A-M-E & J-G-U

Cite as 24 I&N Dec. 69 (BIA 2007) Interim Decision #3550

In re A-M-E & J-G-U-, Respondents
Decided as amended January 31, 20071
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) Factors to be considered in determining whether a particular social group exists include
whether the group’s shared characteristic gives the members the requisite social visibility
to make them readily identifiable in society and whether the group can be defined with
sufficient particularity to delimit its membership.
(2) The respondents failed to establish that their status as affluent Guatemalans gave them
sufficient social visibility to be perceived as a group by society or that the group was defined
with adequate particularity to constitute a particular social group.

FOR RESPONDENT: Roberto Tschudin Lucheme, Esquire, Glastonbury, Connecticut
BEFORE: Board Panel: HURWITZ, Acting Vice Chairman; HOLMES and MILLER,
Board Members.
HOLMES, Board Member:

The United States Court of Appeals for the Second Circuit has remanded
this case for consideration of the question whether “affluent Guatemalans” are
members of a particular social group within the definition of a “refugee” in
section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(42)(A) (2000). Ucelo-Gomez v. Gonzales, 448 F.3d 180 (2d Cir.
2006).2 As discussed below, we conclude that the Immigration Judge did not
err in ruling that the respondents failed to establish that “affluent
Guatemalans” are a particular social group within the meaning of the Act. We
further find no error in his ruling that the respondents did not otherwise
demonstrate that they were persecuted or face a well-founded fear of
persecution on account of a protected ground in the refugee definition. We

1
On our own motion, we amend the June 19, 2006, order in this case. The amended order
makes editorial changes consistent with our designation of the case as a precedent.
2
We note that subsequent to our June 19, 2006, decision, the Second Circuit issued an
order amending its opinion in this case. Ucelo-Gomez v. Gonzales, 464 F.3d 163 (2d Cir.
2006). Because our decision was issued prior to that amendment, it refers to the court’s
initial order.

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will therefore dismiss the respondents’ appeal from the Immigration Judge’s
decision denying their applications for asylum and withholding of removal.3

I. FACTUAL AND PROCEDURAL HISTORY
The respondents are a married couple from Guatemala. They entered the
United States in August 2001 using forged travel visas and false names. In
sworn statements completed upon arrival at the San Ysidro Port of Entry, the
male respondent indicated that he left his home country to come to the United
States to “look for work” and the female respondent indicated that she came
to visit her uncle in Los Angeles. In response to the question whether they
had “any fear or concern about being returned to [Guatemala] or being
removed from the United States,” both respondents answered, “No.”
In proceedings before the Immigration Judge, the respondents conceded
removability but requested relief based on their claim of persecution.4 In her
asylum application filed on January 2, 2003, the female respondent provided
the following account of events in Guatemala:
My sister was kidnapped in December of 1996, and held until January, 1997. She
was shot in the leg during the kidnapping. I started receiving extortionious [sic]
threats, and threats against my life and that of my husband. We were forced to
continually change our location, and such threats against ourselves continued until we
sought refuge in the United States.
We feel that at the very least, we will be harassed and threatened by the same group
or groups that persecuted us in the past, and at worse, we could be found, kidnapped,
physically harmed, even killed. The motivation for these threats are the same as those
that caused harm to my sister: class hatred by organized political gangs.

At the hearing before the Immigration Judge, the respondents claimed to
have been persecuted on account of membership in a particular social group
composed of “higher socio-economic” Guatemalans. The Second Circuit
summarized the female respondent’s testimony before the Immigration Judge
as follows:
She came from a well-off family; she and her husband had a good life in Guatemala;
they own a house that is presently rented out; the couple employed a housekeeper; and
she attended college and obtained a teacher’s degree.
In December 1996, the couple received anonymous phone calls demanding ransom
for the release of [her] sister, and threatening that, unless the ransom was paid, they
would face the same fate.
By reason of telephonic and written threats, [the respondents] moved (in October
1998) to another town in Guatemala but the threats resumed several months later,
forcing them to move once more.
3
The respondents did not appeal the Immigration Judge’s denial of other relief for which
they had applied.
4
The female respondent filed the asylum application, with her husband named as a
derivative beneficiary.

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After their final relocation, [the respondents] were unemployed and subsisted off
savings and investment income.
[The female respondent] twice reported the threats to the police, to no apparent
effect.
The couple never paid her sister’s ransom, but the sister was released by her captors
after they “saw her wounded in her leg.”

Ucelo-Gomez v. Gonzales, supra, at 182-83.
At the conclusion of the hearing, the Immigration Judge asked who was
included within the proposed particular social group. Counsel for the
respondents explained, “Basically, they are comprised on a relative scale at
a higher socio-economic level, so they’re being persecuted for that reason.”
The Immigration Judge then asked what information indicates “that people
like this are being persecuted.” Counsel for respondents replied:
Well, it’s rather ambiguous, Your Honor. For example, if you’re looking through
the Country Report, when people are being victimized in Guatemala, there’s official
reports . . . that it may be criminal activity, but NGOs report that it . . . seems like
there’s evidence that it may be related to other reasons . . . .

After further questioning, counsel for the respondents described the proposed
social group as “the upper class.”
The Immigration Judge denied asylum and withholding of removal, finding,
in part, that the respondents failed to demonstrate that “affluent Guatemalans”
were a particular social group. In so concluding, he applied Matter of Acosta,
19 I&N Dec. 211, 233 (BIA 1985), and Gomez v. INS, 947 F.2d 660, 664 (2d
Cir. 1991), a decision of the Second Circuit, the circuit in which this case
arises. Under these cases, he found that the proposed group was not a
particular social group because the group’s shared characteristic was not
“immutable,” the group was not readily “identifiable,” and it was “too
broad[ly]” defined to be a social group for purposes of obtaining asylum. He
also found that the respondents had not provided sufficient evidence to show
that similarly-situated Guatemalans could be identified by would-be
persecutors. In particular, he found that there was “nothing in the background
materials to indicate that wealthy Guatemalans are specifically being targeted
for persecution.” Additionally, he found no evidence that the persons calling
the respondents were motivated to persecute them on account of their social
group membership or any other protected ground.5
In their appellate brief, the respondents, through counsel, conceded that
persecution based on “wealth alone is insufficient” to meet the nexus
5
The Immigration Judge also found that the threats to the respondents did not rise to the
level of harm required to demonstrate past persecution. He also made an adverse credibility
finding based primarily on the conflict between the respondents’ statements upon arrival that
they had no fear of returning to Guatemala and their subsequent asylum claim to the
contrary. We assume, without deciding, that the respondents provided a truthful account in
their asylum application and in their testimony before the Immigration Judge.

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requirement and argued that the persecution “was motivated in part by [their]
political opinion/membership etc.” This concession was consistent with our
holdings in several published decisions that “in the absence of evidence to
suggest other motivations, evidence that the perpetrators were motivated by
a victim’s wealth will not support a finding of persecution.” Matter of S-V-,
22 I&N Dec. 1306, 1310 (BIA 2000) (holding, in a case involving fear of
kidnaping by Colombian guerrillas, that actions motivated by “perceived
wealth” were insufficient, without more, to support a finding of persecution
based on membership in a particular social group), overruled on other
grounds by Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003); see also Matter
of V-T-S-, 21 I&N Dec. 792, 799 (BIA 1997) (finding that where the
“common trait shared by the victims of kidnappings in the Philippines is
wealth, i.e., their ability to pay large ransoms,” the respondent did not
demonstrate that persecution was on account of an enumerated ground);
Matter of T-M-B-, 21 I&N Dec. 775, 779 (BIA 1997) (finding no persecution
on account of a protected ground where “the NPA’s practice of securing
financial support by the threats of force and actual harm [was] motivated by
the victim’s wealth, not the victim’s political opinion”), rev’d, Borja v. INS,
175 F.3d 732 (9th Cir. 1999) (en banc) (finding imputed political opinion on
the facts); cf. Bolshakov v. INS, 133 F.3d 1279, 1281 (9th Cir. 1998) (holding
that successful Russians targeted by criminals for extortion were not
persecuted on account of a statutorily protected ground).
The respondents’ arguments on appeal consisted of four paragraphs
addressing the requisite nexus to a protected ground, the final one of which
stated the substance of the argument as follows:
The Respondents membership in the upper-class of Guatemala, and the history
suffered by the family at the hands of terrorists, indicates they are targets of
persecution. The IJ felt wealth alone is insufficient, and that is conceded. But, at
trial, counsel for the Respondents indicated that in the U.S. State Department Country
Report for Guatemala, p. 8, that there was a report that a nun was killed in Guatemala
City, in what was reported as an attempted carjacking, but “various human rights
groups did not rule out the possibility of political motive.” The IJ noted that the nun
dealt with war victims, and thus felt convinced that this could serve as some kind of
imputed political ideology. This same issue was raised by counsel at trial, when he
argued that the position of the Respondents was akin to a “mixed motives” case–as
amply demonstrated by the case of the nun cited in the Country Report. See also,
Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (Persecution does not necessarily entail
persecution for reasons exclusive to five classes. Thus if persecutor was motivated
in part by victim’s political opinion/membership etc., a successful claim to asylum can
be made.)

Given the evidence of record, the nature of the Immigration Judge’s decision,
and the respondents’ arguments on appeal, we affirmed the Immigration
Judge’s decision without opinion. See 8 C.F.R. § 1003.1(e)(4) (2006).

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After the Second Circuit remand, we afforded the parties an opportunity to
provide further briefing. The respondents have submitted a supplemental
brief in which they argue that “although it is true that Respondents did not
know the motivation of their persecutors, such knowledge is not fatal to their
case. So long as the actions were, at least in part, by one of the enumerated
grounds [sic].” They further assert that they were persecuted based on social
group membership combined with imputed political opinion, stating that they
“are arguing (in part) that their political beliefs are imputed to them by virtue
of their wealth i.e. they must support the status quo as it protects the wealth
they have accumulated.”

II. ANALYSIS

The Second Circuit has directed us on remand to “expand upon” Matter of
Acosta, supra, as to the meaning of “particular social group” and to explain
why “affluent Guatemalans” are not a “particular social group.” Ucelo-Gomez
v. Gonzales, supra, at 187-88. Initially, we note that the respondents have the
burden of demonstrating both that they were members of a particular social
group and that past or feared persecution satisfied the “on account of”
requirement in the “refugee” definition. 8 C.F.R. § 1208.13(a) (2006). In
meeting this burden, the respondents must initially identify the “group” on
which the claim is based and demonstrate that such a group is a “particular
social group” as that term is used in the “refugee” definition. The proposed
group has been variously described during the course of these proceedings in
terms of “wealth,” “affluence,” “upper income level,” “socio-economic
level,” “the monied class,” and “the upper class.” Although we generally refer
to wealth or affluence as the identifying characteristic in our discussion below,
our analysis applies to each of these descriptions of the group characteristic.

A. Particular Social Group

In Matter of Acosta, supra, at 233, we established that the members of a
particular social group must “share a common, immutable characteristic.” The
characteristic may be innate, such as “sex, color, or kinship ties,” or it may be
a shared past experience such as “former military leadership or land
ownership.” Id. In either event, the group characteristic must be one “that the
members of the group either cannot change, or should not be required to
change because it is fundamental to their individual identities or consciences.”
Id.
We agree with the Immigration Judge that “wealth” is not an immutable
characteristic. This determination alone, however, is not dispositive if, for
example, the shared characteristic is so fundamental to identity or conscience
that it should not be expected to be changed. In this regard, we would not

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expect divestiture when considering wealth as a characteristic on which a
social group might be based. Nonetheless, we find that the Immigration Judge
correctly applied the Matter of Acosta framework in conjunction with the
Second Circuit’s decision in Gomez v. INS, supra, in determining that the
proposed group of “wealthy” Guatemalans is not so readily “identifiable” or
sufficiently defined as to meet the requirements of a particular social group
within the meaning of the refugee definition.
We recently reaffirmed the importance of social visibility as a factor in the
particular social group determination in Matter of C-A-, 23 I&N Dec. 951, 957
(BIA 2006) (holding that “noncriminal informants working against the Cali
drug cartel” in Colombia were not a particular social group), aff’d,
Castillo-Arias v. U.S. Attorney General, 446 F.3d 1190 (11th Cir. 2006), cert.
denied sub nom. Castillo-Arias v. Gonzales, ___S. Ct. ___, 2007 WL 36174
(U.S. Jan. 18, 2007) (No. 06-642). In reaffirming the requirement that the
shared characteristic of the group should generally be recognizable by others
in the community, we relied, in part, on the Second Circuit’s view that “‘the
attributes of a particular social group must be recognizable and discrete.’” Id.
at 956 (quoting Gomez v. INS, supra, at 664); see also Matter of H-, 21 I&N
Dec. 337 (BIA 1996). In addition, we referred to the 2002 guidelines of the
United Nations High Commissioner for Refugees, which endorse an approach
in which an important factor is whether the members of the group are
“perceived as a group by society.” Id. at 956. Although a social group cannot
be defined exclusively by the fact that its members have been subjected to
harm, we noted that this may be a relevant factor in considering the group’s
visibility in society. Id. at 960.
In Matter of C-A-, supra, we also considered whether the group was
defined with the requisite particularity. Id. at 957. We found that the
respondent’s proposed group of “noncriminal informants” was “too loosely
defined to meet the requirement of particularity.” Id. In so holding, we noted
that we do not generally require a “voluntary associational relationship,”
“cohesiveness,” or strict “homogeneity among group members.” Id. at
956-57.
1. Social Visibility

Whether a proposed group has a shared characteristic with the requisite
“social visibility” must be considered in the context of the country of concern
and the persecution feared. The respondents in this case are victims of threats
of criminal extortion. As the Immigration Judge found, there is little in the
background evidence of record to indicate that wealthy Guatemalans would
be recognized as a group that is at a greater risk of crime in general or of
extortion or robbery in particular. The June 1997 country profile for
Guatemala states:

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With the signing of the [1996] peace accords, the guerrillas renounced the use of force
to achieve political goals. Although the level of crime and violence now seems to be
higher than in the recent past, the underlying motivation in most asylum cases now
appears to stem from common crime and/or personal vengeance.
The situation is further complicated by the fact that criminal elements, including some
former combatants, are taking advantage of the instability of the transitional period.
An August 1996 public opinion poll showed that 70 percent of those interviewed
considered violence the major problem in Guatemala. In the past, most acts of
violence in the country tended to be regarded as politically motivated, but the public
perception seems to be changing now that the civil war has ended.

Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State,
Guatemala-Profile of Asylum Claims & Country Conditions 4 (June 1997)
[hereinafter Profile]. Neither the 1997 Profile nor the Department of State’s
2001 country report on Guatemala suggests that the affluent, however defined,
are exposed to more violence or human rights violations than other segments
of society. See Committees on International Relations and Foreign Relations,
107th Cong., 2nd Sess., Country Reports on Human Rights Practices for 2001
(Joint Comm. Print 2002). Rather, violence and crime in Guatemala appear
to be pervasive at all socio-economic levels. The respondents have provided
no evidence, and we have no reason to believe, that the general societal
perception would be otherwise.6 Notably, the only specific reference to
“extortion or robbery” in the Profile occurs in the context of attacks against
Indians, a relatively impoverished group in Guatemala. Profile, supra, at 5.
From the point of view of a criminal bent on extortion, persons with relatively
modest resources or income may possess sufficient land, crops, or other forms
of wealth to make them potential targets. The proposed group of “wealthy
Guatemalans” therefore fails the “social visibility” test.7

6
We do not rule out the possibility that, in appropriate circumstances, “wealth” may be a
shared characteristic of a social group. For example, should a government institute a policy
of imprisoning and mistreating persons with assets or income above a fixed level, there
could be a basis for a societal perception that the class of wealthy persons, as defined by the
government, would constitute a particular social group.
7
In Gao v. Gonzales, 440 F.3d 62 (2d Cir. 2006), the court recognized that women sold into
marriage in a part of China where forced marriages are valid and enforceable were a
particular social group. In so holding, the court distanced itself from Gomez v. INS, supra,
suggesting that “Gomez can reasonably be read as limited to situations in which an applicant
fails to show a risk of future persecution on the basis of the ‘particular social group’
claimed, rather than as setting an a priori rule for which social groups are cognizable.” Gao
v. Gonzales, supra, at 69. At the time of the Immigration Judge’s decision and our summary
affirmance, however, the approach outlined in Gomez v. INS, supra, and the Board’s
decision in Matter of H-, supra, established that “social visibility” was an important factor
in identifying a “particular social group.”

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2. Particularity

The respondents’ proposed group also fails the particularity requirement of
the refugee definition. The terms “wealthy” and “affluent” standing alone are
too amorphous to provide an adequate benchmark for determining group
membership. Depending upon one’s perspective, the wealthy may be limited
to the very top echelon; but a more expansive view might include small
business owners and others living a relatively comfortable existence in a
generally impoverished country. Because the concept of wealth is so
indeterminate, the proposed group could vary from as little as 1 percent to as
much as 20 percent of the population, or more.8
The respondents’ proposed social group is indeterminate, and not just at the
margins, as will often be the case in describing group membership. Rather,
when “wealth” is the sole criterion, group membership is difficult to delimit
for a large swath of potential members. The characteristic of wealth or
affluence is simply too subjective, inchoate, and variable to provide the sole
basis for membership in a particular social group. We therefore find that the
respondents have not demonstrated that “wealthy Guatemalans”constitute a
particular social group.
B. Other Motives for Persecution

The respondents have not provided evidence to show that the person or
persons making the threats against them were motivated by the respondents’
political opinion or imputed political opinion.9 Nor have they shown that the
threats were motivated by “class envy.” Indeed, the respondents are unaware
of the identity of the person or persons who threatened them, or the group
with which they are affiliated, if any. The respondents have produced no
evidence to show that the anonymous caller or callers had any motive other
than attempted criminal extortion. See INS v. Elias-Zacarias, 502 U.S. 478,
483 (1992) (finding that a claim that guerrilla recruitment attempts were
based, in part, on imputed political opinion was unsupported by either direct
or circumstantial evidence that the persecutor had a motive other than
increasing the size of its forces). Here there is no indication that the person
or persons who pursued the respondents had any motive other than increasing
their own wealth at the expense of the respondents. We therefore find that the
respondents failed to demonstrate that they were persecuted or have a
well-founded fear of persecution based on a protected ground.

8
The 1997 Profile notes that 80 percent of Guatemalans live in poverty, with 59 percent
in extreme poverty. Profile, supra, at 10.
9
As the Second Circuit noted, the female respondent “concede[d] that neither she nor her
husband had any political involvement.” Ucelo-Gomez v. Gonzales, supra, at 182 n.1.

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III. CONCLUSION
We concur with the Immigration Judge’s finding that the respondents failed
to demonstrate that “affluent Guatemalans” are a particular social group or
that they were persecuted or fear persecution on account of a protected ground
in the refugee definition. Accordingly, we agree that they failed to
demonstrate eligibility for asylum or withholding of removal. We will
therefore dismiss the respondents’ appeal.
ORDER: The respondents’ appeal is dismissed.

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