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In re A-M-E & J-G-U-, Respondents 

Decided as amended January 31, 20071 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals 

(1) Factors to be considered in determining whether a particular social group exists include 

whether the group’s shared characteristic gives the members the requisite social visibility 

to make them readily identifiable in society and whether the group can be defined with 

sufficient particularity to delimit its membership. 

(2) The respondents failed to establish that their status as affluent Guatemalans gave them 

sufficient social visibility to be perceived as a group by society or that the group was defined 

with adequate particularity to constitute a particular social group. 

FOR RESPONDENT: Roberto Tschudin Lucheme, Esquire, Glastonbury, Connecticut 

BEFORE: Board Panel: HURWITZ, Acting Vice Chairman; HOLMES and MILLER, 

Board Members. 

HOLMES, Board Member: 

The United States Court of Appeals for the Second Circuit has remanded 

this case for consideration of the question whether “affluent Guatemalans” are 

members of a particular social group within the definition of a “refugee” in 

section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1101(a)(42)(A) (2000). Ucelo-Gomez v. Gonzales, 448 F.3d 180 (2d Cir. 

2006).2

 As discussed below, we conclude that the Immigration Judge did not 

err in ruling that the respondents failed to establish that “affluent 

Guatemalans” are a particular social group within the meaning of the Act. We 

further find no error in his ruling that the respondents did not otherwise 

demonstrate that they were persecuted or face a well-founded fear of 

persecution on account of a protected ground in the refugee definition. We 

1 On our own motion, we amend the June 19, 2006, order in this case. The amended order 

makes editorial changes consistent with our designation of the case as a precedent. 

2 We note that subsequent to our June 19, 2006, decision, the Second Circuit issued an 

order amending its opinion in this case. Ucelo-Gomez v. Gonzales, 464 F.3d 163 (2d Cir. 

2006). Because our decision was issued prior to that amendment, it refers to the court’s 

initial order. 

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will therefore dismiss the respondents’ appeal from the Immigration Judge’s 

decision denying their applications for asylum and withholding of removal.3 

I. FACTUAL AND PROCEDURAL HISTORY

The respondents are a married couple from Guatemala. They entered the 

United States in August 2001 using forged travel visas and false names. In 

sworn statements completed upon arrival at the San Ysidro Port of Entry, the 

male respondent indicated that he left his home country to come to the United 

States to “look for work” and the female respondent indicated that she came 

to visit her uncle in Los Angeles. In response to the question whether they 

had “any fear or concern about being returned to [Guatemala] or being 

removed from the United States,” both respondents answered, “No.” 

In proceedings before the Immigration Judge, the respondents conceded 

removability but requested relief based on their claim of persecution.4

 In her 

asylum application filed on January 2, 2003, the female respondent provided 

the following account of events in Guatemala: 

My sister was kidnapped in December of 1996, and held until January, 1997. She 

was shot in the leg during the kidnapping. I started receiving extortionious [sic]

threats, and threats against my life and that of my husband. We were forced to 

continually change our location, and such threats against ourselves continued until we 

sought refuge in the United States. 

We feel that at the very least, we will be harassed and threatened by the same group 

or groups that persecuted us in the past, and at worse, we could be found, kidnapped, 

physically harmed, even killed. The motivation for these threats are the same as those 

that caused harm to my sister: class hatred by organized political gangs. 

At the hearing before the Immigration Judge, the respondents claimed to 

have been persecuted on account of membership in a particular social group 

composed of “higher socio-economic” Guatemalans. The Second Circuit 

summarized the female respondent’s testimony before the Immigration Judge 

as follows: 

She came from a well-off family; she and her husband had a good life in Guatemala; 

they own a house that is presently rented out; the couple employed a housekeeper; and 

she attended college and obtained a teacher’s degree. 

In December 1996, the couple received anonymous phone calls demanding ransom 

for the release of [her] sister, and threatening that, unless the ransom was paid, they 

would face the same fate. 

By reason of telephonic and written threats, [the respondents] moved (in October 

1998) to another town in Guatemala but the threats resumed several months later, 

forcing them to move once more. 

3 The respondents did not appeal the Immigration Judge’s denial of other relief for which 

they had applied. 

4 The female respondent filed the asylum application, with her husband named as a 

derivative beneficiary. 

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After their final relocation, [the respondents] were unemployed and subsisted off 

savings and investment income. 

[The female respondent] twice reported the threats to the police, to no apparent 

effect. 

The couple never paid her sister’s ransom, but the sister was released by her captors 

after they “saw her wounded in her leg.” 

Ucelo-Gomez v. Gonzales, supra, at 182-83. 

At the conclusion of the hearing, the Immigration Judge asked who was 

included within the proposed particular social group. Counsel for the 

respondents explained, “Basically, they are comprised on a relative scale at 

a higher socio-economic level, so they’re being persecuted for that reason.” 

The Immigration Judge then asked what information indicates “that people 

like this are being persecuted.” Counsel for respondents replied: 

Well, it’s rather ambiguous, Your Honor. For example, if you’re looking through 

the Country Report, when people are being victimized in Guatemala, there’s official 

reports . . . that it may be criminal activity, but NGOs report that it . . . seems like 

there’s evidence that it may be related to other reasons . . . .

After further questioning, counsel for the respondents described the proposed 

social group as “the upper class.” 

The Immigration Judge denied asylum and withholding of removal, finding, 

in part, that the respondents failed to demonstrate that “affluent Guatemalans” 

were a particular social group. In so concluding, he applied Matter of Acosta, 

19 I&N Dec. 211, 233 (BIA 1985), and Gomez v. INS, 947 F.2d 660, 664 (2d 

Cir. 1991), a decision of the Second Circuit, the circuit in which this case 

arises. Under these cases, he found that the proposed group was not a 

particular social group because the group’s shared characteristic was not 

“immutable,” the group was not readily “identifiable,” and it was “too 

broad[ly]” defined to be a social group for purposes of obtaining asylum. He 

also found that the respondents had not provided sufficient evidence to show 

that similarly-situated Guatemalans could be identified by would-be 

persecutors. In particular, he found that there was “nothing in the background 

materials to indicate that wealthy Guatemalans are specifically being targeted 

for persecution.” Additionally, he found no evidence that the persons calling 

the respondents were motivated to persecute them on account of their social 

group membership or any other protected ground.5 

In their appellate brief, the respondents, through counsel, conceded that 

persecution based on “wealth alone is insufficient” to meet the nexus 

The Immigration Judge also found that the threats to the respondents did not rise to the 

level of harm required to demonstrate past persecution. He also made an adverse credibility 

finding based primarily on the conflict between the respondents’ statements upon arrival that 

they had no fear of returning to Guatemala and their subsequent asylum claim to the 

contrary. We assume, without deciding, that the respondents provided a truthful account in 

their asylum application and in their testimony before the Immigration Judge. 

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requirement and argued that the persecution “was motivated in part by [their]

political opinion/membership etc.” This concession was consistent with our 

holdings in several published decisions that “in the absence of evidence to 

suggest other motivations, evidence that the perpetrators were motivated by 

a victim’s wealth will not support a finding of persecution.” Matter of S-V-, 

22 I&N Dec. 1306, 1310 (BIA 2000) (holding, in a case involving fear of 

kidnaping by Colombian guerrillas, that actions motivated by “perceived 

wealth” were insufficient, without more, to support a finding of persecution 

based on membership in a particular social group), overruled on other 

grounds by Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003); see also Matter 

of V-T-S-, 21 I&N Dec. 792, 799 (BIA 1997) (finding that where the 

“common trait shared by the victims of kidnappings in the Philippines is 

wealth, i.e., their ability to pay large ransoms,” the respondent did not 

demonstrate that persecution was on account of an enumerated ground); 

Matter of T-M-B-, 21 I&N Dec. 775, 779 (BIA 1997) (finding no persecution 

on account of a protected ground where “the NPA’s practice of securing 

financial support by the threats of force and actual harm [was] motivated by 

the victim’s wealth, not the victim’s political opinion”), rev’d, Borja v. INS, 

175 F.3d 732 (9th Cir. 1999) (en banc) (finding imputed political opinion on 

the facts); cf. Bolshakov v. INS, 133 F.3d 1279, 1281 (9th Cir. 1998) (holding 

that successful Russians targeted by criminals for extortion were not 

persecuted on account of a statutorily protected ground). 

The respondents’ arguments on appeal consisted of four paragraphs 

addressing the requisite nexus to a protected ground, the final one of which 

stated the substance of the argument as follows: 

The Respondents membership in the upper-class of Guatemala, and the history 

suffered by the family at the hands of terrorists, indicates they are targets of 

persecution. The IJ felt wealth alone is insufficient, and that is conceded. But, at 

trial, counsel for the Respondents indicated that in the U.S. State Department Country 

Report for Guatemala, p. 8, that there was a report that a nun was killed in Guatemala 

City, in what was reported as an attempted carjacking, but “various human rights 

groups did not rule out the possibility of political motive.” The IJ noted that the nun 

dealt with war victims, and thus felt convinced that this could serve as some kind of 

imputed political ideology. This same issue was raised by counsel at trial, when he 

argued that the position of the Respondents was akin to a “mixed motives” case–as 

amply demonstrated by the case of the nun cited in the Country Report. See also, 

Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (Persecution does not necessarily entail 

persecution for reasons exclusive to five classes. Thus if persecutor was motivated 

in part by victim’s political opinion/membership etc., a successful claim to asylum can 

be made.) 

Given the evidence of record, the nature of the Immigration Judge’s decision, 

and the respondents’ arguments on appeal, we affirmed the Immigration 

Judge’s decision without opinion. See 8 C.F.R. § 1003.1(e)(4) (2006). 

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After the Second Circuit remand, we afforded the parties an opportunity to 

provide further briefing. The respondents have submitted a supplemental 

brief in which they argue that “although it is true that Respondents did not 

know the motivation of their persecutors, such knowledge is not fatal to their 

case. So long as the actions were, at least in part, by one of the enumerated 

grounds [sic].” They further assert that they were persecuted based on social 

group membership combined with imputed political opinion, stating that they 

“are arguing (in part) that their political beliefs are imputed to them by virtue 

of their wealth i.e. they must support the status quo as it protects the wealth 

they have accumulated.” 

II. ANALYSIS 

The Second Circuit has directed us on remand to “expand upon” Matter of 

Acosta, supra, as to the meaning of “particular social group” and to explain 

why “affluent Guatemalans” are not a “particular social group.” Ucelo-Gomez 

v. Gonzales, supra, at 187-88. Initially, we note that the respondents have the 

burden of demonstrating both that they were members of a particular social 

group and that past or feared persecution satisfied the “on account of” 

requirement in the “refugee” definition. 8 C.F.R. § 1208.13(a) (2006). In 

meeting this burden, the respondents must initially identify the “group” on 

which the claim is based and demonstrate that such a group is a “particular 

social group” as that term is used in the “refugee” definition. The proposed 

group has been variously described during the course of these proceedings in 

terms of “wealth,” “affluence,” “upper income level,” “socio-economic 

level,” “the monied class,” and “the upper class.” Although we generally refer 

to wealth or affluence as the identifying characteristic in our discussion below, 

our analysis applies to each of these descriptions of the group characteristic. 

A. Particular Social Group 

In Matter of Acosta, supra, at 233, we established that the members of a 

particular social group must “share a common, immutable characteristic.” The 

characteristic may be innate, such as “sex, color, or kinship ties,” or it may be 

a shared past experience such as “former military leadership or land 

ownership.” Id. In either event, the group characteristic must be one “that the 

members of the group either cannot change, or should not be required to 

change because it is fundamental to their individual identities or consciences.” 

Id. 

We agree with the Immigration Judge that “wealth” is not an immutable 

characteristic. This determination alone, however, is not dispositive if, for 

example, the shared characteristic is so fundamental to identity or conscience 

that it should not be expected to be changed. In this regard, we would not 

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expect divestiture when considering wealth as a characteristic on which a 

social group might be based. Nonetheless, we find that the Immigration Judge 

correctly applied the Matter of Acosta framework in conjunction with the 

Second Circuit’s decision in Gomez v. INS, supra, in determining that the 

proposed group of “wealthy” Guatemalans is not so readily “identifiable” or 

sufficiently defined as to meet the requirements of a particular social group 

within the meaning of the refugee definition. 

We recently reaffirmed the importance of social visibility as a factor in the 

particular social group determination in Matter of C-A-, 23 I&N Dec. 951, 957 

(BIA 2006) (holding that “noncriminal informants working against the Cali 

drug cartel” in Colombia were not a particular social group), aff’d, 

Castillo-Arias v. U.S. Attorney General, 446 F.3d 1190 (11th Cir. 2006), cert. 

denied sub nom. Castillo-Arias v. Gonzales, ___S. Ct. ___, 2007 WL 36174 

(U.S. Jan. 18, 2007) (No. 06-642). In reaffirming the requirement that the 

shared characteristic of the group should generally be recognizable by others 

in the community, we relied, in part, on the Second Circuit’s view that “‘the 

attributes of a particular social group must be recognizable and discrete.’” Id. 

at 956 (quoting Gomez v. INS, supra, at 664); see also Matter of H-, 21 I&N 

Dec. 337 (BIA 1996). In addition, we referred to the 2002 guidelines of the 

United Nations High Commissioner for Refugees, which endorse an approach 

in which an important factor is whether the members of the group are 

“perceived as a group by society.” Id. at 956. Although a social group cannot 

be defined exclusively by the fact that its members have been subjected to 

harm, we noted that this may be a relevant factor in considering the group’s 

visibility in society. Id. at 960. 

In Matter of C-A-, supra, we also considered whether the group was 

defined with the requisite particularity. Id. at 957. We found that the 

respondent’s proposed group of “noncriminal informants” was “too loosely 

defined to meet the requirement of particularity.” Id. In so holding, we noted 

that we do not generally require a “voluntary associational relationship,” 

“cohesiveness,” or strict “homogeneity among group members.” Id. at 

956-57. 

1. Social Visibility 

Whether a proposed group has a shared characteristic with the requisite 

“social visibility” must be considered in the context of the country of concern 

and the persecution feared. The respondents in this case are victims of threats 

of criminal extortion. As the Immigration Judge found, there is little in the 

background evidence of record to indicate that wealthy Guatemalans would 

be recognized as a group that is at a greater risk of crime in general or of 

extortion or robbery in particular. The June 1997 country profile for 

Guatemala states: 

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With the signing of the [1996] peace accords, the guerrillas renounced the use of force 

to achieve political goals. Although the level of crime and violence now seems to be 

higher than in the recent past, the underlying motivation in most asylum cases now 

appears to stem from common crime and/or personal vengeance. 

The situation is further complicated by the fact that criminal elements, including some 

former combatants, are taking advantage of the instability of the transitional period. 

An August 1996 public opinion poll showed that 70 percent of those interviewed 

considered violence the major problem in Guatemala. In the past, most acts of 

violence in the country tended to be regarded as politically motivated, but the public 

perception seems to be changing now that the civil war has ended. 

Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, 

Guatemala-Profile of Asylum Claims & Country Conditions 4 (June 1997) 

[hereinafter Profile]. Neither the 1997 Profile nor the Department of State’s 

2001 country report on Guatemala suggests that the affluent, however defined, 

are exposed to more violence or human rights violations than other segments 

of society. See Committees on International Relations and Foreign Relations, 

107th Cong., 2nd Sess., Country Reports on Human Rights Practices for 2001 

(Joint Comm. Print 2002). Rather, violence and crime in Guatemala appear 

to be pervasive at all socio-economic levels. The respondents have provided 

no evidence, and we have no reason to believe, that the general societal 

perception would be otherwise.6

 Notably, the only specific reference to 

“extortion or robbery” in the Profile occurs in the context of attacks against 

Indians, a relatively impoverished group in Guatemala. Profile, supra, at 5. 

From the point of view of a criminal bent on extortion, persons with relatively 

modest resources or income may possess sufficient land, crops, or other forms 

of wealth to make them potential targets. The proposed group of “wealthy 

Guatemalans” therefore fails the “social visibility” test.7 

We do not rule out the possibility that, in appropriate circumstances, “wealth” may be a 

shared characteristic of a social group. For example, should a government institute a policy 

of imprisoning and mistreating persons with assets or income above a fixed level, there 

could be a basis for a societal perception that the class of wealthy persons, as defined by the 

government, would constitute a particular social group. 

7 In Gao v. Gonzales, 440 F.3d 62 (2d Cir. 2006), the court recognized that women sold into 

marriage in a part of China where forced marriages are valid and enforceable were a 

particular social group. In so holding, the court distanced itself from Gomez v. INS, supra, 

suggesting that “Gomez can reasonably be read as limited to situations in which an applicant 

fails to show a risk of future persecution on the basis of the ‘particular social group’ 

claimed, rather than as setting an a priori rule for which social groups are cognizable.” Gao 

v. Gonzales, supra, at 69. At the time of the Immigration Judge’s decision and our summary 

affirmance, however, the approach outlined in Gomez v. INS, supra, and the Board’s 

decision in Matter of H-, supra, established that “social visibility” was an important factor 

in identifying a “particular social group.” 

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2. Particularity 

The respondents’ proposed group also fails the particularity requirement of 

the refugee definition. The terms “wealthy” and “affluent” standing alone are 

too amorphous to provide an adequate benchmark for determining group 

membership. Depending upon one’s perspective, the wealthy may be limited 

to the very top echelon; but a more expansive view might include small 

business owners and others living a relatively comfortable existence in a 

generally impoverished country. Because the concept of wealth is so 

indeterminate, the proposed group could vary from as little as 1 percent to as 

much as 20 percent of the population, or more.8 

The respondents’ proposed social group is indeterminate, and not just at the 

margins, as will often be the case in describing group membership. Rather, 

when “wealth” is the sole criterion, group membership is difficult to delimit 

for a large swath of potential members. The characteristic of wealth or 

affluence is simply too subjective, inchoate, and variable to provide the sole 

basis for membership in a particular social group. We therefore find that the 

respondents have not demonstrated that “wealthy Guatemalans”constitute a 

particular social group. 

B. Other Motives for Persecution 

The respondents have not provided evidence to show that the person or 

persons making the threats against them were motivated by the respondents’ 

political opinion or imputed political opinion.9 Nor have they shown that the 

threats were motivated by “class envy.” Indeed, the respondents are unaware 

of the identity of the person or persons who threatened them, or the group 

with which they are affiliated, if any. The respondents have produced no 

evidence to show that the anonymous caller or callers had any motive other 

than attempted criminal extortion. See INS v. Elias-Zacarias, 502 U.S. 478, 

483 (1992) (finding that a claim that guerrilla recruitment attempts were 

based, in part, on imputed political opinion was unsupported by either direct 

or circumstantial evidence that the persecutor had a motive other than 

increasing the size of its forces). Here there is no indication that the person 

or persons who pursued the respondents had any motive other than increasing 

their own wealth at the expense of the respondents. We therefore find that the 

respondents failed to demonstrate that they were persecuted or have a 

well-founded fear of persecution based on a protected ground. 

8 The 1997 Profile notes that 80 percent of Guatemalans live in poverty, with 59 percent 

in extreme poverty. Profile, supra, at 10. 

9 As the Second Circuit noted, the female respondent “concede[d] that neither she nor her 

husband had any political involvement.” Ucelo-Gomez v. Gonzales, supra, at 182 n.1. 

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III. CONCLUSION

We concur with the Immigration Judge’s finding that the respondents failed 

to demonstrate that “affluent Guatemalans” are a particular social group or 

that they were persecuted or fear persecution on account of a protected ground 

in the refugee definition. Accordingly, we agree that they failed to 

demonstrate eligibility for asylum or withholding of removal. We will 

therefore dismiss the respondents’ appeal. 

ORDER: The respondents’ appeal is dismissed. 

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