                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 26 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


IVETH STEPHANI OLMOS BORJA,                      No. 09-72816

              Petitioner,                        Agency No. A089-679-716

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted November 5, 2013

                              San Francisco, California

Before: TASHIMA, W. FLETCHER, and NGUYEN, Circuit Judges.

       Iveth Stephani Olmos Borja, a native and citizen of El Salvador, petitions for

review of a decision of the Board of Immigration Appeals (“BIA”) dismissing her

appeal from an immigration judge’s decision denying her application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for substantial

evidence the agency’s factual findings, Hu v. Holder, 652 F.3d 1011, 1016 (9th

Cir. 2011), and we grant the petition.

      An alien who qualifies as a refugee may be granted asylum. 8 U.S.C.

§ 1158(b)(1). A refugee is an alien who is unable to return to her home country

“because of persecution or a well-founded fear of persecution on account of race,

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

Ding v. Ashcroft, 387 F.3d 1131, 1136 (9th Cir. 2004) (quoting 8 U.S.C.

§ 1101(a)(42)(A)). The agency denied Olmos Borja’s asylum application because

it found that the treatment she received at the hands of the 18th Street Gang was

not “on account of” one of these protected grounds.

      Olmos Borja claims that she suffered persecution on account of, among

other things, her membership in the particular social group of her family. The BIA

acknowledged that family membership could be “ties [that] provide a sufficient

basis for granting” asylum or withholding of removal, but found that Olmos Borja

was unable to “distinguish her situation from that of her other family members”

who remained in El Salvador after she fled, specifically her mother and father. The

BIA therefore concluded that the gang’s actions did not have a sufficient nexus

with Olmos Borja’s membership in her family group.


                                           2
      The agency’s nexus determination is not supported by substantial evidence.

Olmos Borja need not show that another family member was persecuted on

account of a protected ground in order to establish her eligibility for asylum.

Rather, she need only show that she herself was persecuted or had a well-founded

fear of persecution because of her family membership. See, e.g., Kebede v.

Ashcroft, 366 F.3d 808, 812 (9th Cir. 2004) (holding that a petitioner was eligible

for asylum where soldiers’ statements while attacking petitioner showed a link

between their assault and her family’s authority and position in the previous

government).

      Furthermore, unless there is evidence that the family was similarly situated

or subject to similar risk, the continued presence of family members in the country

of origin does not necessarily rebut an applicant’s claims. See Kumar v. Gonzales,

444 F.3d 1043, 1055 (9th Cir. 2006) (finding it irrelevant that petitioner’s parents

were not harmed after petitioner left India, where they were not “similarly

situated”). Olmos Borja’s mother was not similarly situated to Olmos Borja, and

her father died of natural causes in 2008, approximately 15 months after Olmos

Borja left El Salvador.

      The evidence compels a conclusion that Olmos Borja both suffered past

persecution and has a well-founded fear of future persecution by the gang, and that


                                           3
her membership in a particular social group—a family who actively opposes the

gang because its members killed Olmos Borja’s sister—was at least one central

reason for the gang members’ actions. See Parussimova v. Mukasey, 555 F.3d

734, 740 (9th Cir. 2009) (holding that, following the REAL ID Act’s amendments

to the Immigration and Nationality Act, an asylum applicant must establish that a

protected ground was or will be at least one central reason for her persecution).

      Accordingly, we find Olmos Borja eligible for asylum. Because we find that

Olmos Borja has established her eligibility for asylum, we need not reach her

withholding of removal and CAT claims. We therefore grant the petition as to

Olmos Borja’s asylum claim, and remand for the Attorney General to exercise his

discretion to grant asylum.

      Petition GRANTED and REMANDED.




                                          4
                                                                            FILED
Olmos Borja v. Holder, No. 09-72816                                          DEC 26 2013

                                                                       MOLLY C. DWYER, CLERK
TASHIMA, Circuit Judge, dissenting:                                        U.S. COURT OF APPEALS



      Under the REAL ID Act, we cannot reverse the factual findings of the BIA

“unless any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B) (codifying the holding of INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992)). The majority concludes that the evidence

compels a conclusion that Olmos Borja’s family association was at least one

central reason for her persecution by the 18th Street Gang and that she has a well-

founded fear of persecution on account of her family association if she returns to

El Salvador. Although the record may support such a conclusion, it does not

compel it. Thus, the majority’s finding that Olmos Borja is eligible for asylum

fails to surmount the high bar of the REAL ID Act. I therefore respectfully

dissent.

                                         I.

      The BIA concluded that Olmos Borja was not persecuted on account of her

membership in the social group of her family. I cannot say that the evidence in the

record would compel any reasonable adjudicator to reach a conclusion contrary to

the one reached by the BIA.

      Only two pieces of evidence support the majority’s conclusion that Olmos

Borja was targeted because of her family association. First, in 2005, an
unidentified individual called Olmos Borja on the cell phone that had belonged to

her sister Lisseth and said, “we are going to kill you like we killed that bitch your

sister was.” But it is less than clear why the caller threatened Olmos Borja. It

could have been because she was related to Lisseth or for a different reason – such

as because she was a potential witness against the gang – and her sister’s death was

mentioned only to intimidate her.

      Second, in November 2006, gang members threatened Olmos Borja because

they were angry with her father. On that occasion, a gang member said to Olmos

Borja: “Your father is not sitting well with us. He is looking at us like shit; he is

looking down at us and that bothers me and you are going to foot the bill because

we are the law here.” Admittedly, this evidence does support the inference that

Olmos Borja was threatened because of her relationship with her father. But this

evidence must be viewed through the lens of the record as a whole. See Elias-

Zacarias, 502 U.S. at 481. The record shows that Olmos Borja was personally

targeted by gang members for several years, beginning before Lisseth was killed

and her family became actively involved in the investigation of the murder. In that

time, there is only a single incident during which the threats were connected to her

relationship with her family. This single comment is, I submit, insufficient to

compel the conclusion that Olmos Borja was targeted on account of her family

                                           2
association, given that other portions of the record suggest that gang members had

different reasons for targeting her.

       Olmos Borja explained that Detective Escobar advised her to leave the

country “because they might think that I knew things and might be a witness

against them . . . .” Petitioner testified that she shared the Detective’s

apprehension, that “I really am afraid that they’re going to harm me because of

what they think.”

       This theory of why Olmos Borja was targeted – because she was a potential

witness against the gang – is at least as plausible as the theory advanced by the

majority – family membership. The record suggests that gang members did indeed

believe Olmos Borja had information regarding Lisseth’s death. A man associated

with the gang questioned her at Lisseth’s wake regarding what she knew about her

sister’s death and asked her “what is it that you know, who killed your sister, tell

me . . . .”

       Thus, substantial evidence supports the BIA’s conclusion that Olmos Borja

was primarily targeted because she was seen as a potential witness rather than on

account of her family association and we cannot substitute our own contrary

conclusion. See Elias-Zacarias, 502 U.S. at 481. Given the paucity of evidence

on the gang members’ motivation for their threats, I conclude that we cannot

                                            3
disturb the BIA’s conclusion that Olmos Borja’s family association was not a

central reason for her persecution.

                                              II.

      I also part ways with the majority regarding whether Olmos Borja has a

well-founded fear of persecution on account of membership in the social group of

her family if she were to return to El Salvador. Although the BIA accepted that

Olmos Borja’s fear was genuine, it determined that the fear was not objectively

well-founded because neither of her parents experienced harm rising to the level of

persecution after her departure, and she failed to distinguish her situation from

theirs. Here, again, the evidence does not compel a contrary conclusion.

      Since Olmos Borja left El Salvador, her mother has remained in the country

unharmed. Although her father died approximately 15 months after Olmos Borja

left the country, he too did not experience persecution during that time. Under our

precedent, their continued safety is itself substantial evidence that Olmos Borja

does not face a well-founded fear of persecution on account of her membership in

the social group of her family.1 See Santos-Lemus v. Mukasey, 542 F.3d 738,


      1
            The majority’s reliance on cases dealing with claims for asylum based
on grounds other than family association incorrectly downplays the significance of
Olmos Borja’s family’s safety in this case, where her claim for asylum is based on
membership in the social group of her family.

                                          4
743–44 (9th Cir. 2008) (“[W]here Santos-Lemus’s claim of persecution is based on

his membership in the ‘particular social group’ of his ‘family,’ the fact that a

family member has remained unharmed since he left El Salvador is ‘substantial

evidence’ supporting the Board’s finding that Santos-Lemus lacks a well-founded

fear of future persecution based on family membership.”).

      The majority discounts the relevance of Olmos Borja’s mother’s continued

safety by concluding that Olmos Borja is not similarly situated to her mother. I do

not find any evidence in the record that compels the majority’s conclusion. Olmos

Borja attempts to distinguish her situation from that of her mother by asserting that

her mother now lives in a different town and has remained safe because she rarely

leaves the house. In fact, Olmos Borja lived for a time with her mother and

continued to receive threats and harassment from gang members. Thus, I cannot

say that location is such a compelling distinction between the two that it permits us

to reverse the BIA.

      The other ways in which Olmos Borja’s situation may be different from that

of her mother are, I believe, irrelevant to Olmos Borja’s claim for asylum based on

her family membership. For example, Olmos Borja argues – and the majority

appears to accept – that her situation is distinguishable from that of her mother

because her mother never actively opposed the gang or participated in the

                                           5
investigation into Lisseth’s murder. While these distinctions may be relevant if

Olmos Borja were claiming asylum on a different protected ground, they are not

relevant to her claim based on family membership. In other words, substantial

evidence supports the BIA’s conclusion that Olmos Borja and her mother are

similarly situated to the extent that Olmos Borja seeks asylum as a member of the

social group of her family.

      We have previously rejected an argument very similar to the one adopted by

the majority today. In Santos-Lemus, the petitioner, a young male, argued that his

mother’s continued safety did not negate his claim of a well-founded fear of

persecution on account of his family association because she was a female, while

the gang targeted young males like him. See 542 F.3d at 744. There, we held the

argument to be irrelevant to whether the petitioner was targeted on account of his

family membership, although it may have been relevant to a claim for asylum

based on other grounds. Id. I see no persuasive distinction between Santos-Lemus

and the present case on this issue. As in Santos-Lemus, Olmos Borja’s argument

that her mother was not similarly situated because she did not participate in the

investigation or oppose the gang is simply irrelevant to the question of whether

Olmos Borja was targeted on account of her family association; in fact, like in

Santos-Lemus, it suggests that she was targeted primarily for other reasons.

                                          6
      Further, I find it perplexing why the majority discounts her father’s safety

merely because he only lived in El Salvador for 15 months after Olmos Borja left.

I see no reason why the evidence from the 15 months he continued to live in El

Salvador before his death could not have been considered by the BIA in assessing

Olmos Borja’s fear of persecution. There is no evidence to suggest that Olmos

Borja and her father were not similarly situated. Thus, her father’s safety after

Olmos Borja left El Salvador also provides substantial evidence to support the

BIA’s conclusion.2 See id. at 743–44.

                                              III.

      Although I do not believe the evidence compels the conclusion that Olmos

Borja is eligible for asylum based on her membership in the social group of her

family, she may be eligible for asylum on a different ground – her membership in

the social group of individuals who gang members believe to be potential


      2
             The majority has constructed a peculiar “particular social group,”
consisting of three members, only one of whom has faced persecution. The
majority defines the particular social group of which Olmos Borja is a member as
“a family who actively opposes the gang because its members killed Olmos Borja’s
sister.” Maj. Dispo. at 4. But this construct is at odds with the majority’s
conclusion that “Olmos Borja’s mother was not similarly situated to Olmos Borja,
and her father died of natural causes in 2008.” Maj. Dispo. at 3. What the
majority’s statements amount to is the contradictory assertion that Olmos Borja is
not similarly situated to the only other members of the defined group, which
consists only of herself and her parents.

                                          7
witnesses against them or individuals who participate in official investigations

against gang members. The BIA’s decision suggests that it may have concluded

that Olmos Borja was persecuted because gang members believed her to be a

witness to her sister’s murder or because she cooperated in the investigation of the

shooting. The BIA, however, did not consider whether Olmos Borja was eligible

for asylum on this ground.

      When the BIA decided this case, it did not have the benefit of Henriquez-

Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc), in which we held that

“witnesses who testify against gang members” may be a cognizable social group.

Id. at 1083. We have since also recognized that government informants and

collaborators may be cognizable social groups. See Lopez-Simon v. Holder, 2013

WL 3929586, at *1 (9th Cir. July 31, 2013) (government informants) (unpublished

memorandum); Pinhas v. Holder, 2013 WL 3043149, at *1–*2 (9th Cir. June 19,

2013) (U.S. Drug Enforcement Agency collaborators) (unpublished

memorandum).

      Henriquez-Rivas suggests that “the perception of the persecutors may matter

the most” in determining whether a social group is cognizable under the statute.

Henriquez-Rivas, 707 F.3d at 1089. Indeed, the “petitioner is persecuted precisely

because the persecutor recognizes the object of his persecution.” Id. Thus, if gang

                                          8
members perceived Olmos Borja to be a potential witness and targeted her for that

reason, she may belong to a cognizable social group comprised of perceived or

potential witnesses. In that case, “as far as [her] persecutor is concerned,” id. at

1090, Olmos Borja may be part of a discrete class of persons who are potential

witnesses against gang members. Similarly, if gang members targeted Olmos

Borja because she participated in the investigation against them, she may be

eligible for asylum as a member of a group similar to government informants or

DEA collaborators. See Lopez-Simon, 2013 WL 3929586, at *1; Pinhas , 2013

WL 3043149, at *1–*2.

      Because the BIA has not yet considered whether Olmos Borja is eligible for

asylum based on her membership in the social group of individuals perceived to be

potential witnesses against gang members or individuals who participate in

investigations into gang members’ alleged crimes, I would remand for the BIA’s

consideration of this question in light of Henriquez-Rivas.

                                               IV.

      In sum, although the evidence may support the conclusion that Olmos Borja

was persecuted on account of her membership in the social group of her family or

faces a well-founded fear of persecution on this ground, I cannot agree with the

majority that the evidence compels such a conclusion. I would, however, remand

                                           9
to the BIA for its consideration, in light of Henriquez-Rivas, of whether Olmos

Borja is entitled to relief as a member of a different protected group.




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