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In re J-B-N- & S-M-, Respondents 

Decided June 25, 2007 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals 

Under section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 

Stat. 302, 303, in mixed motive asylum cases, an applicant must prove that race, religion, 

nationality, membership in a particular social group, or political opinion was or will be at 

least one central reason for the claimed persecution. 

FOR RESPONDENTS: Elissa Steglich, Esquire, Newark, New Jersey 

BEFORE: Board Panel: HOLMES, GRANT, and MILLER, Board Members. 

HOLMES, Board Member: 

In a decision dated January 4, 2007, an Immigration Judge denied the 

respondents’ applications for asylum, withholding of removal, and protection

under the Convention Against Torture and Other Cruel, Inhuman or Degrading 

Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, 

G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.

A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States

Apr. 18, 1988) (“Convention Against Torture”). The respondents have

appealed from that decision. The appeal will be dismissed. 

I. FACTUAL AND PROCEDURAL HISTORY 

The respondents are a married couple who are natives of Burundi and 

citizens of Rwanda. The record reflects that they sought entry to the United

States on September 11, 2006, but were placed in removal proceedings 

because they did not have valid visas. On the basis of their own admissions, 

the Immigration Judge found that they were removable. She further denied 

their applications for asylum and withholding of removal based on a finding 

that the respondents’ claimed fear of persecution did not have a nexus to one 

of the five protected grounds specified in section 208(b) of the Immigration 

and Nationality Act, 8 U.S.C. § 1158 (2000). Specifically, the Immigration 

Judge found that the respondents’ claim did not meet the new standard 

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provided in section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L.

No. 109-13, 119 Stat. 302, 303 (“REAL ID Act”), which requires an asylum

applicant to prove that a protected ground is “at least one central reason” for 

the fear of persecution.1 On appeal, the respondents argue that they produced

adequate evidence to show that the persecutors were motivated to harm them 

because of their “imputed Burundian nationality and membership in the 

particular social group of old case-load refugees.”2 

II. ANALYSIS 

A. Credibility 

Despite some inconsistencies between the lead respondent’s3

 story and

documentary evidence detailing a “land dispute,” the Immigration Judge noted 

that his testimony was consistent with his asylum application. The 

Immigration Judge did not enter an explicit credibility determination on the 

respondents’ claim as a whole. As a result, we will treat both respondents’

testimony as true for purposes of this appeal.4 

B. Respondents’ Claim 

According to the respondents’ testimony, they lived in Burundi until 1996,

when they went to live in Rwanda around the time of their marriage. Both are 

Tutsi by ethnicity. The respondent testified that shortly after his arrival in

Rwanda, he became close to an uncle who deeded a parcel of land to him so 

that he could build a home. The respondents apparently could not afford to 

build the home until 2004. 

1 The REAL ID Act amended the burden of proof standard for asylum applications under 

the Act. This amendment was enacted on May 11, 2005, and was expressly made applicable 

to asylum applications, like those of the respondents, that were filed on or after that date. 

See REAL ID Act § 101(h)(2), 119 Stat. at 305. 2 The respondents’ claim is framed as relating to their “imputed Burundian nationality” 

because, although both were born in that country, they are citizens of Rwanda through their 

parents, who fled to Burundi to escape violence in Rwanda in the 1950s. Returnees to 

Rwanda from Burundi and other countries are referred to as “repatriated refugees” and are 

sometimes classified as having the nationality of the country they came from, e.g., 

“Burundian,” “Ugandan,” or “Congolese.” 

3 The male respondent is the lead respondent in this case. Any further mention of the 

respondent in the singular refers to him. 

4 See REAL ID Act § 101(a)(3), 119 Stat. at 303 (to be codified at section 208(b)(1)(B)(iii) 

of the Act). 

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After the respondent’s uncle died in 2002 and the respondents started to

build on the property, the aunt took over the land to prevent the respondents 

from developing the property. The respondent’s aunt told him that this was 

because he was not a member of the extended “Sengabo” family. The 

respondent filed a complaint to “repossess” the land. After some legal

proceedings, the district ruled that the respondents had a right to the property

in January 2005.

In March 2005, the respondent began to receive anonymous telephone calls 

telling him to return to Burundi. These calls lasted until June 2006. The 

respondent indicated that he recognized the voice of his cousin, who was a 

major in the national police. He testified that his cousin also came to his home 

three times, once in April 2006 and twice in May or June of that year. The 

respondent decided to leave Rwanda in June 2006 and secured visas for 

himself and his wife through the American Embassy, where he worked as a 

driver. Upon arrival in the United States, the respondents were told that their

visas had been canceled. The respondent believes that his aunt and her family 

members were responsible for this. He stated that he thought that his relatives

were hostile to him because he “came from abroad [and] they did not know 

[him].” The respondent indicated that he believed that the aunt and cousin

feared he would “take the goods of dead family members. For them, it was 

unbearable.” On cross-examination, the respondent admitted that he and his 

aunt had an uneventful relationship prior to the land dispute. He described this 

relationship as a “friendship” prior to the dispute.

The female respondent’s testimony was in substantial agreement with this 

version of the events. She testified that she was present in April 2006 when

the respondent’s cousin came to her home with three others in police uniforms. 

The cousin told her to tell the respondent that it would be better for him to 

return to Burundi. Next, in early May 2006, the cousin came again with men 

in police uniforms, searched the home, and found passports with the visas in 

them. Toward the end of the month he came a third time and threatened her 

if the couple did not leave. On cross-examination, the female respondent

agreed with her husband that prior to 2004, when they began to build on the

land, there were no problems with his aunt or cousins. In fact, the female 

respondent stated that aside from the land issue, there “was no other problem. 

They started only when the land problem started.” 

The respondents presented the testimony of a witness who is a professor of 

political science and Africana studies and a researcher on the country of 

Rwanda. The witness stated that Rwandans like the respondents, who were

returning from Burundi, would have very low social status. He testified that 

the land in dispute between the respondent and his aunt was very valuable,

“like owning property in downtown Manhattan.” The witness characterized 

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land disputes in Rwanda as common and indicated his opinion that the aunt 

was trying to make a profit by selling the land. The witness further stated that 

even though the respondent had received a judicial decree that confirmed his 

ownership rights, he was essentially out of luck when it came to enforcing his

decree, because he had little power in Rwanda relative to that of his aunt and

her family. According to the witness, the cousin’s position as a police officer

was “very significant” because it allowed him to oppose the respondents’ 

attempt to keep the land. The witness concluded that the respondents’ risk of

harm in Rwanda stems from a “family squabble” and the fact that being from 

Burundi, they “don’t have connections to power that they could turn to for 

protection.” 

C. Statutory and Case Law 

Prior to its amendment by the REAL ID Act, the Immigration and 

Nationality Act provided that an applicant could demonstrate eligibility for 

asylum by showing that he or she was a “refugee,” as that term is defined in 

section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (2000). Pursuant to that 

definition, an alien is required to demonstrate that he is unwilling or unable to

return to his country 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. Id.; Matter of Mogharrabi, 

19 I&N Dec. 439 (BIA 1987).

Although an alien must fully demonstrate that he meets the requirements of 

the refugee definition, we have stated that “an applicant does not bear the 

unreasonable burden of establishing the exact motivation of a ‘persecutor’ 

where different reasons for actions are possible.” Matter of Fuentes, 19 I&N 

Dec. 658, 662 (BIA 1988). Recognizing that “[p]ersecutors may have 

differing motives for engaging in acts of persecution,” we have indicated that

an applicant for asylum need not show “conclusively” that the persecution 

was, in fact, motivated on account of one of the five grounds protected under 

the Act. Matter of S-P-, 21 I&N Dec. 486, 489 (BIA1996).5 Rather, we have 

stated that an applicant must produce evidence, either direct or circumstantial, 

from which it is reasonable to believe that the harm was or would be motivated 

in part by an actual or imputed protected ground. Id. at 494. 

5 In fact, we stated that such a requirement would render “nugatory” the Supreme Court’s 

decision in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). Matter of S-P-, supra, at 489. 

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D. REAL ID Act Amendments 

In enacting the REAL ID Act, Congress sought to clarify the above 

standard and to provide a “uniform standard for assessing motivation.” See 

H.R. Rep. No. 109-72, at 163 (2005) (Conf. Rep.). The statute now states that 

an asylum applicant must “establish that race, religion, nationality, 

membership in a particular social group, or political opinion was or will be at 

least one central reason for persecuting the applicant.” REAL ID Act 

§ 101(a)(3), 119 Stat. at 303 (to be codified at section 208(b)(1)(B)(i) of the

Act) (emphasis added). This case requires us to assess the new statutory

standard and to determine what evidence satisfies an alien’s burden of showing

that at least one central reason for his or her mistreatment “is on account of 

race, religion, nationality, membership in a particular social group, or political 

opinion.” See H.R. Rep. No. 109-72, at 165.

Our interpretation of the law is governed by settled principles of statutory

construction. First, we must look to the actual language used in the statute.

It is well settled that the “‘starting point must be the language employed by 

Congress’” and that we must assume “‘that the legislative purpose is expressed 

by the ordinary meaning of the words used.’” INS v. Phinpathya, 464 U.S. 

183, 189 (1984) (quoting American Tobacco Co. v. Patterson, 456 U.S. 63, 

68 (1982)); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987);

Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999). Second, we must look 

to the language and design of the statute as a whole. K Mart Corp. v. Cartier,

Inc., 486 U.S. 281, 291 (1988). Third, we must give effect, if possible, to all 

parts of a statute. Kungys v. United States, 485 U.S. 759 (1988).

The definition of the word “central” includes “[h]aving dominant power,

influence, or control.” Webster’s II New College Dictionary 181 (1st ed.

1995) (emphasis added). Recognizing that this definition could pose problems 

for those seeking asylum based on “mixed motives,”6

 Congress purposely did

not require that the protected ground be the central reason for the actions of the 

persecutors.7 Rather, the version of the REAL ID Act originally introduced in

the House of Representatives provided that an asylum applicant would bear the 

burden of proving that one of the five protected grounds “was or will be a 

6

 The problem in classifying one motive as “dominant” or “central” is that it renders all 

other motives, regardless of their significance to the case, secondary and therefore ultimately 

irrelevant. 

7 One commentator has suggested that the use of the word “central” could create the 

“opportunity for adjudicators to require more proof of causation” than that previously set 

forth in INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992), and Matter of S-P-, supra. See 

Marisa Silenzi Cianciarulo, Terrorism and Asylum Seekers: Why the REAL ID Act is a False 

Promise, 43 Harv. J. on Legis. 101, 118 (Winter 2006). 

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central reason for persecuting the applicant.” See H.R. 418, 109th Cong.

§ 101(a)(3) (2005) (emphasis added). During conference on the bill, this

language was modified to become “at least one central reason,” the final 

version of the REAL ID Act.8

 That language thus confirms that aliens whose 

persecutors were motivated by more than one reason continue to be protected

under section 208 of the Act if they can show a nexus to a protected ground.

Along with giving effect to the ordinary meaning of a provision’s words, 

a fundamental guide to statutory interpretation is “common sense.” Matter of 

N-B-, 22 I&N Dec. 590 (BIA 1999) (citing Chevron U.S.A., Inc. v. Natural 

Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1994)). In exercising

our common sense to ascertain the meaning of the statutory amendments at 

issue, “we construe the language in harmony with the wording and design of 

the statute as a whole.” Matter of Fuentes-Campos, 21 I&N Dec. 905, 907 

(BIA 1997) (citing K Mart Corp. v. Cartier, Inc., supra, at 291). In this 

regard, we look to the legislative history behind the amendments to the Act 

and note that Congress stated in the conference report on the approved bill that

in asylum claims under the amended Act, the protected ground cannot be 

merely “‘incidental or tangential to the persecutor’s motivation.’” See H.R. 

Rep. No. 109-72, at 163 (quoting Asylum and Withholding Definitions, 

65 Fed. Reg. 76,588, 76,592 (Dec. 7, 2000)). “Incidental” is defined as “[o]f 

a minor, casual, or subordinate nature,” reflecting the conferees’ intent that 

where a protected ground is only subordinate to another (nonprotected) reason

for the persecution, an applicant is ineligible for asylum. See Webster’s II New 

College Dictionary, supra, at 560. Similarly, because “tangential” is defined 

as “[s]uperficially relevant,” a claimant who raises a protected ground as only

a superficial part of the overall claim will likewise be ineligible for asylum. 

Id. at 1126. 

We also note that Congress cited with approval two federal cases assessing

“mixed motive” situations. See H.R. Rep. No. 109-72, at 163. In Girma v. 

INS, 283 F.3d 664 (5th Cir. 2002), the United States Court of Appeals for the

Fifth Circuit denied relief where an Ethiopian woman who had been abducted 

and attacked presented inadequate evidence of who attacked her and why.

Key to this finding was the fact that the applicant offered no proof to show

whether those who attacked her did so because of her political affiliation or

simply to extort money from a wealthy businesswoman. Id. at 667. The court 

stated that the alien was required to show that harm was “motivated in 

meaningful part” by a protected ground. Id. at 668. In Ambartsoumian v. 

Ashcroft, 388 F.3d 85 (3d Cir. 2004), the Third Circuit denied asylum to a

married couple who claimed in part that they were persecuted because the 

8 The REAL ID Act language was incorporated into H.R. 1268, 109th Cong. (2005). 

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husband was not a native Ukrainian. The court found that the record supported

a finding that the male respondent’s “troubles . . . stemmed not from his 

ethnicity but from his lack of official permission to live and work [in 

Ukraine.]” Id. at 91 (also noting “several reasons” why the male respondent

was unable to get a job in Ukraine, including his inability to speak the native

language).

Having considered the conference report and the language of the REAL ID

Act, we find that our standard in mixed motive cases has not been radically 

altered by the amendments.9 The prior case law requiring the applicant to

present direct or circumstantial evidence of a motive that is protected under the 

Act still stands. As had previously been the case, the protected ground cannot

play a minor role in the alien’s past mistreatment or fears of future 

mistreatment. That is, it cannot be incidental, tangential, superficial, or

subordinate to another reason for harm. Rather, it must be a central reason for 

persecuting the respondent. The motivation of the persecutors involves 

questions of fact, and the burden can be met by testimonial evidence. Matter 

of S-P-, supra, at 490. Supporting documents and corroborative background 

evidence also “must be taken into account.” Id. 

9 The amendment clarifying the standard that an applicant must meet to establish the 

motivation for the claimed persecution appears more directed to judicial case law. The 

REAL ID Act conferees noted that there was no uniform standard for assessing motivation 

and indicated that the adoption of the “at least one central reason” standard would 

significantly impact the approach taken by the Ninth Circuit in some mixed motive cases. 

See H.R. Rep. No. 109-72, at 163. The report reflects that the new statutory standard 

addresses the Ninth Circuit’s decisions in Borja v. INS, 175 F.3d 732 (9th Cir. 1999), 

Briones v. INS, 175 F.3d 727 (9th Cir. 1999), and other cases, which had “substantially 

undermined a proper analysis of mixed motive cases.” H.R. Rep. No. 109-72, at 163. The 

conferees also stated that the new standard would address an anomaly in the law created by 

the Ninth Circuit “that improperly favors asylum applicants who claim that they have been 

accused of engaging in terrorist, militant, or guerrilla activity” by creating a presumption in 

certain circumstances that certain government prosecutions were politically motivated. Id.; 

see also, e.g., Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995); Blanco-Lopez v. INS, 858 

F.2d 531, 534 (9th Cir. 1988); Hernandez-Ortiz v. INS, 777 F.2d 509, 516 (9th Cir. 1985). 

The report states that the “central reason” standard “will eliminate this presumption, and 

require aliens who allege persecution because they have been erroneously identified as 

terrorists to bear the same burden as all other asylum applicants, that is, they will have to 

offer direct or circumstantial evidence of motive, in accordance with Supreme Court 

precedent.” H.R. Rep. No. 109-72, at 165. The issues addressed in this regard do not arise 

in the case before us. 

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E. Application of the REAL ID Act to Respondents’ Claim 

The Immigration Judge dismissed the respondents’ claim because she 

found that they had failed to produce evidence to show that a protected ground

was at least one central reason for the mistreatment and threats by his aunt and 

cousin. She found no evidence of past persecution, summarizing the case as 

“a family dispute.” In support of this conclusion, the Immigration Judge noted 

the lack of any direct or circumstantial evidence that the family members 

targeted the respondents because they came from Burundi, finding instead that 

they wanted to “dispossess the respondent of the land . . . and thereafter 

attempt[] to sell [it] for an exorbitant amount of money.” The Immigration 

Judge also found that the respondents’ cousins did not try to harm them 

because they wanted to “politicize” the land dispute, noting the lack of any 

persuasive evidence to corroborate this claim. Finally, the Immigration Judge 

found the testimony of the expert witness to be “not at all helpful” on the issue 

of motive, because he provided testimony that was beyond the scope of the 

respondents’ claim. 

We are not persuaded that the Immigration Judge’s relevant fact-finding in

this regard was clearly erroneous, and we otherwise agree with her analysis. 

See 8 C.F.R. § 1003.1(d)(3)(i) (2007). Because there has been no showing of

past persecution, we examine whether the respondents have established a wellfounded fear of persecution on account of a protected ground. The balance of 

the evidence indicates that the respondents were targeted because of a fight

over the land, not because they were born in Burundi. The respondents

admitted that prior to their decision to build on the land, there were no 

problems with either their aunt or their cousins. There is no evidence of 

threats or taunts on account of their imputed Burundian nationality before the 

land dispute. In fact, the female respondent stated that there were no problems 

between her husband and his relatives before he started developing the land

deeded by his uncle, and the respondent admitted that prior to the land dispute,

he had a relatively cordial relationship with his aunt.

Even though the Immigration Judge largely disregarded it, we note that the

opinion of the expert witness–in the context of the record as a whole–also

confirms the conclusion of the Immigration Judge, in that he observed that 

“Rwanda has a long tradition of family violence, which is common and often 

extreme.” Furthermore, the background evidence confirms that Rwanda itself 

“identified land as ranking highest among potential sources of conflict” 

between its citizens. African Peer Review Mechanism, Country Review

Report of the Republic of Rwanda § 6.1.2, at 126 (June 2006) (discussing 

Rwanda’s “Country Self-Assessment Report”). This indicates that it would be 

common to find land access issues at the center of a potentially violent family 

dispute. 

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Moreover, even if we accept the expert witness’s testimony that the 

respondents’ status as outsiders from Burundi meant that they did not have

access to institutions that they could turn to for help, we still find that this

claim is fundamentally a personal dispute, not one that is on account of the 

respondents’ imputed nationality. The respondents were two of millions of 

repatriated refugees whose numbers overwhelmed the Rwandan Government, 

which had not planned for the space and resource needs of these returnees. The

respondents’ lack of connections to power occurred because they previously

lived in Burundi and therefore had not been in Rwanda long enough to

establish ties or connections that could rival those established by his aunt.

This disenfranchisement may have prevented them from enforcing their

property rights decree, but it does not equate to proof that they were targeted

by family members because of their nationality. See Ambartsoumian v. 

Ashcroft, supra, at 91 (finding that the inability of the respondent, a native

Georgian, to get a work permit and residence in Ukraine was not persecution

on account of his ethnicity where the record reflected that the respondent did

not follow steps to secure work and residency permits and could not speak 

Ukrainian).

Finally, the record lacks evidence to support a finding that the respondents’

absence from Rwanda during the genocide there resulted in their persecution

by relatives on account of an imputed political opinion. While the expert

witness discussed various divisions among the population in Rwanda,

including those who were in the country during the genocide and those who

were not, the record contains no evidence, direct or circumstantial, that would 

enable us to conclude that the respondents were targeted on account of an

actual or imputed political opinion. 

III. CONCLUSION 

Without evidence that the respondents’ Burundian origins or their status as

repatriated refugees was more than a tangential motivation for the threats 

against them, we cannot find, as the Act requires, that a protected ground was

“at least one central reason” for the respondents’ fear of harm. Here, the fact 

that the respondents were born in Burundi and then came to live in Rwanda 

can best be described as incidental to the central land dispute. The record 

reflects no direct or circumstantial evidence that would tend to show that the 

respondents’ aunt and cousins were interested in harming them because they 

came from Burundi. Indeed, the evidence shows that absent the land dispute,

the respondents would have had no conflict with family members in Rwanda. 

The respondents therefore cannot qualify for the relief of asylum or 

withholding of removal. 

The respondents also have not shown a clear probability of torture at the

instigation of, or with the consent or acquiescence of, current government 

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officials or persons acting in an official capacity. A public official’s

acquiescence to torture “requires that the public official, prior to the activity

constituting torture, have awareness of such activity and thereafter breach his

or her legal responsibility to intervene to prevent such activity.” 8 C.F.R.

§ 1208.18(a)(7) (2007). The respondents have not shown that anyone in the

Rwandan Government would affirmatively consent or acquiesce to their 

torture. They are therefore not entitled to protection under the Convention 

Against Torture.

Accordingly, the respondents’ appeal will be dismissed. 

ORDER: The appeal is dismissed. 

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