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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-11749
Non-Argument Calendar
________________________
Agency No. A209-890-801
CIBA NOHELY DOMINGUEZ-SALMERSON,
DIEGO IVAN MORALES-DOMINGUEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 3, 2021)
Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
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Cibia Dominguez-Salmerson seeks review of the Board of Immigration
Appeals’ (BIA) final order affirming the immigration judge’s (IJ) denial of her
application for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (CAT).1
Because we write for the parties, we assume familiarity of the facts and set
out only those necessary for the resolution of this appeal. Dominguez-Salmerson
and her son are natives and citizens of Honduras. In Honduras, Dominguez-
Salmerson lived with her domestic partner Marvin, Marvin’s aunt Ida, and Ida’s
partner Ephraim Hernandez-Morales. Dominguez-Salmerson claims that she was
sexually harassed, threatened, and stalked by Hernandez-Morales and that
Hernandez-Morales’s family members, who were in a gang, threatened her. She
says that she left Honduras to flee from Hernandez-Morales.
Dominguez-Salmerson and her son entered the United States at or near
Hidalgo, Texas in November 2016. In December 2016, the Department of
Homeland Security served them with a notice to appear, charging them with being
removable under the Immigration and Nationality Act (INA) § 212(a)(7)(A)(i)(I), 8
U.S.C. § 1182(a)(7)(A)(i)(I), as being persons not in possession of valid entry
1
Dominguez-Salmerson’s petition for review is filed on behalf of herself and Diego Morales-
Dominguez, her minor child and derivate asylum applicant.
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documents at the time of admission. Dominguez-Salmerson applied for asylum
and withholding of removal under the INA and CAT. She contended that she
qualified as a refugee under the INA because she belonged to a particular social
group. She described the social group as “a family relative of those sexually
molested by gangs or gang members family, who resist sexual assault by the same
gang.”
The IJ found that Dominguez-Salmerson did not satisfy her burden of proof
for asylum or withholding removal, and that her CAT claim also failed. She
appealed to the BIA, arguing that she was eligible for asylum or withholding. The
BIA dismissed Dominguez-Salmerson’s appeal, relying on Matter of A-B-, 27 I. &
N. Dec. 316 (A.G. 2018), to conclude that she failed to establish membership in a
cognizable particular social group because her proposed social group was
circularly defined, and was not distinct or particular.2 It also found that she had
not established that a central reason Hernandez-Morales had the inclination to
harm her was on account of her membership in the putative social group, as is
required by law. This appeal followed.
First, Dominguez-Salmerson argues that Matter of A-B- was erroneously
decided because past harm may be used for a future fear claim. She also says that
2
Dominguez-Salmerson does not present an argument challenging the denial of her CAT claim.
Therefore, she has abandoned that issue. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228
n.2 (11th Cir. 2005) (per curiam).
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her particular social group was not circularly defined because she was targeted by
gangs for resisting sexual assault by a gang member’s relative and, thus, was
defined by her irretrievable resistance to repeated harm. Second, Dominguez-
Salmerson argues that the BIA’s rationale for dismissing her application for
asylum was contrary to the well-established principle that many bona fide refugees
flee or fear harm by non-state actors and cannot avail themselves of government
protection, and that the BIA did not make an individualized analysis of whether the
Honduran government was unable or unwilling to control her non-state persecutor.
I.
We review only the decision of the BIA, except to the extent that the BIA
expressly adopts or explicitly agrees with the IJ’s opinion. Ayala v. U.S. Att’y
Gen., 605 F.3d 941, 947–48 (11th Cir. 2010). We do not consider issues that were
not reached by the BIA. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir.
2016) (per curiam).
“In a petition for review of a BIA decision, we review conclusions of law de
novo.” Id. And whether an asserted group qualifies as a “particular social group”
under the INA is a question of law. Id. Our review is informed by the principles
of Chevron deference. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467
U.S. 837, 842–44 (1984); see also Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190,
1195–96 (11th Cir. 2006) (applying Chevron deference to the BIA’s interpretation
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of what constitutes a particular social group within the meaning of the INA).
However, a single-member, non-precedential BIA decision may not be entitled to
Chevron deference unless it is deemed to have relied on existing precedent such
that the single-member BIA decision is actually dictated or compelled by an earlier
decision. Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1308 (11th Cir. 2019).
We review the BIA’s factual determinations under the substantial evidence
test. Gonzalez, 820 F.3d at 403. Under this “highly deferential” test, 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).
II.
The Attorney General may grant asylum to an applicant who meets the
INA’s definition of a “refugee.” INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A).
A refugee is defined as:
any person who is outside any country of such person’s nationality . . .
and who is unable or unwilling to return to, and is unable or unwilling
to avail himself or herself of the protection of that country because of
persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion.
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The applicant bears the burden
of proving that she is a refugee. INA § 208(b)(1)(B)(i), 8 U.S.C.
§ 1158(b)(1)(B)(i).
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An applicant can satisfy the burden of proving refugee status by showing
membership in a “particular social group” entitled to protection. We have stated
that the criteria for establishing a particular social group, as interpreted by the BIA,
are (1) “the group’s members must have a common characteristic, other than their
risk of being persecuted, that characteristic must be immutable or fundamental to a
member’s individual conscience or identity”; (2) “a group must have sufficient
social distinction” so as to be perceived as a distinct group by society as a whole;
and (3) “a group must be defined with particularity, meaning it must “be discrete
and have definable boundaries, and not be amorphous, overbroad, diffuse, or
subjective.” Amezcua-Preciado v. U.S. Att’y Gen., 943 F.3d 1337, 1342–43 (11th
Cir. 2019) (per curiam) (quotation marks omitted). Additionally, the group cannot
be defined by its persecution or risk of persecution. Castillo-Arias, 446 F.3d at
1198. We have cautioned that a particular social group should not be a “catch all”
for all persons alleging persecution who do not fit elsewhere within the protected
grounds, as that would “render the other four categories meaningless.” Id. at
1197–98.
In Amezcua-Preciado, we deferred to the Attorney General’s interpretation
of the phrase “particular social group” in Matter of A-B-. We held that the
applicant’s proposed particular social group, “women in Mexico who are unable to
leave their domestic relationship,” was not legally cognizable because the applicant
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did not provide sufficient evidence that the group was socially distinct, failed to
define the group with particularity, and defined the group by the underlying alleged
persecution. Amezcua-Preciado, 943 F.3d at 1344–45.3 Similarly, we afforded
Chevron deference to the BIA in Perez-Zenteno. There, we held that the
applicant’s proposed particular social group, “Mexican citizens targeted by
criminal groups because they have been in the United States and they have families
in the United States,” was not legally cognizable because the evidence provided by
the applicant was insufficient to show the group was socially distinct, the group
was not defined with particularity as it could include large swaths of the Mexican
population, and the group was defined circularly by the risk of persecution. Perez-
Zenteno, 913 F.3d at 1308–10.
3
In Matter of A-B-, the Attorney General overruled Matter of A-R-C-G-, 26 I. & N. Dec. 388
(BIA 2014), which held that the particular social group of “married women in Guatemala who
are unable to leave their relationship” was legally cognizable. The Attorney General decided
that, instead, the particular social group of “El Salvadoran women who are unable to leave their
domestic relationships where they have children in common” was legally incognizable. Matter
of A-B-, 27 I. & N. at 319, 326, 346. The Attorney General reasoned that the expansive category
of particular social groups based on private violence was legally incognizable because it did not
exist independently of the persecution members of the group experienced. Id. at 319, 334–36.
The Attorney General also clarified that an applicant seeking asylum on the basis of membership
in a particular social group must show: (1) membership in a particular group that is comprised of
members with an immutable characteristic, is defined with particularity, and is socially distinct
within the relevant society; (2) membership in the group is a central reason for her persecution;
and (3) the harm is inflicted by the government or by persons that the government is unable or
unwilling to control. Id. at 320. The Attorney General added that asylum claims stemming from
domestic violence perpetrated by nongovernmental actors generally will not qualify for asylum
because it is unlikely that the alien can show that the violence is an issue that the government is
unwilling or unable to address, even if it is true that the government has problems effectively
policing certain crimes or certain groups are more likely to be victimized. Id.
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After an applicant establishes that she is part of a protected group, she must
demonstrate that she (1) was persecuted in the past on account of a protected
ground or (2) has a well-founded fear that she will be persecuted in the future on
account of a protected ground. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th
Cir. 2006) (per curiam). “To establish asylum based on past persecution, the
applicant must prove (1) that she was persecuted, and (2) that the persecution was
on account of a protected ground.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1351 (11th Cir. 2009) (alteration adopted). And to establish a well-founded fear of
future persecution, the applicant must show a reasonable possibility that he will be
singled out for persecution on account of a protected ground and that his fear is
both “subjectively genuine and objectively reasonable.” Id. at 1352.
A noncitizen must prove she suffered persecution on account of a protected
ground. Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1158 (11th Cir. 2019).
This connection between the persecution and the statutorily protected ground is
known as the “nexus” requirement. Id. To satisfy the nexus requirement, an
asylum applicant must establish that the protected ground was “at least one central
reason” for her persecution. Id. We have not specifically construed the term
“central” in any published decision, but we have stated that one of the five
statutory grounds need not be the only motivation for the persecution. Sanchez
Jimenez, v. U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th Cir. 2007) (“Rather, it is by
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now well-established in our case law that an applicant can establish eligibility for
asylum as long as he can show that the persecution is, at least in part, motivated by
a protected ground.” (quotation marks and emphasis omitted)).
To qualify for withholding of removal under the INA, an applicant must
show that, if returned to his country, her life or freedom would be threatened on
account of race, religion, nationality, membership in a particular social group, or
political opinion. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). If a petitioner is unable
to meet the standard of proof for asylum, she cannot meet the more stringent
standard for withholding of removal. Id.
III.
The BIA did not err in finding that Dominguez-Salmerson’s proposed
particular social group was not legally cognizable as it was circularly defined by
the harm suffered or feared, was not socially distinct, and was not defined with
particularity. First, she uses her alleged past and future persecution, sexual
harassment, and assault from Hernandez-Morales to define her proposed social
group. This is not a valid basis for defining a particular social group. Castillo-
Arias, 446 F.3d at 1198.
And second, even if Dominguez-Salmerson’s proposed social group was not
circularly defined, she did not provide enough evidence to demonstrate that it was
distinct or defined with particularity. Even if the members of Dominguez-
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Salmerson’s proposed social group share an immutable characteristic—gender—
she provided little to no evidence to demonstrate that the proposed group was
perceived as distinct by society as a whole. See Amezcua-Preciado, 943 F.3d at
1344–45. And, similarly to Perez-Zenteno, Dominguez-Salmerson’s proposed
group lacks definable boundaries and potentially encompasses a very large
percentage of the Honduran population. 913 F.3d at 1309 (finding that a proposed
social group was not definable because it was amorphous, overbroad, and
subjective).
Because we find that Dominguez-Salmerson did not propose a legally
cognizable particular social group, we need not reach the second issue of whether
substantial evidence supports the BIA’s finding that Dominguez-Salmerson
otherwise failed to meet her burden of showing she was eligible for asylum or
withholding of removal.
PETITION DENIED.
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