17‐3903‐ag
Hernandez‐Chacon v. Barr
                                                                                            BIA
                                                                                     Tsankov, IJ
                                                                                   A 206 803 023




                                UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT


                                        August Term 2019

             (Argued: September 10, 2019             Decided: January 23, 2020)

                                      Docket No. 17‐3903‐ag




                           ROSARIO DEL CARMEN HERNANDEZ‐CHACON,

                                                           Petitioner,

                                               v.

                   WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,

                                                           Respondent.



Before:
                            WESLEY, CHIN, and BIANCO, Circuit Judges.



                   Petition for review of a decision of the Board of Immigration

Appeals dismissing petitionerʹs appeal from an immigration judgeʹs denial of her

application for asylum. Petitioner contends that she is entitled to asylum because
if she is returned to El Salvador, she will be persecuted on account of her

membership in a particular social group ‐‐ Salvadoran women who have resisted

the sexual advances of a gang member ‐‐ and political opinion ‐‐ resistance to the

norm of female subordination to male dominance that pervades El Salvador. We

agree that petitioner failed to establish her asylum claim based on membership in

a particular social group, but we grant the petition for review with respect to her

political opinion claim and remand to the Board of Immigration Appeals for

further proceedings.

            Petition GRANTED and case REMANDED.




                                HEATHER YVONNE AXFORD, Central
                                    American Legal Assistance, Brooklyn, New
                                    York, for Petitioner.

                                CARMEL A. MORGAN, Trial Attorney (Shelley
                                    R. Goad, Assistant Director, Office of
                                    Immigration Litigation, on the brief), for
                                    Joseph H. Hunt, Assistant Attorney
                                    General, Civil Division, U.S. Department of
                                    Justice, Washington, D.C., for Respondent.




                                        ‐2‐
CHIN, Circuit Judge :

             Petitioner Rosario Del Carmen Hernandez‐Chacon (ʺHernandez‐

Chaconʺ), a citizen of El Salvador, seeks review of a decision of the Board of

Immigration Appeals (the ʺBIAʺ) dismissing her appeal from a decision of an

immigration judge (the ʺIJʺ) granting her protection under the Convention

Against Torture (ʺCATʺ) but denying her application for asylum. Although she

has been granted CAT relief, Hernandez‐Chacon continues to pursue her asylum

claim because asylum would provide her with broader relief, including

permanent residence and a path to citizenship. See 8 U.S.C. § 1159.

             While in El Salvador, Hernandez‐Chacon was attacked twice by

members of a gang. The first attack involved a man who attempted to rape her

in her home. The second attack involved the same man, along with two other

men, who attempted to rape her while she was walking with her daughters.

Hernandez‐Chacon contends that she is entitled to asylum because if she is

returned to El Salvador she will be persecuted based on her membership in a

particular social group ‐‐ Salvadoran women who have resisted the sexual

advances of a gang member ‐‐ and political opinion ‐‐ resistance to the norm of




                                        ‐3‐
female subordination to male dominance that pervades El Salvador. The agency

rejected both claims for asylum.

             While we agree that Hernandez‐Chacon failed to establish her

asylum claim based on membership in a particular social group, we conclude

that the agency did not adequately consider her political opinion claim.

Accordingly, we grant the petition for review with respect to her political

opinion claim and remand for further proceedings.

                             STATEMENT OF THE CASE

A.    The Facts1

             In 2013, Hernandez‐Chacon, who was then twenty‐nine years old,

was living with her two daughters, who were three and twelve years old, in

Chalatenango, El Salvador. Her ʺpartner,ʺ Oscar Valdez, was not present, as he

was living and working in the United States.2 One night in late August or early




1       As the BIA did not disturb the IJʹs finding that Hernandez‐Chacon was credible,
ʺwe treat the events [s]he experienced in the past as undisputed facts.ʺ Castro v. Holder,
597 F.3d 93, 99 (2d Cir. 2010) (quoting Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir.
2007)).
2       The partner,Valdez, was the father of Hernandez‐Chaconʹs younger daughter.
He had relocated to the United States in approximately 2012 ʺto work to better supportʺ
Hernandez‐Chacon, their daughter, and his stepdaughter. He and Hernandez‐Chacon
were married in 2016. Cert. Adm. Rec. at 269.
                                           ‐4‐
September, while Hernandez‐Chacon and her daughters were home alone, a

man whom she did not know entered an open hallway of the house, where she

was washing dishes. He was drunk and said he wanted to have sex with her.

When she told him no, he grabbed her and tried to force himself on her. She

managed to escape and ran to an interior room, locking herself inside. He

eventually left. As Hernandez‐Chacon would later testify, she said ʺnoʺ to the

man even though she knew that ʺresisting his advances would put [her] in

danger.ʺ Cert. Adm. Rec. at 193. She resisted, she explained, ʺbecause I have

every right to.ʺ Id. She did not report the attack to the police because she did not

believe the police would do anything.

            Three days later, Hernandez‐Chacon was attacked by the man again.

She was walking with her two daughters when three men wearing masks

suddenly came out of a nearby cemetery. One of them said to her that ʺsince

[she] didnʹt want to do this with him in a good way, it was going to happen in a

bad way.ʺ Id. at 186. She recognized his voice as that of the man who had

attacked her a few days earlier. Another of the men had a tattoo on his arm, the

symbol of the Mara Salvatrucha (ʺMSʺ) gang. They grabbed her and pulled her

into the cemetery, leaving her daughters on the street. As the men ʺstarted to

                                        ‐5‐
take [her] by force,ʺ she began to scream. Id. at 187. She could hear her older

daughter screaming as well. As Hernandez‐Chacon continued to shout and

resist, they spit on her and beat her with a piece of metal. She lost consciousness.

She eventually woke up in a clinic; three people had interceded in response to

her daughterʹs cries for help, and had taken her to the clinic. Hernandez‐Chacon

was treated for a broken collarbone and received pain medication. She was

eventually transferred by ambulance to a hospital. A medical certification shows

that Hernandez‐Chacon was treated at the hospital on September 2, 2013, for a

fracture of the right clavicle.

            When Hernandez‐Chacon returned home from the hospital, she

found a note under her door, from her attackers, warning that if she went to the

police, ʺthey were going to kidnap her [daughter] and that they were going to

rape her and kill her and pull out her tongue.ʺ Id. at 190. Again, she did not go

to the police because she believed the police would not help her. After the

attack, she did not leave her house very often, and never alone, as she was afraid

the gang members ʺwould do something to me and my daughters.ʺ Id. at 191‐92.

             After the attacks, Hernandez‐Chacon and her partner spoke by

telephone and they agreed that she would leave El Salvador and join him in the

                                        ‐6‐
United States as soon as they were able to put together sufficient resources for

her to join him. In May 2014, Hernandez‐Chacon and her younger daughter

Gladis, who was then almost four years old, left El Salvador, traveling through

Guatemala and Mexico, reaching the United States in June 2014. She left her

thirteen‐year old daughter, Maria, in El Salvador because she only had enough

money to bring one of the girls, and her sister‐in‐law had agreed to take care of

Maria.

             On June 15, 2014, Hernandez‐Chacon and Gladis entered the United

States without inspection and were apprehended at the border; they were served

with a Notice to Appear for removal proceedings and were released from

custody. They applied for asylum, withholding of removal, and CAT relief. As

Hernandez‐Chacon explained in the application, she was attacked by three men

who attempted to rape her and broke her collarbone in the process, in retaliation

for her resisting an earlier attempt to rape her. She explained that she believed

that if she returned to her home country she would be raped or killed by

members of the MS gang because she had twice resisted their attempts to rape

her. She later elaborated: ʺI believe that if I go back to El Salvador, the gang

members who twice tried to rape me and broke my collar bone, will not let me

                                         ‐7‐
live if they see me again. They punished me brutally after the first time I resisted

the sexual advances of one of them and this time will be even worse.ʺ Id. at 254.

B.    The IJ Decision

            Before the IJ, Hernandez‐Chacon argued that she was eligible for

asylum based on her membership in a particular social group and her political

opinion. Regarding her social group claim, Hernandez‐Chacon alleged that she

was persecuted for being a member of the group of either (1) ʺSalvadoran

women who have rejected the sexual advances of a gang memberʺ or (2)

ʺSalvadoran women who are viewed as property.ʺ Id. at 151. She also argued

that she was persecuted for her feminist political opinion, and specifically her

resistance to male domination in Salvadoran society.

             On October 19, 2016, the IJ issued a decision granting Hernandez‐

Chacon relief under CAT but denying her asylum claim. The IJ found

Hernandez‐Chacon to be ʺa credible witness.ʺ Id. at 150. The IJ held that

Hernandez‐Chacon met her burden of proving that the Salvadoran government

would not be able to protect her from gang members if she were to return to El

Salvador and it was more likely than not that she would be tortured if she

returned home. The IJ found that the record supported Hernandez‐Chaconʹs

                                        ‐8‐
claim that there was ʺwidespread corruption and a number of human rights

problems in El Salvador.ʺ Id. at 155. The IJ also found that she presented

documentary evidence supporting her claim of suffering a major medical event,

including the beating by the three men, the attempted rapes, and the broken

collarbone, as well as the threats to kill her and her daughter if she reported the

incidents to the police. On that basis, the IJ granted her request for withholding

of removal under Article 3 of CAT. The IJ also granted her daughter Gladisʹs

application for asylum.

             Nonetheless, the IJ rejected Hernandez‐Chaconʹs asylum claims.

The IJ found that the proposed social groups ‐‐ (1) Salvadoran women who have

rejected the sexual advances of a gang member and (2) Salvadoran women who

are viewed as property ‐‐ had not been recognized by the BIA as being protected

social groups. The IJ also rejected Hernandez‐Chaconʹs political opinion claim,

concluding: ʺIn this case [Hernandez‐Chacon] did not advance a political

opinion. I find that she simply chose not to be the victim and chose to resist

being a victim of a criminal act.ʺ Id. at 154.

             In her decision, the IJ reviewed relevant country conditions in El

Salvador, including the prevalence of violence against women and ʺthe dreadful

                                          ‐9‐
practice of El Salvadorʹs justice system to favor aggressors and assassins and to

punish victims of gender violence.ʺ Id. at 147. The IJ relied on the declaration of

Aracely Bautista Bayona, a lawyer and human rights specialist, who described

ʺthe plight of women in El Salvador,ʺ id.,3 and recounted the following:

            One of ʺthe most entrenched characteristics of Salvadoran society is

machismo, a system of patriarchal gender biases which subject women to the will

of men. Salvadorans are taught from early childhood that women are

subordinate.ʺ Id. Salvadoran society ʺaccepts and tolerates men who violently

punish women for violating these gender rules or disobeying male relatives.ʺ Id.

Indeed, in El Salvador, ʺfemicide remain[s] widespread.ʺ Id. at 148; see also U.S.

Depʹt of State, Bureau of Democracy, H. R. and Labor, Country Reports on

Human Rights Practices for 2015 for El Salvador (2015) (ʺCountry Reportʺ).

Gangs in El Salvador view women as the property of men, and gang violence

against women outside the gang ʺmanifest[s] itself in a brutality that reflects

these extreme machismo attitudes.ʺ Cert. Adm. Rec. at 148.




3     The IJ noted that Bayona had ʺfor more than two and a half decades worked and
advocated for the rights of women, children, adolescents and youth in the migrant
population in El Salvador.ʺ Cert. Adm. Rec. at 138.
                                        ‐10‐
             ʺEl Salvador has the highest rate in the world [of femicide] with an

average of 12 murders for every 100,000 women.ʺ Id. at 148‐49. As an article on

El Salvadorʹs gangs concluded, ʺin a country terrorized by gangsters, it is left to

the dead to break the silence on sexual violence . . . , to the bodies of dead

women and girls pulled from clandestine graves, raped, battered and sometimes

cut to pieces. They attest to the sadistic abuse committed by members of street

gangs.ʺ Id. at 149 (quoting El Salvadorʹs Gangs Target Women and Girls, Associated

Press, Nov. 6, 2014).

             As the State Department has found, rape, sexual crimes, and

violence against women are significantly underreported because of societal and

cultural pressures on victims and fear of reprisal, and the laws against rape ʺare

not effectively enforced.ʺ Country Report at 7. Police corruption in El Salvador

is well‐documented, including involvement in extra‐judicial killings and human

rights abuses. See id. at 1. The judicial system is also corrupt. While the law

provides criminal penalties for official corruption, ʺthe government d[oes] not

implement the law effectively, and . . . officials, particularly in the judicial

system, often engage[] in corrupt practices with impunity.ʺ Id. at 6. ʺLike

Salvadoran society as a whole, law enforcement officials, prosecutors, and judges

                                          ‐11‐
discriminate against women, reduce the priority of womenʹs claims, and

otherwise prevent women from accessing legal protections and justice. This

results in impunity for aggressors, which reinforces aggressorsʹ perception that

they can inflict violence without interference or reprisal.ʺ Cert. Adm. Rec. at 300‐

01.

             The IJ observed that Hernandez‐Chaconʹs experiences were

ʺgenerally consistent with the background materials she has submitted in regards

to pervasive brutal attacks by El Salvadoran gangs.ʺ Id. at 149‐50.

C.    The BIAʹs Decision

             Hernandez‐Chacon appealed the IJʹs decision to the BIA.4 As to the

social group claim, she relied only on her first proposed social group ‐‐

Salvadoran women who rejected the sexual advances of a gang member. She

continued to press the political opinion claim. On November 6, 2017, the BIA

affirmed the IJʹs decision. In re Rosario Del Carmen Hernandez‐Chacon, No. A 206

803 023 (B.I.A. Nov. 6, 2017), aff’g, No. A 206 803 023 (Immig. Ct. N.Y. City Oct.



4      The government appealed the IJʹs decision to the extent it granted CAT relief to
Hernandez‐Chacon and asylum to Gladis. The BIA affirmed the IJʹs grant of CAT relief
to Hernandez‐Chacon but sustained the governmentʹs appeal with respect to the grant
of asylum to Gladis, remanding the matter to the IJ. Gladisʹs proceedings have since
been severed, and only Hernandez‐Chaconʹs claim for asylum is before this Court.
                                         ‐12‐
19, 2016). The BIA held that the proposed social group of Salvadoran women

who rejected the sexual advances of a gang member lacked particularity and

social distinction, concluding that Hernandez‐Chacon had not demonstrated that

women who reject the sexual advances of a gang member are perceived by

Salvadoran society as a discrete group. The BIA disposed of Hernandez‐

Chaconʹs political opinion claim in a footnote, rejecting the claim ʺfor the reasons

stated in the [IJ]ʹs decision.ʺ Id. at 5 n.3.

              This petition for review followed.

                                      DISCUSSION

A.     Applicable Legal Standards

              Asylum is a discretionary form of relief granted to refugees, that is,

individuals who are unwilling or unable to return to their native country because

of persecution or a well‐founded fear of persecution. 8 U.S.C. §§ 1101(a)(42),

1158(b); see Guan Shan Liao v. U.S. Depʹt of Justice, 293 F.3d 61, 66 (2d Cir. 2002).

The applicant has the burden of proving eligibility for asylum. See 8 U.S.C.

§ 1158(b)(1)(B).

              To demonstrate eligibility, ʺthe applicant must establish that race,

religion, nationality, membership in a particular social group, or political opinion

                                            ‐13‐
was or will be at least one central reason for persecuting the applicant.ʺ 8 U.S.C.

§ 1158(b)(1)(B)(i). If an applicant demonstrates past persecution on account of a

protected ground, a rebuttable presumption arises that the applicant has a well‐

founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1). Absent evidence

of past persecution, an applicant must show that she subjectively fears

persecution and that the fear also is objectively reasonable. Ramsameachire v.

Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). A fear is objectively reasonable ʺeven if

there is only a slight, though discernible, chance of persecution.ʺ Diallo v. INS,

232 F.3d 279, 284 (2d Cir. 2000) (citing INS v. Cardoza‐Fonseca, 480 U.S. 421, 431

(1987)).

             ʺ[A]sylum may be granted where there is more than one motive for

mistreatment, as long as at least one central reason for the mistreatment is on

account of a protected ground.ʺ Acharya v. Holder, 761 F.3d 289, 297 (2d Cir. 2014)

(internal quotation marks omitted). Moreover, ʺ[d]irect governmental action is

not required for a claim of persecution. Private acts can constitute persecution if

the government ʹis unable or unwilling to control it.ʹʺ Paloka v. Holder, 762 F.3d

191, 195 (2d Cir. 2014) (quoting Rizal v. Gonzales, 442 F.3d 84, 92 (2d Cir. 2006)).




                                         ‐14‐
             In the circumstances of this case, the Court reviews the IJʹs decision

as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

2005). The applicable standards of review are well established. See 8 U.S.C.

§ 1252(b)(4)(B). ʺQuestions of law, as well as the application of legal principles to

undisputed facts, are reviewed de novo.ʺ Paloka, 762 F.3d at 195. Specifically,

legal determinations, such as whether a group constitutes a ʺparticular social

group,ʺ are reviewed de novo. Id. The agencyʹs findings of fact are reviewed

under a substantial evidence standard. See Xiu Xia Lin v. Mukasey, 534 F.3d 162,

165 (2d Cir. 2008) (per curiam).

B.    Application

             We conclude that the agency did not err in finding that Hernandez‐

Chacon failed to establish her social group claim, but we grant the petition with

respect to her political opinion claim and remand for further proceedings.

      1.    Social Group

             To constitute a particular social group, a group must be: ʺ(1)

composed of members who share a common immutable characteristic, (2)

defined with particularity, and (3) socially distinct within the society in

question.ʺ Matter of M‐E‐V‐G‐, 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see also Ucelo‐

                                         ‐15‐
Gomez v. Mukasey, 509 F.3d 70, 72‐74 (2d Cir. 2007) (per curiam). ʺA particular

social group is comprised of individuals who possess some fundamental

characteristic in common which serves to distinguish them in the eyes of a

persecutor ‐‐ or in the eyes of the outside world in general.ʺ Gomez v. INS, 947

F.2d 660, 664 (2d Cir. 1991); see also Paloka, 762 F.3d at 196 (finding group must be

ʺʹrecognizableʹ as a discrete group by others in the societyʺ); Ucelo‐Gomez, 509

F.3d at 73 (noting that ʺthe definition of the social group must have particular

and well‐defined boundariesʺ). Here, the agency did not err in concluding that

Hernandez‐Chaconʹs asserted social group ‐‐ El Salvadoran women who have

rejected the sexual advances of a gang member ‐‐ was not cognizable.

             Hernandez‐Chacon failed to provide sufficient evidence that her

proposed subset of Salvadoran women was a socially distinct group in

Salvadoran society. The country conditions evidence addresses widespread

violence against women in El Salvador, but it does not discuss whether women

who reject the sexual advances of gang members are perceived as a distinct

group in society or are at greater risk than anyone else who refuses to comply

with a gang memberʹs demands. See Ucelo‐Gomez, 509 F.3d at 73 (ʺWhen the

harm visited upon members of a group is attributable to the incentives presented

                                        ‐16‐
to ordinary criminals rather than to persecution, the scales are tipped away from

considering those people a ʹparticular social group . . . .ʹʺ). Accordingly, we hold

that the IJ did not err in finding that Hernandez‐Chacon failed to demonstrate

that she faces persecution on account of her membership in a particular social

group.5

      2.     Political Opinion

             To demonstrate that persecution, or a well‐founded fear of

persecution, is on account of an applicantʹs political opinion, the applicant must

show that the persecution ʺarises from his or her own political opinion.ʺ Yueqing

Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005). Thus, the applicant must

ʺshow, through direct or circumstantial evidence, that the persecutorʹs motive to

persecute arises from the applicant’s political belief.ʺ Id. (emphasis added). The




5      See Vega‐Ayala v. Lynch, 833 F.3d 34, 40 (1st Cir. 2016) (ʺVega‐Ayalaʹs
general reference to the prevalence of domestic violence in El Salvador does little
to explain how ʹSalvadoran women in intimate relationships with partners who
view them as propertyʹ are meaningfully distinguished from others within
Salvadoran society.ʺ). But see Alvarez Lagos v. Barr, 927 F.3d 236, 252‐55 (4th Cir.
2019) (remanding for agency to consider whether ʺgroup of unmarried mothers
living under the control of gangs in Honduras qualifies as a ʹparticular social
group,ʹʺ where record contained evidence that gang in question did ʺindeed
target victims on the basis of their membership in a socially distinct group of
unmarried mothersʺ).
                                         ‐17‐
persecution may also be on account of an opinion imputed to the applicant by the

persecutor, regardless of whether or not this imputation is accurate. See Delgado

v. Mukasey, 508 F.3d 702, 706 (2d Cir. 2007) (ʺ[A]n imputed political opinion,

whether correctly or incorrectly attributed, can constitute a ground for political

persecution.ʺ (internal quotation mark omitted) (quoting Chun Gao v. Gonzales,

424 F.3d 122, 129 (2d Cir. 2005)). The BIA has explained that persecution based

on political opinion is established when there is ʺdirect or circumstantial

evidence from which it is reasonable to believe that those who harmed the

applicant were in part motivated by an assumption that [her] political views

were antithetical to those of the government.ʺ Matter of S‐P‐, 21 I. & N. Dec. 486,

494 (B.I.A. 1996); see also Vumi v. Gonzalez, 502 F.3d 150, 157 (2d Cir. 2007).

             Here, Hernandez‐Chacon contends that if she is returned to El

Salvador she will be persecuted by gang members because of her political

opinion ‐‐ her opposition to the male‐dominated social norms in El Salvador and

her taking a stance against a culture that perpetuates female subordination and

the brutal treatment of women. She argues that when she refused to submit to

the violent advances of the gang members, she was taking a stance against a

culture of male‐domination and her resistance was therefore a political act.

                                         ‐18‐
             There is ample evidence in the record to support her claim.6 Gangs

control much of El Salvador, including the neighborhood in which Hernandez‐

Chacon lived. The law enforcement systems that would normally protect

women ‐‐ police, prosecutors, judges, officials ‐‐ do not have the resources or

desire to address the brutal treatment of women, and the Salvadoran justice

system ʺfavors aggressors and assassinsʺ and ʺpunish[es] victims of gender

violence.ʺ Cert. Adm. Rec. at 147. Yet, Hernandez‐Chacon testified that when

the first gang member tried to rape her, she resisted ʺbecause [she had] every

right to.ʺ Id. at 193. Three days later, when the same man and two other gang

members attacked her, she again resisted, to the point where they beat her until

she lost consciousness. She argues that the men targeted her for the second

attack ‐‐ and beat her so brutally ‐‐ because she had resisted the advances of an

MS gang member and they believed she needed to be punished for her act of

defiance. Her now husband likewise stated in his affidavit that Hernandez‐

Chacon will be attacked if she returns to El Salvador because ʺ[s]he has managed

to fight them off twice, but that just makes them angrier and if she shows her


6      At oral argument, the government forthrightly conceded that it was a
ʺpermissibleʺ inference that Hernandez‐Chacon was persecuted for her feminist
political ideology, though it argued that the record did not compel that result.
                                          ‐19‐
face again, I think they could kill her.ʺ Id. at 269.

                 While the IJʹs decision was thorough and thoughtful overall, her

analysis of Hernandez‐Chaconʹs political opinion claim was cursory, consisting

of the following:

                 [Hernandez‐Chacon] has also claimed that she had a political
                 opinion. I cannot conclude that her decision to resist the
                 advances of an individual is sufficient to establish that she has
                 articulated a political opinion. In trying to analyze a political
                 opinion claim, the Court has to consider the circumstances
                 under which a respondent not only possessed a political
                 opinion, but the way in which the circumstances under which
                 she articulated that political opinion. In this case she did not
                 advance a political opinion. I find that she simply chose not to
                 be the victim and chose to resist being a victim of a criminal
                 act.

Id. at 153‐54.

                 The BIA dismissed Hernandez‐Chaconʹs political opinion argument

in a single sentence, in a footnote, rejecting the claim ʺfor the reasons stated in the

[IJʹs] decision.ʺ Id. at 5 n.3. The analysis of both the IJ and the BIA was

inadequate. See Yueqing Zhang, 426 F.3d at 548‐49 (granting petition for review

and remanding case to agency where IJ failed to undertake the ʺcomplex and

contextual factual inquiryʺ necessary to determine if persecution was on account

of political opinion). We have three areas of concern.

                                            ‐20‐
             First, the agency concluded that Hernandez‐Chacon ʺdid not

advance a political opinion.ʺ Cert. Adm. Record at 154. But this Circuit has held

that the analysis of what constitutes political expression for these purposes

ʺinvolves a ʹcomplex and contextual factual inquiryʹ into the nature of the asylum

applicantʹs activities in relation to the political context in which the dispute took

place.ʺ Castro v. Holder, 597 F.3d 93, 101 (2d Cir. 2010) (quoting Yueqing Zhang,

426 F.3d at 548). We have held, for example, that resisting corruption and abuse

of power ‐‐ including non‐governmental abuse of power ‐‐ can be an expression

of political opinion. See Castro, 597 F.3d at 100 (noting that ʺopposition to

government corruption may constitute a political opinion, and retaliation against

someone for expressing that opinion may amount to political persecutionʺ);

Delgado, 508 F.3d at 706 (holding that refusing to give technical assistance to the

FARC in Columbia can be expression of political opinion); Yueqing Zhang, 426

F.3d at 542, 546‐48 (holding that retaliation for opposing corruption of local

officials can constitute persecution on account of political opinion); Osorio v. INS,

18 F.3d 1017, 1029‐31 (2d Cir. 1994) (holding that ʺunion activities [can] imply a

political opinion,ʺ and not merely economic position). The Fourth Circuit has

recently recognized that the refusal to acquiesce to gang violence can constitute

                                         ‐21‐
an expression of political opinion. See Alvarez Lagos, 927 F.3d at 254‐55 (where

record contained evidence that gang in question would view refusal to comply

with demand for sex as ʺpolitical opposition,ʺ refusal to acquiesce to gang

violence and flight to United States could demonstrate imputed anti‐gang

political opinion that constitutes protected ground for asylum). Here, the agency

did not adequately consider whether Hernandez‐Chaconʹs refusal to acquiesce

was ‐‐ or could be seen as ‐‐ an expression of political opinion, given the political

context of gang violence and the treatment of women in El Salvador.

             Second, the IJ concluded that Hernandez‐Chacon ʺsimply chose to

not be a victim.ʺ Cert. Adm. Rec. at 154. But even if Hernandez‐Chacon was

motivated in part by her desire not to be a crime victim, her claims do not

necessarily fail, as her political opinion need not be her only motivation. See

8 U.S.C. § 1158(b)(1)(B)(i) (ʺThe applicant must establish that race, religion,

nationality, membership in a particular social group, or political opinion was or

will be at least one central reason for persecuting the applicant.ʺ (emphasis added));

Osorio, 18 F.3d at 1028 (ʺThe plain meaning of the phrase ʹpersecution on account

of the victimʹs political opinion,ʹ does not mean persecution solely on account of

the victimʹs political opinion.ʺ); see also Vumi, 502 F.3d at 158 (remanding to

                                         ‐22‐
agency where BIA failed to engage in mixed‐motive analysis). While

Hernandez‐Chacon surely did not want to be a crime victim, she was also taking

a stand; as she testified, she had ʺevery rightʺ to resist. As we have held in a

different context, ʺopposition to endemic corruption or extortion . . . may have a

political dimension when it transcends mere self‐protection and represents a

challenge to the legitimacy or authority of the ruling regime.ʺ Yueqing Zhang, 426

F.3d at 547‐48. Here, Hernandez‐Chaconʹs resistance arguably took on a political

dimension by transcending mere self‐protection to also constitute a challenge to

the authority of the MS gang.

             Third, the agency did not consider whether the gang members

imputed a political opinion to Hernandez‐Chacon. This Circuit has held that ʺan

imputed political opinion, whether correctly or incorrectly attributed, can

constitute a ground of political persecution within the meaning of the

Immigration and Nationality Act.ʺ Vumi, 502 F.3d at 156 (citations omitted); see

Chun Gao, 424 F.3d at 129 (in case of imputed political opinion, question is

ʺwhether authorities would have perceived [petitioner] as [a practitioner of Falun

Gong] or as a supporter of the movement because of his activitiesʺ). Here, the IJ

erred in her political opinion analysis by only considering whether Hernandez‐

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Chacon ʺadvance[d]ʺ a political opinion. Cert. Adm. Rec. at 154. The IJ failed to

consider whether the attackers imputed an anti‐patriarchy political opinion to

her when she resisted their sexual advances, and whether that imputed opinion

was a central reason for their decision to target her. See Castro, 597 F.3d at 106

(holding that to properly evaluate a claim of political opinion, IJ must give

ʺcareful consideration of the broader political contextʺ). In fact, as the gang

members attacked her the second time, one of them told her that because she

would not ʺdo this with him in a good way, it was going to happen in a bad

way,ʺ Cert. Adm. Rec. at 186, which suggests that the gang members wanted to

punish her because they believed she was taking a stand against the pervasive

norm of sexual subordination.

             We note that the Fourth Circuit recently granted a petition for

review in a case involving a woman in Honduras who was threatened by a gang

in similar circumstances. The Fourth Circuit concluded that if, as the petitioner

alleged, the gang had imputed to her ʺan anti‐gang political opinion, then that

imputed opinion would be a central reason for likely persecution if she were

returned to Honduras.ʺ See Alvarez Lagos, 927 F.3d at 251. The court held that

the IJ erred by not considering the imputed political opinion claim, that is,

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whether the gang believed that the petitioner held an anti‐gang political opinion.

Id. at 254. Likewise, here, the agency did not adequately consider Hernandez‐

Chaconʹs imputed political opinion claim.

            Accordingly, we hold that the agency erred in failing to adequately

consider Hernandez‐Chaconʹs claim of persecution or fear of persecution based

on actual or imputed political opinion.

                                 CONCLUSION

            For the reasons set forth above, the petition is GRANTED with

respect to Hernandez‐Chaconʹs political opinion claim and the case is

REMANDED to the BIA for proceedings consistent with this opinion.




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