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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14788
Non-Argument Calendar
________________________
Agency No. A209-383-402
MARIA D. AMEZCUA-PRECIADO,
GERARDO M. BUSTOS-AMEZCUA,
JESUS D. BUSTOS-AMEZCUA,
Petitioners,
versus
UNITED STATES ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 3, 2019)
Before BRANCH, FAY and HULL, Circuit Judges.
PER CURIAM:
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Maria Amezcua-Preciado, a native and citizen of Mexico, along with her
two minor children, petitions for review of the Board of Immigration Appeals’
(“BIA”) final order reversing the Immigration Judge’s (“IJ”) grant of her
application for asylum and denying her withholding of removal. The BIA
concluded, based on recent precedent from the Attorney General, Matter of A-B-,
27 I. & N. Dec. 316 (A.G. 2018), that Amezcua-Preciado’s proposed social group
of “women in Mexico who are unable to leave their domestic relationships” was
not a cognizable particular social group under the Immigration and Nationality Act
(“INA”). After review, we agree with the BIA that Amezcua-Preciado failed to
establish membership in a particular social group. We thus deny Amezcua-
Preciado’s petition for review.
I. BACKGROUND
A. Asylum Application
In July 2016, Amezcua-Preciado, traveling with her two minor children,
arrived at the San Ysidro Port of Entry and applied for admission to the United
States. The Department of Homeland Security issued notices to appear (“NTAs”),
alleging that Amezcua-Preciado and her children were removable under INA
§ 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), as immigrants not in
possession of valid entry or travel documents. They admitted the allegations in the
NTAs and conceded removability as charged.
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Amezcua-Preciado applied for asylum and withholding of removal, asserting
persecution on account of her membership in a particular social group. Amezcua-
Preciado stated, among other things, that her husband physically and
psychologically abused her and did not economically support her. Amezcua-
Preciado submitted affidavits from: (1) her half-brother stating that Amezcua-
Preciado’s husband was an abusive drug addict who would kick her and her
children out of the house; and (2) two lawyers who knew her in Mexico who stated
that Amezcua-Preciado left her husband because he was physically and
psychologically abusive.
Amezcua-Preciado also submitted the 2015 Human Rights Report for
Mexico from the United States Department of State (“Country Report”). The
Country Report indicated, in relevant part, that: (1) Mexican federal law
criminalized domestic violence, including spousal rape, but state and municipal
domestic violence laws “largely failed to meet the required federal standards and
often were unenforced”; (2) human rights organizations reported that Mexican
authorities did not take rape reports seriously, and victims were “socially
stigmatized and ostracized”; (3) the Mexican federal government, and every
Mexican state, criminalized femicide, and 40 federal prosecutors were assigned to
cases of violence against women; (4) Mexico had established a “gender alert”
system to collect gender-based violence information to support investigations, and
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there were 72 shelters across the country; and (5) domestic violence victims in
rural communities “often did not report abuses due to fear of spousal reprisal,
stigma, and societal beliefs that abuse did not merit a complaint.”
B. Asylum Hearing
At her merits hearing, Amezcua-Preciado testified about her husband’s
abuse, which included beatings about once a week and sometimes locking her up
without food. Because her husband provided no financial support, Amezcua-
Preciado worked two jobs in order to feed herself and her children. Approximately
five times, Amezcua-Preciado went to her aunt’s home to get away from the abuse,
but her aunt would kick her out, stating that Amezcua-Preciado “was already
married and that [she] had to be there with [her husband].” Amezcua-Preciado
tried to find another place to live, but she could not afford one.
In one incident about two years before Amezcua-Preciado left Mexico, her
husband chased her from her home with a knife. Although Amezcua-Preciado told
the police about the incident, they did not pay attention to her. Amezcua-Preciado
admitted, however, that she did not file a police report of the incident.
Amezcua-Preciado testified she was afraid to return to Mexico because her
husband told her if she left, he would kill her. Although Amezcua-Preciado had
never tried to relocate within Mexico, she believed she was not safe anywhere in
Mexico because her husband would find her.
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C. IJ’s Decision Granting Asylum
The IJ granted Amezcua-Preciado’s asylum application, but declined to
address her claim for withholding of removal The IJ found Amezcua-Preciado
credible and determined that, while she had not shown abuse rising to the level of
past persecution, she had shown a well-founded fear of future persecution based on
her husband’s escalating violence and threat to kill her if she left him.
The IJ determined, inter alia, that Amezcua-Preciado’s proposed particular
social group—women in Mexico who cannot leave domestic relationships—
qualified under Matter of A-R-C-G, 26 I. & N. Dec. 388 (BIA 2014). In A-R-C-G-
the BIA concluded that “married women in Guatemala who are unable to leave
their relationship” is a cognizable particular social group. The IJ stated that
Amezcua-Preciado’s aunt’s reactions were “indicative of societal views in Mexico
of domestic violence” and that it was clear this group was viewed as a particular
segment of Mexican society.
D. BIA’s Decision Reversing IJ
The DHS appealed to the BIA. While the appeal was pending, the Attorney
General issued Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), which overruled
A-R-C-G- as wrongly decided. In light of A-B-, the BIA determined, in a single-
member decision, that Amezcua-Preciado’s particular social group was not
cognizable because it was impermissibly defined by the harm directed at its
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members. The BIA also concluded that Amezcua-Preciado’s proposed group was
not cognizable because the group was defined by reference to private criminal
conduct to which broad swaths of society were susceptible. As a result, the BIA
concluded that Amezcua-Preciado did not show a nexus between her persecution
and a protected ground and was ineligible for both asylum and withholding of
removal.
II. DISCUSSION
A. Standard of Review
Here, because the BIA issued its own decision reversing the IJ, we review
only the BIA’s decision. See Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301,
1306 (11th Cir. 2019) (explaining that this Court reviews the BIA’s decision,
unless the BIA expressly adopts the IJ’s opinion or agreed with the IJ’s reasoning).
We review de novo whether a group proffered by an asylum applicant constitutes a
particular social group under the INA. Id. However, our de novo review is
informed by Chevron deference, that is, we defer to the reasonable interpretation of
the ambiguous statutory phrase “particular social group” made by three-member
panel, precedential BIA decisions. Id. at 1306, 1308; see Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-45, 104 S. Ct. 2278, 2781-83
(1984) (requiring deference to an agency’s reasonable interpretation of ambiguous
terms in the statute that it administers). Likewise, the Attorney General’s
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interpretations of the INA are entitled to Chevron deference. INS v. Aguirre-
Aguirre, 526 U.S. 415, 424-25, 119 S. Ct. 1439, 1445 (1999) (explaining that the
Attorney General’s decision was entitled to Chevron deference because the INA
provides that “[t]he Attorney General shall be charged with the administration and
enforcement” of the statute and the “determination and ruling by the Attorney
General with respect to all questions of law shall be controlling.” (quoting INA
§ 103(a)(1), 8 U.S.C. § 1103(a)(1)). 1
B. General Principles
An applicant for asylum must meet the INA’s definition of refugee. INA
§ 208(b)(1), 8 U.S.C. § 1158(b)(1). The definition of “refugee” includes any
person “who is unable or unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of,” 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. INA § 101(a)(42)(A),
8 U.S.C. § 1101(a)(42)(A). The protected ground must have been, or will be, “at
least one central reason for persecuting the applicant.” INA § 208(b)(1)(B)(i), 8
1
A single-member BIA decision resting on existing BIA or federal court precedent may
also warrant Chevron deference. Quinchia v. U.S. Att’y Gen., 552 F.3d 1255, 1258 (11th Cir.
2008). However, as in Perez-Zenteno, we need not decide whether to defer to the BIA’s single-
member decision here because Amezcua-Preciado’s petition fails both with or without Chevron
deference. See Perez-Zenteno, 913 F.3d at 1308 (concluding with and without Chevron
deference to the single-member decision, “the proffered group – ‘Mexican citizens targeted by
criminal groups because they have been in the United States and they have families in the United
States’ – is not legally cognizable as a particular social group”).
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U.S.C. § 1158(b)(1)(B)(i). The asylum applicant bears the burden of showing
“refugee” status. Id.
Similarly, under the withholding of removal provision of the INA, the
Attorney General may not remove an alien to a country if the alien’s “life or
freedom would be threatened” there because of a protected ground, such as
membership in a particular social group. INA § 241(b)(3)(A), 8 U.S.C.
§ 1231(b)(3)(A). “The alien bears the burden of demonstrating that it is more
likely than not she will be persecuted or tortured upon returning to her country.”
Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006) (internal quotation
marks omitted). This is a higher evidentiary standard than what is required for
asylum. Id.
Here, the sole issue raised on appeal is whether the BIA correctly concluded
that Amezcua-Preciado’s proposed social group does not qualify as a “particular
social group” within the meaning of the INA. The INA statute itself does not
define particular social group, but we have deferred to the BIA’s formulation of
criteria for determining whether a particular group qualifies. Castillo-Arias v. U.S.
Att’y Gen., 446 F.3d 1190, 1196 (11th Cir. 2006) (explaining that the BIA first
formulated the criteria in Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (BIA
1985)); see also Perez-Zenteno, 913 F.3d at 1308-09. Under the first of these
criteria, the group’s members must have a “common characteristic other than their
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risk of being persecuted,” and that characteristic must be immutable or
fundamental to a member’s individual conscience or identity. Castillo-Arias, 446
F.3d at 1193-94, 1196-97. However, because “‘particular social group’ should not
be a catch-all for all persons alleging persecution who do not fit elsewhere,” the
“risk of persecution alone does not create a particular social group within the
meaning of the INA . . . .” Id. at 1198.
Second, a group must have sufficient social distinction. Id. at 1194, 1197-
98. Social distinction requires the particular social group to be perceived as a
distinct group by society. Matter of W-G-R-, 26 I. & N. Dec. 208, 216 (BIA
2014). Thus, whether a group is socially distinct is determined by the perception
of the society as a whole. Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242 (BIA
2014). Third, a group must be “defined with particularity,” meaning it must “be
discrete and have definable boundaries,” and not be “amorphous, overbroad,
diffuse, or subjective.” Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 404 (11th Cir.
2016) (quoting W-G-R-, 26 I. & N. Dec. at 214).
In the 2018 A-B- decision, the Attorney General addressed whether, and
under what circumstances, victims of private criminal activity such as domestic
violence constitute “a cognizable ‘particular social group’ for purposes of an
application for asylum or withholding of removal.” 27 I. & N. Dec. at 316-17.
The Attorney General explained that, absent exceptional circumstances,
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“[g]enerally, claims by aliens pertaining to domestic violence or gang violence
perpetrated by non-governmental actors will not qualify for asylum.” Id. at 317,
320. The Attorney General stressed—based on established binding precedent
(some of which is recounted above)—that “[t]o be cognizable, a particular social
group must ‘exist independently’ of the harm asserted in an application for asylum
or statutory withholding of removal.” Id. at 334-35. The group cannot be defined
by the persecution of its members, but rather “the individuals in the group must
share a narrowing characteristic other than their risk of being persecuted.” Id. at
335 (internal alterations and quotation marks omitted).
In so holding, the Attorney General determined that, in A-R-C-G-, the BIA
broke with its prior precedent applying and refining the Acosta criteria (including
M-E-V-G- and W-G-R- discussed above) and wrongly decided that “married
women in Guatemala who are unable to leave their relationship” was a cognizable
particular social group. Id. at 331-33. The Attorney General explained that under
the BIA’s prior precedent, the proffered group must be independent of, and cannot
be defined by, the persecution. The Attorney General also stated that in A-R-C-G-,
the BIA “never considered that ‘married women in Guatemala who are unable to
leave their relationship’ was effectively defined to consist of women in Guatemala
who are victims of domestic abuse because the inability ‘to leave’ was created by
the harm or threatened harm. Id. at 334-35.
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In A-B-, the Attorney General further explained that groups that are “defined
by their vulnerability to private criminal activity” will likely lack the required
particularity because they will come from all segments of society and lack
distinguishing characteristics or concrete traits. Id. at 335. Further, even if the
group is defined more narrowly to avoid particularity problems, such as
Guatemalan women who are unable to leave domestic relationships with children
in common, the proffered group “will often lack sufficient social distinction to be
cognizable as a distinct social group, rather than a description of individuals
sharing certain traits or experiences,” that are not “recognizable by society at
large.” Id. at 336. 2
More recently, this Court, in examining the statutory phrase independently
of the BIA, observed that “the phrase ‘social group’ implies a subset of the
population bound together by some discrete and palpable characteristics.” Perez-
Zenteno, 913 F.3d at 1310. We noted that the modifier “particular” suggests some
narrowing from the breadth otherwise found in the term “social group” and thus
“denotes some characteristic setting the group off in a definite way from the vast
majority of society.” Id. We cautioned that a particular social group “must be
2
In A-B-, the Attorney General vacated the BIA’s opinion that had concluded, based on
A-R-C-G-, that El Salvadoran women who are unable to leave their domestic relationships where
they have children in common with their partners constituted a particular social group. A-B-, 27
I. & N. Dec. at 340. The Attorney General remanded the case to the IJ for consideration of the
proposed social group using the standards articulated in the Attorney General’s opinion. Id. at
340, 346.
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more narrowly defined” and “should not be a ‘catch all’ for all persons alleging
persecution who do not fit elsewhere.” Id. at 1310-11 (quoting Castillo-Arias, 446
F.3d at 1198). We, “[l]ike the BIA, . . . turn[ed] to such obvious, discrete and
measurable factors as immutability, identity, visibility, homogeneity, and
cohesiveness in order to give meaning to the term.” Perez-Zenteno, 913 F.3d at
1311.
Perhaps most importantly, this Court, like the Attorney General in A-B-, has
emphasized repeatedly that “[t]he risk of persecution alone does not create a
particular social group within the meaning of the INA.” Castillo-Arias, 446 F.3d at
1198 (concluding noncriminal informants working against a drug cartel did not
constitute a particular social group under the INA); see also Rodriguez v. U.S.
Att’y Gen., 735 F.3d 1302, 1310 (11th Cir. 2013) (concluding that family members
who are targeted by a drug trafficking organization in retaliation for seeking
criminal justice did not constitute a particular social group, as the group was
created solely from the risk of persecution).
After A-B-, at least two circuits have acknowledged in published decisions
that A-B- overruled A-R-C-G-, and those circuits have concluded, based on A-B-,
that similar proposed social groups of women unable to leave domestic
relationships were not cognizable under the INA. See Gonzales-Veliz v. Barr, 938
F.3d 219, 231-32, 234-35 (5th Cir. 2019) (addressing proposed group of
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“Honduran women unable to leave their relationship”); S.E.R.L. v. U.S. Att’y
Gen., 894 F.3d 535, 555-57 (3d Cir. 2018) (addressing proposed group of
“immediate family members of Honduran women unable to leave a domestic
relationship”).
C. Amezcua-Preciado’s Proposed Particular Social Group
As an initial matter, we defer to the Attorney General’s interpretation of the
phrase “particular social group” in A-B- because it is reasonable and consistent
with both the BIA’s and this Court’s prior precedent. And, in light of A-B- and
this Court’s particular-social-group precedent, the BIA did not err in determining
that Amezcua-Preciado’s proffered social group was not cognizable under the INA.
Amezcua-Preciado’s proposed social group—“women in Mexico who are
unable to leave their domestic relationship”—closely mirrors the proposed group
in A-R-C-G- of “[m]arried women in Guatemala who are unable to leave their
relationship” that the Attorney General already found not cognizable. See A-B-,
27 I. & N. Dec. at 335 (stating that if the BIA had “properly analyzed the issues [in
A-R-C-G-], then it would have been clear that the particular social group was not
cognizable”). Moreover, Amezcua-Preciado’s proposed social group suffers from
the kinds of problems the Attorney General identified in A-B- as likely to render
most groups of victims of private violence not cognizable.
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First, while the members of Amezcua-Preciado’s proposed social group
arguably share the immutable characteristic of being women, that characteristic
alone is insufficient to make them cognizable as a particular social group under the
INA. Further, nothing in the country conditions evidence indicates that Amezcua-
Preciado’s proposed social group is socially distinct within Mexican society. See
A-B-, 27 I. & N. Dec. at 336 (stating that the “key thread running through the
particular social group framework is that social groups must be classes
recognizable by society at large”); Castillo-Arias, 446 F.3d at 1194, 1197-98
(explaining that the BIA’s precedent requires the social group’s characteristics to
be “recognizable by others in the country in question” (quotation marks omitted)).
The belief of Amezcua-Preciado’s aunt that Amezcua-Preciado should return to
her husband despite being abused is insufficient to determine that Mexican society
as a whole perceives women who are unable to leave their relationships as a
distinct group. See A-B-, 27 I. & N. Dec. at 336 (stating that “there is significant
room for doubt that Guatemalan society views these women, as horrible as their
personal circumstances may be, as members of a distinct group in society, rather
than each as a victim of a particular abuser in highly individualized
circumstances”); W-G-R-, 26 I. & N. Dec. at 216 (explaining that to establish
social distinction, “there must be evidence showing that society in general
perceives, considers, or recognizes persons sharing the particular characteristic to
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be a group,” and “it must be commonly recognized that the shared characteristic is
one that defines the group”).
In addition, Amezcua-Preciado’s group is not defined with sufficient
particularity because its boundaries are amorphous, overbroad, and subjective. See
M-E-V-G-, 26 I. & N. Dec. at 214 (stating that to satisfy the particularity
requirement, the group “must not be amorphous, overbroad, diffuse, or subjective);
Gonzalez, 820 F.3d at 404 (noting same). As she defines it, Amezcua-Preciado’s
group includes all Mexican women who cannot leave any domestic relationship,
whether that is a wife unable to leave her husband or a daughter unable to leave her
parents. It covers women who are “unable to leave” a relationship for any reason,
including for physical, legal, economic, cultural, or psychological reasons. The
fact that a woman could be prevented from leaving a relationship by her
psychological or economic dependence reinforces the subjective nature of this
group.
Finally, to the extent Amezcua-Preciado’s proposed group of Mexican
women who are unable to leave their domestic relationships because they fear
physical or psychological abuse by their spouse or domestic partner, this group is
defined by the underlying harm asserted as persecution in Amezcua-Preciado’s
application for asylum and withholding of removal. The women share no
“narrowing characteristic” other than their risk of being persecuted. This is the
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kind of circular definition of a social group, created by reference to the alleged
persecution, that cannot create a cognizable particular social group. See Perez-
Zenteno, 913 F.3d at 1309-10 (concluding that the BIA reasonably determined that
the applicant’s formulation of her proposed group of Mexican citizens targeted by
criminal groups was impermissibly circular because the “defining attribute” of the
social group cannot be its persecution or risk of persecution); A-B-, 27 I. & N.
Dec. at 334 (stating that the proper inquiry is whether the applicant “could
establish the existence of a cognizable particular social group without defining the
group by the fact of persecution”).
In sum, because Amezcua-Preciado’s proposed group is not cognizable as a
particular social group under the INA, the BIA correctly concluded that she was
ineligible for either asylum or withholding of removal.3
PETITION DENIED.
3
We reject Amezcua-Preciado’s argument that the BIA in her case misread A-B- to create
a per se rule foreclosing all particular social groups based on domestic violence. Rather, the BIA
made an individualized assessment of Amezcua-Preciado’s proposed social group and concluded
it was not cognizable because the group was “impermissibly defined by the harm directed at its
members” and was “defined by private criminal activity where broad swaths of society may be
susceptible to victimization.”
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