Orlando Crespin-Valladares v. ERIC H. HOLDER, JR., Attorney General

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 ORLANDO CRESPIN-VALLADARES;
SANDRA YANIRA MELGAR-MELGAR;
S.E.C.M.; S.O.C.M.,
Petitioners, No. 09-1423 v.
ERIC H. HOLDER, JR., Attorney
General,
Respondent. 
On Petition for Review of an
Order of the Board of Immigration Appeals.
Argued: December 8, 2010
Decided: February 16, 2011
Before MOTZ, KING, and GREGORY, Circuit Judges.
Petition for review granted and case remanded for further pro-
ceedings by published opinion. Judge Motz wrote the opinion,
in which Judge King and Judge Gregory joined.
COUNSEL
ARGUED: Jennifer Loraine Swize, JONES DAY, Washing-
ton, D.C., for Petitioners. Carol Federighi, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for

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Respondent. ON BRIEF: Walter D. Kelley, Jr., Tara Lynn R.
Zurawski, Jason B. Taub, JONES DAY, Washington, D.C.;
Jonathan A. Muenkel, JONES DAY, New York, New York,
for Petitioners. Tony West, Assistant Attorney General, Mar-
garet Perry, Senior Litigation Counsel, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Orlando Crespin-Valladares and his wife and children ("the
Crespins"), citizens of El Salvador, petition for review of a
final order of removal entered by the Board of Immigration
Appeals (BIA). Crespin argues that he and his family deserve
asylum because he fears persecution in El Salvador on
account of his family ties. An immigration judge (IJ) accepted
this argument and granted the Crespins’ asylum application,
but the BIA vacated and ordered their removal. For the rea-
sons that follow, we grant the Crespins’ petition for review
and remand to the BIA.
I.
The Crespins seek asylum because of events arising from
the murder of Crespin’s cousin in El Salvador. We detail
those events as Crespin described them in his testimony, an
account that the IJ found credible and that the BIA did not
dispute. We then outline the legal proceedings that followed.
A.
In January of 2004, in Crespin’s hometown of Sonsonate,
El Salvador, four members of the Mara Salvatrucha 13 gang
("MS-13") fatally shot Crespin’s cousin. Crespin heard the
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shots as he was walking towards his uncle’s house, and he
witnessed four MS-13 members fleeing the scene. After arriv-
ing at his uncle’s house, Crespin described the four men to the
police; his description matched the one provided by Crespin’s
uncle, who had witnessed the murder.
Two weeks later, another shooting occurred in Sonsonate,
and the police connected it to the murder of Crespin’s cousin.
They summoned Crespin and his uncle to the police station,
where Crespin saw two of his cousin’s four attackers, whom
the police had arrested, sitting on a bench inside. The two
gang members watched Crespin and his uncle enter a detec-
tive’s office, at which point Crespin informed the detective
that he recognized both attackers. Crespin and his uncle then
agreed to testify against the two men.
Shortly thereafter, MS-13 members began threatening
Crespin and his uncle. As the murder trial approached, gang
members "repeatedly" told Crespin’s uncle that they would
kill him if he continued cooperating with the police. On one
occasion, a gang member held a gun to the uncle’s head and
pulled the trigger twice, although an apparent malfunction
prevented it from firing. The prosecutor subsequently pro-
vided the uncle 24-hour police protection. While he was under
this protection, MS-13 members threatened his wife. He none-
theless testified as the prosecution’s primary eyewitness, and
a court convicted both defendants. The other two assailants
were not apprehended. The police withdrew the uncle’s pro-
tection upon the trial’s completion, and the same day he fled
the country.
MS-13 similarly threatened Crespin on three occasions.
Because he did not witness the murder, however, he received
no police protection. The first threat came soon after his
encounter with his cousin’s attackers at the police station;
gang members slipped a note under his door declaring that he
would be "next" if he persisted in his cooperation with the
police. Upon finding the note, Crespin and his family fled
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Sonsonate for a relative’s home in San Salvador. When
Crespin returned to Sonsonate the next month to collect his
mail, inside his house he found another note proclaiming that
the gang would kill him if he "went to court." Finally, as
Crespin drove through Sonsonate later that month, he encoun-
tered one of his cousin’s killers, who shouted that "you need
to shut up or we are going to kill you."
Afraid, Crespin planned his family’s escape to the United
States. To that end, he left his children with an uncle in San
Salvador and, in May or June 2004, traveled with his wife to
the United States on tourist visas. They returned to El Salva-
dor after about two months to collect their children and make
arrangements for the family’s relocation to the United States.
On December 26, 2004, United States border patrol agents
apprehended the Crespins as they entered the United States.
B.
At the removal hearing, the Crespins conceded their remov-
ability but applied for asylum. In particular, Crespin claimed
that he harbored a well-founded fear of persecution because
of his membership in a social group "consisting of family
members of those who actively oppose gangs in El Salvador
by agreeing to be prosecutorial witnesses." Crespin and his
wife testified to the facts outlined above. In addition, they
provided the written testimony of Luz Nagle, a law professor
and former Colombian judge, who explained that MS-13 has
murdered government witnesses in the past and that gang
members often intimidate their enemies by attacking those
enemies’ families. Professor Nagle also explained that recent
government efforts to control gang violence in El Salvador
remain ineffective. Finally, Crespin submitted various news
articles and governmental reports analyzing Salvadoran gang
violence.
After considering this evidence, the IJ made several rele-
vant findings. First, he found that the Crespins’ proposed
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social group of "family members of those who actively
oppose gangs in El Salvador by agreeing to be prosecutorial
witnesses" qualified as a "particular social group" under the
Immigration and Nationality Act (INA). Second, the IJ deter-
mined that Crespin had demonstrated a sincere and objec-
tively reasonable fear that he would suffer persecution were
he to return to El Salvador. Third, the IJ concluded that the
Salvadoran government’s attempts to control gang violence
had failed. Fourth, the IJ found that "[a]t least one central rea-
son why the gang members targeted [Crespin] was because of
his uncle’s cooperation with the Salvadoran government" and
that the persecution of Crespin was therefore on account of
his membership in a particular social group.
Accordingly, on July 10, 2007, the IJ granted Crespin’s
asylum application, as well as the derivative applications of
his wife and children. The Government appealed to the BIA.
C.
Almost two years later, on March 12, 2009, the BIA
vacated the IJ’s grant of asylum and ordered the Crespins’
removal. It identified two reasons for doing so.1 First, the BIA
stated that "‘those who actively oppose gangs in El Salvador
by agreeing to be prosecutorial witnesses’ does not qualify as
a particular social group." Second, it concluded that Crespin
faced no well-founded fear of persecution, reasoning that
Crespin suffered "mere threats and harassment" that failed to
give rise to anything more than a "generalized fear of harm."
1The BIA also rejected Crespin’s alternative arguments that he feared
persecution on account of his political opinion, merited relief under the
Convention Against Torture, and was entitled to withholding of removal.
Of these arguments, the Crespins now pursue only their claim for with-
holding of removal. Because this argument appears only in one short para-
graph in the Crespins’ reply brief, we decline to address it. See A Helping
Hand, LLC v. Baltimore County, 515 F.3d 356, 369 (4th Cir. 2008).
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On April 9, 2009, the Crespins appealed to this Court. Four
days later, they filed a motion to reconsider with the BIA. The
BIA denied that motion on November 24, 2009, and in so
doing, provided additional justifications for the denial of the
Crespins’ asylum application. Specifically, the BIA opined
that Crespin had not demonstrated a nexus between his
asserted persecution and his proposed social group. It also
concluded that, because "the Salvadoran government has
focused law enforcement efforts on suppressing gang vio-
lence," the Crespins had failed to demonstrate that the govern-
ment was "unable or unwilling to protect them from MS-13."
Accordingly, the BIA reaffirmed its prior decision and denied
the Crespins’ motion to stay removal. The Crespins did not
petition for review of this order.
The Government then moved this Court to remand the
Crespins’ appeal of the original removal order to the BIA so
that the BIA could clarify the interaction between that order
and its order denying reconsideration.2 We denied the Gov-
ernment’s motion.
II.
We first address the parties’ preliminary arguments. The
Government, echoing the assertions made in its motion to
remand, urges us to remand or dismiss the Crespins’ petition
for lack of jurisdiction. In contrast, the Crespins contend that
we have jurisdiction to review the BIA’s removal order, but
only on the grounds set out in the original order. We reject
both arguments.
2The Government had previously filed a motion to remand to allow the
BIA to remedy the failure of its initial decision to "address the precise
social group that was the basis for the [IJ’s] grant of asylum." The Gov-
ernment subsequently claimed, however, that the BIA’s order denying the
Crespins’ motion for reconsideration rectified the error, which led the
Government to file this revised motion.
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A.
The INA grants aliens the right to petition for judicial
review of a "final order of removal," 8 U.S.C. § 1252(a)(1),
which the statute defines in relevant part as "a determination
by the [BIA] affirming" an order "concluding that the alien is
deportable or ordering deportation." §§ 1101(a)(47)(B)(i),
(A). Should a petitioner also seek review of a motion to
reconsider, that review "shall be consolidated with the review
of the order" itself. § 1252(b)(6). In cases involving a removal
order and a motion to reconsider, the statute thus "contem-
plates two petitions for review and directs the courts to con-
solidate the matters." Stone v. INS, 514 U.S. 386, 394 (1995).
Of course, only one petition for review faces us here. The
Government maintains that we lack jurisdiction over that peti-
tion because the removal order before us no longer represents
the BIA’s "final statement on the issues." Respondent’s Br.
35. It therefore urges us to dismiss the petition as moot, or in
the alternative, to remand to the BIA to "clear up any jurisdic-
tional difficulties." Respondent’s Br. 30.
These arguments fail. The Supreme Court has emphasized
that "deportation orders are to be reviewed in a timely fashion
after issuance, irrespective of the later filing of a motion to
. . . reconsider." Stone, 514 U.S. at 394. Congress has pro-
vided for judicial review over any final removal order,
whether or not the BIA later supplements its reasoning in a
separate order. See id. at 405 (noting that the INA "reflects
Congress’ understanding that a deportation order is final, and
reviewable, when issued" and that such an order’s "finality is
not affected by the subsequent filing of a motion to recon-
sider"). This is particularly true because the BIA denied the
Crespins’ motion to reconsider, leaving the original removal
order wholly intact. See Plasencia-Ayala v. Mukasey, 516
F.3d 738, 745 (9th Cir. 2008), overruled on other grounds by
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009)
(observing that "courts have uniformly found that the denial
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of a motion to reconsider . . . does not affect federal court
jurisdiction over the underlying removal order"). We there-
fore possess jurisdiction to review that removal order.
We similarly discern no reason to remand the case to the
BIA before considering the challenged removal order. In
other cases, where we could not "review the BIA’s decision
because the BIA ha[d] given us nothing to review," we have
remanded to the BIA, explaining that such remands often
become necessary "when the issue at hand has not been
addressed on all sides by the BIA." Li Fang Lin v. Mukasey,
517 F.3d 685, 693-94, 694 n.12 (4th Cir. 2008). Such is not
the situation here; rather, the BIA has explained, in detail, its
reasons for ordering the Crespins’ removal. A simple remand
for clarification would do little to illuminate the BIA’s well-
developed position. It would, however, further delay the ulti-
mate resolution of the Crespins’ asylum application, running
afoul of the Supreme Court’s instruction that "Congress’ fun-
damental purpose" in creating the INA’s review provisions
was "to abbreviate the process of judicial review." Stone, 514
U.S. at 399 (internal quotations omitted). More than twenty
months have already elapsed since the BIA issued its removal
order; we decline to delay the proceedings further by ordering
a pointless remand.
B.
The Crespins, for their part, argue that we must limit our
review to the reasoning articulated by the BIA in the removal
order itself. They point out that "a reviewing court . . . must
judge the propriety of [agency] action solely by the grounds
invoked by the agency." SEC v. Chenery Corp., 332 U.S. 194,
196 (1947). According to the Crespins, this principle fore-
closes us from assessing the rationales supplied by the BIA in
its subsequent order, which the Crespins did not appeal.
We acknowledge, of course, that the BIA’s order denying
reconsideration is not before us. See Stone, 514 U.S. at 395
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(explaining that a reconsideration motion requires a "separate
petition[ ] for review"). We also recognize that if the BIA acts
on improper grounds, we are "powerless to affirm . . . by sub-
stituting what [we] consider[ ] to be a more adequate or
proper basis." Chenery, 332 U.S. at 196; see also INS v. Ven-
tura, 537 U.S. 12, 16-18 (2002) (per curiam) (applying Chen-
ery to asylum determinations).
That said, a court must not stretch the Chenery principle so
far that it becomes "an idle and useless formality." NLRB v.
Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969). Here, to
turn a blind eye to the BIA’s denial of reconsideration would
constitute just such an "idle and useless" exercise. See de
Jesus Melendez v. Gonzales, 503 F.3d 1019, 1023 n.1 (9th
Cir. 2007) (addressing the rationale of the BIA’s denial of
reconsideration even though the denial itself was not before
the panel); Alam v. Gonzales, 438 F.3d 184, 186-88 (2d Cir.
2006) (same). Indeed, limiting our review to the reasoning
contained in the original removal order would undoubtedly
prompt the BIA, on remand, to reinstitute the order based on
the very reasons it set forth in its denial of reconsideration.
See id. Ignoring that reasoning accomplishes nothing, because
"the result of a remand to the Board," which is the only relief
available to the Crespins, "is a foregone conclusion." Hussain
v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007). Our assess-
ment of the BIA’s additional reasoning eliminates the need
for such a wasteful remand. And because we analyze only the
reasoning already articulated by the BIA,3 and thus need not
"guess at what [the] agency meant to say," Nken v. Holder,
585 F.3d 818, 822 (4th Cir. 2009), our decision in no way
"propel[s] the court into the domain . . . [of] the administra-
tive agency." Chenery, 332 U.S. at 196.
3The INA’s requirement that we "decide the petition only on the admin-
istrative record on which the order of removal is based" is not to the con-
trary. 8 U.S.C. § 1252(b)(4)(A). We can and do evaluate the reasoning
contained in the BIA’s denial of reconsideration without looking to evi-
dence outside the original administrative record.
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Accordingly, we turn to the merits of the removal order,
taking into account the reasons for that removal laid out in
both the original order and the denial of reconsideration.
III.
The INA permits the Attorney General to grant asylum to
any refugee who applies. 8 U.S.C. § 1158(b)(1)(A). To qual-
ify as a refugee, an asylum seeker must demonstrate that he
is "unable or unwilling to return to" his native country
because of "persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a par-
ticular social group, or political opinion." § 1101(a)(42)(A).
We may vacate a denial of asylum only if it is "manifestly
contrary to law." 8 U.S.C. § 1252(b)(4)(C). Although we
accept factual findings unless "any reasonable adjudicator
would be compelled to conclude to the contrary,"
§ 1252(b)(4)(B), we review the BIA’s legal conclusions de
novo. See Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir.
2010). Thus, "we afford substantial—but not unlimited—
deference to the Board’s decision." Essohou v. Gonzales, 471
F.3d 518, 520 (4th Cir. 2006).
Here, the BIA articulated four reasons for vacating the IJ’s
grant of asylum, deciding that: (1) Crespin alleged member-
ship in no "particular social group"; (2) Crespin suffered only
harassment, not persecution; (3) Crespin’s membership in the
putative social group did not motivate his asserted persecu-
tion; and (4) the Salvadoran government was willing and able
to prevent Crespin’s mistreatment. We consider each of these
in turn.
A.
The INA does not expressly define the term "particular
social group," but we have recently considered its meaning.
See Lizama v. Holder, ___ F.3d ___, No. 09-2027 (4th Cir.
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2011).4 We there concluded that Chevron deference should be
accorded to the BIA’s long-standing interpretation of "partic-
ular social group" as "a group of persons all of whom share
a common, immutable characteristic," Matter of Acosta, 19 I.
& N. Dec. 211, 233 (BIA 1985), overruled on other grounds
by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987).
See Lizama,___ F.3d at ___. This "immutability" test, first
articulated in the BIA’s seminal Acosta case, requires that
group members share a characteristic that "the members of the
group either cannot change, or should not be required to
change because it is fundamental to their individual identities
or consciences." 19 I. & N. Dec. at 233.
The Crespins’ proposed group satisfies this test. Acosta
itself identifies "kinship ties" as paradigmatically immutable,
see id., and the BIA has since affirmed that family bonds are
innate and unchangeable. See In re C-A, 23 I. & N. Dec. 951,
959 (BIA 2006); In re H-, 21 I. & N. Dec. 337, 342 (BIA
1996) (accepting "clan membership" as a particular social
group because it was "inextricably linked to family ties").
Accordingly, every circuit to have considered the question has
held that family ties can provide a basis for asylum. See Al-
Ghorbani v. Holder, 585 F.3d 980, 995 (6th Cir. 2009); Ayele
v. Holder, 564 F.3d 862, 869 (7th Cir. 2009); Jie Lin v. Ash-
croft, 377 F.3d 1014, 1028 (9th Cir. 2004); Gebremichael v.
INS, 10 F.3d 28, 36 (1st Cir. 1993). We agree; the family pro-
vides "a prototypical example of a ‘particular social group.’"
Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986).
The BIA committed legal error by concluding to the con-
trary. That error flowed from the fact that, as the Government
concedes, the BIA’s removal order rejected a group different
4Although one previous panel did analyze the term and held that the
"family constitutes a particular social group," see Lopez-Soto v. Ashcroft,
383 F.3d 228, 235 (4th Cir. 2004) (internal quotation marks omitted), we
vacated its judgment when deciding to rehear the case en banc, and the
parties subsequently settled and dismissed the case.
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from that which the Crespins proposed. The BIA concluded
that "those who actively oppose gangs in El Salvador by
agreeing to be prosecutorial witnesses" does not constitute a
cognizable social group. But the Crespins did not so contend.
Rather, they maintained, and continue to maintain, that family
members of those witnesses constitute such a group. The BIA
later essentially admitted this error, acknowledging in its
denial of Crespin’s motion to reconsider that it does "not dis-
pute that family membership can give rise to membership in
a particular social group under certain circumstances." The
BIA nonetheless affirmed its original order, asserting that the
Crespins’ proposed social group was insufficiently "particu-
lar[ ]" because "anyone who testified against MS-13, as well
as all of their family members, would potentially be
included." Again the BIA inaccurately characterized the
Crespins’ proposed social group. Indeed, the Crespins’ pro-
posed group excludes persons who merely testify against MS-
13; the Crespins’ group instead encompasses only the rela-
tives of such witnesses, testifying against MS-13, who suffer
persecution on account of their family ties. The BIA never
explained why this group stretches beyond the bounds of par-
ticularity.
Moreover, the precedent on which the BIA relied requires
only that "the group have particular and well-defined bounda-
ries" such that it constitutes a "discrete class of persons." Mat-
ter of S-E-G-, 24 I. & N. Dec. 579, 582, 584 (BIA 2008). The
family unit –- centered here around the relationship between
an uncle and his nephew –- possesses boundaries that are at
least as "particular and well-defined" as other groups whose
members have qualified for asylum. See, e.g., Urbina-Mejia
v. Holder, 597 F.3d 360, 365-66 (6th Cir. 2010) (former gang
members); Tapiero de Orejuela v. Gonzales, 423 F.3d 666,
672 (7th Cir. 2005) ("the educated, landowning class of cattle
farmers"); Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994)
("Iranian women who advocate women’s rights or who
oppose Iranian customs relating to dress and behavior"),
superseded by statute on other grounds, Illegal Immigration
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Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009, as recognized in Rife v. Ash-
croft, 374 F.3d 606, 614 (8th Cir. 2004).
Finally, the BIA opined that the proposed group lacked the
requisite "social visibility" of a particular social group. This
was also error.5 Indeed, the BIA itself has previously stated
that "[s]ocial groups based on innate characteristics such as
. . . family relationship are generally easily recognizable and
understood by others to constitute social groups." In re C-A,
23 I. & N. Dec. at 959. In fact, we can conceive of few groups
more readily identifiable than the family. See Sanchez-
Trujillo, 801 F.2d at 1576. This holds particularly true for
Crespin’s family, given that Crespin and his uncle publicly
cooperated with the prosecution of their relative’s murder.
In sum, the BIA’s conclusion that Crespin failed to demon-
strate his membership in a "particular social group" was mani-
festly contrary to law.
B.
The INA further requires that an asylum seeker demon-
strate that his removal would subject him to a "well-founded
fear of persecution." 8 U.S.C. § 1101(a)(42)(A). To do so, an
asylum seeker must establish both a genuine subjective fear
of persecution and that "a reasonable person in like circum-
stances would fear persecution." Chen v. INS, 195 F.3d 198,
201-02 (4th Cir. 1999). Such a showing does not require that
an applicant prove it more likely than not that he will suffer
persecution, because "[o]ne can certainly have a well-founded
5We note that the Seventh Circuit has rejected the BIA’s "social visibil-
ity" requirement for cognizable social groups. See Ramos v. Holder, 589
F.3d 426 (7th Cir. 2009); Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009).
Because we hold that the family satisfies the BIA’s visibility criterion,
however, we need not decide whether that criterion comports with the
INA. See Lizama, ___ F.3d at ___ (declining to evaluate the reasonable-
ness of BIA’s visibility requirement).
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fear of an event happening when there is less than a 50%
chance of the occurrence taking place." INS v. Cardoza-
Fonseca, 480 U.S. 421, 431 (1987). Instead, an alien need
only show that his removal would create a "reasonable possi-
bility" –- as low as a ten percent chance—of persecution. Id.
at 440 (quoting INS v. Stevic, 467 U.S. 407, 425 (1984)).
Crespin made that showing here. As the IJ observed,
Crespin received two notes stating MS-13’s intent to kill him,
and one gang member declared the same to his face. The IJ
also credited Crespin’s evidence of gang violence in El Salva-
dor, which tended to show that MS-13 members often attack
their enemies’ families and that they have previously mur-
dered prosecutorial witnesses. Furthermore, the IJ noted that
"although the prosecution for [Crespin’s] cousin’s murder is
over for now, two gang members involved in the shooting are
still on the loose, including the shooter," creating a "reason-
able possibility that the gang members would seek" to attack
Crespin. The IJ thus concluded that, should Crespin return to
El Salvador, there was a reasonable possibility that MS-13
would "take steps to harm or kill" him.
On appeal, the BIA—although not disputing the sincerity
of Crespin’s subjective fear—rejected his fear of persecution
as objectively unreasonable. The BIA reasoned that Crespin
had suffered "mere threats and harassment" and had shown
only "[a] generalized fear of harm," neither of which it
thought amounted to a well-founded fear of persecution. This
conclusion contravenes our express holding that the "threat of
death" qualifies as persecution. Li v. Gonzales, 405 F.3d 171,
177 (4th Cir. 2005) (internal quotations omitted). Because
Crespin has received three such threats, he is "presumed to
have a well-founded fear of future persecution." Id. at 176.
Moreover, the parallel threats directed at Crespin’s aunt and
uncle strengthened the objective reasonableness of his fear.
See Baharon v. Holder, 588 F.3d 228, 232 (4th Cir. 2009)
(noting that "threats to one’s close relatives is an important
factor in deciding whether mistreatment sinks to the level of
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persecution"). The BIA thus erred in rejecting the IJ’s conclu-
sion that the unrebutted evidence of death threats against
Crespin and his family members, combined with MS-13’s
penchant for extracting vengeance against cooperating wit-
nesses, gave rise to a reasonable fear of future persecution.
The BIA’s observation that "the criminal activities of MS-
13 affect the population as a whole" is beside the point.6
Crespin complains not of a fear of the general "criminal activ-
ities" of MS-13, but of a series of targeted and persistent
threats directed at him and his family. Cf. Huaman-Cornelio
v. BIA, 979 F.2d 995, 1000 (4th Cir. 1992) (upholding rejec-
tion of asylum claim based on "general conditions of upheaval
and unrest").
Given the undisputed evidence of targeted death threats,
and that Crespin need only show a reasonable possibility—not
a likelihood—of future persecution, we hold that the BIA’s
conclusion that Crespin failed to demonstrate a well-founded
fear of future persecution was also manifestly contrary to law.
C.
In addition to imposing the above requirements, the INA
mandates that those who seek refugee status demonstrate that
they fear persecution "on account of" a protected ground. 8
U.S.C. § 1101(a)(42)(A). Persecution occurs "on account of"
a protected ground if that ground serves as "at least one cen-
tral reason for" the feared persecution. § 1158(b)(1)(B)(i).
6Nor does the fact that Crespin’s children remained unharmed in El Sal-
vador while he first visited the United States undermine the reasonable-
ness of Crespin’s own fear of persecution, for Crespin’s fear is premised
on threats directed at him personally. Moreover, the children escaped per-
secution for a mere two month period, hardly a time long enough to
engender confidence that Crespin can safely return to El Salvador. Cf. In
re A-E-M, 21 I. & N. Dec. 1157, 1160 (BIA 1998) (rejecting claim in part
because a relative safely remained in asylum seeker’s native country for
four years).
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Although Crespin need not show that his family ties provide
"the central reason or even a dominant central reason" for his
persecution, he must demonstrate that these ties are more than
"an ‘incidental, tangential, superficial, or subordinate’ reason"
for his persecution. Quinteros-Mendoza v. Holder, 556 F.3d
159, 164 (4th Cir. 2009) (quoting In re J-B-N-, 24 I. & N.
Dec. 208, 214 (BIA 2007)).
The IJ found that "[a]t least one central reason why the
gang members targeted [Crespin] was because of his uncle’s
cooperation with the Salvadoran government." The BIA dis-
agreed, deciding that "[t]he evidence does not indicate that
MS-13 targeted the respondents because they are related to
someone who testified." Instead, according to the BIA, MS-13
"appear[s] to have intimidated [Crespin] so he would not tes-
tify himself."
There may, or may not, be an evidentiary basis for the
BIA’s conclusion. What is clear is that the BIA based that
conclusion on its improper de novo review of the record.
Indeed, the BIA neglected even to mention the IJ’s considered
finding that Crespin’s relationship with his uncle centrally
motivated his persecution; instead, it simply opined on the
evidence anew. In doing so, the BIA violated the regulatory
directive requiring it to review the IJ’s factual findings only
for clear error. See 8 C.F.R. § 1003.1(d)(3)(i).
The Government concedes that the BIA reviewed this ques-
tion de novo. It maintains, however, that de novo review was
proper because the issue under review was "whether the
undisputed facts establish the necessary nexus." Respondent’s
Br. 52. The Government is wrong. The BIA disagreed with
the IJ not because it rejected the IJ’s legal interpretation of
undisputed facts; rather, the BIA took a contrary view of the
gang members’ motivations—a classic factual question.7 See
7The Government rightly observes that the statements accompanying
the promulgation of 8 C.F.R. § 1003.1 explain that the review of "whether
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Singh v. Mukasey, 543 F.3d 1, 4 (1st Cir. 2008); Thuri v. Ash-
croft, 380 F.3d 788, 791 (5th Cir. 2004) (per curiam); Black’s
Law Dictionary 669 (9th ed. 2009) (defining "[f]acts" to "in-
clude not just tangible things, actual occurrences, and rela-
tionships, but also states of mind such as intentions and
opinions"). Accordingly, the IJ’s nexus determination quali-
fied as a finding of fact entitled to deference. See Massis v.
Mukasey, 549 F.3d 631, 636 n.6 (4th Cir. 2008) (restricting
the BIA’s "determination of what happened to the individual"
to clear error review (internal quotation omitted)).
Because the BIA failed to review the IJ’s nexus finding for
clear error and instead "simply substituted its own judgment
for that of the IJ," Kabba v. Mukasey, 530 F.3d 1239, 1246
(10th Cir. 2008), we must remand for consideration of this
issue under the correct standard. See id. at 1249; Padmore v.
Holder, 609 F.3d 62, 67 (2d Cir. 2010).
D.
Finally, "persecution" under the INA encompasses harm
inflicted by either a government or an entity that the govern-
ment cannot or will not control. See, e.g., Burbiene v. Holder,
568 F.3d 251, 255 (1st Cir. 2009); Santos-Lemus v. Mukasey,
542 F.3d 738, 742 (9th Cir. 2008); Menjivar v. Gonzales, 416
F.3d 918, 921 (8th Cir. 2005); Bace v. Ashcroft, 352 F.3d
1133, 1138-39 (7th Cir. 2004); Acosta, 19 I. & N. at 222.8 The
the harm was inflicted ‘on account of’ a protected ground . . . will not be
limited by the ‘clearly erroneous’ standard." Board of Immigration
Appeals: Procedural Reforms to Improve Case Management, 67 Fed.Reg.
54,878, 54,890 (Aug. 26, 2002). Those same statements, however, provide
that the BIA may not review de novo the factual question of "‘what hap-
pened’ to the individual." Id. Here, the IJ’s nexus finding centered on its
factual assessment of what happened to Crespin; the BIA must therefore
review that finding for clear error.
8In the course of rejecting a draft resister’s asylum claim, we previously
noted that "[m]isconduct by renegade military units" did not amount to
cognizable persecution because it was not "connected with official govern-
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IJ, although not expressly acknowledging this requirement,
identified a litany of reasons as to why attempts by the Salva-
doran government to control gang violence have proved
futile. Rather than review those findings for clear error, how-
ever, the BIA concluded—without elaboration—that a State
Department report "demonstrates that the Salvadoran govern-
ment has focused law enforcement efforts on suppressing
gang violence." On that basis alone, the BIA found that the
Crespins "have not shown that the government would be
unable or unwilling to protect them from MS-13."
This cursory conclusion suffers from the same defect that
plagued the BIA’s nexus finding. "Whether a government is
‘unable or unwilling to control’ private actors . . . is a factual
question that must be resolved based on the record in each
case." Menjivar, 416 F.3d at 921; see also Kaplun v. Att’y
Gen. of United States, 602 F.3d 260, 270 (3d Cir. 2010) (not-
ing that "a finding of fact by an IJ includes expressions of
likelihood based on testimony . . . and/or documentary evi-
dence"). Accordingly, the BIA should have reviewed the IJ’s
finding for clear error.
IV.
For the foregoing reasons, we grant the petition for review
and remand the case to the BIA with instructions that it
review for clear error the IJ’s findings that Crespin’s persecu-
mental policy." M.A. v. INS, 899 F.2d 304, 312 (4th Cir. 1990) (en banc).
We thus refused to "inquir[e] into the government’s ‘control’ over forces
within its borders." Id. at 314. There, however, we relied on the unique
status of draft evasion in international law, see id. at 312, and declined to
"formulate general legal prescriptions for . . . claims of asylum" outside
of that context. Id. at 314. Moreover, the regulations make clear that the
INA encompasses persecution not sponsored by government. See 8 C.F.R.
§ 208.13(b)(3)(i) (requiring applicant to show unreasonability of internal
relocation "unless the persecution is by a government or is government-
sponsored").
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tion was "on account of" his family ties and that the Salvado-
ran government is unable or unwilling to control MS-13’s
activities.
PETITION FOR REVIEW GRANTED;
REMANDED FOR FURTHER PROCEEDINGS
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