J-B-N- & S-M

Cite as 24 I&N Dec. 208 (BIA 2007) Interim Decision #3569

In re J-B-N- & S-M-, Respondents

Decided June 25, 2007

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

Under section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119
Stat. 302, 303, in mixed motive asylum cases, an applicant must prove that race, religion,
nationality, membership in a particular social group, or political opinion was or will be at
least one central reason for the claimed persecution.

FOR RESPONDENTS: Elissa Steglich, Esquire, Newark, New Jersey

BEFORE: Board Panel: HOLMES, GRANT, and MILLER, Board Members.

HOLMES, Board Member:

In a decision dated January 4, 2007, an Immigration Judge denied the
respondents’ applications for asylum, withholding of removal, and protection
under the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,
G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988) (“Convention Against Torture”). The respondents have
appealed from that decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondents are a married couple who are natives of Burundi and
citizens of Rwanda. The record reflects that they sought entry to the United
States on September 11, 2006, but were placed in removal proceedings
because they did not have valid visas. On the basis of their own admissions,
the Immigration Judge found that they were removable. She further denied
their applications for asylum and withholding of removal based on a finding
that the respondents’ claimed fear of persecution did not have a nexus to one
of the five protected grounds specified in section 208(b) of the Immigration
and Nationality Act, 8 U.S.C. § 1158 (2000). Specifically, the Immigration
Judge found that the respondents’ claim did not meet the new standard

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provided in section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L.
No. 109-13, 119 Stat. 302, 303 (“REAL ID Act”), which requires an asylum
applicant to prove that a protected ground is “at least one central reason” for
the fear of persecution.1 On appeal, the respondents argue that they produced
adequate evidence to show that the persecutors were motivated to harm them
because of their “imputed Burundian nationality and membership in the
particular social group of old case-load refugees.”2

II. ANALYSIS
A. Credibility

Despite some inconsistencies between the lead respondent’s3 story and
documentary evidence detailing a “land dispute,” the Immigration Judge noted
that his testimony was consistent with his asylum application. The
Immigration Judge did not enter an explicit credibility determination on the
respondents’ claim as a whole. As a result, we will treat both respondents’
testimony as true for purposes of this appeal.4

B. Respondents’ Claim

According to the respondents’ testimony, they lived in Burundi until 1996,
when they went to live in Rwanda around the time of their marriage. Both are
Tutsi by ethnicity. The respondent testified that shortly after his arrival in
Rwanda, he became close to an uncle who deeded a parcel of land to him so
that he could build a home. The respondents apparently could not afford to
build the home until 2004.

1
The REAL ID Act amended the burden of proof standard for asylum applications under
the Act. This amendment was enacted on May 11, 2005, and was expressly made applicable
to asylum applications, like those of the respondents, that were filed on or after that date.
See REAL ID Act § 101(h)(2), 119 Stat. at 305.
2
The respondents’ claim is framed as relating to their “imputed Burundian nationality”
because, although both were born in that country, they are citizens of Rwanda through their
parents, who fled to Burundi to escape violence in Rwanda in the 1950s. Returnees to
Rwanda from Burundi and other countries are referred to as “repatriated refugees” and are
sometimes classified as having the nationality of the country they came from, e.g.,
“Burundian,” “Ugandan,” or “Congolese.”
3
The male respondent is the lead respondent in this case. Any further mention of the
respondent in the singular refers to him.
4
See REAL ID Act § 101(a)(3), 119 Stat. at 303 (to be codified at section 208(b)(1)(B)(iii)
of the Act).

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After the respondent’s uncle died in 2002 and the respondents started to
build on the property, the aunt took over the land to prevent the respondents
from developing the property. The respondent’s aunt told him that this was
because he was not a member of the extended “Sengabo” family. The
respondent filed a complaint to “repossess” the land. After some legal
proceedings, the district ruled that the respondents had a right to the property
in January 2005.
In March 2005, the respondent began to receive anonymous telephone calls
telling him to return to Burundi. These calls lasted until June 2006. The
respondent indicated that he recognized the voice of his cousin, who was a
major in the national police. He testified that his cousin also came to his home
three times, once in April 2006 and twice in May or June of that year. The
respondent decided to leave Rwanda in June 2006 and secured visas for
himself and his wife through the American Embassy, where he worked as a
driver. Upon arrival in the United States, the respondents were told that their
visas had been canceled. The respondent believes that his aunt and her family
members were responsible for this. He stated that he thought that his relatives
were hostile to him because he “came from abroad [and] they did not know
[him].” The respondent indicated that he believed that the aunt and cousin
feared he would “take the goods of dead family members. For them, it was
unbearable.” On cross-examination, the respondent admitted that he and his
aunt had an uneventful relationship prior to the land dispute. He described this
relationship as a “friendship” prior to the dispute.
The female respondent’s testimony was in substantial agreement with this
version of the events. She testified that she was present in April 2006 when
the respondent’s cousin came to her home with three others in police uniforms.
The cousin told her to tell the respondent that it would be better for him to
return to Burundi. Next, in early May 2006, the cousin came again with men
in police uniforms, searched the home, and found passports with the visas in
them. Toward the end of the month he came a third time and threatened her
if the couple did not leave. On cross-examination, the female respondent
agreed with her husband that prior to 2004, when they began to build on the
land, there were no problems with his aunt or cousins. In fact, the female
respondent stated that aside from the land issue, there “was no other problem.
They started only when the land problem started.”
The respondents presented the testimony of a witness who is a professor of
political science and Africana studies and a researcher on the country of
Rwanda. The witness stated that Rwandans like the respondents, who were
returning from Burundi, would have very low social status. He testified that
the land in dispute between the respondent and his aunt was very valuable,
“like owning property in downtown Manhattan.” The witness characterized

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land disputes in Rwanda as common and indicated his opinion that the aunt
was trying to make a profit by selling the land. The witness further stated that
even though the respondent had received a judicial decree that confirmed his
ownership rights, he was essentially out of luck when it came to enforcing his
decree, because he had little power in Rwanda relative to that of his aunt and
her family. According to the witness, the cousin’s position as a police officer
was “very significant” because it allowed him to oppose the respondents’
attempt to keep the land. The witness concluded that the respondents’ risk of
harm in Rwanda stems from a “family squabble” and the fact that being from
Burundi, they “don’t have connections to power that they could turn to for
protection.”

C. Statutory and Case Law

Prior to its amendment by the REAL ID Act, the Immigration and
Nationality Act provided that an applicant could demonstrate eligibility for
asylum by showing that he or she was a “refugee,” as that term is defined in
section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (2000). Pursuant to that
definition, an alien is required to demonstrate that he is unwilling or unable to
return to his 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. Id.; Matter of Mogharrabi,
19 I&N Dec. 439 (BIA 1987).
Although an alien must fully demonstrate that he meets the requirements of
the refugee definition, we have stated that “an applicant does not bear the
unreasonable burden of establishing the exact motivation of a ‘persecutor’
where different reasons for actions are possible.” Matter of Fuentes, 19 I&N
Dec. 658, 662 (BIA 1988). Recognizing that “[p]ersecutors may have
differing motives for engaging in acts of persecution,” we have indicated that
an applicant for asylum need not show “conclusively” that the persecution
was, in fact, motivated on account of one of the five grounds protected under
the Act. Matter of S-P-, 21 I&N Dec. 486, 489 (BIA1996).5 Rather, we have
stated that an applicant must produce evidence, either direct or circumstantial,
from which it is reasonable to believe that the harm was or would be motivated
in part by an actual or imputed protected ground. Id. at 494.

5
In fact, we stated that such a requirement would render “nugatory” the Supreme Court’s
decision in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). Matter of S-P-, supra, at 489.

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D. REAL ID Act Amendments

In enacting the REAL ID Act, Congress sought to clarify the above
standard and to provide a “uniform standard for assessing motivation.” See
H.R. Rep. No. 109-72, at 163 (2005) (Conf. Rep.). The statute now states that
an asylum 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.” REAL ID Act
§ 101(a)(3), 119 Stat. at 303 (to be codified at section 208(b)(1)(B)(i) of the
Act) (emphasis added). This case requires us to assess the new statutory
standard and to determine what evidence satisfies an alien’s burden of showing
that at least one central reason for his or her mistreatment “is on account of
race, religion, nationality, membership in a particular social group, or political
opinion.” See H.R. Rep. No. 109-72, at 165.
Our interpretation of the law is governed by settled principles of statutory
construction. First, we must look to the actual language used in the statute.
It is well settled that the “‘starting point must be the language employed by
Congress’” and that we must assume “‘that the legislative purpose is expressed
by the ordinary meaning of the words used.’” INS v. Phinpathya, 464 U.S.
183, 189 (1984) (quoting American Tobacco Co. v. Patterson, 456 U.S. 63,
68 (1982)); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987);
Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999). Second, we must look
to the language and design of the statute as a whole. K Mart Corp. v. Cartier,
Inc., 486 U.S. 281, 291 (1988). Third, we must give effect, if possible, to all
parts of a statute. Kungys v. United States, 485 U.S. 759 (1988).
The definition of the word “central” includes “[h]aving dominant power,
influence, or control.” Webster’s II New College Dictionary 181 (1st ed.
1995) (emphasis added). Recognizing that this definition could pose problems
for those seeking asylum based on “mixed motives,”6 Congress purposely did
not require that the protected ground be the central reason for the actions of the
persecutors.7 Rather, the version of the REAL ID Act originally introduced in
the House of Representatives provided that an asylum applicant would bear the
burden of proving that one of the five protected grounds “was or will be a

6
The problem in classifying one motive as “dominant” or “central” is that it renders all
other motives, regardless of their significance to the case, secondary and therefore ultimately
irrelevant.
7
One commentator has suggested that the use of the word “central” could create the
“opportunity for adjudicators to require more proof of causation” than that previously set
forth in INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992), and Matter of S-P-, supra. See
Marisa Silenzi Cianciarulo, Terrorism and Asylum Seekers: Why the REAL ID Act is a False
Promise, 43 Harv. J. on Legis. 101, 118 (Winter 2006).

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central reason for persecuting the applicant.” See H.R. 418, 109th Cong.
§ 101(a)(3) (2005) (emphasis added). During conference on the bill, this
language was modified to become “at least one central reason,” the final
version of the REAL ID Act.8 That language thus confirms that aliens whose
persecutors were motivated by more than one reason continue to be protected
under section 208 of the Act if they can show a nexus to a protected ground.
Along with giving effect to the ordinary meaning of a provision’s words,
a fundamental guide to statutory interpretation is “common sense.” Matter of
N-B-, 22 I&N Dec. 590 (BIA 1999) (citing Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1994)). In exercising
our common sense to ascertain the meaning of the statutory amendments at
issue, “we construe the language in harmony with the wording and design of
the statute as a whole.” Matter of Fuentes-Campos, 21 I&N Dec. 905, 907
(BIA 1997) (citing K Mart Corp. v. Cartier, Inc., supra, at 291). In this
regard, we look to the legislative history behind the amendments to the Act
and note that Congress stated in the conference report on the approved bill that
in asylum claims under the amended Act, the protected ground cannot be
merely “‘incidental or tangential to the persecutor’s motivation.’” See H.R.
Rep. No. 109-72, at 163 (quoting Asylum and Withholding Definitions,
65 Fed. Reg. 76,588, 76,592 (Dec. 7, 2000)). “Incidental” is defined as “[o]f
a minor, casual, or subordinate nature,” reflecting the conferees’ intent that
where a protected ground is only subordinate to another (nonprotected) reason
for the persecution, an applicant is ineligible for asylum. See Webster’s II New
College Dictionary, supra, at 560. Similarly, because “tangential” is defined
as “[s]uperficially relevant,” a claimant who raises a protected ground as only
a superficial part of the overall claim will likewise be ineligible for asylum.
Id. at 1126.
We also note that Congress cited with approval two federal cases assessing
“mixed motive” situations. See H.R. Rep. No. 109-72, at 163. In Girma v.
INS, 283 F.3d 664 (5th Cir. 2002), the United States Court of Appeals for the
Fifth Circuit denied relief where an Ethiopian woman who had been abducted
and attacked presented inadequate evidence of who attacked her and why.
Key to this finding was the fact that the applicant offered no proof to show
whether those who attacked her did so because of her political affiliation or
simply to extort money from a wealthy businesswoman. Id. at 667. The court
stated that the alien was required to show that harm was “motivated in
meaningful part” by a protected ground. Id. at 668. In Ambartsoumian v.
Ashcroft, 388 F.3d 85 (3d Cir. 2004), the Third Circuit denied asylum to a
married couple who claimed in part that they were persecuted because the

8
The REAL ID Act language was incorporated into H.R. 1268, 109th Cong. (2005).

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husband was not a native Ukrainian. The court found that the record supported
a finding that the male respondent’s “troubles . . . stemmed not from his
ethnicity but from his lack of official permission to live and work [in
Ukraine.]” Id. at 91 (also noting “several reasons” why the male respondent
was unable to get a job in Ukraine, including his inability to speak the native
language).
Having considered the conference report and the language of the REAL ID
Act, we find that our standard in mixed motive cases has not been radically
altered by the amendments.9 The prior case law requiring the applicant to
present direct or circumstantial evidence of a motive that is protected under the
Act still stands. As had previously been the case, the protected ground cannot
play a minor role in the alien’s past mistreatment or fears of future
mistreatment. That is, it cannot be incidental, tangential, superficial, or
subordinate to another reason for harm. Rather, it must be a central reason for
persecuting the respondent. The motivation of the persecutors involves
questions of fact, and the burden can be met by testimonial evidence. Matter
of S-P-, supra, at 490. Supporting documents and corroborative background
evidence also “must be taken into account.” Id.

9
The amendment clarifying the standard that an applicant must meet to establish the
motivation for the claimed persecution appears more directed to judicial case law. The
REAL ID Act conferees noted that there was no uniform standard for assessing motivation
and indicated that the adoption of the “at least one central reason” standard would
significantly impact the approach taken by the Ninth Circuit in some mixed motive cases.
See H.R. Rep. No. 109-72, at 163. The report reflects that the new statutory standard
addresses the Ninth Circuit’s decisions in Borja v. INS, 175 F.3d 732 (9th Cir. 1999),
Briones v. INS, 175 F.3d 727 (9th Cir. 1999), and other cases, which had “substantially
undermined a proper analysis of mixed motive cases.” H.R. Rep. No. 109-72, at 163. The
conferees also stated that the new standard would address an anomaly in the law created by
the Ninth Circuit “that improperly favors asylum applicants who claim that they have been
accused of engaging in terrorist, militant, or guerrilla activity” by creating a presumption in
certain circumstances that certain government prosecutions were politically motivated. Id.;
see also, e.g., Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995); Blanco-Lopez v. INS, 858
F.2d 531, 534 (9th Cir. 1988); Hernandez-Ortiz v. INS, 777 F.2d 509, 516 (9th Cir. 1985).
The report states that the “central reason” standard “will eliminate this presumption, and
require aliens who allege persecution because they have been erroneously identified as
terrorists to bear the same burden as all other asylum applicants, that is, they will have to
offer direct or circumstantial evidence of motive, in accordance with Supreme Court
precedent.” H.R. Rep. No. 109-72, at 165. The issues addressed in this regard do not arise
in the case before us.

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E. Application of the REAL ID Act to Respondents’ Claim

The Immigration Judge dismissed the respondents’ claim because she
found that they had failed to produce evidence to show that a protected ground
was at least one central reason for the mistreatment and threats by his aunt and
cousin. She found no evidence of past persecution, summarizing the case as
“a family dispute.” In support of this conclusion, the Immigration Judge noted
the lack of any direct or circumstantial evidence that the family members
targeted the respondents because they came from Burundi, finding instead that
they wanted to “dispossess the respondent of the land . . . and thereafter
attempt[] to sell [it] for an exorbitant amount of money.” The Immigration
Judge also found that the respondents’ cousins did not try to harm them
because they wanted to “politicize” the land dispute, noting the lack of any
persuasive evidence to corroborate this claim. Finally, the Immigration Judge
found the testimony of the expert witness to be “not at all helpful” on the issue
of motive, because he provided testimony that was beyond the scope of the
respondents’ claim.
We are not persuaded that the Immigration Judge’s relevant fact-finding in
this regard was clearly erroneous, and we otherwise agree with her analysis.
See 8 C.F.R. § 1003.1(d)(3)(i) (2007). Because there has been no showing of
past persecution, we examine whether the respondents have established a well-
founded fear of persecution on account of a protected ground. The balance of
the evidence indicates that the respondents were targeted because of a fight
over the land, not because they were born in Burundi. The respondents
admitted that prior to their decision to build on the land, there were no
problems with either their aunt or their cousins. There is no evidence of
threats or taunts on account of their imputed Burundian nationality before the
land dispute. In fact, the female respondent stated that there were no problems
between her husband and his relatives before he started developing the land
deeded by his uncle, and the respondent admitted that prior to the land dispute,
he had a relatively cordial relationship with his aunt.
Even though the Immigration Judge largely disregarded it, we note that the
opinion of the expert witness–in the context of the record as a whole–also
confirms the conclusion of the Immigration Judge, in that he observed that
“Rwanda has a long tradition of family violence, which is common and often
extreme.” Furthermore, the background evidence confirms that Rwanda itself
“identified land as ranking highest among potential sources of conflict”
between its citizens. African Peer Review Mechanism, Country Review
Report of the Republic of Rwanda § 6.1.2, at 126 (June 2006) (discussing
Rwanda’s “Country Self-Assessment Report”). This indicates that it would be
common to find land access issues at the center of a potentially violent family
dispute.

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Moreover, even if we accept the expert witness’s testimony that the
respondents’ status as outsiders from Burundi meant that they did not have
access to institutions that they could turn to for help, we still find that this
claim is fundamentally a personal dispute, not one that is on account of the
respondents’ imputed nationality. The respondents were two of millions of
repatriated refugees whose numbers overwhelmed the Rwandan Government,
which had not planned for the space and resource needs of these returnees. The
respondents’ lack of connections to power occurred because they previously
lived in Burundi and therefore had not been in Rwanda long enough to
establish ties or connections that could rival those established by his aunt.
This disenfranchisement may have prevented them from enforcing their
property rights decree, but it does not equate to proof that they were targeted
by family members because of their nationality. See Ambartsoumian v.
Ashcroft, supra, at 91 (finding that the inability of the respondent, a native
Georgian, to get a work permit and residence in Ukraine was not persecution
on account of his ethnicity where the record reflected that the respondent did
not follow steps to secure work and residency permits and could not speak
Ukrainian).
Finally, the record lacks evidence to support a finding that the respondents’
absence from Rwanda during the genocide there resulted in their persecution
by relatives on account of an imputed political opinion. While the expert
witness discussed various divisions among the population in Rwanda,
including those who were in the country during the genocide and those who
were not, the record contains no evidence, direct or circumstantial, that would
enable us to conclude that the respondents were targeted on account of an
actual or imputed political opinion.

III. CONCLUSION
Without evidence that the respondents’ Burundian origins or their status as
repatriated refugees was more than a tangential motivation for the threats
against them, we cannot find, as the Act requires, that a protected ground was
“at least one central reason” for the respondents’ fear of harm. Here, the fact
that the respondents were born in Burundi and then came to live in Rwanda
can best be described as incidental to the central land dispute. The record
reflects no direct or circumstantial evidence that would tend to show that the
respondents’ aunt and cousins were interested in harming them because they
came from Burundi. Indeed, the evidence shows that absent the land dispute,
the respondents would have had no conflict with family members in Rwanda.
The respondents therefore cannot qualify for the relief of asylum or
withholding of removal.
The respondents also have not shown a clear probability of torture at the
instigation of, or with the consent or acquiescence of, current government

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officials or persons acting in an official capacity. A public official’s
acquiescence to torture “requires that the public official, prior to the activity
constituting torture, have awareness of such activity and thereafter breach his
or her legal responsibility to intervene to prevent such activity.” 8 C.F.R.
§ 1208.18(a)(7) (2007). The respondents have not shown that anyone in the
Rwandan Government would affirmatively consent or acquiesce to their
torture. They are therefore not entitled to protection under the Convention
Against Torture.
Accordingly, the respondents’ appeal will be dismissed.
ORDER: The appeal is dismissed.

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