BIA Holds That If A Persecutor Is Targeting Members Of A Certain Family As A Means Of Achieving Some Other Ultimate Goal Unrelated To The Protected Ground, Family Membership Is Incidental Or Subordinate To That Other Ultimate Goal And Therefore Not One Central Reason For The Harm. Matter Of L-E-A-, 27 I&N Dec. 40 (BIA 2017), Reaffirmed.
On December 1, 2023, the Board of Immigration Appeals (BIA or Board) dismissed Respondents’ appeal of an order of the Immigration Judge (IJ) denying their applications for asylum and withholding of removal; DHS opposed the appeal.
Respondents, natives and citizens of Mexico, had lived with the lead respondent’s grandson. A criminal cartel had forced them off their land because it wanted the property, killed the lead respondent’s grandson (respondents believed the murder was related to the cartel’s efforts to seize the land) and forced other families off of land in the same area. Respondents’ asylum and withholding claims used a particular social group (PSG) of members of their family and perceived members of their household in their hometown. The IJ denied these applications on the ground that they did not establish a nexus between the claimed harm and their membership in the proposed PSG; he found, instead, that “the cartel was motivated by a desire to control the respondents’ land rather than their family membership.” On appeal, Respondents argued that the IJ erred in holding that their membership in the proposed PSG was not at least one central reason for the harm.
In beginning its analysis, the BIA explained that to establish asylum eligibility, one must prove that statutory protected grounds was or will be at least one central reason for the claimed harm. Caselaw holds that a persecutor’s actual motive is a matter of fact to be determined by the IJ and reviewed for clear error by the Board. If the persecutor was or will be motivated by one or more statutory grounds, the IJ must determine whether the protected ground was or will be one central reason for the harm; a protected ground that is “incidental, tangential, superficial, or subordinate to another reason for harm” does not satisfy this standard.
Regarding the nexus to a family based PSG, the BIA looked to Matter of L-E-A-, 27 Dec. 40 (BIA 2017), reversed in part by 27 I&N Dec. 581 (A.G. 2019), vacated by 28 I&N Dec. 304 (A.G. 2021) There, the Board had found that, although family ties may meet the requirements for a PSG, an applicant’s membership in a family-based PSG “does not necessarily mean that any harm threatened or inflicted on the applicant or others in the family is on account of the family membership.” (In Matter of L-E-A-, the applicant’s membership in his family was held to be, at most, incidental to the harm.)
The BIA also cited Orellana-Recinos v. Garland, 993 F.3d 851 (10th Cir. 2021) for the proposition that, in a successful asylum claim based on family membership, “an applicant must demonstrate that the persecutor’s motive for the harm is a desire to overcome the protected characteristic of the family or otherwise based on animus against the family.” Instances of such approvable claims might involve a situation where an applicant can establish that family status is one central reason for the claimed harm because it is connected to another protected ground, such as political opinion, or where a persecutor’s animus against one family member is intertwined with mistreatment of another, such that it is “impossible to disentangle” the applicant’s treatment from the persecutor’s grievance against another family member.
Yet, pointed out the Board, courts regularly reject family-based PSGs tied to persecution by “gangs, cartels, and other criminal organizations” when the family ties are incidental or tangential to the more commonplace goals of financial gain and/or furthering, or preventing interference in, a criminal enterprise. In Orellana-Recinos, the Tenth Circuit Court of Appeals, in whose jurisdiction this case arose, had adjudicated a claim that gang members were persecuting a family because a son had refused to sell drugs for them. The court found that substantial evidence supported the IJ’s holding that resistance to her son’s recruitment was one central reason for the gang’s threat to harm the applicant, but her membership in the immediate family was not.
This approach differed from that of other circuits in reviewing family-based claims; there, the appellate review focused on whether the applicant’s relationship to the relative complaining of persecution is why he or she, and not another person, was targeted. The Tenth Circuit was unpersuaded by this approach, stated the BIA, feeling that it expanded the nexus inquiry to include family status as a central reason even when it is “incidental” and “subordinate” to another reason for harm.
The Board viewed the Tenth Circuit’s approach as “the proper way to analyze whether membership in a family-based [PSG] is one central reason for harm.” The opinion found that when a persecutor targets multiple members of a single family, their family membership may be a reason for harming them, especially if nonfamily members are not targeted; however, the fact that family membership is a reason for harm does not mean that it is one central reason.
Thus, concluded the BIA, if a persecutor targets members of a family as a means of achieving some other ultimate goal unrelated to the protected ground, family membership is incidental or subordinate to that other ultimate goal and therefore not one central reason for the harm.
Similarly, when the persecutor’s threats against the family are contingent on one or more of the family members acting or failing to act in a certain way, family membership is unlikely to be one central reason for that harm and instead will be merely a means to another end. Asylum applicants claiming that gangs or other criminal organizations target them on account of family membership have the burden of establishing, through direct or circumstantial evidence, that their family membership is more than incidental, tangential, or subordinate to other motives.
Regarding the law’s application to Respondents, the decision first found that the IJ’s ruling that the cartel was motivated by a desire to control Respondents’ land, not their family membership, was a “permissible view of the evidence” and not clearly erroneous. There was nothing in the record indicating the cartel held a specific animus against the family apart from their occupation of the land. The IJ permissibly found that “forcing the existing occupants off the land was incidental to the primary objective of obtaining the land itself.”
Further, concluded the Board, although the cartel killed a family member and threatened others, Respondents could not establish their case simply by providing that they and other family members faced similar harm. In fact, Matter of L-E-A- had stated that “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.” The BIA had noted in the past that gangs, cartels, and other criminal organizations often target wide swaths of society to expand their power and operations; however, explained the opinion, this does not qualify as persecution on account of membership in a particular social group. Therefore, because Respondents had not met their burden of proving that a protected ground was or would be at least one central reason for the claimed persecution, the denial was affirmed and the appeal dismissed. Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023).
