W.G.A. v. Sessions
900 F.3d 957
7th Cir.2018Background
- Petitioner W.G.A., a Salvadoran national, fled to the U.S. after Mara 18 gang members held a gun to his head and threatened to kill him and his family while searching for his brother, a suspected gang defector.
- W.G.A. applied for asylum, withholding of removal, and CAT relief; the Immigration Judge (IJ) denied relief and the BIA dismissed his appeal.
- The IJ found W.G.A. credible but concluded the gang’s threats were not motivated by a protected ground (particular social group) and that relocation in El Salvador was possible.
- The BIA affirmed the IJ, rejecting W.G.A.’s proposed social groups (accepted only nuclear family) and finding insufficient nexus and government acquiescence for CAT.
- The Seventh Circuit granted review, found the record compels that W.G.A. was persecuted on account of membership in his nuclear family, identified errors in the agency’s CAT analysis, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proposed social groups are cognizable | Family or family of tattooed ex-gang members are particular social groups | Agency argued group definitions failed social-distinction/particularity tests | Court: nuclear family is a cognizable social group; no need to resolve Chevron issue over BIA tests |
| Nexus — whether persecution was "on account of" social-group membership | Gang targeted W.G.A. because of kinship to brother (defector); timing, threats, and corroborating country evidence show motive | Agency found insufficient evidence that family membership was a central reason | Court: record compels that family membership was at least one central reason; reverses agency on nexus |
| CAT — likelihood of torture and government acquiescence | Gang’s continued threats, raids on family and community murders indicate substantial risk; state corruption and impunity show acquiescence | Agency relied on absence of past torture and arrests of brother to deny government acquiescence and probability of torture | Court: agency failed to consider key evidence and applied wrong standards for acquiescence; remand required |
| General remand request by government | N/A (gov’t sought remand for BIA to reconsider in light of later BIA decisions) | Petitioner opposed broad remand; agency gave no substantive new arguments on appeal | Court: declined a general remand; addressed merits where record compelled a different result and remanded for specific reconsideration |
Key Cases Cited
- Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) (deference to BIA interpretation of particular social group under Acosta)
- Nakibuka v. Gonzales, 421 F.3d 473 (7th Cir. 2005) (death threats constitute persecution)
- Elias-Zacarias v. INS, 502 U.S. 478 (1992) (motivation for persecution may be proved by direct or circumstantial evidence)
- Martinez-Buendia v. Holder, 616 F.3d 711 (7th Cir. 2010) (substantial-evidence review of nexus)
- Toptchev v. INS, 295 F.3d 714 (7th Cir. 2002) (comparative burdens for asylum vs withholding)
- R.R.D. v. Holder, 746 F.3d 807 (7th Cir. 2014) (group-membership need not mean all members suffer same fate)
- Pramatarov v. Gonzales, 454 F.3d 764 (7th Cir. 2006) (government inability/unwillingness to prevent persecution is relevant to relief)