Vladimir Oliva v. Loretta Lynch, 2015 U.S. App. LEXIS 20509

Background

Vladimir Ernesto Ortega Oliva, a Salvadoran and former MS-13 member, left the gang as a minor for moral/religious reasons, became an "inactive" member and later refused to pay gang "rent."
MS-13 beat and extorted Oliva for failing to pay; he fled to the U.S. in 2007 and applied for asylum/withholding of removal in 2011. The IJ found him credible but denied relief, concluding the gang targeted him for money, not for membership in a protected group.
A one-member BIA panel affirmed, finding (1) Oliva failed to show a cognizable particular social group and (2) his persecution lacked the required nexus to any proposed group.
Oliva proposed two social groups: (1) Salvadorans who are former MS-13 members who left without permission for moral/religious reasons; and (2) Salvadorans recruited as children who left as minors for moral/religious reasons.
The Fourth Circuit reviewed de novo legal questions, applied Skidmore deference to the one-member BIA opinion, and found error in the BIA’s nexus analysis and in its failure to address evidence relevant to social distinction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether persecution was "on account of" membership in Oliva’s proposed social groups (nexus)	Oliva: extortion and violence were directed at him because he was a former gang member who left for moral/religious reasons; membership was a central reason for persecution	Gov't/BIA: the gang targeted Oliva for his specific conduct—refusing to pay rent—not his group membership	Court: BIA erred; membership in the proposed groups was at least one central reason for persecution and nexus was satisfied
Whether Oliva’s proposed groups are cognizable particular social groups (social distinction)	Oliva: evidence (employment discrimination, rehab programs, church involvement) shows Salvadoran society perceives former members who left for moral/religious reasons as a distinct group	BIA: record contains little evidence of social perception; relied mainly on one example and found it insufficient	Court: remanded—BIA failed to address all relevant evidence and must reconsider social-distinction and other cognizability factors
Standard of review for one-member BIA decision	Oliva: one-member opinion entitled only to Skidmore weight; court should ensure agency adequately addressed evidence	Gov't: BIA’s conclusions should be upheld unless reasonable	Court: applied Skidmore, found BIA’s nexus reasoning legally erroneous and its treatment of social-distinction evidence inadequate, requiring remand
Appropriate remedy	Oliva: reverse BIA on nexus and remand for full consideration of cognizability	Gov't: argued BIA’s decision was permissible or that remand is appropriate	Court: granted petition, reversed BIA on nexus, vacated in part, and remanded for BIA consideration of cognizability with the full record

Key Cases Cited

Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014) (standard of review and deference to one-member BIA)
Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) (burden and interpretation of protected-ground causation)
SEC v. Chenery Corp., 332 U.S. 194 (1947) (courts may not supply a new basis for agency decisions)
Skidmore v. Swift & Co., 323 U.S. 134 (1944) (weight accorded informal agency interpretations)
Mirisawo v. Holder, 599 F.3d 391 (4th Cir. 2010) (extortion can constitute persecution)
Jahed v. INS, 356 F.3d 991 (9th Cir. 2004) (nonphysical harm can be persecution)
Aliyev v. Mukasey, 549 F.3d 111 (2d Cir. 2008) (extortion on account of protected characteristic supports relief)
Desir v. Ilchert, 840 F.2d 723 (9th Cir. 1988) (extortion plus violence may be motivated by protected or personal reasons)
Quinteros-Mendoza v. Holder, 556 F.3d 159 (4th Cir. 2009) (protected-ground must be more than incidental)
Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015) (rejecting overly narrow nexus distinctions)
Temu v. Holder, 740 F.3d 887 (4th Cir. 2014) (evaluate nexus holistically; BIA’s conflicting findings reversed)