PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1780

VLADIMIR ERNESTO ORTEGA OLIVA, a/k/a Vladimir Ernesto 

Ortega Olivia,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Argued: September 15, 2015 Decided: November 25, 2015

Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit 

Judge.

Petition for review granted; order reversed in part, vacated in 

part, and remanded by published opinion. Judge Wynn wrote the 

opinion, in which Judge Diaz and Senior Judge Davis joined. 

ARGUED: Jean Zhuang, UNIVERSITY OF VIRGINIA LAW SCHOOL, 

Charlottesville, Virginia, for Petitioner. Margaret Judson 

Perry, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., 

for Respondent. ON BRIEF: Stephen L. Braga, Attorney Director, 

Kelsey Bryan, Third Year Law Student, Rachel Wade, Third Year 

Law Student, Appellate Litigation Clinic, Doug Ford, Attorney 

Director, Sarah Allen, Third Year Law Student, Immigration 

Clinic, UNIVERSITY OF VIRGINIA LAW SCHOOL, Charlottesville, 

Virginia, for Petitioner. Joyce R. Branda, Acting Assistant 
2

Attorney General, Michelle LaTour, Deputy Director, Office of 

Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for Respondent.
3

WYNN, Circuit Judge:

Vladimir Ernesto Ortega Oliva, a native and citizen of El 

Salvador, sought asylum and withholding of removal under the 

Immigration and Nationality Act (“INA”). The Board of 

Immigration Appeals (“BIA”) denied his petition, affirming the 

immigration judge’s (“IJ’s”) determination that Oliva did not 

demonstrate a nexus between the persecution he faced and either 

of his proposed particular social groups. The BIA further held 

that even if Oliva had demonstrated the required nexus, he did 

not allege membership in a cognizable particular social group. 

We conclude that the BIA erred by interpreting the nexus 

requirement too narrowly, and that Oliva successfully 

demonstrated that membership in his proposed social groups was 

at least one central reason for his persecution. We further 

conclude that the BIA failed to adequately address the record 

evidence in making its determination that Oliva’s proposed 

social groups were not cognizable under the INA. Accordingly, 

we grant Oliva’s petition, reverse in part, vacate in part, and 

remand for proper consideration of the cognizable social group 

issue.

I.

The facts of this matter show that Oliva left his home 

country of El Salvador and entered the United States without 

authorization in 2007. In July 2010, the Department of Homeland 
4

Security served Oliva with a Notice to Appear, charging him with 

removability under section 212(a)(6)(A)(i) of the INA, as an 

alien present in the United States without admission or parole. 

In July 2011, Oliva filed an application for asylum and 

withholding of removal. 

In 2013, the IJ held a hearing to assess Oliva’s 

application. In his testimony and affidavit, Oliva explained 

that at the age of sixteen he joined a gang called Mara 

Salvatrucha, also known as MS-13, while living in San Rafael 

Cedros in El Salvador.1 He was trained to spy for MS-13 in the 

territory of rival gangs. 

When he was sixteen or seventeen years old, Oliva witnessed 

members of MS-13 brutally murder and dismember a rival gang 

member. After seeing this, Oliva decided to distance himself 

from the gang. 

MS-13 forbids its members from quitting and kills anyone 

who attempts to leave the gang. However, MS-13 does allow gang 

members to become “inactive” members if they either devote 

themselves to the church or get married and start a family. MS13 requires inactive members to pay “rent,” a form of monetary 

tribute to the gang. A.R. 130. This ensures that inactive

 1 The IJ found Oliva to be a credible witness, which means 

that his testimony alone “may be sufficient to sustain the 

burden of proof without corroboration.” 8 C.F.R. 

§ 1208.16(c)(2).
5

members contribute financially to the gang, even if they no 

longer contribute physically.

Oliva began distancing himself from the gang and became 

more involved in his church. When MS-13 noted his increased 

absence from gang activities, gang members started to threaten 

Oliva. To escape MS-13, Oliva moved to live with his aunt in 

Lourdes Colon, El Salvador, but found that gangs were active 

there as well. After about three months in Lourdes Colon, Oliva 

moved to San Salvador, the capital of El Salvador, where he 

stayed with his godmother for roughly two years.

Around late 1997 or early 1998, Oliva returned to San 

Rafael Cedros but tried to stay hidden from MS-13. About a 

month after his return, the gang realized he was there. 

According to Oliva, the gang “reminded [him] that leaving the 

gang was not allowed, and threatened to kill [him] if [he] did 

not start paying them ‘rent.’” A.R. 215. After that, Oliva 

paid roughly thirty percent of his income to the gang for seven 

or eight years. 

In 2006, Oliva decided to stop paying rent, and on one 

occasion ran from MS-13 gang members to avoid having to pay. 

About two months later, in October 2006, members of MS-13 

severely beat Oliva to send a message “that if [he] didn’t 

continue paying the rent” he would be killed. A.R. 136. After 

the beating, Oliva began paying the rent again, and MS-13 “would 
6

remind [him] of the rules when they took [his] money.” A.R.

217. Oliva decided to flee to America to protect himself.

Oliva entered the United States without authorization in 

2007 and settled down in Virginia. In the summer of 2011, he 

began receiving threatening phone calls originating in El 

Salvador. The callers told Oliva that if he “cross[es] the 

border back into El Salvador they will kill [him] as a 

punishment for trying to quit.” A.R. 221. 

Despite finding this testimony credible, the IJ denied 

Oliva’s application for asylum and withholding of removal.2 The 

IJ found that “[t]he evidence indicates that the gang was not 

targeting [Oliva] because of his membership in a group 

consisting of former gang members who have either found religion 

or started families . . . . Rather, he was targeted for money.” 

A.R. 96. 

Oliva appealed the IJ’s decision. A one-member panel of 

the BIA dismissed the appeal. 

 2 The IJ determined that Oliva was not entitled to asylum 

because he did not qualify for an exception to the one-year 

filing deadline for asylum applications. However, this issue is 

not before us because the BIA did not address it. Instead, the 

BIA determined that even if Oliva had filed his application in 

time, he did not establish eligibility for asylum because he did 

not demonstrate his membership in a cognizable particular social 

group. See infra note 3.
7

II.

The courts of appeals have jurisdiction to review final 

orders of removal. 8 U.S.C. § 1252(a)(1); Martinez v. Holder, 

740 F.3d 902, 908 (4th Cir. 2014). In this case, the final 

order of removal was issued by the BIA. See 8 U.S.C.

§ 1101(a)(47)(B)(i); Martinez, 740 F.3d at 908. We may affirm 

the BIA only on the grounds stated in the opinion and may not 

substitute what we consider to be “a more adequate or proper 

basis” for its conclusions. Crespin-Valladares v. Holder, 632 

F.3d 117, 123 (4th Cir. 2011) (quoting SEC v. Chenery Corp., 332 

U.S. 194, 196 (1947)). 

“[A] decision that an alien is not eligible for admission 

to the United States is conclusive unless manifestly contrary to 

law.” 8 U.S.C. § 1252(b)(4)(C). We review the BIA’s legal 

determinations de novo. Martinez, 740 F.3d at 909. While a 

three-member panel of the BIA is entitled to Chevron deference 

for its reasonable interpretations of immigration statutes, a 

one-member panel of the BIA—like the one in this case—is 

entitled to the lesser Skidmore deference. Id. at 909–10; see

Skidmore v. Swift & Co., 323 U.S. 134, 139–40 (1944). In other 

words, the opinion of the one-member panel of the BIA is not 

controlling upon this Court, but we may consider it as “a body 

of experience and informed judgment,” taking into account “the 

thoroughness evident in its consideration, the validity of its 
8

reasoning, its consistency with earlier and later 

pronouncements, and all those factors which give it power to 

persuade.” Skidmore, 323 U.S. at 140.

The BIA’s “findings of fact are conclusive unless any 

reasonable adjudicator would be compelled to conclude to the 

contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Temu v. Holder, 

740 F.3d 887, 891 (4th Cir. 2014) (“We uphold factual findings 

unless no rational factfinder could agree with the BIA’s 

position.” (citing Crespin-Valladares, 632 F.3d at 124)). The 

BIA itself reviews findings of fact made by the IJ for clear 

error. See Crespin-Valladares, 632 F.3d at 127 (citing 8 C.F.R. 

§ 1003.1(d)(3)(i)). 

III.

While Oliva concedes that he is eligible for removal, he 

contends that the BIA erred in denying his request for 

withholding of removal under section 241(b)(3)(A) of the INA.

Under that section, the Attorney General may not remove an alien

who is otherwise removable “if the Attorney General decides that 

the alien’s life or freedom would be threatened in [the country 

of removal] because of the alien’s race, religion, nationality, 

membership in a particular social group, or political opinion.” 

8 U.S.C. § 1231(b)(3)(A).3 

 3 Similarly, asylum may be granted if the Attorney General 

determines that an alien has established “that race, religion, 
9

Oliva argues that his life would be threatened because of 

his membership in one of two particular social groups: 

(1) “Salvadorans who are former members of MS-13 and who left 

the gang, without its permission, for moral and religious 

reasons,” and (2) “Salvadorans who were recruited to be members 

of MS-13 as children and who left the gang as minors, without 

its permission, for moral and religious reasons.” A.R. 3. 

The BIA dismissed Oliva’s appeal on two grounds. First, 

the BIA held that Oliva’s proposed particular social groups were 

not cognizable under the INA. Second, the BIA found that Oliva 

failed to demonstrate that the persecution he feared was on 

account of his membership in either of his proposed social 

groups—the nexus requirement. Oliva challenges both 

determinations on appeal. 

A.

If the BIA correctly held that Oliva failed to establish a 

nexus between his persecution and his proposed social groups, 

the Court could affirm the BIA’s decision without reaching the 

 

nationality, membership in a particular social group, or 

political opinion was or will be at least one central reason for 

persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i). 

Because both asylum and withholding of removal claims rely on 

the same factual basis, we may look to asylum cases when 

deciding whether a petitioner has asserted a valid particular 

social group or shown the required nexus in his application for 

withholding of removal. See Ai Hua Chen v. Holder, 742 F.3d 

171, 184 (4th Cir. 2014) (noting that “the facts that must be 

proved are the same” for both claims, although the burden of 

proof is higher for withholding of removal). 
10

question whether his particular social groups are cognizable 

under the INA. See Cordova v. Holder, 759 F.3d 332, 339 (4th 

Cir. 2014). Therefore, we begin our analysis by considering

whether Oliva satisfied the nexus requirement. 

An applicant must satisfy the nexus requirement by showing

his past or threatened persecution was “on account of” his 

membership in that group. 8 U.S.C. § 1101(a)(42)(A). Oliva 

argues that the BIA committed reversible error in holding that 

he had failed to demonstrate the “on account of” prong. We 

agree.

A petitioner must show that his membership in the 

particular social group “was or will be a central reason for his

persecution.” Matter of W-G-R-, 26 I. & N. Dec. 208, 224

(B.I.A. 2014) (emphasis added). Stated differently, a protected 

ground must be “‘at least one central reason for’ the feared 

persecution” but need not be the only reason. CrespinValladares, 632 F.3d at 127 (quoting 8 U.S.C. 

§ 1158(b)(1)(B)(i)). Membership in a protected social group may 

not, however, be merely “incidental, tangential, superficial, or 

subordinate to another reason for harm.” Quinteros-Mendoza v. 

Holder, 556 F.3d 159, 164 (4th Cir. 2009) (quoting In Re J-B-N-, 

24 I. & N. Dec. 208, 214 (B.I.A. 2007)).

The BIA determined Oliva’s fear of persecution was not on 

account of his becoming an inactive gang member, but because of 
11

“his specific conduct of violating the [gang’s] rules”—namely 

refusing to pay rent. A.R. 6 (citing W-G-R-, 26 I. & N. at 

224). This was an overly restrictive view of Oliva’s case. A 

close examination of the record illuminates the inextricable 

relationship between Oliva’s membership in his proposed social 

groups and his refusal to pay rent.

Extortion itself can constitute persecution, even if the 

targeted individual will be physically harmed only upon failure 

to pay. See Mirisawo v. Holder, 599 F.3d 391, 396 (4th Cir. 

2010) (“While ‘persecution’ is often manifested in physical 

violence, ‘the harm or suffering [amounting to persecution] need 

not be physical, but may take other forms,’ so long as the harm 

is of sufficient severity.” (alteration in original) (quoting 

H.R. Rep. No 95-1452, at 5 (1978), reprinted in 1978 

U.S.C.C.A.N. 4700, 4704)); Jahed v. INS, 356 F.3d 991, 998–99 

(9th Cir. 2004). Recognizing that extortion can be a form of 

persecution, the appropriate inquiry is thus whether the 

extortion occurred on account of protected grounds. See, e.g., 

Aliyev v. Mukasey, 549 F.3d 111, 117–18 (2d Cir. 2008) (holding 

that the BIA erred in finding that the petitioner’s extortion 

was not on account of his ethnicity when the persecutors made 

comments about the petitioner’s ethnic background); Desir v. 

Ilchert, 840 F.2d 723, 727-28 (9th Cir. 1988) (finding that 

extortion, backed up with physical violence, was on account of
12

both the petitioner’s political beliefs and the personal greed 

of the persecutor); cf. Quinteros-Mendoza, 556 F.3d at 164-65

(finding no evidence that gang extortion was on account of a 

protected ground).

Here, MS-13’s threats and demands for rent were part of the 

persecution Oliva faced and not, for example, a mere precursor 

to his persecution. Because it is undisputed that MS-13 

extorted Oliva on account of his leaving the gang, the record 

compels the conclusion that his persecution was on account of 

his status as a former member of MS-13.

Moreover, persecution may be on account of multiple central 

reasons or intertwined central reasons, and we have found so 

before. For example, in Hernandez-Avalos v. Lynch, the 

petitioner, a citizen of El Salvador, was threatened by the Mara 

18 gang when she refused to let the gang recruit her twelveyear-old son. 784 F.3d 944, 947 (4th Cir. 2015). The 

petitioner claimed that her persecution was on account of her 

membership in a particular social group—her nuclear family. Id.

at 949. The BIA held that the threats were on account of her 

refusing to allow her son to engage in criminal activity, not on 

account of her family membership. Id. This Court deemed the 

BIA’s view manifestly contrary to law and grounded in “an 

excessively narrow reading” of the nexus requirement. Id. We 

held that “Hernandez’s relationship to her son is why she, and 
13

not another person, was threatened with death if she did not 

allow him to join Mara 18,” and that “[t]he BIA’s conclusion 

that these threats were directed at her not because she is his 

mother but because she exercises control over her son’s 

activities draws a meaningless distinction.” Id. at 950.

Similarly, in Temu v. Holder, we analyzed the nexus 

requirement not by focusing myopically on a particular word or 

fact but rather by viewing the case holistically, with an eye to

the full factual context. 740 F.3d at 891–92. The petitioner

claimed that he was persecuted because of membership in a group 

of “individuals with bipolar disorder who exhibit erratic 

behavior.” Id. at 891. Although the BIA found that Temu was 

beaten for being mentally ill and behaving erratically, it 

nevertheless held that his persecution was not on account of his 

bipolar disorder specifically. Id. at 891–92. We reversed, 

holding that no reasonable factfinder could have reached that

conclusion and noting that “to reconcile [the BIA’s] conflicting 

findings . . . would demand logical acrobatics.” Id. at 892.

Here, as in Hernandez and Temu, Oliva presented compelling 

evidence that the gang did not demand money just for the sake of 

personal greed or as a random act of violence, but targeted him 

specifically because “leaving the gang was not allowed” unless 

he paid rent, A.R. 215, and those were “the rules for people who 

are not active members,” A.R. 217. The BIA acknowledged that 
14

“gang members began to threaten [Oliva] for ‘rent’ because he 

was recognized as a former gang member who no longer 

participated in gang activities and did not make payments while 

living elsewhere.” A.R. 4 (emphasis added).

Nevertheless, the BIA drew too fine a distinction between 

Oliva’s status as a former member of MS-13 and the threats to 

kill him for breaking the rules imposed on former members. 

While it is true that Oliva’s decision to stop paying rent—like 

Hernandez’s decision to resist gang recruitment efforts—was the 

immediate trigger for the gang’s brutal assault on Oliva, it was 

Oliva’s status as a former gang member that led MS-13 to demand 

rent in the first place and to assault him for failure to pay

it. See Hernandez, 784 F.3d at 950.

Finally, the BIA found no connection between the 

persecution Oliva faced and the fact that he left the gang “for 

moral or religious reasons.” A.R. 6. However, the fact that 

Oliva left the gang for moral and religious reasons places him 

in the category of former gang members that are required to pay 

rent. Thus, the fact that he left MS-13 for moral and religious 

reasons is not merely “incidental, tangential, superficial, or 

subordinate” to his refusal to pay. Quinteros-Mendoza, 556 F.3d 

at 164. Rather, it was a central reason for his persecution.4 

 4 We note that the BIA often requires petitioners to add 

modifiers onto their social group definition to meet the 
15

Even given the deferential standard of review, we conclude 

that Oliva faced persecution on account of his membership in a 

group of Salvadorans who are former members of MS-13 and who 

left the gang, without its permission, for moral and religious 

reasons.

B.

Having found that Oliva satisfied the nexus requirement, we 

now must consider whether Oliva asserted a cognizable particular 

social group. The BIA has held that a particular social group 

is cognizable under the INA if the group is: “(1) composed of 

members who share a common immutable characteristic, (2) defined 

with particularity, and (3) socially distinct within the society 

in question.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 

(B.I.A. 2014). 

The BIA did not reach the immutability or particularity 

prongs because it held that Oliva’s proposed social groups 

failed the social distinction requirement. To be socially 

 

particularity requirement. See W-G-R-, 26 I. & N. Dec. at 221–

22 (rejecting a proposed social group consisting of former 

members of the Mara 18 gang, because “when a former association 

is the immutable characteristic that defines a proposed group, 

the group will often need to be further defined” with modifiers, 

such as the duration of the individuals’ membership and the 

recency of their participation). Requiring each modifier to be 

an independent, central reason for the persecution could make it 

nearly impossible for petitioners to successfully navigate the 

legal requirements for asylum and withholding of removal. And 

nothing suggests that there must be a word-for-word match

between the group definition and the motivation of the 

persecutors. See Temu, 740 F.3d at 891–92.
16

distinct, a group must be “perceived as a group by society.” 

Id. at 240. The BIA determined that “[t]he record contains 

little evidence that Salvadoran society perceives individuals 

‘who left the [MS-13], without its permission,’ under either of 

the two sets of proposed circumstances, as a distinct social 

group.” A.R. 5 (second alteration in original).

The BIA stated that Oliva “has identified only one example” 

to show social distinction: his assertion that former gang 

members suffer employment discrimination. A.R. 5. The BIA 

found this example to be insufficient, indicating that it was 

not clear from the record that the discrimination was 

specifically tied to status as a former gang member. 

However, the BIA failed to address any of the other 

evidence that Oliva put forth, including evidence of governmentand community-driven programs to help former gang members 

rehabilitate themselves and an affidavit from a community 

organizer who stated that former gang members who leave the gang 

for religious reasons become seriously and visibly involved in 

churches. The parties agree that the BIA erred in failing to 

address Oliva’s other evidence. Indeed, the government concedes 

that the proper course of action is to remand to the BIA for 

consideration of the unaddressed evidence. Appellee’s Br. at 

47–50.
17

“[W]hen a BIA order does not demonstrate that the agency 

has considered an issue, ‘the proper course, except in rare 

circumstances, is to remand to the agency for additional 

investigation or explanation.’” Cordova, 759 F.3d at 338

(quoting Nken v. Holder, 585 F.3d 818, 822 (4th Cir. 2009)). 

Because the BIA order here fails to show that the agency 

adequately considered this issue, we remand.

IV.

In sum, we hold that Oliva established a nexus between his 

proposed social groups and the persecution he faced. The 

success of Oliva’s petition thus depends on whether either of 

his proposed social groups is cognizable. In determining that 

Oliva had not alleged a cognizable particular social group, the 

BIA failed to adequately address Oliva’s evidence. Accordingly, 

we grant Oliva’s petition for review, reverse the BIA’s 

determination on nexus, and remand this matter to the BIA for 

consideration of whether Oliva’s proposed social groups are

cognizable in light of all of the relevant evidence. 

PETITION FOR REVIEW GRANTED;

ORDER REVERSED IN PART, 

VACATED IN PART, AND REMANDED