Iveth Stephani Olmos Borja v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IVETH STEPHANI OLMOS BORJA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-72816
Agency No. A089-679-716
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 5, 2013
San Francisco, California
Before: TASHIMA, W. FLETCHER, and NGUYEN, Circuit Judges.
Iveth Stephani Olmos Borja, a native and citizen of El Salvador, petitions for
review of a decision of the Board of Immigration Appeals (“BIA”) dismissing her
appeal from an immigration judge’s decision denying her application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
FILED
DEC 26 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings, Hu v. Holder, 652 F.3d 1011, 1016 (9th
Cir. 2011), and we grant the petition.
An alien who qualifies as a refugee may be granted asylum. 8 U.S.C.
§ 1158(b)(1). A refugee is an alien who is unable to return to her home country
“because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group or political opinion.”
Ding v. Ashcroft, 387 F.3d 1131, 1136 (9th Cir. 2004) (quoting 8 U.S.C.
§ 1101(a)(42)(A)). The agency denied Olmos Borja’s asylum application because
it found that the treatment she received at the hands of the 18th Street Gang was
not “on account of” one of these protected grounds.
Olmos Borja claims that she suffered persecution on account of, among
other things, her membership in the particular social group of her family. The BIA
acknowledged that family membership could be “ties [that] provide a sufficient
basis for granting” asylum or withholding of removal, but found that Olmos Borja
was unable to “distinguish her situation from that of her other family members”
who remained in El Salvador after she fled, specifically her mother and father. The
BIA therefore concluded that the gang’s actions did not have a sufficient nexus
with Olmos Borja’s membership in her family group.
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The agency’s nexus determination is not supported by substantial evidence.
Olmos Borja need not show that another family member was persecuted on
account of a protected ground in order to establish her eligibility for asylum.
Rather, she need only show that she herself was persecuted or had a well-founded
fear of persecution because of her family membership. See, e.g., Kebede v.
Ashcroft, 366 F.3d 808, 812 (9th Cir. 2004) (holding that a petitioner was eligible
for asylum where soldiers’ statements while attacking petitioner showed a link
between their assault and her family’s authority and position in the previous
government).
Furthermore, unless there is evidence that the family was similarly situated
or subject to similar risk, the continued presence of family members in the country
of origin does not necessarily rebut an applicant’s claims. See Kumar v. Gonzales,
444 F.3d 1043, 1055 (9th Cir. 2006) (finding it irrelevant that petitioner’s parents
were not harmed after petitioner left India, where they were not “similarly
situated”). Olmos Borja’s mother was not similarly situated to Olmos Borja, and
her father died of natural causes in 2008, approximately 15 months after Olmos
Borja left El Salvador.
The evidence compels a conclusion that Olmos Borja both suffered past
persecution and has a well-founded fear of future persecution by the gang, and that
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her membership in a particular social group—a family who actively opposes the
gang because its members killed Olmos Borja’s sister—was at least one central
reason for the gang members’ actions. See Parussimova v. Mukasey, 555 F.3d
734, 740 (9th Cir. 2009) (holding that, following the REAL ID Act’s amendments
to the Immigration and Nationality Act, an asylum applicant must establish that a
protected ground was or will be at least one central reason for her persecution).
Accordingly, we find Olmos Borja eligible for asylum. Because we find that
Olmos Borja has established her eligibility for asylum, we need not reach her
withholding of removal and CAT claims. We therefore grant the petition as to
Olmos Borja’s asylum claim, and remand for the Attorney General to exercise his
discretion to grant asylum.
Petition GRANTED and REMANDED.
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Olmos Borja v. Holder, No. 09-72816
TASHIMA, Circuit Judge, dissenting:
Under the REAL ID Act, we cannot reverse the factual findings of the BIA
“unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B) (codifying the holding of INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992)). The majority concludes that the evidence
compels a conclusion that Olmos Borja’s family association was at least one
central reason for her persecution by the 18th Street Gang and that she has a well-
founded fear of persecution on account of her family association if she returns to
El Salvador. Although the record may support such a conclusion, it does not
compel it. Thus, the majority’s finding that Olmos Borja is eligible for asylum
fails to surmount the high bar of the REAL ID Act. I therefore respectfully
dissent.
I.
The BIA concluded that Olmos Borja was not persecuted on account of her
membership in the social group of her family. I cannot say that the evidence in the
record would compel any reasonable adjudicator to reach a conclusion contrary to
the one reached by the BIA.
Only two pieces of evidence support the majority’s conclusion that Olmos
Borja was targeted because of her family association. First, in 2005, an
FILED
DEC 26 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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unidentified individual called Olmos Borja on the cell phone that had belonged to
her sister Lisseth and said, “we are going to kill you like we killed that bitch your
sister was.” But it is less than clear why the caller threatened Olmos Borja. It
could have been because she was related to Lisseth or for a different reason – such
as because she was a potential witness against the gang – and her sister’s death was
mentioned only to intimidate her.
Second, in November 2006, gang members threatened Olmos Borja because
they were angry with her father. On that occasion, a gang member said to Olmos
Borja: “Your father is not sitting well with us. He is looking at us like shit; he is
looking down at us and that bothers me and you are going to foot the bill because
we are the law here.” Admittedly, this evidence does support the inference that
Olmos Borja was threatened because of her relationship with her father. But this
evidence must be viewed through the lens of the record as a whole. See Elias-
Zacarias, 502 U.S. at 481. The record shows that Olmos Borja was personally
targeted by gang members for several years, beginning before Lisseth was killed
and her family became actively involved in the investigation of the murder. In that
time, there is only a single incident during which the threats were connected to her
relationship with her family. This single comment is, I submit, insufficient to
compel the conclusion that Olmos Borja was targeted on account of her family
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association, given that other portions of the record suggest that gang members had
different reasons for targeting her.
Olmos Borja explained that Detective Escobar advised her to leave the
country “because they might think that I knew things and might be a witness
against them . . . .” Petitioner testified that she shared the Detective’s
apprehension, that “I really am afraid that they’re going to harm me because of
what they think.”
This theory of why Olmos Borja was targeted – because she was a potential
witness against the gang – is at least as plausible as the theory advanced by the
majority – family membership. The record suggests that gang members did indeed
believe Olmos Borja had information regarding Lisseth’s death. A man associated
with the gang questioned her at Lisseth’s wake regarding what she knew about her
sister’s death and asked her “what is it that you know, who killed your sister, tell
me . . . .”
Thus, substantial evidence supports the BIA’s conclusion that Olmos Borja
was primarily targeted because she was seen as a potential witness rather than on
account of her family association and we cannot substitute our own contrary
conclusion. See Elias-Zacarias, 502 U.S. at 481. Given the paucity of evidence
on the gang members’ motivation for their threats, I conclude that we cannot
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disturb the BIA’s conclusion that Olmos Borja’s family association was not a
central reason for her persecution.
II.
I also part ways with the majority regarding whether Olmos Borja has a
well-founded fear of persecution on account of membership in the social group of
her family if she were to return to El Salvador. Although the BIA accepted that
Olmos Borja’s fear was genuine, it determined that the fear was not objectively
well-founded because neither of her parents experienced harm rising to the level of
persecution after her departure, and she failed to distinguish her situation from
theirs. Here, again, the evidence does not compel a contrary conclusion.
Since Olmos Borja left El Salvador, her mother has remained in the country
unharmed. Although her father died approximately 15 months after Olmos Borja
left the country, he too did not experience persecution during that time. Under our
precedent, their continued safety is itself substantial evidence that Olmos Borja
does not face a well-founded fear of persecution on account of her membership in
the social group of her family.1 See Santos-Lemus v. Mukasey, 542 F.3d 738,
1 The majority’s reliance on cases dealing with claims for asylum based
on grounds other than family association incorrectly downplays the significance of
Olmos Borja’s family’s safety in this case, where her claim for asylum is based on
membership in the social group of her family.
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743–44 (9th Cir. 2008) (“[W]here Santos-Lemus’s claim of persecution is based on
his membership in the ‘particular social group’ of his ‘family,’ the fact that a
family member has remained unharmed since he left El Salvador is ‘substantial
evidence’ supporting the Board’s finding that Santos-Lemus lacks a well-founded
fear of future persecution based on family membership.”).
The majority discounts the relevance of Olmos Borja’s mother’s continued
safety by concluding that Olmos Borja is not similarly situated to her mother. I do
not find any evidence in the record that compels the majority’s conclusion. Olmos
Borja attempts to distinguish her situation from that of her mother by asserting that
her mother now lives in a different town and has remained safe because she rarely
leaves the house. In fact, Olmos Borja lived for a time with her mother and
continued to receive threats and harassment from gang members. Thus, I cannot
say that location is such a compelling distinction between the two that it permits us
to reverse the BIA.
The other ways in which Olmos Borja’s situation may be different from that
of her mother are, I believe, irrelevant to Olmos Borja’s claim for asylum based on
her family membership. For example, Olmos Borja argues – and the majority
appears to accept – that her situation is distinguishable from that of her mother
because her mother never actively opposed the gang or participated in the
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investigation into Lisseth’s murder. While these distinctions may be relevant if
Olmos Borja were claiming asylum on a different protected ground, they are not
relevant to her claim based on family membership. In other words, substantial
evidence supports the BIA’s conclusion that Olmos Borja and her mother are
similarly situated to the extent that Olmos Borja seeks asylum as a member of the
social group of her family.
We have previously rejected an argument very similar to the one adopted by
the majority today. In Santos-Lemus, the petitioner, a young male, argued that his
mother’s continued safety did not negate his claim of a well-founded fear of
persecution on account of his family association because she was a female, while
the gang targeted young males like him. See 542 F.3d at 744. There, we held the
argument to be irrelevant to whether the petitioner was targeted on account of his
family membership, although it may have been relevant to a claim for asylum
based on other grounds. Id. I see no persuasive distinction between Santos-Lemus
and the present case on this issue. As in Santos-Lemus, Olmos Borja’s argument
that her mother was not similarly situated because she did not participate in the
investigation or oppose the gang is simply irrelevant to the question of whether
Olmos Borja was targeted on account of her family association; in fact, like in
Santos-Lemus, it suggests that she was targeted primarily for other reasons.
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Further, I find it perplexing why the majority discounts her father’s safety
merely because he only lived in El Salvador for 15 months after Olmos Borja left.
I see no reason why the evidence from the 15 months he continued to live in El
Salvador before his death could not have been considered by the BIA in assessing
Olmos Borja’s fear of persecution. There is no evidence to suggest that Olmos
Borja and her father were not similarly situated. Thus, her father’s safety after
Olmos Borja left El Salvador also provides substantial evidence to support the
BIA’s conclusion.2 See id. at 743–44.
III.
Although I do not believe the evidence compels the conclusion that Olmos
Borja is eligible for asylum based on her membership in the social group of her
family, she may be eligible for asylum on a different ground – her membership in
the social group of individuals who gang members believe to be potential
2 The majority has constructed a peculiar “particular social group,”
consisting of three members, only one of whom has faced persecution. The
majority defines the particular social group of which Olmos Borja is a member as
“a family who actively opposes the gang because its members killed Olmos Borja’s
sister.” Maj. Dispo. at 4. But this construct is at odds with the majority’s
conclusion that “Olmos Borja’s mother was not similarly situated to Olmos Borja,
and her father died of natural causes in 2008.” Maj. Dispo. at 3. What the
majority’s statements amount to is the contradictory assertion that Olmos Borja is
not similarly situated to the only other members of the defined group, which
consists only of herself and her parents.
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witnesses against them or individuals who participate in official investigations
against gang members. The BIA’s decision suggests that it may have concluded
that Olmos Borja was persecuted because gang members believed her to be a
witness to her sister’s murder or because she cooperated in the investigation of the
shooting. The BIA, however, did not consider whether Olmos Borja was eligible
for asylum on this ground.
When the BIA decided this case, it did not have the benefit of Henriquez-
Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc), in which we held that
“witnesses who testify against gang members” may be a cognizable social group.
Id. at 1083. We have since also recognized that government informants and
collaborators may be cognizable social groups. See Lopez-Simon v. Holder, 2013
WL 3929586, at *1 (9th Cir. July 31, 2013) (government informants) (unpublished
memorandum); Pinhas v. Holder, 2013 WL 3043149, at *1–*2 (9th Cir. June 19,
2013) (U.S. Drug Enforcement Agency collaborators) (unpublished
memorandum).
Henriquez-Rivas suggests that “the perception of the persecutors may matter
the most” in determining whether a social group is cognizable under the statute.
Henriquez-Rivas, 707 F.3d at 1089. Indeed, the “petitioner is persecuted precisely
because the persecutor recognizes the object of his persecution.” Id. Thus, if gang
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members perceived Olmos Borja to be a potential witness and targeted her for that
reason, she may belong to a cognizable social group comprised of perceived or
potential witnesses. In that case, “as far as [her] persecutor is concerned,” id. at
1090, Olmos Borja may be part of a discrete class of persons who are potential
witnesses against gang members. Similarly, if gang members targeted Olmos
Borja because she participated in the investigation against them, she may be
eligible for asylum as a member of a group similar to government informants or
DEA collaborators. See Lopez-Simon, 2013 WL 3929586, at *1; Pinhas , 2013
WL 3043149, at *1–*2.
Because the BIA has not yet considered whether Olmos Borja is eligible for
asylum based on her membership in the social group of individuals perceived to be
potential witnesses against gang members or individuals who participate in
investigations into gang members’ alleged crimes, I would remand for the BIA’s
consideration of this question in light of Henriquez-Rivas.
IV.
In sum, although the evidence may support the conclusion that Olmos Borja
was persecuted on account of her membership in the social group of her family or
faces a well-founded fear of persecution on this ground, I cannot agree with the
majority that the evidence compels such a conclusion. I would, however, remand
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to the BIA for its consideration, in light of Henriquez-Rivas, of whether Olmos
Borja is entitled to relief as a member of a different protected group.
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