Sontos Diaz-Reynoso v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONTOS MAUDILIA DIAZ-REYNOSO, No. 18-72833

AKA Sontos Maurilla Diaz-

Reynoso, Agency No.

Petitioner, A205-256-857

v.

OPINION

WILLIAM P. BARR, Attorney

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 24, 2020*

San Francisco, California

Filed August 7, 2020

Before: Ronald M. Gould, Morgan Christen,

and Daniel A. Bress, Circuit Judges.

Opinion by Judge Christen;

Partial Concurrence and Partial Dissent by Judge Bress

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 DIAZ-REYNOSO V. BARR

SUMMARY**

Immigration

Granting Sontos Diaz-Reynoso’s petition for review of

the Board of Immigration Appeals’ decision affirming the

denial of her application for withholding of removal and

protection under the Convention Against Torture, and

remanding, the panel held that the Board misapplied Matter

of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), as well as Board

and circuit precedent, in concluding that Diaz-Reynoso’s

proposed social group comprised of “indigenous women in

Guatemala who are unable to leave their relationship” was

not cognizable, and that she failed to establish that the

government of Guatemala would acquiesce in any possible

torture.

The panel rejected Diaz-Reynoso’s contention that Matter

of A-B- was arbitrary and capricious and therefore not entitled

to Chevron deference. The panel concluded that, despite the

general and descriptive observations set forth in the opinion,

Matter of A-B- did not announce a new categorical exception

to withholding of removal for victims of domestic violence or

other private criminal activity, but rather it reaffirmed the

Board’s existing framework for analyzing the cognizability

of particular social groups, requiring that such determinations

be individualized and conducted on a case-by-case basis.

The panel observed that the Board rejected Diaz-

Reynoso’s proposed social group, with almost no analysis,

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

DIAZ-REYNOSO V. BARR 3

because it “suffered from the same circularity problem

articulated by the Attorney General in Matter of A-B-.” The

panel explained that in doing so, the Board appeared to

misapprehend the scope of Matter of A-B- as forbidding any

mention of feared harm within the delineation of a proposed

social group. The panel concluded that this was error,

explaining that Matter of A-B- did not announce a new rule

concerning circularity, but instead merely reiterated the well-

established principle that a particular social group must exist

independently of the harm asserted. The panel recognized

that a proposed social group may be deemed impermissibly

circular if, after conducting the proper case-by-case analysis,

the Board determines that the group is defined exclusively by

the fact that its members have been subjected to harm. The

panel explained, however, that a proposed social group is not

impermissibly circular merely because the proposed group

mentions harm.

The panel concluded that the Board also erred in

assuming that domestic violence was the only reason Diaz-

Reynoso was unable to leave her relationship, and in failing

to conduct the rigorous case-by-case analysis required by

Matter of A-B-. The panel therefore remanded Diaz-

Reynoso’s withholding of removal claim for the Board to

undertake the required analysis applying the correct

framework.

Because the Board failed to discuss evidence that Diaz-

Reynoso reported her husband’s abuse to authority figures in

her village community, and the government conceded remand

was warranted, the panel also remanded Diaz-Reynoso’s

CAT claim for further consideration.

4 DIAZ-REYNOSO V. BARR

Concurring in the judgment in part and dissenting in part,

Judge Bress agreed with remand of the CAT claim in light of

the government’s concession, but disagreed with the

majority’s conclusion that the Board misread Matter of A-B-

in rejecting Diaz-Reynoso’s proposed social group. In Judge

Bress’s view, Matter of A-B- held that a proposed group that

incorporates harm within its definition is not a group that

exists independently of the harm asserted in an application for

asylum or statutory withholding of removal. Judge Bress

wrote that substantial evidence supported the Board’s

assessment that Diaz-Reynoso’s social group was defined

exclusively by the harm suffered, and that the Board correctly

applied Matter of A-B-, and the circularity rule, in rejecting

Diaz-Reynoso’s proposed social group.

COUNSEL

Gary A. Watt, Stephen Tollafield, and Tiffany J. Gates,

Supervising Counsel; Shandyn H. Pierce and Hilda Kajbaf,

Certified Law Students; Hastings Appellate Project, San

Francisco, California; for Petitioner.

Joseph H. Hunt, Assistant Attorney General; John S. Hogan

and Linda S. Wernery, Assistant Directors; Susan Bennett

Green, Senior Litigation Counsel; Ashley Martin, Trial

Attorney; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.

Blaine Bookey, Karen Musalo, Neela Chakravartula, and

Anne Peterson, Center for Gender & Refugee Studies, U.S.

Hastings College of Law, San Francisco, California, for

Amicus Curiae Center for Gender & Refugee Studies.

DIAZ-REYNOSO V. BARR 5

Richard W. Mark, Amer S. Ahmed, Grace E. Hart, and

Cassarah M. Chu, Gibson Dunn & Crutcher LLP, New York

New York, for Amici Curiae Thirty-Nine Former

Immigration Judges and Members of the Board of

Immigration Appeals.

Sabrineh Ardalan, Nancy Kelly, John Willshire Carrera,

Deborah Anker, and Zachary A. Albun, Attorneys; Rosa

Baum, Caya Simonsen, and Ana Sewell, Supervised Law

Students; Harvard Immigration and Refugee Clinical

Program, Cambridge, Massachusetts; for Amicus Curiae

Harvard Immigration and Refugee Clinical Program.

Ana C. Reyes and Alexander J. Kasner, Williams & Connolly

LLP, Washington, D.C.; Alice Farmer, United Nations High

Commissioner for Refugees, Washington, D.C.; for Amicus

Curiae United Nations High Commissioner for Refugees.

6 DIAZ-REYNOSO V. BARR

OPINION

CHRISTEN, Circuit Judge:

Sontos Maudilia Diaz-Reynoso, a native and citizen of

Guatemala, petitions for review of the Board of Immigration

Appeals’ (BIA) order dismissing her appeal of an

Immigration Judge’s (IJ) order denying her application for

withholding of removal and relief under the Convention

Against Torture (CAT). Diaz-Reynoso seeks withholding of

removal based on her fear that she would be persecuted in

Guatemala on account of her membership in the particular

social group of “indigenous women in Guatemala who are

unable to leave their relationship.” Diaz-Reynoso argues she

is entitled to relief under CAT because, if returned to

Guatemala, the Guatemalan government would acquiesce in

torture she would suffer at the hands of her husband.

On her withholding claim, the BIA concluded that Diaz-

Reynoso’s proposed particular social group was not

cognizable, relying on the Attorney General’s decision in

Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018). With

respect to Diaz-Reynoso’s CAT claim, the BIA concluded

that Diaz-Reynoso failed to establish that the government of

Guatemala would acquiesce in any torture she might suffer.

Because the BIA’s decision on both bases for relief departs

from its own precedent and is contrary to this court’s case

law, we grant the petition for review and remand for further

proceedings.

I

Diaz-Reynoso was born in 1989 in the small, rural town

of Yamoj, in the Guatemalan highlands. She is a member of

DIAZ-REYNOSO V. BARR 7

the indigenous group known as Mam. In 2008, Diaz-Reynoso

moved in with a man named Arnoldo Vasquez-Juarez, who

is also Mam. Although they did not legally marry, Diaz-

Reynoso and Vasquez-Juarez had a common-law marriage

and Diaz-Reynoso refers to Vasquez-Juarez as her husband.

Vasquez-Juarez subjected Diaz-Reynoso to physical and

sexual abuse. Among other things, he forced Diaz-Reynoso

to work in the coffee fields without pay, and to have sex with

him. When Diaz-Reynoso did not comply with his demands,

Vasquez-Juarez attacked her, hitting her on her head and all

over her body, sometimes with a belt. Diaz-Reynoso testified

that she was attacked weekly, and that the resulting bruises

sometimes lasted for eight to ten days.

In 2012, after four years of living with Vasquez-Juarez,

Diaz-Reynoso fled and entered the United States without

documentation. She was apprehended, and after roughly a

month in detention, returned to Guatemala. Diaz-Reynoso

moved back in with her family in Yamoj.

As soon as Diaz-Reynoso returned, Vasquez-Juarez came

to find her. Vasquez-Juarez told Diaz-Reynoso that if she did

not return to live with him, he would kill her, kill her

daughter,1 or harm her mother. Diaz-Reynoso returned to live

with Vasquez-Juarez for about a year. The abuse got worse

during that time. Diaz-Reynoso then escaped and went to

live with a friend in another town for roughly a year. She was

in hiding during this period and did not leave her friend’s

house. After that, Diaz-Reynoso returned to her family home

1

Diaz-Reynoso had a daughter with a previous partner named Angel

Tomas Vasquez. Although Vasquez also subjected Diaz-Reynoso to

physical and sexual abuse, she has not heard from him since she left him.

8 DIAZ-REYNOSO V. BARR

in the hope that Vasquez-Juarez had forgotten about her, but

Vasquez-Juarez found Diaz-Reynoso and ordered her to come

back with him. At the urging of her mother, Diaz-Reynoso

again fled to the United States.

Diaz-Reynoso was apprehended near Topawa, Arizona on

October 29, 2014, and her prior removal order was reinstated

pursuant to 8 U.S.C. § 1231(a)(5). She pled guilty to illegal

entry in violation of 8 U.S.C. § 1325(a)(1), and was sentenced

to thirty days imprisonment.

While Diaz-Reynoso was in detention, an asylum officer

interviewed her and she expressed fear of returning to

Guatemala. The asylum officer concluded that she had

established a credible fear of persecution and referred her to

removal proceedings before an immigration judge. Diaz-

Reynoso filed an application for withholding of removal and

protection under CAT. In her counseled brief, Diaz-Reynoso

defined her particular social group as “Guatemalan

indigenous women who are unable to leave their

relationship,” and advanced evidence of a number of factors

that prevented her from leaving.

The IJ issued a written decision denying Diaz-Reynoso’s

application for withholding of removal and relief under CAT.

The IJ found Diaz-Reynoso credible, but concluded that

because much of her account was inconsistent with her own

testimony and other record evidence, “significant portions of

her testimony [were] entitled to little weight.” On the

withholding claim, the IJ did not rule on whether Diaz-

Reynoso established the existence of a cognizable particular

social group, but concluded that she did not establish

membership in her proffered particular social group, did not

show that she would more likely than not suffer persecution,

DIAZ-REYNOSO V. BARR 9

and did not demonstrate that the Guatemalan government

would be unable or unwilling to protect her. On her CAT

claim, the IJ concluded that Diaz-Reynoso failed to establish

she would more likely than not be tortured if removed to

Guatemala, and that she did not demonstrate that her past

abuse or feared future abuse would occur in the context of

government control, authority, or acquiescence. The IJ

further concluded that Diaz-Reynoso failed to seek protection

from law enforcement, and found she could safely and

reasonably avoid abusive conduct by relocating within

Guatemala. Diaz-Reynoso timely appealed to the BIA.

The BIA dismissed Diaz-Reynoso’s appeal. On

withholding, the BIA did not rely on the IJ’s rationale.

Instead, the BIA concluded that Diaz-Reynoso’s proposed

particular social group was not cognizable in light of Matter

of A-B-, 27 I. & N. Dec. at 316.2 On CAT, the BIA concluded

that Diaz-Reynoso had failed to establish that any

Guatemalan public official would more likely than not

consent to or acquiesce in any torture she may suffer.

II

We have jurisdiction to review final orders of removal

pursuant to 8 U.S.C. § 1252(a)(5). “Our review is limited to

those grounds explicitly relied upon by the [BIA].” Budiono

v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016). Where the

BIA writes its own decision, as it did here, we review the

BIA’s decision, except to the extent it expressly adopts the

IJ’s decision. Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th

Cir. 2012).

2

The Attorney General decided Matter of A-B- after the IJ issued its

decision, but before the BIA ruled on Diaz-Reynoso’s appeal.

10 DIAZ-REYNOSO V. BARR

We review de novo the BIA’s determinations on

questions of law. Pirir-Boc v. Holder, 750 F.3d 1077, 1081

(9th Cir. 2014). We review for substantial evidence the

BIA’s factual findings, which “should be upheld ‘unless the

evidence compels a contrary result.’” Budiono, 837 F.3d

at 1046 (quoting Hernandez-Mancilla v. Holder, 633 F.3d

1182, 1184 (9th Cir. 2011)). Whether Diaz-Reynoso’s

particular social group is cognizable is a question of law.

Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020);

see also Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir.

2019).

III

To qualify for withholding of removal, a petitioner must

demonstrate that, if removed to her home country, her life

would be threatened on account of any one of five

enumerated grounds: race, religion, nationality, membership

in a particular social group, or political opinion. Mendoza-

Alvarez v. Holder, 714 F.3d 1161, 1163–64 (9th Cir. 2013)

(per curiam). At issue here is “membership in a particular

social group”—specifically, the cognizability of Diaz-

Reynoso’s proffered social group. 8 U.S.C. § 1231(b)(3)(A);

see also Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir.

2016) (noting that establishing the “existence” of a

cognizable social group is a separate requirement from

establishing “membership” in the group).

The Attorney General’s and the BIA’s constructions of

ambiguous statutory terms are entitled to deference under

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). Pirir-Boc, 750 F.3d at 1081; Jiang

v. Holder, 611 F.3d 1086, 1091–92 (9th Cir. 2010). Because

we have already concluded that the phrase “particular social

DIAZ-REYNOSO V. BARR 11

group” is ambiguous, Henriquez-Rivas v. Holder, 707 F.3d

1081, 1083 (9th Cir. 2013) (en banc), we must adhere to an

agency interpretation of that term, so long as it is reasonable,

id. at 1087. An interpretation fails this step if it is “arbitrary

or capricious in substance.” Judulang v. Holder, 565 U.S. 42,

52 n.7 (2011) (quoting Mayo Found. for Med. Educ. &

Research v. United States, 562 U.S. 44, 53 (2011)); see also

Gomez-Sanchez v. Sessions, 892 F.3d 985, 993 (9th Cir.

2018).

A

The BIA first construed the phrase “particular social

group” in Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985),

overruled in part on other grounds as stated in Matter of

Mogharrabi, 19 I. & N. Dec. 439, 441 (BIA 1987). There,

the BIA explained that members of a particular social group

must share a “common, immutable characteristic.” Id. at 233.

An immutable characteristic is one that is either: (1) “beyond

the power of an individual to change,” or (2) “so fundamental

to [individual] identity or conscience that it ought not be

required to be changed.” Id. at 233–34.

Over time, “Acosta’s immutable characteristic test ‘led to

confusion and a lack of consistency as adjudicators struggled

with various possible social groups, some of which appeared

to be created exclusively for asylum purposes.’” Reyes,

842 F.3d at 1134 (quoting Matter of M-E-V-G-, 26 I. & N.

Dec. 227, 231 (BIA 2014)). Thus, beginning with Matter of

C-A-, 23 I. & N. Dec. 951, 957–59 (BIA 2006), the BIA

refined the Acosta standard by stating that an applicant must

also demonstrate that his or her proposed particular social

group has “social visibility” and “particularity.” See

12 DIAZ-REYNOSO V. BARR

Henriquez-Rivas, 707 F.3d at 1084; see also Matter of A-M-

E- & J-G-U-, 24 I. & N. Dec. 69, 74–76 (BIA 2007).

The BIA later reaffirmed that these concepts—

particularity and social visibility—are distinct requirements

for establishing membership in a cognizable social group.

Matter of S-E-G-, 24 I. & N. Dec. 579, 582 (BIA 2008);

Matter of E-A-G-, 24 I. & N. Dec. 591, 594 (BIA 2008). In

2014, the BIA continued to refine these concepts with its

decisions in Matter of M-E-V-G-, 26 I. & N. Dec. at 227, and

Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). See

Reyes, 842 F.3d at 1135–37. The BIA explained that the

particularity inquiry recognizes that the social group must be

defined by characteristics that provide a clear benchmark for

determining who falls within the group, such that the group

possesses “discrete and . . . definable boundaries.” Matter of

M-E-V-G-, 26 I. & N. Dec. at 239. Social visibility, later

renamed “social distinction,” considers whether those with a

common immutable characteristic are “set apart, or distinct,

from other persons within the society in some significant

way.” Id. at 238. As a result of this precedent, it is now well-

established that an applicant seeking relief based on

membership in a particular social group must establish that

the group is: “(1) composed of members who share a

common immutable characteristic, (2) defined with

particularity, and (3) socially distinct within the society in

question.” Id. at 237.

In 2014, the BIA also decided Matter of A-R-C-G-, 26

I. & N. Dec. 388 (BIA 2014). There, the BIA recognized as

cognizable the proposed social group of “married women in

Guatemala who are unable to leave their relationship.” Id.

at 389. Critically, in Matter of A-R-C-G-, the Government

conceded the petitioner had “established that she suffered past

DIAZ-REYNOSO V. BARR 13

harm rising to the level of persecution and that the

persecution was on account of” her particular social group.

Id. at 390. Although the BIA cited as controlling its recent

decisions in Matter of M-E-V-G- and Matter of W-G-R-, it

relied in large part on the Government’s concession that the

group was cognizable. Id. at 392–95.

B

This appeal concerns the Attorney General’s recent

interpretation of “particular social group” in Matter of A-B-,

27 I. & N. Dec. at 317. There, the Attorney General reviewed

a BIA decision that concluded the applicant’s social

group—“El Salvadoran women who are unable to leave their

domestic relationships where they have children in

common”—was cognizable. Id. at 317, 321; see also

8 C.F.R. § 1003.1(h)(1). In its review of A-B-’s appeal, the

BIA had relied heavily on its earlier precedential decision in

Matter of A-R-C-G-, 26 I. & N. Dec. at 388, so it was

necessary for the Attorney General to review that decision as

well. Matter of A-B-, 27 I. & N. Dec. at 321. Ultimately, the

Attorney General overruled Matter of A-R-C-G-, concluding

that it impermissibly deviated from the BIA’s prior precedent.

Matter of A-B-, 27 I. & N. Dec. at 317, 333, 340; see also

8 C.F.R. § 1003.1(d)(7), (g)(1).

The Attorney General found Matter of A-R-C-G-’s

reasoning to be lacking because the BIA failed to engage in

the rigorous analysis required to properly analyze a particular

social group. Matter of A-B-, 27 I. & N. Dec. at 331. The

Attorney General concluded that Matter of A-R-C-G-

“recognized a new particular social group without correctly

applying the[] standards” for asylum, id. at 317, and “[t]o the

extent that the Board examined the legal questions,” rather

14 DIAZ-REYNOSO V. BARR

than relying on the Government’s concessions, “its analysis

lacked rigor and broke with the Board’s own precedents,” id.

at 333.

The Attorney General identified several specific errors in

the BIA’s analysis of the particular social group at issue in

Matter of A-R-C-G-. First, “[t]o be cognizable, a particular

social group must ‘exist independently’ of the harm asserted.”

Id. at 334 (quoting Matter of M-E-V-G-, 26 I. & N. Dec.

at 236 n.11). In the Attorney General’s view, the BIA had

“avoided considering whether [the petitioner] could establish

the existence of a cognizable particular social group without

defining the group by the fact of persecution.” Id. In

particular, the Attorney General opined that the BIA never

considered that the group “was effectively defined to consist

of women in Guatemala who are victims of domestic abuse

because the inability ‘to leave’ was created by harm or

threatened harm.” Id. at 335.

Second, the Attorney General reiterated the precedent

establishing that not every immutable characteristic is

sufficiently precise to define a particular social group. Id.

The Attorney General questioned the viability of “[s]ocial

groups defined by their vulnerability to private criminal

activity” because those groups “likely lack” particularity

“given that broad swaths of society may be susceptible to

victimization.” Id. The Attorney General observed that the

BIA did not engage with this analysis in Matter of A-R-C-G-;

it merely concluded that the terms used to describe the group

had “commonly accepted definitions within Guatemalan

society.” Id.

Third, the BIA “provided no explanation for why it

believed that [the] evidence established that Guatemalan

DIAZ-REYNOSO V. BARR 15

society” perceived the proposed social group to be distinct,

and erred by accepting the Government’s concession as to

distinction. Id. at 336. The Attorney General found the

record lacking on this point and concluded there was

significant room for doubt that Guatemalan society viewed

the women comprising the social group “as members of a

distinct group in society, rather than each as a victim of a

particular abuser in highly individualized circumstances.” Id.

After overruling Matter of A-R-C-G-, the Attorney

General described the BIA’s reasoning in Matter of A-B- as

similarly cursory because it consisted of general citations to

Matter of A-R-C-G- and country condition reports. Id. at 340.

The Attorney General vacated the BIA’s decision in Matter

of A-B- and remanded the case to the BIA for further analysis

“under the standards articulated in [the Matter of A-B-]

opinion and in past Board decisions.” Id. at 340–41, 346.

Separate from its holding, Matter of A-B- included several

broad observations about asylum claims brought by “victims

of private criminal activity.” Id. at 317. For example, the

Attorney General acknowledged that “there may be

exceptional circumstances when victims of private criminal

activity could meet” the requirements for asylum, id., but also

suggested that, “[g]enerally, claims by aliens pertaining to

domestic violence or gang violence perpetrated by non-

governmental actors will not qualify for asylum,” id. at 320.

In the end, Matter of A-B- reaffirmed existing standards

for establishing membership in a particular social group, and

overruled Matter of A-R-C-G- because of its failure to comply

with the BIA’s precedents regarding those requirements.

Indeed, the Attorney General has since described Matter of

A-B- in precisely this manner. Matter of L-E-A-, 27 I. & N.

16 DIAZ-REYNOSO V. BARR

Dec. 581, 588–89 (A.G. 2019) (recognizing that in Matter of

A-B-, the Attorney General “reaffirmed” and “reiterated” the

established framework for analyzing the cognizability of

particular social groups, and “emphasized the importance of

a rigorous application of that legal standard”).

IV

On Diaz-Reynoso’s withholding claim, the BIA ruled that

her proposed social group was not cognizable in light of the

Attorney General’s decision in Matter of A-B-. On appeal,

Diaz-Reynoso contends that the Attorney General’s decision

in Matter of A-B- is not entitled to Chevron deference because

it is arbitrary and capricious. Diaz-Reynoso raises two

principal arguments: (1) Matter of A-B- runs counter to the

Immigration and Nationality Act’s (INA) scheme for bars to

withholding; and (2) in Matter of A-B-, the Attorney General

eliminated the requirement that particular social groups be

evaluated on a case-by-case basis. Neither argument is

persuasive.

A

Diaz-Reynoso first argues that Matter of A-B- is arbitrary

and capricious because it announced a new rule that amounts

to a categorical ban on withholding of removal for victims of

domestic violence, and therefore runs counter to the INA’s

scheme, which provides for only narrow and expressly

enumerated exceptions to withholding. Diaz-Reynoso’s

argument is that the Attorney General essentially added a new

exception to withholding of removal claims.

Diaz-Reynoso is correct that withholding of removal is

generally mandatory “if an alien ‘establish[es] that it is more

DIAZ-REYNOSO V. BARR 17

likely than not that [she] would be subject to persecution on

one of the specified grounds.’” INS v. Aguirre-Aguirre,

526 U.S. 415, 419 (1999) (first alteration in original) (quoting

INS v. Stevic, 467 U.S. 407, 429–30 (1984)); see also

8 U.S.C. § 1231(b)(3)(A). And the statute has specific

exceptions embodied in 8 U.S.C. § 1231(b)(3)(B). See

Aguirre-Aguirre, 526 U.S. at 419. For example, an applicant

is barred from obtaining withholding relief when he or she

has been convicted of a particularly serious crime, 8 U.S.C.

§ 1231(b)(3)(B)(ii), or when there are serious reasons to

believe that he or she committed a serious nonpolitical crime

before arriving in the United States, id. § 1231(b)(3)(B)(iii).

See also Gomez-Sanchez, 892 F.3d at 990; Go v. Holder,

640 F.3d 1047, 1052 (9th Cir. 2011).

We recognize that the Attorney General began the opinion

in Matter of A-B- by offering some general impressions about

asylum and withholding claims based on domestic violence

and other private criminal activity. See 27 I. & N. Dec.

at 320. For example, the Attorney General observed that

“[g]enerally, claims by aliens pertaining to domestic violence

. . . perpetrated by non-governmental actors will not qualify

for asylum,” and “in practice such claims are unlikely to

satisfy the statutory grounds for proving group persecution

that the government is unable or unwilling to address.” Id.

(emphasis added). But the holding of Matter of A-B- plainly

does not endorse any sort of categorical exception based on

these remarks and observations. In fact, the Attorney General

explicitly stated: “I do not decide that violence inflicted by

non-governmental actors may never serve as the basis for an

asylum or withholding application based on membership in

a particular social group.” Id. Far from endorsing a

categorical bar, the Attorney General emphasized that the

18 DIAZ-REYNOSO V. BARR

BIA must conduct the “rigorous analysis” set forth in the

BIA’s precedents. Id. at 340.3

Despite the general and descriptive observations set forth

in the opinion, the Attorney General’s prescriptive instruction

is clear: the BIA must conduct the proper particular social

group analysis on a case-by-case basis. Indeed, had the

Attorney General announced a categorical rule, there would

have been no reason to remand Matter of A-B- to the BIA for

analysis “under the standards articulated in this opinion and

in past Board decisions.” Id. In Matter of A-B-, the Attorney

General did not announce a new categorical exception for

victims of domestic violence or other private criminal

activity.

B

Diaz-Reynoso next argues that the Attorney General’s

opinion in Matter of A-B- is arbitrary and capricious because

it marks a dramatic and unexplained departure from the

BIA’s longstanding recognition that particular social group

determinations must be individualized and conducted on a

3

Like Diaz-Reynoso, the dissent focuses on the Attorney General’s

observation that claims based on domestic violence “are unlikely to satisfy

the statutory grounds for proving group persecution that the government

is unable or unwilling to address.” Id. at 320. But the Attorney General

explicitly declined to decide that violence “inflicted by non-governmental

actors may never serve as the basis” for asylum or withholding relief. Id.

Indeed, though such applicants face numerous hurdles—e.g., establishing

the existence of a particular social group, membership in that group,

persecution on account of that membership, and persecution that a

government is unwilling or unable to control—the Attorney General

recognized that “there may be exceptional circumstances when victims of

private criminal activity could meet these requirements.” Id. at 317.

DIAZ-REYNOSO V. BARR 19

case-by-case basis. This argument is based on a misreading

of Matter of A-B-.

In Matter of A-B-, the Attorney General reaffirmed the

BIA’s existing framework for analyzing the cognizability of

particular social groups, and faulted the BIA for failing to

apply it. See 27 I. & N. Dec. at 331. Under the BIA’s

established standards, social groups must “be determined on

a case-by-case basis.” Matter of Acosta, 19 I. & N. Dec.

at 233; see also, e.g., Matter of M-E-V-G-, 26 I. & N. Dec.

at 251. On this point, the Attorney General was not subtle.

Matter of A-B- reminded the BIA to “perform[] the detailed

analysis required” by the BIA’s precedents, emphasizing that

“[s]uch claims must be carefully analyzed under the standards

articulated in [Matter of A-B-] and in past Board decisions.”

27 I. & N. Dec. at 332, 340. “Neither immigration judges nor

the Board may avoid the rigorous analysis required in

determining asylum claims . . . .” Id. at 340. Matter of A-B-

did not announce a bright-line rule concerning applications

based on domestic violence; in fact, it underscored the need

for an intensive case-by-case analysis. Accordingly, we

decline to hold that the Attorney General’s decision in Matter

of A-B- was arbitrary or capricious.

V

A

Diaz-Reynoso next argues that, even if Matter of A-B- did

not establish a categorical rule barring relief for victims of

domestic violence and other private criminal activity, the BIA

misapprehended the scope of the Attorney General’s holding

in Matter of A-B-. On this point, we agree with Diaz-

Reynoso. The BIA seems to have erroneously understood

20 DIAZ-REYNOSO V. BARR

Matter of A-B- to forbid any mention of feared harm within

a proposed social group.

With almost no analysis, the BIA rejected Diaz-

Reynoso’s proposed particular social group because it

“suffer[ed] from the same circularity problem articulated by

the Attorney General in Matter of A-B-.” But Matter of A-B-

did not announce a new rule concerning circularity, or

identify a categorical “circularity problem.” It merely

reiterated the well-established principle that a particular

social group must exist independently of the harm asserted,

and that the BIA must consider whether a petitioner’s social

group is cognizable if it is defined without reference to the

fact of persecution. Matter of A-B-, 27 I. & N. Dec.

at 334–35. If a group is otherwise cognizable, Matter of A-B-

does not demand that it be devoid of any reference to an

applicant’s claimed persecution. To the contrary, Matter of

A-B- reiterated the longstanding rule that persecution may be

relevant to a group’s social distinction. The BIA’s

precedents, as well as our own, make this clear.

Matter of A-B- restated the rule that “a particular social

group must ‘exist independently’ of the harm asserted in an

application for asylum or statutory withholding of removal,”

27 I. & N. Dec. at 334 (quoting Matter of M-E-V-G-, 26 I. &

N. Dec. at 236 n.11), and “individuals in the group must share

a narrowing characteristic other than their risk of being

persecuted,” id. at 335 (quoting Rreshpja v. Gonzales,

420 F.3d 551, 556 (6th Cir. 2005)). This principle finds its

genesis in the BIA’s 2006 decision in Matter of C-A-, 23 I. &

N. Dec. at 957–61.

Matter of C-A- discussed the importance of social

distinction (then called social visibility) to the particular

DIAZ-REYNOSO V. BARR 21

social group analysis. Id. at 959–60. The BIA cited the

guidelines adopted by the United Nations High

Commissioner for Refugees (UNHCR) for establishing

membership in a particular social group, and observed that

the guidelines “confirm that ‘visibility’ is an important

element in identifying the existence of a particular social

group.” Id. at 960 (citing UNHCR Guidelines ¶¶ 2, 14).4 The

BIA explained that “a social group cannot be defined

exclusively by the fact that it is targeted for persecution,” but

said nothing to suggest that the mention of feared harm

somehow disqualifies an otherwise cognizable group. Id.

(quoting UNHCR Guidelines ¶ 2). In fact, the BIA explained

that “persecutory action toward a group may be a relevant

factor in determining the visibility of a group in a particular

society.” Id. (quoting UNHCR Guidelines ¶ 14).

Subsequent BIA decisions in 2007 and 2008 repeated this

refrain. See, e.g., Matter of S-E-G-, 24 I. & N. Dec. at 584

(observing that although a particular social group cannot be

“defined exclusively by the fact that its members have been

subjected to harm in the past . . . [,] this may be a relevant

factor in considering the group’s visibility in society” (citing

Matter of C-A-, 23 I. & N. Dec. at 960)); Matter of A-M-E- &

J-G-U-, 24 I. & N. Dec. at 74 (“Although a social group

cannot be defined exclusively by the fact that its members

have been subjected to harm, . . . this may be a relevant factor

in considering the group’s visibility in society.” (citing

Matter of C-A-, 23 I. & N. Dec. at 960)). In 2014, the BIA in

4

“UNHCR Guidelines” refers to UNHCR, Guidelines on

International Protection: “Membership of a particular social group” within

the context of Article 1A(2) of the 1951 Convention and/or its 1967

Protocol relating to the Status of Refugees, U.N. Doc. HCR/GIP/02/02

(May 7, 2002), available at https://www.unhcr.org/3d58de2da.pdf.

22 DIAZ-REYNOSO V. BARR

Matter of M-E-V-G- reaffirmed that the requirement that “the

social group must exist independently of the fact of

persecution” was “well established in [its] prior precedents

and is already a part of the social group analysis.” 26 I. &. N.

Dec. at 236 n.11 (citing Matter of A-M-E- & J-G-U-, 24 I. &

N. Dec. at 74); see also Matter of W-G-R-, 26 I. & N. Dec.

at 215 (“Persecutory conduct aimed at a social group cannot

alone define the group, which must exist independently of the

persecution.” (citing Matter of A-M-E- & J-G-U-, 24 I. & N.

Dec. at 74)).5

The Attorney General’s opinion in Matter of A-B-

reaffirmed this line of authority for assessing the

cognizability of particular social groups, citing the BIA’s

prior articulations of the rule in cases like Matter of M-E-V-

G-, 26 I. &. N. Dec. at 236 n.11, and Matter of W-G-R-, 26 I.

& N. Dec. at 215, and the Sixth Circuit’s decision in

5

Our sister circuits’ published opinions have widely acknowledged

the rule that persecution alone cannot define the social group. See, e.g.,

Perez-Rabanales v. Sessions, 881 F.3d 61, 67 (1st Cir. 2018) (“[W]here

a proposed group is defined only by the characteristic that it is persecuted,

it does not qualify as a ‘social group.’” (emphasis added) (citation

omitted)); Paloka v. Holder, 762 F.3d 191, 198 (2d Cir. 2014) (“[A]

particular social group is not cognizable merely because members have

been subjected to harm . . . .” (emphasis added) (quotation marks and

citations omitted)); Orellana-Monson v. Holder, 685 F.3d 511, 518–19

(5th Cir. 2012) (“[T]he risk of persecution alone does not create a

particular social group . . . .” (emphasis added) (citation omitted));

Rivera-Barrientos v. Holder, 666 F.3d 641, 650 (10th Cir. 2012) (“[A]

social group cannot be defined exclusively by the fact that its members

have been subjected to harm . . . .” (emphasis added) (citation omitted));

Jonaitiene v. Holder, 660 F.3d 267, 271 (7th Cir. 2011) (“The social group

. . . cannot be defined merely by the fact of persecution.” (emphasis

added)); Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1198 (11th Cir.

2006) (“The risk of persecution alone does not create a particular social

group . . . .” (emphasis added)).

DIAZ-REYNOSO V. BARR 23

Rreshpja, which explained that the “individuals in the group

must share a narrowing characteristic other than their risk of

being persecuted.” Matter of A-B-, 27 I. & N. Dec. at 334–35

(quoting Rreshpja, 420 F.3d at 556); see also Matter of L-E-

A-, 27 I. & N. Dec. at 595 (observing that a proposed social

group must have an “‘existence independent of’ the alleged

persecutors,” and that “the risk of persecution alone can never

create a particular social group” (citation omitted)). In

Rreshpja, the court further observed that persecution may not

be “the touchstone defining the group.” 420 F.3d at 556

(citation omitted). The group at issue in Rreshpja—young,

attractive Albanian women who were forced into

prostitution—lacked a “narrowing characteristic” because, if

viewed without reference to being forced into prostitution, the

proposed group would allow “virtually any young Albanian

woman who possesse[d] the subjective criterion of being

‘attractive’” to obtain asylum. Id.; see also Matter of A-B-,

27 I. & N. Dec. at 335.

B

Despite this solid and consistent line of precedent, on

appeal the Government and dissent defend the BIA’s

summary rejection of Diaz-Reynoso’s particular social group

on the grounds that it “suffers from the same circularity

problem articulated by the Attorney General in Matter of

A-B-.” They concede that the fact of persecution may be

relevant to social distinction in a particular society, but insist

that a proposed particular social group may not include

mention of feared persecution. In the Government’s and

dissent’s view, in order to exist independently from the

petitioner’s feared harm, a proposed group may not refer to

that harm at all. We disagree. The idea that the inclusion of

persecution is a sort of poison pill that dooms any group does

24 DIAZ-REYNOSO V. BARR

not withstand scrutiny. See Matter of C-A-, 23 I. & N. Dec.

at 960 (confirming that “‘visibility’ is an important element

in identifying the existence of a particular social group,” and

that “persecutory action toward a group may be a relevant

factor in determining the visibility of a group in a particular

society” (citation omitted)).

The BIA has taken pains to state that “the shared trait of

persecution does not disqualify an otherwise valid social

group.” Matter of M-E-V-G-, 26 I. & N. Dec. at 243 (citing

Cece v. Holder, 733 F.3d 662, 671 (7th Cir. 2013) (en banc));

see also Paloka, 762 F.3d at 198. Though “persecutory

conduct alone cannot define the group,” Matter of M-E-V-G-,

26 I. & N. Dec. at 242 (emphasis added); see also id. at 243

(a particular social group “cannot be defined merely by the

fact of persecution” (quoting Cece, 733 F.3d at 671)),

persecution itself “may be the catalyst that causes” a society

to distinguish a group in a meaningful way and consider it

distinct, id. at 243; see also supra Part V.A.

Because BIA precedent dictates that a particular social

group cannot be defined “exclusively” by harm, the

Government and dissent insist that BIA precedent does not

permit a group to include any mention of harm. To reach this

conclusion, they ignore the word “exclusively”—along with

similar limiting language in the BIA’s decisions and those

from our sister circuits, supra Part V.A—and argue that in

order for a group to “exist independently” from harm, its

description must not refer to harm at all. But as we have

explained, BIA precedent confirms that a group that exists

independent of persecution is simply a group that shares an

immutable characteristic other than the persecution it

suffers—i.e., a group that shares a “narrowing characteristic.”

Matter of A-B-, 27 I. & N. Dec. at 335 (quoting Rreshpja,

DIAZ-REYNOSO V. BARR 25

420 F.3d at 556); Matter of W-G-R-, 26 I. & N. Dec. at 215;

see also Matter of L-E-A-, 27 I. & N. Dec. at 595.

The BIA articulated an example in Matter of M-E-V-G-

that leaves no room for doubt on this score.6 There, the BIA

posited that a proposed social group composed of former

employees of a country’s attorney general may not be valid

for asylum purposes, even though the group is discrete and

the members’ shared past experience is immutable, because

“the society may not consider these employees to be

meaningfully distinct within society in general.” Id. at 242.

However, the BIA explained, if the government began

persecuting those people, it is possible that society would

then discern that this group of individuals is distinct in some

significant way. Id. at 243. In this example, the act of

persecution by the government causes the society to

recognize the former employees as distinct, “but the

immutable characteristic of their shared past experience exists

independent of the persecution.” Id.

The UNHCR Guidelines provide a similar example

concerning left-handed people.7 Left-handed people possess

an immutable characteristic that is defined with particularity,

but the group lacks social distinction—that is, the relevant

society may not consider the characteristic to set apart the

group in a meaningful way. See UNHCR Guidelines ¶ 14. If,

however, left-handed people were subjected to persecution

6

This example is drawn from the Seventh Circuit’s decision in

Sepulveda v. Gonzales, 464 F.3d 770, 771 (7th Cir. 2006).

7

The BIA has recognized that although the views of the UNHCR are

not binding, they “are a useful interpretative aid.” Matter of M-E-V-G-,

26 I. & N. Dec. at 248.

26 DIAZ-REYNOSO V. BARR

because they were left-handed, their immutable characteristic

could become recognizable and distinct within their society.

Id. In this example, it is the attribute of being left-handed—

and not the persecutory acts—that would identify members of

this particular social group. Id. Thus, the group possesses an

underlying immutable characteristic, the fact of persecution

establishes the group’s distinction within the relevant society,

and because the group’s members can be identified by means

other than the feared persecution, it shares a narrowing

characteristic and is cognizable. 8

If we were to follow the reasoning suggested by the

Government and dissent, neither the BIA’s group of former

employees of a country’s attorney general, nor the UN High

Commissioner’s group of left-handed people, would be

cognizable if members of those groups included mention of

their feared persecution in their proposed social groups. The

particular formulation of the groups—e.g., “former

employees of the attorney general” versus “former employees

of the attorney general, who are being hunted down and

killed,” or “left-handed people” versus “left-handed people

who have been persecuted”—makes all the difference to the

group’s cognizability for the Government and dissent

because, in their view, groups that include mention of feared

harm cannot exist independently of that harm.

Though it cannot be contested that persecution may be

relevant to a group’s social distinction, the dissent argues that

the “group itself” cannot “be defined in some way by that

persecution,” and the Government echoes this view.

8

This example is borrowed from a “widely cited” decision. UNHCR

Guidelines ¶ 14 (citing Applicant A v. Minister for Immigration and Ethnic

Affairs (1997) 190 CLR 225, 264 (Austl.)).

DIAZ-REYNOSO V. BARR 27

In advancing this argument, the Government and dissent

confuse the definition of a “particular social group” with one

of its components—i.e., the group’s shared immutable

characteristic—and thereby treat every element of a proposed

social group as necessary to the group’s immutable

characteristic. This is contrary to BIA precedent, which

unequivocally establishes that a group’s persecution may be

relevant to a different component: social distinction. See

Matter of M-E-V-G-, 26 I. & N. Dec. at 242–43. Further, it

is important to recognize that the question is not whether

feared persecution can serve as an immutable characteristic;

the question is whether mention of feared persecution

disqualifies an otherwise cognizable social group.

The Government and dissent argue that by failing to treat

harm as integral to a social group’s definition—i.e., by failing

to treat it as part of the group’s shared immutable

characteristic—we advocate a rule that allows courts to

impermissibly rewrite proposed social groups. See Matter of

W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191–92 (BIA 2018)

(noting that a petitioner must delineate his or her proposed

social group before the IJ, and may not reframe the group on

appeal). We agree that courts cannot rewrite proposed social

groups, but nothing requires us to analyze them as

mechanistically as the dissent and Government urge.

As we have explained, the BIA’s precedent establishes

that we may consider the entirety of a proffered social group

to determine whether the petitioner has established all the

requirements for a cognizable group: an immutable

characteristic, particularity, and social distinction. Matter of

M-E-V-G-, 26 I. & N. Dec. at 227. We do not rewrite the

petitioner’s proposed social group by recognizing that the

mention of harm in a proposed social group may be relevant

28 DIAZ-REYNOSO V. BARR

to the group’s social distinction, nor does this prevent us from

examining whether the petitioner’s proffered group shares an

immutable characteristic other than harm. To be sure, it is

the applicant’s burden to demonstrate the existence of a

cognizable particular social group. Reyes, 842 F.3d at 1132

n.3; see also Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. at

191 (noting that “it is an applicant’s burden to specifically

delineate her proposed social group”); Matter of A-T-, 25 I. &

N. Dec. 4, 10 (BIA 2009). And it is the applicant’s burden to

establish membership in that group. Reyes, 842 F.3d at 1132

n.3. But nothing in the precedential framework constrains the

petitioner to specifying a proposed group that mentions only

the proffered immutable characteristic, and no more.

The purpose of asylum and withholding is to provide

relief to people who have been persecuted in foreign lands

because of their race, religion, nationality, membership in a

particular social group, or political opinion. 8 U.S.C.

§§ 1158(b)(1)(B)(i), 1231(b)(3)(A); see also INS v. Cardoza-

Fonseca, 480 U.S. 421, 423–24, 427–29 (1987). The

Government and dissent do not explain why a person seeking

relief on the basis of membership in a particular social group

should be required to omit any mention of threatened

persecution. Notably, the rule they propose is not limited to

victims of domestic violence. Under the interpretation urged

by the Government and dissent, a Tutsi fleeing Rwanda

during the Rwandan Civil War would be denied relief if he or

she included in the description of the Tutsi social group that

Tutsis had been targeted in a campaign of genocide. See

Donchev v. Mukasey, 553 F.3d 1206, 1220 (9th Cir. 2009)

(“When the Hutus in Rwanda murdered as many Tutsis

as they could, the persecution was not on account of

‘race, religion, nationality, . . . , or political opinion,’” but

“being Tutsi . . . fits well into the ‘particular social group’

DIAZ-REYNOSO V. BARR 29

category.” (first alteration in original) (quoting 8 U.S.C.

§ 1101(a)(42)(A))). Tellingly, the dissent’s only response to

this hypothetical is that such person fleeing genocide would

not need to mention that harm because he or she could rely on

Tutsi ethnicity to establish group membership. Of course

they could, and that is precisely the point; the mere mention

of harm does not categorically disqualify an otherwise

cognizable social group.

The dissent asserts that no court has endorsed the view

that a proposed social group is not disqualified if it includes

mention of feared persecution. But the most recent decision

doing so is Grace v. Barr, — F.3d —, 2020 WL 4032652

(D.C. Cir. 2020). There, the Government argued that a group

“must be separate from the harm, not consisting of the harm,

even in part,” and the D.C. Circuit rejected this argument as

“flatly inconsistent” with Matter of A-B-. Id. at *16 (internal

quotation marks omitted); see also id. (noting the

Government’s concession at oral argument that the group

“Guatemalan women unable to leave their relationships”

would not be “categorically barred,” and that “its validity

would turn on the specific factual circumstances of an

applicant’s claim”).

The case-by-case approach we describe is the very one

articulated by Matter of A-B-. There, the Attorney General

faulted the BIA’s decision in Matter of A-R-C-G- because it

“avoided considering whether [the petitioner] could establish

the existence of a cognizable particular social group without

defining the group by the fact of persecution.” Matter of

A-B-, 27 I. & N. Dec. at 334. The Attorney General

explained that members of a cognizable group “must share a

narrowing characteristic other than their risk of being

persecuted.” Id. at 335 (emphasis added) (quoting Rreshpja,

30 DIAZ-REYNOSO V. BARR

420 F.3d at 556); see also, e.g., Sarhan v. Holder, 658 F.3d

649, 655 (7th Cir. 2011) (concluding that proposed social

group of “women in Jordan who have (allegedly) flouted

repressive moral norms, and thus who face a high risk of

honor killing” was cognizable because it was not defined

solely by its risk of persecution); Rodriguez v. U.S. Att’y

Gen., 735 F.3d 1302, 1310 (11th Cir. 2013) (concluding that

proposed social group of “members of a family targeted by a

drug-trafficking organization because a family member

sought criminal justice against a member of the drug-

trafficking organization” was not cognizable because its

“defining attribute” was its persecution, and the “risk of

persecution alone does not create a particular social group”

(citation omitted)); Matter of S-E-G-, 24 I. & N. Dec. at 584,

588 (concluding that proposed social group of “young

Salvadorans who have been subject to recruitment efforts by

criminal gangs” was not cognizable because aside from being

“subjected to harm in the past (i.e., forced gang recruitment

and any violence associated with that recruitment),” the

proposed group lacked a common immutable characteristic).

If the petitioners’ mere reference to harm defeated these

proposed social groups, any further analysis of the groups

would have been unnecessary. As the D.C. Circuit

recognized in Grace, Matter of A-B- requires a “careful[]”

examination of a group to “ascertain whether it contains any

attributes that ‘exist independently of the harm asserted.’”

2020 WL 4032652, at *14–15. This is because a group

“exists independently of the harm suffered” so long as

persecution is not “what defines the contours of the group.”

See id. at *2 (citation omitted).

DIAZ-REYNOSO V. BARR 31

We recognize that, consistent with Matter of A-B-,

numerous courts have deemed proposed social groups that

referred to feared harm to be impermissibly circular. In some

circumstances, this will be the correct result. Nothing in our

analysis negates the precedent establishing that a group may

be deemed impermissibly “circular” if, after conducting the

proper case-by-case analysis, the BIA determines that the

group is “defined exclusively by the fact that its members

have been subjected to harm.” Matter of M-E-V-G-, 26 I. &

N. Dec. at 242 (quoting Matter of A-M-E- & J-G-U-, 24 I. &

N. Dec. at 74). Courts have frequently held, after proper

analysis, that groups lacking a common characteristic aside

from persecution are not cognizable. See, e.g., Amezcua-

Preciado v. U.S. Att’y Gen., 943 F.3d 1337, 1345 (11th Cir.

2019) (concluding that proposed group lacked a “‘narrowing

characteristic’ other than the[] risk of being persecuted”);

Melnik v. Sessions, 891 F.3d 278, 286 (7th Cir. 2018)

(concluding that, other than persecution, “the only common

characteristic of members of the proffered class [was] their

status as small business owners”); Rreshpja, 420 F.3d at 556

(concluding that, aside from the fact of persecution, the group

included all “young, attractive Albanian women”). These

groups may also suffer from other deficiencies, such as a lack

of particularity or social distinction, but this appeal does not

require that we consider those aspects of the particular social

group analysis. Here, we clarify that the conclusion that a

proposed social group is impermissibly circular may not be

reached summarily merely because the proposed group

mentions harm.

32 DIAZ-REYNOSO V. BARR

The dissent cites to a plethora of unpublished decisions

that rejected groups similar to the one advanced here, arguing

that our decision is inconsistent with them.9 The dissent’s

reliance on these decisions reflects its mistaken premise that

the rejection of a social group in one case suggests that a

similar group may be rejected summarily in another. This

accounts for the dissent’s approval of the BIA’s one-sentence

analysis in this case. But it also contravenes binding

authority establishing that whether a particular social group

is cognizable “requires a fact-specific inquiry based on the

evidence in a particular case.” Matter of L-E-A-, 27 I. & N.

Dec. at 591.

The dissent also conflates the requirement to show nexus

with the requirements for establishing a particular social

group, and argues that if petitioners were allowed to include

mention of their claimed persecution, they would somehow

be relieved of the burden to establish a nexus between the

persecution and their membership in the group. What the

dissent overlooks is that this is only a concern if social groups

are “defined exclusively” by the harm the petitioners identify.

Matter of C-A-, 23 I. & N. Dec. at 960 (quoting UNHCR

Guidelines ¶ 14). If the only immutable characteristic is a

feared harm, the group becomes an impermissible “‘catch all’

applicable to all persons fearing persecution.” Id. (citing

UNHCR Guidelines ¶ 2); see also Castillo-Arias, 446 F.3d at

1198. That problem does not exist if a narrowing

9

Unpublished decisions are not precedent precisely because they are

“not written in a way that will be fully intelligible to those unfamiliar with

the case, and the rule of law is not announced in a way that makes it

suitable for governing future cases.” Hart v. Massanari, 266 F.3d 1155,

1178 (9th Cir. 2001). Thus, contrary to the dissent’s urging, we cannot

discern the reasoning of those decisions simply from their outcome.

DIAZ-REYNOSO V. BARR 33

characteristic allows the group to be defined without

reference to feared persecution. Matter of A-B- is clear on

this point. 27 I. & N. Dec. at 335 (noting that a group defined

by its persecution “moots the need to establish actual

persecution,” and it is “[f]or this reason” that the group

members must share a “narrowing characteristic” (emphasis

added) (citation omitted)).

C

The BIA ruled that Diaz-Reynoso’s proposed social group

was not cognizable because it assumed her inability to leave

her relationship was attributable to domestic violence, and

because it understood Matter of A-B- to say that the mention

of domestic violence disqualifies a particular social group.

The BIA’s decision consisted of a citation to Matter of A-B-

and an assertion that Diaz-Reynoso’s group suffered from the

same “circularity problem” identified in that case. Without

more, this was plainly contrary to the Attorney General’s

requirement that claims must be carefully analyzed under the

framework established by the BIA’s precedents. Matter of

A-B-, 27 I. & N. Dec. at 331–32, 339–40; see also Pirir-Boc,

750 F.3d at 1084. There are no shortcuts.

There are at least two problems with the BIA’s reasoning

in Diaz-Reynoso’s appeal. First, as explained, the BIA

misunderstood Matter of A-B-’s holding. Second, it is not

clear that the reason Diaz-Reynoso was “unable to leave” her

relationship was limited to domestic violence. Rather, the

BIA assumed that domestic violence was the only reason

34 DIAZ-REYNOSO V. BARR

Diaz-Reynoso was unable to leave her relationship. The

dissent makes the same assumption.10

Diaz-Reynoso described her particular social group as

“indigenous women in Guatemala who are unable to leave

their relationship.” The persecution Diaz-Reynoso fears is

undoubtedly the abuse perpetrated by her husband, but before

the immigration judge, she advanced evidence of economic,

societal, and cultural factors that also may have prevented her

from leaving her relationship. These included her financial

dependence on her husband, limited education, rural location,

and an ingrained Mayan cultural view that a relationship does

not end until the man so agrees.11 Contrary to the dissent’s

assertion, Diaz-Reynoso identified these factors in her brief

to the BIA.

The IJ made no findings about the cognizability of Diaz-

Reynoso’s particular social group. Instead, the IJ ruled that

Diaz-Reynoso failed to establish her membership in her

10

The dissent states that the IJ “made clear that the entire basis for

petitioner’s proposed social group was her fear of domestic violence.”

This is incorrect. The IJ made no findings about the basis for Diaz-

Reynoso’s proposed social group, and instead relied on her inability to

show membership in the group she advanced. The dissent also attributes

a finding to the BIA that it did not make—that Diaz-Reynoso’s inability

to leave “was created by harm or threatened harm.” The BIA did not

make this ruling, and we cannot supply our own reasoning in lieu of that

actually offered by the BIA. See, e.g., Recinos De Leon v. Gonzales,

400 F.3d 1185, 1189 (9th Cir. 2005).

11

There are many reasons a petitioner might be unable to leave a

relationship, including a variety of “cultural, societal, religious, economic,

or other factors.” De Pena-Paniagua v. Barr, 957 F.3d 88, 94 (1st Cir.

2020); see also Grace, 2020 WL 4032652, at *14–15; Amezcua-Preciado,

943 F.3d at 1345.

DIAZ-REYNOSO V. BARR 35

proposed social group because she did not establish she was

unable to leave her relationship. On appeal, the BIA relied on

entirely different grounds. It plucked one fact identified by

Diaz-Reynoso—that her husband physically abused her—and

ruled that her proposed social group, which it presumed to be

premised solely on domestic violence, suffered from the same

“circularity problem” identified in Matter of A-B-. By

reaching this conclusion without engaging in the analysis

underscored by the Attorney General, the BIA committed the

very same error it made in Matter of A-B-. See Matter of

A-B-, 27 I. & N. Dec. at 331, 340; see also Grace, 2020 WL

4032652, at *15 (noting that “whether a given group is

circular depends on the facts of the particular case”).

Even if Diaz-Reynoso’s social group necessarily

incorporated her husband’s physical abuse, the best indication

that this does not categorically disqualify her social group is

that the Attorney General remanded Matter of A-B- for the

BIA to conduct a proper analysis. 27 I. & N. Dec. at 340.

The group at issue in Matter of A-B- was “El Salvadoran

women who are unable to leave their domestic relationships

where they have children in common.” Id. at 321. Rather

than simply invalidating that group, the Attorney General

remanded so the group could be “carefully analyzed under the

standards articulated in this opinion and in past Board

decisions, such as M-E-V-G- and W-G-R-.” Id. at 340.

The dissent brushes aside the Attorney General’s remand

in Matter of A-B-, arguing the remand in that case was

nothing more than “standard remand language,” and urging

that Matter of A-B- reiterated a rule that any mention of harm

disqualifies a social group as impermissibly circular without

further analysis. Accepting this interpretation would require

us to ignore the Attorney General’s clear language about the

36 DIAZ-REYNOSO V. BARR

mistakes made in Matter of A-B-, including that we cannot

“avoid the rigorous analysis required” by the BIA’s

precedents, id. at 340, as well as the Attorney General’s

acknowledgment that “there may be exceptional

circumstances when victims of private criminal activity could

meet” the requirements for relief, id. at 317. See also id.

at 339 (observing 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” (citation omitted)).

Because the BIA avoided the case-specific inquiry demanded

by Matter of A-B- and the BIA’s precedents, we grant Diaz-

Reynoso’s petition and remand her withholding claim.

D

Diaz-Reynoso argues that the panel should analyze her

proposed particular social group under the proper framework

in the first instance. We decline to do so.

A panel may only affirm on the grounds set forth in the

BIA’s decision. Recinos De Leon, 400 F.3d at 1189. When

the BIA’s decision “cannot be sustained upon its reasoning,

[the court] must remand to allow the agency to decide any

issues remaining in the case.” Andia v. Ashcroft, 359 F.3d

1181, 1184 (9th Cir. 2004) (per curiam); see also INS v.

Ventura, 537 U.S. 12, 16 (2002); Azanor v. Ashcroft,

364 F.3d 1013, 1021 (9th Cir. 2004).

VI

Diaz-Reynoso also sought relief pursuant to the

Convention Against Torture. CAT’s implementing

regulations require the agency to consider “all evidence

DIAZ-REYNOSO V. BARR 37

relevant to the possibility of future torture,” and we have

reversed where the agency has failed to do so. Parada v.

Sessions, 902 F.3d 901, 914–15 (9th Cir. 2018) (quoting

8 C.F.R. § 1208.16(c)(3)); see also Cole v. Holder, 659 F.3d

762, 771–72 (9th Cir. 2011); Kamalthas v. INS, 251 F.3d

1279, 1284 (9th Cir. 2001). Here, we conclude that the BIA

failed to consider all relevant evidence, so we remand Diaz-

Reynoso’s CAT claim for further consideration.

To qualify for relief under CAT, an alien must establish

it is more likely than not that he or she would be tortured if

returned to the proposed country of removal. Garcia-Milian

v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (citing

8 C.F.R. § 208.16(c)(2)). Torture is any act by which severe

pain or suffering is intentionally inflicted for such purposes

as obtaining information or a confession, punishing an act

committed or one suspected of having been committed,

intimidating or coercing, or for any reason based on

discrimination of any kind. Singh v. Whitaker, 914 F.3d 654,

663 (9th Cir. 2019) (citing 8 C.F.R. § 1208.18(a)(1)).

Torture must be inflicted by, at the instigation of, or with

the consent or acquiescence of, a public official or other

person acting in an official capacity. Zheng v. Ashcroft, 332

F.3d 1186, 1188 (9th Cir. 2003) (citing 8 C.F.R.

§ 208.18(a)(1)). “Public officials acquiesce in torture if they:

‘(1) have awareness of the activity (or consciously close their

eyes to the fact it is going on); and (2) breach their legal

responsibility to intervene to prevent the activity because they

are unable or unwilling to oppose it.” Barajas-Romero v.

Lynch, 846 F.3d 351, 363 (9th Cir. 2017) (quoting Garcia-

Milian, 755 F.3d at 1034). The public official need not have

actual knowledge of the specific incident of torture; instead,

it is sufficient that the public official is aware that torture of

38 DIAZ-REYNOSO V. BARR

the sort feared by the applicant occurs and remains willfully

blind to it. Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir.

2013); see also Ornelas-Chavez v. Gonzales, 458 F.3d 1052,

1059–60 (9th Cir. 2006).

Diaz-Reynoso, who was deemed generally credible,

testified that she told a man in her community named

Sebastian about Vasquez-Juarez abusing her. Sebastian was

“like an assistant mayor” in Yamoj, and according to Diaz-

Reynoso, he had the power to arrest Vasquez-Juarez but did

not do so. Instead, Sebastian told her that the abuse she

suffered was a personal problem. Diaz-Reynoso further

testified that she witnessed her husband bribing Sebastian.

Diaz-Reynoso also reported her abuse to a man named

Avelino, who she described as a mayor figure in her village.

Avelino told Vasquez-Juarez that what he was doing was not

right, but Vasquez-Juarez responded that Avelino could not

tell him what to do because Vasquez-Juarez “kn[e]w the

law[].” Diaz-Reynoso did not attempt to report the abuse to

anyone else, as she lacked the resources to do so. Her

mountain village was quite remote, with the nearest police

station two hours away by car.

The BIA did not discuss the evidence that Diaz-Reynoso

reported her abuse to two different authority figures in her

remote, rural community and that neither of them helped her.

The BIA’s statement that it “consider[ed] all of the evidence,”

does not suffice in this context. See Cole, 659 F.3d at 772.

Indeed, after briefing in this appeal was completed, the

Government conceded that the BIA failed to discuss

potentially dispositive evidence regarding the issue of

governmental acquiescence, specifically acknowledging that

the BIA failed to consider whether Sebastian and Avelino

DIAZ-REYNOSO V. BARR 39

qualified as public officials within the meaning of 8 C.F.R.

§ 208.18(a)(1). The Government agreed that, remand is

required under these circumstances. Accordingly, we remand

for reconsideration of Diaz-Reynoso’s CAT claim.

VII

Contrary to the dissent’s concern, there is no confusion

about the next steps for this case. On the CAT claim, the

Government now stipulates that the failure to consider the

reports Diaz-Reynoso made to people in her village requires

remand. On the withholding claim, the BIA may consider in

the first instance Diaz-Reynoso’s proffered social group

under the required framework. See Matter of W-Y-C- & H-O-

B-, 27 I. & N. Dec. at 191; see also Matter of L-E-A-, 27 I. &

N. Dec. at 591.12 In addition or in the alternative, the BIA

may choose to rule on the other issues Diaz-Reynoso

appealed and briefed to the BIA—membership in her claimed

social group, a clear probability of persecution, and

persecution the Guatemalan government is unable or

unwilling to control.

Our decision today confirms a rule that has already been

firmly established in the BIA’s decisions. Beginning with its

2006 decision in Matter of C-A-, the BIA’s precedent has

been premised on the rule that persecutory action taken

toward a group can be relevant to that group’s social visibility

(now social distinction). It is equally clear that the mere

mention of persecutory action does not defeat an otherwise

12

Because the BIA cannot engage in fact-finding, 8 C.F.R.

§ 1003.1(d)(3), the BIA may find it necessary to remand for the IJ to

decide any underlying factual issues. Matter of W-Y-C- & H-O-B-, 27 I.

& N. Dec. at 191.

40 DIAZ-REYNOSO V. BARR

cognizable social group. Matter of A-B- did not hold

otherwise, and in fact expressly reaffirmed the BIA’s

longstanding precedent.

We remand Diaz-Reynoso’s claims to the BIA for further

consideration.

PETITION FOR REVIEW GRANTED;

REMANDED.

BRESS, Circuit Judge, concurring in the judgment in part and

dissenting in part:

In Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), the

Attorney General revisited a recurring problem in the area of

immigration law: the circumstances under which victims of

domestic violence may seek asylum or withholding of

removal. The Attorney General recognized that domestic

abuse is “vile” but determined that under our immigration

laws, claims of persecution based on domestic violence will

generally “not qualify” for relief. Id. at 320, 346. The court

today purports to uphold Matter of A-B- but in fact largely

disregards it, creating an uncertain legal landscape and widely

opening the door to the types of claims Matter of A-B- said

were largely unavailable.

Under the Immigration and Nationality Act (INA), “the

Attorney General may not remove an alien to a country if the

Attorney General decides that the alien’s life or freedom

would be threatened in that country because of the alien’s

race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A)

DIAZ-REYNOSO V. BARR 41

(emphasis added). In Matter of A-B-, the Attorney General

reiterated the government’s longstanding approach to the

ambiguous term “particular social group”: “[t]o be

cognizable, a particular social group must exist independently

of the harm asserted in an application for asylum or statutory

withholding of removal.” 27 I. & N. Dec. at 334 (emphasis

in original) (quotations omitted). Because an applicant must

show persecution “because of” (or, for asylum, “on account

of”) membership in a “particular social group,” embedding

the harm in the definition of the group itself would be

impermissibly circular. Id. at 335, 338.

In Matter of A-B-, the Attorney General determined that

the Board of Immigration Appeals (BIA) erred in recognizing

the proposed social group “married women in Guatemala who

are unable to leave their relationship.” Id. at 319, 334. The

reason was that such a proposed group was impermissibly

circular, “effectively defined to consist of women in

Guatemala who are victims of domestic abuse because the

inability ‘to leave’ was created by harm or threatened harm.”

Id. at 335. The Attorney General in Matter of A-B- was

unequivocal: when these issues are “properly analyzed,” it is

“clear that the particular social group [is] not cognizable.” Id.

at 334.

Citing domestic violence at the hands of her common-law

husband, the petitioner in this case sought withholding of

removal based on the proposed social group “indigenous

women in Guatemala who are unable to leave their

relationship.” Recognizing that Matter of A-B- presented an

obvious obstacle to her claim, petitioner’s primary argument

on appeal is that the Attorney General’s decision was

arbitrary and capricious and unentitled to deference under

Chevron U.S.A. Inc. v. Natural Resources Defense Council,

42 DIAZ-REYNOSO V. BARR

Inc., 467 U.S. 837 (1984). The court today rejects that

challenge. But the majority nevertheless concludes that the

BIA in this case misinterpreted Matter of A-B- in rejecting a

proposed social group that is in all relevant respects identical

to the proposed social group that the Attorney General

squarely rejected in Matter of A-B-.

This is error, with far-reaching consequences. The BIA

in this case did not misread Matter of A-B-; it just applied it.

So what did the BIA do wrong, not only in this case but

presumably in many cases in which substantially identical

proposed social groups have been rejected under the clear

reasoning of Matter of A-B-? The majority’s opinion

provides no clear answer to that question. The court’s

varying and inconsistent rationales share the common theme

that they reflect an unfortunate misunderstanding of the

INA’s requirements and the longstanding BIA precedent

interpreting them. Today’s opinion thus upholds Matter of

A-B- in name only, improperly overstepping the Attorney

General while departing from decisions of other circuits,

inviting confusion in this important area of law.

There is no doubt that domestic violence is a problem in

countries around the world and that the conduct of

petitioner’s husband is deplorable. But our court and the BIA

have long recognized that not every person who has

experienced suffering in a foreign country is entitled to

asylum or withholding of removal. In this case, the BIA

simply applied an Attorney General opinion in Matter of A-B-

that the majority otherwise holds is a valid interpretation of

the INA. That should have been the beginning and end of

this case.

DIAZ-REYNOSO V. BARR 43

I thus respectfully dissent from the majority’s

determination to grant the petition for review as to the

withholding of removal claim.1

I

To appreciate the errors in the majority opinion, it is

necessary to understand the statutory backdrop for the

Attorney General’s decision in Matter of A-B- and the

reasoning that supported that opinion.

A

An applicant is entitled to withholding of removal “if the

Attorney General decides that the alien’s life or freedom

would be threatened in that country because of the alien’s

race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The

undefined phrase “particular social group,” which also

appears in the similarly worded asylum statute, id.

§§ 1101(a)(42)(A), 1158(b)(1), has proven to be a source of

considerable difficulty. Reyes v. Lynch, 842 F.3d 1125, 1134

(9th Cir. 2016); Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir.

1993). We have therefore recognized that “particular social

group” is an ambiguous term and that the agency is entitled

to Chevron deference when interpreting it. Henriquez-Rivas

1

The majority also remands to the BIA for consideration of

petitioner’s claim under the Convention Against Torture (CAT). I concur

in this portion of the judgment because the government requested a

remand to the BIA on petitioner’s CAT claim. I do not, however, join in

the majority’s discussion of the merits of this claim because I find the

discussion unnecessary given the government’s remand request.

44 DIAZ-REYNOSO V. BARR

v. Holder, 707 F.3d 1081, 1083, 1087 (9th Cir. 2013) (en

banc).

Over time, the BIA has expounded on what “particular

social group” means. In Matter of Acosta, 19 I. & N. Dec.

211 (BIA 1985), and relying on the neighboring statutory

references to “race,” “religion,” “nationality,” and “political

opinion,” the BIA concluded that “particular social group”

means “a group of persons all of whom share a common,

immutable characteristic.” Id. at 233. In the BIA’s

considered view, “whatever the common characteristic that

defines the group, it must be one that the members of the

group either cannot change, or should not be required to

change because it is fundamental to their individual identities

or consciences.” Id.

Due to persisting uncertainty, and after a series of

intervening decisions, the BIA in Matter of M-E-V-G-, 26 I.

& N. Dec. 227, 237 (BIA 2014), and Matter of W-G-R-, 26 I.

& N. Dec. 208, 212–18 (BIA 2014), refined two other

requirements for a “particular social group.” In addition to

sharing an “immutable characteristic,” the group must also be

“defined with particularity” and “socially distinct within the

society in question.” Matter of M-E-V-G-, 26 I. & N. Dec.

at 237. “Particularity” means that the group “must be defined

by characteristics that provide a clear benchmark for

determining who falls within the group,” must be “discrete

and have definable boundaries,” and “must not be amorphous,

overbroad, diffuse, or subjective.” Matter of W-G-R-, 26 I. &

N. Dec. at 214. To be “socially distinct,” a group “must be

perceived as a group by society.” Matter of M-E-V-G-, 26 I.

& N. Dec. at 240. In Reyes, we held that the BIA’s

construction of the “particularity” and “social distinction”

requirements merited Chevron deference. 842 F.3d at 1133.

DIAZ-REYNOSO V. BARR 45

In Matter of M-E-V-G-, and particularly relevant here, the

BIA explained that a proposed social group must still meet

another separate requirement: “the social group must exist

independently of the fact of persecution,” a “criterion [that]

is well established in our prior precedents.” 26 I. & N. Dec.

at 236 n.11; see also Matter of W-G-R-, 26 I. & N. Dec.

at 215. The rationale for this requirement centers on the fact

that an applicant must not only prove membership in a

cognizable group, but a risk of persecution “on account of”

(or “because of”) “membership in the particular social

group.” Reyes, 842 F.3d at 1132 n.3; 8 U.S.C.

§§ 1101(a)(42)(A), 1158(b)(1)(A), 1231(b)(3)(A).

This last requirement is known as the “nexus”

requirement. Reyes, 842 F.3d at 1132 n.3. The majority in

this case acknowledges the “well-established principle” that

a social group “must exist independently of the harm

asserted.” Maj. Op. 20. But the majority does little to

explain the rationale for that principle, which contributes to

the misunderstandings in today’s opinion. The logic of the

rule is important to this case.

Because a petitioner must establish a nexus between the

persecution and her membership in a proposed social group,

she cannot bake into the definition of the group the very

group-motivated persecution she must otherwise prove. That

would create a circularity problem, because “[i]f a group is

defined by the persecution of its members, then the definition

of the group moots the need to establish actual persecution.”

Matter of A-B-, 27 I. & N. Dec. at 335. Defining a group by

the harm, in other words, eliminates a petitioner’s obligation

to demonstrate persecution because of membership in the

group, effectively satisfying the nexus requirement in every

case.

46 DIAZ-REYNOSO V. BARR

This anti-circularity principle is not controversial and is

fundamental in this area of immigration law. Indeed, the

majority itself cites various cases from other circuits that have

acknowledged this rule. See, e.g., Perez-Rabanales v.

Sessions, 881 F.3d 61, 67 (1st Cir. 2018) (“A sufficiently

distinct social group must exist independent of the

persecution claimed to have been suffered by the alien and

must have existed before the alleged persecution began.”);

Paloka v. Holder, 762 F.3d 191, 196 (2d Cir. 2014)

(explaining that a proposed social group “must exist

independently of the persecution”) (quoting Matter of

W-G-R-, 26 I. & N. Dec. at 215); Rreshpja v. Gonzales,

420 F.3d 551, 556 (6th Cir. 2005) (“[A] social group may not

be circularly defined by the fact that it suffers persecution.”);

Maj. Op. 22 n.5, 23 (citing these cases).

Various other cases make the same point. See, e.g.,

Amezcua-Preciado v. U.S. Attorney Gen., 943 F.3d 1337,

1343 (11th Cir. 2019) (“[T]he proffered group must be

independent of, and cannot be defined by, the persecution.”);

Gonzales-Veliz v. Barr, 938 F.3d 219, 229 (5th Cir. 2019)

(“[T]he social group must exist independently of the fact of

persecution.”) (quoting Matter of M-E-V-G-, 26 I. & N. Dec.

at 236 n.11) (alteration in original); Lukwago v. Ashcroft,

329 F.3d 157, 172 (3d Cir. 2003) (“We agree that under the

statute a ‘particular social group’ must exist independently of

the persecution suffered by the applicant for asylum.”).

Perhaps tellingly, of the many court of appeals cases the

majority cites on this point of law, Maj. Op. 22 n.5, all of

them denied petitions for review with the exception of one,

and that case only remanded to the BIA in light of intervening

precedent.

DIAZ-REYNOSO V. BARR 47

B

In Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014),

the BIA recognized as a particular social group “married

women in Guatemala who are unable to leave their

relationship.” Id. at 392. In treating this proposed social

group as cognizable, the BIA relied primarily on the

government’s concessions “that a particular social group

exist[ed]” and that the proposed group was “defined with

particularity.” Id. at 393–94. Based on A-R-C-G-, the BIA

then began to grant asylum and withholding of removal to

victims of domestic violence. That is what ultimately led to

the Attorney General’s intervention in Matter of A-B-, 27 I.

& N. Dec. 316 (A.G. 2018), the opinion most directly before

us.

The petitioner in Matter of A-B- claimed persecution in

the form of domestic violence based on her membership in

the claimed social group “El Salvadoran women who are

unable to leave their domestic relationships where they have

children in common.” Id. at 321. The BIA held that this

proposed group was cognizable under Matter of A-R-C-G-

and ordered that the petitioner receive asylum. Id. The

Attorney General then intervened in Matter of A-B-, see

8 U.S.C. §§ 1103(a)(1), (g)(2); 8 C.F.R. § 1003.1(h)(1), and

“overrule[d]” Matter of A-R-C-G-. See Matter of A-B-, 27

I. & N. Dec. at 317, 319, 340, 346. In the Attorney General’s

considered view, Matter of A-R-C-G- improperly elevated the

government’s concessions into binding precedent,

“recogniz[ing] a new particular social group without correctly

applying” the legal standards discussed above. Id. at 317; see

also id. at 333.

48 DIAZ-REYNOSO V. BARR

Matter of A-R-C-G- was “wrongly decided,” the Attorney

General explained, because “[t]o be cognizable, a particular

social group must ‘exist independently’ of the harm asserted

in an application for asylum or statutory withholding of

removal.” Id. at 333–34 (emphasis in original) (citing, e.g.,

Matter of M-E-V-G-, 26 I. & N. Dec. at 236 n.11, 243; Matter

of W-G-R-, 26 I. & N. Dec. at 215; Perez-Rabanales,

881 F.3d at 67). That longstanding principle was fatal to the

proposed social group in Matter of A-R-C-G-. As the

Attorney General explained, the BIA in “A-R-C-G- never

considered that ‘married women in Guatemala who are

unable to leave their relationship’ was effectively defined to

consist of women in Guatemala who are victims of domestic

abuse because the inability ‘to leave’ was created by harm or

threatened harm.” Id. at 335. The proposed social group in

Matter of A-R-C-G- thus violated the anti-circularity

principle. Id. at 334–35.

Although the Attorney General in Matter of A-B- did “not

decide that violence inflicted by non-governmental actors

may never serve as the basis for an asylum or withholding

application,” he explained that such claims based on domestic

violence “are unlikely to satisfy the statutory grounds for

proving group persecution.” Id. at 320.

II

In this case, petitioner claims her husband acted violently

toward her because of her membership in the claimed social

group “indigenous women in Guatemala who are unable to

leave their relationship.” The BIA held that petitioner’s

proposed group was not cognizable because it “suffers from

the same circularity problem articulated by the Attorney

General in Matter of A-B-.” In Part IV of its opinion, the

DIAZ-REYNOSO V. BARR 49

majority correctly rejects petitioner’s arguments that Matter

of A-B- is arbitrary and capricious and undeserving of

Chevron deference. Maj. Op. 16–19. But the majority

nonetheless concludes in Part V that the BIA misinterpreted

Matter of A-B-, requiring a remand to the agency.

Part V is where the problem lies. The petitioner’s

proposed social group of “indigenous women in Guatemala

who are unable to leave their relationship” is virtually

identical to the proposed social group in Matter of A-R-C-G-,

which was “married women in Guatemala who are unable to

leave their relationship.” The Attorney General in Matter of

A-B- clearly determined that the latter group was “not

cognizable.” 27 I. & N. Dec. at 334. Yet when the BIA

then applied Matter of A-B- to petitioner’s materially

indistinguishable proposed group, our court now tells the BIA

it erred in not following Matter of A-B-.

That holding is quite mistaken, turning on a misreading of

Matter of A-B- and a related misunderstanding of the core

principles of immigration law on which Matter of A-B- is

premised. While today’s opinion might initially appear to

reject a challenge to Matter of A-B- and narrowly remand on

case-specific grounds, in reality that is not so. Instead, the

court’s opinion improperly recasts Matter of A-B-, with

widespread consequences for the many cases that today’s

decision is sure to affect. The result is also that the federal

immigration law that applies in this circuit will differ

considerably from the law applied elsewhere in this country.

A central problem with today’s opinion—and one of the

reasons I fear it will engender confusion—is that the majority

offers what I see as varying and inconsistent rationales for

why the BIA erred. Each of those grounds for decision is

50 DIAZ-REYNOSO V. BARR

incorrect and each reflects a noted departure from governing

law.

A

1

In articulating why a remand is required, the majority first

explains that “[t]he BIA seems to have erroneously

understood Matter of A-B- to forbid any mention of feared

harm within a proposed social group.” Maj. Op. 19–20. The

majority consequently “disagree[s]” that “in order to exist

independently from the petitioner’s feared harm, a proposed

group may not refer to that harm at all.” Id. at 23. This

reflects legal error and departs from the decisions of our sister

circuits. See, e.g., Gonzales-Veliz, 938 F.3d at 232 (holding

that a proposed group of “Honduran women unable to leave

their relationship” was not cognizable because it was “defined

by, and d[id] not exist independently of, the harm—i.e., the

inability to leave”).

Simply stated, a proposed group that incorporates harm

within its definition is not a group that “exist[s] independently

of the harm asserted in an application for asylum or statutory

withholding of removal.” Matter of A-B-, 27 I. & N. Dec.

at 334 (emphasis added) (quotations omitted). Recall that the

overall framework requires an asylum or withholding

applicant to prove three things: (1) the existence of a

cognizable particular social group; (2) membership in that

group; and (3) “a risk of persecution on account of” (or

“because of”) “his membership.” Reyes, 842 F.3d at 1132 n.3

(emphasis added).

DIAZ-REYNOSO V. BARR 51

Now imagine a proposed social group that is transparently

based in part on the harm, such as “Guatemalan men who are

harmed by gangs.” Saying that a petitioner was harmed by

gangs based on his membership in the group “Guatemalan

men who are harmed by gangs” would collapse the inquiries.

And it would create the very circularity problem that Matter

of A-B- sought to avoid in the domestic violence context,

allowing nexus to be proven by the group definition itself.

See Matter of A-B-, 27 I. & N. Dec. at 334 (citing, e.g.,

Matter of M-E-V-G-, 26 I. & N. Dec. at 236 n.11, 243; Matter

of W-G-R-, 26 I. & N. Dec. at 215). The majority thus errs in

claiming that I “do not explain why a person seeking relief on

the basis of membership in a particular social group should be

required to omit any mention of threatened persecution.”

Maj. Op. 28. The reason, as I have explained, is the anti-

circularity principle.

Contrary to the suggestion in the majority opinion, Matter

of A-B- did not endorse the concept of a particular social

group that references harm in its definition. Maj. Op. 23–25.

Matter of A-B- in fact confirms that such a group is

impermissible. Matter of A-B- expressly rejected the

proposed social group in Matter of A-R-C-G-, which was

“married women in Guatemala who are unable to leave their

relationship.” Matter of A-B-, 27 I. & N. Dec. at 319. This

proposed group obviously does contain some immutable

characteristics not defined by the harm, namely, “married

women in Guatemala.” But the Attorney General concluded

the proposed social group still incorporated a reference to

harm, because a claimed “inability to leave” was “effectively

defined to consist of women in Guatemala who are victims of

domestic abuse.” Id. at 335. For that reason, the group

violated the anti-circularity principle and was “not

cognizable.” Id. at 334.

52 DIAZ-REYNOSO V. BARR

If referring to harm within the group definition were

allowed, Matter of A-B- on this central point should have

come out the other way. It is thus true, as the majority

explains, that Matter of A-B- did not “identify a categorical

‘circularity problem.’” Maj. Op. 20 (emphasis added). But

that is only because the anti-circularity rule had long existed

in the law. Matter of A-B- thus did not “identify” and

announce this rule, but it certainly applied it. Whether the

anti-circularity rule applies is determined on a case-by-case

basis by examining the proposed social group that an

applicant brings forward. See Matter of A-B-, 27 I. & N. Dec.

at 340; Matter of M-E-V-G-, 26 I. & N. Dec. at 251. But

when the rule does apply, it is, indeed, a categorical one.

Matter of A-B-’s reliance on Rreshpja v. Gonzales,

420 F.3d 551 (6th Cir. 2005), only confirms this point. The

Attorney General in Matter of A-B- specifically cited

Rreshpja for the rule that “[t]he individuals in the group must

share a narrowing characteristic other than their risk of being

persecuted.” 27 I. & N. Dec. at 335 (alteration in original)

(quoting Rreshpja, 420 F.3d at 556). In Rreshpja, the court

understood the proposed social group to be “young (or those

who appear to be young), attractive Albanian women who are

forced into prostitution.” 420 F.3d at 555. The Sixth Circuit

rejected this group because “a social group may not be

circularly defined by the fact that it suffers persecution.” Id.

at 556 (emphasis added).

The proposed particular social group in Rreshpja was not

completely defined by the harm, but the court rejected it

because it was still partially defined by the harm. Id. The

majority therefore gets Rreshpja backwards. Maj. Op. 23.

The Attorney General in Matter of A-B- was not purporting

to allow a group defined in part by the harm by relying on a

DIAZ-REYNOSO V. BARR 53

Sixth Circuit opinion that rejected a proposed social group

that was itself partially defined by the harm, and that

therefore suffered from the same problem as the proposed

group in this case.

Notably, both petitioner and her amicus agree with my

interpretation of Matter of A-B-. Petitioner herself regards

the “holding” of Matter of A-B- to be that a particular social

group “cannot be defined, even in part, by the fact of

persecution.” (Emphasis added). And amicus Center for

Gender & Refugee Studies likewise agrees that under Matter

of A-B-, the circularity rule “require[s] a group to be defined

completely independently of the harm.” (Emphasis in

original). Petitioner and the amicus both regard this as a new

rule, but it is not. It is the same rule that has always applied:

“[t]o be cognizable, a particular social group must exist

independently of the harm asserted.” Matter of A-B-, 27

I. & N. Dec. at 334 (emphasis in original) (quotations

omitted); see also Matter of M-E-V-G-, 26 I. & N. Dec. at 236

n.11.

Unlike the majority, my interpretation of Matter of A-B-

is also aligned with that of other circuits. The majority

opinion “recognize[s] that, consistent with Matter of A-B-,

numerous courts have deemed proposed social groups that

referred to feared harm to be impermissibly circular.” Maj.

Op. 31. The concession is well-taken. But it is, if anything,

a considerable understatement, because other circuits have

routinely denied petitions for review presenting materially

identical proposed social groups to the one at issue here, that

also referenced harm in the group definition itself.

In Gonzales-Veliz v. Barr, 938 F.3d 219 (5th Cir. 2019),

the Fifth Circuit denied a petition for review seeking asylum

54 DIAZ-REYNOSO V. BARR

and withholding of removal based on the proposed social

group “Honduran women unable to leave their relationship.”

Id. at 223. The Fifth Circuit explained that “under A-B-’s

analysis, [this] group cannot constitute a particular social

group” because “[t]he group is defined by, and does not exist

independently of, the harm—i.e., the inability to leave.” Id.

at 232. In other words, the Fifth Circuit held, this group was

not cognizable because it was “impermissibly defined in a

circular manner.” Id.

Several months later, the Eleventh Circuit issued a similar

decision in Amezcua-Preciado v. U.S. Attorney General, 943

F.3d 1337 (11th Cir. 2019) (per curiam). There, the Eleventh

Circuit denied a petition for review seeking relief based on

the proposed social group “women in Mexico who are unable

to leave their domestic relationships.” Id. at 1339. The

Eleventh Circuit recognized that the petitioner’s “proposed

social group suffers from the kinds of problems the Attorney

General identified in A-B- as likely to render most groups of

victims of private violence not cognizable.” Id. at 1344. And

the Eleventh Circuit made clear that “to the extent [the

petitioner’s] proposed group of Mexican women . . . are

unable to leave their domestic relationships because they fear

physical or psychological abuse by their spouse or domestic

partner, this group is defined by the underlying harm

asserted.” Id. at 1345. In reading Matter of A-B- to allow

proposed social groups that include feared harm in the group

definition, the majority departs from both the reasoning and

the results of the Fifth and Eleventh Circuit decisions.

Indeed, the majority’s decision is inconsistent with many

cases from other circuits that have denied petitions for review

that advanced proposed social groups materially identical to

the one advanced here. See, e.g., Perez-Agustin v. U.S.

DIAZ-REYNOSO V. BARR 55

Attorney Gen., 798 F. App’x 608, 609 (11th Cir. 2020) (per

curiam) (rejecting as impermissibly circular proposed social

group of “indigenous women from Guatemala, who are native

Mam speakers, who are victim[s] of sexual violence”)

(alteration in original); Martinez Casco v. U.S. Attorney Gen.,

800 F. App’x 835, 838 (11th Cir. 2020) (per curiam)

(rejecting as impermissibly circular proposed social group of

“female domestic violence victims who are unable to leave”);

Serrano-de Portillo v. Barr, 792 F. App’x 341, 342–43 (5th

Cir. 2020) (per curiam) (rejecting as impermissibly circular

proposed social group of “El Salvadoran women targeted by

gang members to be gang girlfriends”); Garcia-Ventura v.

Barr, 788 F. App’x 969, 970–71 (5th Cir. 2019) (per curiam)

(rejecting as impermissibly circular proposed social groups of

“victims of domestic violence at the hands of their domestic

partner and unable to leave their domestic partner” and

“victims of domestic violence who are viewed as property by

virtue of their positions within a domestic relationship”);

Gonzalez-De Moreira v. U.S. Attorney Gen., 787 F. App’x

659, 662 (11th Cir. 2019) (per curiam) (rejecting as

impermissibly circular proposed social groups of “Salvadoran

women who are victims of violence” and “Salvadoran

children who are victims of violence”); Reyes v. Sessions,

750 F. App’x 656, 659 (10th Cir. 2018) (rejecting as

impermissibly circular proposed social group of “female

victims of domestic violence”). Indeed, our court in an

unpublished decision rejected as impermissibly circular a

proposed group of “women who have been harassed and

threatened by men and whose complaints to police have

failed to result in protection,” because the group was “defined

by the claimed persecutory conduct” and thus did “not exist

56 DIAZ-REYNOSO V. BARR

independently from the claimed persecution.” Calderon-

Espejo v. Barr, 771 F. App’x 371, 372–73 (9th Cir. 2019).2

The majority acknowledges this “plethora of unpublished

decisions that rejected groups similar to the one advanced

here,” but claims it “cannot discern the reasoning of those

decisions simply from their outcome.” Maj. Op. 32 & n.9.

Setting aside that the Fifth and Eleventh Circuits have

rejected proposed social groups materially identical to the one

here in published opinions, see Amezcua-Preciado, 943 F.3d

at 1345; Gonzales-Veliz, 938 F.3d at 232, the numerous

unpublished decisions reaching the same result easily reveal

their straightforward reasoning: the proposed group in each

case failed because it included a reference to harm, thus

presenting the circularity issue.

The groups in these cases were defined in part by

immutable characteristics that were separate and apart from

2

Even before Matter of A-B-, courts also routinely rejected proposed

social groups as circular if they referred to alleged harm or persecution.

See e.g., Soto-Ambrocio v. Sessions, 724 F. App’x 456, 458 (6th Cir.

2018) (per curiam) (rejecting as impermissibly circular proposed social

group of “young women from Guatemala subject to abuse from families”);

Moreno v. Lynch, 628 F. App’x 862, 865 (4th Cir. 2015) (rejecting as

impermissibly circular proposed social group of “Hondurans who have

been targeted by the police and their criminal associates to engage in drug

trafficking”); Rreshpja, 420 F.3d at 555–56 (rejecting as impermissibly

circular proposed social group of “young (or those who appear to be

young), attractive Albanian women who are forced into prostitution”).

The majority is thus not correct that the government and this dissent (and

by implication, the other circuits) “confuse the definition of a ‘particular

social group’ with one of its components—i.e., the group’s shared

immutable characteristic.” Maj. Op. 27. The requirement that a proposed

social group exist independent of the harm is its own separate

requirement. Matter of M-E-V-G-, 26 I. & N. Dec. at 236 n.11.

DIAZ-REYNOSO V. BARR 57

the harm, such as women from a certain country. But they

were also defined in part by an “inability to leave” or some

similar formulation that was regarded as a reference to harm.

Unlike today’s opinion, however, none of these cases treated

the BIA decisions on review as having “erroneously

understood Matter of A-B- to forbid any mention of feared

harm within a proposed social group.” Maj. Op. 19–20.

Instead, they treated the “mention” of that harm as a

dispositive violation of the longstanding anti-circularity

principle.3

2

The majority gives two primary reasons for departing

from the case law of other circuits and allowing proposed

3

The majority is correct that the D.C. Circuit recently stated (in a case

challenging a policy memorandum not at issue here) that the notion that

“the group must be ‘separate’ from the harm, not consisting of the harm,

even in part,” is “flatly inconsistent” with Matter of A-B-. Grace v. Barr,

— F.3d —, 2020 WL 4032652, at *16 (D.C. Cir. 2020). However, the

D.C. Circuit premised this point on an asserted government concession as

to whether the phrase “inability to leave” could be a reference to

something other than harm, id., which is a different issue (the majority

addresses this issue in its Part V.C and I address it in Part II.C below). In

Grace, the D.C. Circuit held that the policy memorandum at issue there

correctly stated the “circularity rule” as set forth in Matter of A-B-. Id.

The court described the “circularity rule” as requiring that “social groups

must ‘exist independently’ of the harm claimed by the applicant, that is,

the applicant must be able to establish the group’s existence ‘without

defining [it] by the fact of persecution.’” Id. at *14 (quoting Matter of

A-B-, 27 I. & N. Dec. at 334) (alteration in original). To the extent Grace

“endorsed the view that a proposed social group is not disqualified if it

includes mention of feared persecution” as the majority claims, Maj. Op.

29, the D.C. Circuit offered no explanation for this point, which is both

incorrect and against the weight of authority applying Matter of A-B-, as

detailed in this dissent.

58 DIAZ-REYNOSO V. BARR

social groups that include a reference to harm. Both

rationales fail as a matter of law.

First, the majority holds that a proposed social group

definition can include a reference to harm because

“persecution may be relevant to a group’s social distinction.”

Maj. Op. 20; see also id. at 23–24. This reflects a

misunderstanding of BIA precedent and the conflation of two

independent requirements for a “particular social group” to be

cognizable: (1) that the group exist independent of the harm

and (2) that it be socially distinct in the relevant society.

These are different requirements. Indeed, in explaining the

“social distinction” element, the BIA in Matter of M-E-V-G-

pointed out that while “the social group must exist

independently of the fact of persecution,” this is a separate

criterion from “social distinction.” Matter of M-E-V-G-,

26 I. & N. Dec. at 236 n.11.

The majority dismisses this as “mechanistic[],” Maj. Op.

27, but these separate requirements perform meaningful

analytical work. It is certainly true that persecution can be

used to demonstrate that a proposed group is “socially

distinct.” As the BIA has explained, “[t]he act of persecution

by the government may be the catalyst that causes the society

to distinguish [a proposed social group] in a meaningful way

and consider [it] a distinct group.” Matter of M-E-V-G-, 26 I.

& N. Dec. at 243. But this does not mean that the definition

of the group itself can include the harm. Why? Because the

entire reason the group “must exist independently of the harm

asserted,” Matter of A-B-, 27 I. & N. Dec. at 334 (emphasis

in original) (quotations omitted), is to avoid the circularity

problem that would otherwise allow petitioners automatically

to fulfill the separate nexus requirement by injecting the harm

DIAZ-REYNOSO V. BARR 59

itself into the very definition of the group whose membership

is supposedly causing the persecution.

The majority’s hypotheticals only prove this point. Maj.

Op. 25–26. The first one, used in Matter of M-E-V-G-,

consists of the proposed particular social group “former

employees of a country’s attorney general.” Matter of

M-E-V-G-, 26 I. & N. Dec. at 242. The second hypothetical

is found in United Nations High Commissioner for Refugees

(UNHCR) Guidelines and involves the proposed social group

of left-handed men. UNHCR, Guidelines on International

Protection, ¶ 14, U.N. Doc. HCR/GIP/02/02 (May 7, 2002)

[hereinafter UNHCR Guidelines]. Critically, unlike the

proposed social group in this case, neither hypothetical

involves a proposed group defined in any way by the harm

itself.

But though the fact of persecution does not define the

group, these hypotheticals show that the harm may

permissibly be used to show the group is socially distinct in

the relevant society. Take “former employees of a country’s

attorney general” as an example. As the BIA explained,

“[a]lthough such a shared past experience is immutable and

the group is sufficiently discrete, the employees may not

consider themselves a separate group within the society.”

Matter of M-E-V-G-, 26 I. & N. Dec. at 242. But if “the

government begins persecuting them,” “[u]pon their

mistreatment, it is possible that these people would

experience a sense of ‘group,’ and society would discern that

this group of individuals, who share a common immutable

characteristic, is distinct in some significant way.” Id.

at 242–43.

60 DIAZ-REYNOSO V. BARR

That is consistent with the anti-circularity principle,

because while “[t]he act of persecution by the government

may be the catalyst that causes the society to distinguish the

former employees in a meaningful way and consider them a

distinct group,” “the immutable characteristic of their shared

past experience exists independent of the persecution.” Id.

at 243 (emphasis added). The UNHCR made the same point

about its “[l]eft-handed men” hypothetical: the group would

still be defined by “the attribute of being left-handed and not

the persecutory acts.” UNHCR Guidelines ¶ 14 (emphasis

added).

The majority’s two hypotheticals thus demonstrate the

very analytical distinction the majority sweeps aside. Just

because persecution may show that a group is socially distinct

does not mean the group itself can be defined in some way by

that persecution. The majority apparently suggests it would

create no issue to define the hypothetical group of “former

employees of the attorney general” as “former employees of

the attorney general, who are being hunted down and killed.”

Maj. Op. 26. But that is exactly the type of group courts have

routinely rejected under the anti-circularity principle. See

ante at 53–56 & n.2. The majority is thus incorrect in

suggesting that I overlook that BIA precedent “unequivocally

establishes that a group’s persecution may be relevant to” the

social distinction requirement. Maj. Op. 27. Persecution is

relevant to the requirement of social distinction, as I have

explained. But that does not mean groups can include in their

definitions a reference to harm, contrary to the separate

DIAZ-REYNOSO V. BARR 61

requirement that the group exist independent of the harm.

See, e.g., Matter of M-E-V-G-, 26 I. & N. Dec. at 236 n.11.4

Second, and relying on snippets of language in BIA

decisions, the majority holds that a particular social group can

include harm in its definition because “[t]he BIA [has]

explained that a ‘social group cannot be defined exclusively

by the fact that it is targeted for persecution.’” Maj. Op. 21

(quoting Matter of C-A-, 23 I. & N. Dec. 951, 960 (BIA 2006)

(emphasis in original)). The majority quotes other BIA

decisions that use this “exclusively” language, but these

decisions in turn rely on the BIA’s earlier opinion in Matter

of C-A-. See id. at 21–22, 31.

The majority’s reliance on “exclusively” is not correct.

That a proposed social group cannot be defined “exclusively”

by the harm does not somehow mean it could then be based

in part on the harm. If that were true, Matter of A-B-—which

rejected a proposed social group that was not based

exclusively on the harm—would have come out the other way

on this critical issue. And if the only limit was that a group

cannot be based “exclusively” on the harm, there would have

4

The majority’s hypothetical of Tutsis fleeing Rwanda is inapt. Maj.

Op. 28–29. There, the proposed social group would be defined based on

ethnicity, not harm. See Donchev v. Mukasey, 553 F.3d 1206, 1220 (9th

Cir. 2009). A person who experienced genocide based on ethnicity would

have no reason to define his proposed social group by including the harm

in the group definition itself. Petitioner here, by contrast, had

understandable strategic reasons to try that approach here, as I explain

below. The majority is correct that the anti-circularity rule is not specific

to the domestic violence context. But that makes the majority’s departure

from the rule more problematic, not less. Under the majority’s approach,

the many cases that have rejected proposed social groups that referenced

harm were all wrongly decided on this point.

62 DIAZ-REYNOSO V. BARR

been no reason for the BIA repeatedly to articulate the

principle that the group “must exist independently of the harm

asserted.” Matter of A-B-, 27 I. & N. Dec. at 334 (emphasis

altered) (quotations omitted); Matter of M-E-V-G-, 26 I. & N.

Dec. at 236 n.11. Indeed, cases the majority cites that use the

“exclusively” formulation also state the rule that the group

must exist independent of the harm. See Maj. Op. 22 n.5

(citing Perez-Rabanales, 881 F.3d at 67; Paloka, 762 F.3d

at 196).

I suppose it is possible to imagine a proposed social group

that is defined “exclusively” by harm (e.g., “victims of

physical assaults”). But most proposed social groups that

have the circularity problem are defined in part by the harm

and in part by something else, such as gender or nationality.

There is nothing in the BIA’s precedent suggesting it did not

intend those proposed social groups to come within the anti-

circularity principle, whose logic clearly extends to them. To

the contrary, the BIA’s formulation—“must exist

independently”—ensures that groups defined in part by the

harm are not allowed.

The origins of the “exclusively” phrasing also

demonstrate it was not intended to operate in the way the

majority uses it, i.e., implicitly to allow groups defined in part

by the harm. As noted, this “exclusively” language can be

traced to the BIA’s decision in Matter of C-A-. But there, the

BIA stated that “the [UNHCR] Guidelines state that ‘a social

group cannot be defined exclusively by the fact that it is

targeted for persecution,’” although “persecutory action

toward a group may be a relevant factor in determining the

visibility of a group in a particular society.” Matter of C-A-,

23 I. & N. Dec. at 960 (emphasis in original) (quoting

UNHCR Guidelines ¶¶ 2, 14).

DIAZ-REYNOSO V. BARR 63

The quoted language drives home the distinction that the

majority elides, which is that persecution can be relevant for

social distinction (previously known as social visibility), but

not for the definition of the group itself. The quoted language

also shows that the majority is misusing the “exclusively”

phrasing on its own terms. The BIA in Matter of C-A- used

this language when quoting the UNHCR Guidelines, which

I discussed earlier. Matter of C-A-, 23 I. & N. Dec. at 960.

And these Guidelines likewise make clear that a group cannot

be defined in part by the harm.

In the Guidelines, the UNHCR used the left-handed men

hypothetical to show that persecution can be relevant to what

we now call social distinction. UNHCR Guidelines ¶ 14; see

Matter of M-E-V-G-, 26 I. & N. Dec. at 228. But the

UNHCR made clear that in that circumstance, “it would be

the attribute of being left-handed and not the persecutory acts

that would identify them as a particular social group.”

UNHCR Guidelines ¶ 14. That is a rejection of the majority’s

view that a group can be defined in part by the harm.

The majority opinion is thus incorrect in claiming that I

“ignore the word ‘exclusively’—along with similar limiting

language in the BIA’s decisions and those from our sister

circuits.” Maj. Op. 24. Instead, as the extensive discussion

above confirms, it is the majority that is incorrectly using the

“exclusively” formulation in service of authorizing groups

that refer to harm, contrary to other circuits that have

addressed substantially identical proposed social groups.

B

Equally mistaken is the majority’s suggestion that the

BIA erred in this case because it is possible to bracket out a

64 DIAZ-REYNOSO V. BARR

reference to harm in the definition of a proposed social group

in considering whether petitioner has put forward an

“otherwise cognizable” group. Maj. Op. 21–22, 27, 39–40;

see also id. at 20 (“If a group is otherwise cognizable, Matter

of A-B- does not demand that it be devoid of any reference to

an applicant’s claimed persecution.”) (emphasis added). The

majority’s analysis suggests that we may consider some

elements of a proffered social group as relevant to the

immutable characteristic inquiry, consider other elements for

their relevance to social distinction, and do so without

impermissibly rewriting the petitioner’s proposed social

group. See Maj. Op. 27–28.

That is not correct. I am aware of no case, and the

majority cites none, that would allow a court (or the BIA) to

take a petitioner’s proposed social group, break it down into

constituent elements, and then assign those elements out to

the distinct requirements that a petitioner must meet to

demonstrate a cognizable social group. In my respectful

view, that is not how this area of law works.

BIA precedent is clear that the agency must evaluate the

proposed social group exactly as the petitioner has defined it.

In precedent the majority cites, Maj. Op. 27, 28, 39 n.12, the

BIA has held that “[w]here an applicant raises membership in

a particular social group as the enumerated ground that is the

basis of her claim, she has the burden to clearly indicate ‘the

exact delineation of any particular social group(s) to which

she claims to belong.’” Matter of W-Y-C- & H-O-B-, 27 I. &

N. Dec. 189, 191 (BIA 2018) (quoting Matter of A-T-, 25 I. &

N. Dec. 4, 10 (BIA 2009)). The Immigration Judge (IJ) must

then analyze “the specific group” identified, and “[i]f an

applicant is not clear as to the exact delineation of the

proposed social group, the Immigration Judge should seek

DIAZ-REYNOSO V. BARR 65

clarification.” Id. On appeal, the BIA may only consider the

specific proposed social group that the petitioner presented to

the IJ. Id. at 191–92.

These various requirements are not empty formalities.

Instead, they follow from the fact that a petitioner bears the

burden of proof in demonstrating “the existence of a

cognizable particular social group” and persecution because

of her membership in that group. Reyes, 842 F.3d at 1132 n.3

(quoting Matter of W-G-R-, 26 I. & N. Dec. at 223); see also

Cantarero-Lagos v. Barr, 924 F.3d 145, 151 (5th Cir. 2019)

(“Requiring asylum and withholding applicants to delineate

their [particular social group] to an IJ is simply a logical

extension of this burden of proof.”).

Requiring the petitioner to delineate her proposed social

groups has important practical benefits as well. It ensures

that appropriate fact-finding is conducted at the IJ level.

Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. at 191;

Cantarero-Lagos, 924 F.3d at 152. And it creates a “rational

administrative process” that allows the government to

respond to a petitioner’s proposed social group, while

preventing repeated remands to the IJ. Cantarero-Lagos,

924 F.3d at 152.

Consistent with this scheme, we have repeatedly

determined that we lack jurisdiction to consider a new or

different proposed social group that the petitioner did not

present to the agency. See, e.g., Lozano Fuerte v. Barr,

804 F. App’x 742, 742–43 (9th Cir. 2020); Nesta-Najar v.

Barr, 804 F. App’x 604, 606 (9th Cir. 2020); Perez Perez v.

Barr, 804 F. App’x 597, 598 (9th Cir. 2020); Vasquez-Leon

v. Barr, 804 F. App’x 612, 613 (9th Cir. 2020); Romero-

Castro v. Barr, 790 F. App’x 64, 65 (9th Cir. 2020); Lopez-

66 DIAZ-REYNOSO V. BARR

Velasquez v. Sessions, 742 F. App’x 195, 196 n.1 (9th Cir.

2018).

The majority agrees that “courts cannot rewrite proposed

social groups.” Maj. Op. 27. But the majority’s suggestion

that we or the BIA can splice out elements of a proposed

group and consider them for some, but not other purposes, is

inconsistent with established precedent and practice. The

same can be said of petitioner’s analogous suggestion that we

should “look[] beyond the language used to describe [her]

proposed social group.” (Emphasis added). Petitioners can

propose multiple and alternative particular social groups to

the agency; many petitioners do so. E.g., Honcharov v. Barr,

924 F.3d 1293, 1295 (9th Cir. 2019) (per curiam). But under

the authority set forth above, we cannot take a petitioner’s

proposed group and alter it. Indeed, the very idea that there

are severable elements in the proposed social group is

misplaced. There are no such elements; there is only the

proposed group.

By the same token, if we subtract one element (here

“inability to leave”), we likewise create a different group than

the one the petitioner articulated. Tellingly, in none of the

cases cited above denying petitions with similar proposed

groups to the one here did the courts proceed to consider a

version of the proposed group minus the impermissibly

circular reference to the harm. Nor did those courts remand

to the BIA with instructions to do this. The majority opinion

thus fails to recognize that the definition of the proposed

group—as the petitioner has defined it—is central to how this

entire scheme works.

The majority errs in suggesting it can refashion

petitioner’s proposed group because “[t]he BIA has taken

DIAZ-REYNOSO V. BARR 67

pains to state that ‘the shared trait of persecution does not

disqualify an otherwise valid social group.’” Maj. Op. 24

(quoting Matter of M-E-V-G-, 26 I. & N. Dec. at 243). The

BIA in Matter of M-E-V-G- was not implying that if a group

is defined to include the harm, that the BIA (or a court) could

carve out the reference to harm to produce an “otherwise

valid social group.” Instead, the BIA said that if the

petitioner had come forward with an “otherwise valid social

group,” using the fact of persecution to demonstrate the social

distinction requirement would not invalidate the group.

Matter of M-E-V-G-, 26 I. & N. Dec. at 243.

Equally mistaken is the majority’s assertion that the

Attorney General in Matter of A-B- “faulted the BIA[]” in

Matter of A-R-C-G- for not considering the petitioner’s

proposed social group without its reference to harm. Maj.

Op. 29. In Matter of A-B-, the Attorney General was

certainly not instructing the BIA to ignore a reference to harm

and to come up with an “otherwise cognizable” social group

using some of the other characteristics the petitioner brought

forth.

To the contrary, when the Attorney General in Matter of

A-B- faulted the BIA in Matter of A-R-C-G- for “avoid[ing]

considering whether [the petitioner] could establish the

existence of a cognizable particular social group without

defining the group by the fact of persecution,” it was because

the government in Matter of A-R-C-G- “conceded” that the

petitioner there was a member of a cognizable social group.

Matter of A-B-, 27 I. & N. Dec. at 334. The BIA’s error in

Matter of A-R-C-G- was in accepting that concession without

any further inquiry. Id. And had the BIA “properly analyzed

the issues,” Matter of A-B- went on, it would have been “clear

that the particular social group was not cognizable.” Id.

68 DIAZ-REYNOSO V. BARR

(emphasis added). As a result, whether petitioner here

included an “inability to leave” in her proposed group by

mistake or not, it is part of the group as she has defined it, and

such a group is not valid under the anti-circularity principle.

Id. at 334–35.

Of course, it is highly doubtful that the petitioner’s

inclusion of “unable to leave” in her group definition was a

mistake. Had petitioner omitted this phrase, and advanced

only the remaining portions of her proposed group

(“indigenous women in Guatemala”), that may have made it

more difficult for her to meet other requirements for a

particular social group, most notably “particularity” and

“social distinction.” As the First Circuit recently recognized,

the inclusion of “‘unable to leave’ in the group definition”

was likely a response to “[s]ome case law [that] gave rise to

a fear that ‘women,’ or ‘women in country X,’ or even

‘women in a domestic relationship,’ might be too large or too

indistinct a group to serve as a particular social group.” De

Pena-Paniagua v. Barr, 957 F.3d 88, 95 (1st Cir. 2020)

(collecting cases); see also Matter of A-B-, 27. I. & N. Dec.

at 336 (explaining that applicants sought “to avoid

particularity issues by defining a narrow class—such as

‘Guatemalan women who are unable to leave their domestic

relationships where they have children in common’”).

In fact, it was Matter of A-R-C-G-—the very case that

Matter of A-B- overruled—that “held out ‘unable to leave’ as

a supposedly smaller, better-suited safe harbor for women

seeking asylum and withholding of removal.” De Pena-

Paniagua, 957 F.3d at 95. In other words, the petitioner here

almost certainly defined her proposed social group as she did

to match what the BIA in Matter of A-R-C-G- then regarded

as cognizable. The problem is that the Attorney General has

DIAZ-REYNOSO V. BARR 69

since overruled Matter of A-R-C-G- and held “that the

particular social group [there] was not cognizable.” Matter

of A-B-, 27 I. & N. Dec. at 334.

In short, the majority’s suggestion that we can ignore the

petitioner’s reference to harm in her proposed social group is

contrary to settled law. The same is true of the majority’s

determination that we can extract the reference to harm from

the definition of the group and treat is as relevant only to the

social distinction requirement. Today’s decision breaks new

ground in suggesting that any of this is permissible.

C

The majority’s analysis in Parts V.A–B treated a

reference to harm in the definition of a proposed social group

as permissible under Matter of A-B-. In Part V.C, the

majority concludes that the BIA erred in dismissing

petitioner’s appeal because the BIA “assumed her inability to

leave her relationship was attributable to domestic violence,”

when “[t]here are many reasons a petitioner might be unable

to leave a relationship, including a variety of cultural,

societal, religious, economic, or other factors.” Maj. Op.

33–34, 34 n.11 (quotations omitted). The majority holds that

the BIA “avoided the case-specific inquiry demanded by

Matter of A-B-” and failed to “carefully analyze[]”

petitioner’s claim because it “assumed that domestic violence

was the only reason [petitioner] was unable to leave her

relationship.” Id. at 33–34, 36.

I will explain why this is mistaken momentarily. But it is

first important to point out that this rationale is inconsistent

with the rationales in Parts V.A–B. The import of Part V.C

is that if “inability to leave” were based on the harm, the BIA

70 DIAZ-REYNOSO V. BARR

could have denied petitioner’s appeal on this basis as

impermissibly circular. By the logic of this rationale, the

problem instead is that here “inability to leave” may not be

based on harm but on other factors, and the BIA erred by not

considering that possibility.

But if a particular social group can reference harm in the

group definition, then a remand for the reasons given in Part

V.C is unnecessary. Under Parts V.A–B of the majority

opinion, the BIA should be instructed to treat the proposed

group as written as non-circular and to analyze the group only

for its compliance with the other requirements (e.g.,

particularity and social distinction). If the BIA can just

ignore the reference to harm in the proposed group (as a

mistake or otherwise) and treat it as relevant only to social

distinction or some other requirement, there is no reason for

the BIA to now consider whether “inability to leave” may be

a reference to something other than the harm alleged.

Instead, the BIA should be instructed to excise “inability to

leave” and consider whether the proposed social group is

“otherwise cognizable.”

Or we can think of it this way: imagine the BIA had not

made the supposed error that the majority identifies in Part

V.C of its opinion and had even more explicitly regarded

“inability to leave” as based on harm. In that circumstance,

wouldn’t the BIA still have erred under Parts V.A–B of the

majority opinion? The answer apparently is “yes,” because

the majority says that one of the “problems with the BIA’s

reasoning” below is that “the BIA misunderstood Matter of

A-B-’s holding.” Maj. Op. 33. That reasoning would seem to

necessitate a remand separate and apart from any particular

arguments petitioner may have advanced to the BIA about

DIAZ-REYNOSO V. BARR 71

whether her “inability to leave” was based on something

other than domestic violence. Id. at 33.

Regardless, the majority is wrong to hold the BIA erred

by “assum[ing]” that petitioner’s “inability to leave her

relationship was attributable to domestic violence” and

“avoid[ing] the case-specific inquiry demanded by Matter of

A-B- and the BIA’s precedents.” Maj. Op. 33, 36. Petitioner

herself recognizes in her opening brief that in Matter of A-B-,

the Attorney General “specifically rejected the applicant’s

proposed social group of ‘El Salvadoran women who are

unable to leave their domestic relationships where they have

children in common with their partners.’” (Emphasis added).

Applying Matter of A-B-, which the court today upholds

under Chevron, the BIA here simply considered petitioner’s

specific articulation of her proposed social group under the

governing standards.

The BIA recognized that the petitioner’s proposed social

group was “substantially similar to the group in Matter of

A-R-C-G-.” The BIA at this point cited and incorporated the

decision of the IJ, which made clear that the entire basis for

petitioner’s proposed social group was her fear of domestic

violence. For this reason, the BIA could (and did) determine

that as in Matter of A-B-, “inability to leave” here was

“effectively defined to consist of women . . . who are victims

of domestic abuse because the inability ‘to leave’ was created

by harm or threatened harm.” Matter of A-B-, 27 I. & N. Dec.

at 334; see also Larita-Martinez v. INS, 220 F.3d 1092, 1096

(9th Cir. 2000) (explaining “the presumption” that the BIA

“did review the evidence”).

The BIA thus concluded that—because petitioner’s group

definition contained the same “inability to leave”

72 DIAZ-REYNOSO V. BARR

reference—it “suffer[ed] from the same circularity problem

articulated by the Attorney General in Matter of A-B-.” This

was not a “shortcut[],” as the majority claims, Maj. Op. 33,

but an application of Matter of A-B- of the type that has been

routinely affirmed in other circuits. Nor did the BIA offer a

“one-sentence analysis,” as the majority claims. Maj. Op. 32.

The BIA opinion devoted several paragraphs to this issue and

also incorporated two pages of the IJ’s decision.

The majority is thus incorrect in asserting that the BIA

here “committed the very same error it made in Matter of A-

B-.” Maj. Op. 35. Again, the fatal misstep identified in

Matter of A-B- was that the BIA in Matter of A-R-C-G- relied

on concessions to hold a similar proposed group was

cognizable. Matter of A-B-, 27 I. & N. Dec. at 334. In

contrast, the BIA here did the opposite of what the BIA did in

Matter of A-R-C-G-, because here it evaluated petitioner’s

proposed social group under the longstanding anti-circularity

principle that Matter of A-B- reaffirmed. It is hard to

understand why the BIA was required to say more when

petitioner’s claim clearly failed for a specific reason. As the

Fifth Circuit explained in denying a petition with a materially

identical proposed social group to the one here, “[a]s an

adjudicatory body, the BIA necessarily relies on established

precedents to decide matters pending before it and to avoid

re-inventing the wheel every time.” Gonzales-Veliz, 938 F.3d

at 232. And the “BIA did not blindly apply A-B- as a

categorical ban” when “A-B-’s substantive reasoning

happened to squarely foreclose [the petitioner’s] group.” Id.

Of course, even allowing that the vague phrase “unable to

leave” could be based on something other than harm (such as

cultural factors), I am hard-pressed to understand how the

BIA was supposed to derive that nuance from petitioner’s

DIAZ-REYNOSO V. BARR 73

brief to the BIA. Relying on Matter of A-R-C-G-, petitioner’s

counseled brief in the BIA argued that the proposed social

group “‘married women in Guatemala who are unable to

leave their relationship’ may share an immutable trait, where

specific facts demonstrated a woman’s inability to leave her

abusive marriage.” (Emphasis added). Petitioner’s brief to

the BIA then discussed the “repugnant abuse” and “weekly

beatings” at issue in Matter of A-R-C-G- and compared them

to petitioner’s own experience, explaining that petitioner

“[s]imilarly” “demonstrated that she suffered deplorable harm

and abuse by her ‘common law’ husband.” Contrary to the

majority opinion, the BIA thus did not “pluck[] one fact

identified by [petitioner]—that her husband physically abused

her.” Maj. Op. 35. This abuse was the central thrust of

petitioner’s entire submission to the BIA.

The majority opinion nevertheless states that the

petitioner “advanced evidence of economic, societal, and

cultural factors that also may have prevented her from leaving

her relationship.” Maj. Op. 34. But what the majority cites

for this are pages from the petitioner’s brief to the IJ, which

extensively discuss how the “inability to leave” is based on

domestic violence. To the extent petitioner and her expert

cited societal and cultural factors in Guatemala before the IJ,

they repeatedly intermixed them with domestic violence

itself. In other words, petitioner’s own application thus

specifically wove domestic violence into its identification of

the proposed group, at a time when Matter of A-R-C-G- was

the prevailing BIA precedent. But in all events, petitioner

certainly did not present “inability to leave” as a concept

distinct from the harm itself. And presenting the proposed

group in that way would likely have created problems for

other aspects of petitioner’s required showing, such as social

distinction and nexus.

74 DIAZ-REYNOSO V. BARR

Under all these circumstances, I cannot fault the BIA for

not divining an interpretation of “inability to leave” that

petitioner did not clearly advance. On this point, this court

reviews denials of withholding of removal “for substantial

evidence.” Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th

Cir. 2017) (quotations omitted). “Under the substantial

evidence standard, the court upholds the BIA’s determination

unless the evidence in the record compels a contrary

conclusion.” Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir.

2007). Given the (at best) imprecise nature of the phrase

“inability to leave” and the record in this case, I cannot

conclude that the BIA’s assessment that the proposed social

group was effectively defined by the harm lacks substantial

evidence.5

Finally, the majority errs in premising its own remand on

the BIA’s remand in Matter of A-B-. According to the

majority, “the best indication that [mention of physical abuse]

does not categorically disqualify [petitioner’s] social group is

that the Attorney General remanded Matter of A-B- for the

BIA to conduct a proper analysis, . . . [r]ather than simply

invalidating th[e] group.” Maj. Op. 35. This is not correct.

5

The majority relies on De Pena-Paniagua v. Barr, 957 F.3d at 94,

for the proposition that “[t]here are many reasons a petitioner might be

unable to leave a relationship, including a variety of ‘cultural, societal,

religious, economic, or other factors.’” Maj. Op. 34 n.11. But for this

observation, the First Circuit cited Matter of A-R-C-G-, see De Pena-

Paniagua, 957 F.3d at 94, which the Attorney General of course overruled

in Matter of A-B-. In all events, De Pena-Paniagua theorized that “a

woman’s inability to leave a relationship may be the product of forces

other than physical abuse.” Id. at 93. The question in this case is whether

the record supports such a characterization of the proposed social group.

For the reasons set forth above, the record does not compel the conclusion

that the BIA erred in construing the petitioner’s proposed group in the way

that it did.

DIAZ-REYNOSO V. BARR 75

The Attorney General in Matter of A-B- was unequivocal that

“[h]ad the [BIA] properly analyzed the issues” in Matter of A-

R-C-G-, “then it would have been clear that the particular

social group was not cognizable.” Matter of A-B-, 27 I. & N.

Dec. at 334 (emphasis added). The Attorney General in

Matter of A-B- was therefore not somehow suggesting that

the BIA in any further proceedings that may occur in Matter

of A-B- itself could somehow treat as cognizable the very

proposed social group that Matter of A-B- expressly rejected.

The standard remand language in Matter of A-B- “for further

proceedings consistent with this opinion,” id. at 346, should

thus not be construed as a basis for our court to remand a

petition where the BIA complied with Matter of A-B-.

* * *

In upholding the Attorney General’s decision in Matter of

A-B-, we should have faithfully interpreted it. And in

reviewing the BIA’s decision applying Matter of A-B- to

petitioner’s application, we should have recognized the BIA’s

adherence to an Attorney General decision that is itself based

on longstanding precedent and at the very least reasonable.

The Attorney General in Matter of A-B- emphasized that

under the INA, claims for asylum and withholding of removal

based on domestic violence “are unlikely to satisfy the

statutory grounds for proving group persecution.” 27 I. & N.

Dec. at 320. Today’s decision does not directly quarrel with

that understanding, but it sets forth an internally inconsistent

analytical framework that is at odds with it, and also at odds

with how other circuits have handled this issue.

Where all of this will lead is uncertain. The majority’s

opinion remands this case “for further consideration” so the

BIA can conduct a “case-specific inquiry” under “the

76 DIAZ-REYNOSO V. BARR

required framework.” Maj. Op. 37, 39, 40. The BIA can be

forgiven if it finds this directive unclear. The only certainty

is that these issues will be before us again, as the BIA tries to

comply with both Matter of A-B- and today’s ruling. I

respectfully dissent.