United States Court of Appeals For the First Circuit
No. 23-1543
PAMLAR FERREIRA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge, Gelpí and Rikelman, Circuit Judges.
SangYeob Kim, with whom Gilles Bissonnette and American Civil Liberties Union of New Hampshire were on brief, for petitioner.
Joseph A. O'Connell, Attorney, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, and Cindy S. Ferrier, Assistant Director, were on brief, for respondent.
Daniel V. Ward, Marianne Staniunas, Abigail Alfaro, Michelle Marie Mlacker, Colleen S. Roberts, and Ropes & Gray LLP on brief for Immigration Law Professors et al., amici curiae.
Deborah Anker, Sabrineh Ardalan, Nancy Kelly, John Willshire Carrera, and Harvard Immigration & Refugee Clinical Program on brief for Harvard Immigration and Refugee Clinical Program et al., amici curiae. March 21, 2024 RIKELMAN, Circuit Judge. Pamlar Ferreira petitions for
review of a decision by the Board of Immigration Appeals ("BIA")
upholding the denial of her application for withholding of removal.
Ferreira requests that we remand the case so that the BIA may
consider anew whether withholding is appropriate on the basis of
her two asserted particular social groups: "family" and
"Trinidadian women who oppose Trinidad's social norms in that they
do not want to be subjected to abuse or violent sexual abuse by
family members or significant others based on their gender." We
grant the petition in part, vacate the BIA's decision as to
Ferreira's gender-based claim, and remand for further proceedings
consistent with this opinion.
I. BACKGROUND
A. Relevant Facts1
Ferreira is a sixty-one-year-old citizen of Trinidad and
Tobago. As a young child, Ferreira lived with her parents and
siblings. When Ferreira was nine, however, her parents divorced,
and she went to live with her aunt. Two other family members
resided in her aunt's household: Jason Mujica, the aunt's twenty-
1"We draw the relevant facts from the administrative record," including Ferreira's testimony, which the immigration judge expressly found to be credible. Barnica-Lopez v. Garland, 59 F.4th 520, 525 n.1 (1st Cir. 2023) (citing Adeyanju v. Garland, 27 F.4th 25, 31 (1st Cir. 2022)).
- 3 - three-year-old husband and Ferreira's uncle, and Ferreira's
cousin.
The uncle began sexually abusing Ferreira shortly after
she joined the household. Although Ferreira resisted, the uncle
threatened to kill her mother if she did not comply. The abuse
occurred "almost every night" for six years, from the time Ferreira
was nine until she was fifteen. Despite threats from her uncle
that he would kill her if she left, Ferreira ran away from her
aunt's home at the age of fifteen and began living at her
grandmother's store. Ferreira testified that she was both afraid
of her uncle and ashamed of having been abused by a family member;
as a result, she did not go to the police or tell anyone else about
the abuse. Instead, she stayed in her grandmother's store, leaving
only to attend school.
After leaving her aunt's house, Ferreira never saw or
spoke to the uncle again. However, the uncle asked other family
members about Ferreira on two separate occasions. First,
approximately one month after Ferreira ran away, her older brother
informed her that the uncle had asked about her. Second, many
decades later, Ferreira's mother, then residing in the United
States, encountered the uncle when she returned to Trinidad to
sell a property in 2018. During the encounter, which we describe
in detail below, the uncle asked about Ferreira and whether she
- 4 - was ever returning to Trinidad. Ferreira's mother lied and told
the uncle that she had lost touch with Ferreira.
When Ferreira came to the United States in the mid-1980s,
at the age of twenty-three, she told her sister about the uncle's
abuse, but her sister did not believe her. In 2010, Ferreira was
diagnosed with post-traumatic stress disorder, a condition she
attributes to the years of sexual abuse she endured.
The last interaction between the uncle and Ferreira's
nuclear family was in 2018, when Ferreira's mother briefly returned
to Trinidad to sell her house. The uncle, accompanied by three or
four other men, accosted the mother at her property and attempted
to rob her. The men tied the mother to a chair for several hours
before releasing her. Ferreira's mother never reported the
incident to police.
B. Legal Proceedings
On December 21, 1985, Ferreira entered the United States
on a B-2 nonimmigrant visa with authorization to remain for up to
six months. Ferreira has resided in the United States without
authorization since her visa expired.
In March 2019, Ferreira was convicted in the United
States District Court for the District of New Hampshire of three
criminal charges related to her fraudulent application for a United
- 5 - States passport.2 The district court sentenced her to twelve
months and one day of incarceration.
The Department of Homeland Security then commenced
removal proceedings against Ferreira on October 4, 2019. In the
Boston Immigration Court, Ferreira initially applied for asylum,
withholding of removal, and protection under the Convention
Against Torture ("CAT"), but she later clarified that she would
seek only withholding of removal and protection under the CAT.3
Ferreira's statutory withholding claim was based on her membership
in two particular social groups ("PSGs"): (1) "Trinidadian women
who oppose Trinidad's social norms in that they do not want to be
subjected to abuse or violent sexual abuse by family members or
significant others based on their gender"; and (2) "family." By
"family," Ferreira explained that her persecutor's "relationship
as her uncle forms a social group because the fact that they are
related is a definitive characteristic that cannot be changed;
their kinship is fundamental to their identities."
In her pre-hearing briefing and testimony before the
immigration judge ("IJ"), Ferreira recounted the abuse she
2 See 18 U.S.C. § 1001(a)(2) (false statements); 18 U.S.C. § 911 (false claim of citizenship); 42 U.S.C. § 408(a)(7)(B) (false representation of a social security number). 3 Ferreira only seeks review of the denial of her statutory withholding claim. Therefore, in recounting the decisions below, we limit our discussion to the withholding analysis.
- 6 - experienced as a child and her ongoing fear of her uncle. Ferreira
also testified that the uncle was now at least seventy years old
and she could not confirm that he was still alive or that he would
have any interest in harming her if she returned to Trinidad.
Ferreira stated that, if she did return to Trinidad and her uncle
were still alive, she would try to report him to the police.
The IJ issued his opinion on February 12, 2020. He
concluded both that Ferreira was credible and that the abuse
Ferreira experienced was severe enough to rise to the level of
persecution. Nonetheless, the IJ denied Ferreira's statutory
withholding claim.
First, the IJ held that neither of Ferreira's proffered
PSGs were legally cognizable. Assessing Ferreira's family-based
PSG, the IJ concluded that Ferreira failed to demonstrate that her
family was socially distinct within Trinidad, citing Matter of
L-E-A-, 27 I.& N. Dec. 581 (A.G. 2019), later vacated by Matter of
L-E-A-, 28 I. & N. Dec. 304 (A.G. 2021). Addressing Ferreira's
gender-based PSG, the IJ found that the PSG was not particular
because "it is not clear what someone would have to do to oppose
a social norm in Trinidad, nor is it clear . . . what the Trinidad
social norms are." Further, the IJ concluded that the gender-based
PSG was too amorphous and lacked social distinction because of
"insufficient evidence that [those] opposing Trinidad social norms
are recognized as discrete elements of society."
- 7 - Second, the IJ determined that, even if Ferreira's
asserted PSGs were cognizable, Ferreira's abuse was not "on account
of" a statutorily protected ground. The IJ found that "there [was]
insufficient evidence the uncle was motivated [to harm] or
targeted" Ferreira because of her membership in either PSG.
Instead, the uncle was a "predator" who committed "a criminal act
of child abuse," and he focused on Ferreira because she "was
younger than him" and because of her "proximity" to him "under his
own roof."
Ferreira appealed the IJ's decision to the BIA. However,
the BIA received her initial brief a day late, and Ferreira later
resubmitted it with a motion to accept the late-filed brief. The
BIA did not rule on Ferreira's motion but affirmed the IJ's
decision without issuing an opinion. Ferreira then sought review
from this court. See Ferreira v. Garland, No. 20-1865 (1st Cir.
2020). After Ferreira submitted her opening brief, the government
filed an unopposed motion to remand the case back to the BIA; we
granted that motion.
On remand, the BIA once again affirmed the IJ's denial
of Ferreira's statutory withholding claim. As to the family-based
claim, the BIA did not adopt the IJ's cognizability analysis and
instead acknowledged that "family" can constitute a valid PSG.
Nevertheless, the BIA upheld the IJ's rejection of Ferreira's
family-based claim on nexus grounds, finding "no clear error" in
- 8 - the IJ's determination that there was insufficient evidence that
the uncle was motivated to harm Ferreira or targeted her based on
her membership in their family. The BIA also expressly agreed
with the IJ's finding that "the uncle's criminal intent fueled
[his] abuse of [Ferreira]."
The BIA then turned to the gender-based PSG and agreed
with the IJ that it was not legally cognizable. Framing Ferreira's
PSG as "women who are subjected to and oppose" gender-based
violence, the BIA adopted the IJ's legal determination that this
PSG was amorphous and not defined with particularity. It also
concluded that the PSG was circular because it was "impermissibly
defined in large part by the harm inflicted on its members."
Finally, although Ferreira had argued to the BIA that "a true
articulation" of her gender-based PSG may have been "Trinidadian
women" or "female Trinidadian survivors of domestic violence," the
BIA declined to address any "other particular social groups
[offered] for the first time on appeal," citing Matter of W-Y-C- &
H-O-B-, 27 I. & N. Dec. 189, 190-91 (BIA 2018). Ferreira timely
sought review from our court.
- 9 - II. DISCUSSION
A. Legal Framework
We begin by discussing the legal framework governing
Ferreira's claims. As factfinder, the IJ "conduct[s] proceedings
for deciding the inadmissibility or deportability" of an
individual. 8 U.S.C. § 1229a(a)(1); see also 8 C.F.R.
§ 1003.10(a). On appeal, the BIA is tasked with reviewing the
IJ's factual conclusions for clear error. 8 C.F.R.
§ 1003.1(d)(3)(i). But the BIA reviews de novo "questions of law,
discretion, and judgment and all other issues in appeals from
decisions of immigration judges," 8 C.F.R. § 1003.1(d)(3)(ii),
including the ultimate conclusion of whether the facts identified
by the IJ are sufficient to satisfy the legal requirements of
nexus, see Matter of S-E-G-, 24 I. & N. Dec. 579, 588 n.5 (BIA
2008) ("The record before us is adequate to allow us to perform
de novo review of the legal issues presented, specifically,
whether the [applicants] established that they were persecuted 'on
account of' a protected ground.").
Turning to our standard of review, we "typically focus[]
on the final decision of the BIA." Loja-Tene v. Barr, 975 F.3d
58, 60 (1st Cir. 2020). However, "to the extent that the BIA
deferred to or adopted the IJ's reasoning, we review those portions
of the IJ's decision" as well. Chavez v. Garland, 51 F.4th 424,
- 10 - 429 (1st Cir. 2022) (citing Bonilla v. Mukasey, 539 F.3d 72, 76
(1st Cir. 2008)).
We review the BIA's legal conclusions de novo "with 'some
deference to its interpretations of statutes and regulations
related to immigration matters.'" Espinoza-Ochoa v. Garland, 89
F.4th 222, 230 (1st Cir. 2023) (quoting Aldana-Ramos v. Holder,
757 F.3d 9, 14 (1st Cir. 2014)).4 We uphold factual findings under
the substantial evidence standard unless the record compels a
contrary conclusion. Id. (citing Varela-Chavarria v. Garland, 86
F.4th 443, 449 (1st Cir. 2023)). When discussing the BIA and IJ's
decisions as a unit, we refer to them jointly as "the agency."
Pineda-Maldonado v. Garland, 91 F.4th 76, 80 (1st Cir. 2024).
An applicant for withholding of removal "must establish
a clear probability that, if returned to [her] homeland, [s]he
4 In a footnote, Ferreira points out that although the BIA reviews de novo the ultimate legal conclusion of whether the facts and evidence are sufficient to satisfy the nexus requirement, this court reviews the BIA's nexus determination under the substantial evidence standard. As Ferreira recognizes, our decision in Aguilar-Escoto v. Garland noted the tension inherent in applying the substantial evidence standard, a mode of review "reserved for factual findings," to "the determination of whether a given set of facts meets the standard of persecution," a legal conclusion. 59 F.4th 510, 519-520 (1st Cir. 2023). This same tension exists in how we review the agency's nexus conclusion, which, as with persecution, involves factual determinations by the IJ but a de novo review by the BIA as to whether those facts taken together are sufficient to meet the legal standard. See 8 C.F.R. 1003.1(d)(3)(ii); Matter of S-E-G-, 24 I. & N. Dec. at 588 n.5. However, Ferreira does not ask us to resolve the tension in these different standards of review.
- 11 - will be persecuted on account of a statutorily protected ground."
Varela-Chavarria, 86 F.4th at 449 (alterations in original)
(quoting Sanchez-Vasquez v. Garland, 994 F.3d 40, 46 (1st Cir.
2021)). To satisfy this standard, an applicant must meet a
three-part test: "a threshold level of past or anticipated serious
harm, a nexus between that harm and government action or inaction,
and a causal connection to one of the five statutorily protected
grounds." Espinoza-Ochoa, 89 F.4th at 230 (citation omitted).
The statutorily protected grounds include "race,
religion, nationality, membership in a particular social group, or
political opinion." 8 U.S.C. § 1231(b)(3)(A). When "an applicant
[is] seeking relief based on [her] membership in a PSG [she] '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.'"
Espinoza-Ochoa, 89 F.4th at 231 (quoting Paiz-Morales v. Lynch,
795 F.3d 238, 244 (1st Cir. 2015)).
To meet the nexus requirement, an applicant must
demonstrate "that [her] persecution was 'on account of' [the]
protected ground, meaning that the protected ground was 'at least
one central reason' for the persecution." Id. at 235 (emphasis
and internal citations omitted). That does not mean that the
applicant must "demonstrate that [s]he was singled out only due to
[her] protected trait" or even that the protected trait was the
- 12 - most important reason for the persecution. Id. (quoting
Barnica-Lopez, 59 F.4th at 531).5 Instead, she must show that the
PSG "was not 'incidental, tangential, superficial, or subordinate
to another reason for [the] harm.'" Id. (alteration in original)
(quoting Barnica-Lopez, 59 F.4th at 531).
"In the case of withholding of removal . . . evidence of
past persecution creates a rebuttable presumption of future
persecution." Pineda-Maldonado, 91 F.4th at 82-83.
B. Family-Based PSG
The BIA found that Ferreira was not entitled to
withholding of removal on the basis of her family-based PSG because
she failed to demonstrate a nexus between the abuse she experienced
and her family membership. In reaching this conclusion, the BIA
relied on the IJ's factual findings that the abuse was "a criminal
act done by a predator based on his proximity to the victim" and
that there was "insufficient evidence the uncle was motivated [to
harm] or targeted [Ferreira] because of family." Ferreira
challenges the BIA's rejection of her family-based PSG claim on
both factual and legal grounds. After careful consideration, we
conclude that the record does not compel a contrary conclusion as
"Due to the substantive similarities in the standards for 5
asylum and withholding of removal claims, asylum precedents may be helpful in analyzing withholding-of-removal cases, and vice versa." Espinoza-Ochoa, 89 F.4th at 230 (internal quotations omitted) (quoting Barnica-Lopez, 59 F.4th at 528).
- 13 - to the underlying facts and find no legal errors in the BIA's
analysis.
We have frequently had cause to consider if persecution
is "on account of" family membership. See id. at 85 (collecting
cases). Our precedent provides that "[i]n order for family
membership to serve as 'the linchpin for a protected social group,'
it 'must be at the root of the persecution, so that family
membership itself brings about the persecutorial conduct.'"
Ruiz-Escobar v. Sessions, 881 F.3d 252, 259 (1st Cir. 2018)
(quoting Ruiz v. Mukasey, 526 F.3d 31, 38 (1st Cir. 2008)); see
also Matter of L-E-A-, 27 I. & N. Dec. 40, 43-44 (BIA 2017) ("If
the persecutor would have treated the applicant the same if the
protected characteristic of the family did not exist, then the
applicant has not established a claim on this ground."). We also
consider whether it is possible to "'disentangle' the applicant's
family status" from the persecutor's other motives, or if "they
are two sides of the same coin." Pineda-Maldonado, 91 F.4th at
88-89 (quoting Perez-Sanchez v. U.S. Att'y Gen., 935 F.3d 1148,
1158 (11th Cir. 2019)). Therefore, the "fact-dependent nature of
the nexus inquiry" is of particular importance when we assess
"claims of persecution 'on account of' family status." Id. at 86.
We thus begin with Ferreira's argument that the agency
did not fully consider her credible testimony and the documentary
country conditions evidence when it found that her abuse was "a
- 14 - criminal act done by a predator based on his proximity to the
victim" -- not a result of Ferreira's family membership. The
decisions below, however, demonstrate that the agency did consider
the aspects of the record that Ferreira brings to our attention.
As to Ferreira's testimony, our review of the record
reveals that Ferreira never stated that she believed her uncle
abused her because she was his niece. Instead, Ferreira testified
that the uncle abused her "because he[ was] having a good time[,
and] . . . he[ was] enjoying it," consistent with the IJ's finding
that his abuse was motivated by his own criminal, sexual desires.
Ferreira's account of the timeline of the abuse also
supports the IJ's factual finding and so fails to show that the
agency did not consider the evidence that she contends supports
her claim. Ferreira testified that after she went to live with
her aunt's family, her uncle sexually abused her from the ages of
nine to fifteen. Ferreira did not experience abuse before moving
into the aunt's home. And after Ferreira ran away from the home,
she never saw or spoke to the uncle again. The IJ relied on the
fact that the uncle "never harmed her before or after she lived
there" as evidence that Ferreira's proximity in the uncle's home
was the underlying reason for the abuse, not her status as the
uncle's niece, a family connection that both pre- and post-dated
the abuse.
- 15 - Relatedly, Ferreira contends that she "credibly
testified that the uncle continuously pursued [her] even after she
escaped from the house" and objects to the agency's factual finding
to the contrary. But the record does not support Ferreira on this
point. In the decade after her abuse, Ferreira's own testimony
establishes that the uncle inquired about her only on a single
occasion, when he spoke to Ferreira's brother, approximately one
month after she ran away. This single instance of inquiry is
insufficient to compel a contrary conclusion on this factual issue.
The evidence on which Ferreira relies also is insufficient to show
that the IJ's findings were clearly erroneous such that the BIA
legally erred in its application of clear-error review.
Moving to her country conditions evidence, Ferreira
argues that the agency ignored this evidence altogether in its
nexus analysis. But the IJ expressly discussed the "seven numbered
exhibits" Ferreira had submitted into the record below, which
included the country conditions reports, and stated that he had
considered those exhibits, whether discussed in his decision or
not. And the BIA explicitly noted that it had considered
Ferreira's arguments on appeal following remand, citing to the
pages of her brief that discussed the documentary evidence and
holding it found her arguments "not persuasive."
To be sure, in some situations this generic language
would be insufficient and would justify a decision to vacate,
- 16 - including when the evidence at issue provides particularly strong
support for the applicant or when there are other indications the
agency simply turned a "blind eye" to relevant evidence.
Aguilar-Escoto, 59 F.4th at 515. But that is not the case here.
Instead, the documentary evidence generally discusses societal
conditions in Trinidad, such as "male dominance in the family" and
statistics showing the prevalence of domestic violence, including
sexual abuse, and provides basic background facts that the parties
do not dispute. Ferreira argues that these societal conditions
contributed to her uncle's decision to select her for abuse, such
that their family connection was part of the reason she was
targeted. But the country conditions evidence, although
important, is not sufficient to establish persecution on the basis
of family membership in every case. There is no doubt that the
sexual abuse Ferreira endured was horrific and easily meets the
standard for persecution. But the IJ's factual finding that there
was no nexus between the family relationship and that persecution
is supported by substantial evidence, and thus, here, too, the BIA
did not err in its application of clear-error review.
Ferreira also urges us to vacate based on what she views
as legal errors in the agency's nexus analysis. Ferreira's legal
challenges to the rejection of her family-based PSG focus on four
overlapping arguments: (1) the BIA was obligated to conduct a de
novo review of the IJ's ultimate nexus conclusion; (2) the agency
- 17 - cited but never applied a mixed-motive analysis and thus failed to
consider if her family-based PSG was intertwined with her uncle's
criminal motivation; (3) the agency never conducted what she
describes as an unwilling or unable analysis; and (4) the agency
never considered her standalone claim of future persecution.
As we have explained, the BIA does have an obligation to
review de novo the IJ's ultimate nexus conclusion in light of the
arguments presented by a petitioner. See Matter of S-E-G-, 24 I.
& N. Dec. at 588 n.5. Here, the BIA's decision indicates that it
did consider each of Ferreira's nexus-related arguments and thus
committed no legal error in affirming the IJ's ultimate nexus
conclusion.
We begin with Ferreira's argument that the agency never
engaged in a mixed-motive analysis. Our review reveals that the
IJ did not ignore the possibility of multiple motives but simply
concluded that, on this record, there was not enough evidence to
establish other motivations or reasons for the abuse.
Specifically, the IJ found that there was "insufficient evidence"
to conclude that Ferreira was targeted on the basis of her family
membership. Instead, the IJ found her abuse was on account of
other factors: Ferreira was a child, she was living in the uncle's
house, and the uncle was "a predator." The BIA affirmed that
Ferreira's abuse was on account of these reasons and held there
- 18 - was "no nexus" between Ferreira's family-based PSG and the harm
she experienced.
Ferreira argues that the "close physical proximity" to
her uncle occurred only because of their family relationship. But
although the family relationship was the reason that Ferreira ended
up living with the uncle, the record here does not compel the
conclusion that the "family membership itself [brought] about the
persecutorial conduct." Ruiz-Escobar, 881 F.3d at 259 (quoting
Ruiz, 526 F.3d at 38). Rather, there is record support for the
IJ's finding that the uncle targeted Ferreira because she was
present in his home, regardless of their relationship. As a
result, there is substantial evidence for "the agency's conclusion
that family ties did not motivate [Ferreira's] persecution, even
though those ties may have brought [her] into proximity with [her]
persecutor." Loja-Tene, 975 F.3d at 62.
In sum, the BIA held that there was "no nexus" between
Ferreira's persecution and her status as her persecutor's niece.
Because there is substantial evidence in the record here for that
finding, the BIA did not need to go further. Pineda-Maldonado, 91
F.4th at 85 ("[W]e do not disagree with the agency that, insofar
as the record supportably shows in this case that the mistreatment
at issue was solely driven by a [motivation not protected under
- 19 - the statute], there would be no basis for overturning the agency's
nexus finding.").6
We turn next to Ferreira's contention that the BIA failed
to conduct what she describes as an unwilling or unable analysis.7
In her brief to the BIA, Ferreira argued that "nexus may flow from
the reasons for lack of state protection, rather than the reasons
motivating" the persecutor. Specifically, Ferreira contended that
the Trinidadian government was unwilling or unable to protect
Ferreira from her uncle's sexual abuse because the government does
not intervene in situations of domestic violence, which are
perceived in Trinidad as "family matter[s]."
We conclude that the BIA did consider this argument and
find no legal error in its analysis. After discussing both PSGs,
6Ferreira and her amici also invite us to reject our past application of the "one central reason" nexus standard for evaluating mixed-motive withholding of removal claims and to instead adopt a less demanding "a reason" standard, which they argue better accords with the plain meaning of the withholding statute. However, we decline to opine on the mixed-motive standard for withholding of removal in a case where the agency did not err in concluding that the asserted protected ground (here, family) was not even a reason for the applicant's persecution. 7In a supplemental brief, the government argues that Ferreira waived the unwilling or unable argument because she did not advance it before the IJ. The BIA did not raise the issue of waiver or forfeiture as to any of Ferreira's nexus arguments but rather dismissed them as "not persuasive." As such, we assume without deciding that Ferreira adequately raised the issue. See James v. Garland, 16 F.4th 320, 321 n.1 (1st Cir. 2021) (not addressing issue of waiver when BIA did not raise or address potential waiver).
- 20 - the BIA included a final paragraph in its decision indicating that
it had considered all of Ferreira's arguments "concerning the two
relevant particular social groups in this case (Respondent's Brief
at 7-21)" and rejected them as "not persuasive" and "largely
rely[ing] on cases arising outside the jurisdiction of the First
Circuit." Ferreira's alternative nexus argument is included in
the page range delineated by the BIA. And, before both the BIA
and this court, Ferreira supports her alternative nexus argument
exclusively with out-of-circuit precedent. See Kamar v. Sessions,
875 F.3d 811, 818 (6th Cir. 2017); Sarhan v. Holder, 658 F.3d 649,
656 (7th Cir. 2011).8
Further, the extent of Ferreira's argument to the BIA on
this theory was a single sentence in her brief -- "[c]ircuit courts
and the BIA have found that nexus may flow from the reasons for
lack of state protection, rather than the reasons motivating the
agent of harm" -- followed by a string cite to the out-of-circuit
precedent. In both Kamar and Sarhan, however, the two cases on
8 Ferreira also cites Matter of Kasinga, which would be binding on the agency. 21 I. & N. Dec. 357, 367 (BIA 1996) ("We agree with the parties that, as described and documented in this record, FGM [(female genital mutilation)] is practiced, at least in some significant part, to overcome sexual characteristics of young women of the tribe who have not been, and do not wish to be, subjected to FGM. We therefore find that the persecution the applicant fears in Togo is 'on account of' her status as a member of the defined social group."). However, a close review of the nexus holding in that case reveals that the conclusion was still predicated on the motivation of the applicant's persecutors. Id. at 366-67.
- 21 - which Ferreira relies, the courts evaluated withholding claims
based solely on a claim of future persecution. See Kamar, 875
F.3d at 818; Sarhan, 658 F.3d at 660. Specifically, the applicants
in Kamar and Sarhan were Jordanian women who alleged that they
would be murdered in an "honor killing" if forced to return to
their home country and that it would be futile for them to seek
protection from the Jordanian government because it would refuse
to intervene. See Kamar, 875 F.3d at 818; Sarhan, 658 F.3d at
656-57. In support, both applicants pointed to widespread social
norms in Jordan "that impose behavioral standards on women and
permit family members to sentence those who violate these standards
to death." Kamar, 875 F.3d at 818; see also Sarhan, 658 F.3d at
656 ("[The applicant] faces death because of a widely-held social
norm in Jordan -- a norm that imposes behavioral obligations on
her and permits [male persecutors] to enforce them in the most
drastic way."). The court in each case therefore held that the
agency had erred in concluding the applicant would not "be
persecuted on account of her membership in the social group she
ha[d] identified." Sarhan, 658 F.3d at 656; see also Kamar, 875
F.3d at 820.
Here, by contrast, Ferreira did not testify that if she
returned to Trinidad and her uncle attempted to abuse her, the
government would refuse to protect her. Instead, Ferreira
indicated that she was unsure if her uncle was even alive, and
- 22 - that, if he were and tried to harm her, she would turn to the
police.9 Given the factual differences between Ferreira's
circumstances and these out-of-circuit cases, the BIA did not err
as a matter of law in rejecting Ferreira's alternative nexus claim.
Finally, Ferreira argues that the BIA did not address
her claim of family-based future persecution. As a reminder, to
be eligible for withholding of removal, the applicant must
demonstrate "that it is 'more likely than not that [she] will be
persecuted on account of a protected ground upon [her] return to
[her] native land.'" López-Castro v. Holder, 577 F.3d 49, 52 (1st
Cir. 2009) (quoting Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.
2005)). Unlike in the asylum context, this is solely an objective
inquiry that does not consider an applicant's subjective fear.
Id. at 54.
Given that we analyze the BIA and IJ's opinions together
to the extent the BIA adopts the IJ's decision, Chavez, 51 F.4th
at 429, we conclude that the agency did sufficiently address
9We note that usually the unwilling or unable analysis concerns whether conduct by a non-government actor can still qualify as persecution. See, e.g., Aguilar-Escoto, 59 F.4th at 518 ("In order to constitute 'persecution' for purposes of asylum and withholding of removal, harm must either be perpetrated by the government itself or by a private actor that the government is unwilling or unable to control." (citations omitted)). But the unwilling or unable argument that Ferreira makes to us does not concern the requirement that the government be unwilling or unable to prevent the private conduct in order for that private conduct to qualify as persecution.
- 23 - Ferreira's claims of future persecution. At the outset of its
analysis, the BIA explained that it disagreed with Ferreira that
the IJ "should have found a likelihood of persecution on account
of one or both [of her] particular social groups." And the IJ
clearly found that Ferreira "did not have any objective,
well-founded fear of future persecution" on account of her
family-based PSG. He noted that Ferreira had not spoken to her
uncle since 1985; there was no evidence that the uncle had tried
to contact Ferreira in the intervening years, including via phone
or social media; and Ferreira herself testified that she was not
certain her uncle would even care about her at this juncture. The
IJ also discussed the uncle's encounter with Ferreira's mother in
2018, concluded the uncle's harassment was a criminal attempt "to
obtain money from respondent's mother because he thought that she
had money," and found that their conversation about Ferreira did
not support a clear probability of persecution by the uncle. The
BIA affirmed the IJ on this point. The BIA also affirmed the IJ's
finding that Ferreira's testimony indicated the uncle targeted her
mother for pecuniary reasons and not on account of family
membership. Based on this record, we find no legal error in the
agency's analysis, especially when we also affirm the agency's
conclusion that Ferreira had failed to establish past persecution
on account of her family membership.
- 24 - C. Gender-Based PSG
We now turn to Ferreira's gender-based PSG claim, which
the BIA rejected because it concluded her proffered PSG was not
legally cognizable. As a secondary holding, the BIA explained
that "[t]o the extent the respondent proposes other particular
social groups for the first time on appeal, [it] declined to
address those groups."
Ferreira argues that the BIA was wrong on both counts.
Specifically, she contends the BIA erred in concluding her PSG was
not cognizable because it fundamentally misunderstood her proposed
PSG and this misunderstanding infected the BIA's subsequent
findings on particularity, social distinction, and circularity.
With regard to her alternative formulations of her gender-based
PSG, Ferreira asserts that the BIA failed to consider if they were
"substantially different" from her original PSG, as required under
the framework established in Matter of W-Y-C-, 27 I. & N. Dec. at
190-91. Finally, Ferreira argues that the BIA ignored her request
to remand to the IJ for additional consideration of her
gender-based PSG in light of our intervening decision in De
Pena-Paniagua v. Barr, 957 F.3d 88 (1st Cir. 2020).
The gender-based PSG that Ferreira advanced to the
agency was "Trinidadian women who oppose Trinidad's social norms
in that they do not want to be subjected to abuse or violent sexual
abuse by family members or significant others based on their
- 25 - gender." "Under the BIA's well-established interpretation of the
[Immigration and Nationality Act], an applicant seeking relief
based on [her] membership in a PSG '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.'" Espinoza-Ochoa, 89
F.4th at 231 (quoting Paiz-Morales, 795 F.3d at 244). The social
distinction requirement also encompasses the rule against
circularity, which requires "that an eligible PSG must 'be
perceived as a group by society,' not merely by its persecutors."
Id. (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 240 (BIA
2014)).
Although the BIA correctly restated this PSG at the
outset of its opinion, when it began its analysis of the PSG in
earnest it inaccurately delineated the PSG as "women who are
subjected to and oppose such violence." (Emphasis added.)
Similarly, the BIA held that "[t]here is insufficient evidence to
establish that Trinidadian society recognizes those past victims
of domestic violence who oppose such violence as a distinct group."
(Emphasis added.) Seemingly on this basis, the BIA also explained
that the PSG is "impermissibly defined in large part by the harm
inflicted on its members."
The BIA did not accurately represent Ferreira's
articulated PSG. On its face, Ferreira's PSG includes all
- 26 - Trinidadian women who oppose social norms "in that they do not
want to be subjected" to gender-based domestic violence. The BIA,
by defining Ferreira's group as women "who are subjected to and
oppose" gender-based domestic violence, imposed an additional
condition: that the women in the PSG also must be survivors of
gender-based violence.10 Ferreira's articulated PSG includes no
such limitation. This one alteration was crucial to the BIA's
ultimate conclusion that Ferreira's PSG was not cognizable. The
BIA rejected her PSG because it was amorphous and defined by the
"the harm inflicted on its members." Both conclusions stem from
the introduction of "past victims of domestic violence" into the
definition of the PSG.
10The government argues that the BIA's framing of Ferreira's PSG addresses two sub-groups: (1) women who are subjected to gender-based violence and (2) women who oppose such violence, regardless of whether they have previously been subjected to it. Under this reading, the government argues, the BIA both understood and addressed Ferreira's articulated social group. We do not share the government's view. In this context, the word "and" indicates that the two elements "who are subjected to" and "[who] oppose" should be read jointly. See Bruesewitz v. Wyeth LLC, 562 U.S. 223, 236 (2011) ("[L]inking independent ideas is the job of a coordinating [con]junction like 'and.'"). Had the BIA intended for the clauses to be read separately, it should have used the conjunction "or." See Loughrin v. United States, 573 U.S. 351, 357 (2014) (explaining that the ordinary meaning of the word "or" is "almost always disjunctive, that is, the words it connects are to be given separate meanings"). Moreover, the BIA's description of "women who are subjected to and oppose such violence" as "a discrete group" indicates that the BIA intended to refer to a single group of women.
- 27 - Read correctly, however, Ferreira's PSG can fairly be
divided into two parts: a statement of the individuals included in
the group ("Trinidadian women who oppose Trinidad's social norms")
and a definition of what it means to "oppose Trinidad's social
norms" ("in that they do not want to be subjected to abuse or
violent sexual abuse by family members or significant others based
on their gender"). Accordingly, Ferreira's PSG can be restated
simply as "Trinidadian women who oppose gender-based domestic
violence." There is no requirement that its members be survivors
of such violence.
In sum, the BIA rejected a PSG of its own devising and
not the social group Ferreira advanced. Its characterization
substantively altered the meaning of Ferreira's proffered PSG and
amounts to legal error. See Crespin-Valladares v. Holder, 632
F.3d 117, 125 (4th Cir. 2011) (The "[legal] error flowed from the
fact that, as the Government concedes, the BIA's removal order
rejected a group different from that which the Crespins
proposed.").
The government contends that, even properly formulated,
Ferreira's PSG is not cognizable because it lacks social
distinctiveness and particularity, and we may therefore affirm the
agency's denial of Ferreira's claim of withholding of removal on
that ground. We note that particularity and social distinctiveness
are context-specific inquiries. See Perez-Rabanales v. Sessions,
- 28 - 881 F.3d 61, 66 (1st Cir. 2018) ("The particularity requirement
seeks to determine whether a proffered social group can be
described in a manner sufficiently unique to ensure that the group
would be recognized in its own society as a discrete class of
persons."); Matter of M-E-V-G-, 26 I. & N. Dec. at 241 (stating
that the particularity and social distinctiveness requirements are
to be "applied in the fact-specific context of an applicant's claim
for relief"). Critically, the agency has not had an opportunity
to pass on the proper formulation of Ferreira's PSG, and due to
the record-dependent nature of the inquiry, it should have the
opportunity to do so in the first instance. For that reason, we
remand to the BIA. On remand, the BIA should carefully consider
Ferreira's gender-based PSG in light of our decisions in De
Pena-Paniagua and Espinoza-Ochoa.
Before we end, we consider Ferreira's claim that the BIA
should have determined, or remanded to the IJ to determine in the
first instance, whether "Trinidadian women" was an appropriate
reading of her gender-based PSG. In her briefing to the BIA,
Ferreira explained that "a true articulation" of her gender-based
PSG "may have been 'Trinidadian women'" and identified portions of
the record arguably supporting her contention that she implicitly
advanced the "Trinidadian women" formulation of her PSG at the
outset.
- 29 - In a footnote, the BIA explained that "[t]o the extent
[Ferreira] proposes other particular social groups for the first
time on appeal, [it] decline[d] to address those groups," citing
Matter of W-Y-C-, 27 I. & N. Dec. at 190-91. Ferreira argues that
this brief footnote is not enough to demonstrate that the BIA
actually engaged in the analysis under Matter of W-Y-C-, which
requires comparing the PSGs at issue to determine if they are
substantially similar.
But we do not need to decide if the BIA conducted the
necessary legal analysis or if that analysis was correct because,
as we have concluded, the BIA misunderstood Ferreira's original
PSG. Thus, at best, it compared the PSG of "Trinidadian women" to
a PSG that Ferreira never advanced. Accordingly, should Ferreira
continue to offer this alternative iteration on remand, the BIA
should evaluate whether "Trinidadian women" is substantially
similar to Ferreira's original gender-based PSG, as correctly
formulated, before refusing to consider it.
III. CONCLUSION
For all of these reasons, we grant the petition in part,
vacate in part, and remand for proceedings consistent with this
opinion.
- 30 -