may be large, the number of those

who can demonstrate the required nexus likely is not. As the

Board explained of clan-based persecution in Somalia, “the

fact that almost all Somalis can claim clan membership and

that interclan conflict is prevalent should not create undue

concern that virtually all Somalis would qualify for refugee

status, as an applicant must establish he is being persecuted

on account of that membership.” In re H-, 21 I. & N. Dec. 337,

343 (BIA 1996). The breadth of the social group says nothing

about the requirements for asylum, just as the breadth of

categories under Title VII of the Civil Rights Act says noth-

ing about who is eligible to sue an employer for discrimina-

tion. All African Americans and all women, for example, are

members of “protected” categories under Title VII, but not

all African Americans and women have a claim for discrimi-

nation. In order to be entitled to asylum, Cece must be able

to demonstrate a particular link between her mistreatment

and her membership in the stated social group. Escobar, 657

F.3d at 544; Bueso-Avila, 663 F.3d at 936. This requirement is

not unique to inquiries about persecution based on “social

group,” but rather one that is applicable to cases of claimed

persecution based on race, religion, nationality or political

opinion. In other words, an ethnic Rom (gypsy) who has

been mistreated by the town mayor because of a long-

18 No. 11-1989

standing business dispute would not be eligible for asylum

even if the mayor has undoubtedly and unfairly mistreated

him, and even if he belongs to an ethnic group that was fre-

quently the target of persecution in his country. The persecu-

tion must still be “on account of” the protected category.

In any event, the breadth of category has never been a

per se bar to protected status. As we noted in Iao v. Gonzales,

The number of followers of Falun Gong in China is

estimated to be in the tens of millions, all of them sub-

ject to persecution … . [Because] [a]nyone, we sup-

pose, can get hold of a book of [Falun Gong] teach-

ings, start doing the exercises, and truthfully declare

himself or herself a bona fide adherent to Falun Gong

[,][t]he implications for potential Chinese immigration

to the United States may be significant … . But Con-

gress has not authorized the immigration services to

[control Chinese immigration] by denying asylum

applications in unreasoned decisions.

Iao v. Gonzales, 400 F.3d 530, 533 (7th Cir. 2005). Many of the

groups recognized by the Board and courts are indeed quite

broad. These include: women in tribes that practice female

genital mutilation; Matter of Kasinga, 21 I. & N. Dec. at 365,

Agbor, 487 F.3d at 502; persons who are opposed to involun-

tary sterilization, 8 U.S.C. § 1101(a)(42)(B); Chen v. Holder,

604 F.3d 324, 332 (7th Cir. 2010); members of the Darood clan

and Marehan subclan in Somalia, In re H–, 21 I. & N. Dec. at

340, 343 (1% of the population of Somalia are members of the

Marehan subclan); homosexuals in Cuba, In re Toboso–

Alfonso, 20 I. & N. Dec. 819, 822-23 (BIA 1990); Filipinos of

Chinese ancestry living in the Philippines, Matter of V–T–S–,

No. 11-1989 19

21 I. & N. Dec. 792, 798 (BIA 1997) (approximately 1.5% of

the Philippines population has an identifiable Chinese back-

ground); Singh v. INS, 94 F.3d 1353, 1359 (9th Cir. 1996) (re-

jecting the notion that an applicant is ineligible for asylum

merely because all members of a persecuted group might be

eligible for asylum). The ethnic Tutsis of Rawanda num-

bered close to 700,000 before the genocide of 1994, and yet a

Tutsi singled out for murder who managed to escape to the

United States could surely qualify for asylum in this coun-

try. And undoubtedly any of the six million Jews ultimately

killed in concentration camps in Nazi-controlled Europe

could have made valid claims for asylum, if only they had

had that opportunity. 7 Many of our asylum laws originated

out of a need to address just such refugees from World War

II. It would be antithetical to asylum law to deny refuge to a

group of persecuted individuals who have valid claims

merely because too many have valid claims. See Iao, 400 F.3d

at 533; Singh, 94 F.3d at 1359. For this reason we also reject

the Sixth Circuit’s reasoning that the group of young-

looking, attractive Albanian women who are forced into

prostitution is not a cognizable social group because it is too

broad and sweeping of a classification. Rreshpja, 420 F.3d at

555.

7Although some Jews might have had the opportunity to seek asylum in

the United States, having escaped Germany on the M.S. St. Louis, they

were ultimately denied entry into the United States. The ship was forced

to return to Europe where 254 of the 937 refugees seeking asylum from

the Nazis were eventually killed in concentration camps. S.Res. 111,

111th Cong. (2009).

20 No. 11-1989

The safeguard against potentially innumerable asylum

claims is found in the stringent statutory requirements for all

asylum seekers which require that the applicant prove (1)

that she has suffered or has a well-founded fear of suffering

harm that rises to the level of persecution, (2) on account of

race, religion, nationality, membership in a particular social

group, or political opinion, and (3) is unable or unwilling to

return to her country because of the persecution or a well-

founded fear of persecution. 8 U.S.C. §1101(a)(42)(A),

1158(b)(1); Bejko v. Gonzales, 468 F.3d 482, 484 (7th Cir. 2006).

Judge Easterbrook’s dissent argues that “[w]hatever risk

Cece faces comes from criminals, not from the government.”

Post at 29. Of course “persecution does not include the

actions of private citizens unless the government is complicit

in those acts or is unable or unwilling to take steps to

prevent them.” Bitsin v. Holder, No. 12-2717, 2013 WL

2402855, *6 (7th Cir. May 31, 2013). In his initial

determination, the immigration judge found that Albania

was unable or unwilling to protect Cece from third party

traffickers, (R. 129, 131). In its decision overturning the

immigration judge, the Board said only that “there is no

indication that the government of Albania was involved in

the incident described by the applicant, nor that such

government is interested in harming the applicant. (R. 330).

The first proposition is simply wrong. Cece complained to

the police, but they refused to take any action. More

importantly, the standard is not just whether the

government of Albania was involved in the incident or

interested in harming Cece, but also whether it was unable

or unwilling to take steps to prevent the harm. Bitsin v.

No. 11-1989 21

Holder, 2013 WL 2402855 at *6. On remand, the immigration

judge acknowledged his obligation to follow the Board’s

determination regarding the proposed social group, but still

noted his finding that Cece could not depend upon the

police to protect her from traffickers. (R. 115-116). The Board

had nothing further to say about the matter. When the Board

agrees with the decision of the immigration judge, adopts

that decision and supplements that decision with its own

reasoning, as it did here, we review the immigration judge’s

decision as supplemented by the Board. Mustafa v. Holder,

707 F.3d 743, 750 (7th Cir. 2013) (citing Jonaitiene v. Holder,

660 F.3d 267, 270 (7th Cir. 2011)); Barma, 640 F.3d at 751. In

this case the Board based its denial of asylum on the fact that

first, Cece did not belong to a cognizable social group and

second, she would have been able to relocate safely within

Albania. The Board therefore had no need to address the

immigration judge’s factual finding that the police were

unable or unwilling to prevent the harm. Judge Easterbrook

opines that the Board must be at liberty to consider this

subject on remand. Whether or not the Board could consider

(or reconsider) this matter on remand, however, this court is

certainly entitled to (and indeed obligated to) review the

decision of the immigration judge as supplemented by the

BIA’s reasoning. Jonaitiene, 660 F.3d at 270. We review

agency findings of fact for “substantial evidence” and may

reverse the Immigration Judge's determinations “only if we

determine that the evidence compels a different result.” FH–T

v. Holder, No. 12-2471, 2013 WL 3800252, * 3 (7th Cir. July 23,

2013). Judge Easterbrook’s conclusion that Cece faced no

“mistreatment at public hands” is contrary to the only

factual finding on the matter. In any event, the entirety of the

22 No. 11-1989

discussion is unnecessary, as the Board based its decision on

the fact that Cece’s proposed social group was not

cognizable under the act—a holding with which we

disagree.

Circling back to our level of deference, now with a clear

understanding of the Board’s definition of social group de-

rived from Acosta, we must uphold the Board’s determina-

tion if it is “a reasonable construction of the statute, whether

or not it is the only possible interpretation or even the one a

court might think best.” Holder v. Martinez-Gutierrez, 132 S.

Ct. 2011, 2017 (2012) (citing Chevron U.S.A. Inc. v. Natural Re-

sources Def. Council, Inc., 467 U.S. 837, 843-844, and n.

11(1984)); INS v. Orlando Ventura, 537 U.S. 12, 16 (2002). The

problem here is that the Board’s decision is inconsistent with

its decisions in other similar cases. Cece’s social group is not

different than many of the groups approved by the BIA. For

example, she is not unlike the women in Kasinga, supra, 21 I.

& N. Dec. at 365-66 who were young women in a tribe that

practices female genital mutilation. In both cases the broad

immutable group that triggered social group status—young

women in particular tribes in Kasinga’s case, and young

women in Albania, in Cece’s case—could be narrowed by

other changeable but fundamental characteristics—living

alone in Cece’s case, and having not yet been subjected to

female genital mutilation in Kasinga’s case. Nor is Cece un-

like the Jordanian women who face “honor killings” because

of the social and religious norms in Jordan, Sarhan, 658 F.3d

at 654, or Christian women in Iran who do not wish to ad-

here to the Islamic female dress code. Yadegar-Sargis, 297

F.3d at 603.

No. 11-1989 23

In other words the social group is defined by gender plus

one or more narrowing characteristics. Although some

courts have toyed with the idea that gender alone can form

the basis of a social group, we need not decide that today.

See, e.g., Perdomo v. Holder, 611 F.3d 662, 667 (9th Cir. 2010)

(“Thus, we clearly acknowledged that women in a particular

country, regardless of ethnicity or clan membership, could

form a particular social group”); Hassan v. Gonzales, 484 F.3d

513, 518 (8th Cir. 2007) (“Somali females” constitute a partic-

ular social group); Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.

1993) (Iranian women meet the social group definition). See

also In re A–T–, 24 I. & N. Dec. 296, 304 (“gender is an immu-

table trait that is generally recognizable”), vacated and re-

manded, Matter of A–T–, 24 I. & N. Dec. 617, Interim Decision

3622, 2008 WL 4306933 (BIA Sep 22, 2008). Although non-

binding, the agency’s own “Gender Guidelines,” which pro-

vide Asylum Officers with guidance on adjudicating wom-

en's claims of asylum, provide a helpful understanding by

noting that gender is an immutable trait that can qualify un-

der the rubric of “particular social group.” United States Bu-

reau of Citizenship and Immigration Services, Considerations

for Asylum Officers Adjudicating Asylum Claims from Women

("INS Gender Guidelines"), 26 May 1995, available at:

http://www.unhcr.org/refworld/docid/3ae6b31e7.html [ac-

cessed July 25, 2013]. And the Office of the United Nations

High Commissioner for Refugees (again, not authoritative,

but informative) has made clear that “women may constitute

a particular social group under certain circumstances based

on the common characteristic of sex, whether or not they as-

sociate with one another based on that shared characteris-

tic.” UNHCR, Guidelines on International Protection: Member-

24 No. 11-1989

ship of a Particular Social Group, at 4 (HCR/GIP/02/02, 7 May

2002).

Because Cece’s group cannot be distinguished from oth-

ers with immutable and fundamental traits, the Board’s de-

cision is inconsistent with its own precedent.

When an administrative agency’s decisions are incon-

sistent, a court cannot pick one of the inconsistent

lines and defer to that one, unless only one is within

the scope of the agency’s discretion to interpret the

statutes it enforces or to make policy as Congress’s

delegate … . Such picking and choosing would con-

done arbitrariness and usurp the agency's responsibil-

ities.

Gatimi, 578 F.3d at 616 (internal citations omitted). In this

case, the Board has offered no explanation for why Cece’s

group is not cognizable under the test the Board has adopted

in Acosta. Sepulveda v. Gonzales, 464 F.3d 770, 772 (7th Cir.

2006). Or, more specifically, why being a young woman liv-

ing alone in Albania does not qualify as a social group when

the attributes are immutable or fundamental. The issue of

whether a particular social group is cognizable is a question

of law on which the Board erred. Escobar, 657 F.3d at 542. See

also, Ayala, 640 F.3d at 1096-97; Castaneda-Castillo, 638 F.3d at

363; Crespin-Valladares, 632 F.3d at 124; Gomez-Zuluaga, 527

F.3d at 339; Malonga, 546 F.3d at 553; Castillo-Arias, 446 F.3d

at 1195; Cruz-Funez, 406 F.3d at 1191. The Board’s decision

cannot stand and must be reconsidered on remand: Cece has

established that she belongs to a cognizable social group.

No. 11-1989 25

We are well aware of the limits of our review set forth in

Gonzales v. Thomas, 547 U.S. 183, 185-86 (2006) (per curium)

and INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002) (per cu-

rium). An appellate court errs by deciding in the first in-

stance, without giving the Board the first opportunity on

remand, whether a proposed social group is cognizable

within the meaning of the Act. Id. The judge and Board had

before them all of the facts pertaining to Cece’s proposed so-

cial group and yet determined that her social group was not

cognizable under the Act. This was error in light of the

Board’s own precedent in Acosta.

III.

The Board also found that there was insufficient evidence

in the record that internal relocation was not a feasible

means of avoiding the persecution of which Cece complains.

The Board, however, ignored the fact, emphasized through-

out the hearing and appeals, that Cece had lived safely in

Tirana only while living with her sister in her sister’s univer-

sity dormitory. Once her sister left Tirana and Cece had to

move from the dormitory, she was again at risk. (R. 168-172).

The Albanian expert testified at length that Albania was a

small country and that it would be difficult to hide any-

where. (R. 231). Even in the big city of Tirana, people tended

to live in family or clan groupings, and a young single wom-

an living alone would stick out as an anomaly. Id. The expert

also surmised that Cece faced an increased risk of being tar-

geted simply because of her previous status as a target, i.e.

she was already known to traffickers. (R. 229, 230, 257). The

immigration judge acknowledged the expert’s testimony on

these facts and was troubled by the Board’s conclusion that

26 No. 11-1989

Cece could move safely within Albania notwithstanding the

facts that “she is a young woman from a minority religion

who has lived by herself most of the time in Albania, and

thus is vulnerable, particularly vulnerable to traffickers for

those reasons.” (R. 120). The immigration judge then con-

cluded, “I do not agree with the Board’s conclusion, but I am

required to follow it.” Id. The Board, in its order, had but this

to say about her ability to relocate: “we once again find that

there is insufficient evidence in the record that internal relo-

cation is not reasonable.” 8 (R. 9). The Board’s decision lacked

any discussion or analysis of the issue. Thus the only evi-

dence-based analysis we have is that of the immigration

judge whose conclusion is that Cece could not safely relocate

within Tirana. Nevertheless the Board held that she could.

The Board’s conclusion is not supported by substantial evi-

dence. Vahora v. Holder, 626 F.3d 907, 912-913 (7th Cir. 2010)

(“Under the substantial evidence standard, the agency’s de-

termination will stand if it is supported by reasonable, sub-

stantial, and probative evidence on the record considered as

a whole.”). Indeed it is not supported by evidence of any

kind whatsoever. The only evidence in the record is that

Cece felt safe in Tirana only so long as she was not living

alone—a status quo that ended as soon as her last family

member left the country. An asylum applicant is entitled to a

reasoned analysis of her case supported by relevant, proba-

8 In its first order, before remand, the Board simply stated that “the

applicant appears to have successfully relocated within Albania. There is

insufficient evidence in the record that she has a well-founded fear of

persecution in Tirane or in another city within Albania, outside of Korçë

… there is no indication that Reqi (or any other trafficker) tried or was

motivated to pursue the applicant outside of Korçë.” (R. 331).

No. 11-1989 27

tive evidence. Mustafa, 707 F.3d at 754. A failure to provide

such a reasoned analysis requires remand. Kadia v. Holder,

557 F.3d 464, 467 (7th Cir. 2009).

We therefore grant the petition for review and remand to

the agency for further proceedings consistent with this opin-

ion.

28 No. 11-1989

EASTERBROOK, Chief Judge, dissenting. Cece defines, as the

“social group” at risk of persecution, “young Albanian

women in danger of being trafficked as prostitutes.” At ear-

lier stages of these proceedings she made different pro-

posals, but this is the definition in her appellate briefs. My

colleagues hold that the Board of Immigration Appeals erred

by not treating “young Albanian women who live alone” as

her social group. Put to one side the fact that Cece does not

ask us to define a social group that way. Whether the group

is “young Albanian women in danger of being trafficked as

prostitutes” or “young Albanian women who live alone”,

Cece isn’t in it. Her own expert defined “young” as 16 to 26

or 27. Cece is 34. The basis for her claim of asylum is future

risk; she does not argue that she suffered persecution before

leaving Albania, so the fact that she is not a member of her

own proposed group should be dispositive. (Perhaps Cece

looks younger than her age and would be targeted by mis-

take, but she does not argue this.)

Then there is the question “how much risk is too much?”

Cece’s expert did not attempt to quantify the risk that young

Albanian women living alone face, nor does the majority.

That many of Western Europe’s prostitutes are Albanians

does not tell us how many are in the sex trade involuntarily.

The State Department tries to estimate risk. Its Human Traf-

ficking Report 2012 finds that 84 complaints about trafficking

were made to Albanian public agencies during 2011. Report

at 64. Nongovernmental groups (NGOs) reported more: they

counted 132 Albanian trafficking victims in 2011. Ibid. The

number of young women living alone in Albania is substan-

tially higher. The State Department ranks nations into four

tiers (1, 2, 2 Watch List, and 3), with Tier 1 representing the

best performance. Id. at 51. Albania is in Tier 2, as are Greece,

No. 11-1989 29

Hong Kong, Japan, Switzerland, and more than 60 other na-

tions. Id. at 52. Fifty-one nations are in tiers 2WL or 3, below

Albania. Ibid. Deplorable as human trafficking is, any given

woman’s danger in Albania may be modest.

Whatever risk Cece faces comes from criminals, not from

the government, yet “persecution” means mistreatment at

public hands. See Hor v. Gonzales, 421 F.3d 497 (7th Cir. 2005);

Bitsin v. Holder, 719 F.3d 619, 628–31 (7th Cir. 2013). Crime

may be rampant in Albania, but it is common in the United

States too. People are forced into prostitution in Chicago.

See, e.g., United States v. Cephus, 684 F.3d 703 (7th Cir. 2012).

Must Canada grant asylum to young women who fear pros-

titution in the United States, or who dread the risk of vio-

lence in or near public-housing projects? If there were reason

to think the Albanian government in cahoots with the traf-

fickers, Cece would have a better case; but when the record

shows no more than ineffective law enforcement, there’s no

basis to infer persecution. Meghani v. INS, 236 F.3d 843, 847

(7th Cir. 2001).

I can see why we ought not make anything turn today on

the facts that Cece is 34 years old, that the number of traf-

ficking victims in Albania may be under 150 annually, and

that any risk comes from private criminals rather than public

policy: the BIA did not do so, and the Chenery doctrine (SEC

v. Chenery Corp., 318 U.S. 80, 87 (1943)) limits reviewing

courts to the agency’s grounds of decision. Perhaps the

Board will consider these issues on remand.

When tackling this subject, the Board may wish to con-

sider whether a government’s inability to protect people

from criminals is a form of persecution. Equating inability to

control crime with unwillingness to do so (a form of perse-

30 No. 11-1989

cution because it reflects public policy disfavoring a person

or group) first appeared in a decision of the Board in 1964.

See Matter of Eusaph, 10 I&N Dec. 453, 454 (1964). The formu-

la has been repeated many times, e.g., Matter of Pierre, 15

I&N Dec. 461, 462 (1975); Matter of Kasinga, 21 I&N Dec. 357,

365 (1996), without explaining why “unable” has the same

effect as “unwilling”—or quantifying what “unable” means.

The Board appears to be happy with this formula, but its

utility is limited when we do not know how much shortfall

in law enforcement counts as “inability” to protect citizens.

A remand is unnecessary even on the majority’s views

about the social-group question, however. The Board found

that Cece could live safely in Tirana, though perhaps not in

her parents’ city. Part III of the majority’s opinion declares

that this decision is not supported by substantial evidence.

As Judge Manion shows, however, the Board had, and gave,

the best of all possible reasons: that Cece had moved to Tira-

na and was not followed or accosted there. Indeed, Cece does not

even contend that the person who pursued her in Korçë

learned that she was in Tirana or attempted to locate her (or

anyone else) outside of Korçë. Cece’s expert witness testified

that Tirana is a collection of enclaves and that people find

things out; this might have led the Board to conclude that

Cece was at risk there after her sister left. But the inference is

permissive, not compulsory. An agency is entitled to give

more weight to what actually happened than to what could

have happened. Cece’s untroubled time in Tirana is “sub-

stantial evidence” for the Board’s conclusion. See INS v. Eli-

as-Zacarias, 502 U.S. 478, 481 (1992) (if the record allows rea-

sonable disagreement, the Board’s decision must stand).

No. 11-1989 31

Cece’s brief in conjunction with the rehearing en banc

makes a different argument: that it is not reasonable to re-

quire her to relocate to Tirana, even if she would be safe. See

8 C.F.R. §1208.13(b)(2)(ii). According to Cece, the Board

should have deemed relocation unreasonable because she

had no relatives in Tirana after her sister left. Yet every year

millions of persons move to cities where they are strangers;

they make new friends (or acquire new relatives) afterward.

A person who left Tirana for Rome, and then left Rome for

Chicago, is hard pressed to contend that it would not be

“reasonable” to think that she could have lived closer to her

relatives, even if none was in the neighborhood. (Korçë and

Tirana are 110 miles apart.)

Although I think the majority mistaken in its treatment of

Cece’s specific claim, I am more concerned by its treatment

of the Board’s doctrine. My colleagues recognize that the

statute does not define the term “social group” and that

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984), therefore applies to the Board’s gap-

filling work. See Holder v. Martinez Gutierrez, 132 S. Ct. 2011,

2017 (2012); INS v. Aguirre-Aguirre, 526 U.S. 415, 424–26

(1999). Yet the dispositions of this and other cases demon-

strate that the Seventh Circuit has rejected the Board’s ap-

proach and established its own—one under which everyone

belongs to a “social group” and the question whether that

membership caused the persecution drops out of considera-

tion. (It drops out because, when the asserted criteria of per-

secution are used to define the “social group,” the process is

circular.)

The Immigration and Nationality Act permits federal of-

ficials to grant asylum to aliens who seek refuge here “be-

32 No. 11-1989

cause of persecution or a well-founded fear of persecution

on account of race, religion, nationality, membership in a

particular social group, or political opinion”. 8 U.S.C.

§1101(a)(42)(A). Cece does not contend that her race, nation-

ality, or politics mattered to the traffickers (or to any Albani-

an public official), and although she initially argued that she

was at risk because of her religion she has abandoned that

contention. This leaves “social group.”

What the Seventh Circuit has done in this and other re-

cent cases is read “because of … membership in a particular

social group” in a way that includes everyone threatened by

criminals, rebels, or anyone else a nation’s government does

not control. This makes eligible for asylum everyone who

faces a substantial risk of harm in his native land, no matter

the reason.

The Board of Immigration Appeals has established, in

decisions the court concedes we must respect, several re-

quirements of social-group status. One is that a “social

group” entails a characteristic that is either immutable or so

important that no one should be required to change it. See

Matter of Acosta, 19 I&N Dec. 211, 233–34 (1985); Matter of

Kasinga, 21 I&N Dec. 357, 365–66 (1996). Age changes; that’s

why decisions such as Vance v. Bradley, 440 U.S. 93 (1979), re-

ject arguments that age must be treated like race or sex for

legal purposes. Whether a person lives alone also is subject

to change. People may marry, live with relatives, or join forc-

es with similarly situated persons. Many single women live

with other single women. A group such as “young Albanian

women who live alone” therefore flunks the Board’s test on

multiple grounds, even if we treat marital status as the sort

of thing that no one should be required to change.

No. 11-1989 33

Another series of cases in this circuit expands the scope

of “social group” by a different route. It asks whether the al-

ien used to be at risk. For example, Escobar v. Holder, 657 F.3d

537 (7th Cir. 2011), holds that an alien is eligible for asylum

as a member of a “social group” that comprises truckers who

ever opposed a band of Colombian rebels. Events of a decade

ago cannot be changed; the past is “immutable”; thus the

Board’s primary defense against limitless expansion of “so-

cial group” vanishes. Everyone who seeks asylum in the

United States can point to some event in the past, and as the

past can’t be changed this event becomes the basis for a

claim based on an “immutable characteristic.” See, e.g.,

Sepulveda v. Gonzales, 464 F.3d 770 (7th Cir. 2006) (former

employees of a public agency are a social group); Benitez

Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009) (former criminal-

gang members are a social group).

Some people might be inclined to ask: Why not just treat

everyone as belonging to a social group and skip to the ques-

tion whether persecution occurred? The answer is that the

statute makes membership in a group (or classification by

race, religion, or politics) essential to analysis of the sup-

posed persecution. The agency must decide whether a per-

son has been persecuted “on account of” membership in the

group (or because of politics, race, etc.). You can’t sensibly

ask about cause without deciding what differentiates the

applicant from other persons. To know whether X has been

persecuted on account of Y, it is essential to know what Y is.

The Board has tried to define groups by fixed attributes

(such as “member of the Yoruba tribe” or “born in Korçë”). It

is only after defining a group that it becomes possible to ask

the statutory question: whether membership in that group is

the reason for the adverse treatment.

34 No. 11-1989

Cece is a member of one social group that the Board

probably would acknowledge: Albanian women. But she

does not contend that she fears persecution because of those

characteristics. She does not say that the government of Al-

bania persecutes Albanian women. Indeed, she does not con-

tend that Albania discriminates in any way by national

origin or sex. She does not maintain that police and courts

protect male victims of crime but not female victims; instead

she tells us that Albania’s system of law enforcement is

weak. Failure to achieve optimal deterrence is unfortunate

but not “persecution” by any useful understanding. That’s

why Cece proposed a group such as “young Albanian wom-

en in danger of being trafficked as prostitutes.” The qualifi-

cations that distinguish this proposal from “all Albanian

women”—age, living alone, and the criminal enterprise of

sex traffickers—all fail the Board’s filters.

The BIA has held that a “social group” cannot be identi-

fied by asking who was mistreated. Matter of C– A–, 23 I&N

Dec. 951, 956 (2006). For if the persecutors’ acts define social

groups, then again §1101(a)(42)(A) effectively offers asylum

to all mistreated persons, whether or not race, religion, poli-

tics, or some extrinsically defined characteristics (such as

tribal membership) account for the persecution. And again

this court professes to accept the Board’s position—though

with the proviso that it applies only when the persecutors’

acts are the entire definition (opinion at 12–13, which uses

“only” or “solely” or “merely” four times, putting three of

the four in italics for emphasis). Thus although the Board

concluded that “young Albanian women in danger of being

trafficked as prostitutes” flunks, the majority rules otherwise

because “danger of being trafficked as prostitutes” is not the

sole component of the definition. That is not what Chevron

No. 11-1989 35

requires. We have not applied the Board’s definition. We

have rewritten it.

Under this court’s approach, any person mistreated in his

native country can specify a “social group” and then show in

circular fashion that the mistreatment occurred because of

membership in that ad hoc group. Anyone threatened or in-

jured in the past has an “immutable” characteristic (the past

can’t be changed), and the selection criteria used by the per-

secutor (here, people who want to force others into prostitu-

tion) become the defining characteristics of the “social

group”. The structure of §1101(a)(42)(A) unravels.

The majority accuses the Board of inconsistency (opinion

at 22–25), but the BIA has been inconsistent by the court’s

standard, not its own. For example, the “social group” in

Kasinga, which the court calls “not unlike” Cece’s (opinion at

22), was a tribe. The Board sees a big difference between

tribal groups (membership is immutable and extrinsic to the

choices made by criminals) and “young Albanian women in

danger of being trafficked as prostitutes” (defined in part by

changeable characteristics and in part by who criminals tar-

get). The majority says that it does not see a difference, so

the Board must be inconsistent. That’s a statement about ju-

dicial rejection of the Board’s doctrine, not about how the

Board administers its own approach.

I grant that some of the inconsistency is real—it has been

forced on the Board by judicial refusal to accept its approach

to defining “social group.” Our court has discarded not only

the immutability and don’t-use-the-wrongdoers’-perspective

rules but also another component of the Board’s definition:

social visibility. See, e.g., Gatimi v. Holder, 578 F.3d 611, 614–

15 (7th Cir. 2009); majority opinion at 5 n.1. Other circuits

36 No. 11-1989

have allowed the Board to use the “visibility” criterion but

have revised or rejected different parts of the Board’s defini-

tion of “social group.” See, e.g., Ucelo-Gomez v. Mukasey, 509

F.3d 70 (2d Cir. 2007) (approving the “visibility” standard

and adding that changeable attributes such as wealth do not

identify a social group); Castillo-Arias v. Attorney General, 446

F.3d 1190 (11th Cir. 2006) (denying a petition to set aside the

decision in C– A–). The Board tries to apply circuit law—

and, when it does so, is accused of abandoning its own defi-

nition or applying it inconsistently.

The majority says that it accepts the Board’s approach.

Yet in case after case, of which today’s is just a sample, we set

aside the Board’s decisions. I have already mentioned Esco-

bar, Gatimi, Sepulveda, and Benitez Ramos. Here are a few

more: Sarhan v. Holder, 658 F.3d 649 (7th Cir. 2011); Torres v.

Mukasey, 551 F.3d 616 (7th Cir. 2008); Agbor v. Gonzales, 487

F.3d 499 (7th Cir. 2007); Tapiero de Orejuela v. Gonzales, 423

F.3d 666 (7th Cir. 2005); Yadegar-Sargis v. INS, 297 F.3d 596

(7th Cir. 2002). The meaning of a legal standard lies in its

application to concrete facts. That the BIA and this court

regularly reach different decisions on identical facts shows

that they are applying different legal standards.

This is a particularly poor case for our court to nix the

Board’s approach, because at least two other circuits have

held that the agency properly denied asylum claims identi-

cal to Cece’s. The majority concedes (opinion at 14) that its

decision conflicts with Rreshpja v. Gonzales, 420 F.3d 551, 555–

56 (6th Cir. 2005). It also conflicts with Gjura v. Holder, 502

Fed. App’x 91 (2d Cir. 2012). The Second Circuit’s initial

opinion, 695 F.3d 223, held that the Board acted within its

discretion in concluding that “young, unmarried Albanian

No. 11-1989 37

women” is not a social group. The court then issued a re-

placement opinion denying the petition on the ground that

sex traffickers are private actors whose criminal conduct

does not demonstrate persecution by public officials. Cece

would have lost in the Second Circuit for either of these rea-

sons. As far as I can see this circuit stands alone in disman-

tling the BIA’s approach so thoroughly that the agency must

recognize social groups such as “young Albanian women in

danger of being trafficked as prostitutes” or “young Albani-

an women who live alone” and treat members of that group

as victims of persecution.

The majority expresses sympathy for Cece and other ap-

plicants for asylum. Yet the choice whether to be strict or le-

nient belongs to the agency, not to the court. See, e.g., INS v.

Phinpathya, 464 U.S. 183 (1984); INS v. Jong Ha Wang, 450 U.S.

139 (1981). The Board has chosen to make “social group” do

real work. This court effectively reads it out of the statute

and directs the agency to ask only whether an alien faces a

significant risk for any reason. This intrudes on the sort of

choice Congress has committed to the Executive Branch. The

Attorney General could direct the Board to ditch Acosta and

C– A–, but as long as the political branches of government

stand by them, Chevron requires the judiciary to implement

their choices.

One final observation. Cece entered the United States by

fraud, pretending to be from a nation whose citizens do not

need visas to visit. See Bayo v. Napolitano, 593 F.3d 495 (7th

Cir. 2010) (en banc). She started that journey from Rome and

has never contended that she feared sex trafficking in Italy.

Her fraud thus is not mitigated by a need to escape from

danger. The Board has concluded that entering the United

38 No. 11-1989

States by fraud, when danger is not imminent, is a strongly

adverse factor in the discretionary decision whether to grant

asylum. See Alsagladi v. Gonzales, 450 F.3d 700 (7th Cir. 2006);

Matter of Pula, 19 I&N Dec. 467 (1987). Although the court

decides today that Cece is eligible for asylum, it does not hold

that she is entitled to it; that question, at least, remains open

to decision on remand.

No. 11-1989 39

MANION, Circuit Judge, with whom EASTERBROOK, Chief

Judge, joins, dissenting.

I.

After illegally entering the United States using a false

Italian passport, Johana Cece sought asylum. To be eligible for

asylum, applicants must show that they are “unable or

unwilling to return” to the country of their nationality

“because of persecution or a well-founded fear of persecution

on account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C.

§ 1101(a)(42)(A).

In seeking asylum, Cece claimed she both had suffered past

persecution and had a well-founded fear of future persecution.

The Board, however, concluded that Cece had not established

past persecution, R. 330, and Cece does not challenge that

determination on appeal. The Board also concluded that Cece

was not entitled to asylum on the basis of a well-founded fear

of future persecution because Cece had not “established that

she fears persecution based upon one of the protected grounds

under the Act.” R. 330. The Board further found that “there is

[in]sufficient evidence in the record … that internal relocation

is not reasonable.” R. 331.

The en banc court holds that “Cece has established that she

belongs to a cognizable social group,” Opinion at 24, namely

“young Albanian women who live alone.” Opinion at 16. And

that the immigration judge and Board erred in determining

“that her social group was not cognizable under the Act.”

Opinion at 25. The en banc court further holds that the Board’s

conclusion that Cece could safely relocate in Albania was not

40 No. 11-1989

supported by substantial evidence, and grants the petition for

review and remands to the agency for further proceedings.

Opinion at 26–27.

In holding that “Cece has established that she belongs to a

cognizable social group,” Opinion at 24, the en banc court

discusses at length the complexity of defining a “social group.”

See Opinion at 6–25. As discussed below, I have several

concerns with the court’s analysis. However, even if the en banc

court is correct that “young Albanian women who live alone,”

is a “social group” within the meaning of the INA, her petition

for review should nonetheless be denied because substantial

evidence supports the Board’s finding that Cece did not

present sufficient evidence that internal relocation is not

reasonable. That finding alone dooms Cece’s asylum petition

and accordingly we should deny Cece’s petition for review.

I DISSENT.

II.

A. Social Group

As the en banc court explains, “Congress did not directly

address what it meant to be a protected ‘social group’ in the

Immigration and Nationality Act, so we look to see how the

agency has interpreted the statue.” Opinion at 7–8. The court

then notes that the Board defined “social group” in Matter of

Acosta, 19 I. & N. Dec. 211, 233-34 (1985), to be limited “to

groups whose membership is defined by a characteristic that

is either immutable or is so fundamental to individual identity

or conscience that a person ought not be required to change.”

Opinion at 8. We have deferred to that definition. Opinion at

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

No. 11-1989 41

My first concern with the en banc court’s holding is that the

court’s formulation of Cece’s social group as “young Albanian

women who live alone” does not satisfy the Board’s definition

of “immutable” or “fundamental” characteristics. There is

nothing immutable about “living alone.” Nor is “living alone,”

unlike an individual’s choice to be single1 or married, “so

fundamental to individual identity or conscience that a person

ought not be required to change.” And there are many varia-

tions in location and type of dwelling where a woman can

choose to live alone.

I also have concerns with the en banc court defining a social

group with the subjective adjective of “young.” A shared

characteristic of a “social group,” “must provide a clear

demarcation, ‘permit[ting] an accurate separation of members’

from non-members,’ … Consequently, loose descriptive

phrases that are open-ended and that invite subjective interpre-

tation are not sufficiently particular to describe a protected

social group.” Mayorga-Vidal v. Holder, 675 F.3d 9, 15 (1st Cir.

2012) (quoting Ahmed v. Holder, 611 F.3d 90, 94 (1st Cir. 2010).

The use of “young,” or for that matter, “middle-aged,” or

“old,” to define a characteristic of a social group is simply too

amorphous; there is no clear demarcation of who fits within

this social group. See Larios v. Holder, 608 F.3d 105, 109 (1st Cir.

2010) (“There are, for example, questions about who may be

considered ‘young,’ … [this is an] ambiguous group character-

istic[], largely subjective, that fail to establish a sufficient level

1

The en banc court rejected the formulation of young single Albania

women in favor of “young Albania women living alone.” Opinion at 11 n.3.

42 No. 11-1989

of particularity.” (quoting Mendez-Barrera v. Holder, 602 F.3d 21,

27 (1st Cir. 2010))). In fact, this case aptly illustrates the

problem with such a subjective term. Cece’s own expert

defined the targeted group as “young women” between the

“ages of about 16, 17 up until probably about 26 or so but

many minor females get caught up in this as well, children.”

R. 473. At the time of the hearing, Cece was just two months

shy of 27. R. 501. And so the agency’s attorney asked the expert

whether traffickers would be interested in Cece if she were 27

at the time she returned to Albania. R. 501. The expert re-

sponded that “it’s certainly possible.” R. 502. But “a social

group does not exist as such merely because words are

sufficiently malleable to allow a litigant to sketch its margins.”

Ahmed, 611 F.3d at 94. Now Cece is 34. R. 105. Can “16, 17 - up

until probably about 26,” stretch further to 34? Is 34 young? It

depends on whom you ask. And that is the problem with using

such subjective characteristics to define a “social group.”

Further, we should leave to the Board in the first instance

to determine whether “living alone” and “young” should

qualify as characteristics of a social group. As the en banc court

recognizes, “[a]n appellate court errs by deciding in the first

instance, without giving the Board the first opportunity on

remand, whether a proposed social group is cognizable within

the meaning of the Act.” Opinion at 25. The court, however,

reasons that the immigration judge and Board erred because

they “had before them all of the facts pertaining to Cece’s

proposed social group and yet determined that her social

group was not cognizable under the Act.” Opinion at 25.

While the immigration judge and Board may have had all

the facts pertaining to Cece’s proposed social group before it,

No. 11-1989 43

they did not view Cece’s proposed social group as “young

Albania woman living alone.” Rather, they viewed the social

group as “young women who are targeted for prostitution by

traffickers in Albania,” or “women in danger of being traf-

ficked as prostitutes.” Opinion at 10 (citing R. 128, 131).

Accordingly, the immigration judge and Board never consid-

ered the propriety of the social group defined by this court, i.e.,

“young Albania women living alone.” More specifically, the

immigration judge and Board never considered whether

“young” and “living alone,” could be characteristics of a social

group. And since we lack the authority to decide in the first

instance whether these characteristics may form a social group,

remand is the appropriate course of action. See Gonzales v.

Thomas, 547 U.S. 183, 186 (2006) (per curiam); INS v. Orlando

Ventura, 537 U.S. 12, 16-17 (2002) (per curiam).

There is one further complication. While Cece’s application

for asylum and her expert witness’s testimony focused on the

risk to young woman, human trafficking in Albania is not so

limited. Virtually everyone in Albania is a potential target for

human trafficking, as explained by the U.S. Embassy’s June

2012 Trafficking in Persons Report:

Albania is primarily a source country for

men, women, and children subjected to sex

trafficking and forced labor, including the

forced begging of children. Albanian women

and children continue to be subjected to sex

trafficking within the country. Albanian

victims are subjected to conditions of forced

labor and sex trafficking in Greece, Italy,

44 No. 11-1989

Macedonia, Kosovo, Serbia, and throughout

Western Europe. Authorities reported find-

ing trafficking victims from Greece and

Ukraine in Albania during the year. Children

were exploited for commercial sex, forced

begging, and forced criminality, such as

burglary and drug distribution; girls were

also subjected to prostitution or forced labor

after arranged marriage. There is evidence

that Albanian men are subjected to forced

labor in agriculture in Greece and other

neighboring countries. Re-trafficking of

Albanian victims continued to be a problem.2

Thus, girls, boys, women, and men living in Albania are

subjected to human trafficking. And others are targeted, as

Cece’s expert testified, “because of the fact that the trafficker

has something against their particular family.” R. 256. But the

“‘generalized lawlessness and violence between diverse

populations, of the sort which abounds in numerous countries

and inflicts misery upon millions of innocent people daily

around the world, generally is not sufficient to permit the

Attorney General to grant asylum.’” Konan v. Attorney Gen. of

U.S., 432 F.3d 497, 506 (3d Cir. 2005) (quoting Singh v. INS, 134

F.3d 963, 967 (9th Cir. 1998)); see also Ahmed v. Ashcroft, 348 F.3d

611, 619 (7th Cir. 2003). Can individuals subjected to such

“generalized lawlessness” nonetheless seek asylum by carving

2

http://tirana.usembassy.gov/press-releases2/2012-press-releases/

2012-trafficking-in-person-report--albania-june-20-2012/2012-trafficking-

in-person-report-albania-june-20-2012.html (last visited May 8, 2013).

No. 11-1989 45

out the immutable or fundamental characteristics that make

them the target for that violence? In other words, could

virtually every Albania obtain “social group” status by

identifying the characteristics that make them a target for

human trafficking, when as Cece’s own expert testified,

“[m]ost of the time, however, [human trafficking] has simply

to do with economics.” R. 256. What about: “Young strong

men,” targeted for human trafficking for forced labor; “handi-

capped boys,” targeted for human trafficking for forced

begging; “strong boys,” targeted for human trafficking for

burglary; “pretty girls,” targeted for sexual exploitation; and

“young woman living alone,” targeted for prostitution?

When the scourge of human trafficking targets such a broad

segment of the population, if not the entirety of the population,

it may well seem that what the victims have in common is not

an immutable or fundamental trait, but the unfortunate

circumstance of being targeted for any offensive purpose. That

may explain why the Board concluded that this was not a

“social group” within the meaning of the INA: because it is

“defined in large part by the harm inflicted on the group, and

does not exist independently of the traffickers.” R. 9.

Accord Rreshpja v. Gonzales, 420 F.3d 551, 555-56 (6th Cir 2005);

see also Escobar v. Holder, 657 F.3d 537, 545 (7th Cir. 2011)

(holding that a social group “cannot be defined solely by the

fact that its members suffer persecution from the government

or from a group that the government cannot or will not

control”). But rather than rejecting Cece’s proposed social

group because it is defined in large part by the harm inflicted

on the group, as the Board did, the better approach might be to

46 No. 11-1989

instead recognize that the problem is one of generalized

lawlessness.

However, in the final analysis, we need not reach these

difficult questions because, as discussed below, even if Cece

identified a social group within the meaning of the INA, and

presented a case of persecution—as opposed to generalized

lawlessness—Cece still cannot prevail on her request for

asylum because the Board found that “there is [in]sufficient

evidence in the record … that internal relocation is not reason-

able.” R. 331.

B. Internal Relocation

Because Cece’s application for asylum is based on a well-

founded fear of future persecution, in addition to proving that

she is unable or unwilling to return to Albania because of her

membership in a particular social group, she also bears the

added burden of proving she cannot reasonably relocate to

another part of her home country to avoid persecution.

Oryakhil v. Mukasey, 528 F.3d 993, 998 (7th Cir. 2008). “The

immigration regulations contemplate two separate inquiries to

determine whether an applicant could reasonably relocate

within his home country: (1) whether safe relocation is possi-

ble, and if so, (2) whether it would be reasonable to expect the

applicant to safely relocate.” Id.

In this case, the Board found that Cece failed to meet her

burden to show that internal relocation was not reasonable.

The en banc court holds that the Board’s conclusion is not

supported by substantial evidence because its decision lacked

any discussion or analysis of the issue, but merely stated “we

once again find that there is insufficient evidence in the record

No. 11-1989 47

that internal relocation is not reasonable.” Opinion at 26. But

in the Board’s first order before remand, it had already

explained its reasoning. There was no need for the Board to

restate the same analysis in the second appeal.

Turning then to the analysis of the issue of internal reloca-

tion contained in the Board’s first order. The Board explained

that, after [Cece] moved to Tirane, she felt safe and

protected and there is no indication that she had any

further problems. See Tr. at 59-60. There is no indica-

tion that anyone was looking for the applicant in

Tirane, nor pursuing her there. See Tr. at 35 (indicat-

ing that nothing happened to the applicant in

Tirane). Thus, the applicant appears to have success-

fully relocated within Albania. See 8 C.F.R. §

1208.13(b)(3)(1). There is insufficient indication in

the record that she has a well-founded fear of

persecution in Tirane or in another city within

Albania, outside of Korce. The applicant testified

that, “if [Reqi] wanted to come after me, he’d find

me anywhere.” See Tr. at 34. However, there is no

indication that Reqi (or any other trafficker) tried or

was motivated to pursue the applicant outside of

Korce. Thus, we find that the applicant failed to

meet her burden of proof in this case.

R. 330-331.

The Board then concluded: “In sum, we can not find that

there is sufficient evidence in the record … that internal

relocation is not reasonable.” R. 331.

48 No. 11-1989

The Board’s conclusion that Cece failed to show that safe

relocation was not reasonable was supported by substantial

evidence. Following her encounter with Reqi, Cece successfully

relocated to Tirane and while there obtained a job teaching

English. It is true that Cece was not living alone in Tirane—she

was living in a dormitory room she shared with three other

single women. But Cece was not homebound. She had to go to

and from work, and about her daily affairs. Not once during

the year Cece lived in Tirane was she approached by Reqi or

anyone else. While Cece claimed Reqi could find her anywhere,

the Board could reasonably conclude, as it did, that because no

one had approached Cece in Tirane, neither Reqi nor any other

trafficker was motivated to pursue Cece outside of Korce. And

given Cece’s testimony that she had no problems in Tirane, the

Board could reasonably conclude that “[t]here is insufficient

indication in the record that she has a well-founded fear of

persecution in Tirane or in another city within Albania, outside

of Korce.” True, if she were living alone in Tirane she would fit

one (of the many) profiles of those targeted by criminals. But

when the profile of those targeted by criminals is so broad, as

it is here, something more is necessary—some evidence that

the individual has a well-founded fear that she will be targeted.

In her case, Cece offered no evidence that she would actually

be targeted in Korce and thus that she had a well-founded fear

of persecution there. Without such evidence, the Board could

reasonably conclude that Cece did not meet her burden of

showing that internal relocation was not reasonable. Accord-

ingly, the Board did not err in denying Cece’s application for

asylum and the petition for review should be denied.

I DISSENT.