In the

United States Court of Appeals
              For the Seventh Circuit

No. 09-3792

D ORIS M ARTINEZ-B UENDIA,
                                                        Petitioner,
                               v.

E RIC H. H OLDER, JR., Attorney General
of the United States,
                                                       Respondent.


              Petition for Review of an Order of the
                 Board of Immigration Appeals.


      A RGUED M AY 19, 2010—D ECIDED A UGUST 10, 2010




 Before F LAUM, M ANION, and H AMILTON, Circuit Judges.
  F LAUM, Circuit Judge.    Petitioner Doris Martinez-
Buendia appeals her denial of asylum and withholding
of removal. Martinez-Buendia is a fifty-year-old optome-
trist from Colombia. She came to the United States in
2005 and applied for asylum on the ground that she
was being persecuted by the Revolutionary Armed Forces
of Colombia (the Fuerzas Armadas Revolucionarias
de Colombia—commonly known as the “FARC”) on
account of her anti-FARC political position and her in-
2                                              No. 09-3792

volvement with a social group called the “Health Bri-
gades.” About two years before Martinez-Buendia fled
Colombia, the FARC began harassing her with phone
calls and letters demanding that she give public credit
to the FARC for the health care work she organized
in rural communities through the Heath Brigades. As
Martinez-Buendia continually refused the FARC’s de-
mands, the FARC’s actions grew increasingly vio-
lent towards her. The FARC escalated from making
threatening phone calls and leaving threatening letters
to attacking a Health Brigade caravan and kidnaping
her sister. After Martinez-Buendia’s sister escaped, the
FARC kidnaped Martinez-Buendia’s brother-in-law. The
final incident before Martinez-Buendia fled involved a
FARC member following Martinez-Buendia into a cab
while she was delivering school supplies to an under-
resourced school, holding a gun to her head, and threat-
ening that if she did not give the FARC credit for the
Health Brigades, they would do far worse to her than
they did to her sister. Upon arriving in the United States,
Martinez-Buendia filed for asylum, withholding of re-
moval, and relief under the Convention Against Torture.
An Immigration Judge (“IJ”) denied her application in
an oral decision on March 26, 2008. The Board of Immi-
gration Appeals (the “Board”) affirmed the IJ’s decision
on October 15, 2009 on the ground that Martinez-Buendia
had not established that the past persecution she
suffered in Colombia was on account of her political
opinion or membership in a particular social group. This
appeals follows. For the reasons set forth below, we
reverse the decision of the Board and grant the petition
for review.
No. 09-3792                                              3

                     I. Background
A. Martinez-Buendia’s Experiences with the FARC
  As an initial matter, we note that the facts of this case
are undisputed. Martinez-Buendia was the only witness
to testify at the hearing and the IJ found her completely
credible.
  Martinez-Buendia is a Colombian citizen from Bogota
who has dedicated her life to helping others. She is
a optometrist and holds a master’s degree in health
administration. Martinez-Buendia attended university
in the mid-1980s, where she became involved in a clinical
practicum providing free health services to impoverished
communities in Colombia. Her practicum experience set
her down a career path of providing health services to
communities in need. In 2000, Martinez-Buendia began
organizing Health Brigades, groups of volunteer health
care providers and other individuals who travel to
remote areas of Colombia to provide health services. The
Health Brigades organized by Martinez-Buendia gen-
erally operated in areas around Barranquilla, where
Martinez-Buendia lived and worked, and Bogota, where
Martinez-Buendia’s family lived. In addition to her
work organizing Health Brigades, Martinez-Buendia
also taught courses at the Metropolitan University in
Barranquilla and worked as an optometrist. Martinez-
Buendia is unmarried. Her mother and five siblings all
still live in Bogota.
  Beginning in 2004, members of the FARC began con-
tacting Martinez-Buendia by telephone and leaving
notes at her office, on her car, and at her home de-
manding that she start publicly attributing her Health
4                                            No. 09-3792

Brigade work to FARC. The FARC members threatened
to harm Martinez-Buendia if she did not comply. At
first Martinez-Buendia ignored the threats because she
thought they were pranks by her students. However, in
November 2004 it became clear that these threats
were not a prank. That month, Martinez-Buendia orga-
nized a Health Brigade trip to the municipality of
Icononzo. Martinez-Buendia’s sister and brother-in-law
were participating in this trip. While traveling to
Icononzo, a group of FARC members intercepted the
Health Brigade. The FARC members read the names of
the Health Brigade members from a list to the group,
and physically attacked several members of the Health
Brigade, including Martinez-Buendia. During the commo-
tion, a government helicopter flew by and began shooting
at the FARC members. Once the shooting began, the
FARC members quickly grabbed several members of the
Health Brigade, including Martinez-Buendia’s sister,
Mercedes. Martinez-Buendia heard one of the FARC
members say, “I have Doris already,” which she believes
meant that the FARC intended to capture her instead
of her sister. The FARC also spray-painted the Health
Brigade cars with statements such as “S.O.B. dogs from
the government.” Martinez-Buendia and her brother-in-
law managed to get to the next town and get a new
vehicle to get to Bogata. Once they returned home
they called the police. The Department of Security Admin-
istration installed a recording device on Mercedes’s
phone to intercept any calls from the FARC.
  Over the next few months Martinez-Buendia received
several phone calls from the FARC on her home phone
No. 09-3792                                           5

and on Mercedes’s phone. During one of those phone
calls, the FARC member told Martinez-Buendia that
they had her sister and that they would kill her unless
Martinez-Buendia agreed to work for the FARC cause.
Martinez-Buendia testified that she always hung up and
never spoke to the person on the phone. When the IJ
questioned Martinez-Buendia about why she did not
go along with the FARC to save her sister, Martinez-
Buendia said that she was unable to work for the
FARC “because it is a rebel group to the democracy of
Colombia, because they have harmed a lot of Colombia
and my beginnings would not let me or allow me to
do this.” In February 2005, Martinez-Buendia was in
Bogota visiting her mother. While at her mother’s house,
Mercedes showed up in the middle of the night visibly
beaten, wearing men’s clothing, and very thin from
having been infected with a parasite. Martinez-Buendia
testified that Mercedes told the family that she escaped
in the night. Martinez-Buendia also testified, and pro-
vided documentation, that Mercedes suffered, and con-
tinues to suffer, severe psychological damage from her
experience in captivity. In March 2005, Mercedes’s hus-
band was captured by the FARC and died in their cus-
tody because he did not have access to proper medicine.
  Because of Mercedes’s kidnaping, Martinez-Buendia
did not organize any Health Brigades during 2005. How-
ever, at some point in 2005, Martinez-Buendia did go
to a community meeting in Puerto Colombia. After drop-
ping off school supplies at a school in Puerto Colom-
bia, Martinez-Buendia got into a taxi. An armed member
of the FARC followed her into the taxi, pointed a gun
6                                            No. 09-3792

at her, and threatened to kill her unless she began doing
work for the FARC. The individual gave Martinez-
Buendia thirty days to appear before the FARC. After
this incident, Martinez-Buendia fled to the United States
and applied for asylum.


B. Procedural History
   Martinez-Buendia filed an application for asylum,
withholding of removal, and relief under the Conven-
tion Against Torture on October 28, 2005. The Depart-
ment of Homeland Security initiated removal pro-
ceedings against her on December 8, 2005. After a series
of continuances, Martinez-Buendia had a hearing before
an IJ on March 26, 2008. She had an attorney present. The
IJ found Martinez-Buendia’s testimony consistent and
credible. The IJ also found that Martinez-Buendia had
suffered harm that rose to the level of past persecution.
However, the IJ denied relief because he found that
Martinez-Buendia did not suffer past persecution on
account of her political opinion or her membership in a
particular social group. Martinez-Buendia appealed the
IJ’s decision to the Board. The Board held that the
FARC’s actions were motivated by the FARC’s own
political agenda and not by a desire to punish Martinez-
Buendia for her political opinion. The Board also held
that Martinez-Buendia had not established that she be-
longed to a cognizable social group because the Health
Brigades did not have a common quality binding its
members that is either unchangeable or fundamental
to their identities. In the alternative, the Board held
No. 09-3792                                             7

that Martinez-Buendia failed to show that the FARC
persecuted her to punish or overcome her membership
in the Health Brigades. Because Martinez-Buendia
did not demonstrate that her past persecution was on
account of her political opinion or social group member-
ship, she could not establish a well-founded fear of per-
secution on account of those factors.


                     II. Discussion
  This is an appeal from the Board’s denial of relief. The
board issued its own opinion, independent from the IJ’s
oral order. Therefore, we review only the Board’s opinion.
Moab v. Gonzales, 

, 659 (7th Cir. 2007). We
review the Board’s determination of facts, including
that Martinez-Buendia failed to establish statutory eligi-
bility for asylum, for substantial evidence. Mabasa v.
Gonzales, 

, 744 (7th Cir. 2006); 8 U.S.C.
§ 1252(b)(4)(B) (stating that factfindings by the agency
are “conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary”). Under this
standard, we only reverse “if the evidence presented . . .
was such that a reasonable factfinder would have to
conclude that the requisite fear of persecution existed.”
INS v. Elias-Zacarias, 

, 481 (1992).
  To qualify for asylum, an applicant must show a rea-
sonable possibility of persecution on account of her race,
religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. §§ 1158(b)(1)(A),
1101(a)(42). Because Martinez-Buendia filed her claim
in 2005, the REAL ID Act of 2005 governs. The Act
8                                                 No. 09-3792

requires Martinez-Buendia to show that one of five pro-
tected grounds was or would be a central reason for
her persecution. See 8 U.S.C. §§ 1101(a), 1158(b)(1)(B). A
showing of past persecution creates a well-founded fear
of future persecution. 8 U.S.C. § 1101(a)(42)(A). The IJ
and the Board both found that Martinez-Buendia faced
persecution in the past. Therefore, the only findings
challenged in this appeal are the Board’s findings that
the persecution Martinez-Buendia faced was not be-
cause of her political opinion and that the persecution
was not because of her membership in a particular
social group.
  In proving that she was persecuted on account of her
political opinion, an imputed political opinion, or her
membership in a social group, Martinez-Buendia must
put forth either direct or circumstantial evidence that
the FARC’s prior persecution of Martinez-Buendia was
motivated by one of those factors. 

. However, in certain cases, “the factual circum-
stances alone may constitute sufficient circumstantial
evidence of a persecutor’s . . . motives.” Espinosa-Cortez
v. Attorney General, 

(3d Cir. 2010) (quoting
Canales-Vargas v. Gonzales, 

, 744 (9th Cir. 2006)).


A. Persecution on Account of Political Opinion
  The Board found that Martinez-Buendia did not rea-
sonably show that the FARC targeted her on account of
her actual or perceived political opinion. In coming to
this conclusion, the Board mainly relied on three cases:
Hernandez-Baena v. Gonzales, 

(7th Cir. 2005);
No. 09-3792                                               9

Matter of S-E-G, et al., 24 I. & N. Dec. 579, 588-89 (BIA
2008); and Matter of T-M-B-, 21 I. & N. Dec. 775 (BIA 1997).
Before this court, the government relies on the same
three cases as the Board and additionally points our
attention to INS v. Elias-Zacarias, 

(1992) and
Espinosa-Cortes v. Attorney General, 

(3d Cir.
2010).
  INS v. Elias-Zacarias is the predecessor to the other
pertinent cases, so we begin there. In Elias-Zacarias the
Supreme Court addressed the question of “whether a
guerrilla organization’s attempt to coerce a person into
performing military service necessarily constitutes perse-
cution on account of political 

.
The Court determined that the question was fact-specific
and therefore such coercion was not necessarily persecu-
tion on account of political opinion. 

specific facts of Elias-Zacarias, the Court found that the
guerrilla organization’s attempt to coerce the petitioner
into performing military service did not constitute perse-
cution on account of political opinion. 

Two
uniformed guerrillas went to the home of Elias-Zacarias
when he was eighteen and attempted to recruit him to
fight with them. 

He refused to join the
guerrilla army and fled to the United States out of fear
of future persecution. 

fled, the guerrillas
returned twice more to attempt to recruit him. 

testified that he refused to join the guerrillas
because he was afraid the government would retaliate
against him for joining. 

these facts, the
Court rejected the Ninth Circuit’s contention that “a
guerrilla organization’s attempt to conscript a person
into its military forces necessarily constitutes persecution
10                                                 No. 09-3792

on account of political opinion because the person
resisting forced recruitment is expressing a political
opinion hostile to the persecutor.” 

In rejecting
the Ninth Circuit’s position, the Court reasoned that:
     Even a person who supports a guerrilla movement
     might resist recruitment for a variety of reasons—fear
     of combat, a desire to remain with one’s family and
     friends, a desire to earn a better living in civilian life,
     to mention a few. The record in the present case not
     only failed to show a political motive on Elias-
     Zacarias’ part; it showed just the opposite.

The Court went on to state that Elias-Zacarias
had to show that the record compelled the conclusion
that the guerrillas will persecute him because of his
political opinion, rather than because of his refusal to
fight with them. Based on the limited evidence that the
guerrilla group attempted to recruit Elias-Zacarias and
he refused, the Court found that there was not sufficient
evidence to compel the finding that he was persecuted
on account of his political opinion.
  Contrary to the government’s position in this appeal,
Elias-Zacarias does not stand for the proposition that
attempted recruitment by a guerrilla group will never
constitute persecution on account of the asylum seeker’s
political beliefs. Rather, Elias-Zacarias instructs courts to
carefully consider the factual record of each case when
determining whether the petitioner’s fear of future perse-
cution due to his refusing recruitment attempts con-
stitutes persecution on account of political beliefs. Elias-
Zacarias does not draw a bright-line rule one way or the
other. Therefore, we turn our attention to the record.
No. 09-3792                                             11

  The record in this case demonstrates that Martinez-
Buendia was persecuted in the past, and therefore has a
legitimate fear of future persecution, on account of her
political beliefs. Unlike the record in Elias-Zacarias, the
specific facts of this case make it clear that Martinez-
Buendia politically opposed the FARC and that her
political beliefs were the reason for her refusal to
cooperate with the FARC. While the reason behind Elias-
Zacarias’s refusal to fight with the guerillas was not
clear, the record in this case is explicit and uncontra-
dicted: Martinez-Buendia refused to align with the FARC
because of her political views. Unlike the attempt to
recruit Elias-Zacarias to fight, the FARC did not ask
Martinez-Buendia to do anything she would not other-
wise do, nor did they ask her to refrain from doing some-
thing she otherwise would do. The FARC demanded
that Martinez-Buendia continue doing what she was
doing, but simply allow them to take credit for the
political goodwill she engendered with the populations
she served. Martinez-Buendia refused because, “[the
FARC] is a rebel group to the democracy of Colombia,
because they have harmed a lot of Colombia and my
beginnings would not allow me to do this.” (IJ Hearing
Testimony, R. 152.) It is exactly this type of testi-
mony—indicating that the refusal to cooperate was based
on a political opinion—that Elias-Zacarias was missing.
  Also, unlike the record in Elias-Zacarias, the record in
this case makes it clear that the FARC imputed an anti-
FARC political opinion to Martinez-Buendia which led
to the increasingly violent nature of their persecution of
her. There is uncontested evidence in the record that
12                                              No. 09-3792

the FARC views members of Health Brigades as
political opponents. A 2002 Report by the Immigration
and Naturalization Service indicates that individuals
who do humanitarian work, such as working with
Health Brigades, are at a “great risk” of attack by the
FARC or other armed groups in Colombia. The report
quotes an Amnesty International Colombia Country
Specialist, “You cannot do humanitarian work without
being perceived as a political threat by one or all of the
armed groups.” (R. 387.) The report finds that this is
largely because the various political groups in Colombia
use Health Brigades to garner political support. (Id.) This
report leads us to the conclusion that the FARC viewed
Martinez-Buendia as a political opponent and sought
to sway her politically so that they could take credit for
the humanitarian work that she performed.
  Martinez-Buendia’s persistent refusal to politically
align with the FARC despite the increasingly violent
nature of the persecution would have only strengthened
the FARC’s belief that she was a political opponent. The
FARC initially attempted to recruit Martinez-Buendia
through phone calls and threatening notes. If Martinez-
Buendia had fled to the United States after only these
recruiting attempts and sought asylum, the government’s
contention that this case is on all fours with Elias-Zacarias
still would not be appropriate, but it would be much
closer—recruitment attempts were made; the individual
ignored or rejected the attempts; the individual fled to the
United States and sought asylum. However, Martinez-
Buendia’s story does not end there. After these early
refusals, that the FARC escalated the violent nature of
No. 09-3792                                             13

their recruitment attempts. The FARC’s increasingly
violent actions, which the Board found amounted to
persecution, came in response to Martinez-Buendia’s
refusal to politically align her humanitarian work with
the FARC. While it may be unclear whether the FARC
initially targeted her to overcome her political stance,
the later persecution came as a result of her refusal to
cooperate with the FARC to advance their political agenda.
This post-refusal persecution is a key difference between
Martinez-Buendia’s situation and that of Elias-Zacarias,
and leads us to the inference that the FARC targeted
Martinez-Buendia to overcome the anti-FARC political
opinion they attributed to her. See Delgado v. Mukasey, 

, 706-07 (2d Cir. 2007) (“It did not necessarily
follow that, because Petitioner’s original kidnaping
had not been politically motivated, her refusal to
provide further technological assistance did not support
a well-founded fear of future persecution on account of
an imputed political opinion.”); Espinosa-Cortez, 

(distinguishing Espinosa-Cortez’s situation
from Elias-Zacarias’s situation in part because the
Espinosa-Cortez family was approached by the FARC on
multiple occasions and the petitioner repeatedly refused
to cooperate with the FARC). Furthermore, when the
FARC spray-painted the Health Brigade cars with “S.O.B.
dogs from the government,” they made it clear that
they interpreted Martinez-Buendia’s repeated refusal to
cooperate as her expressing an anti-FARC political opinion.
  The other cases relied on by the Board and the gov-
ernment similarly only push us toward the conclusion
that Martinez-Buendia’s case does compel the conclu-
14                                              No. 09-3792

sion that she was persecuted on account of her political
beliefs. For example, the Board relied on Hernandez-Baena
v. Gonzales, 

(7th Cir. 2005). In Hernandez-
Baena, we found that a man seeking asylum did not
demonstrate that he was persecuted on account of his
political beliefs when he had been threatened by the
FARC because of his refusal to sell FARC members
certain military 

. It was illegal
for Hernandez-Baena to sell military supplies to anyone
without the proper credentials; the FARC members
lacked such credentials. 

petitioner refused
to sell the goods to the FARC member, another FARC
member came to the store and threatened to kill him. 

fled his home that night and abandoned
his store. About a week after he fled, a FARC member
called him and told him that his “death sentence” had
been signed. 

calls came. Seven months later,
the petitioner fled the country and came to the United
States. 

found, and the Board affirmed, that the
FARC’s conduct did not amount to persecution, and
even if it did amount to persecution, such persecution
was not on account of the petitioner’s political opinion.

In affirming this decision, we pointed to the
petitioner’s own testimony that he refused to comply
with the FARC members because he did not want to go to
jail for violating Colombian law. 

It is this
testimony that makes Hernandez-Baena inapplicable to
this case. Both Hernandez-Baena and Martinez-Buendia
were persecuted, assuming the threats Hernandez-Baena
received constituted persecution, because they refused
to cooperate with the FARC. However, Hernandez-
No. 09-3792                                             15

Baena refused to cooperate because he did not want to
break the law, while Martinez-Buendia refused to co-
operate because she was politically opposed to the
FARC. 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; if the refusal to cooperate
is for a non-political reason, the persecution would not be
on account of the individual’s political beliefs (unless
the petitioner can show that the persecutor imputed a
particularly political belief on him based on his refusal
to cooperate).
  The two BIA decisions relied on by the Board and the
respondents are similarly distinguishable. In In re T-M-B-,
the Board held that the individual applying for
asylum could not show that she was persecuted on
account of her political opinion when revolutionaries
persecuted her due to her failure to provide them with
financial contributions. The BIA found that the revolution-
aries’ motive was economic, not political, which was
evidenced by the revolutionaries’ attempts to extort
money from a large number of individuals with finan-
cial backgrounds similar to that of the individual at
issue. In Matter of S-E-G, et al., 24 I. & N. Dec. 579 (BIA
2008), the BIA held that the two individuals seeking
asylum after they refused to join the MS-13 gang could not
demonstrate that they were persecuted or would be
persecuted on account of their political opinions. Neither
case is applicable here because their records lack
evidence that the petitioner refused the demands of the
persecutor because of his or her political opinion.
16                                              No. 09-3792

  This case is much more similar to Espinosa-Cortez than
any case relied on by the Board. In Espinosa-Cortez, the
Third Circuit found that the Espinosa-Cortez family did
have a reasonable fear of persecution on account of a
political opinion that the FARC imputed to the family
members. 

. The court relied on three key
factors that distinguish Espinosa-Cortez from Elias-
Zacarias and compelled the conclusion that the situation
warranted asylum for the family: (1) Espinosa-Cortez
had a direct affiliation with the Colombian government
and military, (2) Espinosa-Cortez engaged in protracted
resistance to the FARC’s recruitment efforts, and
(3) Espinosa-Cortez made his anti-FARC stance known
to the FARC. 

Martinez-Buendia’s situation
is similar in all three aspects. First, it is clear that the
FARC considered Martinez-Buendia to be connected to
the government. Although Martinez-Buendia’s political
affiliations were not as direct as those of Espinosa-Cortez,
who was openly active in the Liberal Party, the message
the FARC spray-painted on Martinez-Buendia’s car at
the time they kidnaped her sister shows that they at-
tributed pro-government political views to Martinez-
Buendia. This fits with the other evidence in the record
that the FARC views humanitarian workers, including
those involved in Health Brigades, as political opponents.
Second, similar to Espinosa-Cortez, Martinez-Buendia
resisted numerous recruitment attempts and 

. Even more compelling than what
occurred to the Espinosa-Cortez family, where the
No. 09-3792                                                17

FARC recruitment efforts never escalated past threats 1 ,
Martinez-Buendia faced intense violence and still refused
to cooperate. Lastly, while there is no evidence that
Martinez-Buendia directly communicated her anti-
FARC political opinion to a FARC member as clearly as
Espinosa-Cortez did, the only logical conclusion that
the FARC could have drawn from her non-responsive-
ness in the face of their extreme violence is that she
was politically opposed to their cause. Martinez-
Buendia’s act of hanging up the phone when FARC
members called threatening to kill her sister if she
did not comply is a clear non-verbal statement that
she opposed the FARC.


B. Persecution on Account of Membership in a Social
   Group
  Martinez-Buendia also challenges the Board’s findings
that the Health Brigades are not a cognizable social group
for the purpose of asylum and that, if the Health Brigades
were a cognizable social group, the FARC did not perse-
cute Martinez-Buendia on account of her membership
in the Health Brigades. Because this record compels the
conclusion that Martinez-Buendia was persecuted in the
past on account of her political opinion, and therefore


1
   Espinosa-Cortez was kidnaped in 1984 due to his wealth.
However, because it was clear that the 1984 kidnaping had no
connection to Espinosa-Cortez’s political opinions and because
it was not one of the predicate occurrences to the family
fleeing Colombia, it was not relied on at the hearing.
18                                              No. 09-3792

has a legitimate fear of future persecution on account
of her political beliefs, we need not reach the question
of whether she also qualifies for asylum due to persecu-
tion on account of her membership in a social group.


                     III. Conclusion
  For the reasons stated above, we grant the petition
for review.




  H AMILTON, Circuit Judge, concurring. I concur fully in
the court’s opinion, which shows that we must grant
the petition for review because petitioner Martinez-
Buendia was persecuted by the FARC on the basis of her
political opinions. I write separately to note that I believe
the Board of Immigration Appeals also applied too
narrow a concept of a “social group” when evaluating
petitioner’s leadership in the brigadas de salud (Health
Brigades) in Colombia. If we were not ordering the
Board to grant refugee status to petitioner based on
political persecution, I would order a remand to the
Board for further development and consideration of the
social group issue.
  To gain asylum in the United States, it is not enough
for a refugee to show only that she was persecuted or
No. 09-3792                                               19

at grave risk in her home country. She must also show
that she suffered or faces persecution for a statutory
reason: “on account of race, religion, nationality, member-
ship in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42) (definition incorporated in 8 U.S.C.
§ 1158(b)(1)(A)).
  In this case, the Board characterized petitioner’s social
group argument as one based on “membership in a
group consisting of educators and healthcare profes-
sionals ‘who are able to go places . . . the FARC . . .
cannot . . . and win the hearts and minds of the citizens.’ ”
According to the Board, the immigration judge properly
rejected that argument because petitioner had not shown
a “common quality binding the group members that is
either unchangeable or fundamental to their identities
such that a cognizable group exists.” Nor, said the
Board, had she shown “that the FARC was targeting her
to punish her for or to overcome her group membership.”
  In my view, the Board’s rejection of this argument was
based on two closely related errors. First, it did not recog-
nize that the statutory definition can reach a social
group defined by its activities, at least where the persecu-
tion is based on those activities. Second, the Board failed
to consider the extent to which this petitioner was
acting as a matter of conscience when she acted so as
to draw the attention and wrath of the FARC.
  Social Group Defined by Activity that Draws Persecution: If
the FARC’s only reason for targeting petitioner Martinez-
Buendia was that she refused to act as a means to the
FARC’s ends, she would be like many other Colombian
20                                            No. 09-3792

citizens who are ineligible for asylum in the United
States. They are targeted not as a coherent group with a
set of deeply-held beliefs, but rather as one of an undif-
ferentiated mass of people who suffer terribly because
of the FARC’s brutal methods. See, e.g., Delgado v.
Mukasey, 

, 706 n.2 (2d Cir. 2007) (rejecting
petitioner’s claim that Colombian computer experts
constitute a social group because she was kidnapped to
help the FARC set up a computer network); accord,
Ahmed v. Ashcroft, 

, 619 (7th Cir. 2003)
(no “social group” claim from “danger . . . affecting the
population in a relatively undifferentiated way”). Without
more, nothing would distinguish petitioner from any-
one else the FARC sought to coopt for its mission, and
she would be ineligible for asylum in the United States.
  The Board erred as a matter of fact and law, however,
when it characterized petitioner’s proposed social group
as one defined merely by the fact that the FARC targets
members to get access to people and resources. The
evidence in this record goes much further toward distin-
guishing members of the Health Brigades from the tragic
and undifferentiated mass of other FARC victims. Peti-
tioner was not targeted solely because she was in a
position to help the FARC reach the rural poor. She
relied on a 2002 report published by the Immigration and
Naturalization Service itself to show that the Health
Brigades can qualify as a social group under United
States immigration law. The report explains that the
FARC is engaged in a systematic campaign targeting
humanitarian groups generally—and the Health Bri-
gades specifically—because they are often aligned with
No. 09-3792                                               21

political groups opposed to the FARC. The FARC sees
these humanitarian groups as its competitors for con-
trol over the towns and regions where both they and the
FARC operate. These assertions, like all the evidence
petitioner presented, were credited by the immigration
judge and deserved greater consideration by the Board.
  With respect to this evidence, the Board erred as a
matter of law in requiring petitioner to show a “common
quality binding the group members together that is either
unchangeable or fundamental to their identities.” The
decision of this court cited by the Board, Najafi v. INS, 

(7th Cir. 1997), did not actually adopt such
a demanding standard. That case is consistent with the
Board’s own broader standard: a group of people who
are “unable by their own actions, or as a matter of con-
science should not be required, to avoid persecution.”
In re Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985); accord,
Lwin v. INS, 

, 512 (7th Cir. 1998) (adopting
standard from Acosta).
  In applying that standard, we have gone so far as to
hold that a social group may be defined merely by the
fact that its members share a certain characteristic and
are systematically persecuted solely because they share
that characteristic. In Tapiero de Orejuela v. Gonzales,

, 672 (7th Cir. 2005), we found that the peti-
tioners were members of a persecuted social group
because the FARC had persecuted them based on their
membership in “a distinct social group: the educated,
landowning class of cattle farmers targeted by FARC.”
There was no evidence in Tapiero de Orejuela that Colom-
22                                                No. 09-3792

bian cattle farmers feel their cattle-farmer identity so
strongly that it could be considered fundamental, or
that one becomes a cattle farmer out of a moral or near-
religious belief that it is the right thing to do. There
was some limited evidence that the petitioners’ identity
in that group had become immutable. Most important,
however, there was evidence that the FARC system-
atically persecuted educated cattle farmers as a group,
and that it persecuted these specific educated cattle
farmers simply because they belonged to that group.
That was enough to find a protected “social group.”
  Defining a social group based solely on its persecution
as a social group would not be inconsistent with the
Board’s decision in Acosta, which reasoned that “social
group” should be defined no more broadly than the
narrower categories of eligibility like race and nation-
ality. When a person is persecuted because of her race
or nationality, we do not ask her to prove how deeply
she feels her racial or national identity. Nor must she
prove that she feels a kinship with people who share
that identity. True, those characteristics are immutable,
and many people may in fact feel a strong racial or
national identity in part because that identity cannot
be changed. But that is not why we provide asylum to
people persecuted because of their race or nationality.
We provide asylum because those people are being perse-
cuted simply for who they are. I can think of no good
reason why the statute would treat differently a member
of a social group who is persecuted for who she is, at
least as long as the petitioner, as in Tapiero de Orejuela, can
show that the group is coherently defined and that she
No. 09-3792                                                 23

was indeed persecuted simply because she is a member
of the group.
  Social Group Membership Based on Conscience: Because
of the Board’s second error in this case, however, peti-
tioner’s social-group theory does not require the Board
or the court to go so far as we did in Tapiero de Orejuela. The
Board’s second error was to downplay both the Acosta
standard’s extension to persecuted social groups defined
by conscience and the facts showing that petitioner was
persecuted for acting according to her conscience. Peti-
tioner offered uncontested evidence that she was an
active leader in a group of people who provided health
care to the poor, and that she, at least, engaged in that
activity as a matter of conscience. For the same reasons
of conscience, she refused to leave the group in response
to the FARC’s threats and kidnaping. The immigration
judge credited her testimony. On this record, we can
and should acknowledge her dedication, and her courage.
  If petitioner and other Health Brigade members were
persecuted because they were providing health care to
the poor as a matter of religious faith and practice,
there would be little doubt that they could qualify for
asylum. If petitioner and other Health Brigade mem-
bers were providing health care as an exercise of their
secular ethical values that also can fairly be described as
matters of conscience, the question should be no more
difficult under the Acosta standard.
  In sum, the facts and law relevant to petitioner’s claim
for refugee status as a member of a persecuted social
group deserved closer consideration. Future petitioners
may offer evidence that they joined groups like the
24                                              No. 09-3792

Health Brigades as a matter of conscience and that they
have been persecuted, or that they face future persecu-
tion, on account of their membership in and work on
behalf of the Health Brigades. They should not be
denied asylum simply because that membership may
appear more fluid than membership in a racial, ethnic,
or religious group, or because their involvement is the
result of secular ethical values instead of religious faith.




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