25 I. & N. Dec. 526
BIA2011Background
- Matter of N-M-, respondent, asylum claim grounded on opposition to official corruption
- REAL ID Act governs claims filed after May 11, 2005, requiring “one central reason” nexus
- Respondent worked 1991–2004 in a state-run Colombian medical agency; privatization 1998–2004
- Respondent refused to falsify statistics, refused to certify incomplete work, opposed costly filing system
- Threats December 2003–May 2004 forced respondent and son to flee to the United States; later threats upon return to Colombia
- Immigration Judge found extraordinary circumstances excused untimely filing; DHS appeal remanded for fact-finding on caller motive and consideration of CAT claim
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Nexus standard under REAL ID Act | Larios supported by political-opinion nexus | DHS argues one central reason required | Nexus must be one central reason for harm |
| Whistleblowing as expression of political opinion | Opposition to corruption can express political opinion | Not all whistleblowing equates to protected opinion | Whistleblowing may support political opinion but not automatically sufficient |
| Motive of threats to respondent | Threats tied to whistleblowing against corruption | Threats may be personal or corrupt motive | Remand for explicit finding on callers' motive required |
| Remand on factual findings about pervasiveness of corruption | Evidence of pervasive corruption supports nexus | Record insufficient to assess regime-wide ties | Consider regime-wide corruption and ties to higher officials on remand |
| Convention Against Torture claim viability | CAT claim alleged in hearing | Not clearly considered | Remand to address CAT protection eligibility |
Key Cases Cited
- INS v. Elias-Zacarias, 502 U.S. 478 (U.S. Supreme Court 1992) (requires nexus shown to be because of protected trait not mere resistance to act)
- Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (‘at least in part’ standard previously allowed mixed motives)
- Grava v. INS, 205 F.3d 1177 (9th Cir. 2000) (whistleblowing may be nexus where tied to government system)
- Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005) (rejects strict categorical division between extortion and corruption in political-opinion analysis)
- Desir v. Ilchert, 840 F.2d 723 (9th Cir. 1988) (evidence of entrenched corruption can reflect political opposition)