United States Court of Appeals

for the Fifth Circuit

No. 20-60081

Gleidy Yessenia Jaco; Cristofer Alejandro Portillo 

Jaco, 

Petitioners,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A208 982 107

BIA No. A208 982 108

Before Jolly, Elrod, and Oldham, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:

Appellant Gleidy Yessenia Jaco is an immigrant from Honduras 

seeking asylum, withholding of removal, and protection under the 

Convention Against Torture (CAT). Her child seeks derivative asylum. 

After both the Immigration Judge (IJ) and the Board of Immigration Appeals 

(BIA) denied her claims, Jaco filed a pro se petition for review from the BIA’s 

dismissal of her appeal and denial of her motion for reconsideration. We 

likewise deny her petition for review. 

United States Court of Appeals

Fifth Circuit

FILED

October 27, 2021

Lyle W. Cayce

Clerk

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I.

Jaco left Honduras fleeing her former partner. According to Jaco, her 

former partner abused her and raped her repeatedly. Jaco did not report the 

domestic violence to the police due to his threats to kill her for doing so. But 

she did seek and obtain child support and a restraining order in October of 

2014. According to Jaco, her former partner violated the restraining order, 

at one point by coming too close to her house and at another by stopping her 

at the grocery store to ask why she took him to court.

In February of 2016, her former partner told her that he would kill her 

and her child if she did not return to him. Jaco did not do so and moved to 

another city. But when she returned for a day to her mother’s house, he

confronted her again. He told her that he knows where she lives and that he 

will kill her if she does not return.

Jaco decided to flee her former partner and Honduras. She and her 

child entered the United Statesin April of 2016. Although her former partner 

has not contacted her since she entered the United States, she has heard that 

he is upset with her leaving. Both her mother and a former neighbor reported 

that he is trying to figure out where she is and that he wants revenge. Since 

arriving in the United States, Jaco has a new partner from Mexico, with 

whom she has another child. As such, Jaco fears for the lives of her and her 

family if she is forced to return to Honduras.

II.

Gleidy Jaco and her child entered the United States without valid 

entry documents. DHS charged her with inadmissibility to and removability 

from the United States under section 212(a)(7)(A)(i)(I) of the Immigration 

and Nationality Act (INA). 8 U.S.C. § 1182(a)(7)(A)(i)(I). In response, Jaco 

applied for asylum, withholding of removal, and for protection under CAT. 

Her child sought derivative asylum.

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The IJ denied Jaco’s claims for asylum, withholding of removal, and 

CAT protection. With regard to CAT protection, the IJ determined that 

there was “insufficient evidence . . . indicating the government of Honduras 

would wish to torture or acquiesce in the torture of” Jaco. And with regard 

to Jaco’s claims for asylum and withholding of removal, the IJ found that 

Jaco’s proposed social group—women in Honduras unable to leave their 

domestic relationships—was not cognizable. Although one of the BIA’s 

recent precedential opinions, Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 

2014), had recognized the group “married women in domestic relationships 

who are unable to leave,” the IJ distinguished Jaco’s case. Relying also on 

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), the IJ considered a number of factors, 

including the fact that Jaco and her former partner were never married, and 

held that Jaco’s case was sufficiently distinguishable from A-R-C-G-. 

Jaco appealed to the BIA on September 5, 2018. In addition to 

challenging the IJ’s conclusions, she argued that the BIA should remand her 

case in light of the newly released Matter of A-B-, 27 I. & N. Dec. 316 (A.G.

2018) (A-B-I), in which the Attorney General vacated A-R-C-G- and held 

that “married women in Guatemala who are unable to leave their 

relationship” was not a particular social group.

The BIA dismissed the appeal. Citing A-B-I, it held that “[g]enerally, 

claims by aliens pertaining to domestic violence perpetrated by nongovernmental actors will not qualify for asylum.” The BIA further held that 

even if she were to qualify for a particular social group, Jaco failed to show 

that the Honduran government is unwilling or unable to prevent her 

persecution, as required for claims of asylum, withholding of removal, and 

protection under CAT.

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On April 29, 2019, Jaco filed a motion to reconsider. As is relevant 

here, Jaco argued that (1) the IJ misapplied A-B-I and failed to assess her 

particular social group claim on an individual basis; (2) the BIA should have 

remanded her case to the IJ to consider her inclusion in additional social 

groups such as “Honduran women,” “Honduran women in domestic 

relationships,” “Honduran women who oppose male domination,” and 

“Honduran women viewed as property because of their position in a familial 

relationship;” and (3) the BIA erred in concluding that Jaco did not show that 

the Honduran government was unwilling or unable to prevent her 

persecution.

Jaco also filed a petition for review in this court. After she filed her 

petition, the government filed a motion asking this court to remand her case 

to the BIA to allow it to conduct a “detailed analysis” of the effect of A-B-I 

on Jaco’s proposed group, allow it to address any other dispositive issue, or 

allow it to remand to the IJ to further explain whether the Honduran 

government was “unwilling or unable” to prevent Jaco’s persecution. On 

September 12, 2019, this court granted the government’s motion and 

remanded the case to the BIA.

On remand, the BIA denied Jaco’s motion for reconsideration and 

again dismissed the appeal. The BIA refused to either consider in the first 

instance or remand for consideration of groups proposed by Jaco for the first 

time on appeal. It further found no factual or legal error in its prior 

determination that “women in Honduras unable to leave their domestic 

relationships” is not a cognizable particular social group. The BIA also 

affirmed the IJ’s distinction of Jaco’s case from A-R-C-G- on numerous 

grounds: (1) Jaco was not married to her former partner; (2) the relationship 

was not long lasting; (3) the abuse was not as extensive as in A-R-C-G-; (4) 

she moved out of her former partner’s home; and (5) she took her former 

partner to court and received child support and a protective order.

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The BIA also recognized that the Attorney General’s decision in 

A-B-I overruled A-R-C-G-. Citing A-B-I, it reiterated that claims involving 

domestic violence will generally not qualify for asylum unless the violence 

was inflicted “on account of” a protected ground. And that protected 

ground, in turn, “must exist independently” of the harm from which the 

asylum seeker flees. The BIA concluded that Jaco’s group failed this 

requirement because it was defined by the very persecution from which she 

flees. Quoting A-B-I, it determined that the group was “effectively defined 

to consist of women . . . who are victims of domestic abuse because the 

inability ‘to leave’ [is] created by harm or threatened harm.” See 27 I. & N. 

Dec. at 334–35 (alteration in original). Finally, the BIA held that the 

proposed group was neither particularized nor recognized in society as a 

distinct group. Because Jaco had failed to show a cognizable particular social 

group, the BIA found it unnecessary to address whether the Honduran 

government was unwilling or unable to protect her. After affirming its prior 

decision that CAT relief is unavailable, the BIA denied the motion for 

reconsideration and dismissed the appeal.

III.

Jaco now petitions from the BIA’s decision dismissing her appeal and 

denying her timely motion for reconsideration. Our jurisdiction is governed 

by 8 U.S.C. § 1252. Normally, petitioners wishing to challenge both the 

dismissal of an appeal and the denial of a motion for reconsideration must file 

separate petitions. See Kane v. Holder, 581 F.3d 231, 237 n.14 (5th Cir. 2009); 

8 U.S.C. § 1252(b)(6). Here, however, because of our prior remand to the 

BIA, the Board addressed both Jaco’s appeal and her motion to reconsider in 

the same order. Thus, Jaco’s single petition for review can challenge both of 

the BIA’s decisions. See 8 U.S.C. § 1252(b)(1); see also id. § 1252(a)(1); Stone 

v. I.N.S., 514 U.S. 386, 405–06 (1995).

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Although Jaco was represented by counsel at all prior stages of these 

proceedings, she files this petition for review pro se. We construe the filings 

of pro se litigants liberally. Coleman v. United States, 912 F.3d 824, 828 (5th 

Cir. 2019). Construed accordingly, Jaco’s petition makes two arguments. 

First, that the BIA erred in failing to either consider or remand for 

consideration of additional proposed “particular social groups” that Jaco 

raised for the first time on appeal. And second, that the BIA erred in 

concluding that Jaco’s proposed group—Honduran women who are unable 

to leave their domestic relationships—is not a “particular social group” 

within the meaning of 8 U.S.C. § 1101(a)(42)(A) (claims for asylum) and 8 

U.S.C. § 1231(b)(3)(A) (claims for withholding of removal).1

IV.

“When considering a petition for review, this court has the authority 

to review only the BIA’s decision, not the IJ’s decision, unless the IJ’s 

decision has some impact on the BIA’s decision.” Wang v. Holder, 569 F.3d 

531, 536 (5th Cir. 2009) (citing Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir. 

1997)).2

1 Although we liberally construe pro se petitions, pro se litigants must still comply 

with the civil rules of appellate procedure. United States v. Wilkes, 20 F.3d 651, 653 (5th 

Cir. 1994). Jaco does not brief any claim about CAT relief and therefore forfeits that issue. 

See Fed. R. App. P. 28(a)(8); Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008) 

(holding that issues not briefed are forfeited on appeal).

2

Jaco also argues on appeal that the Honduran government is “unwilling or unable 

to prevent” her persecution. In its first decision dismissing Jaco’s appeal, the BIA held 

that Jaco failed to make this showing. However, the BIA did not address the issue on 

remand, finding it unnecessary to address because Jaco failed to show a nexus “between 

the harm suffered by [Jaco] and a ground protected by the Act.” This petition is an appeal 

from the BIA’s decision on remand. Because it did not address this issue on remand, we 

are not required to reach it here. However, we do address the futility of this argument in 

Part VI.B, infra.

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We review the denial of a motion to reconsider under an abuse-ofdiscretion standard. Gonzales-Veliz v. Barr, 938 F.3d 219, 226 (5th Cir. 2019). 

Under this standard, Jaco must identify either a “change in the law, a 

misapplication of the law, or an aspect of the case that the BIA overlooked.” 

Id. (quoting Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir. 2005)). The BIA’s 

decision will stand unless it was “capricious, racially invidious, utterly 

without foundation in the evidence or otherwise so irrational that it is 

arbitrary rather than the result of any perceptible rational approach.” Zhao, 

404 F.3d at 304 (quoting Pritchett v. I.N.S., 993 F.2d 80, 83 (5th Cir. 1993)).

We review questions of law de novo. However, we accord Chevron 

deference to the BIA’s interpretations of ambiguous statutory provisions 

within its purview. E.g., Lowe v. Sessions, 872 F.3d 713, 715 (5th Cir. 2017). 

Finally, we review the BIA’s findings of fact under a “substantial evidence” 

standard and “may not reverse the BIA’s factual findings unless the evidence 

compels it.” Gonzales-Veliz, 938 F.3d at 224 (quoting Wang, 569 F.3d at 536–

37).

V.

We turn first to Jaco’s claim that the BIA erred in not considering or 

remanding to the IJ for consideration of Jaco’s membership in proposed 

particular social groups that she did not raise before the IJ. 

To succeed on an application for asylum, an applicant must show that 

she is “unable . . . or unwilling to return to . . . [and] avail [herself] of . . . the 

protection of [her home] country because of persecution or a well-founded 

fear of persecution on account of race, nationality, membership in a particular 

social group, or political opinion.” Ghotra v. Whitaker, 912 F.3d 284, 288 (5th 

Cir. 2019) (first alteration in original) (quoting 8 U.S.C. § 1101(a)(42)(A)). 

In contrast, an applicant for withholding of removal must show that this 

persecution is “more likely than not.” Efe v. Ashcroft, 293 F.3d 899, 906 (5th

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Cir. 2002) (quoting 8 C.F.R. § 208.16(b)(1)); see also 8 

U.S.C. § 1231(b)(3)(A).

Jaco argues that she qualifies for membership in a “particular social 

group.” Before the IJ, Jaco claimed membership in only one particular social 

group: Honduran women unable to leave their domestic relationships. Yet in 

her motion for reconsideration, she claimed membership in additional groups 

not raised before the IJ, including: (1) Honduran women who oppose male 

domination, and (2) Honduran women viewed as property because of their 

position in a familial relationship. According to Jaco, the BIA should have 

either considered these groups in the first instance or remanded for the IJ to 

do so.

The BIA did not err in declining to do either. As the BIA notes, it has 

discretion to entertain novel particular social group claims but does not 

commit reversible error by declining to do so. In Cantarero-Lagos v. Barr, we 

rejected an applicant’s claim that the BIA was obligated to entertain a 

claimed particular social group in the first instance. 924 F.3d 145, 150–51 (5th 

Cir. 2019). In doing so, we noted that “although the cognizability of a PSG 

presents a legal question, its answer indisputably turns on findings of fact.” 

Id. at 150. These findings of fact are best left to the IJ. For this reason, we 

concluded that the BIA did not reversibly err by refusing to entertain new 

social groups first raised on appeal. Id. at 150–51.

This approach squares with the BIA’s own decisions addressing this 

issue. In Matter of W-Y-C- & H-O-B-, the BIA similarly declined to address 

a novel social group raised before it in the first instance. 27 I. & N. Dec. 189, 

191–93 (BIA 2018). The BIA stressed the “inherent factual nature” of the 

social group determination: “A determination whether a social group is 

cognizable is a fact-based inquiry made on a case-by-case basis, depending on 

whether the group is immutable and is recognized as particular and socially 

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distinct in the relevant society.” Id. at 191 (quoting Matter of L-E-A-, 27 

I. & N. Dec. 40, 42 (BIA 2017)). When a particular social group is asserted 

for the first time on appeal, “the [IJ] will not have had an opportunity to make 

relevant factual findings, which we cannot do in the first instance on appeal.” 

Id. After declining to consider the novel particular social group, the BIA 

further declined to remand the question to the IJ, citing limited resources and 

an overburdened docket. Id. at 191–92. 

The same holds true here. The record reflects that Jaco’s counsel 

made a strategic decision not to proffer additional particular social group 

claims before the IJ. Because whether to address the novel social group 

claims was squarely within the BIA’s discretion, it did not abuse its discretion 

in declining to do so.

VI.

Jaco next argues that the BIA incorrectly assessed her particular social 

group claim. She claims that the BIA erred in holding that her particular 

social group—Honduran women who are unable to leave their domestic 

relationships—was not legally cognizable. We hold that the BIA did not err.

As discussed above, in the absence of persecution based on race, 

nationality, or political opinion, an applicant for asylum or withholding of 

removal must make three showings. First, that she belongs to a cognizable 

particular social group. Second, a nexus between the persecution and her

membership in the particular social group. And third, that the government 

is either unwilling or unable to protect her from the persecution. See 

Gonzales-Veliz, 938 F.3d at 228–29; Vazquez-Guerra v. Garland, 7 F.4th 265, 

269 (5th Cir. 2021); 8 U.S.C. § 1101(a)(42)(A); id. § 1231(b)(3)(A).

While membership in a particular social group need not be the sole 

reason for the applicant’s persecution, it must be “at least one central reason 

for persecuting [her].” Sharma v. Holder, 729 F.3d 407, 411 (5th Cir. 2013) 

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(quoting 8 U.S.C. § 1158(b)(1)(B)(i)). It may not be “incidental, tangential, 

or subordinate to another reason for harm.” Shaikh v. Holder, 588 F.3d 861, 

864 (5th Cir. 2009) (quoting Matter of J-B-N & S-M-, 24 I. & N. Dec. 208, 

214 (BIA 2007)).

The question whether “Honduran women who are unable to leave 

their domestic relationships” is a valid particular social group does not arise 

in a vacuum. We addressed this very question only two years ago. In 

Gonzales-Veliz, we surveyed immigration law as it existed at the time of the 

decision and held that the group is not cognizable. 938 F.3d at 232. Since that 

time, however, the Attorney General has vacated two significant BIA 

decisions, A-B-I and A-B-II,

3 and revived the previously overruled case of 

A-R-C-G-. Matter of A-B-, 28 I. & N. Dec. 307, 307 (A.G. 2021) (A-B-III) 

(“[A-B-I and A-B-II] are vacated in their entirety. . . . Immigration judges and 

the Board should . . . follow pre-A-B-I precedent, including [A-R-C-G-].”). 

For this reason, we will revisit our decision in Gonzales-Veliz in the light of 

A-B-III. Despite this, but consistent with our duty in Chevron, we will deny 

the petition for review. Gonzales-Veliz remains the law of this circuit.

A.

We will start, as we did in Gonzales-Veliz, with the state of 

immigration law. In Matter of M-E-V-G-, the BIA synthesized prior BIA 

decisions addressing the definition of “particular social group.” 26 I. & N. 

Dec. 227, 228 (BIA 2014). In doing so, it clarified that an applicant must 

show that the group is (1) composed of members who share a common 

immutable characteristic, (2) defined with particularity, and (3) socially 

distinct within the society in question. Id. at 237. Furthermore, there must 

3 The Attorney General issued A-B-II to clarify questions arising from A-B-I. 

Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021) (A-B-II).

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be a nexus between the particular social group and its persecution; the 

persecution must be “on account of” membership in the group. Id. at 242; 8 

U.S.C. § 1101(a)(42).

In clarifying these requirements, the BIA carefully distinguished 

between the existence of a social group and the nexus between that social 

group and its persecution. As to the existence of a social group, drawing on 

the language of the statute, prior BIA decisions, and federal circuit court 

decisions, the BIA stated that the “social group must exist independently of 

the fact of persecution,” and that “this criterion is well established in our 

prior precedents and is already a part of the social group analysis.” 

M-E-V-G-, 26 I. & N. Dec. at 236 n.11 (citing Matter of A-M-E- & J-G-U-, 24 

I. & N. Dec. 69, 74 (BIA 2007) and Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d 

Cir. 2003)); see also id. at 242 (referencing the text and structure of

8 U.S.C. § 1101(a)(42)). 

This does not mean that past persecution is irrelevant. Rather, it 

means that the group must be sufficiently defined and particularized by 

characteristics other than persecution. See W-G-R-, 26 I. & N. Dec. at 216 

(“Circuit courts have long recognized that a social group must have ‘defined 

boundaries’ or a ‘limiting characteristic,’ other than the risk of being 

persecuted, in order to be recognized.”). To illustrate, the BIA considered a 

hypothetical group of former employees of a country’s attorney general. 

M-E-V-G-, 26 I. & N. Dec. at 242–43. The employees’ shared experience of 

working for the attorney general satisfied the requirement of an immutable 

characteristic. And the group would also be sufficiently particularized. But 

the group, without more, may not be considered sufficiently distinct in its 

society. In this case, government persecution may “cataly[ze] the society to 

distinguish the former employees in a meaningful way and consider them a 

distinct group.” Id. at 243. But “the immutable characteristic of their shared 

past experience exists independent of the persecution.” Id. 

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In a decision released on the same day as M-E-V-G-, the BIA 

elaborated on the nexus requirement. W-G-R-, 26 I. & N. Dec. 208 (BIA 

2014). In W-G-R-, the BIA stated that “membership in a particular social 

group [must be] a central reason for [the] persecution.” Id. at 224. This 

common-sense definition highlights the importance of the distinction 

between the existence of a group and the persecution that it suffers. In the 

BIA’s words: “The structure of the Act supports preserving this distinction, 

which should not be blurred by defining a social group based solely on the 

perception of the persecutor.” Id. at 218. To define a social group by its 

persecution collapses the “particular social group” and “persecution on 

account of membership” inquiries into the same question, contrary to the 

structure of the INA. See 8 U.S.C. § 1101(a)(42).

Nevertheless, later in the same year the BIA decided A-R-C-G-. 

26 I. & N. Dec. 388 (BIA 2014). In A-R-C-G-, the petitioner claimed that 

“married women in Guatemala who are unable to leave their relationship” 

constituted a particular social group. Id. at 388–89. Whereas the IJ

determined that the woman’s husband did not abuse her “on account of” her 

membership in this group, the BIA reversed on appeal. Professing to apply 

M-E-V-G-, it determined that the “immutable characteristics” of “gender,” 

“marital status,” and “the inability to leave the relationship” combined “to 

create a group with discrete and definable boundaries.” A-R-C-G-, 26 I. & N. 

Dec. at 393.

In 2018, however, the Attorney General overruled A-R-C-G- in A-B-I. 

27 I. & N. Dec. at 316. After the BIA recognized the group “El Salvadoran 

women who are unable to leave their domestic relationships where they have 

children in common [with their partners],” the Attorney General directed 

the BIA to refer the decision for his review. Id. at 316–17, 321; see also 

8 C.F.R. § 1003.1(h)(1)(i). Upon review, the Attorney General reversed. He 

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

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independently’ of the harm asserted in an application for asylum or statutory 

withholding of removal.” Id. at 334 (citing M-E-V-G-, 26 I. & N. Dec. at 236

n.11, 243; W-G-R-, 26 I. & N. Dec. at 215; and a collection of federal circuit 

court cases). He reasoned that “[i]f a group is defined by the persecution of 

its members, then the definition of the group moots the need to establish 

actual persecution.” Id. at 335. For this reason, he concluded that 

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

violence perpetrated by non-governmental actors will not qualify for 

asylum.” Id. at 320.

A-B-I, however, was itself overruled by the Attorney General in 2021. 

On February 2, 2021, the President issued an executive order directing the 

Attorney General and the Secretary of Homeland Security to address the 

definition of “a particular social group.” Exec. Order No. 14010, § 4(c)(ii), 

86 Fed. Reg. 8267, 8271 (Feb. 2, 2021). Because A-B-I and A-B-II addressed 

that definition, the Attorney General vacated both decisions in anticipation 

of further rulemaking. He also instructed immigration judges and the BIA to 

follow “pre-A-B-I precedent, including A-R-C-G-.” A-B-III, 28 I. & N. Dec. 

at 307.

B.

Swept up in this flurry of overrulings is our decision in Gonzales-Veliz. 

In that case, we faced the question whether the group “Honduran women 

unable to leave their relationship”—defined identically to Jaco’s proposed 

social group—qualified as a particular social group. 938 F.3d at 223. Issued 

after A-B-I but before A-B-III, we relied in part on A-B-I in concluding that 

the group was not cognizable. Thus, keeping in mind our duty to exercise 

Chevron deference, we must determine whether the overruling of A-B-I gives 

us reason to depart from our decision in Gonzales-Veliz. We hold that it does 

not. 

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In holding that the group in Gonzales-Veliz was not cognizable, we 

relied in part on A-B-I. Yet we relied on A-B-I not out of deference to it but 

based on the quality of its reasoning. Indeed, our decision hinged on the 

inherent circularity involved in defining a particular social group by reference 

to the very persecution from which it flees. We held that the group was 

“impermissibly defined in a circular manner. The group is defined by, and 

does not exist independently of, the harm—i.e., the inability to leave.” Id. at 

232. For this reason, we concluded that such an interpretation would 

“render the asylum statute unrecognizable.” Id. at 235.

In contrast, we recognized that the Attorney General’s 

“interpretation of the INA in [A-B-I] is . . . a much more faithful 

interpretation” of the statute. Id. This interpretation was, we said, “a return 

to the statutory text as Congress created it and as it had existed before the 

BIA’s A-R-C-G- decision.” Id. That our conclusion had support in the 

overwhelming weight of BIA precedents shows only that our reading of the 

statute was correct, not that A-B-I or any other decision was necessary for 

our conclusion.

Nor does Chevron deference affect our conclusion here. Although we 

review the BIA’s legal conclusions de novo, we grant Chevron deference to the 

BIA’s precedential decisions interpreting statutes that it administers. E.g., 

Rodriguez-Avalos v. Holder, 788 F.3d 444, 449 (5th Cir. 2015). Chevron entails 

a two-step process for determining whether deference is appropriate. First, 

the relevant statutory provision must be ambiguous. And second, the 

agency’s interpretation must be reasonable. E.g., Dhuka v. Holder, 716 F.3d 

149, 154 (5th Cir. 2013). Here, even assuming arguendo that the phrase 

“particular social group” is ambiguous and that A-R-C-G- requires 

upholding the cognizability of Jaco’s group, that interpretation would be 

unreasonable for the reasons we gave in Gonzales-Veliz. Relying on circular

reasoning is a logical fallacy. An interpretation that renders circular a 

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statute’s reasoning is unreasonable and therefore unworthy of deference 

under Chevron.

4

In the alternative, we hold that even if Gonzales-Veliz were not good 

law, Jaco’s petition would still be denied.5 Following pre-A-B-I precedent, 

as A-B-III instructs, would not change the result. In A-B-III, the Attorney 

General instructed immigration judges and the BIA to follow “pre-A-B-I

precedent, including [A-R-C-G-].” A-B-III, 28 I. & N. Dec. at 307. This was 

also the relevant law at the time of the IJ’s decision, and the IJ correctly 

distinguished Jaco’s case from that upheld in A-R-C-G-. Because 

A-R-C-G- is not clearly on point and did not overrule prior case law, we must 

4 Our circuit has consistently refused to recognize particular social groups defined 

primarily by the persecution they suffer. This is true before and after both A-R-C-G- and 

Gonzales-Veliz. E.g., Orellana-Monson v. Holder, 685 F.3d 511, 518–19 (5th Cir. 2012); De 

Leon-Saj v. Holder, 583 F. App’x 429, 430–31 (5th Cir. 2014) (per curiam); Suate-Orellana 

v. Barr, 979 F.3d 1056, 1061 (5th Cir. 2020); Gomez-De Saravia v. Barr, 793 F. App’x 338, 

339–40 (5th Cir. 2020) (per curiam); Serrano-de Portillo v. Barr, 792 F. App’x 341, 342 (5th 

Cir. 2020) (per curiam); Hercules v. Garland, 855 F. App’x 940, 942 (5th Cir. 2021) (per 

curiam); Argueta-Luna v. Garland, 847 F. App’x 260, 261 (5th Cir. 2021) (per curiam). 

This is true even after A-B-III. See Castillo-Martinez v. Garland, No. 20-60276, 

2021 WL 4186411, at *2 (5th Cir. Sept. 14, 2021) (per curiam); Santos-Palacios v. Garland, 

No. 20-60123, 2021 WL 3501985, at *1–2 (5th Cir. Aug. 9, 2021); Temaj-Augustin v.

Garland, 854 F. App’x 631, 632 (5th Cir. 2021) (per curiam).

Some, but not all, of our sister circuits have agreed with this anti-circularity 

principle. Sanchez-Lopez v. Garland, No. 18-72221, 2021 WL 3912145, at *1 (9th Cir. Sept. 

1, 2021); Del Carmen Amaya-De Sicaran v. Barr, 979 F.3d 210, 217–18 (4th Cir. 2020); 

Amezcua-Preciado v. United States Attorney General, 943 F.3d 1337, 1345–46 & n.3 (11th Cir. 

2019) (per curiam); but see Juan Antonio v. Barr, 959 F.3d 778, 789 n.2, 791–92 (6th Cir. 

2020) (observing that “married indigenous women in Guatemala who are unable to leave 

their relationship” constitutes a cognizable particular social group); Corea v. Garland, No. 

19-3537/20-3252, 2021 WL 2774260, at *3–4 (6th Cir. July 2, 2021) (remanding to the BIA 

to consider whether “Honduran women unable to leave their relationships” is a cognizable 

social group in light of A-B-III).

5 Alternative holdings are not dicta and are binding in this circuit. Texas v. United 

States, 809 F.3d 134, 178 n.158 (5th Cir. 2015).

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read it in light of prior BIA decisions, including M-E-V-G-. Cf. GonzalesVeliz, 938 F.3d at 235 (“[A-B-I] did not alter [prior immigration law]; it 

simply restated established legal principles and overruled A-R-C-G- because 

A-R-C-G- deviated from those principles.”).

Indeed, multiple factors counsel toward reading A-R-C-G- narrowly, 

including (1) the fact that DHS had conceded the existence of a particular 

social group, and (2) A-R-C-G-’s own statement that “where concessions are 

not made and accepted as binding, these issues will be decided based on the 

particular facts and evidence on a case-by-case basis as addressed by the 

Immigration Judge in the first instance.” 26 I. & N. Dec. at 392–93, 395. For 

these reasons, Jaco’s group would not be recognized even if Gonzales-Veliz

were not the law of this circuit.

We also reject Jaco’s argument that intervening BIA decisions since 

the time of the IJ’s decision require a remand of her case. A-R-C-G- was the 

relevant law at the time of the IJ’s decision. Now that A-R-C-G- has been 

revived, a remand would place Jaco back where she started. And her claims 

have already been correctly rejected under that standard. Alternatively, 

regardless of the controlling decision, only an unreasonable interpretation of 

the INA can support her proposed group.

A remand is also inappropriate because it would be futile. See, e.g.,

United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (per curiam)

(declining to remand where a remand would be futile); see also Villegas v. 

Stephens, 631 F. App’x 213, 214 (5th Cir. 2015) (per curiam) (same).

Applicants for asylum or withholding of removal must show that the 

government “is unable or unwilling to control” the applicant’s persecution. 

See Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006) (citing 

8 C.F.R. § 1208.13(b)(1)). As the IJ held—and as the BIA affirmed in its first 

decision—Jaco failed to make this showing. Jaco received child support and 

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a restraining order from the Honduran government against her former 

partner. While her former partner appeared to violate the restraining order 

on at least two occasions, Jaco reported only one occasion to the judge, and 

never informed the police. Rather than being unable or unwilling to protect 

her, the record reflects that the government was responsive to her fears when 

apprised of them. Therefore, even if Jaco could show membership in a 

cognizable particular social group, a remand would be futile because it would 

not change the disposition of her case.6

In holding that Jaco’s proposed group is not cognizable, we do not 

hold that women who have suffered from domestic violence are categorically 

precluded from membership in a particular social group. We hold only that 

a particular social group’s immutable characteristics must make the group 

sufficiently particularized and socially distinct without reference to the very 

persecution from which its members flee. E.g., Perez-Rabanales v. Sessions, 

881 F.3d 61, 67 (1st Cir. 2018) (“A sufficiently distinct social group must 

exist independent of the persecution claimed to have been suffered by the 

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

v. Gonzales, 420 F.3d 551, 556 (6th Cir. 2005) (“The individuals in the group 

must share a narrowing characteristic other than their risk of being 

persecuted.”).

Accordingly, even if Jaco’s group meets the immutable characteristic 

and nexus requirements, we still hold that her group is neither particularized 

nor socially distinct.

7

In Gonzales-Veliz, we determined that—even as 

defined by the persecution that it suffers—the group “Honduran women 

unable to leave their relationships” lacked the requisite particularity and 

6 See supra note 5.

7 See supra note 5.

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social distinction. 938 F.3d at 232; see also Suate-Orellana v. Barr, 979 F.3d 

1056, 1061 (5th Cir. 2020); Orellana-Monson v. Holder, 685 F.3d 511, 521–22 

(5th Cir. 2012). The same is true here. Substantial evidence supports the 

BIA’s conclusion that her group is neither particularized nor distinct. And 

without the illicit element of persecution, the group “Honduran women” is 

even less particularized. Jaco’s proposed group fails this test.

* * *

We DENY Jaco’s petition for review. The BIA did not abuse its 

discretion in concluding that Jaco’s particular social group was not 

cognizable, and substantial evidence supported its conclusion.

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