Argued March 5, 2014.
Petition for Review of an Order of the Board of Immigration Appeals.
For R. R. D., Petitioner: Lisa Katharine Koop, Chicago, IL; Matthew E. Price, Paul M. Smith, Jenner & Block Llp, Washington, DC.
For ERIC H. HOLDER, JR., Attorney General of the United States, Respondent: Timothy G. Hayes, Oil, Department of Justice, Washington, DC.
For Everard Meade, Amicus Curiae: D. Lucetta Pope, Faegre Baker Daniels Llp, South Bend, IN.
Before EASTERBROOK, MANION, and HAMILTON, Circuit Judges.
Easterbrook, Circuit Judge.
While R.R.D. was an investigator for Mexico's Federal Agency of Investigation, he arrested hundreds of suspects and repeatedly testified against drug traffickers. Drug organizations offered bribes to get him out of their hair and, when he refused, tried to kill him under their " plata o plomo"
policy--" silver or lead," colloquially " money or bullets." The Agency repeatedly transferred him to places where it thought that he would be safer, but testimony exposed him to public view and threats soon resumed. He was wounded twice while on duty and eluded capture several times. Once assassins shot at him, missed, and wounded his father. His superiors recommended that he quit for his own safety. He opened an office-supply business and tried to conceal his former job, but when strangers continued looking for him he sought asylum in the United States. He contended that he had been persecuted as a member of the social group of honest police officers. An immigration judge concluded that R.R.D. had been threatened repeatedly and remained at risk but concluded that the drug traffickers had targeted him because he hampered their organizations, not because he was in the social group of honest cops. The IJ denied the application for asylum, and the Board of Immigration Appeals agreed. A motions panel allowed R.R.D. to proceed in court under these initials to avoid what may be an ongoing risk to his safety.
Both the IJ and the BIA distinguished between risks to all honest police and risks to effective honest police, such as R.R.D.; they thought that only if criminal organizations target all honest law-enforcement officers would R.R.D. be entitled to asylum. It is far from clear to us that drawing such a distinction is permissible under 8 U.S.C. § 1101(a)(42)(A), which defines the category of persons eligible for asylum as those who seek refuge here " 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" . " Effective honest police" (or " honest police good enough to impose substantial costs on criminal organizations" ) is a subset of all honest police, to be sure, but why is that not a " social group," if " honest police" is a social group? Anyway, the statute makes eligible a person persecuted because of his membership in a protected category; it does not require that all members of that category suffer the same fate. The law calls for assessments of causation and risk; that R.R.D. is at more risk than that faced by " honest police" generally is a poor reason to disqualify him from asylum, if he otherwise is eligible.
The " otherwise" is a potentially important qualifier, because persecution means adverse action by government; criminal deeds by private persons come to be treated as persecution, on the Board's view, only when the government is unwilling or unable to protect targets from private violence. See Matter of Eusaph, 10 I& N Dec. 453, 454 (1964). See also Hor v. Gonzales, 421 F.3d 497 (7th Cir. 2005); Bitsin v. Holder, 719 F.3d 619, 628-31 (7th Cir. 2013). Mexico has more than 400,000 police officers; the Board did not consider whether they are willing and able to protect their current or former colleagues. (R.R.D. contends that so many officers have taken the criminals' silver that the force as a whole does not protect honest police; the Board did not address this possibility.) Nor did the Board try to decide how much risk of harm shows that a government is " unable" to protect its citizens. Given the Chenery doctrine ( SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943)), we must proceed for the purpose of R.R.D.'s ...