ARGUED: March 12, 2018
Petition for Review of an Order of the United States
Department of Justice Board of Immigration Appeals
(BIA-1:A206-800-692, A206-800-690, A206-800-691) Immigration
Judge: Hon. John B. Carle
C. Bennion, Elizabeth A. Cuneo, Russell H. Falconer [ARGUED],
Chelsea G. Glover, Gibson Charles, Roth Lisa Koop, Ashley
Huebner Counsel for Petitioners
Kirsten L. Nathanson, Emily T. Kuwahara, Daniel P. Wierzba,
Tu-Quyen Pham Amicus Counsel for NIWAP Inc. and Pennsylvania
Coalition Against Domestic Violence
M. Bookey, Anne Dutton, Eunice Lee, Karen Musalo Amicus
Counsel for American Immigration Lawyers Association, Center
for Gender & Refugee Studies, and Hebrew Immigrant Aid
Jefferson B. Sessions, III, Chad A. Readler, Anthony P.
Nicastro, Sheri R. Glaser [ARGUED] Counsel for Respondents
Before: JORDAN, KRAUSE, and GREENBERG, Circuit Judges
OPINION OF THE COURT
JORDAN, Circuit Judge
immigration case, we consider the term "particular
social group," which is part of the definition of
"refugee" in the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1101(a)(42). We must
decide whether a revised interpretation of that term by the
Board of Immigration Appeals (the "BIA" or the
"Board") is reasonable and therefore entitled to
deference under the strictures of Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). Like other circuit courts, we had dutifully deferred
to the initial interpretation of that term given by the Board
in 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).
Fatin v. I.N.S., 12 F.3d 1233, 1239-40 (3d Cir.
1993). But, over time, the Board began adding new
requirements to its test for determining whether an applicant
had established the existence of a particular social group
and could thereby claim refugee status. In
Valdiviezo-Galdamez v. Attorney General, 663 F.3d
582 (3d Cir. 2011), we concluded that the BIA had departed
from Acosta without a principled explanation and
that its new requirements for proving a particular social
group were incapable of consistent application. We therefore
held that its interpretation of "particular social
group" was not entitled to Chevron deference.
Id. at 608.
has since responded to our concerns. In a pair of
precedential decisions, Matter of M-E-V-G-, 26 I.
& N. Dec. 227 (BIA 2014), and Matter of W-G-R-,
26 I. & N. Dec. 208 (BIA 2014), affirmed in
part, vacated and remanded in part on other grounds
sub nom. Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016),
it articulated a three-part test for proving the existence of
a cognizable particular social group. The test requires
applicants to "establish that the group [at issue] is
(1) composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3)
socially distinct within the society in question."
M-E-V-G-, 26 I. & N. Dec. at 237. We now hold
that that statutory interpretation is entitled to
Chevron deference, and, applying the newly framed
test here, we conclude that substantial evidence supports the
BIA's determination that the petitioner has not met its
requirements. Accordingly, we will deny the petition for
a native of Honduras, seeks review of the denial of her
application for asylum and statutory withholding of removal
based on membership in a proposed particular social group
that she characterizes as "immediate family members of
Honduran women unable to leave a domestic
relationship[.]" (Opening Br. at 21.) She fears persecution
by two men, Jose Angel and Juan Orellana. Jose Angel
abducted, raped, and continues to stalk one of S.E.R.L.'s
daughters, K.Y.R.L. That daughter has already been granted
asylum in the United States. Juan Orellana is S.E.R.L.'s
stepfather and has repeatedly abused S.E.R.L.'s mother.
S.E.R.L. fears that if she is removed to Honduras, both men
will persecute her, Jose Angel because of her relationship to
her daughter, and Juan Orellana because of her relationship
to her mother.
and two of her children fled here from Honduras in 2014.
Within a month of their unlawful arrival, the Department of
Homeland Security initiated removal proceedings pursuant to
INA § 212(a)(6)(A)(i). S.E.R.L. conceded removability,
and timely applied for asylum and statutory withholding of
removal. In support of her claims for relief, she
alleged past persecution and a fear of future persecution
based on the relationships just noted.
immigration judge ("IJ") reviewed S.E.R.L.'s
application and conducted a merits hearing. Although finding
her credible, the IJ concluded that S.E.R.L. had not met her
burden to establish eligibility for any of the relief she had
requested. According to the IJ, S.E.R.L. had not established
past persecution or an objectively reasonable fear of future
persecution by Jose Angel, given that he had targeted
S.E.R.L.'s daughter, not her. Though crediting
S.E.R.L.'s testimony about Juan Orellana's abuse of
her mother and past threats directed at S.E.R.L., herself,
the IJ also noted that S.E.R.L. said "her stepfather
never physically harmed her." (Administrative Record
("AR") at 86.) The IJ did not state whether
S.E.R.L. had established past persecution by Juan Orellana.
did say that, even if she had suffered past persecution,
S.E.R.L. failed to establish that the harm she suffered was
on account of a protected ground. Applying the BIA's
newly clarified three-part test from M-E-V-G-, the
IJ rejected S.E.R.L.'s argument that "immediate
family members of Honduran women unable to leave a domestic
relationship" constituted a cognizable group. (AR at
89-90.) According to the IJ, the group "lack[ed] the
requisite level of particularity and social distinction"
and thus failed the test's second and third requirements.
(AR at 90.) The IJ also noted that "asylum and refugee
laws do not protect people from general conditions of strife,
such as crime and other societal afflictions." (AR at 90
(quoting M-E-V-G-, 26 I. & N. Dec. at 235).)
Consequently, the IJ denied relief and ordered that S.E.R.L.
appealed that decision to the BIA. It too concluded that she
had not met her burden to establish eligibility for either
asylum or withholding of removal. It agreed with the IJ's
conclusion that she had not established past persecution by
Jose Angel, and it further concluded that she had not
established past persecution by Juan Orellana, because any
threats he made "d[id] not rise to the level of
persecution[.]" (AR at 4.)
also agreed that S.E.R.L.'s proposed particular social
group - immediate family members of Honduran women unable to
leave a domestic relationship - lacked the requisite
particularity and social distinction. As to particularity,
the BIA observed that "[the] proposed group could
include individuals of any age, sex, or background, and it is
not limited to those who … take overt action to
assist, or are meaningfully involved with, the family member
who is unable to leave a domestic relationship." (AR at
5.) The BIA further "agree[d] that [S.E.R.L.] ha[d] not
presented evidence that this group is socially distinct
within Honduran society, as the record does not reflect that
members of such a group would be perceived, considered, or
recognized in Honduras as a distinct group[.]" (AR at
5.) Even assuming a cognizable particular social group, the
Board "discern[ed] no legal error or clear factual
error" in the IJ's determination that S.E.R.L. had
not established a well-founded fear of future persecution by
Jose Angel. (AR at 5-6.) The Board did not, however, reach
the issue of future persecution by Juan Orellana.
turned last to the question of withholding of removal and
concluded that, "[i]nasmuch as [S.E.R.L.] has failed to
satisfy the lower burden of proof required for asylum, it
follows that she has failed to satisfy the more stringent
standard required for withholding of removal[.]" (AR at
6.) The Board thus dismissed the appeal. S.E.R.L. has timely
petitioned for review.
contends that she is entitled to asylum and withholding of
removal because she has established a well-founded fear of
future persecution on account of her membership in a legally
cognizable particular social group, that again being
"immediate family members of Honduran women unable to
leave a domestic relationship[.]" (Opening Br. at 21.)
The parties' primary dispute is whether the BIA's
revised interpretation of "particular social
group," as set forth in Matter of M-E-V-G-,
warrants Chevron deference. S.E.R.L., supported by
amici,  asks us to reject the test from
M-E-V-G- because it is "deeply flawed,"
"has no basis in the asylum statute," and fails to
resolve the concerns raised in our decision in
Valdiviezo-Galdamez. (Opening Br. at 1-2.) Instead,
S.E.R.L. argues, we should continue to apply the test from
Matter of Acosta, which she claims to
"satisf[y] … with ease." (Opening Br. at
22.) She also says that, in the event the Board's new
interpretation is given deference, she has met its
particularity and social distinction requirements. Finally,
she contends that remand is required, if for no other reason,
because neither the IJ nor the BIA addressed whether she has
a well-founded fear of future persecution by Juan Orellana.
we address those arguments, we first discuss the governing
legal principles and provide a review of our
Valdiviezo-Galdamez decision and the BIA's
response in M-E-V-G-.
General Legal Principles
Standard of Review
a petitioner's "proffered particular social group is
cognizable under [8 U.S.C. § 1101(a)(42)(A)] is a
question of law … subject to de novo review,"
which, we have said, is "subject to established
principles of [Chevron] deference[.]"
Gomez-Zuluaga v. Att'y Gen., 527 F.3d 330, 339
(3d Cir. 2008) (internal quotation marks and citation
omitted). More precisely, the existence of a
cognizable particular social group presents a mixed question
of law and fact, since the ultimate legal question of
cognizability depends on underlying factual questions
concerning the group and the society of which it is a part.
Cf. Fatin, 12 F.3d at 1240-41 (noting the
"sparse" evidence supporting the petitioner's
proposed particular social group, and concluding that, even
if cognizable, "the administrative record does not
establish that she is a member of [her proposed]
group"). We thus review de novo the ultimate legal
conclusion as to the existence of a particular social group,
while we review the underlying factual findings for
"substantial evidence[.]" See Lukwago v.
Ashcroft, 329 F.3d 157, 167 (3d Cir. 2003) (reviewing
the BIA's statutory interpretation of "particular
social group" in accordance with Chevron
principles, and stating, "[o]n the other hand, we must
treat the BIA's findings of fact as 'conclusive
unless any reasonable adjudicator would be compelled to
conclude to the contrary'" (quoting 8 U.S.C. §
a petitioner has established membership in a particular
social group also involves agency fact-finding. Id.
at 167, 178-79. "Our review is confined solely to the
administrative record," Gomez-Zuluaga, 527 F.3d
at 340, and administrative findings of fact are
"conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary," id.
(quoting 8 U.S.C. § 1252(b)(4)(B)). That means that
factual "determinations will be upheld if they are
supported by reasonable, substantial, and probative evidence
in the record considered as a whole." Kang v.
Att'y Gen., 611 F.3d 157, 164 (3d Cir. 2010)
here "the BIA adopted and affirmed the IJ's
decisions and orders as well as [conducting] an independent
analysis, we review both the IJ's and the BIA's
decisions and orders." Ordonez-Tevalan v. Att'y
Gen., 837 F.3d 331, 340-41 (3d Cir. 2016). But we look
to the IJ's opinion "only where the BIA has
substantially relied on that opinion." Camara v.
Att'y Gen., 580 F.3d 196, 201 (3d Cir. 2009), as
amended (Nov. 4, 2009).
Asylum and Withholding of Removal
the INA, the Attorney General has the discretion to grant
asylum to a removable alien, 8 U.S.C. § 1158(b)(1)(A),
as long as the alien meets the INA's definition of
"refugee." That definition is as follows:
Any person who is outside any country of such person's
nationality or, in the case of a person having no
nationality, is outside any country in which such person last
habitually resided, and who is unable or unwilling to return
to, and is unable or unwilling to avail himself or herself of
the protection of, that country because of persecution or a
well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social
group, or political opinion[.]
Id. § 1101(a)(42)(A).
petitioner has the burden to establish that she is a refugee,
and thus eligible for asylum relief under the INA.
Id. § 1158(b)(1)(B). One way of doing so is to
show "a well-founded fear of persecution on account of
… membership in a particular social group[.]"
Id. § 1101(a)(42)(A). That is the route
S.E.R.L. chose to pursue, and so she bore the burden of
establishing the following elements: (1) a particular social
group that is legally cognizable; (2) membership in that
group; (3) a well-founded fear of persecution, which must be
subjectively genuine and objectively reasonable; and (4) a
nexus, or causal link, between the persecution and membership
in the particular social group. Fatin, 12 F.3d at
withholding of removal, under 8 U.S.C. § 1231(b)(3), an
alien must "establish a 'clear probability of
persecution,' i.e., that it is more likely than not, that
s/he would suffer persecution upon returning home."
Valdiviezo-Galdamez, 663 F.3d at 591 (citing
I.N.S. v. Stevic, 467 U.S. 407, 429-30 (1984)).
"Since [that] standard is more demanding than that
governing eligibility for asylum, an alien who fails to
qualify for asylum is necessarily ineligible for withholding
of removal." Id.
Our Decision in Valdiviezo-Galdamez and the
BIA's Response in Matter of M-E-V-G-
Valdiviezo-Galdamez, we reviewed at length the
BIA's evolving efforts to interpret the term
"particular social group," beginning with the
definition it set forth in Matter of Acosta. We need
not fully repeat that history here but, for purposes of our
analysis, will ...