Case: 18-10985 Date Filed: 10/28/2019 Page: 1 of 28
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10985 ________________________
Agency No. A206-918-567
ZURY ALVIZURIZ-LORENZO, Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent. ________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(October 28, 2019)
Before WILSON and NEWSOM, Circuit Judges, and PROCTOR, * District Judge.
PROCTOR, District Judge:
* Honorable R. David Proctor, District Judge for the United States District Court for the Northern District of Alabama, sitting by designation. Case: 18-10985 Date Filed: 10/28/2019 Page: 2 of 28
Zury Alvizuriz-Lorenzo, a native and citizen of Guatemala, petitions for
review of a final order of the Board of Immigration Appeals (BIA), which affirmed
the decision of the Immigration Judge (IJ) denying asylum. The BIA and IJ denied
Alvizuriz-Lorenzo’s claims because she failed to prove that her two proposed
social groups—“girls or young women in Guatemala who cannot leave their family
as a result of their age or economic conditions” or “girls or young women who
cannot leave their family”—were cognizable for the purposes of asylum.
After careful consideration, and particularly in light of the standard of
review applicable here, we deny the petition.
I. Background
Alvizuriz-Lorenzo entered the United States without inspection in 2015
through Laredo, Texas. She boarded a Florida-bound bus, but Immigration
officers from the Department of Homeland Security (DHS) stopped the bus and
took her into custody.
DHS commenced removal proceedings and issued a Notice to Appear,
which charged Alvizuriz-Lorenzo with being removable under § 212(a)(6)(A)(i) of
the Immigration and Nationality Act (“INA”). 8 U.S.C. § 1182(a)(6)(A)(i).
Alvizuriz-Lorenzo conceded removability as charged. However, to avoid removal,
Alvizuriz-Lorenzo applied for asylum. She asserted that she suffered and feared
persecution on account of her membership in a particular social group. She did not
2 Case: 18-10985 Date Filed: 10/28/2019 Page: 3 of 28
initially specify a particular social group in her application.
At her merits hearing, Alvizuriz-Lorenzo sought asylum based on her
membership in a particular social group consisting of “girls or young women in
Guatemala who cannot leave their family as a result of their age or economic
conditions.” Alternatively, Alvizuriz-Lorenzo has defined her particular social
group as “girls or young women in Guatemala who cannot leave their family.”
Although not mentioned in her application, at the hearing Alvizuriz-Lorenzo
testified in detail about the abhorrent events that led to her fleeing Guatemala to
seek refuge in the United States.
Beginning at age nine, Alvizuriz-Lorenzo was sexually abused by her
grandfather. She explained that her grandfather sexually abused her on a weekly
basis until she was thirteen. She provided the IJ with specifics about the
reprehensible misconduct of her grandfather. It was detestable. The grandfather’s
repeated sexual abuse ceased when Alvizuriz-Lorenzo’s older brother, Luis
Miguel, caught him in the act. Luis Miguel informed their grandmother of her
husband’s sexual abuse of Alvizuriz-Lorenzo. The grandmother confronted her
husband and, after engaging in a verbal confrontation with him, suffered a stroke.
She died less than a year later. Although the grandfather stopped sexually
assaulting Alvizuriz-Lorenzo, he continued to psychologically abuse her by
blaming her for his wife’s death. Alvizuriz-Lorenzo testified that her family did not
3 Case: 18-10985 Date Filed: 10/28/2019 Page: 4 of 28
report the grandfather’s abuse because Guatemalan police “[don’t] do anything in
regards to these things.” When asked why she did not include claims that her
grandfather sexually abused her in her application, she explained that she was
embarrassed and, initially, was afraid to divulge the information.
Alvizuriz-Lorenzo further testified that, although her grandfather never
touched her again, her father, who was absent from the household for several
years, returned when she was sixteen years old and sexually abused her over the
next five years. At first, Alvizuriz-Lorenzo became very close to her father. She
had missed him while he was away. But her father soon began to question her
about the grandfather’s acts. The father told Alvizuriz-Lorenzo that he wanted to
know whether she was still a virgin. He then began molesting her. Within a year
of his return, he forced Alvizuriz-Lorenzo to have sexual relations with him. This
incestual sexual abuse continued until Alvizuriz-Lorenzo was twenty-one, when
her older brother walked in on the father raping her. After being discovered, her
father never touched her again. She did not inform her mother of the abuse until
the day of the merits hearing. Alvizuriz-Lorenzo stated the abuse was not reported
because the Guatemalan police would consider it a “waste of time.”
On cross-examination, Alvizuriz-Lorenzo acknowledged that there were
prisons in Guatemala but she stated that authorities did not incarcerate rapists
because rape was “not something [that] the police investigate when it happens to
4 Case: 18-10985 Date Filed: 10/28/2019 Page: 5 of 28
women there.” Alvizuriz-Lorenzo submitted three reports on the conditions in
Guatemala: (1) a 2015 Human Rights Report for Guatemala; (2) the 2015/2016
Amnesty International Annual Report for Guatemala; and (3) a 2014 Human
Rights Watch Report on Guatemala. She also submitted two articles that
emphasize the pervasive nature of violence against women in Guatemala.
At the end of the merits hearing, the IJ issued a decision denying Alvizuriz-
Lorenzo’s application for asylum, finding that she was removable. 1 In particular,
the IJ found Alvizuriz-Lorenzo credible and determined that her sexual abuse and
experiences rose to the level of past persecution under applicable regulations.
However, the IJ concluded that Alvizuriz-Lorenzo was not persecuted on account
of a protected ground because her proposed social group was “not a cognizable
particular social group for purposes of asylum.” Although the proposed group may
have satisfied the “immutability” requirement, the IJ reasoned, it did not satisfy the
1 Additionally, Alvizuriz-Lorenzo indicated during the proceedings before the IJ that she was raped and impregnated by her cousin’s husband. However, as Alvizuriz-Lorenzo stated in the IJ proceedings, and again in her appeal to the BIA, her proposed particular social group solely relates to abuse inflicted by her father and grandfather. A.R. at 4. In fact, before the IJ, her counsel argued that the abuse at the hands of her cousin’s husband was “because of her religious beliefs,” since Alvizuriz-Lorenzo also applied for asylum based on past persecution for her religious views. A.R. at 98. The IJ ultimately decided that the abuse suffered by Alvizuriz- Lorenzo was not inflicted on account of her religion—a decision that she does not challenge here. A.R. at 107. Because Alvizuriz-Lorenzo has not argued on appeal that the rape by her cousin’s husband is relevant to her proposed social group, the argument is considered waived. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1256 n.6 (11th Cir. 2006) (explaining issues not argued in opening brief are waived). We note further that the IJ and BIA denied Alvizuriz- Lorenzo’s request for protection under the United Nations Convention Against Torture (CAT)— another decision that she does not challenge here. A.R. at 5.
5 Case: 18-10985 Date Filed: 10/28/2019 Page: 6 of 28
“particularity” or “social distinction” requirements.
On appeal, the BIA affirmed the denial of Alvizuriz-Lorenzo’s application
for asylum. By a 2-1 vote, the panel agreed with the IJ’s finding that the past
mistreatment of Alvizuriz-Lorenzo rose to the level of past persecution, but also
agreed that she had not been persecuted on account of a particular social group
comprised of “girls or young women in Guatemala who cannot leave their family
as a result of their age or economic conditions.” The BIA agreed with the IJ that
such a group lacked social distinction. The third panel member issued a
concurring and dissenting opinion, agreeing that Alvizuriz-Lorenzo had not
established eligibility for asylum based on her religion, but disagreeing with the
majority that the particular social group at issue was not cognizable.2
2 Specifically, the third panel member disagreed with the majority’s analysis of the particularity and the social distinction prongs. In her analysis, the third panel member applied de novo review to the IJ’s legal and factual findings with respect to particularity and social distinction. Regarding particularity, the third panel member found the terms defining Alvizuriz-Lorenzo’s groups—“girls,” “young women,” “family,” and “unable to leave”—to have commonly accepted definitions within Guatemalan society and, as such, concluded Alvizuriz-Lorenzo’s groups were particularly defined. Moreover, the third panel member determined that, when considering Matter of A-R-C-G-, Alvizuriz-Lorenzo’s proposed groups were socially distinct. Thus, the third panel member would have dismissed Alvizuriz-Lorenzo’s appeal in part, sustained it in part, and remanded the case for the IJ to determine whether her father and grandfather harmed her on account of her membership in her proposed social groups. We find it significant that the third panel member purported to apply “de novo review” when determining that she would reverse the IJ’s determination, rather than the clear error standard applicable to the IJ’s fact finding. See A.R. at 7–8. We acknowledge that this is the type of case that tempts a reviewing judge to substitute her opinion for those of the trier of fact. Even the IJ stated, “[t]he [c]ourt wishes that asylum law was such that [it could] grant relief to someone in [Alvizuriz-Lorenzo’s] situation.” A.R. at 109. But she also acknowledged “the [c]ourt must apply the law to the facts of the [] case.” Id. As the IJ concluded, the result was driven by the fact that the law is not on Alvizuriz- Lorenzo’s side. Id. We also sympathize with Alvizuriz-Lorenzo. Nevertheless, we are bound to apply the substantial evidence standard of review on this appeal. 6 Case: 18-10985 Date Filed: 10/28/2019 Page: 7 of 28
Alvizuriz-Lorenzo now petitions us for review.
II. Standard of Review
We review the BIA’s legal conclusions de novo, including whether an
alleged group qualifies as a “particular social group” under the INA. Gonzales v.
U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Factual determinations, in
contrast, are reviewed according to the substantial evidence standard, which
requires us to view the record in the light most favorable to the agency’s decision
and draw all reasonable inferences in its favor. Adefemi v. Ashcroft, 386 F.3d 1022,
1026–27 (11th Cir. 2004) (en banc).
The particular social group inquiry is a “mixed question of law and fact.”
That means we review de novo the ultimate legal conclusion as to the existence of
a particular social group, but review the underlying factual findings for substantial
evidence. See Matter of W-G-R-, 26 I. & N. Dec. 208, 209–10 (BIA 2014), vacated
in part on other grounds by Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016) (“While
the analysis of a particular social group claim is based on the evidence presented
and is often a fact-specific inquiry, the ultimate determination whether a particular
social group has been established is a question of law.”). The standard of review is
critical in this appeal. Therefore, we address it in detail.
We will “affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Sanchez
7 Case: 18-10985 Date Filed: 10/28/2019 Page: 8 of 28
Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1230 (11th Cir. 2007). This is a
deferential standard. In fact, we will only reverse the IJ’s decision on a fact
question if we find that the record compels, not merely supports, reversal. Id.
An applicant for asylum must meet the INA’s definition of a refugee. 8
U.S.C. § 1158(b)(1). The definition of a “refugee” includes:
any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail . . . herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of . . . membership in a particular social group.
8 U.S.C. § 1101(a)(42)(A). In order to meet the definition of a refugee, the
applicant must demonstrate either: (1) “past persecution on account of a statutorily
listed factor,” or (2) “a well-founded fear the statutorily listed factor will cause”
further persecution. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006).
We have held “the BIA’s interpretation of the phrase ‘particular social
group’ . . . is entitled to Chevron 3 deference because the [Act] does not define the
phrase and it is ambiguous.” Gonzalez, 820 F.3d at 404 (citing Castillo-Arias v.
U.S. Att’y Gen., 446 F.3d 1190, 1196 (11th Cir. 2006)). We defer to the BIA’s
interpretation of what constitutes a particular group under the INA unless the
interpretation is unreasonable, arbitrary, capricious, or clearly contrary to law.
3 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). 8 Case: 18-10985 Date Filed: 10/28/2019 Page: 9 of 28
Castillo-Arias, 446 F.3d at 1196. The BIA has clarified that “membership in a
particular social group” requires an applicant for asylum to establish 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.”
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 251–52 (BIA 2014); see also Gonzalez,
820 F.3d at 404. A social “group’s recognition for asylum purposes is determined
by the perception of the society in question, rather than by the perception of the
persecutor.” Matter of M-E-V-G-, 26 I. & N. Dec. at 242.
III. Analysis
In reviewing this petition, we analyze each of the elements identified by the
BIA, in turn. After doing so, we conclude the petition is due to be denied.
a. Immutability
An immutable characteristic is 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.” Matter of Acosta, 19 I. & N. Dec. 211,
233 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N.
Dec. 439 (BIA 1987). The BIA has provided a non-exhaustive list of immutable
characteristics, including “sex, color, or kinship ties, or in some circumstances . . .
a shared past experience such as former military leadership or land ownership.” Id.
The IJ and BIA both noted that Alvizuriz-Lorenzo’s proposed particular
9 Case: 18-10985 Date Filed: 10/28/2019 Page: 10 of 28
social group of “girls or young women in Guatemala who cannot leave their family
as a result of their age or economic conditions” likely satisfies the immutability
requirement. Because Alvizuriz-Lorenzo’s proposed social group is comprised of
members who share a common immutable characteristic of gender (“girls or young
women”) and kinship ties (“who cannot leave their family”), we conclude she has
satisfied the immutability requirement. See Gebremichael v. I.N.S., 10 F.3d 28, 36
(1st Cir. 1993) (“There can, in fact, be no plainer example of a social group based
on common, identifiable and immutable characteristics than that of the nuclear
family.”).
b. Particularity
“A particular social group must be defined by characteristics that provide a
clear benchmark for determining who falls within the group.” Matter of M-E-V-G-
, 26 I. & N. Dec. at 239. The terms used to describe the proposed social group
must have commonly accepted definitions in the society in question. Id.; see also
Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69, 76 (BIA 2007). The “group must
also be discrete and have definable boundaries—it must not be amorphous,
overbroad, diffuse, or subjective.” Matter of M-E-V-G-, 26 I. & N. Dec. at 239.
The IJ found, and the BIA affirmed, that Alvizuriz-Lorenzo’s particular
social group “lack[ed] the clear boundaries” to be sufficiently particular, and that
“[t]here is no evidence” to the effect that her particular group was viewed as such
10 Case: 18-10985 Date Filed: 10/28/2019 Page: 11 of 28
by Guatemalan society. See id. at 239–40 (finding the particularity requirements
relate to the group’s boundaries or the need to put outer limits on the definition of
the particular social group, stating that the “social group must be defined by
characteristics that provide a clear benchmark for determining who falls within the
group”). The BIA stated “while we recognize that [Alvizuriz-Lorenzo] has
presented country conditions reports evidencing general violence against women
and corruption among authorities in Guatemala not specific to her, the Immigration
Judge did not clearly err . . . .” A.R. at 5.
Although Alvizuriz-Lorenzo put forward evidence of widespread violence
against girls or young women in Guatemala, this does not compel the conclusion
that her proposed social group is defined with particularity. The evidence presented
by Alvizuriz-Lorenzo also shows that the group is quite immense, somewhat
diffuse, and comprises a high percentage of Guatemalan women. The IJ found that
the group, as articulated by Alvizuriz-Lorenzo, “lacks the clear boundaries”
necessary to provide a discernable benchmark for determining who falls within the
group. A.R. at 106. We recognize that, in this case, the particularity prong is a
close call. But, after careful consideration, and applying the substantial evidence
standard, we cannot say the record compels reversal. Mendoza v. U.S. Att’y Gen.,
327 F.3d 1283 1287 (11th Cir. 2003) (finding that in order to reverse a factual
determination, the court must conclude “that the record not only supports reversal,
11 Case: 18-10985 Date Filed: 10/28/2019 Page: 12 of 28
but compels it” (emphasis added)).
c. Social Distinction
In addition to immutability and particularity, an applicant for asylum must
show that her particular social group is “socially distinct within the society in
question.” Matter of M-E-V-G-, 26 I. & N. Dec. at 252. Social distinction is a
fact-based inquiry. See Pirir-Boc v. Holder, 750 F.3d 1077, 1083–84 (9th Cir.
2014) (describing a “required evidence-based inquiry as to whether the relevant
society recognizes [a] proposed social group”). “To have the ‘social distinction’
necessary to establish a particular social group, there must be evidence showing
that society in general perceives, considers, or recognizes persons sharing the
particular characteristic to be a group.” Matter of W-G-R-, 26 I. & N. Dec. 208,
217 (BIA 2014).
Alvizuriz-Lorenzo has not cited to any record evidence showing that
Guatemalan society perceives “girls or young women in Guatemala who cannot
leave their family as a result of their age of economic conditions” or “girls or
young women in Guatemala who cannot leave their family” as distinct groups.
Alvizuriz-Lorenzo has certainly submitted credible evidence regarding the problem
of gender-based violence in Guatemala. But, the evidence falls short of
establishing that the record compels reversal. The issue is not how we would
answer that question if we sat in the role of the IJ. Rather, the question is whether
12 Case: 18-10985 Date Filed: 10/28/2019 Page: 13 of 28
the IJ’s determination is unsupported by “reasonable, substantial, and probative
evidence on the record considered as a whole.” Sanchez Jimenez, 492 F.3d at 1231.
In other words, we must ask if the record evidence compels reversal. Id. We cannot
say that it does.
Additionally, the specialized legislation enacted to address gender violence
in Guatemala does not show Alvizuriz-Lorenzo’s purported social groups have
social distinction. Rather, as the BIA acknowledged, the evidence showed general
violence against women in Guatemala, not that Guatemalan society views the
specific groups of “girls or young women in Guatemala who cannot leave their
family as a result of their age of economic conditions” or “girls or young women in
Guatemala who cannot leave their family” as distinct within society.4
IV. Conclusion
We acknowledge, as did the IJ and BIA, that Alvizuriz-Lorenzo suffered
horrific harm at the hands of her family members. However, we cannot say the
4 The BIA also affirmed the IJ’s determination that Alvizuriz-Lorenzo’s proposed social group was not analogous to the group the BIA found cognizable in Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014). Matter of A-R-C-G- was later expressly overruled by Matter of A-B-, 27 I. & N. Dec. 316 (2018). Subsequently, Matter of A-B- was abrogated in Grace v. Whitaker, 344 F. Supp. 3d 96, 125–27 (D.D.C. Dec. 19, 2018) (holding the attorney general’s opinion in Matter of A-B- “was arbitrary and capricious”). Grace was appealed on January 30, 2019, and is currently pending in the D.C. Circuit. The Fifth Circuit recently considered the effect of Grace and held “the Grace injunction does not affect our ability to review or rely on A-B- in deciding [] case[s].” Gonzales-Veliz v. Barr, No. 18-60174, 2019 WL 4266121, at *5 (5th Cir. Sept. 10, 2019). To be clear, however, we decide this case without applying Matter of A-R-C-G-, Matter of A-B-, or Grace.
13 Case: 18-10985 Date Filed: 10/28/2019 Page: 14 of 28
evidence in the record compels reversal of the IJ’s findings, affirmed by the BIA,
regarding particularity and distinction.5 See Castillo-Arias, 446 F.3d at 1196. Thus,
Alvizuriz-Lorenzo does not meet the INA’s definition of a refugee and she is
ineligible for asylum. See 8 U.S.C. § 1158(b)(1).
PETITION DENIED.
5 Because Alvizuriz-Lorenzo is unable to establish that she suffered past persecution on account of a legally-cognizable particular social group, her challenge to the IJ’s denial of humanitarian asylum under 8 C.F.R. § 1208.13(b)(1)(iii) necessarily fails. See Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1311 n.3 (11th Cir. 2019) (“[H]umanitarian asylum does not allow an applicant to receive asylum based on persecution unconnected to any statutorily protected ground. She still must establish that she is a refugee, which requires a showing of past persecution on account of a statutorily protected ground.”). Our analysis concerning membership in a cognizable social group therefore also prevents Alvizuriz-Lorenzo from claiming humanitarian asylum. 14 Case: 18-10985 Date Filed: 10/28/2019 Page: 15 of 28
WILSON, Circuit Judge, dissenting:
The Board of Immigration Appeals’ (BIA) determination that Guatemala
does not “view girls or young women in Guatemala who cannot leave their family
as a result of their age or economic condition” or “girls or young women who
cannot leave their family” as a socially distinct group is not supported by
substantial evidence. For that reason, I dissent.
The majority sets forth the rape and sexual abuse suffered by Alvizuriz-
Lorenzo at the hands of her grandfather and father. In addition, three months after
her father’s abuse ceased, she began working for her cousin and her cousin’s
husband (Bernardo), caring for their toddler. While her cousin was away,
Bernardo told Alvizuriz-Lorenzo that she was wasting her time saving herself.
Bernardo requested that Alvizuriz-Lorenzo show up early one day to care for the
child, and when Alvizuriz-Lorenzo arrived, Bernardo raped and impregnated her.
When Bernardo learned of her pregnancy, he threatened to kill her if she did not
get rid of the child. Because Bernardo was a “very powerful man” with “lots of
connections” in the police force, Alvizuriz-Lorenzo fled Guatemala and gave birth
to her daughter in the United States.
At her merits hearing, Alvizuriz-Lorenzo acknowledged that there were
prisons in Guatemala but stated that authorities did not incarcerate rapists because
rape was “not something [that] the police investigate when it happens to women
15 Case: 18-10985 Date Filed: 10/28/2019 Page: 16 of 28
there.” Zury submitted three reports on Guatemala country conditions: (1) a 2015
Human Rights Report for Guatemala, which indicated that full investigation and
prosecution of domestic-violence and rape cases took an average of one year,
impunity for perpetrators was very high, and rape survivors frequently did not
report crimes due to lack of confidence in the justice system, social stigma, and
fear of reprisal; (2) the 2015/2016 Amnesty International Annual Report for
Guatemala, which stated that violence against women continued to be systemic;
and (3) a 2014 Human Rights Watch Report on Guatemala, which stated that
violence against women in Guatemala was a chronic problem, perpetrators rarely
faced trial, and reported rapes and sexual assaults increased by more than one-third
between 2008 and 2011.
Alvizuriz-Lorenzo also submitted two articles that emphasized the pervasive
nature of violence against women in Guatemala. The first stated that Guatemala
had one of the highest rates of femicide—gender-motivated killing of women—in
the world. The report also indicated that human trafficking and gender-motivated
harm from sexual violence remains rampant, and that the government has failed to
develop an effective response. The second article further underscored the violence
committed against women in Guatemala.
At the end of the merits hearing, the IJ issued an oral decision denying
Alvizuriz-Lorenzo’s application for asylum, finding her removable. The IJ found
16 Case: 18-10985 Date Filed: 10/28/2019 Page: 17 of 28
Alvizuriz-Lorenzo credible and determined that her sexual abuse and experiences
rose to the level of past persecution under applicable regulations, but concluded
that Alvizuriz-Lorenzo was not persecuted on account of a protected ground
because her proposed social group was “not a cognizable particular social group
for purposes of asylum.” Although the proposed group may have satisfied the
“immutability” requirement, the IJ reasoned, it did not satisfy the “particularity” or
“social distinction” requirements.
On appeal, the BIA affirmed the denial of Alvizuriz-Lorenzo’s application
for asylum. By a 2-1 vote, the panel agreed with the IJ’s finding that Alvizuriz-
Lorenzo’s past mistreatment rose to the level of past persecution, but also agreed
that she had not been persecuted on account of a particular social group comprised
of “girls or young women in Guatemala who cannot leave their family as a result
of their age or economic conditions” because it lacked social distinction. The third
panel member issued a concurring and dissenting opinion, agreeing that Alvizuriz-
Lorenzo had not established eligibility for asylum based on her religion, but
asserting that her particular social group is cognizable.
Although we will “affirm the [IJ’s] decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole,” we will
reverse if we find that the record compels, not merely supports, reversal. Sanchez
17 Case: 18-10985 Date Filed: 10/28/2019 Page: 18 of 28
Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007).
I. Membership in a Particular Social Group
To qualify as a refugee, a petitioner must demonstrate “(1) past persecution
on account of a statutorily listed factor, or (2) a ‘well-founded fear’ that the
statutorily listed factor will cause future persecution.” Ruiz v. U.S. Att’y Gen., 440
F.3d 1247, 1257 (11th Cir. 2006) (per curiam) (quoting 8 C.F.R. § 208.13(a), (b)).
These factors include “race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). If a petitioner can
successfully demonstrate past persecution on account of a statutorily listed factor,
there is a rebuttable presumption that she has a well-founded fear of future
persecution. Ruiz, 440 F.3d at 1257.
We defer to the BIA’s interpretation of “particular social group,”1 which
requires that the proposed group be (1) composed of members who share a
common immutable characteristic, (2) defined with particularity, and (3) socially
distinct within the society in question. See, e.g., Gonzalez v. U.S. Att’y Gen., 820
F.3d 399, 404 (11th Cir. 2016) (per curiam); In re M-E-V-G-, 26 I. & N. Dec. 227,
251–52 (B.I.A. 2014).
1 We have held that the BIA’s interpretation of “particular social group” is entitled to Chevron deference because the INA does not define the ambiguous phrase. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1196 (11th Cir. 2006). We follow the BIA’s interpretation of what constitutes a particular social group under the INA unless the interpretation is unreasonable, arbitrary, capricious, or clearly contrary to law. Id. 18 Case: 18-10985 Date Filed: 10/28/2019 Page: 19 of 28
An immutable characteristic is one “that the members of the group either
cannot change, or should not be required to change because it is fundamental to
their individual identifies or consciences.” In re Acosta, 19 I. & N. Dec. 211, 233
(B.I.A. 1985), overruled on other grounds by In re Mogharrabi, 19 I. & N. Dec.
439 (B.I.A. 1987). The BIA provides a non-exhaustive list of immutable
characteristics, such as “sex, color, or kinship ties, or in some circumstances, . . . a
shared past experience such as former military leadership and land ownership.” Id.
The IJ and BIA noted that Alvizuriz-Lorenzo’s proposed particular social
group of “girls or young women in Guatemala who cannot leave their family as a
result of their age or economic conditions” likely satisfies the immutability
requirement. Because Alvizuriz-Lorenzo’s proposed social group is comprised of
members who share a common immutable characteristic of gender—“girls or
young women”—and kinship ties—“who cannot leave their family”—she satisfies
the immutability requirement. See Gebremichael v. I.N.S., 10 F.3d 28, 36 (1st Cir.
1993) (“There can, in fact, be no plainer example of a social group based on
common, identifiable and immutable characteristics than that of a nuclear
“A particular social group must be defined by characteristics that provide a
19 Case: 18-10985 Date Filed: 10/28/2019 Page: 20 of 28
clear benchmark for determining who falls within the group.” In re M-E-V-G-, 26
I. & N. Dec. at 239. The terms used to describe the proposed social group must
have commonly accepted definitions in the society in question. Id.; see also In re
A-M-E & J-G-U-, 24 I. & N. Dec. 69, 76 (B.I.A. 2007). Moreover, the “group
must also be discrete and have definable boundaries—it must not be amorphous,
overbroad, diffuse, or subjective.” In re M-E-V-G-, 26 I. & N. Dec. at 239.
Satisfaction of the particularity element can vary depending on the cultural
context involved. That is, a proposed social group can satisfy particularity in one
region and simultaneously lack particularity in different region. See In re W-G-R-,
26 I & N Dec. 208, 214 (B.I.A. 2014) (explaining that the particularity element is
not addressed in isolation but must be considered in the context of the society out
of which the claim for asylum arises).
Alvizuriz-Lorenzo argues that each of the terms and phrases in her group
definition—“girls or young women,” “who cannot leave their family,” “as a result
of their age or economic conditions”—combine to describe a group with distinct
boundaries in her region.
Guatemala has enacted laws 2 that have addressed intrafamily violence
2 Guatemala enacted the 1996 Law to Prevent, Punish, and Eradicate Family Violence. See Karen Musalo & Blaine Bookey, Crimes Without Punishment: An Update on Violence Against Women and Impunity in Guatemala, 10 HASTINGS RACE & POVERTY L.J. 265, 274 (2013), https://cgrs.uchastings.edu/sites/default/files/Musalo_Bookey_CrimesWithoutPunishment_2013. pdf. The objective of the 1996 Law was to prevent intrafamily violence through a protective measure but was not intended to punish the aggressors. Id. at 275. Prior to 2008, the 1996 Law 20 Case: 18-10985 Date Filed: 10/28/2019 Page: 21 of 28
against women, and, importantly, there is a widely recognized lack of enforcement
of these laws. Guatemala thus purports to give Alvizuriz-Lorenzo relief from her
family’s atrocious acts—in the form of prosecuting her family members under the
laws of Guatemala—but nonetheless refuses to enforce those laws. As Alvizuriz-
Lorenzo testified at her merits hearing, she did not formally report her family’s
abuse because it is a generally accepted truth in Guatemalan society that police
refuse to help in instances of rape. An affidavit from a Guatemalan police officer
corroborates the veracity of this claim. Police officer Giovani David Lorenzo
Estevan indicated that women of sexual crimes refuse to file formal complaints for
fear of “reprisals by the alleged perpetrator or syndicate and due to the tedious,
cumbersome and delayed criminal proceedings of the Guatemalan justice system,
which, instead of prompt and effective justice, revictimizes the victims
psychologically.”
Alvizuriz-Lorenzo further testified that she spoke with a young girl from
Guatemala who was sexually abused by her father. The girl reported the abuse to
police, but she was told that her formal complaint would be “a waste of time” and
that she should simply “deal with it.” The police informed the young girl that the
was the only law to address violence against women. Id. at 274. In 2008, Guatemala enacted the Law Against Femicide and Other Forms of Violence Against Women. Id. While the 2008 Law criminalized a range of acts of violence against women, Guatemala’s efforts to enforce the 2008 Law have had minimal impact on the heightened levels of violence and rates of impunity for such crimes. Id. at 279. 21 Case: 18-10985 Date Filed: 10/28/2019 Page: 22 of 28
police do not get involved in family relationships and that she should resolve the
problem on her own.
This continuous lack of prosecution for intrafamily violence against women
has left Alvizuriz-Lorenzo without recourse to distance herself from her family.
And the fact that many women in Guatemala suffer from the same hindrance to
justice, thereby ensuring the cohesiveness of the family unit remains unscathed,
supports the conclusion that the terms used to describe Alvizuriz-Lorenzo’s
proposed social group—“girls or young women . . . who cannot leave their family
as a result of their age or economic conditions”—have “commonly accepted
definitions” within Guatemalan society. See In re M-E-V-G-, 26 I. & N. Dec. at
239. Thus, I would find that Alvizuriz-Lorenzo’s proposed particular social group
sufficiently satisfies the particularity element.
C. Socially Distinct
An applicant for asylum must additionally show that her particular social
group is “socially distinct within the society in question.” Id. at 252. A group is
socially distinct if there is “evidence showing that society in general perceives,
considers, or recognizes persons sharing the particular characteristic to be a
group.” In re W-G-R-, 26 I. & N. Dec. at 217. Social distinction, formerly called
social visibility, does not require the group to be “ocularly visible to others in
society.” In re M-E-V-G-, 26 I. & N. Dec. at 240. That is, “[s]ociety can consider
22 Case: 18-10985 Date Filed: 10/28/2019 Page: 23 of 28
persons to comprise a group without being able to identify the group’s members on
sight.” Id. Rather, social distinction refers to social recognition: “it must be
perceived as a group by society.” Id. (emphasis added).
Determining social distinction is an “evidence-based inquiry as to whether
the relevant society recognizes [the] particular social group.” Pirir-Boc v. Holder,
750 F.3d 1077, 1084 (9th Cir. 2014). This evidence-based inquiry includes
society-specific evidence, “such as country conditions reports, expert witness
testimony, and press accounts of discriminatory laws and policies, historical
animosities, and the like.” In re M-E-V-G-, 26 I. & N. Dec. at 244 (internal
quotation marks omitted).
Alvizuriz-Lorenzo contends that the record evidence demonstrates the
frequency of intrafamily violence in Guatemala and the country’s unsuccessful
attempts to curtail such violence. She argues that Guatemala’s attempt to
criminalize violence in familial relationships strongly indicates that Guatemalan
society views her proposed social group as distinct within society.
The record evidence establishes that Guatemalan society recognizes the
particular vulnerability of young girls and women unable to leave their families.
Incest, for example, is one of the pervasive forms of violence against women in
Guatemala. See Musalo & Bookey, supra note 2, at 269 (“Violence against
women pervades all sectors of Guatemalan society. The violence takes many
23 Case: 18-10985 Date Filed: 10/28/2019 Page: 24 of 28
brutal forms, including intra-familial (or domestic) violence, sexual violence,
incest, human trafficking, and, at the extreme end of the spectrum, femicide.”).
The Guatemalan government evidently recognizes the prevalence of intrafamily
violence against women and children, as evidenced by the 2015 Guatemala Human
Rights Report. The Human Rights Report notes that the Guatemalan government
specifically tracks the number of “intrafamily violence against women and
children,” and even goes to the extent of distinguishing between sexual crimes
against women and the “sexual exploitation of children.” U.S. Dep’t of State,
Bureau of Democracy, Human Rights, and Labor, Country Reports on Human
Rights Practices for 2015:Guatemala 2015 Human Rights Report 14–18,
https://2009-2017.state.gov/documents/organization/253229.pdf. The Human
Rights Report also indicates that Guatemalan society acknowledges the prevalence
of young women remaining subservient to elder family members—the Guatemalan
“Congress eliminated a provision that previously allowed girls to marry at 14 . . .
with parental consent” precisely to prevent forced marriage and sexual relations.
Id. at 18. The concern for young girls and women unable to safely distance
themselves from their harmful familial relationships is further exacerbated by
Guatemala’s culture of “machismo and family violence.” Id.
These efforts to protect women from family abuse, albeit unsuccessful,
indicate that Guatemalan society recognizes the vulnerability of young girls and
24 Case: 18-10985 Date Filed: 10/28/2019 Page: 25 of 28
women unable to leave their families. I would conclude that a particular social
group consisting of “girls or young women in Guatemala who cannot leave their
family as a result of their age or economic conditions” is viewed by Guatemalan
society as socially distinct. The record “fairly compels the conclusion” that Zury
suffered past persecution on account of a cognizable particular social group. See
Sanchez Jimenez, 492 F.3d at 1232. Thus, there is a rebuttable presumption that
she has a well-founded fear of future persecution. See Ruiz, 440 F.3d at 1257.
II. Humanitarian Asylum
Even in the absence of a well-founded fear of future persecution, Alvizuriz-
Lorenzo may still be entitled to a discretionary grant of humanitarian asylum. See
In re L-S-, 25 I. & N. Dec. 705, 710 (B.I.A. 2012). An asylum applicant who has
established past persecution on account of a statutorily protected ground, but no
longer has a well-founded fear of future persecution, may nonetheless be entitled to
a discretionary grant of humanitarian asylum by establishing that she has
“‘compelling reasons,’ arising out of the severity of past persecution, for being
unable or unwilling to return to [her] country under [8 C.F.R.]
§ 1208.13(b)(1)(iii)(A) . . . .” In re L-S-, 25 I. & N. Dec. at 710. Applicants are
eligible for humanitarian asylum based on these grounds when they have suffered
“an atrocious form of persecution that results in continuing physical pain and
discomfort.” Id. at 712. In other words, the applicant must establish that the “past
25 Case: 18-10985 Date Filed: 10/28/2019 Page: 26 of 28
persecution was so severe that repatriation would be inhumane.” Abrha v.
Gonzales, 433 F.3d 1072, 1076 (8th Cir. 2006). To determine whether the past
persecution was so severe as to warrant humanitarian asylum relief, we focus on
“the degree of harm suffered, the length of time over which the harm was inflicted,
and evidence of psychological trauma resulting from the harm.” Id.
In analyzing whether Alvizuriz-Lorenzo was entitled to humanitarian
asylum, the IJ explained that, in the absence of a well-founded fear of future
persecution, she must demonstrate compelling reasons for being unwilling or
unable to return to Guatemala due to the severity of the past persecution.
Notwithstanding the fact that the IJ previously found (1) Alvizuriz-Lorenzo’s
testimony credible, (2) that “she suffered very serious harm by [her] family
members,” and (3) that her sexual abuse and rape rose to the level of past
persecution required under the INA, the IJ ultimately determined that the past
persecution was not on account of her membership in a cognizable particular social
group. I would conclude that Alvizuriz-Lorenzo is entitled to humanitarian asylum
because the past persecution she suffered on account of her membership in a
particular social group “was so severe that repatriation would be inhumane.” See
id.
Humanitarian asylum “is reserved for the most extraordinary cases.”
Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1201 (11th Cir. 2009) (per curiam).
26 Case: 18-10985 Date Filed: 10/28/2019 Page: 27 of 28
Alvizuriz-Lorenzo’s case rises to that level on account of “the degree of harm
suffered, the length of time over which the harm was inflicted, and evidence of
psychological trauma resulting from the harm.” See Abrha, 433 F.3d at 1076.
Alvizuriz-Lorenzo was terrorized by her family as a victim of incest and sexual
abuse by her grandfather and father for over 12 years. Just when she thought these
atrocious acts were over, she was raped, impregnated, and threatened by her
cousin’s husband. The severity of this harm constitutes an egregious form of
persecution that entitles her to humanitarian asylum under 8 C.F.R.
§ 1208.13(b)(1)(iii)(A).
The BIA erred in determining that Alvizuriz-Lorenzo was not persecuted on
account of her membership in a cognizable particular social group. The record
evidence compels a finding that she suffered persecution on account of her
membership in a cognizable particular social group. “[T]he IJ should have shifted
the burden to the government to rebut the presumption that [Alvizuriz-Lorenzo]
had a well-founded fear of future persecution. See Marin v. U.S. Att’y Gen., 253 F.
App’x 830, 834 (11th Cir. 2007).
Accordingly, I would vacate the IJ’s decision denying asylum and remand to
the BIA to give the government the opportunity to rebut the presumption that
27 Case: 18-10985 Date Filed: 10/28/2019 Page: 28 of 28
Alvizuriz-Lorenzo has a well-founded fear of future persecution. See id. 3
3 I also note that, in In re A-R-C-G-, 26 I. & N. Dec. 388 (B.I.A. 2014), the BIA recognized “married women in Guatemala who were unable to leave their relationship” as a particular social group, but that In re A-B-, 27 I. & N. Dec. 316 (A.G. 2018), overruled it. Subsequently, the District Court for the District of Columbia, in a published opinion, permanently enjoined application of In re A-B-, concluding that the decision is “arbitrary and capricious and violates the immigration laws.” Grace v. Whitaker, 344 F. Supp. 3d 96, 105, 125–27 (D.D.C. 2018). Given the similarity, at the very least, I would accept the government’s alternative request to remand for the BIA to address in the first instance the impact of In re A-B-. The In re A-R-C-G- analysis was flawed.