OLIVA v. LYNCH, NO. 14-1780
Decided: November 25, 2015
The Fourth Circuit determined that the Board of Immigration Appeals (BIA) was incorrect in interpreting the nexus requirement too narrowly and that the plaintiff successfully showed that membership in his proposed social groups was at least one important reason for his persecution. Additionally, the Fourth Circuit concluded the BIA did not adequately address the record evidence in making its determination that the plaintiff’s proposed social groups were not cognizable under the Immigration and Nationality Act (INA).
Oliva, a citizen of El Salvador, entered the United States illegally in 2007. In 2010, the Department of Homeland Security served Oliva with a Notice to Appear, charging him with removability under the INA, as an alien present in the United States without admission or parole. In 2011, Oliva filed an application for asylum and withholding of removal. In 2013, during a hearing in front of an immigration judge (IJ), Oliva explained that he joined a gang (MS-13) in El Salvador at the age of 16. However, shortly he witnessed a brutal murder of a rival gang member and decided to distance himself from the gang. The gang forbids members from quitting, kills anyone who attempts to leave, and requires inactive members to pay rent. After moving around El Salvador in fear and getting brutally beaten by the gang, Oliva decided to flee to America to protect himself and received threatening phone calls from the gangs while he was in America threatening to kill him if he ever returned to El Salvador. Despite accepting his testimony as credible, the IJ denied Oliva’s application for asylum and withholding removal. Oliva appealed the IJ’s decision, and a one-member panel of the BIA dismissed the appeal.
While a three-member panel of the BIA is entitled to Chevron deference for its reasonable interpretations of immigration statutes, a one-member panel of the BIA is entitled to Skidmore deference. The opinion of the one-member panel is not controlling on the Fourth Circuit, but the Fourth Circuit can consider the opinion, looking at the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade. The findings of the BIA are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.
Despite admitting he was eligible for removal from the country, Oliva argues that the BIA erred in denying his request for withholding removal under Section 241(b)(3)(A) of the INA, which states the Attorney General cannot remove an alien whose life would be threatened because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion. Oliva argued that his life would be threatened due to his membership in one of two particular social groups. First, by “Salvadorans who are former members of MS-13 and who left the gang, without its permission, for moral and religious reasons.” Second, by “Salvadorans who were recruited to be members of MS-13 as children and who left the gang as minors, without its permission, for moral and religious reasons.” The BIA dismissed this argument on two grounds: (1) Oliva’s purposed social group was not cognizable under the INA, and (2) Oliva failed to demonstrate that the persecution he feared was due to his membership in either of the proposed social groups – the nexus requirement.
In order to satisfy the nexus requirement under the INA, the applicant must show his or her past or threatened persecution was on account of his or her membership in that group. The BIA found Oliva’s fear of persecution was not on account of his becoming an inactive gang member, but because of his specific conduct of violating the gang’s rules, specifically, refusing to pay rent. The Fourth Circuit determined that this was an overly restrictive view of Oliva’s case. The Court concluded that a close review of the record shows the “inextricable relationship between Oliva’s membership in his proposed social groups and his refusal to pay rent.” While Oliva’s decision to stop paying rent was the immediate trigger for the gang’s brutal assault, it was Oliva’s status as a former gang member that led MS-13 to demand money in the first place and to assault him for failure to pay it. Further, the fact that he left the gang for moral and religious reasons is not merely “incidental, tangential, superficial, or subordinate” to his refusal to pay, but it was a central reason for his persecution. Thus, the Fourth Circuit held that Oliva satisfied the nexus requirement.
The BIA has held that a particular social group is cognizable for purposes of the INA if the group is: “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” The BIA did not consider the immutability and particularity prongs because it held Oliva’s proposed social groups failed the requirement for social distinction. In order to be socially distinct, the group must be “perceived as a group by society.” The BIA claimed that Oliva identified only one example to show the social distinction of the gang: his assertion that former gang members suffer employment discrimination. However, the BIA did not address other information that Oliva put forth, including evidence of community and government-driven programs to help the rehabilitation of former gang members who leave for moral or religious reasons. The Fourth Circuit concluded that the case must be remanded back to the BIA for consideration of the unaddressed evidence.
Austin T. Reed