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Opening a Window for Asylum Claims Based on Family Ties

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In Aldana-Ramos v. Holder, just issued on June 27, 2014, the United States Court of Appeals for the First Circuit held that family alone can constitute a particular social group, and thus an asylee who has been persecuted on account of his or her family membership can qualify for asylum.

In Aldana-Ramos v. Holder, the wealthy father of two brothers had been kidnapped and held for ransom by members of the “Z” gang in Guatemala. After the brothers exhausted their financial resources to pay their father’s ransom, he was murdered. The notorious Z gang in Guatemala was suspected of being behind the father’s kidnapping and murder. After the father was killed, the brothers noticed that they were being followed by unmarked cars. Afraid for their lives, the brothers eventually fled to the United States and applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) on the grounds that they had been persecuted on account of their membership in a particular social group: their immediate family.

Although the Immigration Judge (IJ) found the brothers to be credible, the IJ and the Board of Immigration Appeals (Board) rejected the brothers’ particular social group.  They found that the brother’s particular social group, “immediate family,” did not meet the requirements of particular social visibility and that the kidnapping and murder of the father had been motivated by the father’s wealth rather than on account of a protected characteristic of the father or his family.

The case went up to the First Circuit on appeal. The First Circuit rejected the IJ and Board’s reasoning and found that family can be a particular social group.  Thus, even though the father may have been kidnapped and killed because of his wealth, which is not a protected characteristic, the brothers could prevail on their asylum claim because they, unlike their father, had not been targeted for persecution based on their wealth (or at least not exclusively for their wealth), but rather based on their family relationship with their father.

Interestingly, had the father survived, his asylum case would not have been a strong one.  Although the father was certainly persecuted, as he was kidnapped and subsequently murdered by the Z gang, he was persecuted on account of his wealth, not on account of one of the five protected grounds. “Wealthy Guatemalans” has been rejected as a social group because wealth is considered too subjective, is not an immutable characteristic, and is not readily identifiable or particular enough to constitute a particular social group. See In Re A-M-E- & J-G-U-, 24 I. & N. Dec. 69 (BIA 2007). The father’s sons, however, have a stronger asylum case because they were persecuted on account of their family relationship with their father.  It all boils down to the idea that family is a protected characteristic, whereas wealth is not.

Aldana-Ramos v. Holder opens a window for those who have been persecuted based on their family ties, but whose asylum claims do not fall neatly in one of the protected categories: race, religion, nationality, political opinion, or social group.  In this case, the First Circuit held that family by itself can qualify as a particular social group. Thus, if the brothers were persecuted because of their family relationship with their father, they were persecuted on account of a protected characteristic: membership in a particular social group.

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