In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3751
S ERGIO E SCOBAR,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States, Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A095-905-213
A RGUED M AY 31, 2011—D ECIDED S EPTEMBER 7, 2011
Before E ASTERBROOK, Chief Judge, and W OOD and
T INDER, Circuit Judges.
W OOD , Circuit Judge. Sergio Escobar fled Colombia
after the Revolutionary Armed Forces of Colombia
(FARC, short for Fuerzas Armadas Revolucionarias de
Colombia) pursued him relentlessly, subjecting him to
multiple hijackings at gunpoint, directing death threats
at him and his family, and burning his trucks. Escobar
then applied for asylum, asserting that the government
sat by and allowed FARC to persecute him because
of his affiliation with the Liberal Party and his status as
2 No. 10-3751
a pro-government trucker who refused to cooperate
with FARC. The Immigration Judge (IJ) found Escobar
credible and determined that he was eligible for asylum.
The Board of Immigration Appeals (Board) rejected
the IJ’s decision and ordered Escobar removed. As the
Board saw it, Escobar had not endured persecution at the
hands of FARC. Even if he had, the Board continued, his
persecution occurred only because FARC wanted his
trucking services, not because of his membership in
any group recognized by the asylum statute. We con-
clude that the Board’s finding that Escobar was not perse-
cuted, or that if he was, that his persecution was not
on account of the protected grounds of his membership
in a particular social group and his political beliefs,
failed to take account of all the evidence in the record.
We therefore grant the petition for review and remand
to the Board for further consideration of Escobar’s case.
I
Escobar is a Colombian national from the small town
of Cerrito. He attended the university in the flourishing
city of Cali. After receiving his degree in marketing,
Escobar decided to pursue his dream of owning his own
business, and so he bought two trucks to start a small
transportation service. Unfortunately, Escobar soon
crossed paths with FARC and his dream turned to night-
mare.
Colombia has been ravaged by internal political and
criminal conflict. The battle that rages has many different
actors: the government’s security troops, paramilitary
groups, revolutionary guerrilla groups, and drug traf-
No. 10-3751 3
fickers. U NITED N ATIONS H IGH C OMMISSIONER F OR R EFU-
GEES, T HE S TATE OF THE W ORLD ’S R EFUGEES ch. 7 (2006).
One of the more powerful actors is FARC. Originally
established to serve as the military wing of the
Colombian Communist Party, it is now a free-standing
leftist revolutionary organization attempting to over-
throw the Colombian civil government. FARC is
well-organized and sophisticated; in the areas under its
control, FARC displaces civil government and rules on
its own. Liz Harper, Colombia’s Civil War: FARC, avail-
able at http://www.pbs.org/newshour/bb/latin_america/
colombia/players_farc.html. Its tactics are brutal. FARC
regularly kidnaps, ransoms, and assassinates local party
officials and members. A MNESTY INTERNATIONAL, A MNESTY
I NTERNATIONAL R EPORT 2011: T HE S TATE OF THE W ORLD’ S
H UMAN R IGHTS 108-12 (2011); B UREAU OF D EMOCRACY,
H UMAN R IGHTS, AND L ABOR, 2009 H UMAN R IGHTS R E-
PORT: C OLOMBIA (2010), available at http://www.state.gov/
g/drl/rls/hrrpt/2009/wha/136106.htm. This has led the
United States to designate FARC as a Foreign Terrorist
Organization. U.S. Dep’t of State, Foreign Terrorist Organ-
izations (May 19, 2011), available at http://www.state.gov/
s/ct/rls/other/des/123085.htm. FARC spies on political
party meetings in order to keep tabs on their affairs and
identify members of influence and importance, some
of whom will be future victims.
Escobar was an active member in Colombia’s Lib-
eral Party, one of the two parties that dominate the Co-
lombian political establishment. Living in rural Colombia
where transportation can be difficult to come by, Escobar
often drove members of the Liberal Party to rallies and
meetings. His service to the Liberal Party bore fruit, for
4 No. 10-3751
he obtained one of his principal trucking contracts,
which was with a sugar refinery from Cauca, through
his Liberal Party contacts. In March 1998, Escobar drove
some Liberal Party members to and from a political
meeting. It was there, Escobar believes, that FARC no-
ticed him. After the meeting, five or six FARC members
stopped Escobar at an improvised roadblock and threat-
ened him at gunpoint that they would kill him if he
did not transport their cargo. The leader of the FARC
squadron told Escobar that from that point forward he
was to serve FARC’s transportation needs. He further
warned Escobar that he would be killed if he refused
to comply or reported the encounter to the authorities.
In fear for his life, Escobar transported the cargo, after
which FARC released him. Escobar followed orders
and did not report this incident to the authorities. From
that point, he tried to avoid further contact with FARC
by taking alternate trucking routes.
This tactic worked only for a time. Some months later,
Escobar again ran into FARC, was hijacked at gunpoint,
and was forced to transport cargo to a distant FARC
hideout. A few months later, he was hijacked a third
time. This time, when approaching the FARC roadblock,
Escobar unsuccessfully tried to maneuver around the
FARC soldiers. This angered them and prompted them
to threaten to kill Escobar and his family. After this
encounter Escobar contacted the authorities. He filed a
complaint with the Police Department of the city of
Candelaria, but nothing came of it.
A few months later, Escobar learned that members
of a paramilitary group that opposed FARC came to his
No. 10-3751 5
place of business in his absence. They suspected Escobar
of collaborating with FARC and threatened to kill him.
Caught in the middle of these rival forces, Escobar went
into hiding. But FARC had not forgotten about him.
FARC soldiers went looking for him, visiting his former
home and place of business. They communicated to his
friends and business contacts that he had better come
out of hiding or else something ominous might happen
to him or his trucks. Escobar believed this to be a trap; if
he came out of hiding, he feared, he would be killed.
He stayed in the shadows, but FARC made good on its
threat by burning his trucks. Just to ensure that it made
a lasting impression on Escobar, FARC also branded
its insignia on the ruined vehicles.
Escobar immediately fled Colombia. He bought a
plane ticket to Panama and from there traveled to the
United States on a tourist visa. In early June 2000, he
landed in Miami with permission to stay in the country
until December 2000. While there, he spoke to a reporter
for the Miami Herald about his interactions with FARC.
The reporter put him in touch with agents of the Drug
Enforcement Administration (DEA) who were interested
in FARC’s involvement with drug trafficking. Not
familiar with U.S. immigration law, Escobar thought that
his cooperation with the feds would allow him to
remain in the United States as a legal resident. After
receiving no further contact from the DEA, in mid-May
2002, Escobar filed an asylum application. In early August
2002, the former Immigration and Naturalization
Service (now Citizenship and Immigration Services) issued
Escobar a Notice to Appear and placed him under
6 No. 10-3751
removal proceedings pursuant to 8 U.S.C. § 1227(a)(1)(B).
In the meantime, Escobar continued to assist U.S. law
enforcement, meeting with FBI agents and providing
details about the FARC members he had encountered.
On May 11, 2009, an Immigration Judge granted
Escobar’s asylum application. Though Escobar failed to
file his application within one year of arriving in the
United States, the IJ held that Escobar’s asylum applica-
tion could be processed because of changed circum-
stances. On the merits, the IJ found Escobar credible
and concluded that he had been persecuted on account
of two protected grounds: his political beliefs as a
member of the Liberal Party, and his membership in
the particular social group of truckers who refused to
cooperate with FARC and collaborated with law enforce-
ment. Finally, the IJ ruled that, contrary to the govern-
ment’s allegations, Escobar had not provided material
support to FARC.
The government appealed the IJ’s decision to the
Board, which vacated the IJ’s grant of asylum and ordered
Escobar removed. The Board agreed with the IJ that
Escobar’s asylum application qualified for the excep-
tion to the one-year filing period because of changed cir-
cumstances, and it upheld the IJ’s determination that
Escobar was credible. Nevertheless, the Board did not
think that Escobar had shown that he was persecuted.
It reasoned that the burning of his trucks was a form
of nonphysical, economic disadvantage insufficiently
severe to be considered persecution. The Board added
that even if Escobar was persecuted, any such persecu-
No. 10-3751 7
tion was not on account of his political beliefs or his
membership in a particular social group. For these
reasons, the Board concluded that Escobar was ineligible
for asylum and ordered him removed. This petition
for review followed.
II
A
To be eligible for asylum, an applicant must show that
he is a refugee within the meaning of the Immigration
and Nationality Act (INA). 8 U.S.C. § 1158(b)(1)(A);
8 C.F.R. § 1208.13(b). The INA defines a “refugee” as
an alien who is “unable or unwilling to return” to the
country of his nationality “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.” 8 U.S.C. § 1101(a)(42)(A);
8 C.F.R. § 1208.13(b). The applicant must show that he
fits within one of those categories and that there is “a
nexus between his fear of future persecution and one of
those five protected grounds.” Ishitiaq v. Holder, 578
F.3d 712, 715 (7th Cir. 2009).
As usual, our standard of review for legal questions is
de novo. Vahora v. Holder, 626 F.3d 907, 910 (7th Cir. 2010).
Precedential opinions of the Board interpreting the gov-
erning legal standards, or non-precedential decisions of
the Board that rely on applicable Board precedent, are
entitled to Chevron deference. See Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984); see
8 No. 10-3751
also Arobelidze v. Holder, No. 10-2986, 2011 WL 3132459,
at *5 (7th Cir. July 27, 2011). Non-precedential decisions,
such as the one the Board rendered in Escobar’s case,
are not. Arobelidze, 2011 WL 3132459, at *6. Under
Chevron, if Congress has directly spoken to the precise
question at issue, then “that is the end of the matter”: the
court must follow that clear guidance. 467 U.S. at 842-43.
If, on the other hand, the statute is silent or ambiguous,
the court must defer to authoritative agency interpreta-
tions of the law. Id. at 844; see United States v. Mead Corp.,
533 U.S. 218, 231-33 (2001). Once the legal framework
is established, the remaining task is to apply the law to
the facts in the record. Our duty at this stage is to uphold
the Board’s determination if it is supported by sub-
stantial evidence. See INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992). Under the substantial evidence standard,
the agency’s determination will stand if it is supported
by reasonable, substantial, and probative evidence on
the record considered as a whole. Vahora, 626 F.3d at 910.
The asylum applicant need demonstrate, with direct
or circumstantial evidence, only that the persecutor was
motivated “at least in part, by one of the enumerated
[protected] grounds.” Gjerazi v. Gonzales, 435 F.3d 800,
812 (7th Cir. 2006) (internal quotations omitted) (stating
the pre-REAL ID requirement).
In overturning the IJ’s grant of asylum, the Board first
determined that Escobar had not been persecuted at all.
In coming to this conclusion, however, the Board inex-
plicably focused only on the burning of Escobar’s trucks.
Characterizing this as inflicting nothing more than
an unfortunate economic disadvantage, the Board con-
No. 10-3751 9
cluded that the economic detriment was not severe
enough to count as persecution. The Board then stated
that, even if he had been persecuted, Escobar had not
shown the requisite nexus between his putative persecu-
tion and a protected ground. In particular, the Board
found that there was no evidence that FARC showed
any interest in Escobar’s political opinion—it just wanted
his trucks at its disposal. Finally, the Board stated that
Escobar’s suggested social group did not meet the statu-
tory criteria. It understood him to be arguing for a
group consisting of truckers, and it rejected that group
as one that reflected neither an immutable characteristic
nor a characteristic that one should not be required to
change as a matter of conscience.
We have no quarrel with the broad legal principles that
the Board applied. Nevertheless, as we now explain, the
Board failed to take all the facts into account or at least
neglected to explain why it was disregarding key parts
of Escobar’s experience. We therefore cannot accord
the normal weight to its application of these legal princi-
ples to the case before it. We look first at the ques-
tion whether the government of Colombia can be held
responsible for Escobar’s persecution. Next, we consider
whether the Board’s factual finding that the mistreat-
ment FARC inflicted on Escobar was not enough to
amount to “persecution” was supported by substantial
evidence. Third, we address the Board’s conclusion that
Escobar failed to prove his membership in either a
social group or a group defined by political opinion. See
8 U.S.C. §§ 1101(42), 1158(b)(1)(B)(i). Finally, we discuss
the Board’s factual conclusion that Escobar failed to
10 No. 10-3751
prove a link between his persecution and his group
membership.
B
It was not the legitimate government of Colombia that
mistreated Escobar; it was instead FARC, a powerful
insurgent group that (as we mentioned earlier) has
earned the designation of Foreign Terrorist Organization
from the U.S. State Department. Normally, in order to
obtain relief under the INA, persecution must be
inflicted by the government; asylum is not offered for
those who are unfortunate enough to be victims of ordi-
nary crime or generalized chaos. Nevertheless, when a
“government either condones [persecution by a private
group] or is helpless to prevent it . . . the claim
[for asylum] is a good one.” Hor v. Gonzales, 421 F.3d
497, 501 (7th Cir. 2005). Given the strength of FARC in
Colombia, its state-like status, its ongoing war with the
Colombian government, and the impotence of the gov-
ernment over FARC, the “state action” element of
Escobar’s claim is easily met by the evidence showing
that FARC has persecuted him. Tapiero de Orejuela v.
Gonzales, 423 F.3d 666, 668-71 (7th Cir. 2005) (recognizing
an asylum claim due to persecution by FARC). We do not
see anything in the Board’s opinion that takes issue
with this point.
C
The Board did express the view that the mistreatment
Escobar suffered was not severe enough to amount to
No. 10-3751 11
persecution. Its opinion, however, presents what can
charitably be called a sanitized view of the evidence.
Here is what it said:
The respondent was never physically harmed by the
FARC. (Tr. at 140-141). The respondent testified that
some people told him the FARC was looking for him
and the FARC said that something could happen
to him or his trucks if he did not reappear (Tr. at 93).
When the respondent did not reappear, his trucks
and a bulldozer were burned (Tr. at 94-95, 137).
As we have already explained, Escobar’s case is based
on much more than that. On three separate occasions,
FARC members hijacked Escobar’s truck, kidnapped
him, and ordered him to do their bidding at gunpoint.
Each time, they sent him off with a stern warning ac-
companied by a threat to his life and family. When he
hid, they scoured the area looking for him, telling his
friends that if he did not show himself they would kill
him, kill his family, and destroy his trucks. When Escobar
refused the bait, they made good on their threat: they
burned his trucks and branded their call-sign on the
wrecks. The Board never took that evidence into ac-
count. If it had a reason for thinking this part of FARC’s
mistreatment of Escobar irrelevant, we do not know
what that reason is. Even though our review is deferential,
“the [Board] may not simply overlook evidence in
the record that supports the applicant’s case.” Espinosa-
Cortez v. Attorney General, 607 F.3d 101, 113 (3d Cir. 2010),
citing, inter alia, Mema v. Gonzales, 474 F.3d 412, 419 (7th
Cir. 2007) (“An applicant for asylum is entitled to a rea-
12 No. 10-3751
soned analysis, not one which wholly disregards
relevant, probative evidence.”).
It is especially troubling that the Board said nothing
about the threats of violence FARC made when Escobar
did not come out of hiding. Threats can constitute per-
secution, if they are immediate, menacing, or the perpetra-
tors attempt to follow up on them. Nzeve v. Holder, 582
F.3d 678, 683 (7th Cir. 2009). The IJ at least was con-
vinced that the threats against Escobar were all
immediate and menacing, as FARC would have killed
Escobar had it discovered him. FARC showed its willing-
ness to carry out its threats by burning his trucks in a
public display. Even if we were to restrict ourselves to
the truck-burning incident, the Board’s analysis is in-
complete. If FARC really just wanted Escobar’s trucks,
as the Board speculated, it would not have immolated
them; it would simply have stolen them. Its burning of
the trucks was not a simple economic blow to Escobar.
It was a criminal act of arson designed to intimidate
him, made all the more effective by also hurting him
economically. See Bazan-Reyes v. INS, 256 F.3d 600, 608
(7th Cir. 2001) (stating that arson is a crime of violence
for removal purposes); cf. Virginia v. Black, 538 U.S. 343,
388-89 (2003) (Thomas, J., dissenting) (discussing the
intimidation caused by cross-burning). Escobar argues
that the message was clear: we are burning your trucks
today, and we will come after you and your family tomor-
row if you do not cooperate with us. FARC’s acts were
ongoing, escalating in violence, and impossible for
Escobar to evade. The Board’s decision that they did not
No. 10-3751 13
qualify as persecution cannot stand without taking all of
this evidence into account.
D
In order to be entitled to asylum, Escobar must link
his mistreatment to either his “race, religion, nationality,
membership in a particular social group, or political
opinion.” 8 U.S.C. §§ 1101(42), 1158(b)(1)(B)(i). He argues
that he satisfies both the “particular social group” and
the “political opinion” categories. We first address his
theory that he was persecuted for belonging to a par-
ticular social group. To qualify for asylum based on
group membership, an alien must: (1) identify a par-
ticular social group; (2) establish that he is a member of
that group; and (3) establish that his persecution or
well-founded fear of persecution is based on his member-
ship in that group. Sharif v. INS, 87 F.3d 932, 936 (7th
Cir. 1996). The INA does not define “particular social
group,” but the Board has described it as a group whose
members share “common characteristics that members
of the group either cannot change, or should not be re-
quired to change because such characteristics are funda-
mental to their individual identities.” Gatimi v. Holder,
578 F.3d 611, 614 (7th Cir. 2009) (quoting In re Kasinga, 21
I. & N. Dec. 357, 365-66 (BIA 1996)).
The group to which Escobar asserts that he belongs
is defined as truckers who, because of their anti-FARC
views and actions, have collaborated with law enforce-
ment and refused to cooperate with FARC. Citing Gatimi,
the Board found that this was not a “social group” because
14 No. 10-3751
a person can cease being a trucker, and once he has done
that, it implied, he automatically will no longer be a
trucker who has collaborated with law enforcement and
refused to cooperate with FARC. Gatimi, 578 F.3d at 614.
If Escobar had proffered the group “all truckers” as
his proposed social group, we would have no trouble
agreeing with the Board. But he did not, and the Board’s
assumption that he can shed the status of being a
former trucker who resisted FARC and helped the gov-
ernment is incorrect. No more than the rest of us,
Escobar cannot change the past. Just as former em-
ployees of Colombia’s Attorney General’s office con-
stituted a “social group,” see Sepulveda v. Gonzales, 464
F.3d 770, 772 (7th Cir. 2006), former truckers who
resisted FARC and collaborated with the authorities can
be a group.
The government also has another objection to Escobar’s
proposed group. In a nonprecedential disposition,
Poroj-Mejia v. Holder, 397 F. App’x 234 (7th Cir. 2010), we
noted that in many asylum cases where we have
found social groups deserving protection, “the social
groups exist independently of any relationship to the
persecutor.” Poroj-Mejia v. Holder, 397 F. App’x 234,
237 (7th Cir. 2010) (citing Ramos v. Holder, 589 F.3d 426,
428 (7th Cir. 2009); Gatimi, 578 F.3d at 613; and Sepulveda,
464 F.3d at 772). Seizing on this language, the govern-
ment asserts the sweeping proposition that a proposed
group fails to qualify as “social group” if it is not en-
tirely independent of any relationship to the persecutor.
Our statement, however, was not that broad. Beyond
the fact that the quoted language comes from a non-
No. 10-3751 15
precedential order, the government ignores what we
said immediately following that observation: “Where a
proposed group is defined only by the characteristic that
it is persecuted, it does not qualify as a ‘social group.’ ”
Id. at 237. The Board itself has never demanded an
utter absence of any link to the persecutor; it has stated
only that a “particular social group” is “a group of
persons who share a common characteristic other than
their risk of being persecuted . . . .” In re C-A-, 23 I. & N.
Dec. 951, 956 (BIA 2006) (referencing the UN’s definition
of “particular social group”).
Giving the Board the Chevron deference it is due, we
accept the proposition that a “social group” cannot
be defined solely by the fact that its members suffer
persecution from the government or from a group that
the government cannot or will not control. But we
must still decide whether Escobar’s proposed group, as
a matter of fact, suffers from that flaw. We begin with
the obvious point that just because all members of a
group do experience persecution, that does not mean
that this is the only thing that links them. The Board
instructs us to examine whether the putative group’s
members share “common characteristics that members
of the group either cannot change, or should not be re-
quired to change because such characteristics are funda-
mental to their individual identities.” Sometimes that
characteristic will be sexual orientation; sometimes that
characteristic will be membership in an extended family;
sometimes that characteristic will be a former associa-
tion with a controversial group. Escobar was unlucky
enough to have selected a profession—truck driving—that
16 No. 10-3751
was of particular interest to FARC, and then, rather
than cooperate with or even join FARC, he resisted the
terrorists and chose to help the government. We can
assume that FARC has no special interest in people
who privately deplore its activities but who have neither
resources nor connections that it wants. But that is not
Escobar’s situation. Escobar falls into a group or class of
people who have a special skill that FARC does not
want to see used in the service of its enemies. It is im-
possible for him to change either this or the fact that
he formerly rebelled against FARC’s commands. This
would be so even if he were to return to Colombia as
a coffee farmer or a teacher.
The situation in Poroj-Mejia is distinguishable (al-
though in light of its lack of precedential status it
would not matter if it were not). Poroj-Mejia, a Guatema-
lan, sought withholding of removal because he was
threatened by a violent criminal gang called Mara 18.
Poroj-Mejia, 397 F. App’x at 237. He argued that he was
part of the particular social group of those who have
“sought police assistance against the Mara 18.” Id. We
rejected his argument, finding that the group he
proposed had no common link apart from the charac-
teristic that the members were persecuted. Id. As we
have emphasized, that is not the case for Escobar’s group.
The government also relies on Pavlyk v. Gonzales, 469
F.3d 1082 (7th Cir. 2006), to show that Escobar’s group
fails to meet the Board’s criteria. Pavlyk involved a
former Ukrainian prosecutor who investigated a local
strongman on murder charges. Id. at 1085. This activity
No. 10-3751 17
led to death threats against him and his family. Id. Soon,
the Ukrainian authorities charged him with the crime
of accepting a bribe. Id. at 1086. He escaped to the
United States and sought asylum based on his member-
ship in the alleged social group of uncorrupt Ukrainian
prosecutors. Id. at 1087-88. We ruled that Pavlyk had not
demonstrated that he was being persecuted on account
of his membership in this group. Id. at 1088. Rather it
seemed he was persecuted because of his particular
conduct in one criminal investigation against the strong-
man, not because of any group identity. Id. at 1089.
The government contends that, as Escobar’s group is
defined by his collaboration with law enforcement
against FARC, his is also not a particular social group.
But, unlike the situation in Pavlyk, Escobar has not
described a “group” consisting of one person who con-
ducted one controversial investigation. Nor, to repeat, is
Escobar’s group is defined solely by the fact that he is
being persecuted for his collaboration with law enforce-
ment. Escobar’s theory, which the Board did not
confront, is that FARC is persecuting him because he
and those like him bring together a number of charac-
teristics: skills as a trucker, support of the government,
and opposition to FARC. (These are all traits of the
victims, not of the persecutor, and thus they are the
correct ones to use according to Elias-Zacarias. See 502
U.S. at 482.)
The biggest problem with all of the government’s
arguments is that they depend on teasing out one compo-
nent of Escobar’s group definition and then showing
that this one part cannot satisfy the definition of a “social
18 No. 10-3751
group.” But one could do that to a great number of
social groups. In Yadegar-Sargis v. INS, 297 F.3d 596
(7th Cir. 2002), for instance, we found that Christian
women in Iran who oppose the Islamic dress code for
women were a “social group.” Id. at 603. If we con-
sidered only the fact that group members oppose the
dress code, we might reject the proposed group. People
can easily change their clothing, after all. It was only
when one adds in the religious dimension to the oppos-
ition that the outline of the group becomes clear. There,
it was the combination of the religious trait and the
opposition to the dress code that assured the integrity
of the group. Similarly, former truckers in Colombia
who support the government and oppose FARC also
have a much more complex identity.
A final distinction between Escobar’s group and the
ones alleged in Pavlyk and Poroj-Mejia is worth pointing
out. One might think that just as Escobar faces persecu-
tion as a trucker who opposed FARC, Pavlyk and
Poroj-Mejia faced persecution for their opposition to
similarly powerful criminal entities in their respective
countries. But the latter two also failed because of a
different initial hurdle: as we discussed earlier, private
persecution is not grounds for asylum unless the state
condones it or is helpless to prevent it. Nothing in
Pavlyk and Poroj-Mejia indicates that the persecution
was anything but ordinary criminal behavior that falls
outside the scope of the asylum statute.
It would do Escobar no good to prove a social group
if he were not a member of that group. But the record
No. 10-3751 19
could easily support a finding that he is. The Board
found him credible, and it did not seriously question
any of the elements that make up his group member-
ship. The government asserts that Escobar acted only
for reasons of self-preservation, not because of any fun-
damental commitment against FARC. It notes that
Escobar testified that he transported goods for FARC
because he was afraid of what it would do to him.
This shows, the government argues, that he just be-
longed to the group of people who cooperated with
FARC because they feared retaliation—and once again,
it insists that this is not a group protected by the law.
This argument fails to come to grips with the details of
Escobar’s testimony. In the evidence that the Board
failed to discuss, Escobar explained why he had been
targeted and asserted that he transported goods for
FARC because he feared immediate retaliation, as his
head was pressed up against the unfriendly side of the
barrel of a gun. Acting under threat of immediate ex-
ecution does not suggest that one is unworthy of asylum.
If anything, it reinforces his evidence of persecution.
More importantly, Escobar is not saying that he has
been persecuted because he did transport goods for
FARC; he contends that he was and will be persecuted
for refusing to transport goods for FARC. The govern-
ment has no explanation for why he might have refused
to cooperate. It would have been an odd way for
Escobar to pursue self-preservation; acquiescence in
FARC’s every demand would have been much safer. The
Board failed to explain why, in light of Escobar’s strong
ties to the anti-FARC Liberal Party, it could not find
20 No. 10-3751
that his resistance was motivated, at least in part, by
his fundamental opposition to FARC and its goals.
E
The final question is whether Escobar can show
the necessary nexus between his social group and the
persecution FARC visited upon him. This is the point at
which the various threads of Escobar’s group come to-
gether. We can assume that he would not be persecuted
for being a former trucker alone. We can also assume
that he would not be persecuted for privately held anti-
FARC views. Escobar, however, cannot split himself
into two people: he is a former trucker who is anti-FARC,
and for this he has faced and will face persecution.
Escobar’s status as a former trucker explains how he
first came in contact with FARC and why he found
himself in FARC’s cross-hairs. FARC aims to control the
transportation network of Colombia. For that reason,
according to Escobar’s evidence, it targets truckers who
are not already sympathetic to it. This, perhaps coupled
with Escobar’s Liberal Party membership, is what
Escobar contends brought him to FARC’s attention.
(Escobar believes that FARC representatives spotted
him taking people to and from a Liberal Party rally and
attending that rally himself, although it is also possible
that other facts that the Board did not address, such as
his contracts with the sugar refinery or his complaints
to the refinery security force and the police, may have
played a part too.) Looking at the evidence as a whole,
the Board might reasonably find that FARC’s burning of
No. 10-3751 21
the trucks sent a powerful message that FARC has
every intention of continuing to persecute him, that
Escobar has refused to cooperate with FARC and has
collaborated with law enforcement against it, and that
FARC is known to murder informers and leave their
bodies strewn on the roads as a warning to those who
might consider crossing its path. Moreover, the evidence
indicates that FARC is equipped with the sophisticated
espionage techniques required to track its enemies ex-
peditiously.
The Board concluded, based on the incomplete
account of the facts it offered, that the only reason
FARC targeted Escobar was for his trucking capabilities.
But that makes no sense. Perhaps FARC was happy to
take advantage of Escobar’s trucking capabilities for a
while. But if that is what it wanted more broadly, then
it is hard to see why it would have torched the very
trucks it wanted when Escobar managed to evade it.
Once again, the Board must take all of these facts into
account before reaching a final conclusion on the case.
The facts taken as a whole might well lead the Board to
conclude that FARC suppresses the public’s support
of the legitimate Colombian government by violently
subjugating people who work within the system.
One might argue that FARC did not target Escobar
because of his anti-FARC views. Instead, it pursued
him only because he refused to cooperate, and this, the
Supreme Court has stated, is insufficient for asylum.
Elias-Zacarias, 502 U.S. at 483 (“Elias-Zacarias still has
to establish that the record also compels the conclusion
22 No. 10-3751
that he has a ‘well-founded fear’ that the guerrillas will
persecute him because of that political opinion, rather
than because of his refusal to fight with them.”). We
use the subjunctive locution “might” for a reason: the
government did not argue this and so this point is for-
feited. But even if we considered the argument, Escobar
has produced evidence to show that FARC targeted
him because of a combination of his profession and his
views, not because of a simple refusal to cooperate. Al-
though it is ultimately up to the Board to decide what to
make of this evidence, when everything is taken into
account, there would be ample support for a finding
that Escobar belongs to a particular social group; that
he would be persecuted for his membership in that
group; and, consequently, that he would be eligible
for asylum protection.
F
Finally, we address Escobar’s alternative argument
that he was persecuted on account of his political opinion.
The Board rejected this claim because it reasoned that
FARC wanted Escobar only for his trucking capabilities.
The latter explanation cannot be justified on the basis of
the evidence in this record. The government argues
additionally that FARC made no mention of Escobar’s
Liberal Party affiliation when confronting him, and thus
his political opinion played no part in his persecution.
But the evidence could support a finding that FARC
spied Escobar at a Liberal Party meeting, and whether or
not FARC spotted him there, it did hijack him after
that very meeting. Escobar has pointed to a number of
No. 10-3751 23
facts that would suggest that his Liberal Party affiliation
played some part in his persecution. We are not aware
of any requirement that persecutors recite a bill of par-
ticulars while they are holding a gun to someone’s head,
and so we place little weight on the fact that the FARC
thugs who kidnapped Escobar may not have mentioned
his Liberal Party affiliation at that moment. It is also
important to be precise about what political opinion
Escobar was espousing. Escobar is a member of the
Liberal Party, but he is also anti-FARC. We discussed
above how this helps to define his particular social group,
but it is also relevant to a political opinion claim. The
Board’s rejection of Escobar’s contention that FARC
knew of Escobar’s political views and persecuted him
at least in part on account of them must be reconsidered
in light of all the evidence.
* * *
It is not this court’s job to resolve this petition defini-
tively. The government requests that if we disagree
with the grounds the Board presented, we remand to the
Board to allow it to address the government’s argu-
ment that Escobar is barred from a grant of asylum or
withholding of removal because he allegedly provided
material support to a terrorist organization and has
been convicted of a particularly serious crime. We recog-
nize that these issues may be addressed in further pro-
ceedings. For the reasons we have stated, however,
we G RANT Escobar’s petition for review and R EMAND
for further proceedings consistent with this opinion.
24 No. 10-3751
E ASTERBROOK, Chief Judge, concurring in the judgment.
My colleagues’ discussion of the “social group” question
is compatible with recent decisions in this circuit. As the
Attorney General has not asked us to overrule these
decisions, I concur in the result. But I am skeptical about
this circuit’s approach to the subject.
The Immigration and Nationality Act permits federal
officials to grant asylum to aliens who seek refuge here
“because of persecution or a well-founded fear of persecu-
tion on account of race, religion, nationality, membership
in a particular social group, or political opinion”. 8 U.S.C.
§1101(a)(42)(A). INS v. Elias-Zacarias, 502 U.S. 478 (1992),
holds that a person mistreated by an insurgent group,
or caught in a civil war, does not qualify under the
“political opinion” part of this subsection unless the
alien opposes the group for political reasons and those
politics are why the group mistreated him. Escobar con-
tended that his support of Colombia’s Liberal Party
caused Fuerzas Armadas Revolucionarias de Colombia
to threaten him and burn his trucks, but the Board of
Immigration Appeals found that FARC was indifferent
to his politics. This finding led Escobar to contend that
FARC had persecuted him on account of his member-
ship in a “social group”. His brief defines the group as
“truckers who refused to cooperate with FARC and who
collaborated with law enforcement authorities”—in other
words, the same kind of conscripts who Elias-Zacarias
held cannot claim automatic protection under the
“political opinion” part of §1101(a)(42)(A).
What the Seventh Circuit has effectively done in this
and other recent cases is read “because of . . . membership
No. 10-3751 25
in a particular social group” in a way that includes every-
one threatened by rebels a nation’s government cannot
control, just as the Ninth Circuit in Elias-Zacarias had
read “because of . . . political opinion” in a way that in-
cluded everyone threatened by rebels. This makes
eligible for asylum everyone who faces a substantial risk
of harm in his native land, no matter the reason. The
Convention Against Torture, S. Treaty Doc. 100-20, 1465
U.N.T.S. 85, see 8 C.F.R. §208.17 (2008), and the rules for
withholding of removal, 8 U.S.C. §1231(b)(3), offer some
protection to persons at risk of injury or death but
require a higher burden of persuasion (proof by a pre-
ponderance of the evidence that future injury is more
likely than not, see INS v. Stevic, 467 U.S. 407 (1984)) than
does the asylum program (under which the alien need
only establish a well-founded fear, see INS v. Cardoza-
Fonseca, 480 U.S. 421 (1987)). See Kobugabe v. Gonzales,
440 F.3d 900 (7th Cir. 2006).
The Board of Immigration Appeals has established, in
decisions that we must respect—see Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),
and Gonzales v. Thomas, 547 U.S. 183 (2006) (applying
Chevron to the definition of “social group” in particu-
lar)—two requirements of social-group status. One is
that membership in a “social group” entails classification
by some immutable characteristic, or a characteristic
so important that no one should be required to change it.
In re Kasinga, 21 I. & N. Dec. 357, 365–66 (BIA 1996). The
BIA applied its doctrine here by observing that being a
trucker is mutable—and like other occupations is not a
vital element of personality. People can and do change
26 No. 10-3751
jobs or sell one business and open another. This court
nominally respects the agency’s limitation of “social
group” but has eviscerated it in practice. My colleagues
redefine Escobar’s social group as one that comprises
everyone who has ever been a trucker who ever refused
to cooperate with FARC. Events of a decade ago cannot
be changed; thus the Board’s primary defense against
limitless expansion of “social group” vanishes. Everyone
who seeks asylum in the United States can point to
some event in the past, and as the past can’t be changed
this event becomes the basis for a claim based on an
“immutable characteristic.” See, e.g., Sepulveda v. Gonzales,
464 F.3d 770 (7th Cir. 2006) (former employees of a public
agency are a social group); Benitez Ramos v. Holder, 589
F.3d 426 (7th Cir. 2009) (former gang members are a
social group).
Redefining Escobar’s “social group” as “truckers who
in the past refused to cooperate with FARC and who
formerly collaborated with law enforcement authorities”
would not avoid the BIA’s second bulwark: its rule that
“social group” cannot be defined just by asking who the
persecutors mistreated. In re C– A–, 23 I. & N. Dec. 951, 956
(BIA 2006). For if the persecutors’ acts define a social
group, then again §1101(a)(42)(A) effectively offers
asylum to all mistreated persons, whether or not race,
religion, politics, or some extrinsically defined charac-
teristics (such as tribal membership) account for the
persecution. And again this court professes to accept
the Board’s position. My colleagues write: “Giving the
Board the Chevron deference it is due, we accept the
proposition that a ‘social group’ cannot be defined solely
No. 10-3751 27
by the fact that its members suffer persecution from
the government or from a group that the government
cannot or will not control.” Slip op. 15. But read to the end
of the paragraph in which this sentence appears and see
why my colleagues think that the “social group” that
Escobar proposes—which, recall, uses refusal to collab-
orate with FARC as part of the group’s definition—is not
ruled out by the Board’s principle: “Escobar falls into
a group or class of people who have a special skill that
FARC does not want to see used in the service of its
enemies.” If that’s not defining “social group” by reference
to the persecutor’s selection criteria, I don’t know what
would be.
In sum, under this court’s approach, any person mis-
treated in his native country can specify a “social group”
in a circular fashion and then show that the mistreat-
ment occurred because of membership in that ad hoc
group. Anyone threatened or injured in the past, or who
sought police protection, has an “immutable” charac-
teristic (the past can’t be changed), and the selection
criteria used by the persecutor (here, people who own
trucks and prefer not to give free transport to rebels,
or more generally “have a special skill”) become the
defining characteristics of the “social group”. The
structure of §1101(a)(42)(A) unravels, and the distinction
between asylum and withholding of removal (or the
CAT) collapses.
Surprisingly, the agency has not asked us to revisit
the line of cases that has led to today’s decision. Indeed,
the agency’s brief does not even cite Elias-Zacarias.
28 No. 10-3751
Perhaps the Attorney General is relying on the fact that
asylum is permissive, while withholding of removal is
obligatory. Qualification under §1101(a)(42)(A) does not
require the agency to grant asylum; it just makes an
alien eligible for administrative discretion. Perhaps the
agency plans to restore a functioning distinction among
asylum, withholding of removal, and CAT by careful
exercise of that discretion. But the judiciary still should
keep these three categories distinct, and I think it unfor-
tunate that this circuit has interpreted §1101(a)(42)(A)
in a way that blurs the statutory lines.
9-7-11