Law is weird
Primary victim isn't eligible but secondary victim is
Alice laughed. “There’s no use trying,” she said: “one CAN’T believe impossible things.”
“I daresay you haven’t had much practice,” said the Queen. “When I was your age, I always did it for half-an-hour a day. Why, sometimes I’ve believed as many as six impossible things before breakfast.”
Mr. Aguilar and Ms. Rivas (aliases) have been together for many years. They’re not legally married, but they call each other “husband” and “wife”, and they have a child together.
In El Salvador, Mr. Aguilar started a taxi business. Soon after he opened, a gang explained the facts of life. He would pay a “vaccine” — monthly protection money — to the gang, or he and his family would face the consequences.
Over time the demands got bigger and the threats got worse. He received texts saying “we know where your family is, we know where your wife and kids are, if you don't do what we want you know what will happen.” Eventually, unable to keep paying, the family sought asylum in the United States.
Asylum denied
The Immigration Judge (IJ) denied their asylum claims for various reasons. They appealed to the Board of Immigration Appeals (BIA).
Helpfully, the BIA kept things simple. Mr. Aguilar and Ms. Rivas had said that they were targeted by the gang because they’re members of “particular social groups” (PSGs). But the BIA found their membership in their proposed PSGs was not the reason that the gang targeted them.
The BIA relied solely on the determination that the petitioners had failed to show a nexus between the alleged persecution and their memberships in those particular social groups, such that the persecution was “on account of” those memberships.
In other words, this case is only about the “nexus,” or connection, between the persecution that they suffered and membership in their PSGs.
They appealed to the First Circuit. The Court heard their cases together, but since they’re not legally married, they have separate claims. We’ll start with Mr. Aguilar.
Nexus denied for Mr. Aguilar
The decision can be summed up in two weird sentences.
Mr. Aguilar wasn’t targeted because he was a business owner. He was only targeted because he owned a business.
Let’s back up a bit.
The reality is, it’s pretty obvious why Mr. Aguilar became a victim. As soon as he opened his business, the gang came after him. They demanded a steadily increasing share of the revenue, and eventually took it over completely.
In legal terms, Mr. Aguilar says he was targeted because of his identity as a member of the “particular social group” of “business owners.” Which, of course, he was.
But the judges split hairs to create an artificial distinction between the fact of owning a business, and the identity of being a “business owner.”
Turning to the issue of nexus, the gangs in this case were motivated by their desire to increase their criminal profits and extort people with money in the area. There is insufficient evidence that the Respondent was targeted because he was a business owner. The gang members did go to him and ask him for protection money. However, he was not targeted because he owned a taxi business but because the gangs wanted to increase their criminal enterprise and profits.
The gangs didn’t care that he was a member of the PSG of “business owners”. They just targeted people vulnerable to extortion — which, by a striking coincidence, happened to consist of business owners.
Of course, this is absurd. Usually at this point I’d be jumping up and down and shouting.
But the fact is, experienced asylum advocates started looking askance the moment they saw this case. That’s because “business owners” usually isn’t “cognizable.”
A PSG has to be fundamental to your identity. Examples include disabilities, sexual orientation, tribal or ethnic background, family ties, caste, and so forth. Legally, it must be “immutable” — something that you cannot change, or should not be required to change.
“Business owner” is not generally considered immutable. Mr. Aguilar could have sold or abandoned his business and thereby escaped the gang’s attentions. This would have been inconvenient and expensive, but not impossible or unreasonable. Being forced to change careers sucks, but it isn’t “persecution.”
So … the Court denied asylum based on a failed “nexus” to Mr. Aguilar’s PSG. Which is silly, since — duh — he was targeted for owning a business. But he probably would have eventually lost anyway, because being a “business owner” isn’t an immutable characteristic, and so it’s not a reason to get asylum.
Nexus granted for Ms. Rivas
One might expect that, since Mr. Aguilar wasn’t eligible for asylum, the same would be true for his wife and child. After all, they were only incidental victims of a plot aimed exclusively at him.
But remember that Mr. Aguilar lost because he was persecuted for the wrong reason. The same doesn’t apply to Ms. Rivas. So the outcome for her is even weirder:
She won.
Ms. Rivas is a member of the “particular social group” of Mr. Aguilar’s family members. He was targeted for owning a business; she was targeted because she was his common-law wife.
(Had they been legally married, she would presumably have been included in his application, and been denied along with him. But as a common-law wife, she is exactly the right amount of “family” to apply separately but still prove that she was targeted because of him.)
Family-based PSGs are typically “cognizable”. As the Court says, “there can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.”
As for nexus — to a casual observer, it’s obvious that Ms. Rivas was targeted because she’s in Mr. Aguilar’s family. The legal analysis is contorted, but I’ll skip the details and just say that majority eventually found that, for once, law and common sense coincide:
And while there is no question on this record that the gang members were targeting Rivas because of their desire to obtain money from Aguilar, and thus for a pecuniary reason, there also is no question that “a central reason” for the gang’s decision to target Rivas was her tie to another family member.
Necessary and sufficient
For what it’s worth, the counter-arguments are fascinating. Judges often go to extreme lengths to attack even the most self-evident nexus. Arguing that Ms. Rivas wasn’t targeted for her family ties, Judge Kayatta dissented with a genuine masterpiece of sophistical dissembling:
In this case, the extortionists determined that Aguilar's partner was someone about whom he cared enough to want to avoid harm to her. Because she is his partner, my colleagues can say that she is a family member. But family membership is neither necessary nor sufficient to account for the threat of harm to Rivas. Rather, it is subordinate to the fact that she is perceived to be in the group of persons and things about whom Aguilar cares enough to be extorted. Or at least an IJ could reasonably so find, as here.
In fairness, the reconciliation of our precedents in this area falls well short of obvious. But there is substantial evidence here that Rivas's family membership is incidental to the fact that she is within the universe of people dear enough to Aguilar to render him susceptible to extortion by the gang members. Imagine, for example, that the gang learned that Aguilar hated Rivas and would not be seen as likely to pay a pittance to protect her. She would still be a family member, yet she would likely face no persecution. Or imagine that Aguilar and Rivas had only recently met — and thus had not yet established any familial ties — but were in love. She would be just as likely to be persecuted, even though she would not be a family member. And we would certainly not call Aguilar's business a family member if it were targeted by the extortionists.
I can’t say that I followed all that, and it’s not worth engaging with it point-by-point. Even after reading it several times, I still think it’s self-evident that Ms. Rivas was threatened because she is Mr. Aguilar’s wife.
But I want to call out an interesting choice that Kayatta makes.
For context — to get asylum, you have to show that you were persecuted because of a protected ground. The question is what “because of” means.
Standard precedent (and the majority) define “because of” as “one central reason.” This requires an exploration of the persecutor’s motives. It’s a fraught standard, and it leaves a lot of room for judges to bend the results the way that they want. (See, for example, A Bedlam of Women.)
Nexus is often attacked for a lack of “animus,” or ill-will: “I’ve got nothing against Jews, I just mug ‘em because everybody knows they’re so rich.” Although animus isn’t required, judges often find a way to slip it into the analysis: “he didn’t persecute them ‘because’ they’re Jews, he just wanted the money.”
Kayatta proposes abandoning “one central reason” in favor of a completely new test, which I’ve never seen before in an asylum context: “necessary and sufficient”.
This test entirely disregards the persecutor’s state of mind, and makes “animus” truly irrelevant. Instead, it asks nothing more than whether membership in the group was necessary and sufficient for the persecution to occur. It’s similar to (although much less permissive than) a “but for” test.
His application of the test to Ms. Rivas — his argument that her family ties were neither “necessary” nor “sufficient” for her to become a target — isn’t particularly compelling. His counterfactuals (“call the business a ‘family member’”?!?) are outlandish and strained. He’d clearly like make it impossible for anybody to ever meet this standard.
But leaving aside his hypotheticals and sticking to reality, there are some things that I like about the proposal. At the end of the day, we shouldn’t care what was in the gang’s mind. On the record, people in Mr. Aguilar’s family were a target, and people outside his family weren’t. Under the “necessary and sufficient” standard, that’s all Ms. Rivas needs.
Weird case, important result
This was a weird one.
Aguilar was the main victim of the gang’s extortion. The Court bizarrely found that, although he was targeted because he owned a business, he wasn’t targeted as a business owner. But, in fairness, being a business owner isn’t fundamental to his identity.
Rivas was a secondary victim. But she was targeted because of her family ties, something that she can’t change. So she alone is eligible for asylum.
(Fortunately their child, who was listed as a dependent on Ms. Rivas’s application, is eligible for asylum along with her.)
The result for Ms. Rivas seems trivially self-evident. But this was an important precedential decision. I’ve worked with quite a few women with similar backgrounds to Ms. Rivas: victims of threats and violence meant to coerce their partners. By confirming that there is a “nexus” between those threats and their family membership, the First Circuit has made the path to asylum for these women a little easier.
Hat tip to Kristian R. Meyer and Kevin P. MacMurray for advocating on Mr. Aguilar and Ms. Rivas’s behalf.
https://scholar.google.com/scholar_case?case=6385752885193880094