17‐3903‐ag Hernandez‐Chacon v. Barr BIA Tsankov, IJ A 206 803 023
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2019
(Argued: September 10, 2019 Decided: January 23, 2020)
Docket No. 17‐3903‐ag
ROSARIO DEL CARMEN HERNANDEZ‐CHACON,
Petitioner,
v.
WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,
Respondent.
Before: WESLEY, CHIN, and BIANCO, Circuit Judges.
Petition for review of a decision of the Board of Immigration
Appeals dismissing petitionerʹs appeal from an immigration judgeʹs denial of her
application for asylum. Petitioner contends that she is entitled to asylum because if she is returned to El Salvador, she will be persecuted on account of her
membership in a particular social group ‐‐ Salvadoran women who have resisted
the sexual advances of a gang member ‐‐ and political opinion ‐‐ resistance to the
norm of female subordination to male dominance that pervades El Salvador. We
agree that petitioner failed to establish her asylum claim based on membership in
a particular social group, but we grant the petition for review with respect to her
political opinion claim and remand to the Board of Immigration Appeals for
further proceedings.
Petition GRANTED and case REMANDED.
HEATHER YVONNE AXFORD, Central American Legal Assistance, Brooklyn, New York, for Petitioner.
CARMEL A. MORGAN, Trial Attorney (Shelley R. Goad, Assistant Director, Office of Immigration Litigation, on the brief), for Joseph H. Hunt, Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.
‐2‐ CHIN, Circuit Judge :
Petitioner Rosario Del Carmen Hernandez‐Chacon (ʺHernandez‐
Chaconʺ), a citizen of El Salvador, seeks review of a decision of the Board of
Immigration Appeals (the ʺBIAʺ) dismissing her appeal from a decision of an
immigration judge (the ʺIJʺ) granting her protection under the Convention
Against Torture (ʺCATʺ) but denying her application for asylum. Although she
has been granted CAT relief, Hernandez‐Chacon continues to pursue her asylum
claim because asylum would provide her with broader relief, including
permanent residence and a path to citizenship. See 8 U.S.C. § 1159.
While in El Salvador, Hernandez‐Chacon was attacked twice by
members of a gang. The first attack involved a man who attempted to rape her
in her home. The second attack involved the same man, along with two other
men, who attempted to rape her while she was walking with her daughters.
Hernandez‐Chacon contends that she is entitled to asylum because if she is
returned to El Salvador she will be persecuted based on her membership in a
particular social group ‐‐ Salvadoran women who have resisted the sexual
advances of a gang member ‐‐ and political opinion ‐‐ resistance to the norm of
‐3‐ female subordination to male dominance that pervades El Salvador. The agency
rejected both claims for asylum.
While we agree that Hernandez‐Chacon failed to establish her
asylum claim based on membership in a particular social group, we conclude
that the agency did not adequately consider her political opinion claim.
Accordingly, we grant the petition for review with respect to her political
opinion claim and remand for further proceedings.
STATEMENT OF THE CASE
A. The Facts1
In 2013, Hernandez‐Chacon, who was then twenty‐nine years old,
was living with her two daughters, who were three and twelve years old, in
Chalatenango, El Salvador. Her ʺpartner,ʺ Oscar Valdez, was not present, as he
was living and working in the United States.2 One night in late August or early
1 As the BIA did not disturb the IJʹs finding that Hernandez‐Chacon was credible, ʺwe treat the events [s]he experienced in the past as undisputed facts.ʺ Castro v. Holder, 597 F.3d 93, 99 (2d Cir. 2010) (quoting Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir. 2007)). 2 The partner,Valdez, was the father of Hernandez‐Chaconʹs younger daughter. He had relocated to the United States in approximately 2012 ʺto work to better supportʺ Hernandez‐Chacon, their daughter, and his stepdaughter. He and Hernandez‐Chacon were married in 2016. Cert. Adm. Rec. at 269. ‐4‐ September, while Hernandez‐Chacon and her daughters were home alone, a
man whom she did not know entered an open hallway of the house, where she
was washing dishes. He was drunk and said he wanted to have sex with her.
When she told him no, he grabbed her and tried to force himself on her. She
managed to escape and ran to an interior room, locking herself inside. He
eventually left. As Hernandez‐Chacon would later testify, she said ʺnoʺ to the
man even though she knew that ʺresisting his advances would put [her] in
danger.ʺ Cert. Adm. Rec. at 193. She resisted, she explained, ʺbecause I have
every right to.ʺ Id. She did not report the attack to the police because she did not
believe the police would do anything.
Three days later, Hernandez‐Chacon was attacked by the man again.
She was walking with her two daughters when three men wearing masks
suddenly came out of a nearby cemetery. One of them said to her that ʺsince
[she] didnʹt want to do this with him in a good way, it was going to happen in a
bad way.ʺ Id. at 186. She recognized his voice as that of the man who had
attacked her a few days earlier. Another of the men had a tattoo on his arm, the
symbol of the Mara Salvatrucha (ʺMSʺ) gang. They grabbed her and pulled her
into the cemetery, leaving her daughters on the street. As the men ʺstarted to
‐5‐ take [her] by force,ʺ she began to scream. Id. at 187. She could hear her older
daughter screaming as well. As Hernandez‐Chacon continued to shout and
resist, they spit on her and beat her with a piece of metal. She lost consciousness.
She eventually woke up in a clinic; three people had interceded in response to
her daughterʹs cries for help, and had taken her to the clinic. Hernandez‐Chacon
was treated for a broken collarbone and received pain medication. She was
eventually transferred by ambulance to a hospital. A medical certification shows
that Hernandez‐Chacon was treated at the hospital on September 2, 2013, for a
fracture of the right clavicle.
When Hernandez‐Chacon returned home from the hospital, she
found a note under her door, from her attackers, warning that if she went to the
police, ʺthey were going to kidnap her [daughter] and that they were going to
rape her and kill her and pull out her tongue.ʺ Id. at 190. Again, she did not go
to the police because she believed the police would not help her. After the
attack, she did not leave her house very often, and never alone, as she was afraid
the gang members ʺwould do something to me and my daughters.ʺ Id. at 191‐92.
After the attacks, Hernandez‐Chacon and her partner spoke by
telephone and they agreed that she would leave El Salvador and join him in the
‐6‐ United States as soon as they were able to put together sufficient resources for
her to join him. In May 2014, Hernandez‐Chacon and her younger daughter
Gladis, who was then almost four years old, left El Salvador, traveling through
Guatemala and Mexico, reaching the United States in June 2014. She left her
thirteen‐year old daughter, Maria, in El Salvador because she only had enough
money to bring one of the girls, and her sister‐in‐law had agreed to take care of
Maria.
On June 15, 2014, Hernandez‐Chacon and Gladis entered the United
States without inspection and were apprehended at the border; they were served
with a Notice to Appear for removal proceedings and were released from
custody. They applied for asylum, withholding of removal, and CAT relief. As
Hernandez‐Chacon explained in the application, she was attacked by three men
who attempted to rape her and broke her collarbone in the process, in retaliation
for her resisting an earlier attempt to rape her. She explained that she believed
that if she returned to her home country she would be raped or killed by
members of the MS gang because she had twice resisted their attempts to rape
her. She later elaborated: ʺI believe that if I go back to El Salvador, the gang
members who twice tried to rape me and broke my collar bone, will not let me
‐7‐ live if they see me again. They punished me brutally after the first time I resisted
the sexual advances of one of them and this time will be even worse.ʺ Id. at 254.
B. The IJ Decision
Before the IJ, Hernandez‐Chacon argued that she was eligible for
asylum based on her membership in a particular social group and her political
opinion. Regarding her social group claim, Hernandez‐Chacon alleged that she
was persecuted for being a member of the group of either (1) ʺSalvadoran
women who have rejected the sexual advances of a gang memberʺ or (2)
ʺSalvadoran women who are viewed as property.ʺ Id. at 151. She also argued
that she was persecuted for her feminist political opinion, and specifically her
resistance to male domination in Salvadoran society.
On October 19, 2016, the IJ issued a decision granting Hernandez‐
Chacon relief under CAT but denying her asylum claim. The IJ found
Hernandez‐Chacon to be ʺa credible witness.ʺ Id. at 150. The IJ held that
Hernandez‐Chacon met her burden of proving that the Salvadoran government
would not be able to protect her from gang members if she were to return to El
Salvador and it was more likely than not that she would be tortured if she
returned home. The IJ found that the record supported Hernandez‐Chaconʹs
‐8‐ claim that there was ʺwidespread corruption and a number of human rights
problems in El Salvador.ʺ Id. at 155. The IJ also found that she presented
documentary evidence supporting her claim of suffering a major medical event,
including the beating by the three men, the attempted rapes, and the broken
collarbone, as well as the threats to kill her and her daughter if she reported the
incidents to the police. On that basis, the IJ granted her request for withholding
of removal under Article 3 of CAT. The IJ also granted her daughter Gladisʹs
application for asylum.
Nonetheless, the IJ rejected Hernandez‐Chaconʹs asylum claims.
The IJ found that the proposed social groups ‐‐ (1) Salvadoran women who have
rejected the sexual advances of a gang member and (2) Salvadoran women who
are viewed as property ‐‐ had not been recognized by the BIA as being protected
social groups. The IJ also rejected Hernandez‐Chaconʹs political opinion claim,
concluding: ʺIn this case [Hernandez‐Chacon] did not advance a political
opinion. I find that she simply chose not to be the victim and chose to resist
being a victim of a criminal act.ʺ Id. at 154.
In her decision, the IJ reviewed relevant country conditions in El
Salvador, including the prevalence of violence against women and ʺthe dreadful
‐9‐ practice of El Salvadorʹs justice system to favor aggressors and assassins and to
punish victims of gender violence.ʺ Id. at 147. The IJ relied on the declaration of
Aracely Bautista Bayona, a lawyer and human rights specialist, who described
ʺthe plight of women in El Salvador,ʺ id.,3 and recounted the following:
One of ʺthe most entrenched characteristics of Salvadoran society is
machismo, a system of patriarchal gender biases which subject women to the will
of men. Salvadorans are taught from early childhood that women are
subordinate.ʺ Id. Salvadoran society ʺaccepts and tolerates men who violently
punish women for violating these gender rules or disobeying male relatives.ʺ Id.
Indeed, in El Salvador, ʺfemicide remain[s] widespread.ʺ Id. at 148; see also U.S.
Depʹt of State, Bureau of Democracy, H. R. and Labor, Country Reports on
Human Rights Practices for 2015 for El Salvador (2015) (ʺCountry Reportʺ).
Gangs in El Salvador view women as the property of men, and gang violence
against women outside the gang ʺmanifest[s] itself in a brutality that reflects
these extreme machismo attitudes.ʺ Cert. Adm. Rec. at 148.
3 The IJ noted that Bayona had ʺfor more than two and a half decades worked and advocated for the rights of women, children, adolescents and youth in the migrant population in El Salvador.ʺ Cert. Adm. Rec. at 138. ‐10‐ ʺEl Salvador has the highest rate in the world [of femicide] with an
average of 12 murders for every 100,000 women.ʺ Id. at 148‐49. As an article on
El Salvadorʹs gangs concluded, ʺin a country terrorized by gangsters, it is left to
the dead to break the silence on sexual violence . . . , to the bodies of dead
women and girls pulled from clandestine graves, raped, battered and sometimes
cut to pieces. They attest to the sadistic abuse committed by members of street
gangs.ʺ Id. at 149 (quoting El Salvadorʹs Gangs Target Women and Girls, Associated
Press, Nov. 6, 2014).
As the State Department has found, rape, sexual crimes, and
violence against women are significantly underreported because of societal and
cultural pressures on victims and fear of reprisal, and the laws against rape ʺare
not effectively enforced.ʺ Country Report at 7. Police corruption in El Salvador
is well‐documented, including involvement in extra‐judicial killings and human
rights abuses. See id. at 1. The judicial system is also corrupt. While the law
provides criminal penalties for official corruption, ʺthe government d[oes] not
implement the law effectively, and . . . officials, particularly in the judicial
system, often engage[] in corrupt practices with impunity.ʺ Id. at 6. ʺLike
Salvadoran society as a whole, law enforcement officials, prosecutors, and judges
‐11‐ discriminate against women, reduce the priority of womenʹs claims, and
otherwise prevent women from accessing legal protections and justice. This
results in impunity for aggressors, which reinforces aggressorsʹ perception that
they can inflict violence without interference or reprisal.ʺ Cert. Adm. Rec. at 300‐
01.
The IJ observed that Hernandez‐Chaconʹs experiences were
ʺgenerally consistent with the background materials she has submitted in regards
to pervasive brutal attacks by El Salvadoran gangs.ʺ Id. at 149‐50.
C. The BIAʹs Decision
Hernandez‐Chacon appealed the IJʹs decision to the BIA.4 As to the
social group claim, she relied only on her first proposed social group ‐‐
Salvadoran women who rejected the sexual advances of a gang member. She
continued to press the political opinion claim. On November 6, 2017, the BIA
affirmed the IJʹs decision. In re Rosario Del Carmen Hernandez‐Chacon, No. A 206
803 023 (B.I.A. Nov. 6, 2017), aff’g, No. A 206 803 023 (Immig. Ct. N.Y. City Oct.
4 The government appealed the IJʹs decision to the extent it granted CAT relief to Hernandez‐Chacon and asylum to Gladis. The BIA affirmed the IJʹs grant of CAT relief to Hernandez‐Chacon but sustained the governmentʹs appeal with respect to the grant of asylum to Gladis, remanding the matter to the IJ. Gladisʹs proceedings have since been severed, and only Hernandez‐Chaconʹs claim for asylum is before this Court. ‐12‐ 19, 2016). The BIA held that the proposed social group of Salvadoran women
who rejected the sexual advances of a gang member lacked particularity and
social distinction, concluding that Hernandez‐Chacon had not demonstrated that
women who reject the sexual advances of a gang member are perceived by
Salvadoran society as a discrete group. The BIA disposed of Hernandez‐
Chaconʹs political opinion claim in a footnote, rejecting the claim ʺfor the reasons
stated in the [IJ]ʹs decision.ʺ Id. at 5 n.3.
This petition for review followed.
DISCUSSION
A. Applicable Legal Standards
Asylum is a discretionary form of relief granted to refugees, that is,
individuals who are unwilling or unable to return to their native country because
of persecution or a well‐founded fear of persecution. 8 U.S.C. §§ 1101(a)(42),
1158(b); see Guan Shan Liao v. U.S. Depʹt of Justice, 293 F.3d 61, 66 (2d Cir. 2002).
The applicant has the burden of proving eligibility for asylum. See 8 U.S.C.
§ 1158(b)(1)(B).
To demonstrate eligibility, ʺthe applicant must establish that race,
religion, nationality, membership in a particular social group, or political opinion
‐13‐ was or will be at least one central reason for persecuting the applicant.ʺ 8 U.S.C.
§ 1158(b)(1)(B)(i). If an applicant demonstrates past persecution on account of a
protected ground, a rebuttable presumption arises that the applicant has a well‐
founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1). Absent evidence
of past persecution, an applicant must show that she subjectively fears
persecution and that the fear also is objectively reasonable. Ramsameachire v.
Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). A fear is objectively reasonable ʺeven if
there is only a slight, though discernible, chance of persecution.ʺ Diallo v. INS,
232 F.3d 279, 284 (2d Cir. 2000) (citing INS v. Cardoza‐Fonseca, 480 U.S. 421, 431
(1987)).
ʺ[A]sylum may be granted where there is more than one motive for
mistreatment, as long as at least one central reason for the mistreatment is on
account of a protected ground.ʺ Acharya v. Holder, 761 F.3d 289, 297 (2d Cir. 2014)
(internal quotation marks omitted). Moreover, ʺ[d]irect governmental action is
not required for a claim of persecution. Private acts can constitute persecution if
the government ʹis unable or unwilling to control it.ʹʺ Paloka v. Holder, 762 F.3d
191, 195 (2d Cir. 2014) (quoting Rizal v. Gonzales, 442 F.3d 84, 92 (2d Cir. 2006)).
‐14‐ In the circumstances of this case, the Court reviews the IJʹs decision
as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005). The applicable standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B). ʺQuestions of law, as well as the application of legal principles to
undisputed facts, are reviewed de novo.ʺ Paloka, 762 F.3d at 195. Specifically,
legal determinations, such as whether a group constitutes a ʺparticular social
group,ʺ are reviewed de novo. Id. The agencyʹs findings of fact are reviewed
under a substantial evidence standard. See Xiu Xia Lin v. Mukasey, 534 F.3d 162,
165 (2d Cir. 2008) (per curiam).
B. Application
We conclude that the agency did not err in finding that Hernandez‐
Chacon failed to establish her social group claim, but we grant the petition with
respect to her political opinion claim and remand for further proceedings.
1. Social Group
To constitute a particular social group, a group must be: ʺ(1)
composed of members who share a common immutable characteristic, (2)
defined with particularity, and (3) socially distinct within the society in
question.ʺ Matter of M‐E‐V‐G‐, 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see also Ucelo‐
‐15‐ Gomez v. Mukasey, 509 F.3d 70, 72‐74 (2d Cir. 2007) (per curiam). ʺA particular
social group is comprised of individuals who possess some fundamental
characteristic in common which serves to distinguish them in the eyes of a
persecutor ‐‐ or in the eyes of the outside world in general.ʺ Gomez v. INS, 947
F.2d 660, 664 (2d Cir. 1991); see also Paloka, 762 F.3d at 196 (finding group must be
ʺʹrecognizableʹ as a discrete group by others in the societyʺ); Ucelo‐Gomez, 509
F.3d at 73 (noting that ʺthe definition of the social group must have particular
and well‐defined boundariesʺ). Here, the agency did not err in concluding that
Hernandez‐Chaconʹs asserted social group ‐‐ El Salvadoran women who have
rejected the sexual advances of a gang member ‐‐ was not cognizable.
Hernandez‐Chacon failed to provide sufficient evidence that her
proposed subset of Salvadoran women was a socially distinct group in
Salvadoran society. The country conditions evidence addresses widespread
violence against women in El Salvador, but it does not discuss whether women
who reject the sexual advances of gang members are perceived as a distinct
group in society or are at greater risk than anyone else who refuses to comply
with a gang memberʹs demands. See Ucelo‐Gomez, 509 F.3d at 73 (ʺWhen the
harm visited upon members of a group is attributable to the incentives presented
‐16‐ to ordinary criminals rather than to persecution, the scales are tipped away from
considering those people a ʹparticular social group . . . .ʹʺ). Accordingly, we hold
that the IJ did not err in finding that Hernandez‐Chacon failed to demonstrate
that she faces persecution on account of her membership in a particular social
group.5
2. Political Opinion
To demonstrate that persecution, or a well‐founded fear of
persecution, is on account of an applicantʹs political opinion, the applicant must
show that the persecution ʺarises from his or her own political opinion.ʺ Yueqing
Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005). Thus, the applicant must
ʺshow, through direct or circumstantial evidence, that the persecutorʹs motive to
persecute arises from the applicant’s political belief.ʺ Id. (emphasis added). The
5 See Vega‐Ayala v. Lynch, 833 F.3d 34, 40 (1st Cir. 2016) (ʺVega‐Ayalaʹs general reference to the prevalence of domestic violence in El Salvador does little to explain how ʹSalvadoran women in intimate relationships with partners who view them as propertyʹ are meaningfully distinguished from others within Salvadoran society.ʺ). But see Alvarez Lagos v. Barr, 927 F.3d 236, 252‐55 (4th Cir. 2019) (remanding for agency to consider whether ʺgroup of unmarried mothers living under the control of gangs in Honduras qualifies as a ʹparticular social group,ʹʺ where record contained evidence that gang in question did ʺindeed target victims on the basis of their membership in a socially distinct group of unmarried mothersʺ). ‐17‐ persecution may also be on account of an opinion imputed to the applicant by the
persecutor, regardless of whether or not this imputation is accurate. See Delgado
v. Mukasey, 508 F.3d 702, 706 (2d Cir. 2007) (ʺ[A]n imputed political opinion,
whether correctly or incorrectly attributed, can constitute a ground for political
persecution.ʺ (internal quotation mark omitted) (quoting Chun Gao v. Gonzales,
424 F.3d 122, 129 (2d Cir. 2005)). The BIA has explained that persecution based
on political opinion is established when there is ʺdirect or circumstantial
evidence from which it is reasonable to believe that those who harmed the
applicant were in part motivated by an assumption that [her] political views
were antithetical to those of the government.ʺ Matter of S‐P‐, 21 I. & N. Dec. 486,
494 (B.I.A. 1996); see also Vumi v. Gonzalez, 502 F.3d 150, 157 (2d Cir. 2007).
Here, Hernandez‐Chacon contends that if she is returned to El
Salvador she will be persecuted by gang members because of her political
opinion ‐‐ her opposition to the male‐dominated social norms in El Salvador and
her taking a stance against a culture that perpetuates female subordination and
the brutal treatment of women. She argues that when she refused to submit to
the violent advances of the gang members, she was taking a stance against a
culture of male‐domination and her resistance was therefore a political act.
‐18‐ There is ample evidence in the record to support her claim.6 Gangs
control much of El Salvador, including the neighborhood in which Hernandez‐
Chacon lived. The law enforcement systems that would normally protect
women ‐‐ police, prosecutors, judges, officials ‐‐ do not have the resources or
desire to address the brutal treatment of women, and the Salvadoran justice
system ʺfavors aggressors and assassinsʺ and ʺpunish[es] victims of gender
violence.ʺ Cert. Adm. Rec. at 147. Yet, Hernandez‐Chacon testified that when
the first gang member tried to rape her, she resisted ʺbecause [she had] every
right to.ʺ Id. at 193. Three days later, when the same man and two other gang
members attacked her, she again resisted, to the point where they beat her until
she lost consciousness. She argues that the men targeted her for the second
attack ‐‐ and beat her so brutally ‐‐ because she had resisted the advances of an
MS gang member and they believed she needed to be punished for her act of
defiance. Her now husband likewise stated in his affidavit that Hernandez‐
Chacon will be attacked if she returns to El Salvador because ʺ[s]he has managed
to fight them off twice, but that just makes them angrier and if she shows her
6 At oral argument, the government forthrightly conceded that it was a ʺpermissibleʺ inference that Hernandez‐Chacon was persecuted for her feminist political ideology, though it argued that the record did not compel that result. ‐19‐ face again, I think they could kill her.ʺ Id. at 269.
While the IJʹs decision was thorough and thoughtful overall, her
analysis of Hernandez‐Chaconʹs political opinion claim was cursory, consisting
of the following:
[Hernandez‐Chacon] has also claimed that she had a political opinion. I cannot conclude that her decision to resist the advances of an individual is sufficient to establish that she has articulated a political opinion. In trying to analyze a political opinion claim, the Court has to consider the circumstances under which a respondent not only possessed a political opinion, but the way in which the circumstances under which she articulated that political opinion. In this case she did not advance a political opinion. I find that she simply chose not to be the victim and chose to resist being a victim of a criminal act.
Id. at 153‐54.
The BIA dismissed Hernandez‐Chaconʹs political opinion argument
in a single sentence, in a footnote, rejecting the claim ʺfor the reasons stated in the
[IJʹs] decision.ʺ Id. at 5 n.3. The analysis of both the IJ and the BIA was
inadequate. See Yueqing Zhang, 426 F.3d at 548‐49 (granting petition for review
and remanding case to agency where IJ failed to undertake the ʺcomplex and
contextual factual inquiryʺ necessary to determine if persecution was on account
of political opinion). We have three areas of concern.
‐20‐ First, the agency concluded that Hernandez‐Chacon ʺdid not
advance a political opinion.ʺ Cert. Adm. Record at 154. But this Circuit has held
that the analysis of what constitutes political expression for these purposes
ʺinvolves a ʹcomplex and contextual factual inquiryʹ into the nature of the asylum
applicantʹs activities in relation to the political context in which the dispute took
place.ʺ Castro v. Holder, 597 F.3d 93, 101 (2d Cir. 2010) (quoting Yueqing Zhang,
426 F.3d at 548). We have held, for example, that resisting corruption and abuse
of power ‐‐ including non‐governmental abuse of power ‐‐ can be an expression
of political opinion. See Castro, 597 F.3d at 100 (noting that ʺopposition to
government corruption may constitute a political opinion, and retaliation against
someone for expressing that opinion may amount to political persecutionʺ);
Delgado, 508 F.3d at 706 (holding that refusing to give technical assistance to the
FARC in Columbia can be expression of political opinion); Yueqing Zhang, 426
F.3d at 542, 546‐48 (holding that retaliation for opposing corruption of local
officials can constitute persecution on account of political opinion); Osorio v. INS,
18 F.3d 1017, 1029‐31 (2d Cir. 1994) (holding that ʺunion activities [can] imply a
political opinion,ʺ and not merely economic position). The Fourth Circuit has
recently recognized that the refusal to acquiesce to gang violence can constitute
‐21‐ an expression of political opinion. See Alvarez Lagos, 927 F.3d at 254‐55 (where
record contained evidence that gang in question would view refusal to comply
with demand for sex as ʺpolitical opposition,ʺ refusal to acquiesce to gang
violence and flight to United States could demonstrate imputed anti‐gang
political opinion that constitutes protected ground for asylum). Here, the agency
did not adequately consider whether Hernandez‐Chaconʹs refusal to acquiesce
was ‐‐ or could be seen as ‐‐ an expression of political opinion, given the political
context of gang violence and the treatment of women in El Salvador.
Second, the IJ concluded that Hernandez‐Chacon ʺsimply chose to
not be a victim.ʺ Cert. Adm. Rec. at 154. But even if Hernandez‐Chacon was
motivated in part by her desire not to be a crime victim, her claims do not
necessarily fail, as her political opinion need not be her only motivation. See
8 U.S.C. § 1158(b)(1)(B)(i) (ʺThe applicant must establish that race, religion,
nationality, membership in a particular social group, or political opinion was or
will be at least one central reason for persecuting the applicant.ʺ (emphasis added));
Osorio, 18 F.3d at 1028 (ʺThe plain meaning of the phrase ʹpersecution on account
of the victimʹs political opinion,ʹ does not mean persecution solely on account of
the victimʹs political opinion.ʺ); see also Vumi, 502 F.3d at 158 (remanding to
‐22‐ agency where BIA failed to engage in mixed‐motive analysis). While
Hernandez‐Chacon surely did not want to be a crime victim, she was also taking
a stand; as she testified, she had ʺevery rightʺ to resist. As we have held in a
different context, ʺopposition to endemic corruption or extortion . . . may have a
political dimension when it transcends mere self‐protection and represents a
challenge to the legitimacy or authority of the ruling regime.ʺ Yueqing Zhang, 426
F.3d at 547‐48. Here, Hernandez‐Chaconʹs resistance arguably took on a political
dimension by transcending mere self‐protection to also constitute a challenge to
the authority of the MS gang.
Third, the agency did not consider whether the gang members
imputed a political opinion to Hernandez‐Chacon. This Circuit has held that ʺan
imputed political opinion, whether correctly or incorrectly attributed, can
constitute a ground of political persecution within the meaning of the
Immigration and Nationality Act.ʺ Vumi, 502 F.3d at 156 (citations omitted); see
Chun Gao, 424 F.3d at 129 (in case of imputed political opinion, question is
ʺwhether authorities would have perceived [petitioner] as [a practitioner of Falun
Gong] or as a supporter of the movement because of his activitiesʺ). Here, the IJ
erred in her political opinion analysis by only considering whether Hernandez‐
‐23‐ Chacon ʺadvance[d]ʺ a political opinion. Cert. Adm. Rec. at 154. The IJ failed to
consider whether the attackers imputed an anti‐patriarchy political opinion to
her when she resisted their sexual advances, and whether that imputed opinion
was a central reason for their decision to target her. See Castro, 597 F.3d at 106
(holding that to properly evaluate a claim of political opinion, IJ must give
ʺcareful consideration of the broader political contextʺ). In fact, as the gang
members attacked her the second time, one of them told her that because she
would not ʺdo this with him in a good way, it was going to happen in a bad
way,ʺ Cert. Adm. Rec. at 186, which suggests that the gang members wanted to
punish her because they believed she was taking a stand against the pervasive
norm of sexual subordination.
We note that the Fourth Circuit recently granted a petition for
review in a case involving a woman in Honduras who was threatened by a gang
in similar circumstances. The Fourth Circuit concluded that if, as the petitioner
alleged, the gang had imputed to her ʺan anti‐gang political opinion, then that
imputed opinion would be a central reason for likely persecution if she were
returned to Honduras.ʺ See Alvarez Lagos, 927 F.3d at 251. The court held that
the IJ erred by not considering the imputed political opinion claim, that is,
‐24‐ whether the gang believed that the petitioner held an anti‐gang political opinion.
Id. at 254. Likewise, here, the agency did not adequately consider Hernandez‐
Chaconʹs imputed political opinion claim.
Accordingly, we hold that the agency erred in failing to adequately
consider Hernandez‐Chaconʹs claim of persecution or fear of persecution based
on actual or imputed political opinion.
CONCLUSION
For the reasons set forth above, the petition is GRANTED with
respect to Hernandez‐Chaconʹs political opinion claim and the case is
REMANDED to the BIA for proceedings consistent with this opinion.
‐25‐