On February 10, 2020, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a Guatemalan native whose applications for asylum, withholding of removal and CAT relief were denied by the Immigration Judge (IJ), who had granted Respondent’s request for voluntary departure. The grant of voluntary departure was reinstated.
Respondent entered the U.S. without inspection and, after being placed into removal proceedings, applied for the above-mentioned forms of relief from deportation. After the IJ’s first denial, Respondent filed his first appeal; in turn, the BIA remanded the record for further proceedings at which the IJ accepted additional evidence and testimony. Respondent had testified that he was from El Progreso, Guatemala, where his family operated a farm. Twice in once year, members of a drug cartel approached Respondent and his father and threatened them with death if they did not use their land to grow marijuana for the cartel. About a month after the second encounter, Respondent’s father was shot dead. His godfather had also been similarly threatened by the cartel and killed the year before. The same year Respondent’s father was assassinated, his godfather’s teenage son was fatally shot in front of the child’s grandparents. Thereafter, the cartel appropriated the godfather’s land. Subsequently, Respondent entered the U.S. and his mother and sister relocated to another part of Guatemala where the Board noted, “they lived without incident.”
On remand, Respondent proposed social groups comprised of: 1) landowners, 2) landowners who resist drug cartels, and 3) members of Respondent’s family. The IJ found that none of the three qualified the applicant for asylum or withholding and concluded that Respondent was ineligible for CAT relief. In the instant appeal, he challenged the IJ’s conclusions, arguing that his applications should have been granted.
In beginning its analysis, the BIA restated the rule that one seeking asylum or withholding based on membership in a particular social group (PSG) must establish that 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 decision first noted that in Matter of Acosta, 19 I&N Dec.211 (BIA 1985), modified on other grounds, Matter of Mogharrabi, 19 I&N Dec.439 (BIA 1987), the Board had indicated that “land ownership” could qualify as “a common immutable characteristic” defining a PSG; however to establish that it is such a characteristic, one must demonstrate that his or her ownership of land is beyond the applicant’s power to change or is so fundamental to his or her identity or conscience “that it ought not to be required to be changed.” Moreover, even where landownership renders a group immutable, its ultimate validity will depend on whether the particular facts, country and societal conditions, and individual circumstances establish whether the group is discrete or amorphous and whether the society in question considers landowners as a significantly distinct group within the society. Thus, stated the opinion, where landownership is linked with another protected ground, e.g., political opinion, by “exclusively limiting participation in governance and other political activities to landowners”, landownership “is more likely to have definable boundaries and be viewed by the society in question as a distinct class of persons.”
However, reiterated the BIA, one’s status as a landowner will not automatically render him or her as a member of a PSG; to be granted asylum or withholding one “must demonstrate by evidence in the record that members of the proposed group share an immutable characteristic and that group is defined with particularity and is perceived to be socially distinct in the society in question.”
Upholding the IJ’s conclusion that Respondent had failed to demonstrate that his proposed groups are valid, the Board found his PSGs to be amorphous and lack particularity “because they can encompass landowners of varying backgrounds, circumstances, and motivations.” Additionally, Respondent had not identified record evidence demonstrating that his proposed PSGs were perceived as significantly distinct groups in El Progreso; although rural Guatemalan landowners may be vulnerable to theft, coercion or other criminal activities, Respondent did not prove that those in El Progreso, or the cartels themselves, perceived members of the proposed groups as “set apart, or distinct, from other persons within the society in some significant way.” And, added the decision, even if Respondent’s groups were valid, he had failed to confirm the required nexus, “between the harm he fears and his status as a Guatemalan landowner.” In a footnote, the BIA explained that the record had specifically been remanded so that the IJ could evaluate the existence of Respondent’s claimed groups “in accordance with our precedents and to evaluate whether any harm [he] experienced was ‘on account’ of those groups.” Respondent thus had to prove that he or other members of his family had been targeted by the cartel based on their ownership of land in Guatemala.
Further, the Board noted that here the cartel was looking to exploit vulnerable landowners to further its illicit operations – drug cultivation and distribution. While Respondent’s proposed PSGs necessarily focused on his status as a landowner, the cartel’s actions reflected that its focus was on Respondent’s land, not his status as a landowner. As such, the IJ’s conclusion that Respondent had not experienced past persecution or demonstrated a well-founded fear of future persecution on account of his land ownership in Guatemala was affirmed.
As to Respondent’s family-as-a-social-group claim, the BIA initially cited to Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) wherein the Attorney General held that a family-based group will not constitute a PSG unless it is socially distinct in the eyes of its society, not just those of its alleged persecutor, and is defined with sufficient particularity. Because L-E-A found that, in the ordinary case, a nuclear family will not constitute a PSG because “most nuclear families are not inherently socially distinct,” the opinion concluded that Respondent had not shown his own family was socially distinct or “viewed as anything besides a typical nuclear family in Guatemala.” Further, the Board stated that the evidence in this case did not demonstrate that the deaths of Respondent’s father, godfather, or godfather’s son were linked to Respondent, such that they could be considered persecution of Respondent on account of his family membership. Finally, the decision found that the IJ did not clearly err in concluding that the cartel wished to appropriate Respondent’s family’s land so that it could cultivate and distribute drugs and Respondent’s family membership was “tangential and incidental to this motive, and there is no indication that the cartel harbored any particular animosity towards the Respondent and his family.”
The BIA quickly dismissed the withholding of removal claim, upholding the IJ’s finding that Respondent had failed to prove, “in accordance with applicable circuit precedent,” that it is more likely than not that a valid protected ground was a reason for any persecution he may have experienced. Similarly, the Board agreed with the IJ that Respondent had not established eligibility for CAT protection. He claimed that he will never be safe in Guatemala because he now has title to his family’s land, thus making him vulnerable to harm in perpetuity from those who have taken his land adversely. However, the opinion found this argument “relies on the unestablished premise” that Respondent intends to “hold and exercise his title to his family’s land,” as well as the proposition that his title to the property, in and of itself, makes him a target of the cartel. There is no indication, concluded the decision, that the cartel wishes to locate Respondent, let alone torture him, based on his title to the land.
The appeal was again dismissed and Respondent permitted to voluntarily depart, without Government expense, within 30 days from the date of this order, subject to the motion to reopen or reconsider and judicial challenge warnings. Matter of E-R-A-L-, 27 I&N Dec. 767 (BIA 2020).