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Interim Decision #3717

Matter of N-M-, Respondent

Decided June 9, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Opposition to state corruption may, in some circumstances, constitute the expression

of political opinion or give a persecutor a reason to impute such an opinion to an alien.

(2) For claims arising under the REAL ID Act of 2005, Division B of Pub. L. No. 109-13,

119 Stat. 302, a showing of retaliation for opposing governmental corruption is, by itself,

insufficient to establish eligibility for relief; instead, an alien must persuade the trier

of fact that his or her actual or imputed anticorruption belief (or other protected trait) was

one central reason for the harm.

(3) In making the nexus determination, an Immigration Judge should consider: (1) whether

and to what extent the alien engaged in activities that could be perceived as expressions

of anticorruption beliefs; (2) any direct or circumstantial evidence that the persecutor was

motivated by the alien’s actual or perceived anticorruption beliefs; and (3) any evidence

regarding the pervasiveness of corruption within the governing regime.

FOR RESPONDENT: Hugo F. Larios, Esquire, Tempe, Arizona

FOR THE DEPARTMENT OF HOMELAND SECURITY: Erica L. Seger, Assistant Chief

Counsel

BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.

FILPPU, Board Member:

In this case we address an asylum claim founded on opposition to official

corruption (or “whistleblowing”) in the context of the “at least one central

reason” nexus standard set forth in section 208(b)(1)(B)(i) of the Immigration

and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(i) (2006).

In a decision dated July 7, 2009, an Immigration Judge granted the

respondent’s applications for asylum and withholding of removal pursuant

to sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C.

§§ 1158 and 1231(b)(3) (2006), and 8 C.F.R. §§ 1208.13 and 1208.16 (2009).

The Department of Homeland Security (“DHS”) has appealed from that

decision. The appeal will be sustained and the record will be remanded to the

Immigration Judge.

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We review an Immigration Judge’s findings of fact, including credibility

findings, to determine whether they are “clearly erroneous.” 8 C.F.R.

§ 1003.1(d)(3)(i) (2011). We review de novo all questions of law, discretion,

and judgment and any other issues in appeals from decisions of Immigration

Judges. 8 C.F.R. § 1003.1(d)(3)(ii). Because the respondent filed her

application after May 11, 2005, it is governed by the provisions of the REAL

ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 302 (“REAL ID

Act”). See Matter of S-B-, 24 I&N Dec. 42, 45 (BIA 2006).

We concur with the Immigration Judge’s determination that the respondent

demonstrated extraordinary circumstances sufficient to excuse the untimely

filing of her asylum application. See sections 208(a)(2)(B), (D) of the Act;

8 C.F.R. § 1208.4(a)(5)(i) (2011). To the extent that the DHS challenges the

respondent’s credibility on appeal, we find no clear error in the Immigration

Judge’s credibility finding. 8 C.F.R. § 1003.1(d)(3)(i). However, we are

unconvinced that the respondent has met her burden of proving that her

political opinion, or any other ground specified in the definition of a “refugee,”

is “one central reason” for the harm she experienced or the harm she fears.

Sections 101(a)(42), 208(b)(1)(B)(i) of the Act, 8 U.S.C. §§ 1101(a)(42),

1158(b)(1)(B)(i) (2006).

The Immigration Judge found that from 1991 to 2004, the respondent

worked in a variety of administrative positions at a state-run agency

in Colombia that provides medical services. From 1998 to 2004, the

agency began replacing state employees with private contractors as part

of a privatization effort. During this period, the respondent was pressured

to hire certain contractors outside the official approval process and to falsify

statistical information, which she refused to do. In retaliation, she was

overworked and forced to transfer to another division. The respondent also

asserts, although the Immigration Judge did not make findings in this regard,

that her superiors auctioned off medical appointments and pressured her to join

a particular political party, which she declined to do.

The Immigration Judge observed that after the respondent transferred

divisions, she continued to resist corruption within her agency by voicing

concerns regarding improperly vetted contracts, refusing to certify payment for

work that was unfinished, and speaking out against building a costly filing

system. The DHS argues that the record also shows that the respondent

reported her concerns on several occasions to the internal audit department

at her agency and that, in all instances, this department honored her concerns

by not accepting the contracts that she opposed. The Immigration Judge did

not address this aspect of the record.

The Immigration Judge found that from December 2003 to May 2004, the

respondent received threatening phone calls from anonymous callers, which

escalated in frequency and severity. The callers threatened to kill her and her

son if she did not leave the country and warned her not to report the calls to the

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Interim Decision #3717

police. In response to these threats, she and her son left for the United States

in June 2004. When her son returned to Colombia in July 2004, he was

contacted by individuals who threatened to kill him and the respondent if she

returned to Colombia. She resigned from her position at the agency

in September 2004 and has had no problems since.

The respondent argues that her resistance to corruption within her agency

constituted the expression of a political opinion and that she was persecuted

on account of this resistance. She relies on precedent of the United States

Court of Appeals for the Ninth Circuit holding that whistleblowing against

government officials “may constitute political activity sufficient to form the

basis of persecution on account of political opinion,” even absent an espoused

political theory, so long as the alien’s actions are “directed toward a governing

institution” and not just “individuals whose conduct is aberrational.” Grava

v. INS, 205 F.3d 1177, 1181 (9th Cir. 2000).

We agree that, in some circumstances, opposition to state corruption may

provide evidence of an alien’s political opinion or give a persecutor reason

to impute such beliefs to an alien. See Zhang v. Gonzales, 426 F.3d 540,

547 (2d Cir. 2005) (rejecting “any categorical distinction between opposition

to extortion and corruption and other disputes with government policy

or practice”); Black’s Law Dictionary 1196 (8th ed. 2004) (defining “political”

as “[p]ertaining to politics; of or relating to the conduct of government”).

Campaigning against state corruption through classic political activities such

as founding or being active in a political party that opposes state corruption,

attending or speaking in political rallies on the issue of eradicating state

corruption, or writing or distributing political materials criticizing state

corruption would likely constitute the expression of political opinion or may

lead a persecutor to impute such an opinion to an alien. See Musabelliu

v. Gonzales, 442 F.3d 991, 995 (7th Cir. 2006) (stating that “[s]omeone who

campaigns against the government and urges the voters to throw the rascals out

is engaged in political speech,” as is “someone who writes an op-ed piece

of otherwise urges the people to rid themselves of corrupt officials”). It is also

possible that exposing or threatening to expose government corruption

to higher government authorities, the media, or nongovernmental watchdog

organizations could constitute the expression of a political opinion.1

1

An alien may, of course, be motivated to engage in whistleblowing activities for

nonpolitical reasons, that is, reasons other than a genuine concern for the practices of good

government. For example, an employee may resist a supervisor’s orders to participate

in corrupt activities out of fear of being apprehended and punished for doing something

illegal. See Marku v. Ashcroft, 380 F.3d 982, 987 (6th Cir. 2004) (finding no political

opinion where the alien testified that she refused to doctor balance sheets because she was

afraid of going to jail). An individual may resist extortion by state actors because he does

(continued...)

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Here, the Immigration Judge appears to have found that the respondent’s

actions against corrupt government officials—her refusals to falsify statistical

information and certify payment for incomplete work, outspokenness against

rebuilding a costly filing system, and opposition to awarding contracts that she

deemed improperly vetted—were evidence that she held a political opinion.2

Even assuming that the respondent held a political opinion (or that her

persecutors imputed a political opinion to her), however, we are not satisfied

that the respondent has demonstrated that this opinion was “one central

reason” that she experienced threatening phone calls. Section 208(b)(1)(B)(i)

of the Act.

The United States Supreme Court has held that to satisfy the nexus

requirement for asylum and withholding of removal, it is not sufficient that the

persecutor act from “a generalized ‘political’ motive.” INS v. Elias-Zacarias,

502 U.S. 478, 482 (1992). Instead, an alien must demonstrate that the

persecutor harmed or may harm him “because of” the alien’s political opinion

or other protected trait. Id. at 483. In Elias-Zacarias, the Supreme Court

held that an alien who resisted recruitment attempts by guerrilla forces

in Guatemala had failed to demonstrate that the guerrillas would persecute him

because of his political opinion, rather than because of his refusal to fight with

them. Id. Thus, simply demonstrating resistance to pressure to engage

in certain acts and consequent retaliation for this resistance is insufficient

to establish a nexus. Rather, an alien must provide some evidence, direct

or circumstantial, that the persecutor’s motive to persecute arises from the

alien’s political belief. Id.

In so holding, the majority did not adopt the dissent’s argument that because

a persecutor is more concerned with suppressing a victim’s actions than with

the victim’s subjective reasons for engaging in such acts, an inquiry into

an individual persecutor’s motivation is unnecessary so long as an alien

demonstrates that the persecution occurred in response to an act manifesting

(...continued)

not wish to part with his money. See Zhang v. Gonzales, 426 F.3d at 548 (recognizing that

where an asylum applicant opposes government extortion, he will often stand to gain

financially from the challenge). An employee may also be motivated by personal revenge

or animus when exposing the actions of a corrupt supervisor. Whistleblowing activities

based on these latter motives would not, subjectively, constitute the expression of a political

opinion, although such activities may still form a basis for a persecutor to impute a political

opinion to an alien.

2

The Immigration Judge made no explicit finding regarding the respondent’s subjective

reasons for engaging in these activities. However, because an alien’s motivations for

engaging in activities “are relevant only to the extent that they illuminate the motives of the

alleged persecutors,” Adhiyappa v. INS, 58 F.3d 261, 267 (6th Cir. 1995), we need not

remand on this basis alone.

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a political opinion. Compare id. at 481 n.1 (noting that to be eligible for

relief, an alien must show both that his “form of expressive conduct . . .

constituted the statement of a ‘political opinion’” and that “the guerrillas

would persecute him because of that political opinion,” with id. at 489

(Stevens, J., dissenting) (arguing that “[p]ersecution because of [an] overt

manifestation [of a political opinion] is persecution because of a political

opinion” (quoting Bolanos-Hernandez v. INS, 767 F.2d 1277, 1287 (9th Cir.

1985)) (internal quotation marks omitted)).

Although an alien must provide some evidence that an alleged persecutor

is motivated by a victim’s protected trait, we have recognized that

“[p]ersecutors may have differing motives for engaging in acts of persecution”

and have not foreclosed relief where an alien demonstrates more than one

plausible motive for the harm imposed or the harm feared. See, e.g., Matter

of S-P-, 21 I&N Dec. 486, 489 (BIA 1996). Prior to 2005, courts of appeals

applied different standards in assessing eligibility for relief in these mixed

motive cases. Compare Ambartsoumian v. Ashcroft, 388 F.3d 85, 91 (3d Cir.

2004) (holding that an alien failed to show persecution on account of ethnicity

where police harassment occurred “mainly” because he had not obtained

proper legal documents), with Borja v. INS, 175 F.3d 732, 736-37 (9th Cir.

1999) (holding that guerrillas’ threats and mistreatment were motivated

“at least in part” by the alien’s progovernment stance).

In particular, the Ninth Circuit held that the term “on account of” required

only that an alien “produce evidence from which it is reasonable to believe that

the harm was motivated, at least in part, by an actual or implied [sic] protected

ground.”3 Borja v. INS, 175 F.3d at 736 (emphasis added) (quoting Matter

of T-M-B-, 21 I&N Dec. 775, 777 (BIA 1997)) (internal quotation mark

omitted). The “at least in part” standard allowed for a showing of nexus even

where other, nonprotected reasons “appeared to have been the dominant

cause of the persecutory action.” Parussimova v. Mukasey, 555 F.3d 734,

739 (9th Cir. 2009).

3

In Borja, the alien was approached by members of a guerrilla group who asked her to join

them, and she refused, stating that she was “pro-government.” Borja v. INS, 175 F.3d at 734.

She then paid them a “revolutionary tax” and continued to pay them on a monthly basis until

they doubled the amount demanded. Id. at 734-35. When she refused to pay the higher

amount, the guerrillas beat her, put a gun to her head, and cut her with a knife. Id. at 735.

Noting that the guerrillas left her unharmed so long as she continued to comply with their

extortionate demands, we concluded that the guerrillas had no interest in the alien beyond

her ability to pay them and that she had failed to demonstrate persecution on account of her

political opinion. See Matter of T-M-B-, 21 I&N Dec. 775, 778-79 (BIA 1997). Reversing

the Board, the Ninth Circuit held that the alien’s initial articulation of her progovernment

stance compelled the conclusion that the guerrillas’ subsequent threats and mistreatment

were motivated at least in part by her political opinion. Borja v. INS, 175 F.3d at 735-36.

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Congress passed the REAL ID Act of 2005, in part, to create a uniform

standard for adjudicating cases in which the alleged persecutor had more than

one plausible motive for harming the victim. Matter of J-B-N- & S-M-,

24 I&N Dec. 208, 212 (BIA 2007). Specifically, Congress was concerned that

the Ninth Circuit’s decisions in Borja and its companion case Briones v. INS,

175 F.3d 727 (9th Cir. 1999), “undermined a proper analysis of mixed motive

cases.” H.R. Rep. 109-72, at 163 (2005) (Conf. Rep.), reprinted in 2005

U.S.C.C.A.N. 240, 289, 2005 WL 1848528. Since the passage of the REAL

ID Act, an asylum applicant must demonstrate that his or her political opinion

(or other protected trait) was or will be “at least one central reason” for the

persecution. Section 208(b)(1)(B)(i) of the Act. The Ninth Circuit has

acknowledged that the REAL ID Act’s “one central reason” standard “places

a more onerous burden on the asylum applicant than the ‘at least in part’

standard [the Ninth Circuit] previously applied.” Parussimova v. Mukasey,

555 F.3d at 740. In cases arising under the REAL ID Act, the “protected

ground cannot play a minor role in the alien’s past mistreatment or fears

of future mistreatment.” Matter of J-B-N- & S-M-, 24 I&N Dec. at 214.

Instead, an alien must demonstrate that the persecutor would not have harmed

the applicant if the protected trait did not exist. Parussimova v. Mukasey,

555 F.3d at 741.

In a line of pre-REAL ID Act cases, the Ninth Circuit held that official

retaliation against those who expose governmental corruption constitutes

persecution on account of political opinion when the alleged corruption

is intertwined with the operation of government. See, e.g., Fedunyak

v. Gonzales, 477 F.3d 1126, 1129-30 (9th Cir. 2007); Mamouzian v. Ashcroft,

390 F.3d 1129, 1134-35 (9th Cir. 2004); Grava v. INS, 205 F.3d at 1181.

In some of these cases, the Ninth Circuit appears to have held that

a demonstration of retaliation for acting against governmental corruption

is sufficient to establish that the harm occurred on account of the alien’s

political opinion. See, e.g., Fedunyak v. Gonzales, 477 F.3d at 1129 (stating

that the “death threats and beating that Fedunyak received as a result of his

complaints [against extortion] establish the requisite nexus between his

political opposition to government corruption and the retaliatory persecution

that he suffered”); Sagaydak v. Gonzales, 405 F.3d 1035, 1042 (9th Cir. 2005)

(stating that “a victim who is targeted for exposing government corruption

is persecuted ‘on account of’ political opinion” because “[r]etaliation for

investigating or publicizing corruption by political figures is by its very nature

a political act”).

An automatic equation between retaliatory harm and the motivation behind

the retaliation, however, would seem inconsistent with the “one central reason”

test and with the Supreme Court’s requirement in Elias-Zacarias that the alien

demonstrate that a persecutor is motivated by a victim’s protected trait. For

example, such an automatic equation would fail to recognize corrupt officials

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who act solely out of personal revenge or a desire to avoid the exposure

of a lucrative scheme of corruption, without a significant concern about the

alien’s political beliefs, perceived or otherwise. See Matter of C-T-L-, 25 I&N

Dec. 341, 349 (BIA 2010) (holding that the alien had not established a nexus

where police officers threatened him, not because of a protected ground, but

because “he had interfered with their private money-making scheme”); see

also Zhang v. Gonzales, 426 F.3d at 548 (recognizing that corrupt officials

may well be motivated “by a pecuniary desire to shield their activities from

detection”). While the Ninth Circuit has acknowledged that “[p]urely personal

retribution is . . . not persecution on account of political opinion,” it has

nonetheless found a nexus in whistleblower cases so long as the retaliation

was not “completely untethered to a governmental system.” Grava v. INS,

205 F.3d at 1181 n.3; see also Fedunyak v. Gonzales, 477 F.3d at 1130 (citing

to the Ninth Circuit’s pre-REAL ID “at least in part” standard); Sagaydak

v. Gonzales, 405 F.3d at 1043; Mamouzian v. Ashcroft, 390 F.3d at 1134.

Since the passage of the REAL ID Act, a showing of retaliatory harm for

exposing acts of corruption, coupled with evidence that the corruption

is in some way linked to a political system, would appear insufficient

to demonstrate that a victim’s anticorruption beliefs are “one central reason”

for retaliation against him. Instead, an alien must persuade the trier of fact not

just that the alleged persecutor was motivated in some measure by the alien’s

actual or imputed political belief, but that the protected trait was “one central

reason” for the persecution. A persecutor’s actual motive is a matter of fact

to be determined by the Immigration Judge and reviewed by us for clear error.

Matter of J-B-N- & S-M-, 24 I&N Dec. at 214; 8 C.F.R. § 1003.1(d)(3)(i).

In making this factual determination regarding a persecutor’s motive,

an Immigration Judge may find it useful to consider the following factors.

First, an Immigration Judge may consider whether and to what extent the

alien engaged in activities that could be perceived as expressions

of anticorruption beliefs. For example, an Immigration Judge may consider

whether an alien denounced corruption in public or at work, published

articles criticizing governmental corruption, or organized fellow victims

of government extortion against this behavior. Cf. Marku v. Ashcroft, 380 F.3d

at 987-89 (finding no nexus where the alien never expressed anticorruption

beliefs to the alleged persecutor and it was unlikely that the persecutor would

have ascribed such beliefs to the alien).

Next, an Immigration Judge should consider any direct or circumstantial

evidence that the alleged persecutor was motivated by the alien’s perceived

or actual anticorruption beliefs. INS v. Elias-Zacarias, 502 U.S. at 843. This

could include statements indicating that the persecutor viewed the alien

as a political threat or subversive and was motivated as such. See

Baghdasaryan v. Holder, 592 F.3d 1018, 1025 (9th Cir. 2010) (finding a nexus

where, while the alien was being beaten in detention, an official accused him

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of “defaming” and “raising his head” against the Deputy of the National

Assembly); Hasan v. Ashcroft, 380 F.3d 1114, 1121 (9th Cir. 2004) (finding

a nexus where a government poster publicizing the need to punish the alien

mentioned her role as a journalist, a member of a women’s organization, and

a leader of “anti-Islamist activities”); Njuguna v. Ashcroft, 374 F.3d 765,

772 (9th Cir. 2004) (finding a nexus where the alleged persecutor accused the

alien of being involved in a plot to defame and humiliate the Kenyan

Government).

An Immigration Judge should also consider evidence regarding the

pervasiveness of government corruption, as well as whether there are direct ties

between the corrupt elements and higher level officials. Where the alien

threatens to expose the corrupt acts of rogue officials acting without the support

of the governing regime, it seems less likely that the act would be perceived

as politically motivated or politically threatening. However, if corruption

is entrenched in the ruling party, a challenge to the corrupt practices of this

party may be more likely to represent a challenge to the political position of the

ruling party, and not just the financial standing or reputation of a small group

of corrupt officials. See Castro v. Holder, 597 F.3d 93, 104 (2d Cir.

2010) (stating that evidence of pervasive corruption, including direct ties

between corrupt elements and the president of Guatemala, made it likely that

the alien’s whistleblowing actions would be perceived to reflect political

opposition to the governing regime); Desir v. Ilchert, 840 F.2d 723, 724-25,

727 (9th Cir. 1988) (stating that evidence that the Macoutes political system

was a “kleptocracy” founded on extortion made it likely that refusal to accede

to extortion would be seen as politically subversive, particularly where the alien

presented evidence that he regularly met in small groups to discuss his

opposition to these practices). Whether the governing regime, and not just the

corrupt individuals, retaliates against an alien for expressing anticorruption

beliefs is relevant to this inquiry. See Baghdasaryan v. Holder, 592 F.3d

at 1026 (noting that, in response to publicizing an extortion scheme, the alien

was mistreated by a variety of governmental officials acting under color of law,

including the militia, National Security forces, and the tax authority); Fedunyak

v. Gonzales, 477 F.3d at 1128-29 (noting that when the alien reported extortion

by low-level officials to the mayor and Supreme Soviet Deputy, these higher

authorities threatened the alien rather than investigating the corruption).

Here, the Immigration Judge found that the threatening telephone calls the

respondent received “were made on account of her actions against corruption

in [her agency],” such as refusing to falsify statistical information and certify

payment for incomplete work. He further found that those threatening the

respondent did so “because of her whistle-blowing actions against corruption.”

These findings are not clearly erroneous, although we acknowledge the DHS’s

concerns regarding the lack of evidence showing the identity of the callers.

8 C.F.R. § 1003.1(d)(3)(i).

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However, simply because the calls were triggered by the respondent’s

actions, which obstructed the corrupt officials’ operations and threatened

to expose them, does not necessarily mean that the callers were motivated

by the respondent’s political opinion or that they viewed her as a political

opponent when they retaliated against her. An event (such as an alien’s refusal

to join the guerrillas’ armed forces) may trigger harm (such as kidnaping and

conscription), but a central reason for the persecutor’s infliction of the harm

may or may not be the persecutor’s perception of the victim’s political opinion.

See Elias-Zacarias v. INS, 502 U.S. at 483 (holding that the alien did not meet

his burden of demonstrating that threats by guerrillas in response to his refusal

to join them was motivated by a political opinion rather than because of a desire

to increase their ranks). Here, the respondent’s refusal to further her superiors’

corrupt activities triggered retaliation by these corrupt individuals in the form

of threats. However, the Immigration Judge does not appear to have made

a finding regarding the callers’ motive for threatening the respondent, that is,

whether the callers perceived the respondent to pose a political threat or merely

a challenge to their personal scheme. Accordingly, we will remand to the

Immigration Judge for additional fact-finding in this regard.

Finally, we conclude that the respondent has raised a claim 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)

(“Convention Against Torture”). The respondent did not explicitly indicate

a desire to apply for protection under the Convention Against Torture

by checking the related box on her Form I-589 (Application for Asylum and

Withholding of Removal) or by clearly requesting to be considered for such

relief before the Immigration Judge. However, because she declared that

she fears torture upon return to Colombia in Question 4 of her Form I-589 and

presented some evidence to support that claim at her hearing, we conclude that

she has raised a claim for protection under the Convention Against Torture. See

8 C.F.R. § 1208.13(c)(1); see also Nuru v. Gonzales, 404 F.3d 1207, 1223 n.13

(9th Cir. 2005). Accordingly, on remand, the Immigration Judge should

consider her eligibility for such protection.

ORDER: The appeal of the Department of Homeland Security is sustained.

FURTHER ORDER: The record is remanded to the Immigration Judge

for proceedings consistent with the foregoing opinion and for the entry of a new

decision.

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