The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0170p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
MARTA LIDIA TISTA-RUIZ DE AJUALIP; GLENDY
│
JOMARA AJUALIP-TISTA; KENDEL AMISAEL AJUALIP-
│
TISTA; OSWIN ALEXIS AUGUSTO AJUALIP-TISTA;
│
JAMILTON OSVIEL TISTA-AJUALIP,
│ No. 23-3274
Petitioners, >
│
│
v. │
│
MERRICK B. GARLAND, Attorney General, │
Respondent. │
┘
On Petition for Review from the Board of Immigration Appeals.
Nos. A 088 925 800; A 208 893 829; A 208 893 830; A 208 893 831; A 208 893 832.
Decided and Filed: August 9, 2024
Before: COLE, GILMAN, and LARSEN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Stephen C. Knight, BAYDOUN & KNIGHT, PLLC, Brentwood, Tennessee, for
Petitioners. Roberta O. Roberts, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
COLE, J., delivered the opinion of the court in which GILMAN, J., joined. LARSEN, J.
(pp. 28–43), delivered a separate dissenting opinion.
_________________
OPINION
_________________
COLE, Circuit Judge. Applicant Marta Lidia Tista-Ruiz De Ajualip is a native citizen of
Guatemala who applied for asylum and withholding of removal for herself and on behalf of her
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 2
three children and grandson,1 all of whom entered the United States on March 5, 2016.2 Marta’s
family left Guatemala because they were afraid that Marta’s son-in-law, Marvin, would act on
his threats to kill them.
After initiating removal proceedings and holding an administrative hearing in 2016, an
immigration judge (IJ) found that Marta and her family were subjected to persecution as defined
in the Immigration and Nationality Act (INA), but the IJ denied Marta’s asylum and withholding
claims for other reasons. In making her asylum determination, the IJ relied on previously
applicable immigration precedent to declare that victims of domestic violence are not protected
by the asylum laws of the United States. And when analyzing Marta’s withholding claim, the IJ
applied the wrong legal standard and premised her denial on a separate, inapplicable immigration
statute.
In March 2023, the Board of Immigration Appeals (Board) issued an opinion affirming
both points. The Board issued a separate opinion on the asylum claim that acknowledged a
significant change in precedent since the IJ’s decision, but the Board affirmed instead of
remanding for further review. The Board summarily affirmed the denial of Marta’s withholding
claim. Because the Board’s denial of asylum and withholding of removal is inconsistent with
this court’s precedent and other immigration authority, we grant Marta’s petition for review and
remand for further proceedings.
I.
A.
Marta and her family lived in a remote village in the mountains of Guatemala named
Volcancillo. In her testimony, all deemed credible by the IJ, Marta described her village as a
1
The IJ’s and the Board’s final decisions omitted the name of minor child, Jamilton Osviel Tista-Ajualip
(A208-893-832); (AR 247). These omissions seem to be clerical errors, and we reinsert his name into the case
caption as a result.
2
Marta is the lead applicant in this case, and her three children and grandson act as derivative applicants for
purposes of Marta’s asylum application only, and not for the Board’s denial of withholding of removal. (AR 003,
BIA Order.) Unless otherwise noted, references to Marta in the singular also encompass the arguments made by her
children in their asylum applications.
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 3
“town in the mountains” where there were only “five houses [] and . . . the other closest houses
[were] about an hour walking distance.” (AR 275.) The village did not have any local police or
any mechanism to “protect women [from] violence.” (Id.)
Marta’s eldest daughter, Glendy, entered into a domestic relationship with Marvin, an
adult male, when she was fifteen years old. Marvin moved in with the family soon thereafter,
but started abusing Glendy when he learned that she was pregnant. Glendy initially refused
Marvin’s requests to have an abortion, so Marvin resorted to physical abuse in order to force her
to abort the baby. As just one example of the reoccurring abuse, while Marta would tend to
livestock outside of the house, Marvin would lock Glendy in a bedroom and beat her repeatedly.
The severity of Marvin’s abuse quickly escalated and spread to the rest of Marta’s
immediate family members after the baby was born. Marvin was dependent on drugs and
alcohol, was not working, and would leave for days at a time, but he always returned to abuse
Glendy further. The family also heard from others that Marvin “would go and steal” and that he
was “associated with gangs[.]” (Id. at 266−67.)
Marta eventually confronted Marvin and told him to leave because of the frequent abuse
and his inability to support Glendy’s baby. This angered Marvin further, prompting him to take
the family’s phones, sharpen a machete in front them, and explain that he planned on killing
them with it. Marvin eventually left, but he returned approximately three months later to
threaten the family again. Specifically, Marvin stated, “he had gotten money together and that he
came back so that [Glendy] would give him his son,” noting that he could find someone to kill
the entire family “for 400 quetzales,” the Guatemalan currency. (Id.)
After this incident, Marta took her family on a day-long hike to the nearest city to file a
police report because there were no local authorities in her village. Glendy gave a statement
outlining Marvin’s abuse and his most recent threats, and she “ask[ed] for protection for [her]
family.” (AR 371.) Instead of arresting Marvin or offering protection, the police required that
Glendy undergo a psychological exam before implementing any “security measures.” (AR 115.)
Taking the exam would “require [Marta’s family] to risk the one-day journey back to their home
[] through the mountainous region of Guatemala; then to make the one-day hike to return to the
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 4
city to undergo the ‘psychological exam,’ and then make the one-day trek back home”—a three-
day endeavor. (Appellant Br. 17.)
Marta, aware of the dangers these journeys presented, as well as the reality that it is
common practice for the Guatemalan Police Force to ignore or fail to protect victims of domestic
violence, did not believe that her family would survive Marvin’s threats if they stayed in
Guatemala long enough to follow through with this process. In fear for their lives, they fled to
the United States three days later. Marta also testified that she fears going back to Guatemala,
that there is nowhere “safe for [her] to go if [she] went back there,” and that she does not “have a
place or any family there.” (AR 268−69.)
B.
The Department of Homeland Security initiated removal proceedings against Marta and
her family in 2016, the same year they entered the U.S. The IJ held a hearing on June 27, 2019,
where she heard testimony from both Marta and Glendy. (Id. at 208−46.) At the beginning of
the hearing, Marta’s counsel stated that Marta’s proposed particular social groups (PSGs) were
“victims of domestic violence” and “family members of victims of domestic violence.” The IJ
responded by questioning the cognizability of both PSGs, asking “[h]ow is that going to pass
given the Attorney General’s decision in Matter of A-B-?”, which was applicable immigration
authority during Marta’s hearing in 2019. Matter of A-B-, 27 I&N Dec. 316, 320 (2018)
(hereinafter “A-B-I”) (since overruled). In relevant part, A-B-I stated that “[g]enerally, claims by
aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors
will not qualify for asylum.” Id.
The IJ’s reliance on A-B-I, now overruled, colored her actions and decisions throughout
the rest of the proceedings. During the hearing, Marta’s counsel tried to ask questions about
Marta’s personal characteristics, as well as questions regarding Marta and her family members’
employment status, marital status, and education level. But the IJ precluded Marta from
developing this testimony by interrupting Marta’s counsel on four separate occasions: instructing
counsel to “skip the biometric information,” asking “[w]hat’s the relevance of that to [Marta’s
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 5
asylum claim?”, and ordering counsel to “start with [why Marta was] afraid to return to her home
country.” (AR 262−264, 269.)
The IJ also conducted her own, very brief, examination of Marta during the hearing. (AR
273−74.) The IJ first asked Marta whether “[she] or any family member would be seen as
distinct or in any way stand out in Guatemalan society,” but Marta—apparently
misunderstanding the IJ’s legal question—instead answered by explaining that her family would
be susceptible to extortion if they returned to Guatemala. (Id.) Immediately after Marta’s
answer, the IJ again asked Marta whether she “would be seen as [] distinct” or whether “[she] or
any family member [is] a part of any group within Guatemala.” (Id.) Marta responded “[n]o” to
both questions. (Id.)
After testimony concluded, Marta’s counsel again emphasized that Marta’s family lived
in a small town where “[t]here’s not police, and [t]here’s not any kind of protection for women
that are being abused.” (AR 281.) Marta’s counsel also submitted a State Department report
titled “Guatemala 2015 Crime and Safety Report,” which explained that the Guatemalan police
force “lacks personnel and training . . . [and] is significantly under-trained and under-funded.”
(Id. at 391.) The report further explained that “[m]ore often than not a police investigation fails
to result in arrest, much less a conviction,” and, specifically, “[s]upport for victims of sexual
assault is lacking outside of major cities” and “there are not enough trained personnel who can
help victims either in the capital or outlying areas.” (Id. at 391, 404.)
At the end of the hearing, the IJ issued an oral decision that summarily denied Marta’s
claims. The IJ stated that “although the Court believes what you told it today, the asylum laws of
the United States do not protect against general domestic violence claims from another country,
and therefore, the Court has been unable to grant your applications today.” (Id. at 282.) The IJ
found that the harm Marta and her family suffered amounted to persecution. But the IJ
concluded that Marta and her family’s proposed PSGs—“victims of domestic violence” and
“family members of victims of domestic violence”—were circular and therefore not sufficiently
defined under A-B-I. The IJ also concluded that Marta could not show that the Guatemalan
government was unwilling or unable to protect them from private persecution because Marta and
Glendy chose not to follow through with the psychological exam requested by the Guatemalan
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 6
authorities. (Id. at 210−13.) These two conclusions, the IJ stated, disqualified Marta and her
family from attaining asylum under the INA.
The IJ relied almost exclusively on A-B-I for both of her conclusions. See 27 I&N Dec.
at 320 (stating that “claims by aliens pertaining to domestic violence . . . perpetrated by
nongovernmental actors will not qualify for asylum”); (see also AR 210−12, 282) (IJ stating that
“[t]he Attorney General noted in [A-B-I] that the fact that the local police have not acted on a
particular report of an individual crime does not necessarily mean the government is unwilling or
unable to control crime.”).
The IJ also concluded that Marta did not qualify for withholding of removal under
Section 241(b)(3) of the INA. In making this determination, the IJ stated that because Marta
could not meet the burden for asylum, she also could not “meet the higher burden required for
withholding of removal under [the INA],” and the evidence in the record “without more [was]
insufficient to carry the high burden that [Marta] would be specifically targeted for torture if she
returned to Guatemala.” (AR 213.)
However, after the IJ denied relief to Marta—but before the Board could review the IJ’s
denial and issue its own decision—Attorney General Garland issued an immigration decision in
2021 that overruled A-B-I. See Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (hereinafter “A-B-
III”). A-B-III vacated A-B-I in its entirety, stating that A-B-I’s “broad language could be read to
create a strong presumption against asylum claims based on private conduct” and “threatens to
create confusion and discourage careful case-by-case adjudication of asylum claims.” Id. at
308−09. Moving forward, Garland instructed immigration courts to follow “pre-A-B-I precedent,
including Matter of A-R-C-G-.” Id. at 309.
A-R-C-G-, unlike A-B-I, recognizes that victims of domestic violence can qualify for
asylum relief. See Matter of A-R-C-G-, 26 I&N Dec. 388, 394. A-R-C-G- also clarifies that
asylum claims premised on domestic violence contain unique issues that require a careful
evaluation of the record:
[C]ases arising in the context of domestic violence generally involve unique and
discrete issues not present in other particular social group determinations, which
extends to the matter of social distinction. [And] even within the domestic
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 7
violence context, the issue of social distinction will depend on the facts and
evidence in each individual case, including documented country conditions; law
enforcement statistics . . .; the [applicant’s] past experiences; and other reliable
and credible sources of information.
Id. Due to the unique issues in domestic violence cases, A-R-C-G- emphasizes that the PSG
determination, specifically “[w]hen evaluating the issue of social distinction,” requires
immigration courts to look to the evidence to determine “whether a society . . . makes
meaningful distinctions based on [] common immutable characteristics.” Id.
The Board affirmed the IJ’s decision in March 2023. The Board acknowledged that
A-B-III overruled A-B-I, but nonetheless agreed with the IJ because (1) even if A-B-I was
overruled, “victims of domestic violence” does not qualify as a PSG under Sixth Circuit
precedent because the group is “circular[ly]” defined by the harm,” and (2) the IJ’s conclusion
that Marta did not meet her burden of showing that “the Guatemalan government would be
unwilling or unable to protect her . . . is not clearly erroneous, as [her] personal experience with
the police does not suggest” otherwise. (AR 003−05.) The Board then summarily adopted and
affirmed the IJ’s denial of withholding of removal.
Marta appealed the Board’s decision, requesting that we reverse the denial of her
applications for asylum and withholding of removal. She argues that the Board’s conclusions are
inconsistent with A-B-III and our precedent, and that there was not substantial evidence in the
record supporting either conclusion.
II.
A.
This court has jurisdiction under 8 U.S.C. § 1252 to review the Board’s final
determination ordering removal. Umaña-Ramos v. Holder, 724 F.3d 667, 670 (6th Cir. 2013).
We review the Board’s order if it issued its own decision, but we review the IJ’s decision to the
extent that the Board adopted it. Id. Questions of law are reviewed de novo and factual findings
under the substantial-evidence standard. Id.; see also Loper Bright Enter. v. Raimondo,
144 S.Ct. 2244, 2258–59, 2273 (2024) (explaining that deferential review of an agency decision
is “cabined to factbound determinations” because “[c]ourts must exercise their independent
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 8
judgment in deciding whether an agency has acted within its statutory authority”) Under the
substantial-evidence standard, “we uphold a [Board] determination as long as it is supported by
reasonable, substantial, and probative evidence on the record considered as a whole.” Juan
Antonio v. Barr, 959 F.3d 778, 788 (6th Cir. 2020) (quotation marks omitted). And “we will not
reverse a factual determination . . . unless we find ‘that the evidence not only supports a contrary
conclusion, but compels it.’” Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007) (quoting
Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004) (emphasis in original). Lastly, because the
IJ found the parties credible, “we accept their factual statements as true.” Mandebvu v. Holder,
755 F.3d 417, 424 (6th Cir. 2014).
An asylum applicant has the burden of proving that she is a “refugee” under the INA,
meaning someone “unable or unwilling to return to her home country because of past persecution
or a well-founded fear of future persecution on account of race, religion, nationality, membership
in a [PSG], or political opinion.” Juan Antonio, 959 F.3d at 789 (quotation marks omitted). An
asylum applicant who alleges that the persecution stems from a private actor’s violence towards
her must therefore “independently prove” that (1) the “violence [arises or] would arise on
account of her membership in a [PSG]” and (2) “the government is unable or unwilling to control
[the] private violence.” Ortiz v. Garland, 6 F.4th 685, 686, 691 (6th Cir. 2021) (the “state-action
element”).3
B.
In Marta’s case, the Board concluded that her first proposed PSG, “victims of domestic
violence,” was impermissibly circular without reviewing any of the evidence in the record. The
Board’s analysis, and subsequent conclusion, were therefore deficient. The Board issued its own
decision on the PSG issue, so we review its decision as the “final agency determination,” but we
still review the IJ’s decision to the extent that the Board adopted it. Khalili v. Holder, 557 F.3d
429, 435 (6th Cir. 2009). And we review questions of law de novo. Id.
3
There is no dispute in this case that Marvin’s violent acts and later threats towards Glendy and Marta’s
family constitute persecution.
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 9
A cognizable PSG is “a group that shares a common, immutable and fundamental
characteristic that either cannot be changed or should not be required to [change] because it is
fundamental to the members’ individual identities or consciences.” Juan Antonio, 959 F.3d at
789 (cleaned up). Moreover, the PSG must be both particular and socially visible. Id. (citation
omitted); see also A-R-C-G-, 26 I&N Dec. at 393 (“[T]here is some degree of overlap between
the particularity and social distinction requirements because both take societal context into
account.”) (citation omitted).
Further, a PSG cannot be “circular,” which means that the “group must share a narrowing
characteristic other than [its members’] risk of being persecuted” to be cognizable. Juan
Antonio, 959 F.3d at 789 (internal quotation omitted). And we have recognized that “the [Board]
and IJ have an independent role to assess the plausibility of the application on the record as a
whole.” See Zometa-Orellana v. Garland, 19 F.4th 970, 979 (6th Cir. 2021); Juan Antonio, 959
F.3d at 788, 791−92; see also Turcio-Flores, 67 F.4th at 356 (explaining that a “group [can be]
vulnerable to persecution in part due to its social distinction”). This factfinding obligation is in
line with current immigration authority and our sister circuits, which have recognized that the
Board cannot “conclude that [a PSG] is defined by the harm or potential harm inflicted merely
by the language used rather than determining what underlying characteristics account for the fear
and vulnerability.” Grace v. Barr, 965 F.3d 883, 903−04 (D.C. Cir. 2020) (explaining that
immigration authority and “[g]uidance make clear that asylum officers must analyze each case
on its own merits in the context of the society where the claim arises”) (emphasis added); see
also Cece v. Holder, 733 F.3d 662, 672 (7th Cir. 2013) (en banc); A-R-C-G, 26 I&N (“A
determination of this issue will be dependent upon the facts and evidence in a case.”).
In its decision, the Board acknowledged Marta’s argument that A-B-I was overruled, but
it still agreed with the IJ’s conclusion that “victims of domestic violence” was a circular PSG
because it is “defined solely by being victimized by domestic violence.” (AR 004.) The Board
is correct in its understanding that we are normally precluded from recognizing as cognizable a
circularly proposed PSG. But the Board incorrectly applied this principle to Marta’s asylum
application by (1) not remanding for further review after the IJ relied on outdated precedent, A-
B-I, to ignore pertinent evidence in the record and impede Marta’s counsel from further
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 10
developing relevant testimony, and (2) failing to consider the record as a whole when making its
PSG determination.
1.
We must first return to the record, and the timeline of relevant immigration authority, to
adequately address the many mistakes made in this case. At the outset of Marta’s hearing, the IJ
made clear that she did not believe Marta’s proposed PSGs were cognizable under A-B-I, which
previously held that, generally, “claims by aliens pertaining to domestic violence . . . perpetrated
by nongovernmental actors will not qualify for asylum.” See 27 I&N Dec. at 320. The IJ’s
significant reliance on A-B-I then colored how she conducted the remainder of Marta’s hearing.
Marta’s counsel, for example, tried to ask general questions about Marta’s personal
characteristics and circumstances, and specific questions regarding Marta and her family
members’ employment status, marital status, and education level. But the IJ prevented the
development of this testimony by questioning its relevance and interrupting Marta’s counsel on
four separate occasions. Then, in issuing her oral decision at the hearing’s conclusion, the IJ
stated broadly that “the asylum laws of the United States do not protect against general domestic
violence claims from another country.” (See also AR 282) (IJ stating that “[t]he proposed
[PSGs] are delineations of the social group discussed in [A-B-I], and the Court finds that such a
proposed group is defined solely by the persecution of its members, rendering it a circular social
group”).
After the IJ’s decision, however, Garland issued A-B-III, which overruled A-B-I and left
the door open for “asylum claims based on private conduct,” such as claims made by victims of
domestic violence. See A-B-III, 28 I&N Dec. at 307. A-B-III explicitly commanded that
“immigration judges and the Board should no longer follow A-B-I . . . when adjudicating pending
or future cases,” and they should instead “follow pre-A-B-I precedent, including [A-R-C-G-].”
Id. at 309. Collectively, A-B-III, A-R-C-G-, and our own precedent make clear that the Board
should have remanded Marta’s case back to the IJ for further factual review.
a. The Board Should Have Remanded for Further Factual Development.
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As a preliminary matter, the IJ’s reliance on A-B-I to broadly proclaim that victims of
domestic violence are generally barred from asylum protection is the exact type of “confusion”
that A-B-III sought to avoid in “pending or future cases.” See id. at 309 (emphasis added)
(collecting cases to criticize immigration decisions that “stat[e] without qualification that [A-B-I]
declined to extend asylum and withholding of removal relief to victims of private criminal
activity”) (citation omitted). To clarify, in issuing A-B-III, Attorney General Garland reiterated
that “A-B-I threaten[ed] to create confusion and discourage careful case-by-case adjudication of
asylum claims.” Id. No such careful adjudication was afforded to Marta, whose counsel was
prevented from developing testimony that was relevant to her asylum claim.
We need only look at A-R-C-G- to see that the IJ, if she were not permitted to rely on
A-B-I to categorically bar Marta’s claim, would have been required to consider the testimony
Marta’s counsel tried to develop. First, A-R-C-G- mandates that “any claim regarding the
existence of a particular social group must be evaluated in the context of the evidence presented
regarding the particular circumstances in the country in question.” 26 I&N Dec. at 392
(emphasis added). Second, in discussing whether there is a common immutable characteristic,
A-R-C-G- states that “[a] determination of this issue will be dependent upon the particular facts
and evidence in a case,” and explains that “adjudicators must consider a respondent’s own
experiences, as well as more objective evidence, such as background country information.” Id.
at 393 (emphasis added) (stating, for example, that “marital status can be an immutable
characteristic where the individual is unable to leave the relationship”); see also Juan Antonio,
959 F.3d 791 (same). Finally, when discussing social distinction, A-R-C-G- states that “within
the domestic violence context, the issue of social distinction will depend on the facts and
evidence in each individual case,” including, amongst other things, “the respondent’s past
experiences.” A-R-C-G-, 26 I&N Dec. at 394−95 (“We point out that cases of domestic violence
generally involve unique and discrete issues not present in other particular social group
determinations.”).
Yet notably absent from the IJ’s decision are the different bodies of evidence that A-B-III
and A-R-C-G- state are highly relevant to the PSG determination. Compare (AR 210) (IJ stating
Marta’s PSG is not “particular because it is defined by the member’s vulnerability to private
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 12
activity”), with A-B-III, 28 I&N Dec. at 309 (explaining that A-B-I incorrectly “create[d] a strong
presumption against asylum claims based on private conduct”), and A-R-C-G-, 26 I&N Dec. at
392 (stating the social-distinction determination requires us to review evidence such as whether
(1) “the society in question [offers] protection to victims of domestic violence,” (2) “the country
has criminal laws designed to protect domestic abuse victims,” (3) “those laws are effectively
enforced,” and (4) “other sociopolitical factors”). Here, the IJ’s reluctance to cite or discuss this
type of evidence stems from her reliance on A-B-I to prevent Marta from developing relevant
testimony and to also disregard the documentary evidence that Marta submitted.
To be fair, because A-B-I was valid immigration precedent at the time her decision was
issued, we cannot fault the IJ for her significant reliance on that case. The Board, however, was
wrong to affirm the IJ’s decision despite acknowledging the significant change in precedent that
came with A-B-III. Here, “[i]n essence, the [IJ], relying on Matter of A-B-, disposed of the
element on the grounds that [PSGs] presumptively cannot be defined by domestic violence by
non-government actors.” See Zometa-Orellana v. Garland, 19 F.4th 970, 978 (6th Cir. 2021).
Next, the Board—by ignoring the underdeveloped record and an IJ decision in direct conflict
with A-B-III and A-R-C-G-—essentially rubber stamped the IJ’s denial of asylum by citing to
Sixth Circuit precedent on circularity. (AR 004). But “[i]n cases where a decision on which the
IJ or BIA relied to make a determination was vacated or abrogated, we have determined that this
change in the law ‘counsels remand.’” Id. at 979 (quoting Juan Antonio v. Barr, 959 F.3d 778,
790 n.3 (6th Cir. 2020)). The Board cannot simply ignore the change in law here by claiming
circularity in a perfunctory manner. Moreover, notwithstanding its procedural mistake, the
Board’s application of the circularity rule was also incorrect.
b. The Board Misapplied the Circularity Rule.
We have stated that “the [Board] and IJ have an independent role to assess the
plausibility of the application on the record as a whole.” See Zometa-Orellana, 19 F.4th at 979
(emphasis added); see also Juan Antonio, 959 F.3d at 784, 788−89, 791 (holding that “the
Board’s conclusion [was] not supported by substantial evidence on the record considered as a
whole” and that the PSG determination “will be dependent upon the particular facts and evidence
in a case”) (quoting A-R-C-G-, 26 I&N Dec. at 392−93). This factfinding duty is in line with
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 13
settled immigration authority, A-B-III, which requires “careful [and] case-by-case adjudication of
asylum claims.” See 28 I&N Dec. at 307. And it is further clarified by our precedent, which
states that when assessing whether the PSG is “supported by the record in [a] case, we emphasize
that the IJ and BIA have certain obligations under international law to extend refuge to those
who qualify for such relief and bear the responsibility for assuring that refugee protection is
provided where such protection is warranted by the circumstances of an asylum applicant’s
claim.” See Zometa-Orellana, 19 F.4th at 979 (cleaned up) (emphasis added).
These obligations remain at the forefront when making the circularity determination; this
is because “whether a group exists independently of the harm alleged is not always so apparent,”
and thus “whether a given group is circular depends on the facts of a particular case.” See
Grace, 965 F.3d 883 at 903−04 (collecting cases from other circuits to discuss the “circularity
rule” and stating these “examples demonstrate it is not fair to conclude that the group is defined
by the harm or potential harm inflicted merely by the language used rather than determining
what underlying characteristics account for the fear and vulnerability”) (cleaned up); see also
Cece, 733 F.3d at 672 (same). Indeed, our own precedent, the caselaw in other circuits, and
current immigration authority support this principle. See, e.g., Espinoza-Ochoa v. Garland,
89 F.4th 222, 223 2023 (1st Cir. 2023) (stating “[o]ur sister circuits also have recognized . . . that
it is not fair to evaluate a PSG based merely on a cursory assessment of the words used”);
Turcios-Flores v. Garland, 67 F.4th 347, 356 (6th Cir. 2023) (rejecting circularity as applied and
stating that “th[e] group is not circularly defined by the fact that it suffers persecution. Rather,
th[e] group is vulnerable in part due to its social distinction”) (cleaned up); A-R-C-G-, 26 I&N
Dec. at 394 (stating “within the domestic violence context, the issue of social distinction will
depend on the facts and evidence in each individual case”). Simply put, if the Board wishes to
deny an asylum claim on the basis of circularity, then it must review the record and conduct the
proper analysis. See Espinoza-Ochoa, 89 F. 4th at 223 (stating a “review of a PSG for legal
validity must be based on a substantive analysis, not a superficial ‘quick look’”).
Let us return to Marta’s case with this authority in mind. Here, the Board incorrectly
concluded that Marta’s proposed PSG was circular without discussing, or even citing to, the
many pieces of evidence in the record suggesting otherwise. (AR 004). And it is apparent that
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 14
the Board’s circularity determination is even more flawed upon learning that, as explained
above, the record is incomplete because the IJ prevented Marta from developing potentially
relevant testimony. (AR 262−264, 269.)
Reviewing the record as a whole, the particular facts of Marta’s case show that her
proposed PSG was not circular because her application reflects additional immutable and
narrowing characteristics separate and apart from her suffering of domestic violence. Credible
testimony and documentary evidence in the record show, for example, that Marta’s family
(a) lived in a remote village in the mountains, where (b) there were no local authorities or means
to protect women from domestic violence, and (c) they had no apparent ability to escape their
abuser, who was allegedly associated with gangs, while remaining in Guatemala. (AR 265,
267−68, 272, 274− 75, 281); see also Grace, 965 F.3d at 905 (reiterating that “Guatemalan
women unable to leave their relationships . . . is not [a] categorically barred [PSG] . . . and that
its validity would turn on the specific factual circumstances of an applicant’s claim”) (quotation
marks omitted).
The Board was required to at least consider some of this evidence in making its
circularity determination. See Turcios-Flores, 67 F.4th at 356 (rejecting the IJ’s “one sentence”
conclusion regarding social distinction to state that “the record compels a different conclusion”);
see also A-R-C-G-, 26 I&N Dec. at 394 (summarizing the evidence that “adjudicators must
consider,” including evidence such as “a respondent’s own experiences,” “background country
information,” and “other sociopolitical factors”). In fact, the Board itself recognized the
substantial overlap between “victims of domestic violence” and “married women who are unable
to leave a domestic relationship” when it stated in A-R-C-G- that:
When evaluating the issue of social distinction, we look to the evidence to
determine whether a society, such as Guatemalan society in this case, makes
meaningful distinctions based on the common immutable characteristics of being
a married woman in a domestic relationship that she cannot leave. Such evidence
would include whether the society in question recognizes the need to offer
protection to victims of domestic violence, including whether the country has
criminal laws designed to protect domestic abuse victims, whether those laws are
effectively enforced, and other sociopolitical factors.
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 15
26 I&N Dec. at 394 (emphasis added). These types of claims—from both a commonsense
perspective, and in the Board’s view—are inextricably linked.
The dissent contends that we “faul[t] the BIA for not scouring the record on its own” in
performing the PSG analysis. Dis. Op. at 1. First, all of the evidence referenced above is
reflected in Marta’s testimony, which spans thirteen pages and is also summarized in one
paragraph by Marta’s counsel at the hearing’s conclusion. (AR 262− 275, 282) (reflecting
Marta’s testimony on direct, cross, and redirect, and counsel’s summary thereto). The same
transcript includes the IJ’s oral decision to deny relief—which the Board undoubtedly had to
review to make its own determination—and is just one page after counsel’s summary. (AR 282.)
Second, it is the Board that chose, in a precedential decision, to link the social-distinction
analysis for “married women in a domestic relationship that [they] cannot leave” to a society’s
treatment of “victims of domestic violence” and “domestic abuse victims.” A-R-C-G-, 26 I&N
Dec. at 394. And as previously mentioned, the Board also “point[ed] out that cases arising in the
context of domestic violence generally involve unique and discrete issues not present in other
particular social group determinations.” Id.
A-R-C-G- was good law when the Board adjudicated Marta’s appeal, and Marta expressly
argued that she qualified for asylum pursuant to A-R-C-G- in her brief to the Board. The Board
should have addressed whether the record as a whole supported Marta’s assertion that she was a
member of the PSG at issue in this case. Yet, when discussing “the proposed group of ‘victims
of domestic violence,’” the Board did not mention or discuss any evidence in the record
whatsoever in hastily concluding that Marta’s PSG “is defined solely by being victimized by
domestic violence and therefore is not cognizable.” (AR 004). This complete disregard for
the record, especially given the change in immigration authority, is wholly inadequate under
A-R-C-G- and our own precedent.
Finally, although we do not make the cognizability determination here, it is worth noting
that our court has previously found proposed PSGs with records very similar to Marta’s
cognizable. See, e.g., Juan Antonio, 959 F.3d at 792 (“The Board has found that married women
in Guatemala who are unable to leave their relationship can constitute a cognizable particular
social group.”) (quotation marks omitted); Turcios-Flores, 67 F.4th at 356 (holding that “single
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 16
mothers living without male protections . . . is a socially defined group” because they “share
narrowing characteristics . . . [and] [i]t just so happens that these characteristics also make them
vulnerable to [persecution]”) (emphasis in original); cf. Zometa-Orellana, 19 F.4th at 978, 979
(remanding to determine whether “El Salvadorian women of childbearing age in domestic
partnerships” is a cognizable PSG on remand).4
2.
The Board also erred in concluding that Marta “waived the issue” regarding her second
proposed PSG, consisting of “family members of victims of domestic violence.” (AR 3−4). In
contrast to its analysis of Marta’s first proposed PSG, “victims of domestic violence,” the Board
recognized that the circularity analysis as applied to “family members of victims of domestic
violence” was more complicated. (Id.) And the Board expressly stated that “[the second
proposed PSG] may share a narrowing characteristic other than their risk of being persecuted.”
(Id. at 4) Rather than addressing the issue, however, the Board concluded that Marta waived her
argument because she allegedly “[did] not challenge the [IJ’s] determination” that her proposed
PSGs were not “socially distinct within Guatemalan society, particularly in light of [Marta’s]
testimony that she did not believe that she or her family . . . belong to any particular group within
Guatemala.” (Id. at 4−5). The Board’s conclusion was incorrect for three separate reasons.
First, we are hesitant to construe Marta’s brief responses to the IJ’s legal questions as a
waiver of this argument. For context, in her brief examination of Marta, the IJ asked in quick
succession whether “[Marta] or any family member would be seen as distinct or in any way stand
out in Guatemalan society,” or whether “[Marta] or any family member [is] a part of any group
within Guatemala.” (AR 273−74.) Marta ultimately responded “[n]o” to both questions. (Id.)
4
To the extent that the government or dissent argues that Marta’s proposed PSGs are unexhausted
arguments that were not raised before the Board, this argument is unpersuasive because it (1) misreads Marta’s
argument and (2) hinges on an incorrect reading of our precedent on “circularity.” Contrary to what the
government contends, it is not our understanding that Marta now argues that she and her family “are members of a
PSG consisting of indigenous Mayan women.” Rather, Marta relies upon our precedent, Juan Antonio, “to
emphasize certain immutable and distinct characteristics” that are reflected in the record—such as her gender,
residence in a remote village, and inability to seek protection from authorities—that she believes are comparable to
other cases granting asylum post A-B-I. (Reply Br. at 1−2) (citing Juan Antonio, 959 F.3d at 792). Nonetheless,
even if these arguments were not exhausted (they were), we are still permitted to review arguments, like circularity,
that the Board raises independently and addresses on the merits. See Khalili v. Holder, 557 F.3d 429, 433 (6th Cir.
2009).
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 17
The IJ then relied on Marta’s responses to conclude that her PSG was not socially distinct, and
this was the only piece of evidence that the IJ relied on to make the determination. (AR 210.)
The Board then exclusively relied on Marta’s two, one-word responses (“no”) to agree with the
IJ’s social-distinction finding, and to also conclude that Marta “waive[d] this issue.” (See AR
004−05) (Board agreeing that Marta “has not demonstrated that her proposed groups are socially
distinct within Guatemalan society, particularly in light of her testimony”).
The Board also disregarded that when Marta answered the IJ’s first question, her answer
demonstrated that she did not understand the question. (See AR 211, 273−74). More troubling,
the IJ insisted on asking Marta—rather than her counsel—this legal question twice, even after
Marta apparently did not comprehend it. See Zometa-Orellana, 19 F.4th at 979 (quoting
Cantarero-Lagos v. Barr, 924 F.3d 145, 154 (5th Cir. 2019) (Dennis, J., concurring))
(“‘Someone who faces persecution on account of a protected ground is no less deserving of
asylum’s protections because of her inability to exactly delineate a convoluted legal concept.’”);
see also Quintero v. Garland, 988 F.3d 612, 632 (4th Cir. 2021) (stating “it [is] unreasonable and
fundamentally unfair to expect pro se asylum seekers—many of whom suffer from the effects of
trauma and lack literacy, English proficiency, formal education, and relevant knowledge—to
even understand what a [PSG] is, let alone fully appreciate which facts may be relevant to their
claims and articulate a legally cognizable group”). Our precedent states that “[a]n immigration
judge has a responsibility to function as a neutral, impartial arbiter and must refrain from taking
on the role of advocate for either party.” Elias v. Gonzales, 490 F.3d 444, 451 (6th Cir. 2007).
At the very least, that responsibility extends to considering the record as a whole, and not relying
solely on the applicant’s one-word responses to an IJ’s legal questions. See Zometa-Orellana,
19 F.4th at 979
Second, the Board’s statement regarding waiver is not an accurate reflection of the IJ’s
limited social-distinction analysis. Although the IJ analyzed Marta’s first proposed PSG, the IJ
did not discuss, analyze, or even allude to whether “family members of victims of domestic
violence” are a socially distinct group. At most, the IJ appears to have relied on her initial
conclusion that “victims of domestic violence” are not socially distinct. But Marta certainly
challenged that conclusion on appeal to the Board. (See AR 032) (Marta, in relying on the
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 18
change in precedent, argues to the Board that “[i]n [A-R-C-G-], the [Board] further recognized
female victims of domestic violence as a cognizable and socially distinct group of people.”) The
Board might have disagreed with Marta’s argument, but its conclusion that Marta waived her
second proposed PSG is undercut by both the IJ’s failure to address “family members of victims
of domestic violence” in her oral decision and Marta’s articulated challenge to the only social-
distinction determination that the IJ did make.
Third, A-B-III instructs here that the appropriate recourse would have been for the Board
to remand to the IJ for further factfinding regarding social distinction. See 26 I&N Dec. at 309
(ordering that “[IJs] and the Board should no longer follow [A-B-I] when adjudicating pending or
future cases” and should instead “follow pre-A-B-I precedent, including [A-R-C-G-]”) (emphasis
added)). This is especially true for Marta’s proposed PSG of “family members of victims of
domestic violence” because the Board’s decision acknowledged that this PSG “may share a
narrowing characteristic other than the risk of being persecuted.” (AR 004).
The dissent highlights that the IJ’s decision references the phrase Marta’s “social group
or groups,” and that the decision also cites to Marta’s responses to legal questions about her
“family”; the dissent then argues that these two points “can only be read as the IJ concluding that
Marta had not produced sufficient evidence of social distinction for either group.” Dis. Op. at
8−9, n.3. To be clear, we do not agree that the IJ’s fleeting references to the words “groups” and
“family” are enough to satisfy the IJ’s burden of “ensur[ing] that the specific group being
analyzed is included in his or her decision.” See Matter of W-Y-C- & H-O-B-, 27 I&N. Dec. 189,
191 (BIA 2018); see also Espinoza-Ochoa, 89 F. 4th at 223 (“A review of a PSG for legal
validity must be based on a substantive analysis, not a superficial quick look.”) (internal
quotation marks omitted).
Even accepting the dissent’s argument as true, however, it would simply mean that
remand is an even more appropriate course of action. Meaning, if the IJ actually did
conclude that “family members of domestic violence” was not a socially distinct PSG given the
two reasons the dissent highlights, then the Board would still be required to remand because
A-R-C-G- requires a more careful analysis premised on specific evidence in the record. See
A-R-C-G-¸ 26 I&N Dec. at 394 (stating “within the domestic violence context, the issue of social
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 19
distinction will depend on the facts and evidence in each individual case, including documented
country conditions . . .; the respondent’s past experiences; and other reliable and credible sources
of information”). Again, none of this evidence was considered, or even referenced, in the IJ’s
decision. Maj. Op. at 15−16. Given this deficient analysis, and the change in precedent
thereafter, the Board was not permitted to dismiss this PSG by employing its (evidently
incorrect) theory of waiver. Instead, the Board should have remanded to the IJ for factfinding
consistent with A-B-III and A-R-C-G-’s mandates. See A-B-III, 26 I&N Dec. at 309; see also
Zometa-Orellana, 19 F.4th at 979.
Accordingly, because Marta did not waive this argument, the Board must also consider
whether “family members of victims of domestic violence” is a cognizable PSG on remand. See
Arangure v. Whitaker, 911 F.3d 333, 347–48 (6th Cir. 2018) (holding that remand is appropriate
for an issue not addressed by the Board “so that the Board can consider it in the first instance”).
3.
With regard to the PSG issue, the dissent claims that we assert a new PSG on behalf of
Marta that she did not propose before the IJ or the Board. Dis. Op. at 1−2, 8−9. The dissent then
references this “new” PSG to argue that our decision conflicts with immigration precedent on
exhaustion. Id. at 10−12. Both arguments misread our conclusions. We address them in turn.
The dissent first claims that the majority invents a new PSG for Marta, “consisting of
victims of domestic violence who: ‘(a) lived in a remote village in the mountains, where (b) there
were no local authorities or means to protect women from domestic violence, and (c) . . . had no
apparent ability to escape their abuser, who was allegedly associated with gangs, while
remaining in Guatemala.’” Dis. Op. at 2, 11−12 (quoting Maj. Op. at 16). Respectfully, the
dissent faults us for a conclusion that we did not reach.
Instead, and as explained in detail above, we vacate the Board’s decision because it failed
to conduct a proper circularity analysis. The Board’s boilerplate invocation of circularity was
not premised on any evidence in the record, and it was in direct conflict with our own precedent,
current immigration authority, and the caselaw in other circuits addressing the circularity rule.
See, e.g., Zometa-Orellana, 19 F.4th at 979; A-B-III, 28 I&N Dec. at 307; A-R-C-G-, 26 I&N at
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 20
392−93; Grace v. Barr, 965 F.3d at 904. To the extent we reference evidence in the record that
the dissent claims is a “new” PSG, our references are instead examples of “narrowing
characteristics separate and apart from [Marta’s] suffering of domestic violence” that the Board
should have considered under the aforementioned authorities. See Maj. Op. at 16.
The dissent next argues, by relying on its own claim of a newly asserted PSG, that our
decision to vacate the Board’s asylum order conflicts with immigration authority on exhaustion,
specifically, “Matter of W-Y-C-.” See Dis. Op. at 6−8 (citing 27 I&N Dec. at 191). As an initial
matter, because Marta did not raise—nor have we addressed—a newly asserted PSG, any
argument regarding exhaustion is inapposite here. We nonetheless address the dissent’s
comments regarding exhaustion and the record to provide further clarity.
Regarding exhaustion, the dissent relies on W-Y-C- and an unpublished decision to argue
that Marta did not “clearly indicate the exact delineation of [the] [PSG(s)] to which she claimed
to belong.” Cf. W-Y-C-, 27 I&N Dec. at 191; see also Dis. Op. at 9, 15 (citing Gonzalez-
Valencia v. Barr, 764 F. App’x 510, 512 (6th Cir. 2019)). The dissent ignores, however, that W-
Y-C- stresses that its decision “is underscored by the inherently factual nature of the social group
analysis,” and that “[a] determination whether a social group is cognizable is a fact-based
inquiry made on a case-by-case basis.” Id. (emphasis added) (citation omitted). Given this
factfinding obligation, the language in W-Y-C- itself even emphasizes that “the [IJ] should seek
clarification . . . [i]f an applicant is not clear as to the exact delineation of the proposed [PSG].”
See W-Y-C-, 27 I&N Dec. at 191.
This emphasis on an IJ’s duty to adjudicate claims through careful, case-by-case
factfinding is directly in line with the other immigration decisions discussed above, which were
issued (or reinstated) after W-Y-C-. See A-B-III, 28 I&N Dec. at 309 (emphasizing the necessity
for “careful case-by-case adjudication of asylum claims”); see also A-R-C-G, 27 I&N Dec. at
392−96) (discussing the different types of evidence that IJs should consider throughout the PSG
determination). And even in Gonzales-Valencia, the unpublished decision that the dissent relies
on, the panel made certain to note that “Matter of W-Y-C- correctly held that an IJ must make
factual findings to decide an applicant’s claim for relief based on membership in a [PSG].”
764 F. App’x 510, 512 (6th Cir. 2019) (emphasis added) (unpublished).
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 21
Thus, considering W-Y-C- within the larger context of the immigration authority
addressed above, we do not, as the dissent argues, announce any new rule. To the contrary, by
vacating the two immigration decisions before us that wholly disregard the record, we instead
ensure that the Board and the IJ can review the record in line with current immigration authority
to make the requisite factual findings. See W-Y-C-, 27 I&N Dec. at 191 (stating that “the social
group analysis” is “inherently factual [in] nature”). Further, this factfinding obligation, under
our own precedent, is nothing new. See Zometa-Orellana, 19 F.4th at 979 (“[T]he Board and IJ
have an independent role to assess the plausibility on the record as a whole.”); see also Juan
Antonio, 959 F.3d at 791−92 (holding that “the record considered as a whole, which includes
both [the applicant’s] testimony and the broader societal context,” compels a different
conclusion); see also Turcios-Flores, 67 F.4th at 356−357 (rejecting the Board’s social-
distinction and circularity determinations, and explaining that “[t]he record shows that
[applicant] was vulnerable to persecution because she is a part of a socially defined group.”)
***
Despite the dissent’s assertions to the contrary, we do not “propos[e] a new social group
for Marta,” nor do we “impos[e] a new procedural rule on the agency.” See Dis. Op. at 17. For
sake of clarity, we reiterate here that we do not make the cognizability determination in this case.
Rather, to summarize, our decision to remand Marta’s application directly responds to: (1) the
IJ’s near-exclusive reliance on A-B-I to broadly proclaim that victims of domestic violence do
not qualify for asylum protection, and to ignore her factfinding obligations thereto; (2) the
subsequent change in immigration authority that directs the agency to afford careful, case-by-
case adjudication to asylum claims relating to domestic violence; (3) the Board’s disregard of
immigration authority and Sixth Circuit precedent requiring the remand of pending applications
in light of the glaring change in immigration authority here; and (4) the Board’s misapplication
of the circularity rule in Marta’s case. See Zometa-Orellana, 19 F.4th at 979 (“In cases where a
decision on which the IJ or BIA relied to make a determination was vacated or abrogated, we
have determined that this change in the law ‘counsels remand.’”) (quoting Juan Antonio,
959 F.3d at 790 n.3); see also A-R-C-G-, 26 I&N Dec. at 394−95; Turcios-Flores, 67 F.4th at
356.
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 22
To the extent the dissent suggests that our decision mandates a “keep looking approach,”
that characterization is incorrect. See Dis. Op. at 20. The dissent largely relies on unpublished
decisions that—unlike Marta’s case—do not “aris[e] in the context of domestic violence,”
which “involve unique and discrete issues not present in other social group determinations.” See
A-R-C-G-, 26 I&N at 394. These nonprecedential decisions are inapposite. Dis. Op. at 20. And
the two published decisions that the dissent relies on regarding circularity, Rreshpja and Kante,
both predate A-R-C-G- and A-B-III. Those panels were not bound to consider the unique issues
present in the domestic-violence context that are explicitly acknowledged by agency authority
now. See Dis. Op. at 20 (citing Rreshpja, 420 F. 3d at 555, and Kante, 634 F.3d at 326−27).
Finally, and perhaps more important here, the decisions that the dissent relies on do not present
the same issue regarding the significant change in precedent—the abrogation of A-B-I—while
Marta’s case was pending. As explained above, A-B-III explicitly commanded that “immigration
judges and the Board should no longer follow A-B-I . . . when adjudicating pending or future
cases,” and they should instead “follow pre-A-B-I precedent, including [A-R-C-G-].” 28 I&N at
309. No such reevaluation was afforded to Marta’s case here, and, as such, we remand for
further review on this issue.
D.
The Board’s conclusion that Marta did not show that the Guatemalan government was
unwilling or unable to protect her family does not comport with our precedent, nor is there
substantial evidence in the record to support it.
When making the state-action determination, the Board must review (1) the government’s
response to the applicant’s persecution if reported, and (2) broader documentary evidence
surrounding the country’s conditions. Zometa-Orellana, 19 F.4th at 979. Factors informing this
determination include the extent to which the alleged persecution was investigated and punished,
the degree of protection the government offered to the applicant, and any concessions made by
the government. K.H. v. Barr, 920 F.3d 470, 476 (6th Cir. 2019). Importantly, “a government’s
specific response to [an applicant’s] persecution cannot be the only relevant evidence an
immigration judge considers.” K.H., 920 F.3d at 476 (emphasis added).
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 23
Addressing this element in its own separate decision, the Board noted that the IJ
acknowledged the evidence of police corruption in the record, and the Board adopted the IJ’s
reasoning to conclude that the state-action element was not met because Glendy did not follow
through with the psychological exam. (AR 005.) The Board cited a non-precedential opinion to
reiterate that the IJ’s finding “[was] not clearly erroneous [because] [Marta’s] personal
experience with the police d[id] not suggest an inability or unwillingness to protect her.” Id.
(citing Reyes Almendarez v. Barr, 817 F. App’x 35, 41–42 (6th Cir. 2020)).
As a preliminary matter, the IJ again relied heavily on A-B-I (now abrogated) to make the
state-action determination. When addressing the asylum claim, the IJ briefly mentioned the
documentary evidence in the record when she stated that “[t]he mere fact that a country may
have problems effectively policing certain crimes or that certain populations are more likely to
be victims of crime cannot itself establish an asylum claim.” (AR 212) (citing A-B-I). By relying
on A-B-I, the IJ effectively disregarded the documentary evidence in the record that addressed
the country’s conditions, and—despite A-B-I’s abrogation—the Board summarily adopted the
IJ’s one-dimensional reasoning. But this one-dimensional approach also conflicts with our
precedent, which, as explained in detail above, requires a more holistic analysis of the record.
See K.H., 920 F.3d at 476 (rejecting a “one-dimensional approach” and stating that “we must
evaluate past persecution based on the overall context of the applicant’s situation”) (cleaned up).
It is worth noting, however, that even if the Board’s approach followed our instruction (it did
not), there is not substantial evidence in the record to support its conclusion.
First, when looking at the Government’s actual response to Marta’s alleged persecution,
we must consider, among other factors, “whether the police investigated, prosecuted, [or]
punished the persecuto[r],” and “the degree of protection offered to an asylum applicant
following the persecution.” Id. at 476−77. Here, there was no investigation, prosecution,
punishment, or protection offered. To the contrary, after learning of Marvin’s prior abuse and
his threat to kill Marta’s family, the record reflects that the police did not inquire as to Marvin’s
location, probe further into Marvin’s abuse or the threat, or attempt to make an arrest. (AR 272,
279.) Instead, the police questioned the psychological fitness of Glendy—who had experienced
the most severe domestic abuse and now faced an immediate death threat from that same
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 24
abuser—and required that Glendy return for a psychological exam before they would implement
any “security measures.” (AR 115).
Without immediate protection, Marta and her family would be unable to stop Marvin if
he chose to carry out his threat or continue his abuse. Further, returning for the exam would
require hiking through dangerous territory over several days with no promise of a future arrest.
Rather than continue this futile and risky process, Marta fled to the United States with her family
to escape Marvin’s death threats. See Juan Antonio, 959 F.3d at 794 (“But it cannot be that an
applicant must wait until she is dead to show her government’s inability to control her
perpetrator.”)
Notably, we have previously remanded and ordered the Board to reassess the sufficiency
of the state-action element where an applicant took much less initiative than Marta by “not
[even] report[ing] the incidents regarding her abuse to the police department.” See Zometa-
Orellana, 19 F.4th at 979−980 (noting that the applicant “explained that she feared retaliation
and believed that the police would not act in any meaningful way to protect her”). And even in
the unpublished circuit opinion that the Board cited, Reyes, the court concluded that the Board’s
decision was supported by substantial evidence only where the police actually tried to protect the
applicant-victim and “responded, investigated, offered protection at least once, and were able to
make arrests.” 817 F. App’x at 42. The Guatemalan police force undertook no such efforts on
behalf of Marta and her family.
Second, the documentary evidence addressing the country’s conditions in the “Guatemala
2015 Crime and Safety Report,” coupled with Marta’s individual circumstances, further suggests
that the government was unwilling or unable to protect Marta’s family. (See AR 377.) Again,
that report explained that “[m]ore often than not a police investigation fails to result in an arrest,
much less a conviction,” and “[s]upport for [assault victims] is lacking outside of major cities” in
areas such as the remote village that Marta and her family lived in. (AR 391, 404.) Thus, based
on the evidence in the record, Marta could not “reasonably expect the assistance of the
government in controlling [Marvin’s] actions.” See Juan Antonio, 959 F.3d at 795 (quotation
marks omitted).
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 25
***
As such, because the Board erred in making both the PSG and state-action determinations
in Marta’s case, we remand to the Board so that it may review the record as a whole consistent
with this opinion’s reasoning and current immigration authority.
III.
The Board’s denial of Marta’s application for withholding of removal was also in error.
Here, the IJ analyzed Marta’s applications for asylum and withholding of removal under the INA
in concert, and the Board summarily adopted the IJ’s decision as to Marta’s withholding-of-
removal claim. (AR 005, 212−13.) We review the IJ’s decision because the Board adopted it for
this claim. See Khalili, 557 F.3d at 435.
The IJ stated that “[h]aving failed to establish eligibility for asylum under Section 208 of
the [INA], it necessarily follows that [Marta] cannot meet the higher burden required for
withholding of removal under Section 241(b)(3) of the [INA].” (AR 212.) The IJ then explained
that its denial of withholding of removal was predicated on the fact that evidence in the record
was “insufficient to carry the high burden to show that [Marta] would be specifically targeted for
torture if she returned to Guatemala.” (Id.) (emphasis added). The IJ’s conclusion is incorrect as
a matter of law for two reasons: (1) under the INA, the IJ was required to conduct an
independent analysis as to the probability of persecution under the separate withholding-of-
removal standard—not the asylum standard—and (2) the IJ erred when determining that Marta
did not meet the INA’s withholding- of-removal requirement because she could not show that
she would be “targeted for torture” if she returned to Guatemala. (Id.)
First, we have “explained that the nexus showing required for withholding of removal
differs from the nexus showing required for asylum.” Sebastian-Sebastian v. Garland, 87 F.4th
838, 851 (6th Cir. 2023); see also Turcio-Flores, 67 F.4th at 357 (“A court need look no further
than the text of the withholding statute in comparison with the text of the asylum statute:
‘a reason’ [in the withholding statute] is different from—and weaker than—‘a central reason [in
the asylum statute].’”) (cleaned up) (emphasis added). It is true that noncitizens must generally
meet a “higher burden” to establish eligibility for withholding of removal under the INA.
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 26
Guzman-Vazquez v. Barr, 959 F.3d 253, 274 (6th Cir. 2020). But we have clarified that this
“higher burden” is limited to an applicant’s ability to prove the likelihood of persecution. Id.
(“[A] [noncitizen] must meet a higher burden in establishing a right to withholding of removal
than in demonstrating asylum eligibility, meaning that, with respect to [the] likelihood of
persecution, a [noncitizen] who fails to qualify for asylum necessarily does not qualify for
withholding of removal.”) (cleaned up) (emphasis added).
Relevant here, the IJ already concluded in her asylum analysis that the harm that Marta’s
family faced rose to the level of persecution. (AR 210.) And to the extent that the IJ denied that
past persecution existed, that denial was premised only on Marta’s alleged failure “to show a
nexus between the alleged harm and a cognizable [PSG].” (Id.) The IJ therefore failed to
conduct the persecution analysis with respect to the withholding claim, and we are unable to
appropriately review this claim as a result. Specifically, our precedent states that “[w]hen the
[Board] analyzes asylum and withholding of removal in concert and ‘does not examine the
evidence and make specific findings regarding the probability of persecution with respect to the
withholding of removal claims, this court does not have sufficient grounds to review the decision
under the substantial evidence standard.’” Sebastian-Sebastian, 87 F.4th at 851 (quoting Juan
Antonio, 959 F.3d at 797).
Second, the IJ’s denial of withholding of removal in Marta’s case is based on an
inapplicable immigration standard. The IJ referenced a “higher burden” for withholding-of-
removal claims before explaining that Marta would not be “specifically targeted for torture if she
returned to Guatemala.” (AR 213.) As the Board noted, however, Marta did not seek relief
under the Convention Against Torture (CAT), (AR 3 n.2), and withholding of removal under the
INA has nothing to do with torture. See Kamar v. Sessions, 857 F.3d 811, 817 (6th Cir. 2017)
(“Withholding of removal under § 241(b)(3)(A) of the [INA] is mandatory if an alien shows a
‘clear probability’ that, if she was removed, her ‘life or freedom would be threatened’ on a
protected ground such as her ‘race, religion, nationality, membership in a particular social group,
or political opinion.’”) (quoting 8 U.S.C. § 1231(b)(3)(A)). Thus, the IJ’s reliance on the wrong
immigration statute, CAT, also results in legal error.
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 27
In the same breath, the IJ applied the wrong nexus standard and relied on an inapplicable
statute to deny Marta’s withholding claim. The Board summarily affirmed. This flurry of
mistakes cannot stand. Accordingly, the Board should also consider Marta’s withholding-of-
removal claim on remand, and in making this determination under the INA—not CAT—the
Board should consider “all of the evidence [in the] record.” See Juan Antonio, 959 F.3d at 797
(“When this court remands to the agency to reconsider the asylum claim, the Board should
consider on remand whether petitioners are entitled to withholding of removal based on all of the
evidence on the record.”) (internal quotation marks omitted).
IV.
Marta and her family were assaulted and repeatedly threatened by Marvin, a serial abuser
with gang affiliations. They went to the Guatemalan government for help, but they were not
provided relief. Marta’s family fled to the United States, seeking relief for asylum and
withholding of removal under the INA. For their asylum claim, the IJ relied on previously
applicable immigration authority to proclaim that victims of domestic violence do not qualify for
relief. When denying the withholding claim, the IJ applied the wrong standard for the nexus
determination and relied on an inapplicable statute to make her final conclusion. The Board
incorrectly affirmed the denial of relief as to both claims.
For the reasons stated, we grant Marta’s petition for review, vacate the Board’s denial of
her applications for asylum and withholding of removal, and remand to the Board for
reconsideration consistent with this opinion.
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 28
_________________
DISSENT
_________________
LARSEN, Circuit Judge, dissenting. The majority grants the petition for review on the
ground that the lead petitioner, Marta Ajualip, presented the Immigration Judge (IJ) with a non-
circular “particular social group.” Yet neither Marta, nor her counsel, ever advanced the social
group the court suggests. The majority nonetheless faults the BIA for not scouring the record on
its own to find the characteristics the majority deems sufficient to support a cognizable social
group. In the process, the court casts aside established BIA precedent and ignores the limits on
our statutory authority. Respectfully, I dissent.
I.
An applicant for asylum or withholding of removal must show that she faces past
persecution or a “well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1)(B)(i), 1231(b)(3)(A) & (C). “A ‘particular social group’ must meet three
criteria: (1) immutability (members must share an immutable characteristic), (2) particularity
(the group has discrete and definable boundaries), and (3) social distinction (society actually
perceives the purported group as a distinct class of persons).” Cruz-Guzman v. Barr, 920 F.3d
1033, 1036 (6th Cir. 2019).
In addition, “a social group may not be circularly defined by the fact that it suffers
persecution. In other words, the individuals in the group must share a narrowing characteristic
other than their risk of being persecuted.” Kante v. Holder, 634 F.3d 321, 327 (6th Cir. 2011).
“This narrowing requirement enforces the recognition that the social group category was not
meant to be a ‘catch all’ applicable to all persons fearing persecution.” Solis-Gonzalez v. Holder,
523 F. App’x 320, 321 (6th Cir. 2013) (citation and internal quotation marks omitted). The non-
circularity requirement was discussed in the Board’s now-overruled decision in Matter of A-B-
(A-B-I), 27 I. & N. Dec 316, 334–35 (B.I.A. 2018). But, as our decision in Kante shows, the
non-circularity principle pre-dated A-B-I; and as the majority acknowledges, it remains a part of
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 29
our law, and the Board’s, even now. Maj. Op. at 9; see Reyes Galeana v. Garland, 94 F.4th 555,
559 (6th Cir. 2024).
The majority opinion determines that the lead petitioner in this case, Marta Ajualip, has
set forth a non-circular “particular social group” consisting of victims of domestic violence
who: “(a) lived in a remote village in the mountains, where (b) there were no local authorities or
means to protect women from domestic violence, and (c) . . . had no apparent ability to escape
their abuser, who was allegedly associated with gangs, while remaining in Guatemala.” Maj.
Op. at 14. But Marta has never proposed such a group. Not before the IJ; not before the Board;
and not even before this court. So whether or not this group is cognizable, we have no license to
consider it.1
Marta, who has been represented by counsel throughout these proceedings, presented the
IJ with two particular social groups: “victims of domestic violence” and “family members of
domestic violence.” Specifically, when asked, Marta’s attorney informed the IJ that there was no
“other social group or groups under which [the petitioners] will” be proceeding beyond “victims
of domestic violence and family members of domestic violence.” See AR 261. The IJ expressed
appropriate concern about counsel’s specification of these particular social groups and
questioned counsel about their legal viability:
JUDGE TO MS. HARRIS
How is that going to pass given the Attorney General’s decision in Matter of
A-B-[I]? How is going to be a cognizable social group under the law where the
Attorney General held that to be cognizable, a particular social group must exist
independently of the harm asserted? And you’ve just defined groups specifically
by the harm.
MS. HARRIS TO JUDGE
Okay. Your Honor, they are in fear of being persecuted if they go back to their country.
1
The majority purports not to make the ultimate cognizability determination here, though it suggests that
the group it has fashioned for Marta is “very similar” to particular social groups our court has previously recognized.
See Maj. Op. at 15. I am not so sure. But I do not engage the question because the groups Marta actually
proposed—“victims of domestic violence” and “family members of domestic violence”—cannot pass muster under
our cases.
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 30
JUDGE TO MS. HARRIS
I understand that because they’re victims of domestic violence.
***
My question to you, counsel, is how is that a legally cognizable social group?
MS. HARRIS TO JUDGE
Your Honor, we plan on the testimony here, what they are afraid of.
JUDGE TO MS. HARRIS
My question to you, we’re going to hear testimony, is how is that a legally
cognizable social group? You as counsel have to put forth a legally cognizable
social group.
MS. HARRIS TO JUDGE
So they are family members of somebody who has been persecuted.
Id. at 261–62. The IJ then gave up and asked counsel to call her first witness. When lead
petitioner, Marta, took the stand, the IJ tried again. In an evident attempt to elicit testimony
supporting a non-circular particular social group, the IJ asked Marta:
Q. Do you believe you or any family member would be seen as distinct or in any
way stand out in Guatemalan society?
A. Yes.
Q. What way?
A. Yes, because when someone arrives to Guatemala after being in the United
States, they think that you have money, and then they start to extort you.
Q. Is there any other reason you would be seen as being distinct within
Guatemalan society?
A. No.
Q. Do you consider yourself or any family member to be a part of any group
within Guatemala?
A. No.
Id. at 273–74.
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 31
In light of this testimony, and counsel’s insistence on her two particular social groups, the
case proceeded.2 The IJ rejected the proffered particular social groups on the grounds that they
were circular, not particular, and lacked social distinction.
On appeal to the BIA, Marta reiterated that she was claiming “membership in a particular
social group, defined by the fact that they are victims of domestic violence.” Id. at 31; see also
id. at 32 (describing the “social group defined” as “victims of domestic violence”). She did not
mention “family members of domestic violence” at all, but at times she suggested another social
group—“female victims of domestic violence.” Id. at 32–33 (emphasis added). This group, she
apparently hoped, would be acceptable because she believed the Board’s opinion in Matter of A-
R-C-G-, 261 I. & N. Dec. 388 (B.I.A. 2014), had “recognized female victims of domestic
violence as a cognizable and socially distinct group of people.” AR 32. She offered no
argument to develop the point, however.
The BIA did not explicitly entertain the newly proposed social group. But it did
acknowledge that the Attorney General had overruled A-B-I while Marta’s appeal was pending.
See Matter of A-B- (A-B-III), 28 I. & N. Dec. 307 (B.I.A. 2021) (overruling A-B-I and reinstating
A-R-C-G-). And it explained why the group Marta had proposed to the IJ (“victims of domestic
violence”) still differed from the one found cognizable in A-R-C-G-. In A-R-C-G-, the BIA
explained, “the group was defined by an inability to leave a relationship, which we noted was not
limited solely to harm but ‘may be informed by societal expectation about gender and
subordination, as well as legal constraints regarding divorce and separation.’” AR at 4. (quoting
A-R-C-G-, 26 I. & N. Dec. at 393). But Marta’s “proposed group is defined solely by being
victimized by domestic violence and therefore is not cognizable.” Id. As for the proposed social
2
The majority attempts to paint the IJ’s treatment of Marta and the IJ’s handling of the case in an
unfavorable light. For example, the majority says, “The IJ’s reliance on A-B-I, now overruled, colored her actions
and decisions throughout the rest of the proceedings.” Maj. Op. at 4. There is no evidence to support this and no
indication that the IJ would have reached a different result after the BIA overruled A-B-I. After all, circular social
groups were not permitted before A-B-I, nor are they permitted now. The majority also claims that that the IJ
conducted only a “very brief examination of Marta.” Id. at 5. But that is hardly surprising. The brevity of the
questioning was directly related to Marta and her counsel’s having delineated a circular social group that required
little analysis under the relevant caselaw. The majority also accuses the IJ of “summarily den[ying] Marta’s
claims.” Id. That accusation is perplexing, as the IJ’s reasoned oral decision spans six transcript pages.
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 32
group of “family members of domestic violence,” the BIA concluded that Marta had abandoned
her claim for relief.
II.
The question for us is whether the BIA erred by rejecting the two particular social groups
Marta proposed to the IJ. It did not. The BIA was right that “victims of domestic violence” is
not cognizable. It has long been the rule in this circuit that “the group cannot be defined
exclusively by the fact that its members have been subject to harm.” Kante, 634 F.3d at 327
(citation and internal quotation marks omitted). That was true before A-B-I, see id., and it
remains the rule after A-B-III, see Reyes Galeana, 94 F.4th at 559. So, as the BIA correctly
concluded, the overruling of A-B-I did nothing to transform “victims of domestic violence” into a
non-circular social group. See AR 4 (Despite A-B-III, “it is nonetheless well-established . . . that
a particular social group cannot be circularly defined by the fact that it suffers
persecution . . . .”). Marta and the majority offer no case to suggest otherwise.
As for “family members of victims of domestic violence,” the BIA thought “that this
group may share a narrowing characteristic other than their risk of being persecuted.” Id. But,
even if so, the Board noted that Marta’s appeal had failed to contest the IJ’s “determination that
she ha[d] not demonstrated that her proposed groups are socially distinct within Guatemalan
society, particularly in light of her testimony that she did not believe that she or her family would
be seen as distinct or belonged to any particular group within Guatemala.” Id. at 4–5 (emphasis
added). The Board held that Marta’s failure to challenge the IJ’s social-distinction ruling on
appeal, “which is dispositive of her asylum and withholding of removal claims,” waived the
question before the BIA. Id. at 5 (“[W]here an issue addressed in an Immigration Judge’s
decision is not raised on appeal it may be deemed waived.” (citing Matter of R-A-M-, 25 I. & N.
Dec. 657, 658 n.2 (B.I.A. 2012) and Matter of O-R-E-, 28 I. & N. Dec. 330, 336 n.5 (B.I.A.
2021))).
This ruling was not in error. A “particular social group” must be socially distinct. Cruz-
Guzman, 920 F.3d at 1036. The IJ held that Marta had provided insufficient evidence of social
distinction. Marta’s brief to the BIA did not challenge that conclusion. Indeed, it did not
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 33
contest, or even mention, the IJ’s ruling with respect to her “family members of domestic
violence” claim at all. And we have held that “[t]he BIA [is] not required to consider issues not
raised to it on appeal.” Lopez-Hernandez v Garland, 2023 WL 4626785, at *5 (6th Cir. July 19,
2023). That should end our inquiry.3
But what of the group Marta alluded to in her brief before the BIA—female victims of
domestic violence? The BIA did not explicitly address it, but that was not error either.
Longstanding BIA precedent permitted the BIA to limit its review to the two groups Marta had
presented to the IJ. See Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191 (B.I.A. 2018);
Matter of A-T-, 25 I. & N. Dec. 4, 10 (B.I.A. 2009); In re J-Y-C-, 24 I. & N. Dec. 260, 261 n.1
(B.I.A. 2007). It was Marta’s duty “to clearly indicate the exact delineation of any particular
social group(s) to which she claims to belong” to the IJ. Gonzalez-Valencia v. Barr, 764 F.
App’x 510, 512 (6th Cir. 2019) (emphasis added) (quoting W-Y-C-, 27 I. & N. Dec. at 191).
And, as an appellate body, the Board’s general policy is not to consider new social groups not
first presented to the IJ. W-Y-C-, 27 I. & N. Dec. at 191–92. In unpublished authority, we have
upheld W-Y-C’s “exact delineation” and “forfeiture” standards. Gonzalez-Valencia, 764
3
The majority opinion claims that the BIA was wrong to find waiver. As the majority sees it, Marta
preserved her claim before the BIA because the IJ “fail[ed] to address ‘family members of victims of domestic
violence” at all, and Marta did challenge the IJ’s “social distinction determination” with respect to her other group,
“victims of domestic violence.” Maj. Op at 18. But if the IJ had dismissed her asylum claim without ruling on one
of her social groups, Marta needed to raise that to the BIA. She did not. She did not even mention the group
“family members of domestic violence” to the BIA. And preserving a challenge to the IJ’s “social distinction”
determination regarding a different group could not have sufficed. Be that as it may, the majority’s premises are
wrong. First, the IJ did rule on “family members of domestic violence.” The IJ noted the proposed social groups—
“victims of domestic violence and family members of victims of domestic violence.” AR 210. In the very next
paragraph, the IJ found “that such a social group or groups are not socially distinct within Guatemalan society
because the respondent has provided insufficient evidence or testimony to indicate that Guatemalan society at large
views victims of domestic violence as a particular group within society.” Id. at 210–11 (emphasis added). And the
IJ pointed to Marta’s testimony that she did not “believe[] she or anyone in her family were a member of any
particular group seen as distinct within Guatemalan society.” Id. at 211 (emphasis added). Despite the majority’s
contention to the contrary, this can only be read as the IJ concluding that Marta had not produced sufficient evidence
of social distinction for either group. If Marta believed that dispositive conclusion was in error, she needed to
appeal it to the BIA. She did not. Second, Marta did not meaningfully contest social distinction at all. Marta’s only
mention of social distinction in her brief to the BIA consists of two sentences generally describing social distinction
and this line: “In [A-R-C-G-], the [Board] further recognized female victims of domestic violence as a cognizable
and socially distinct group of people.” Id. at 32 (emphasis added). That doesn’t reference “family members of
domestic violence,” and in any event, it is not enough. We have explained that preservation requires “that [an] issue
must be reasonably developed in the petitioner’s brief to the BIA.” Khalili v. Holder, 557 F.3d 429, 433 (6th Cir.
2009).
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 34
F. App’x at 512–13. Other circuits have upheld them as well. See Cantarero-Lagos v. Barr, 924
F.3d 145, 153 (5th Cir. 2019); Honcharov v. Barr, 924 F.3d 1293, 1296–97 (9th Cir. 2019).
Even if the BIA had considered the new group, neither Marta nor the majority suggest
that merely adding “female” to “victims of domestic violence” could have changed the outcome
under our caselaw. In Rreshpja v. Gonzales, we rejected “young . . . attractive Albanian women
who are forced into prostitution” as a proposed social group. 420 F.3d 551, 555 (6th Cir. 2005).
We explained that the attribute of being “forced into prostitution” is defined by the harm; and
that, even if the group were stripped of its circular attributes, the remaining group of “young,
attractive Albanian women,” was too “subjective” and “generalized” to qualify. Id. at 555–56.
So too here. The attribute of being “victims of domestic violence” is defined by the harm. And
even stripping away that circular attribute would leave us only with “females,” a group far too
“‘sweeping’” to constitute a particular social group. Paplekaj v. Holder, 411 F. App’x 844, 846
(6th Cir. 2011) (quoting Rreshpja, 420 F.3d at 555). There can be no doubt then that the group
“female victims of domestic violence” is not a cognizable social group under our caselaw.
The BIA appropriately rejected each of the groups Marta offered to the agency. So I
would deny the petition for review.
III.
The majority opinion nonetheless vacates the Board’s denial of Marta’s applications for
asylum and withholding of removal. Despite the fact that Marta has repeatedly insisted that her
two social groups are “victims of domestic violence” and “family members of domestic
violence,” the majority faults the Board for accepting Marta’s persistent representations—
through counsel—that these are the two groups she wished to present.4 In so doing, the majority
4
The reader might wonder whether I exaggerate Marta’s insistence on her particular social groups. I do
not. Her commitment to these groups before the agency is outlined above. In her opening brief in this court, Marta
did, at times, suggest another group: “female victims of domestic violence who find themselves unable to leave said
relationships.” Petitioner Br. at 10. And at times, her case citations gave the impression that perhaps she was
suggesting she belonged to a group of indigenous Mayan women. See id. at 13, 15–16, 18–19, 21. The government
responded by arguing a lack of exhaustion. See Respondent Br. at 23–24. Marta’s reply brief then took pains to
clarify that she was not pressing any group other than the two she offered to the IJ. See Reply Br. at 1 (“Petitioners
have requested, and continue to request, classification solely as victims of domestic violence and family members of
victims of domestic violence throughout the duration of these proceedings.”); id. at 2 (“[F]rom the onset of these
proceedings, the Petitioners have always asserted their membership in the particular social group consisting of
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 35
opinion casts aside the Board’s rule that it is the applicant’s burden to “clearly indicate the exact
delineation of any particular social group(s) to which she claims to belong” to the IJ. W-Y-C-, 27
I. & N. Dec. at 191 (emphasis added) (citation and internal quotation marks omitted). In its
place, the majority opinion imposes a new obligation on the Board: it must plumb “the record as
a whole” to determine whether an “application reflects additional immutable and narrowing
characteristics separate and apart from [the] suffering of domestic violence.” Maj. Op. at 14.
This, the majority says, is a “proper circularity analysis.”
Had the BIA complied with this new rule, the majority says that the agency could have
pieced together a “particular social group” consisting of victims of domestic violence who
“(a) lived in a remote village in the mountains, where (b) there were no local authorities or
means to protect women from domestic violence, and (c) [who] had no apparent ability to escape
their abuser, who was allegedly associated with gangs, while remaining in Guatemala.” Id.
Because the Board “should have considered” these characteristics in its analysis, the majority
vacates the Board’s decision. Id. at 19–20.
Many problems plague the majority’s approach. One that should particularly concern us
is that we have no statutory authority to decide the questions the majority raises.
Section 242(d)(1) of the Immigration and Nationality Act (INA) bars courts from
reviewing final orders of removal unless the petitioner has “exhausted all administrative
remedies available to [her] as of right.” 8 U.S.C. § 1252(d)(1). This is a “mandatory” claims-
processing rule that we may not excuse, if it is timely invoked. Santos-Zacaria v. Garland, 598
U.S. 411, 421 (2023); United States v. Alam, 960 F.3d 831, 833 (6th Cir. 2020). Here, the
government timely invoked the rule in its answering brief, so we must apply it.
‘victims of domestic violence’ and ‘family members of domestic violence.’”); id. at 3 (Petitioners “have classified
themselves both as victims of domestic violence and family members of victims of domestic violence.”); id. at 4
(“Petitioners have consistently held that their particular social group is in fact victims of domestic violence and
family members of victims of domestic violence.”); id. (“Petitioners in this matter have not sought to redefine their
particular social group at any point throughout these proceedings, as to do so would alienate certain members of this
particular family from eligibility, as they would not meet the narrowing characteristics that would be necessary to
fall within the limited class of individuals as described.”); id. at 6 (“Petitioners classified as both victims of domestic
violence and family members of victims of domestic violence.”); id. (“Petitioners would again point to the fact that
they have not asserted any particular social group other than those articulated at the onset of these proceedings.”).
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 36
To satisfy the INA’s exhaustion requirements, Marta had to “identify every legal or
factual issue” before the BIA. Singh v. Rosen, 984 F.3d 1142, 1155 (6th Cir. 2021). That
included the “particular social groups” she wanted the agency to consider. See Gil-Cerqueda v.
Rosen, 841 F. App’x 815, 819 n. 3 (6th Cir. 2021); Orellana v. Sessions, 722 F. App’x 443, 449–
50 (6th Cir. 2018); De Mejia v. Sessions, 691 F. App’x 245, 248 (6th Cir. 2017); Reyes-Cardona
v. Holder, 565 F. App’x 366, 368 (6th Cir. 2014) (per curiam); see also Del Carmen Amaya-De
Sicaran v. Barr, 979 F.3d 210, 215 (4th Cir. 2020) (collecting authority from a “broad array of
our sister circuits” acknowledging the statutory prohibition against considering “newly raised
groups” on appeal). The INA’s exhaustion requirement simply prevents us from considering
new social groups in a petition for review.
As noted, Marta, through counsel, told the IJ in no uncertain terms that her two
“particular social groups” were “victims of domestic violence” and “family members of victims
of domestic violence.” Before the BIA, she failed even to mention “family members of domestic
violence” but, at times, suggested that the group might instead be “female victims of domestic
violence.” See AR 33. Even if we thought that the IJ’s mention of the “family members” group
was sufficient to preserve it, but see Khalili, 557 F.3d at 433, we would at best have statutory
authority to consider those three groups. We have no license to consider the particular social
group the majority invents for Marta here: victims of domestic violence who “(a) lived in a
remote village in the mountains, where (b) there were no local authorities or means to protect
women from domestic violence, and (c) [who] had no apparent ability to escape their abuser,
who was allegedly associated with gangs, while remaining in Guatemala.” Maj. Op. at 14.
Nor do we have statutory authority to impose on the Board the entirely new requirement
that it rummage through “the record as a whole” in search of “additional immutable and
narrowing characteristics” that might help define a viable “particular social group.” Id. The
Board has squarely placed on the applicant’s shoulders the duty to articulate to the IJ “the exact
delineation of any particular social group(s) to which she claims to belong.” W-Y-C-, 27 I. & N.
Dec. at 191. Marta did not ask the BIA to reconsider this rule; nor did she argue that the Board
or the IJ had a duty to search the record for “additional immutable and narrowing
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 37
characteristics.” Indeed, she didn’t even ask this court to impose such a requirement. So we lack
statutory authority to decide this issue as well.
One final exhaustion note. The majority hangs much of its analysis on its conclusion that
the IJ “prevented” Marta from offering testimony relevant to her proposed social group, when
the IJ told Marta to “skip the biometric information.” See, e.g., Maj. Op. at 4, 10, 14. Marta
made no such argument to the BIA, so that claim is not exhausted either. Singh, 984 F.3d at
1155. In any event, as I read the transcript, the IJ was merely asking Marta to skip testimony
about her current situation, the names of her children and grandchild, her education, and her
present marital and employment status. All of this was well established in the record and had no
bearing on Marta’s past in Guatemala. I can find no place in the record where the IJ prevented
Marta’s counsel from asking the witnesses questions about their time in Guatemala. And
Marta’s counsel offered no objection to the court’s instruction. The majority’s conclusion that
the IJ prevented Marta from making her case is not grounded in the record, and we may not
consider such a claim anyway.5
IV.
Even if the INA’s exhaustion requirement did not limit our review, the majority’s
procedural innovation should fail. The new rule is inconsistent with W-Y-C-. Yet the majority
has not adequately explained why the agency’s rule must be set aside. Courts may “hold
unlawful and set aside agency action . . . found to be arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). But the majority has provided
no reason to think that the agency’s rule is legally wrong; the closest it comes is a brief allusion
to “certain obligations under international law.” Maj. Op. at 13 (emphasis omitted) (quoting
Zometa-Orellana v. Garland, 19 F.4th 970, 979 (6th Cir. 2021)). As for the agency’s reasoning,
the majority has not shown why that was deficient either. The BIA supplied its rationale in a
5
The majority also seems to reinstate the derivative claim made on behalf of Marta’s grandson. See Maj.
Op. at 2 and n.1. But the IJ ruled that the grandson could not make a derivative claim. And after that ruling,
Marta’s counsel asked the IJ “to sever [the grandson] from the proceeding and then move him to the adjustment of
status pending his application.” AR 255. The IJ granted that motion. Id. at 266. Marta didn’t appeal those
determinations to the BIA, or this court, so it appears Marta’s grandson is no longer part of these proceedings.
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 38
published decision.6 The agency explained that “[i]t is an applicant’s burden to establish her
claim for relief or protection on the record before the Immigration Judge.” W-Y-C-, 27 I. & N.
Dec. at 191; see also 8 U.S.C. § 1158(b)(1)(B)(i) (asylum); id. § 1231(b)(3)(C) (withholding of
removal). It follows, the Board said, that the applicant “must ‘clearly indicate’ on the record
before the Immigration Judge ‘what enumerated ground(s) she is relying upon,’” including the
“exact delineation of any particular social group(s) to which she claims to belong.” W-Y-C-, 27
I. & N. Dec. at 191 (citation omitted). “[A]rticulating the contours” of the social group, the
Board explained, allows the IJ to make “relevant factual findings” related to the group (like
immutability, particularity, social distinctiveness, and membership), “which [the BIA] cannot do
in the first instance on appeal.” Id. And because the Board is an appellate body, the Board
generally will not consider particular social groups not presented to the IJ. Id. at 190–92.
The Fifth Circuit upheld the W-Y-C- rule on petition for review. Cantarero-Lagos, 924
F.3d at 151–52. Unpublished authority in this circuit also upheld it, Gonzalez-Valencia, 764 F.
App’x at 512–13, and other circuits have readily applied it. See Del Carmen Amaya-De Sicaran,
979 F.3d at 214; Honcharov, 924 F.3d at 1295–97; Mayorga-Rosa v. Sessions, 888 F.3d 379,
382–83 (8th Cir. 2018); Vazquez v. Garland, 2021 WL 5822688, at *4 (10th Cir. Dec. 8, 2021);
Lopez-Monroy v. U.S. Dep’t of Homeland Sec., 751 F. App’x 303, 307 (3d Cir. 2018). To my
knowledge, only the Fourth Circuit has rejected the W-Y-C- rule by imposing a duty on the
agency to “help the respondent articulate a cognizable social group.” Quintero, 998 F.3d at 630.
Whatever the merits of that decision, the Fourth Circuit made clear that its rule applies only to
pro se petitioners. See id. at 636 (“[W]e hold that W-Y-C-’s exact-delineation requirement is
inapplicable in pro se cases.”).
In this case, Marta has always been represented by counsel. The IJ took great pains to
impress on counsel that her proposed social groups were entirely circular. The IJ even
questioned Marta herself, evidently hoping that the witness might produce some different, non-
6
In other litigation, the government has explained that the Board’s W-Y-C- rule is an “interpretation of its
standard-of-review regulation, 8 C.F.R. § 1003.1(d)(3).” See Quintero v. Garland, 998 F.3d 612, 636 (4th Cir.
2021). Here, the government had no opportunity to explain or defend its rule at all. It had no notice that its W-Y-C-
rule was in question, since Marta did not raise the issue either before the Board or in her briefing to this court.
Indeed, in her reply brief, Marta forcefully retreated from any suggestion that she was relying on any groups other
than the two she had presented to the IJ. See supra n.4.
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 39
circular, social group. Marta identified none. And counsel insisted that there was no “other
social group or groups under which [the petitioners] will” be proceeding beyond “victims of
domestic violence and family members of domestic violence.” See AR 261. How can we fault
the IJ for ultimately allowing counsel to present her case as she wished? Being “neither diviner
nor advocate,” it is not the IJ’s role to “graft on or shave off adjectives until the proposed groups
are narrow enough to be particular, yet visible enough to be socially distinct.” Viuda de Mejia v.
Sessions, 691 F. App’x 245, 248 (6th Cir. 2017). And if Marta’s attorney was at fault for not
offering other proposed social groups, there’s a remedy for that—ineffective assistance of
counsel. See Hanna v. Holder, 740 F.3d 379, 387 (6th Cir. 2014).
V.
The majority claims there is nothing to see here. In its view, it has not proposed a new
social group for Marta. Nor has it imposed a new procedural rule on the agency. So concerns
about exhaustion and the casting aside of agency precedent are misplaced. The majority’s claims
do not hold up.
As for the social group, the majority says that it has not defined a “new” social group
beyond the one proposed by Marta’s counsel. Instead, it has merely identified additional
“narrowing characteristics separate and apart from” the domestic violence “that the Board should
have considered.” Maj. Op. at 20. I struggle to see the difference. The very definition of a
“particular social group” is a group whose members share “common, immutable
characteristic[s].” Umana-Ramos v. Holder, 724 F.3d 667, 671 (6th Cir. 2013) (citation
omitted). Adding or subtracting characteristics obviously redefines the group. Our cases have
repeatedly recognized this. We have concluded, for example, that the group “widows in El
Salvador,” presented on appeal, differed from various groups presented to the BIA: “women in
El Salvador,” “widow[s] who had declined the sexual advances of a gang member,” and
“unmarried or widowed women who either lacked a ‘male protector’ or worked.” Viuda de
Mejia, 691 F. App’x at 247–48. Similarly, we concluded that the group “Salvadoran girls,”
presented to this court, differed from the group “Salvadoran children” presented to the BIA.
Orellana v. Sessions, 722 F. App’x 443, 449, 450 (6th Cir. 2018). And, in each case we held that
the exhaustion rule prevented us from reviewing the new groups on appeal. Id.; Viuda de Mejia,
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 40
691 F. App’x at 248. The same rule forbids the majority’s attempt to add its own “narrowing
characteristics” to save the circular social groups Marta’s counsel presented to the BIA.
As for the procedural rule, the majority claims that its “proper circularity analysis” is just
business as usual, required by our precedent. That is not right. But even if it were, we could not
consider a claim that the IJ had fallen short on this score unless Marta had presented it to the
BIA. See 8 U.S.C. § 1252(d)(1); Singh, 984 F.3d at 1155. She did not. She never argued to the
BIA that the IJ had neglected the “narrowing” characteristics that the majority now says it
“should have considered.” Nor did Marta ever suggest to the BIA that the IJ had impeded her
from developing other facts relevant to her particular social group. So we are prohibited from
considering those matters.
What’s more, the majority opinion’s “proper circularity analysis” is far from business as
usual. If the majority were right, asylum seekers could present any circular group (“victims of
beatings” or “Guatemalans who are harmed”), leaving the IJ, then the BIA, and ultimately this
court with the obligation to review the record in search of immutable, narrowing, and socially
distinctive characteristics that could form a cognizable group. Essentially, the majority opinion’s
“proper circularity analysis” erases the duty of proposing a cognizable social group at all.
That approach cannot be reconciled with the Board’s rule in W-Y-C-, which makes it the
“applicant’s burden to specifically delineate her proposed social group.” 27 I. & N. Dec. at 191.
Nor do our cases support such a drastic change in the law. The majority points to Zometa-
Orellana v. Garland, 19 F.4th 970 (6th Cir. 2021), and Juan Antonio v. Barr, 959 F.3d 778 (6th
Cir. 2020). But neither is on point. In both cases, the petitioners themselves explicitly
delineated a proposed social group beyond “victims of domestic violence.” In Zometa, the
petitioner argued before the IJ and BIA that the proposed social group was “El Salvadorian
women of childbearing age in domestic partnerships.” 19 F.4th at 975, 978. By the time the
case got to this court, the caselaw that had guided both the BIA and the IJ in rejecting that group
had been vacated. Id. at 979. So the panel remanded the case for the agency to reconsider this
proposed social group under new law. Id. Although the panel noted, in dictum, that the agency
has “certain obligations under international law to extend refuge to those who qualify for such
relief” and “an independent role to assess the plausibility of the application on the record as a
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 41
whole,” nothing in that opinion holds that the agency or this court may or must redefine a
petitioner’s proposed social groups, particularly those crafted by counsel. See id. Whatever
Zometa-Orellana’s dictum means, the majority opinion loads it with more weight than it can
possibly bear.
Juan Antonio is equally unhelpful. Unlike the petitioners here, the petitioner in Juan
Antonio argued before the IJ and BIA that she was a member “of the particular social group of
‘married indigenous women in Guatemala who are unable to leave their relationship.’” 959 F.3d
at 786; see also id. at 788. The IJ and BIA found that social group cognizable but determined
that the evidence didn’t support a finding that she was a member of the group. Id. at 789. This
court vacated the agency’s fact finding on petitioner’s membership in the group because it was
not supported by substantial evidence. Id. at 792. So Juan Antonio likewise offers no support
for the majority’s new rule that the agency (or the reviewing court) must comb through the
record to construct a social group for the petitioner.
Perhaps most telling, the majority’s “keep looking” approach cannot be reconciled with
our cases addressing circularity. In Rreshpja, for example, we rejected the group the applicant
proposed, “young . . . attractive Albanian women who are forced into prostitution.” 420 F.3d at
555. We did not require the IJ, the BIA, or this court itself to keep searching the record for other
characteristics that might save the claim. The same was true in Kante, where we rejected as
circular “Kante’s submitted classification”—“women subjected to rape as a method of
government control.” 634 F.3d at 326–27. So too for Soto-Ambrocio v. Sessions, where we
rejected the proposed social group because “Soto Ambrocio defined her proposed group as
young women from Guatemala subject to abuse from families.” 724 F. App’x 456, 458 (6th Cir.
2018). In each of these cases, and many others, we analyzed the group proposed by the
petitioner, and finding it to be circular, our inquiry stopped. See also Solis-Gonzalez v. Holder,
523 F. App’x 320, 321–22 (6th Cir. 2013) (“By defining her proposed social group in terms of
those targeted by Guatemalan gangs, Solis-Gonzalez has defined the group in a circular
fashion.”); Kalaj v. Holder, 319 F. Appx 374, 377 (6th Cir. 2009) (“[A] petitioner must set out
some common, immutable social-group characteristic beyond the risks of persecution.”); Castro-
Paz v. Holder, 375 F. Appx 586, 589–91 (6th Cir. 2010) (rejecting the proposed social group of
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 42
“individuals who are targeted by gang members because they possess sensitive information
obtained through their employment” because the proposed social group was “defined by its risk
of being persecuted”); Torres v. Sessions, 728 F. App’x 584, 586–87 (6th Cir. 2018) (rejecting as
circular a group the petitioner defined as “Mexican Nationals who were kidnapped and beaten by
Knights Templar Cartel who will be targeted for violence by Knights Templar because they fled
Mexico because they were unable to meet extortion demands”).
Neither A-B-III nor A-R-C-G- changes this. Yes, as the majority notes, A-B-III requires
“careful [and] case-by-case adjudication of asylum claims.” See 28 I. & N. Dec. at 309. And
yes, A-R-C-G- says that “any claim regarding the existence of a particular social group in a
country must be evaluated in the context of the evidence presented regarding the particular
circumstances in the country in question.” 26 I. & N. Dec. at 392. But both cases asked whether
the group the petitioner proposed was cognizable. Id.; A-B-I, 27 I. & N. Dec. at 321. In A-R-G-
C-, that group was not “victims of domestic violence” but “married women in Guatemala who
are unable to leave their relationship.” A-R-C-G-, I. & N. Dec. at 389. The BIA explained that
“marital status can be an immutable characteristic where the individual is unable to leave the
relationship,” but that any “determination of [that] issue will be dependent upon the particular
facts and evidence in a case,” such as whether divorce would be “contrary to religious or other
deeply held moral beliefs or if dissolution is possible when viewed in light of religious, cultural,
or legal constraints.” Id. at 392–93. Marta did not present that social group, or anything like it,
despite warnings from the IJ that her proposed group was entirely circular. Nothing in A-R-C-G-
or A-B-III indicates that the agency had a duty to create a different group for her or to find
additional facts beyond her proposed social group of “victims of domestic violence.”
The majority opinion also asserts that its “proper circularity analysis” is consistent with
W-Y-C-, highlighting W-Y-C-’s recognition that “whether a social group is cognizable is a fact-
based inquiry made on a case-by-case basis.” W-Y-C-, 27 I. & N. Dec. at 191. But the majority
errs by concluding that the fact-intensive nature of the inquiry somehow relieves the petitioner
from setting forth the “exact delineation” of her proposed social group. W-Y-C- explains that
fact-intensiveness is instead the reason for the “exact delineation” requirement: “The
importance of articulating the contours of any proposed social group before the Immigration
No. 23-3274 Tista-Ruiz de Ajualip, et al. v. Garland Page 43
Judge is underscored by the inherently factual nature of the social group analysis.” Id. (emphasis
added). Only with a precise description of petitioner’s groups firmly in hand can the IJ find the
critical facts: “whether the group is immutable and is recognized as particular and socially
distinct in the relevant society.” Id.
That is why W-Y-C- emphasizes that the IJ “should seek clarification” “[i]f an applicant is
not clear as to the exact delineation of the proposed social group.” Id. And that is exactly what
the IJ did here. See supra at 38–39. In response, counsel made clear that Marta wished to
proceed exclusively on “victims of domestic violence” and “family members of victims of
domestic violence.” AR 261–62. The IJ had nothing left to do but consider those groups.
***
The majority opinion overturns established agency precedent and creates a new rule
requiring the agency, and this court, to unearth arguments that were never presented to it. We
don’t have statutory authority to reach that result, and even if we did, the majority has identified
nothing in our caselaw or a proper understanding of administrative law supports that position.
The agency did not err by considering the only particular social groups offered by counsel or by
concluding that they were not cognizable. We should deny the petition for review. I respectfully
dissent.