No. 13-­--2141 R.R.D. v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-­‐‑2141
R.R.D.,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals
____________________
ARGUED MARCH 5, 2014 — DECIDED MARCH 19, 2014
____________________
Before EASTERBROOK, MANION, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. While R.R.D. was an investi-­‐‑
gator for Mexico’s Federal Agency of Investigation, he ar-­‐‑
rested hundreds of suspects and repeatedly testified against
drug traffickers. Drug organizations offered bribes to get
him out of their hair and, when he refused, tried to kill him
under their “plata o plomo” policy—“silver or lead,” collo-­‐‑
quially “money or bullets.” The Agency repeatedly trans-­‐‑

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2 No. 13-­‐‑2141
ferred him to places where it thought that he would be safer,
but testimony exposed him to public view and threats soon
resumed. He was wounded twice while on duty and eluded
capture several times. Once assassins shot at him, missed,
and wounded his father. His superiors recommended that
he quit for his own safety. He opened an office-­‐‑supply busi-­‐‑
ness and tried to conceal his former job, but when strangers
continued looking for him he sought asylum in the United
States. He contended that he had been persecuted as a mem-­‐‑
ber of the social group of honest police officers. An immigra-­‐‑
tion judge concluded that R.R.D. had been threatened re-­‐‑
peatedly and remained at risk but concluded that the drug
traffickers had targeted him because he hampered their or-­‐‑
ganizations, not because he was in the social group of honest
cops. The IJ denied the application for asylum, and the
Board of Immigration Appeals agreed. A motions panel al-­‐‑
lowed R.R.D. to proceed in court under these initials to
avoid what may be an ongoing risk to his safety.
Both the IJ and the BIA distinguished between risks to all
honest police and risks to effective honest police, such as
R.R.D.; they thought that only if criminal organizations tar-­‐‑
get all honest law-­‐‑enforcement officers would R.R.D. be enti-­‐‑
tled to asylum. It is far from clear to us that drawing such a
distinction is permissible under 8 U.S.C. §1101(a)(42)(A),
which defines the category of persons eligible for asylum as
those who seek refuge here “because of persecution or a
well-­‐‑founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or po-­‐‑
litical opinion”. “Effective honest police” (or “honest police
good enough to impose substantial costs on criminal organi-­‐‑
zations”) is a subset of all honest police, to be sure, but why
is that not a “social group,” if “honest police” is a social

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No. 13-­‐‑2141 3
group? Anyway, the statute makes eligible a person perse-­‐‑
cuted because of his membership in a protected category; it
does not require that all members of that category suffer the
same fate. The law calls for assessments of causation and
risk; that R.R.D. is at more risk than that faced by “honest po-­‐‑
lice” generally is a poor reason to disqualify him from asy-­‐‑
lum, if he otherwise is eligible.
The “otherwise” is a potentially important qualifier, be-­‐‑
cause persecution means adverse action by government;
criminal deeds by private persons come to be treated as per-­‐‑
secution, on the Board’s view, only when the government is
unwilling or unable to protect targets from private violence.
See Matter of Eusaph, 10 I&N Dec. 453, 454 (1964). See also
Hor v. Gonzales, 421 F.3d 497 (7th Cir. 2005); Bitsin v. Holder,
719 F.3d 619, 628–31 (7th Cir. 2013). Mexico has more than
400,000 police officers; the Board did not consider whether
they are willing and able to protect their current or former
colleagues. (R.R.D. contends that so many officers have tak-­‐‑
en the criminals’ silver that the force as a whole does not
protect honest police; the Board did not address this possi-­‐‑
bility.) Nor did the Board try to decide how much risk of
harm shows that a government is “unable” to protect its citi-­‐‑
zens. Given the Chenery doctrine (SEC v. Chenery Corp., 318
U.S. 80, 87 (1943)), we must proceed for the purpose of
R.R.D.’s petition as if private violence equates to official per-­‐‑
secution. Likewise we must treat “honest police” as a social
group, because the Board did not question its propriety. Cf.
Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) (en banc).
The Board cited Pavlyk v. Gonzales, 469 F.3d 1082 (7th Cir.
2006), for the proposition that honest law-­‐‑enforcement
agents targeted for their official work cannot use their risks

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4 No. 13-­‐‑2141
as a basis of asylum (technically, in Pavlyk, withholding of
removal). That is not, however, what Pavlyk holds. Pavlyk
was a fugitive from justice; Ukraine wanted him for solicit-­‐‑
ing bribes. Nor was he a member of the social group he de-­‐‑
fined, having quit his law-­‐‑enforcement job years before leav-­‐‑
ing Ukraine—and he did not claim to be at risk as a member
of the group of former law-­‐‑enforcement officers. 469 F.3d at
1088. We wrote in Pavlyk that “being a prosecutor” (Pavlyk’s
law-­‐‑enforcement role) is not an immutable characteristic, or
one that no government should be allowed to manipulate
(governments can choose whom to hire as prosecutors), so
Pavlyk’s proposed social group was inadequate and he was
left only with a contention that some criminals had a per-­‐‑
sonal vendetta against him.
Like Pavlyk, R.R.D. was no longer a member of his pro-­‐‑
posed social group by the time he sought asylum. But unlike
Pavlyk, R.R.D. asserts that he faces persecution as a member
of the social group of honest former law-­‐‑enforcement agents
in Mexico. Being a former agent is an immutable characteris-­‐‑
tic; nothing R.R.D. can do will erase his employment history.
See Escobar v. Holder, 657 F.3d 537 (7th Cir. 2011); Sepulveda v.
Gonzales, 464 F.3d 770, 772 (7th Cir. 2006); Matter of Fuentes,
19 I&N Dec. 658, 662 (1988).
All the BIA had to say about this possibility is: “Nor has
[R.R.D.] established a well-­‐‑founded fear of persecution on
account of his status as a former police officer where [he] did
not experience persecution after leaving the police force, the
record does not show persecution of former police officers,
and eight years have now passed since [R.R.D.] left Mexico.”
(Internal citation omitted.) The Board did not mention
R.R.D.’s testimony, which the IJ believed, that people came

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No. 13-­‐‑2141 5
looking for him in Mexico after he quit the police force. The
IJ also believed R.R.D.’s testimony that drug gangs use un-­‐‑
armed scouts to locate targets, and that R.R.D. reasonably
believed that these men were scouts for assassins. The IJ did
not believe the testimony of R.R.D.’s wife that these scouts
had R.R.D.’s picture, but that does not affect the nature of
the risk R.R.D. faced. He and his wife testified that unknown
men continued trying to find him even after he left Mexico.
Threats can imply a risk of future persecution if they are suf-­‐‑
ficiently menacing and credible. Escobar, 657 F.3d at 544.
And the record contains evidence that drug organiza-­‐‑
tions have tried to locate and kill other officers who resigned
from the police and left the country. Punishing people after
they are no longer threats is a rational way to achieve deter-­‐‑
rence; indeed, the United States itself does this. A perpetra-­‐‑
tor of securities fraud who leaves the financial profession,
and no longer poses a threat to investors, still faces criminal
prosecution, the better to deter other fraudsters. There’s
nothing implausible about R.R.D.’s testimony that drug or-­‐‑
ganizations in Mexico share this view of deterrence.
Yet although the record contains evidence that drug-­‐‑
dealing organizations in Mexico target former police officers
in general, and R.R.D. in particular, the Board did not men-­‐‑
tion it. That won’t do. The Board must analyze rather than
ignore material evidence. Escobar, 657 F.3d at 544. Perhaps
the Board thinks that the risk R.R.D. faces as a former officer
is too slight to satisfy the standard for asylum, but it did not
say this. Chenery requires us to return this matter to the
Board.
We have said enough to show why the order of removal
cannot stand without further proceedings. We also wonder

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6 No. 13-­‐‑2141
why the Department of Homeland Security wants to remove
R.R.D. and his family. The IJ found that R.R.D. was an hon-­‐‑
est and effective police officer in Mexico, willing to bring
criminals to justice at substantial risk to himself. He appears
to have led an exemplary life in the United States since en-­‐‑
tering (lawfully) and applying for asylum. He appears to be
someone who should be hired and put to work by the De-­‐‑
partment of Homeland Security itself, rather than sent pack-­‐‑
ing. We do not supervise the exercise of prosecutorial discre-­‐‑
tion, but those who do have that power should review
R.R.D.’s situation before renewing any effort to remove him.
The petition is granted, the order of removal is vacated,
and the case is remanded to the Board of Immigration Ap-­‐‑
peals for proceedings consistent with this opinion.

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