R. R. D. v. Eric Holder, Jr.
746 F.3d 807
7th Cir.2014Background
- R.R.D., a former investigator for Mexico’s Federal Agency of Investigation, prosecuted drug traffickers, received bribe offers, and survived multiple assassination attempts and wounds.
- After stepping down and trying to hide his past, strangers continued seeking him; he and his family testified that unknown men searched for him in Mexico and later.
- R.R.D. applied for asylum in the U.S., claiming persecution as a member of the particular social group “honest police” (including former honest officers).
- An Immigration Judge (IJ) found R.R.D. credible and found he faced ongoing risk, but denied asylum on the ground that the traffickers targeted him for his actions (not membership in the social group); the Board of Immigration Appeals (BIA) affirmed.
- The Seventh Circuit questioned the BIA’s distinctions (e.g., “effective honest police” vs. all honest police), treated private violence as potentially constituting persecution for purposes of review, and held the BIA improperly ignored material evidence about risk to former officers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "honest police" (or former honest officers) is a cognizable particular social group | R.R.D.: "honest police" (including former officers) is a protected social group; his former status is immutable | DHS/BIA: distinction between all honest police and a subset (e.g., "effective" officers) defeats group claim | Court treated "honest police" and former officers as a social group for remand because BIA did not contest it; remand required to analyze properly |
| Whether persecution must target all members of the social group (generality requirement) | R.R.D.: membership-based targeting of some members suffices; statute requires persecution "on account of" membership, not uniform treatment of all members | BIA: focused on whether criminal actors target only certain effective members, implying broader group must be targeted | Court: statute does not require all members be targeted; greater risk to some members does not defeat group-based claim |
| Whether private-actor violence qualifies as persecution absent government unwillingness/unability to protect | R.R.D.: drug gangs' violence against former officers can amount to persecution; IJ found risk credible | BIA: applied precedent requiring a showing the government is unwilling/unable to protect (cited Board/Seventh Circuit decisions) | Court: because BIA failed to address the protection issue and under Chenery, treats private violence as official persecution for purposes of this review and remands for analysis |
| Whether the BIA adequately considered and explained material evidence of risk to former officers | R.R.D.: evidence shows gangs target former officers and sought him after he left; threats and hunts imply future risk | BIA/DHS: concluded no evidence of persecution of former officers and noted time elapsed since leaving force | Court: BIA ignored material evidence and failed to explain; remand required for explicit analysis of risk and causation |
Key Cases Cited
- SEC v. Chenery Corp., 318 U.S. 80 (1943) (agency decisions must provide reasoned explanation; courts cannot affirm on new grounds)
- Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) (treatment of social group and related asylum standards)
- Pavlyk v. Gonzales, 469 F.3d 1082 (7th Cir. 2006) (limits on proposed social groups tied to mutable characteristics and personal vendettas)
- Escobar v. Holder, 657 F.3d 537 (7th Cir. 2011) (threats can imply future persecution; credibility and risk analysis)
- Sepulveda v. Gonzales, 464 F.3d 770 (7th Cir. 2006) (former official status can be immutable for social-group purposes)
- Hor v. Gonzales, 421 F.3d 497 (7th Cir. 2005) (government protection/unable-or-unwilling inquiry in private-actor persecution claims)
- Bitsin v. Holder, 719 F.3d 619 (7th Cir. 2013) (assessment of government protection in asylum contexts)
Disposition: Petition granted; removal order vacated; case remanded to the BIA for further proceedings consistent with the opinion.