Cite as 25 I&N Dec. 526 (BIA 2011) 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
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.Cite as 25 I&N Dec. 526 (BIA 2011) Interim Decision #3717
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),
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 theCite as 25 I&N Dec. 526 (BIA 2011) Interim Decision #3717
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
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.1Cite as 25 I&N Dec. 526 (BIA 2011) Interim Decision #3717
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.
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 manifestingCite as 25 I&N Dec. 526 (BIA 2011) Interim Decision #3717
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.
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
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).Cite as 25 I&N Dec. 526 (BIA 2011) Interim Decision #3717
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 officialsCite as 25 I&N Dec. 526 (BIA 2011) Interim Decision #3717
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 himCite as 25 I&N Dec. 526 (BIA 2011) Interim Decision #3717
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
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). Cite as 25 I&N Dec. 526 (BIA 2011) Interim Decision #3717
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
Cite as 25 I&N Dec. 526 (BIA 2011) Interim Decision #3717