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Matter of A-R-C-G- et al., Respondents

Decided August 26, 2014

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Depending on the facts and evidence in an individual case, “married women in 

Guatemala who are unable to leave their relationship” can constitute a cognizable 

particular social group that forms the basis of a claim for asylum or withholding of 

removal under sections 208(a) and 241(b)(3) of the Immigration and Nationality Act, 

8 U.S.C. §§ 1158(a) and 1231(b)(3) (2012). 

FOR RESPONDENT: Roy Petty, Esquire, Rogers, Arkansas

FOR THE DEPARTMENT OF HOMELAND SECURITY: George R. Martin, Appellate 

Counsel

AMICI CURIAE: American Immigration Lawyers Association;

1 Center for Gender 

& Refugee Studies;2Federation for American Immigration Reform;3 National Immigrant 

Justice Center; 4 United Nations High Commissioner for Refugees 5and Williams 

& Connolly, LLP6

BEFORE: Board Panel: ADKINS-BLANCH, Vice-Chairman; MILLER and GREER,

Board Members.

ADKINS-BLANCH, Vice Chairman:

In a decision dated October 14, 2009, an Immigration Judge found the 

respondents removable and denied their applications for asylum and 

withholding of removal under sections 208(a) and 241(b)(3) of the 

Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1231(b)(3)

(2006). The respondents have appealed from that decision, contesting only 

the denial of their applications for relief from removal. We find that the 

lead respondent, a victim of domestic violence in her native country, is a 

 

1

Phillip L. Torrey, Deborah E. Anker, Sabrineh Ardalan, Benjamin Casper, and 

Fatma E. Marouf, Esquires

2 Karen Musalo, Blaine Bookey, Lisa Frydman, and Christine Lin, Esquires

3 Michael M. Hethmon, Esquire 

4 Lisa Koop, Ashley Huebner, and Charles Roth, Esquires

5

Pamela Goldberg, Esquire 

6 Allison B. Jones and Ana C. Reyes, Esquires
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member of a particular social group composed of “married women in 

Guatemala who are unable to leave their relationship.” The record will be 

remanded to the Immigration Judge for further proceedings. 

I. FACTUAL AND PROCEDURAL HISTORY

The lead respondent is the mother of the three minor respondents.7 The 

respondents are natives and citizens of Guatemala who entered the United 

States without inspection on December 25, 2005. The respondent filed a 

timely application for asylum and withholding of removal under the Act.

8

The Immigration Judge found the respondent to be a credible witness, 

which is not contested on appeal. It is undisputed that the respondent, who 

married at age 17, suffered repugnant abuse by her husband. This abuse 

included weekly beatings after the respondent had their first child.9 On one 

occasion, the respondent’s husband broke her nose. Another time, he threw 

paint thinner on her, which burned her breast. He raped her. 

The respondent contacted the police several times but was told that they 

would not interfere in a marital relationship. On one occasion, the police 

came to her home after her husband hit her on the head, but he was not 

arrested. Subsequently, he threatened the respondent with death if she 

called the police again. The respondent repeatedly tried to leave the 

relationship by staying with her father, but her husband found her and 

threatened to kill her if she did not return to him. Once she went to 

Guatemala City for about 3 months, but he followed her and convinced her 

to come home with promises that he would discontinue the abuse. The 

abuse continued when she returned. The respondent left Guatemala in 

December 2005, and she believes her husband will harm her if she returns. 

The Immigration Judge found that the respondent did not demonstrate 

that she had suffered past persecution or has a well-founded fear of future 

persecution on account of a particular social group comprised of “married 

women in Guatemala who are unable to leave their relationship.” The 

Immigration Judge determined that there was inadequate evidence that the 

respondent’s spouse abused her “in order to overcome” the fact that she 

 

7 We will refer to the lead respondent as “the respondent.” The minor respondents are 

derivatives of their mother’s asylum application.

8 The respondent’s asylum application, which was filed after May 11, 2005, is governed 

by the amendments to the Act brought about by the REAL ID Act of 2005, Division B of 

Pub. L. No. 109-13, 119 Stat. 302. See Matter of S-B-, 24 I&N Dec. 42 (BIA 2006). 

9 This child was born in 1994 and was residing in Guatemala at the time of the 

proceedings. 
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was a “married woman in Guatemala who was unable to leave the 

relationship.” He found that the respondent’s abuse was the result of 

“criminal acts, not persecution,” which were perpetrated “arbitrarily” and 

“without reason.” He accordingly found that the respondent did not meet 

her burden of demonstrating eligibility for asylum or withholding of 

removal under the Act. 

On appeal, the respondent asserts that she has established eligibility for 

asylum as a victim of domestic violence. The Department of Homeland 

Security (“DHS”) initially responded that the Immigration Judge’s decision 

should be upheld. We subsequently requested supplemental briefing from 

both parties and amici curiae to address the issue whether domestic 

violence can, in some instances, form the basis for a claim of asylum or 

withholding of removal under sections 208(a) and 241(b)(3) of the Act.10 

See Matter of R-A-, 22 I&N Dec. 906 (BIA 1999) (en banc), vacated, 

22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), 

remanded and stay lifted, 24 I&N Dec. 629 (A.G. 2008). 

In response to our request for supplemental briefing, the DHS now 

concedes the respondent established that she suffered past harm rising to 

the level of persecution and that the persecution was on account of a 

particular social group comprised of “married women in Guatemala who 

are unable to leave their relationship.” However, the DHS seeks remand, 

arguing that “further factual development of the record and related findings 

by the Immigration Judge are necessary on several issues” before the 

asylum claim can be properly resolved. The respondent opposes remand 

and maintains that she has met her burden of proof regarding all aspects of 

her asylum claim. We accept the parties’ position on the existence of harm 

rising to the level of past persecution, the existence of a valid particular 

social group, and the issue of nexus under the particular facts of this case. 

We will remand the record for further proceedings.

II. ANALYSIS

A. Particular Social Group

The question whether a group is a “particular social group” within the 

meaning of the Act is a question of law that we review de novo. 8 C.F.R. 

§ 1003.1(d)(3)(ii) (2014); see Malonga v. Mukasey, 546 F.3d 546, 553 (8th 

 

10 We acknowledge with appreciation the thoughtful arguments raised in the briefs 

submitted by amici curiae.
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Cir. 2008). The question whether a person is a member of a particular 

social group is a finding of fact that we review for clear error. 8 C.F.R. 

§ 1003.1(d)(3)(i). 

We initially considered whether victims of domestic violence can 

establish membership in a particular social group in Matter of R-A-, 22 I&N 

Dec. at 907. We reversed an Immigration Judge’s finding that the 

respondent in that case was eligible for asylum on account of her 

membership in a particular social group consisting of “Guatemalan women 

who have been involved intimately with Guatemalan male companions, 

who believe that women are to live under male domination.” Id. at 911. 

The majority opinion reasoned that the proffered social group was “defined 

principally, if not exclusively, for purposes of” the asylum case and that it 

was unclear whether “anyone in Guatemala perceives this group to exist in 

any form whatsoever,” including spousal abuse victims themselves or their 

male oppressors. Id. at 918. We further reasoned that even if the proffered 

social group was cognizable, the respondent did not establish that her 

husband harmed her on account of her membership in the group. Id. at 

920–23. 

The Acting Commissioner of the former Immigration and Naturalization 

Service (“INS”) referred the decision to the Attorney General for review.11 

In 2001, Attorney General Janet Reno vacated our decision in Matter 

of R-A-, 22 I&N Dec. 906. She remanded the case for the Board’s

reconsideration following final publication of proposed regulations that 

addressed the meaning of various terms in asylum law, including 

“persecution,” “membership in a particular social group,” and “on account 

of” a protected characteristic. See Asylum and Withholding Definitions, 

65 Fed. Reg. 76,588, 76,597–98 (proposed Dec. 7, 2000). 

On February 21, 2003, Attorney General John Ashcroft certified Matter 

of R-A- for review and provided an opportunity for additional briefing. He 

remanded the case to the Board in 2005, directing us to reconsider our 

decision “in light of the final rule.” Matter of R-A-, 23 I&N Dec. 694. The 

proposed regulations were not finalized. On September 25, 2008, Attorney 

General Michael Mukasey certified the case for his review and issued a 

decision ordering us to reconsider it, removing the requirement that we 

await the issuance of the final regulations. Matter of R-A-, 24 I&N Dec. 

629. Matter of R-A- is no longer pending.12

 

11 The functions of the former INS were transferred to the DHS on March 1, 2003, 

pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, § 402, 116 Stat. 

2135, 2177−78 (Nov. 25, 2002).

12 On December 4, 2008, we granted a joint motion filed by the parties, requesting 

remand to consider Matter of R-A- in light of recent jurisprudence. In remanded 

(continued . . .)
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B. Respondent’s Claim

The DHS has conceded that the respondent established harm rising to 

the level of past persecution on account of a particular social group 

comprised of “married women in Guatemala who are unable to leave their 

relationship.” The DHS’s position regarding the existence of such a

particular social group in Guatemala under the facts presented in this case 

comports with our recent precedents clarifying the meaning of the term 

“particular social group.” Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 

2014); Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014). In this regard, we 

point out that any claim regarding the existence of a particular social group 

in a country must be evaluated in the context of the evidence presented 

regarding the particular circumstances in the country in question. 

In Matter of W-G-R- and Matter of M-E-V-G-, we held that an applicant 

seeking asylum based on his or her membership in a “particular social 

group” must establish that the group is (1) composed of members who 

share a common immutable characteristic, (2) defined with particularity, 

and (3) socially distinct within the society in question.13 The “common 

immutable characteristic” requirement incorporates the standard set forth in 

Matter of Acosta, 19 I&N Dec. 211, 233–34 (BIA 1985). The “particularity”

requirement addresses “the question of delineation.” Matter of W-G-R-, 

26 I&N Dec. at 214. That is, it clarifies the point that “not every 

‘immutable characteristic’ is sufficiently precise to define a particular social 

group.” Matter of M-E-V-G-, 26 I&N Dec. at 239. The “social distinction” 

requirement renames the former concept of “social visibility” and clarifies 

“the importance of ‘perception’ or ‘recognition’ to the concept of the 

particular social group.” Matter of W-G-R-, 26 I&N Dec. at 216.

In this case, the group is composed of members who share the common 

immutable characteristic of gender. See Matter of Acosta, 19 I&N Dec. at 

233 (finding that sex is an immutable characteristic); see also Matter of 

W-G-R-, 26 I&N Dec. at 213 (“The critical requirement is that the defining 

characteristic of the group must be something that either cannot be changed 

or that the group members should not be required to change in order to 

avoid persecution.”). Moreover, marital status can be an immutable 

_______________________________

proceedings, the parties stipulated that the respondent was eligible for asylum. Her 

application was granted on December 10, 2009. 

13 We explained that this three-part test is not a departure from the principles established 

in our prior case law regarding particular social groups. See Matter of E-A-G-, 24 I&N 

Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of

A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); Matter of C-A-, 23 I&N Dec. 951 (BIA 

2006); Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).
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characteristic where the individual is unable to leave the relationship. A 

determination of this issue will be dependent upon the particular facts and 

evidence in a case. A range of factors could be relevant, including whether 

dissolution of a marriage could be contrary to religious or other deeply held 

moral beliefs or if dissolution is possible when viewed in light of religious, 

cultural, or legal constraints. In evaluating such a claim, adjudicators must 

consider a respondent’s own experiences, as well as more objective 

evidence, such as background country information.

The DHS concedes that the group in this case is defined with 

particularity. The terms used to describe the group—“married,” “women,” 

and “unable to leave the relationship”—have commonly accepted 

definitions within Guatemalan society based on the facts in this case, 

including the respondent’s experience with the police. See Matter of

M-E-V-G-, 26 I&N Dec. at 239; Matter of W-G-R-, 26 I&N Dec. at 214. In 

some circumstances, the terms can combine to create a group with discrete 

and definable boundaries. We point out that a married woman’s inability to 

leave the relationship may be informed by societal expectations about 

gender and subordination, as well as legal constraints regarding divorce and 

separation. See Matter of W-G-R-, 26 I&N Dec. at 214 (observing that in 

evaluating a group’s particularity, it may be necessary to take into account 

the social and cultural context of the alien’s country of citizenship or 

nationality); Committees on Foreign Relations and Foreign Affairs, 111th 

Cong., 2d Sess., Country Reports on Human Rights Practices for 2008

2598 (Joint Comm. Print 2010), available at http://www.gpo.gov

/fdsys/pkg/CPRT-111JPRT62931/pdf/CPRT-111JPRT62931.pdf (“Country 

Reports”) (discussing sexual offenses against women as a serious societal 

problem in Guatemala); Bureau of Human Rights, Democracy, and Labor, 

U.S. Dep’t of State, Guatemala Country Reports on Human Rights 

Practices–2008 (Feb. 25, 2009), http://www.state.gov/j/drl/rls/hrrpt

/2008/wha/119161.htm.

14

 In this case, it is significant that the respondent 

sought protection from her spouse’s abuse and that the police refused to 

assist her because they would not interfere in a marital relationship.

The group is also socially distinct within the society in question. Matter 

of M-E-V-G-, 26 I&N Dec. at 240 (“To be socially distinct, a group need 

not be seen by society; rather it must be perceived as a group by society.”). 

To have “social distinction,” there must be “evidence showing that society 

 

14 Notably, the group is not defined by the fact that the applicant is subject to domestic 

violence. See Matter of W-G-R-, 26 I&N Dec. at 215 (noting that circuit courts “have 

long recognized that a social group must have ‘defined boundaries’ or a ‘limiting 

characteristic,’ other than the risk of being persecuted”).
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in general perceives, considers, or recognizes persons sharing the particular 

characteristic to be a group.” Matter of W-G-R-, 26 I&N Dec. at 217. The 

group’s recognition is “determined by the perception of the society in 

question, rather than by the perception of the persecutor.” 15 Matter of

M-E-V-G-, 26 I&N Dec. at 242; see also Matter of W-G-R-, 26 I&N Dec. at 

214 (noting that there is some degree of overlap between the particularity 

and social distinction requirements because both take societal context into 

account). 

When evaluating the issue of social distinction, we look to the evidence 

to determine whether a society, such as Guatemalan society in this case, 

makes meaningful distinctions based on the common immutable 

characteristics of being a married woman in a domestic relationship that 

she cannot leave. Such evidence would include whether the society in 

question recognizes the need to offer protection to victims of domestic 

violence, including whether the country has criminal laws designed to 

protect domestic abuse victims, whether those laws are effectively 

enforced, and other sociopolitical factors. Cf. Davila-Mejia v. Mukasey, 

531 F.3d 624, 629 (8th Cir. 2008) (finding that competing family business 

owners are not a particular social group because they are not perceived as a 

group by society).

Supporting the existence of social distinction, and in accord with the 

DHS’s concession that a particular social group exists, the record in this 

case includes unrebutted evidence that Guatemala has a culture of 

“machismo and family violence.” See Guatemala Failing Its Murdered 

Women: Report, Canadian Broad. Corp. (July 18, 2006), http://www.

cbc.ca/news/world/guatemala-failing-its-murdered-women-report-1.627240. 

Sexual offenses, including spousal rape, remain a serious problem. See

Country Reports, supra, at 2608. Further, although the record reflects that 

Guatemala has laws in place to prosecute domestic violence crimes, 

enforcement can be problematic because the National Civilian Police “often 

failed to respond to requests for assistance related to domestic violence.” 

Id. at 2609. 

We point out that cases arising in the context of domestic violence 

generally involve unique and discrete issues not present in other particular 

social group determinations, which extends to the matter of social 

distinction. However, even within the domestic violence context, the issue 

of social distinction will depend on the facts and evidence in each 

 

15 The perception of the persecutor, however, is critical to the question whether a person 

is persecuted “on account of” membership in a particular social group. See Matter of 

M-E-V-G-, 26 I&N Dec. at 242; Matter of W-G-R-, 26 I&N Dec. at 218.
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individual case, including documented country conditions; law enforcement 

statistics and expert witnesses, if proffered; the respondent’s past 

experiences; and other reliable and credible sources of information.

16

C. Remaining Issues

The DHS stipulates that the respondent suffered mistreatment rising to 

the level of past persecution. The DHS also concedes in this case that the 

mistreatment was, for at least one central reason, on account of her 

membership in a cognizable particular social group. We note that in cases 

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. See 

generally Matter of N-M-, 25 I&N Dec. 526 (BIA 2011); Matter of J-B-N-

& S-M-, 24 I&N Dec. 208 (BIA 2007). In particular, the issue of nexus

will depend on the facts and circumstances of an individual claim. 

We will remand the record for the Immigration Judge to address the 

respondent’s statutory eligibility for asylum in light of this decision. Under 

controlling circuit law, in order for the respondent to prevail on an asylum 

claim based on past persecution, she must demonstrate that the Guatemalan 

Government was unwilling or unable to control the “private” actor. See

Gutierrez-Vidal v. Holder, 709 F.3d 728, 732–33 (8th Cir. 2013); Menjivar 

v. Gonzales, 416 F.3d 918, 920–22 (8th Cir. 2005). 

If the respondent succeeds in establishing that the Government was 

unwilling or unable to control her husband, the burden shifts to the DHS to 

demonstrate that there has been a fundamental change in circumstances 

such that the respondent no longer has a well-founded fear of persecution. 

8 C.F.R. § 1208.13(b)(1)(i)(A), (ii) (2014). Alternatively, the DHS would 

bear the burden of showing that internal relocation is possible and is 

not unreasonable. 8 C.F.R. § 1208.13(b)(1)(i)(B), (ii); see also Matter of 

M-Z-M-R-, 26 I&N Dec. 28 (BIA 2012).17 The Immigration Judge may 

also consider, if appropriate, whether the respondent is eligible for 

humanitarian asylum. See 8 C.F.R. § 1208.13(b)(1)(iii).

 

16 Amici for the American Immigration Lawyers Association, the United Nations High 

Commissioner for Refugees, and the Center for Gender & Refugee Studies argue that 

gender alone should be enough to constitute a particular social group in this matter. 

Since the respondent’s membership in a particular social group is established under the 

aforementioned group, we need not reach this issue.

17 On remand, the Immigration Judge should reevaluate this issue based on the entire 

evidentiary record, including any updated evidence.
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III. CONCLUSION

For the foregoing reasons, we will remand the record to the Immigration 

Judge for further proceedings and for the entry of a new decision. On 

remand, the Immigration Judge should afford the parties the opportunity to 

update the evidentiary record. 

ORDER: The record is remanded to the Immigration Judge for further 

proceedings consistent with the foregoing opinion and for the entry of a 

new decision.