Escobar v. Holder
657 F.3d 537
| 7th Cir. | 2011Background
- Sergio Escobar, a Colombian national, seeks asylum after fleeing FARC persecution tied to his Liberal Party affiliation and anti-FARC trucking work.
- Escobar was hijacked, threatened, and forced to work for FARC on multiple occasions; trucks were burned and branded by FARC.
- He sought asylum citing persecution on political opinion and as a member of a particular social group; the IJ granted asylum, the Board reversed, and ordered removal.
- The Board found Escobar not persecuted or, if persecuted, not persecuted on account of protected grounds; it also rejected his social-group theory.
- The Seventh Circuit granted review and remanded for further consideration of the nexus between persecution and group/political grounds.
- The opinion discusses the proper scope of social-group protection and the potential for state sponsorship/condonation of private persecution by FARC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Colombia’s government can be held responsible for FARC persecution | Escobar argues state condoned/failed to prevent persecution by FARC. | Board held state action not shown; persecution framed as private crime/fear. | Yes; state-condoned/helpless-to-prevent persecution shown; state action satisfied for asylum. |
| Whether Escobar’s mistreatment constitutes persecution under INA | Escobar suffered ongoing threats and arson as persecution. | Board found mistreatment not sufficiently severe to qualify as persecution. | Board’s finding insufficient; evidence supports persecution. |
| Whether Escobar belongs to a cognizable particular social group | Former truckers who opposed FARC and cooperated with authorities form a social group. | Group defined by occupation/refusal with dynamic, mutable, and weighable characteristics; not inherently a social group. | Escobar’s proposed group properly grounded; it can be a cognizable social group. |
| Whether persecution was on account of group membership or political opinion | Persecution linked to anti-FARC political beliefs and group membership. | Persecution based on coercion to transport or fear of retaliation, not protected grounds. | Nexus found; persecution tied to combination of group traits and political opposition. |
| Whether the Board should reconsider Escobar’s political-opinion claim | Escobar’s Liberal Party affiliation and anti-FARC stance support a political-opinion basis. | FARC targeted Escobar for trucking and coercion, not political opinion. | Political-opinion nexus supported; Board should reconsider. |
Key Cases Cited
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (well-founded fear and political opinion nexus standards in insurgencies)
- Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009) (social group definition requires immutable or fundamental characteristics)
- Poroj-Mejia v. Holder, 397 F. App’x 234 (7th Cir. 2010) (non-precedential; cautions against defining social groups solely by persecution risk)
- Pavlyk v. Gonzales, 469 F.3d 1082 (7th Cir. 2006) (persecution not based on membership where conduct defines risk)
- Sepulveda v. Gonzales, 464 F.3d 770 (7th Cir. 2006) (former government employees as social group examples)
- Yadegar-Sargis v. INS, 297 F.3d 596 (7th Cir. 2002) (recognizes nuanced social-group formation beyond simple persecution link)
- In re C-A-, 23 I. & N. Dec. 951, 23 I. & N. Dec. 951 (BIA 2006) (Board definition of particular social group constraints)
- Nzeve v. Holder, 582 F.3d 678 (7th Cir. 2009) (threats can constitute persecution if immediate and menacing)
- Vahora v. Holder, 626 F.3d 907 (7th Cir. 2010) (standard of review for legal questions is de novo; substantial-evidence review applied to factual findings)