L-E-A

Cite as 27 I&N Dec. 40 (BIA 2017) Interim Decision #3893

Matter of L-E-A-, Respondent

Decided May 24, 2017

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Whether a particular social group based on family membership is cognizable depends

on the nature and degree of the relationships involved and how those relationships are

regarded by the society in question.

(2) To establish eligibility for asylum on the basis of membership in a particular social

group composed of family members, an applicant must not only demonstrate that he or

she is a member of the family but also that the family relationship is at least one central

reason for the claimed harm.

FOR RESPONDENT: Mei F. Chen, Esquire, San Jose, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: George R. Martin, Associate

Legal Advisor

BEFORE: Board Panel: GREER, MALPHRUS, and LIEBOWITZ, Board Members.

GREER, Board Member:

In a decision dated September 10, 2013, an Immigration Judge found the

respondent removable and denied his applications for asylum and

withholding of removal and his request for protection under the Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res.

39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708

(1984) (entered into force June 26, 1987; for the United States Apr. 18,

1988). The respondent has appealed from that decision. The appeal will

be dismissed in part and the record will be remanded for further proceedings.

The question in this case is whether the respondent, who claims

membership in a particular social group composed of his family, has

established eligibility for asylum under section 208 of the Immigration and

Nationality Act, 8 U.S.C. § 1158 (2012). We conclude that while family

may be a particular social group, membership in such a group does not

necessarily establish a nexus to a ground protected under the Act. Rather,

the respondent must demonstrate that the family relationship is at least

one central reason for the claimed harm to establish eligibility for asylum

on that basis.

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I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who entered the United

States for the first time in 1998 and departed under a grant of voluntary

departure in May 2011. That same month, the respondent returned to his

parents’ home in Mexico City, Mexico. Previously, members of La Familia

Michoacana, a criminal cartel, had approached the respondent’s father,

who owned a store that sold groceries and general merchandise in the

neighborhood. The cartel members asked if they could sell drugs in the

store, which the cartel viewed as a favorable distribution location. The

respondent’s father refused to allow the cartel to sell drugs in his store.

About a week after the respondent returned to Mexico, he was running

an errand with his cousin and a nephew when they heard gunshots coming

from inside a car. A week later, the respondent was approached by the same

car. Its four occupants identified themselves as members of La Familia

Michoacana. They asked if he would sell drugs for them at his father’s store

because they liked the store’s location. The respondent declined, and the

cartel members indicated that he should reconsider.

The following week, the respondent was again approached by the car.

The four occupants, who were wearing masks, tried to grab him and put him

in the car, but he was able to get away. Soon after, the respondent left for

the border and was ultimately successful in crossing into the United States.

Members of La Familia Michoacana contacted the respondent’s father and

claimed to have kidnapped the respondent, which his father was able

to confirm was untrue. The respondent’s father still operated the store, but

he began paying “rent” to La Familia Michoacana, which made it no longer

profitable. The respondent’s family members who live in Mexico, including

his parents, have not been subjected to additional incidents of harm.

The respondent believes that he was targeted by members of La Familia

Michoacana because of his membership in the particular social group

comprised of his father’s family members, and he asserted a fear

of persecution in the future on this basis. The Immigration Judge found the

respondent credible, but she concluded that La Familia Michoacana was

interested in distributing illegal drugs at the store and increasing its profits,

rather than being motivated to harm his father’s family members based

on their membership in the family itself. In particular, the Immigration Judge

found that the persecutor’s motive related to ownership of the store and,

notably, that if the store were to be sold, they would target the new owner.

On appeal, the respondent argues that he experienced harm rising to the

level of persecution based on his membership in the particular social group

of his father’s family and that he has a well-founded fear of harm on this

basis in the future if returned to Mexico.

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We requested supplemental briefing in this case, and the respondent, the

Department of Homeland Security (“DHS”), and amici curiae responded.

Both parties agree that the immediate family unit of the respondent’s father

qualifies as a cognizable particular social group. They also agree that

if family membership is a central reason for persecuting an asylum applicant,

nexus may be established. In addition, the respondent argues that the

Immigration Judge did not make complete findings of fact with regard to his

application for protection under the Convention Against Torture. The amici

curiae generally support the arguments of the respondent. 1

II. ANALYSIS

A. Family as a Particular Social Group

We agree with the parties that the members of an immediate family may

constitute a particular social group. We have long recognized that family ties

may meet the requirements of a particular social group depending on the facts

and circumstances in the case. Matter of C-A-, 23 I&N Dec. 951, 959 (BIA

2006) (“Social groups based on innate characteristics such as sex or family

relationship are generally easily recognizable and understood by others

to constitute social groups.”), clarified by Matter of M-E-V-G-, 26 I&N Dec.

227 (BIA 2014), and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014);

Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985) (stating that “kinship

ties” is a common, immutable characteristic), modified on other grounds,

Matter of Mogharrabi, 19 I&N Dec. 439, 441 (BIA 1987); see also Vumi

v. Gonzales, 502 F.3d 150, 155 (2d Cir. 2007) (acknowledging the Board’s

long-standing recognition of family members as a possible particular social

group). The circuit courts have also held that family may constitute

a particular social group. See Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir.

2015); Crespin-Valladares v. Holder, 632 F.3d 117, 124−25 (4th Cir. 2011);

Al-Ghorbani v. Holder, 585 F.3d 980, 995 (6th Cir. 2009); Ayele v. Holder,

564 F.3d 862, 869 (7th Cir. 2009); Gebremichael v. INS, 10 F.3d 28, 36 (1st

Cir. 1993); see also Ramirez-Mejia v. Lynch, 794 F.3d 485, 492−93 (5th Cir.

2015).

A determination whether a social group is cognizable is a fact-based

inquiry made on a case-by-case basis, depending on whether the group is

immutable and is recognized as particular and socially distinct in the relevant

society. See Matter of M-E-V-G, 26 I&N Dec. at 242; Matter of W-G-R-,

26 I&N Dec. at 211–12, vacated in part and remanded on other grounds by

Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016). Not all social groups that

involve family members meet the requirements of particularity and social

1

We acknowledge and appreciate the briefs submitted by the parties and amici curiae.

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distinction. See, e.g., Jie Lin v. Ashcroft, 377 F.3d 1014, 1028 (9th Cir. 2004)

(recognizing that “some attenuated family links will not per se suffice to

confer ‘particular social group’ membership”); Matter of S-E-G-, 24 I&N

Dec. 579, 585 (BIA 2008) (holding that a group comprised of “‘family

members,’ which could include fathers, mothers, siblings, uncles, aunts,

nieces, nephews, grandparents, [and] cousins” of “Salvadoran youth who

have been subjected to recruitment efforts by MS-13 and who have rejected

or resisted membership in the gang” is too amorphous to constitute a

cognizable particular social group), clarified by Matter of M-E-V-G-, 26 I&N

Dec. 227, and Matter of W-G-R-, 26 I&N Dec. 208. We agree with the

DHS’s argument that the inquiry in a claim based on family membership will

depend on the nature and degree of the relationships involved and how those

relationships are regarded by the society in question.

Because the facts of this case present a valid particular social group, we

need not further address the circumstances regarding family status that would

or would not support finding that a family is a particular social group.

An applicant for asylum has the burden to establish a cognizable particular

social group, his membership in that group, and persecution or fear of

persecution on account of his membership in that group. Matter of W-G-R-,

26 I&N Dec. at 223. In consideration of the facts of this case and the

agreement of the parties, we have no difficulty identifying the respondent,

a son residing in his father’s home, as being a member of the particular social

group comprised of his father’s immediate family. The key issue we must

consider is whether the harm he experienced or fears is on account of his

membership in that particular social group.

B. Nexus

An asylum applicant’s membership in a family-based particular social

group does not necessarily mean that any harm inflicted or threatened by the

persecutor is because of, or on account of, the family membership. See, e.g.,

id. at 218 (“[W]e must separate the assessment whether the applicant has

established the existence of one of the enumerated grounds (religion, political

opinion, race, ethnicity, and particular social group) from the issue of nexus.

The structure of the Act supports preserving this distinction, which should

not be blurred . . . .”). A persecution claim cannot be established if there

is no proof that the applicant or other members of the family were targeted

because of the family relationship. See Matter of N-M-, 25 I&N Dec. 526,

530 (BIA 2011) (stating that an applicant “must provide some evidence that

an alleged persecutor is motivated by a victim’s protected trait”). If the

persecutor would have treated the applicant the same if the protected

characteristic of the family did not exist, then the applicant has not

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established a claim on this ground. See id. at 531 (explaining that

an applicant “must demonstrate that the persecutor would not have harmed

the applicant if the protected trait did not exist”).

Moreover, under section 208(b)(1)(B)(i) of the Act, membership in the

particular social group must be “at least one central reason” for the

persecutor’s treatment of the applicant. See Matter of J-B-N- & S-M-,

24 I&N Dec. 208, 212 (BIA 2007). The protected trait, in this case

membership in the respondent’s father’s family, “cannot play a minor

role”—that is, “it cannot be incidental [or] tangential . . . to another reason

for harm.” Id. at 214.

The question of a persecutor’s motive will involve a particularized

evaluation of the specific facts and evidence in an individual claim. See

Matter of N-M-, 25 I&N Dec. at 532 (“A persecutor’s actual motive is

a matter of fact to be determined by the Immigration Judge . . . .”).

Immigration Judges should consider both direct and circumstantial evidence

regarding a persecutor’s motive, id., and may make reasonable inferences

based on the evidence in the record. See Matter of D-R-, 25 I&N Dec. 445,

453 (BIA 2011), remanded on other grounds, Radojkovic v. Holder, 599

F. App’x 646 (9th Cir. 2015). While some scenarios will present a clear

answer, others will require a more nuanced evaluation.

It is clear that nexus would be established based on family membership

where a persecutor is seeking to harm the family members because of an

animus against the family itself. For illustrative purposes, we consider

the well-known historical scenario of the Bolshevik assassination of

Czar Nicholas II, his wife, Czarina Alexandra, and their five children after

he abdicated the throne in 1917. The immediate family, as well as other

family members, were killed between 1918 and 1919. See Romanov,

19 Encyclopædia Britannica, Inc. 553−54 (1971). While there were political

reasons why they were endangered and killed, it would be difficult to say

either that these individuals did not form a particular social group or that their

family membership was not at least one central reason for their persecution.

This is a classic example of a persecutor whose intent, for at least one central

reason, was to overcome the protected characteristic of the immediate

family. 2

2

In Matter of Acosta, 19 I&N Dec. at 222, our original definition of persecution included

“harm or suffering . . . inflicted upon an individual in order to punish him for possessing a

belief or characteristic a persecutor sought to overcome.” However, in Matter of Kasinga,

21 I&N Dec. 357, 365 (BIA 1996), we clarified that a punitive intent is not required and

held, instead, that the focus is only whether the persecutor intended to “overcome [the

protected] characteristic of the victim.” Cf. Pitcherskaia v. INS, 118 F.3d 641, 646 (9th

Cir. 1997) (“Neither the Supreme Court nor this court has construed the Act as imposing a

requirement that the alien prove that her persecutor was motivated by a desire to punish or

inflict harm.”).

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However, if animus against the family per se is not implicated, the

question becomes what motive or motives cause the persecutor to seek to

harm members of an individual’s family. In other words, is the persecutor’s

motive for harming the applicant his or her family status or another factor?

The answer to this question depends on the reasons that generate the dispute.

There are other circumstances where the evidence establishes that one

central reason for the applicant’s harm was his or her family status. These

often arise in cases where the family status is connected to another protected

ground, particularly where there is a political motive, aside from dynastic

succession, that is intertwined with or underlies the dispute. See, e.g., Ayele,

564 F.3d at 869−72 (regarding a claim of membership in a particular social

group based on the applicant’s family, which had been targeted because of

political affiliation and ethnicity); Vumi, 502 F.3d at 154−56 (regarding a

claim based on membership in the family of a person suspected of

participating in the assassination of the former president of the Democratic

Republic of Congo); Gebremichael, 10 F.3d at 35−36 (holding that the

applicant had established persecution on account of his family because he

was accused of aiding the escape of his brother, whom the Ethiopian

Government regarded as an enemy).

However, nexus is not established simply because a particular social

group of family members exists and the family members experience harm.

Thus, the fact that a persecutor has threatened an applicant and members of

his family does not necessarily mean that the threats were motivated by

family ties. See Marin-Portillo v. Lynch, 834 F.3d 99, 102 (1st Cir. 2016)

(finding that the persecutor, who was jailed for murdering the applicant’s

father, threatened the applicant and his family in order to retaliate or to

deter them from seeking revenge against him, rather than because of their

family membership). An applicant cannot establish a claim simply by

showing that he and some other family members faced similar harm. See,

e.g., Perlera-Sola v. Holder, 699 F.3d 572, 576 (1st Cir. 2012) (stating that

the “‘kinship’ criterion . . . applies only where the motivation for persecution

is kinship and not because multiple family members happen to be persecuted

for a common reason but the animus is not kinship”).

Further, the fact that a persecutor targets a family member simply as

a means to an end is not, by itself, sufficient to establish a claim, especially

if the end is not connected to another protected ground. See, e.g.,

Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1165 (9th Cir. 2013) (“If

someone suffers harm on grounds that are associated with group membership

but also apply to many others, then the harm is not because of membership

in a particular social group . . . .”). Circumstances such as these may indicate

that family membership was not at least one central reason that the applicant

was harmed. Ramirez-Mejia, 794 F.3d at 493 (concluding that “the evidence

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that gang members sought information from [the applicant] about her

brother, without more, does not support her claim that the gang intended to

persecute her on account of her family”).

For example, in Cambara-Cambara v. Lynch, 837 F.3d 822 (8th Cir.

2016), the applicants were wealthy landowners, and gang members targeted

various members of their family in Guatemala, making extortionate

demands. The Immigration Judge and the Board determined that no nexus

between the harm and their status as family members had been established.

The court affirmed, stating that the applicants “provided no proof that the

criminal gangs targeted members of the family because of family

relationships, as opposed to the fact that, as prosperous businessmen, they

were obvious targets for extortionate demands.” Id. at 826. Similarly, in

Ayala v. Holder, 683 F.3d 15, 17 (1st Cir. 2012), the applicant claimed that

she was harmed based on her membership in a particular social group

comprised of “a family that opposed guerilla warriors.” But the court

disagreed with her argument, stating that “there is no evidence to support the

claim that guerillas targeted [the applicant’s] family members on account of

their membership in the family.” Id. 3

According to the facts found by the Immigration Judge in this case, the

cartel attempted to coerce the respondent’s father into selling contraband in

his store. When he refused, the cartel approached the respondent to sell its

product because he was in a position to provide access to the store, not

because of his family membership. The Immigration Judge’s findings in this

regard are not clearly erroneous. 4 See Matter of D-R-, 25 I&N Dec. at 453.

As the Immigration Judge determined, the respondent was targeted only

as a means to achieve the cartel’s objective to increase its profits by selling

drugs in the store owned by his father. See Ramirez-Mejia, 794 F.3d at

492−93. Therefore, the cartel’s motive to increase its profits by selling

contraband in the store was one central reason for its actions against the

respondent and his family. Any motive to harm the respondent because he

was a member of his family was, at most, incidental. 5 In this regard, we point

3

We recognize that the United States Court of Appeals for the Fourth Circuit has

addressed the interplay of family as a particular social group and nexus in a series of cases

where it found that the applicants satisfied the nexus requirement. See, e.g., Cruz

v. Sessions, 853 F.3d 122, 129−30 (4th Cir. 2017); Hernandez-Avalos v. Lynch, 784 F.3d

944, 949−50 (4th Cir. 2015). While it is not clear how the Fourth Circuit would apply that

precedent to the facts here, this case does not arise in the Fourth Circuit.

4

This case illustrates the importance of complete findings of fact regarding motive, which

the Immigration Judge made here. See Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002).

5

We accept the parties’ position that a separate, independent inquiry into the motivation

of a persecutor towards the respondent’s father, as the defining or primary family member,

is not part of the nexus calculus. Nonetheless, the scope of the motive inquiry necessarily

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out that the evidence does not indicate that the persecutors had any animus

against the family or the respondent based on their biological ties, historical

status, or other features unique to that family unit. See Cambara-Cambara,

837 F.3d at 826 (finding no proof that the applicants’ family was different

from any other family that experienced gang violence). Notably, the

Immigration Judge also found that the cartel would have gone after any

family who owned a business there. In fact, after the respondent departed

for the United States, the cartel coerced his father into paying “rent” to them.

This conduct constitutes criminal extortion and further indicates that the

cartel’s motivation was not based on the family relationship.

It is significant that the cartel directly asked the respondent to sell their

drugs in the store. This act bears no tie to an enumerated ground but is rather

a direct expression of the cartel’s motive to increase its profits by selling

contraband in the store. Accordingly, the Immigration Judge’s finding that

the gang was not motivated to harm the respondent based on family status is

not clearly erroneous.

III. CONCLUSION

We conclude that the respondent did not establish that his membership in

a particular social group comprised of his father’s family members was at

least one central reason for the events he experienced and the harm he

claims to fear in the future. Accordingly, the respondent’s appeal from the

Immigration Judge’s denial of his application for asylum will be dismissed.

However, we agree with the respondent that the Immigration Judge did

not make complete findings of fact needed to assess his claim under the

Convention Against Torture. We will therefore remand the record for that

purpose. Since we are remanding the record for further proceedings

regarding the respondent’s request for protection under the Convention

Against Torture, the parties may also address on remand the significance, if

any, of Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017).

ORDER: The appeal is dismissed in part.

FURTHER ORDER: The record is remanded to the Immigration

Judge for further proceedings consistent with the foregoing opinion and for

the entry of a new decision.

encompasses the context in which a family member is identified for harm and how that

relates to the interest in the applicant. We view this as a single inquiry.

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