On June 9, 2011, the Board of Immigration Appeals (BIA) issued a precedential decision, Matter of N-M-, 25 I&N Dec. 526 (BIA 2011), regarding asylum claims based on opposition to state corruption and the “one central reason” standard for establishing the nexus between such opposition and the persecution. Matter of N-M-, which arose within the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit, involved a Colombian woman who had worked in a state-run agency where she was pressured to falsify information and hire contractors outside of the official hiring process. When she refused to do so and voiced concerns about the corruption, she was transferred to a different position and threatened. The immigration judge granted the woman asylum, the Department of Homeland Security appealed, and the BIA sustained the appeal and remanded the case for further fact finding.
In its decision, the BIA noted that in some circumstances, opposition to state corruption may demonstrate the respondent’s political opinion or give a persecutor reason to impute such political opinion to the respondent, particularly where the opposition involved participating in “classic political activities” or exposing the corruption to other authorities. Id. at 528. However, when determining whether the respondent was persecuted on account of that actual or imputed political opinion, the BIA held that the respondent must provide some direct or circumstantial evidence that the persecutor targeted the respondent because of her political beliefs. Id. Moreover, for cases arising under the REAL ID Act of 2005, the respondent must demonstrate that her actual or imputed political opinion was “one central reason” for the persecution. Id. at 532. As a result, evidence simply showing the respondent was harmed in retaliation for exposing corruption linked to a political system is insufficient to prove that the respondent’s anti-corruption beliefs were “one central reason” for her persecution. Id.
Finally, the BIA provided three factors that an adjudication “may find useful” when examining an asylum claim based on opposition to state corruption. First, the adjudicator “may consider whether and to what extent the alien engaged in activities that could be perceived as expressions of anticorruption beliefs.” Id. Second, the adjudicator “should consider any direct or circumstantial evidence that the alleged persecutor was motivated by the alien’s perceived or actual anticorruption beliefs.” Id. Finally, the adjudicator should consider “evidence regarding the pervasiveness of governmental corruption” and “whether there are direct ties between the corrupt elements and higher level officials.” Id. at 533. On the third point, the BIA noted that where a respondent threatens to expose corruption by rogue officials acting without the support of the government, “it seems less likely that the act would be perceived as politically motivated or threatening.” Id. Similarly, whether the government itself, and not just the corrupt individuals, retaliates against the respondent is relevant to this issue. Id.
NIJC notes that the U.S. Court of Appeals for the Seventh Circuit has issued several decisions regarding corruption or “whistle-blower”-based asylum claims. See e.g., Musabelliu v. Gonzalez, 442 F.3d 991 (7th Cir. 2006). NIJC also notes that the BIA’s discussion of Elias-Zacarias, 502 U.S. 478 (1992), in N-M- seems inconsistent with recent Seventh Circuit’s decisions regarding political opinion-based asylum claims. Compare N-M- at 529 (asserting that the majority [in Elias-Zacarias] did not adopt the dissent’s argument that an inquiry into the individual persecutor’s motivation is unnecessary so long as an alien demonstrates that the persecution occurred in response to an act manifesting a political opinion) (internal citations omitted) with Martinez-Buendia v. Holder, 616 F.3d 711, 718 (7th Cir. 2010) (stating, “if political opposition is the reason an individual refuses to cooperate with a guerrilla group, and that individual is persecuted for his refusal to cooperate, logic dictates that the persecution is on account of the individual’s political opinion”).