Victor E. Sepulveda v. Alberto R. Gonzales

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4035
V ICTOR E. S EPULVEDA , et al.,
Petitioners,
v.
A LBERTO R. G ONZALES ,
Respondent.
____________
On Petition to Review an Order of the
Board of Immigration Appeals.
Nos. A95 399 058, -070, -154
____________
A RGUED A UGUST 9, 2006—D ECIDED O CTOBER 2, 2006
____________
Before P OSNER , C OFFEY , and E ASTERBROOK , Circuit Judges.
P OSNER , Circuit Judge. Victor Sepulveda is a native of
Colombia and worked in its Attorney General’s Office,
where he had access to confidential information concerning
investigations of the insurgents who plague that nation. The
information included the names of employees of the Office
assigned to the investigations, their aliases, and the names
and locations of witnesses whom the Office guards. Between
1996 and 2001, according to Sepulveda’s testimony, 100 AG

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2 No. 05-4035
personnel were killed by insurgents and another 36 kid-
napped by them.
Joined by his wife and daughter, Sepulveda sought
asylum in the United States on the ground that he faces a
threat of being persecuted as a former employee of the
Attorney General’s Office (he does not plan to return to the
Office if he is sent back to Colombia). The immigration
judge rejected the asylum claim mainly on the ground that
persecution on account of being an employee of the Attor-
ney General’s Office is not a ground for asylum, and the
Board of Immigration Appeals summarily affirmed.
To qualify for asylum, a person must prove that he has
been persecuted (or fears persecution) on one or more of the
grounds listed in 8 U.S.C. § 1101(a)(42)(A). One of these
grounds is “membership in a social group.” The Board of
Immigration Appeals has defined a “social group” as “a
group of persons all of whom share a common, immutable
characteristic.” In re Acosta, 19 I. & N. Dec. 211, 233 (BIA
1985); see Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672
(7th Cir. 2005); Lwin v. INS, 144 F.3d 505, 511-12 (7th Cir.
1998). An immutable characteristic, as defined by the Board,
need not be an innate characteristic like race or sex (setting
aside the possibility of sex-change operations); it just has to
be something that can’t be changed (or is so fundamental,
equivalent to a person’s religion, that he shouldn’t be forced
to change it, but that is not an issue here); and thus it
includes a “shared past experience,” In re Acosta, supra, 19
I. & N. Dec. at 233, since the past cannot be changed. James
C. Hathaway, The Law of Refugee Status 161 (1991).
The word “social” is obviously not intended to confine the
category to bridge clubs and the like, but rather to distin-
guish groups whose members are targets of persecution
because of their group membership from racial, religious,

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No. 05-4035 3
and other groups that are separately designated in the
asylum statute. Thus, among the groups that have been
recognized as qualifying under the standard of the Acosta
case are the educated, landowning class of cattle farmers
targeted by Colombian rebels, Tapiero de Orejuela v. Gonzales,
supra, 423 F.3d at 672; Christian women in Iran who oppose
the Islamic dress code for women, Yadegar-Sargis v. INS, 297
F.3d 596, 603 (7th Cir. 2002); parents of Burmese student
dissidents, Lwin v. INS, supra, 144 F.3d at 512; and children
who escaped after being enslaved from Ugandan guerillas
who had enslaved them, Lukwago v. Ashcroft, 329 F.3d 157,
171, 172 (3d Cir. 2003); but not Iranians who refused as
individuals to serve in the Revolutionary Guards and instead
left Iran to study in the United States, Najafi v. INS, 104 F.3d
943, 947 (7th Cir. 1997). Unsurprisingly—since only denials
of asylum, not grants, are judicially reviewable—all but
Lwin are cases in which the Board of Immigration Appeals
thought that the petitioner was not a member of a social
group. (In Lwin the immigration judge and the Board
overlooked the issue.) The courts granted the petitions
believing that the Board had departed from the rule it had
laid down in Acosta. Obviously administrative agencies can
change their minds. But they are required to give reasons
for doing so. Rust v. Sullivan, 500 U.S. 173, 186-87 (1991);
Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins.
Co., 463 U.S. 29, 42 (1983); Davila-Bardales v. INS, 27 F.3d 1,
5 (1st Cir. 1994). In the cases we’ve cited—as in
this case—the Board had failed to explain how their rejec-
tion of the claimed social group squared with the test the
Board had adopted in Acosta.
The cases help to clarify a definition (“shared past
experience”) that the Board has never taken literally.
Everyone shares the experience of having been born, but
no one would think that all human beings (plus all living

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4 No. 05-4035
things produced by parturition rather than by mitosis)
constitute a single social group for purposes of asylum law.
A social group has to have sufficient homogeneity to be a
plausible target for persecution. But under Acosta this is not
a demanding requirement, and is easily satisfied by a group
of former employees of a particular institution. See, e.g.,
Cruz-Navarro v. INS, 232 F.3d 1024, 1028-29 (9th Cir. 2000);
In re Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988).
The immigration judge missed this point because he
misunderstood Sepulveda’s claim. He said that Sepulveda
“has failed to demonstrate that this particular identifying
characteristic (his employment with the Attorney General’s
Office) is immutable. To the contrary, by his own admission,
he resigned from the Attorney General’s Office after
arriving in the United States.” The social group to which
Sepulveda belongs consists of former, not present, employ-
ees of the Attorney General’s Office. From that group he
cannot resign.
The judge did say that Sepulveda does not have a reason-
able fear of being persecuted if he returns to Colombia, but
he did not explain this conclusion. We do not know whether
former members of the Office who have the kind of infor-
mation that Sepulveda is carrying around in his head would
be targets of the insurgents. They might be, because it is
information that the insurgents would very much like to
have. Nor do we know how large the Office is and therefore
the significance of the fact that in a five-year period 136 of
its employees were murdered or kidnapped; those moreover
were current employees of the Office; we do not know how
many former employees, if any, have been victimized. As
we said in Ahmed v. Ashcroft, 348 F.3d 611, 619 (7th Cir.
2003), a claim for asylum such as Sepulveda’s “must also be
examined to determine whether the danger flows from an
ongoing violent struggle affecting the population in a

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No. 05-4035 5
relatively undifferentiated way or if danger exists on
account of a protected ground; only the latter will suffice
under the statute. [The petitioner] failed to offer objective
support for his more speculative assertions. Moreover, the
evidence did not compel the BIA to find that former mem-
bers of the security and police forces in Algeria are targeted
in a manner that is distinct from the risks borne by other
segments of Algerian society.” Nor do we know whether the
government is unwilling or incapable of protecting persons
in Sepulveda’s position from insurgents.
These are matters for exploration in further proceedings
before the immigration judge. The petition for review is
granted and the order of the Board of Immigration Appeals
vacated.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-2-06

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