BIA Addresses Whistleblowing as a Basis for Asylum: Matter of N-M-, 25 I&N Dec. 526 (BIA 2011)

The BIA found that retaliation for opposition to state corruption may form the basis for a claim based on political opinion if, post-REAL ID, the actual or imputed anti-corruption belief was one central reason for the harm. Matter of N-M-, 25 I&N Dec. 526 (BIA 2011)

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 anti-corruption 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 anti-corruption beliefs.  Id.  Finally, the adjudicator should consider 'evidence regarding the pervasiveness of governmental corruption's 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.

The U.S. Court of Appeals for the Seventh Circuit has issued several decisions regarding corruption or whistle-blower's-based asylum claims. See e.g., Musabelliu v. Gonzalez, 442 F.3d 991 (7th Cir. 2006). 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.").