Case: 18-15302 Date Filed: 10/09/2019 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-15302 Non-Argument Calendar ________________________
Agency No. A202-002-848
KAREN GISSEL GONZALEZ-DE MOREIRA, BRYAN ALEJANDRO ABREGO-GONZALEZ, RAFAEL EDUARDO MOREIRA-GONZALEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(October 9, 2019) Case: 18-15302 Date Filed: 10/09/2019 Page: 2 of 9
Before MARCUS, FAY, and EDMONDSON, Circuit Judges.
PER CURIAM:
Karen Gonzalez-De Moreira (“Petitioner”) and her two minor sons, 1 natives
and citizens of El Salvador, petition for review of the order by the Board of
Immigration Appeals (“BIA”) affirming the decision of the Immigration Judge
(“IJ”). The IJ’s decision denied asylum and withholding of removal.2 No
reversible error has been shown; we deny the petition.
We review only the decision of the BIA, except to the extent that the BIA
adopts expressly the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). Because the BIA agreed expressly with parts of the IJ’s
reasoning in this case, we review both the IJ’s and the BIA’s decisions. See id.
We review de novo the BIA’s legal conclusions, including whether a
proposed group qualifies as a “particular social group” under the Immigration and
1 Petitioner’s application sought derivative relief for her two sons, B.A. and R.E., who are listed as petitioners in this appeal. B.A. also filed his own application for asylum and for withholding of removal.
2 The IJ also denied relief under the Convention Against Torture. We will not address this claim, however, because Petitioner and B.A. do not challenge the denial of this form of relief on appeal. See Sepulveda v. United States Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). 2 Case: 18-15302 Date Filed: 10/09/2019 Page: 3 of 9
Nationality Act (“INA”). Gonzalez v. United States Att’y Gen., 820 F.3d 399, 403
(11th Cir. 2016). Although our review is de novo, we defer to the BIA’s
interpretation of the phrase “particular social group” if the BIA’s interpretation is
reasonable. Id. at 404.
We review fact determinations under the “highly deferential substantial
evidence test” whereby we “must affirm the BIA’s decision if it is ‘supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.’” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc).
We “view the record evidence in the light most favorable to the agency’s decision
and draw all reasonable inferences in favor of that decision.” Id. at 1027. To
reverse a fact determination, we must conclude “that the record not only supports
reversal, but compels it.” Mendoza v. United States Att’y Gen., 327 F.3d 1283,
1287 (11th Cir. 2003).
An alien may obtain asylum if she is a “refugee,” that is, a person unable or
unwilling to return to her country of nationality “because of persecution or a well-
founded fear of persecution on account of” a protected ground, including
membership in a particular social group. 8 U.S.C. §§ 1101(a)(42)(A), 1158(a)(1),
(b)(1). The asylum applicant bears the burden of proving statutory “refugee” status
3 Case: 18-15302 Date Filed: 10/09/2019 Page: 4 of 9
with specific and credible evidence. Forgue v. United States Att’y Gen., 401 F.3d
1282, 1287 (11th Cir. 2005).
Petitioner and her son, B.A., each filed an application for asylum and for
withholding of removal based on membership in a particular social group:
“Salvadoran women who are victims of violence” and “Salvadoran children who
are victims of violence,” respectively. Petitioner and B.A. each said that they had
been abused physically and verbally by B.A.’s paternal grandfather, Mr. Abrego.
Petitioner and B.A. also said that they had been threatened by gang members, who
demanded food and money from the restaurant Petitioner co-owned with her
husband and who attempted to recruit B.A. to join their gang.
The IJ denied relief, concluding that Petitioner and B.A. had failed to
demonstrate membership in a “particular social group” within the meaning of the
INA. The IJ also concluded, in pertinent part, that Petitioner and B.A. had failed to
establish that they had been mistreated “on account of” a statutorily protected
ground. The BIA affirmed the IJ’s decision.
Petitioner and B.A. then petitioned for review with this Court; we granted
the government’s unopposed motion to remand for clarification. On remand, the
BIA -- in a three-member panel decision -- again affirmed the IJ’s decision. In
pertinent part, the BIA agreed with the IJ’s determination that the proposed social
4 Case: 18-15302 Date Filed: 10/09/2019 Page: 5 of 9
groups were not cognizable under the INA. The BIA also agreed with the IJ’s
determination that no nexus existed between the alleged mistreatment and a
statutorily protected ground.
For purposes of the INA, a “particular social group” means a group of
people who “share a common, immutable characteristic.” Gonzalez, 820 F.3d at
404. The group “must also be defined with particularity and socially distinct
within the society in question.” Id. (quotations omitted). In other words, the group
must “be discrete and have definable boundaries” and may not be “amorphous,
overbroad, diffuse, or subjective.” Id.
A “particular social group” may not be defined exclusively by evidence that
the group’s proposed members have been persecuted or face the risk of
persecution. See, e.g., Perez-Zenteno v. United States Att’y Gen., 913 F.3d 1301,
1310 (11th Cir. 2019) (“Mexican citizens targeted by criminal groups because they
have been in the United States and have families in the United States” is not a
cognizable “particular social group” under the INA “because its defining attribute
is the risk of persecution stemming from being targeted by criminal groups.”);
Castillo-Arias v. United States Att’y Gen., 446 F.3d 1190, 1198 (11th Cir. 2006)
(concluding that “noncriminal informants working against the Cali drug cartel”
was no “particular social group”: “[t]he risk of persecution alone does not create a
5 Case: 18-15302 Date Filed: 10/09/2019 Page: 6 of 9
particular social group within the meaning of the INA, as virtually the entire
population of Columbia is a potential subject of persecution by the cartel.”); Matter
of M-E-V-G-, 26 I. & N. Dec. 227, 236 n.11 (BIA 2014) (recognizing as well-
established “that the social group must exist independently of the fact of
persecution”); Matter of W-G-R-, 26 I. & N. Dec. 208, 215 (BIA 2014) (same).
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Case: 18-15302 Date Filed: 10/09/2019 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-15302 Non-Argument Calendar ________________________
Agency No. A202-002-848
KAREN GISSEL GONZALEZ-DE MOREIRA, BRYAN ALEJANDRO ABREGO-GONZALEZ, RAFAEL EDUARDO MOREIRA-GONZALEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(October 9, 2019) Case: 18-15302 Date Filed: 10/09/2019 Page: 2 of 9
Before MARCUS, FAY, and EDMONDSON, Circuit Judges.
PER CURIAM:
Karen Gonzalez-De Moreira (“Petitioner”) and her two minor sons, 1 natives
and citizens of El Salvador, petition for review of the order by the Board of
Immigration Appeals (“BIA”) affirming the decision of the Immigration Judge
(“IJ”). The IJ’s decision denied asylum and withholding of removal.2 No
reversible error has been shown; we deny the petition.
We review only the decision of the BIA, except to the extent that the BIA
adopts expressly the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). Because the BIA agreed expressly with parts of the IJ’s
reasoning in this case, we review both the IJ’s and the BIA’s decisions. See id.
We review de novo the BIA’s legal conclusions, including whether a
proposed group qualifies as a “particular social group” under the Immigration and
1 Petitioner’s application sought derivative relief for her two sons, B.A. and R.E., who are listed as petitioners in this appeal. B.A. also filed his own application for asylum and for withholding of removal.
2 The IJ also denied relief under the Convention Against Torture. We will not address this claim, however, because Petitioner and B.A. do not challenge the denial of this form of relief on appeal. See Sepulveda v. United States Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). 2 Case: 18-15302 Date Filed: 10/09/2019 Page: 3 of 9
Nationality Act (“INA”). Gonzalez v. United States Att’y Gen., 820 F.3d 399, 403
(11th Cir. 2016). Although our review is de novo, we defer to the BIA’s
interpretation of the phrase “particular social group” if the BIA’s interpretation is
reasonable. Id. at 404.
We review fact determinations under the “highly deferential substantial
evidence test” whereby we “must affirm the BIA’s decision if it is ‘supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.’” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc).
We “view the record evidence in the light most favorable to the agency’s decision
and draw all reasonable inferences in favor of that decision.” Id. at 1027. To
reverse a fact determination, we must conclude “that the record not only supports
reversal, but compels it.” Mendoza v. United States Att’y Gen., 327 F.3d 1283,
1287 (11th Cir. 2003).
An alien may obtain asylum if she is a “refugee,” that is, a person unable or
unwilling to return to her country of nationality “because of persecution or a well-
founded fear of persecution on account of” a protected ground, including
membership in a particular social group. 8 U.S.C. §§ 1101(a)(42)(A), 1158(a)(1),
(b)(1). The asylum applicant bears the burden of proving statutory “refugee” status
3 Case: 18-15302 Date Filed: 10/09/2019 Page: 4 of 9
with specific and credible evidence. Forgue v. United States Att’y Gen., 401 F.3d
1282, 1287 (11th Cir. 2005).
Petitioner and her son, B.A., each filed an application for asylum and for
withholding of removal based on membership in a particular social group:
“Salvadoran women who are victims of violence” and “Salvadoran children who
are victims of violence,” respectively. Petitioner and B.A. each said that they had
been abused physically and verbally by B.A.’s paternal grandfather, Mr. Abrego.
Petitioner and B.A. also said that they had been threatened by gang members, who
demanded food and money from the restaurant Petitioner co-owned with her
husband and who attempted to recruit B.A. to join their gang.
The IJ denied relief, concluding that Petitioner and B.A. had failed to
demonstrate membership in a “particular social group” within the meaning of the
INA. The IJ also concluded, in pertinent part, that Petitioner and B.A. had failed to
establish that they had been mistreated “on account of” a statutorily protected
ground. The BIA affirmed the IJ’s decision.
Petitioner and B.A. then petitioned for review with this Court; we granted
the government’s unopposed motion to remand for clarification. On remand, the
BIA -- in a three-member panel decision -- again affirmed the IJ’s decision. In
pertinent part, the BIA agreed with the IJ’s determination that the proposed social
4 Case: 18-15302 Date Filed: 10/09/2019 Page: 5 of 9
groups were not cognizable under the INA. The BIA also agreed with the IJ’s
determination that no nexus existed between the alleged mistreatment and a
statutorily protected ground.
For purposes of the INA, a “particular social group” means a group of
people who “share a common, immutable characteristic.” Gonzalez, 820 F.3d at
404. The group “must also be defined with particularity and socially distinct
within the society in question.” Id. (quotations omitted). In other words, the group
must “be discrete and have definable boundaries” and may not be “amorphous,
overbroad, diffuse, or subjective.” Id.
A “particular social group” may not be defined exclusively by evidence that
the group’s proposed members have been persecuted or face the risk of
persecution. See, e.g., Perez-Zenteno v. United States Att’y Gen., 913 F.3d 1301,
1310 (11th Cir. 2019) (“Mexican citizens targeted by criminal groups because they
have been in the United States and have families in the United States” is not a
cognizable “particular social group” under the INA “because its defining attribute
is the risk of persecution stemming from being targeted by criminal groups.”);
Castillo-Arias v. United States Att’y Gen., 446 F.3d 1190, 1198 (11th Cir. 2006)
(concluding that “noncriminal informants working against the Cali drug cartel”
was no “particular social group”: “[t]he risk of persecution alone does not create a
5 Case: 18-15302 Date Filed: 10/09/2019 Page: 6 of 9
particular social group within the meaning of the INA, as virtually the entire
population of Columbia is a potential subject of persecution by the cartel.”); Matter
of M-E-V-G-, 26 I. & N. Dec. 227, 236 n.11 (BIA 2014) (recognizing as well-
established “that the social group must exist independently of the fact of
persecution”); Matter of W-G-R-, 26 I. & N. Dec. 208, 215 (BIA 2014) (same).
As an initial matter, we reject Petitioner’s and B.A.’s contention that the
BIA erred in relying on Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018). In
Matter of A-B-, the Attorney General addressed “[w]hether, and under what
circumstances, being a victim of private criminal activity” could constitute a
cognizable “particular social group” under the INA. 27 I. & N. Dec. 316 (A.G.
2018) (concluding that the BIA erred in recognizing as a cognizable particular
social group “El Salvadoran women who are unable to leave their domestic
relationships where they have children in common with their partners.”). The
Attorney General stressed -- based on established binding case law -- that “to be
cognizable, a particular social group must ‘exist independently’ of the harm
asserted in an application for asylum or statutory withholding of removal.” Id. at
334-35 (emphasis in original). Nothing evidences that the BIA in this case
misconstrued Matter of A-B- as a categorical bar to all asylum claims based on
domestic violence.
6 Case: 18-15302 Date Filed: 10/09/2019 Page: 7 of 9
Here, Petitioner and B.A. have failed to establish membership in a
“particular social group” that is cognizable under the INA. The BIA and the IJ
determined reasonably that the defining attribute of the proposed social groups --
“Salvadoran women who are victims of violence” and “Salvadoran children who
are victims of violence” -- is that the members have been subjected to past abuse.
That a “particular social group” must exist independently of the alleged past
persecution or the risk of persecution is clear. See Perez-Zenteno, 913 F.3d at
1310; Castillo-Arias, 446 F.3d at 1198; Matter of A-B-, 27 I. & N. Dec. at 334-35;
Matter of M-E-V-G-, 26 I. & N. Dec. at 236 n.11; Matter of W-G-R-, 26 I. & N.
Dec. at 215.
Substantial evidence also supports the BIA’s and IJ’s determination that
Petitioner and B.A. failed to demonstrate a nexus between the purported
persecution and a protected ground. To demonstrate eligibility for asylum relief,
applicants must show that their membership in the particular social group was a
central reason for their persecution. See 8 U.S.C. § 1158(b)(1)(B)(i); Matter of A-
B-, 27 I. & N. Dec. at 338 (“Establishing the required nexus between past
persecution and membership in a particular social group is a critical step for
victims of private crime who seek asylum.”).
7 Case: 18-15302 Date Filed: 10/09/2019 Page: 8 of 9
Petitioner testified that Mr. Abrego was physically and verbally abusive to
her because Petitioner wanted to end her relationship with B.A.’s father (Mr.
Abrego’s son) and because Petitioner attempted to regain legal custody over B.A.3
The record thus supports the BIA’s and IJ’s determination that Mr. Abrego’s abuse
of Petitioner was motivated by a personal dispute: not “on account of” Petitioner’s
being a “Salvadoran woman who was a victim of violence.”
The record also supports the BIA’s and IJ’s determination that Mr. Abrego’s
abuse constituted acts of private violence unmotivated by B.A.’s purported
affiliation with “Salvadoran children who had been victims of violence.” B.A. said
that Mr. Abrego was “always” violent and would hit B.A. “for no reason” or
because Mr. Abrego was drunk. Evidence of acts of private violence are
insufficient to establish persecution on account of a protected ground. See
Rodriguez, 735 F.3d 1302, 1310 (11th Cir. 2013).
Nor does the record compel a finding that Petitioner or B.A. were targeted
by gang members on account of their membership in the purported social groups.
First, the record demonstrates that gang activity is commonplace in El Salvador.
Moreover, the record supports a finding that gang members targeted Petitioner for
extortion because she was a business owner, not because she was a female victim
3 B.A. lived with Mr. Abrego between 2006 and 2009, while Petitioner was in the United States. 8 Case: 18-15302 Date Filed: 10/09/2019 Page: 9 of 9
of violence. In the same way, the record supports a finding that B.A.’s
mistreatment by gang members was motivated by B.A.’s refusal to join the gang,
not by B.A.’s membership in the proposed social group. That Petitioner and B.A.
were victims of gang-related criminal activity is no evidence of persecution based
on a protected ground. See Rodriguez, 735 F.3d at 1310; see also Matter of S-E-
G-, 24 I. & N. Dec. 579, 584 (BIA 2008) (concluding that “Salvadoran youths who
have resisted gang recruitment” constituted no “particular social group”).
Substantial evidence supports the BIA’s decision that Petitioner and B.A.
were unentitled to asylum; the record and the law do not compel us to reverse that
decision. Because Petitioner and B.A. have not satisfied their burden of
establishing eligibility for asylum, they are unable to demonstrate eligibility for
withholding of removal. See Forgue, 401 F.3d at 1288 n.4.
PETITION DENIED.