“Indeed, the word ‘central’ requires applicants to show, not just that a protected status played some part in motivating a 9 Case: 17-14133 Date Filed: 10/31/2018 Page: 10 of 10 persecutor but that it played more than a superficial or minor part.”
How later courts described this case
- “Indeed, the word ‘central’ requires applicants to show, not just that a protected status played some part in motivating a 9 Case: 17-14133 Date Filed: 10/31/2018 Page: 10 of 10 persecutor but that it played more than a superficial or minor part.”
- explaining the REAL ID Act continues to protect “aliens whose persecutors were motivated by more than one reason”
Written by the judges who cited it.
The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14133
Non-Argument Calendar
________________________
Agency No. A203-034-057
ANGELA ADRIANA RIVERA MELO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 31, 2018)
Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM:
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Angela Melo, a native and citizen of Colombia, petitions for review of the
Board of Immigration Appeals’ decision to deny her asylum and withholding of
removal claims. After careful review, we grant the petition and remand for further
proceedings.
I.
Melo grew up in Colombia as part of a politically active family. 1 Her father
was a member of the Colombian Liberal Party and served as a councilman at
varying points in time for two different municipalities, La Mesa and Anolaima. As
a child, Melo accompanied her father to party meetings. She eventually followed
in her father’s footsteps and joined the party as well.
Her family’s political connections helped secure Melo a job after she
finished law school. At her father’s request, the mayor of Anolaima, who was also
a member of the Colombian Liberal Party, appointed Melo to serve as the police
and traffic inspector for the municipality. Part of Melo’s responsibilities as
inspector included corpse retrieval. As a result, when the office received word in
February 2000 of a dead body found in one of Anolaima’s rural districts, Melo was
dispatched to the scene of the homicide. While there, she noticed a bracelet
bearing the word “FARC” resting on the ground by the body. FARC refers to the
Revolutionary Armed Forces of Colombia, an anti-government guerilla group.
1
The BIA presumed Melo was credible, as do we. The factual background therefore
draws heavily from her testimony before the immigration judge (“IJ”).
2
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Melo tagged the bracelet as evidence and attached it to a report, both of which she
then forwarded to the prosecutor’s office.
The next day, she returned to her office and found a folded piece of paper on
her desk. The letter was signed “FARC, Front 42” and warned her not to file
evidence of the bracelet if she wished to avoid certain consequences. Melo
ignored the threat because it “was against [her] principles and ethics,” and did not
bring the note to the attention of her superiors.
Two months passed without incident. In April, however, five young men
cornered Melo while she rode the bus home from work. The bus was mostly
empty, and the men surrounded Melo by sitting in front of her, next to her, and
directly behind her. They greeted her by name and asked her why she was being
so “disobedient.” They wondered why she didn’t pay attention to the orders “fired
at [her]” and expressed their hope that “nothing [would] happen” to her as a result
of her disobedience. Before they left the bus, they warned her one last time to do
as they said and advised her that if she wanted to stay in their good graces, she
could choose to work for them.
A month later, an unknown man approached Melo while she was conducting
a land survey and told her, “Doctor, we have not forgotten you.” Melo
immediately thought the man was a member of FARC. Alarmed by this series of
events, Melo informed the Army commander and a local government
3
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representative of the encounter. They assigned her a police officer as security
detail in response. However, the officer was only permitted to guard Melo during
her work hours.
Nonetheless, the threats continued to escalate. In late May of the same year,
Melo received an anonymous phone call at her work place warning her not to be
“too confident” and telling her she would “soon . . . have more news from us.”
Frightened, Melo asked for leave and fled to her friend’s place, which was located
far from Anolaima. While there, she received another phone call. This time, the
caller asked how her vacation was going and informed her that in a few days, some
“associates” would meet her at her office so she could issue them health insurance
cards normally reserved for low-income people. The anonymous caller
specifically told Melo, “I imagine that you have not forgotten us, because we have
not forgotten you, . . . [e]specially for what you did. . . . Don’t fail us. We’ll
know.”
Melo returned to work in August. She informed the mayor and police
commander of these threats, and was assigned a police officer for protection once
again. In September, a woman came into her office and requested a health
insurance card. Melo informed the woman she could not issue the card because it
was not part of her responsibilities as inspector. Upon hearing this, the woman
became enraged and exclaimed, “Did the bosses talk to you? What do you think,
4
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that we’re playing games? We’re the FARC, Front 42. And . . . you . . . have
become a military target.”
The mayor told Melo FARC was just trying to scare her and that they
wanted a favor from her. He also told her they could not afford to give her
additional officers for protection. In the meantime, Melo received numerous
pamphlets, notes, and phone calls castigating her for disobeying instructions and
ordering her to “work for us.” Approximately half a year later, a bomb exploded at
a conference Melo was scheduled to attend. Three people died and many were
wounded. Melo escaped unscathed because she had been delayed by bad weather
while traveling to the forum. Feeling “totally cornered and accosted [by FARC],”
Melo resigned from her position a few months later and moved to Bogotá to stay
with family.
While living in Bogotá, Melo received a sympathy card signed by Front 42.
The card explained that the bomb had been meant for her and that she would not
escape the next one. Convinced she had indeed become a military target, Melo
soon fled to the United States, arriving on September 27, 2001. She applied for
asylum on May 28, 2002, alleging persecution based on political opinion and her
status as a former government employee who refused to assist FARC. The
Immigration and Naturalization Service denied her application on September 26,
2002.
5
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On August 23, 2011, the Department of Homeland Security (“DHS”)
commenced removal proceedings against Melo and issued her a Notice to Appear.
DHS charged her with removability under 8 U.S.C. §§ 1227(a)(1)(B) and
1227(a)(1)(G)(ii) for overstaying her nonimmigrant visa and entering into a false
marriage for the purpose of procuring an immigrant visa. Through counsel, Melo
admitted both charges and renewed her 2002 application for asylum, withholding
of removal, and protection under the Convention Against Torture (“CAT”) as relief
from removal. Following a hearing, the IJ denied Melo’s applications and ordered
her removed to Colombia. The BIA affirmed the IJ’s order of removal solely on
the basis Melo had failed to establish she suffered persecution on account of a
protected ground for her asylum and withholding claims, otherwise known as the
“nexus” requirement. 2
Melo timely petitioned for review.
II.
Where, as here, the BIA does not expressly adopt the IJ’s opinion, our
review is limited only to the BIA’s decision, except to the extent the BIA “adopts
the IJ’s reasoning.” See Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
We review de novo the BIA’s conclusions of law, and any factual determinations
2
Melo did not appeal the IJ’s denial of her CAT claim to the BIA.
6
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under the substantial evidence test. See Zhou Hua Zhu v. Attorney Gen., 703 F.3d
1303, 1307 (11th Cir. 2013).
III.
A petitioner seeking asylum or withholding of removal “must establish a
nexus between a statutorily protected ground and the feared persecution.”
Mehmeti v. U.S. Attorney Gen., 572 F.3d 1196, 1200 (11th Cir. 2009) (per
curiam). Relying solely on this requirement, the BIA denied Melo’s asylum and
withholding applications for failing to “show[] that her political opinion was at
least one central reason for any past harm or feared future harm.” The BIA
assumed Melo’s proposed social group of former Colombian government
employees who refused to help FARC was legally cognizable. It nonetheless
affirmed the IJ’s decision because the IJ “did not clearly err in finding a failure to
show that FARC was not motivated simply by a desire not to be implicated in
criminal activity.”
Melo argues the BIA erred because she presented sufficient evidence to
demonstrate that she suffered past persecution based at least in part on either her
political opinion or her status as a former government employee who refused to
assist FARC. This claim consists of two separate arguments, one legal and the
other factual. The legal question is whether the BIA applied the correct standard
when assessing whether Melo sufficiently showed a nexus between the harm she
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suffered and a protected ground. Because we conclude the agency did not, we
need not address whether substantial evidence supports the BIA’s factual
determinations. 3
The crux of the BIA’s mistake is this: Melo’s asylum and withholding
claims are governed by the law as it existed prior to the enactment of the REAL ID
Act of 2005, Pub. L. No. 109-13, 119 Stat. 231. Because Melo filed her asylum
application in 2002, and the REAL ID Act did not take effect until May 11, 2005,
the agency was required to apply the pre-REAL ID Act standard for nexus—
which, as the government acknowledges in its brief, the agency did not. See Kaur
v. Gonzales, 418 F.3d 1061, 1064 n.1 (9th Cir. 2005).4
Before the enactment of the REAL ID Act, a petitioner like Melo could
demonstrate persecution on account of a protected ground as long as she could
3
We note, however, Melo provided ample evidence FARC targeted her for reasons that
went beyond a simple desire to avoid criminal prosecution. She testified FARC escalated its
threats and detonated a bomb meant for her after she declined to issue one of its members a
health insurance card. Similarly, she was not told she had become a military target of FARC’s
until after the health insurance incident. She received countless notes, pamphlets, and calls
ordering her to obey FARC’s directives and threatening harm if she did not. Indeed, the BIA
acknowledged in its decision that Melo’s testimony “further reflects that FARC continued to
harass her because of her refusal to work with them.” Because the BIA assumed Melo’s
proposed social group of former Colombian government employees who refused to assist FARC
was legally cognizable, it is difficult to see how substantial evidence could support the agency’s
determination that there was no nexus between the harm Melo suffered and Melo’s status as a
member of that group.
4
In a footnote, the government suggests Melo does not challenge the BIA’s use of an
erroneous legal standard. But, as the government acknowledges, Melo repeatedly cites the
correct standard and argues that her evidence can meet it. We take this as a challenge to the
BIA’s legal error. See Fed. Sav. & Loan Ins. Corp. v. Haralson, 813 F.2d 370, 373 n.3 (11th Cir.
1987).
8
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show that “the harm was motivated, at least in part, by an actual or implied
protected ground.” Matter of N-M-, 25 I. & N. Dec. 526, 530 (BIA 2011)
(quotation marks omitted); see also Tan v. U.S. Attorney Gen., 446 F.3d 1369,
1375 (11th Cir. 2006) (adopting same standard). Thus, a petitioner could qualify
for asylum as long as one of the motives for harm was protected, even if that
motive was not necessarily a driving force behind the persecutor’s actions. See In
re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 n.9 (BIA 2007) (clarifying the
difference); see also H.R. Rep. No. 109-72, at 162–63 (same).
The REAL-ID Act has since established a petitioner applying for asylum
after May 11, 2005 must show that his or her “race, religion, nationality,
membership in a particular social group, or political opinion was or will be at least
one central reason for persecuting the applicant.” In re J-B-N & S-M-, 24 I. & N.
Dec. at 212 (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). In other words, the protected
ground must be a primary or essential part of the persecutor’s motivation. A
number of courts have recognized that this language “places a more onerous
burden on the asylum applicant than the ‘at least in part’ standard . . . previously
applied.” Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009); see Shaikh
v. Holder, 702 F.3d 897, 901 (7th Cir. 2012) (“Indeed, the word ‘central’ requires
applicants to show, not just that a protected status played some part in motivating a
9
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persecutor but that it played more than a superficial or minor part.”); Shaikh v.
Holder, 588 F.3d 861, 864 (5th Cir. 2009).
Melo’s 2002 asylum application should have been analyzed under the “at
least in part” nexus standard. Instead, the BIA required Melo to show that her
protected grounds were “at least one central reason” for her persecution. 5 This was
legal error, and it necessitates reversal.
We therefore grant Melo’s petition for review and remand her asylum and
withholding claims to the BIA for reconsideration in light of this opinion.
PETITION GRANTED AND REMANDED.
5
It is not entirely clear which standard the BIA applied to Melo’s claimed protected
social group of former Colombian government employees who refused to assist FARC. Because
the BIA agreed with the IJ’s reasoning on this point, we may look to the IJ’s decision for
guidance. See Zhou Hua Zhu, 703 F.3d at 1307. Here, the IJ found that Melo failed to show the
requisite nexus between her proposed social group and the harm she suffered because “it is
unclear that FARC was targeting [her] solely because she is a member of that group.” This was
clearly erroneous. As this Court has explained, “[o]ne of th[e] five [protected] grounds need not
be the only motivation for the persecution.” Sanchez Jimenez v. U.S. Attorney Gen., 492 F.3d
1223, 1233 (11th Cir. 2007). This is true of both pre- and post-REAL ID asylum applications.
See In re J-B-N & S-M-, 24 I. & N. Dec. at 213 (explaining the REAL ID Act continues to
protect “aliens whose persecutors were motivated by more than one reason”).
10