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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12207
Non-Argument Calendar
________________________
Agency No. A206-760-469
MARIA ELENA MENJIVAR-SIBRIAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 22, 2018)
Before WILLIAM PRYOR, ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
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Maria Menjivar-Sibrian (“Petitioner”), a native and citizen of El Salvador,
petitions for review of the order by the Board of Immigration Appeals (“BIA”)
affirming the decision of the Immigration Judge (“IJ”). The IJ’s decision denied
asylum and withholding of removal. 1 No reversible error has been shown; we
deny the petition.
We review only the decision of the BIA, except to the extent that the BIA
adopts expressly the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). Because the BIA agreed expressly with the IJ’s reasoning in this
case, we review both the IJ’s and the BIA’s decisions. See id.
We review de novo the BIA’s legal conclusions, including whether a
proposed group qualifies as a “particular social group” under the Immigration and
Nationality Act (“INA”). Gonzalez v. United States Att’y Gen., 820 F.3d 399, 403
(11th Cir. 2016). Although our review is de novo, we defer to the BIA’s
interpretation of applicable statutes if the BIA’s interpretation is reasonable. Al
Najjar, 257 F.3d at 1284.
1
The IJ also denied relief under the Convention Against Torture. We will not address this claim,
however, because Petitioner failed to challenge this denial in her appeal to the BIA and has failed
to raise the issue on appeal. See Amaya-Artunduaga v. United States Att’y Gen., 463 F.3d 1247,
1250-51 (11th Cir. 2006); Sepulveda v. United States Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th
Cir. 2005).
2
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We review fact determinations under the “highly deferential substantial
evidence test” whereby we “must affirm the BIA’s decision if it is ‘supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.’” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc).
We “view the record evidence in the light most favorable to the . . . decision and
draw all reasonable inferences in favor of that decision.” Id. at 1027. To reverse a
fact determination, we must conclude “that the record not only supports reversal,
but compels it.” Mendoza v. United States Att’y Gen., 327 F.3d 1283, 1287 (11th
Cir. 2003).
An alien may obtain asylum if she is a “refugee,” that is, a person unable or
unwilling to return to her country of nationality “because of persecution or a well-
founded fear of persecution on account of” a protected ground, including
membership in a particular social group. 8 U.S.C. §§ 1101(a)(42)(A), 1158(a)(1),
(b)(1). The asylum applicant bears the burden of proving statutory “refugee” status
with specific and credible evidence. Forgue v. United States Att’y Gen., 401 F.3d
1282, 1287 (11th Cir. 2005).
Petitioner sought asylum and withholding of removal based on her
membership in a particular social group consisting of “women abused by her
partner she cannot control.” Petitioner married in 2003. Beginning in February
2012, Petitioner’s husband began abusing her, raping her, and threatening to kill
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her if she left him. Petitioner obtained a divorce in January 2014. Petitioner’s
husband then moved out of the family home where Petitioner continued to reside
with the couple’s two daughters. Following the divorce, Petitioner’s ex-husband
continued to abuse Petitioner, viewing her as “his property.” Petitioner left and
entered the United States in June 2014.
The IJ denied relief, concluding that Petitioner had failed to demonstrate that
she was a member of a “particular social group” within the meaning of the INA.
The IJ also determined that Petitioner failed to show that the foreign government
was unwilling or unable to protect her. The BIA affirmed. The BIA agreed with
the IJ’s determination that the proposed particular social group of “women abused
by her partner that she cannot control” lacked sufficient defined boundaries or
characteristics to qualify for protection. The BIA also agreed with the IJ’s finding
that Petitioner had failed to show that the Salvadoran government was unable or
unwilling to control her ex-husband.
For purposes of the INA, a “particular social group” means a group of
people who “share a common, immutable characteristic.” Gonzalez, 820 F.3d at
404. The group “must also be defined with particularity and socially distinct
within the society in question.” Id. (quotations omitted). In other words, the group
must “be discrete and have definable boundaries” and may not be “amorphous,
overbroad, diffuse, or subjective.” Id. A particular social group may not be
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defined exclusively by evidence that the group’s proposed members have been
persecuted or face the risk of persecution. Castillo-Arias v. United States Att’y
Gen., 446 F.3d 1190, 1198 (11th Cir. 2006); Matter of S-E-G-, 24 I. & N. Dec.
579, 584 (BIA 2008).
Petitioner has failed to establish that she is a member of a “particular social
group” under the INA. 2 We agree with the IJ and BIA’s determination that the
defining attribute of Petitioner’s proposed group -- “women abused by her partner
she cannot control” -- is that the members suffer domestic abuse. But persecution
alone is not enough to establish a particular social group. See Castillo-Arias, 446
F.3d at 1198; Matter of S-E-G-, 24 I. & N. Dec. at 584.
In support of her argument, Petitioner relies on the BIA’s decision in Matter
of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014). There, the BIA concluded that
“married women in Guatemala who are unable to leave their relationship”
constituted a cognizable particular social group under the INA. Id. at 389. The
BIA explained that -- given the facts presented and the particular country
conditions in Guatemala -- the terms “married,” “women,” and “unable to leave the
relationship” combined to “create a [socially distinct] group with discrete and
2
Petitioner also contends that she is a member of a particular social group as “a member of a
family who suffers heinous abuse.” Petitioner raised this argument for the first time in her
appeal to the BIA, and the BIA refused to consider it because it had not been advanced before
the IJ. Because the BIA declined to address this issue, we will not consider it on appeal. See
Lopez v. United States Att’y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007).
5
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definable boundaries.” In making the determination, the BIA considered it
significant that (1) the group was not defined by the fact that the applicant was
subject to domestic violence; (2) the Guatemalan police refused repeatedly to assist
the applicant; and (3) there was reliable evidence that Guatemala had a culture of
“machismo and family violence” and a police force that had been historically
unresponsive to domestic violence victims. Id. at 393 n.14, 393-95.
Unlike the applicant in Matter of A-R-C-G-, however, Petitioner was able to
get a divorce; and her ex-husband moved out of the family house. Moreover,
never did Petitioner contact the police, even though she testified that she knew the
police would arrest her husband if she reported him. This evidence -- together with
evidence that El Salvador had instituted new measures to combat domestic
violence -- undercuts Petitioner’s argument that women in her position are viewed
as socially distinct within Salvadoran culture. Petitioner has failed to show that her
proposed particular social group is sufficiently concrete and discrete to qualify for
protection under the INA. 3
Substantial evidence supports the BIA’s decision that Petitioner was
unentitled to asylum; the record and the law do not compel us to reverse the
3
Because we agree with the IJ’s and BIA’s determination that no particular social group has
been established, we do not consider the alternate finding that Petitioner failed to establish that
the government was unwilling or unable to protect her.
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decision. Petitioner’s failure to establish eligibility for asylum forecloses her
eligibility for withholding of removal. See Forgue, 401 F.3d at 1288 n.4.
PETITION DENIED.
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Maria Elena Menjivar-Sibrian v. U.S. Attorney General
Combined Opinion