United States Court of Appeals 

For the First Circuit 

No. 17-1803 

ANA MARINA PEREZ-RABANALES, 

Petitioner, 

v. 

JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS 

Before 

Thompson, Selya, and Kayatta, 

Circuit Judges. 

Kevin P. MacMurray, Daniel W. Chin, and MacMurray & Associates 

on brief for petitioner. 

 Chad A. Readler, Acting Assistant Attorney General, Civil 

Division, U.S. Department of Justice, Shelley R. Goad, Assistant 

Director, Office of Immigration Litigation, and Carmel A. Morgan, 

Trial Attorney, Office of Immigration Litigation, on brief for 

respondent. 

January 26, 2018 
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SELYA, Circuit Judge. The petitioner, Ana Marina PerezRabanales, a Guatemalan national, seeks judicial review of a final 

order of the Board of Immigration Appeals (BIA) denying her 

application for asylum, withholding of removal, and protection 

under the United Nations Convention Against Torture (CAT). We 

conclude that the petitioner has failed to show that the claimed 

persecution took place on account of her membership in a cognizable 

social group. Based largely on that conclusion, we hold that the 

BIA's final order is in accordance with law and is supported by 

substantial evidence in the record. Consequently, we deny the 

petition. 

I. BACKGROUND

The petitioner resided in Guatemala until April of 2014, 

when she attempted to enter the United States. She claims that in 

2003, a man named Rodrigo De Leon grabbed her as she was walking 

home from church and raped her. She did not contact the police 

because she believed that women have no rights in Guatemala and 

that the police would be unwilling to protect her. To avoid future 

encounters with De Leon, she altered her route to church. 

Notwithstanding her precautions, De Leon tracked her down and raped 

her a second time. 

The petitioner became pregnant as a result of this second 

rape. She told her mother about both the pregnancy and De Leon's 

assaults. Soon thereafter, De Leon left Guatemala. But as word 
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spread that the petitioner was carrying De Leon's child, she began 

to experience abuse from De Leon's family. Three of his relatives 

beat her with sticks and threatened her life. De Leon was married 

at the time of the rapes, and she believed that his relatives, 

upon learning of her pregnancy, blamed her for "wreck[ing] his 

home." 

The petitioner gave birth to her son, Juanfer Perez, in 

March of 2004. At an unspecified later date in 2007, she was 

attacked by De Leon's sister-in-law, who pulled her hair, threw 

her to the ground, and struck her with a rock. An x-ray taken at 

a local hospital revealed that blood had pooled in the petitioner's 

brain as a result of the attack. Although she seldom went outdoors 

following this incident for fear of another confrontation, De 

Leon's relatives continued to scream at her from outside her home. 

The petitioner subsequently met Raoul Mauricio, with 

whom she lived and had a child (Astrid Mauricio). De Leon's family 

continued harassing her, and the harassment persisted after Raoul 

Mauricio emigrated to the United States in 2010. The petitioner 

recalls that members of De Leon's family told her that "now that 

you are alone, we can deal with you, bitch." 

On or about April 26, 2014, the petitioner, accompanied 

by her minor daughter Astrid Mauricio, crossed the border into 

Texas and entered the United States without inspection. She was 

detained upon entry and placed in removal proceedings. Conceding 
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removability, she cross-applied for asylum, withholding of 

removal, and CAT protection. In support, she claimed both past 

persecution and a well-founded fear of future persecution on 

account of her membership in a particular social group. 

At the conclusion of her removal hearing, the 

immigration judge (IJ) found the petitioner credible, but denied 

relief. The IJ concluded that the petitioner was ineligible for 

either asylum or withholding of removal because she was unable to 

show that the harm she suffered in Guatemala was on account of a 

statutorily protected ground. The IJ also concluded that the 

petitioner did not qualify for CAT protection because she had not 

established a likelihood that, if repatriated, she would be 

subjected to torture with the consent, acquiescence, or willful 

blindness of a public official. Following the petitioner's 

unsuccessful appeal to the BIA, she prosecuted this petition for 

judicial review. 

II. ANALYSIS 

 Judicial review in immigration cases typically focuses 

on the final decision of the BIA. See Cabrera v. Lynch, 805 F.3d 

391, 393 (1st Cir. 2015). "But where, as here, the BIA accepts 

the IJ's findings and reasoning yet adds its own gloss, we review 

the two decisions as a unit." Id. (quoting Moreno v. Holder, 749 

F.3d 40, 43 (1st Cir. 2014)). We proceed accordingly. 
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 In the course of our review, "[c]laims of legal error 

engender de novo review, with some deference to the agency's 

expertise in interpreting both the statutes that govern its 

operations and its own implementing regulations." Id. Factual 

findings are reviewed for substantial evidence. See López-Castro 

v. Holder, 577 F.3d 49, 52 (1st Cir. 2009). "Under this highly 

deferential standard, we must accept the BIA's findings so long as 

they are 'supported by reasonable, substantial, and probative 

evidence on the record considered as a whole.'" Nikijuluw v. 

Gonzales, 427 F.3d 115, 120 (1st Cir. 2005) (quoting INS v. EliasZacarias, 502 U.S. 478, 481 (1992)). Thus, the agency's factual 

findings will not be disturbed unless "the record is such as to 

compel a reasonable factfinder to reach a contrary determination." 

Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012). 

 To establish her eligibility for asylum, an alien must 

show that she is a refugee as defined by the Immigration and 

Nationality Act. See 8 U.S.C. § 1101 (a)(42)(A); see also VillaLondono v. Holder, 600 F.3d 21, 24 (1st Cir. 2010). "A refugee is 

a person who cannot or will not return to her home 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.'" Olujoke v. Gonzales, 411 F.3d 16, 

21 (1st Cir. 2005) (quoting 8 U.S.C. § 1101(a)(42)(A)). 
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 Here, the petitioner pins her hopes on the fourth of 

these five statutorily protected grounds: membership in a 

particular social group. The Immigration and Nationality Act does 

not define what constitutes membership in a particular social 

group. Decisional law has filled this void: to make out a 

cognizable social group, an alien must show that the group's 

members share a common immutable characteristic, see Paiz-Morales 

v. Lynch, 795 F.3d 238, 243 (1st Cir. 2015); that the group can be 

defined with particularity, see id.; and that the group is socially 

distinct, see id.; see also Matter of M-E-V-G-, 26 I. & N. Dec. 

227, 232 (BIA 2014). Our cases have consistently employed this 

tripartite formulation in passing upon the cognizability of social 

groups. See, e.g., Granada-Rubio v. Lynch, 814 F.3d 35, 38 (1st 

Cir. 2016); Paiz-Morales, 795 F.3d at 243-44; Mendez-Barrera v. 

Holder, 602 F.3d 21, 25 (1st Cir. 2010). 

 In the case at hand, the petitioner's claims are premised 

on her membership in a social group that she describes as 

constituting "Guatemalan women who try to escape systemic and 

severe violence but who are unable to receive official protection." 

Both the IJ and the BIA concluded that this proffered social group 

was not legally cognizable. As we explain below, this conclusion 

is in accordance with law and is supported by substantial evidence. 

 The BIA has defined a common, immutable characteristic 

as "one that the members of the group either cannot change, or 
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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). We assume, favorably to the 

petitioner, that she has demonstrated a common, immutable 

characteristic amongst members of her proffered social group: 

gender. This assumption appears warranted since the BIA has 

recognized gender as sufficient for this purpose. See Matter of 

A-R-C-G-, 26 I. & N. Dec. 388, 392 (BIA 2014). 

 Even so, we are mindful that "the social group concept 

would virtually swallow the entire refugee definition if common 

characteristics, coupled with a meaningful level of harm, were all 

that need be shown." Paiz-Morales, 795 F.3d at 243 (quoting Matter 

of M-E-V-G-, 26 I. & N. Dec. at 231). To avoid such overbreadth, 

a cognizable social group must also satisfy the particularity and 

social distinctiveness requirements. See id. The petitioner's 

proffered social group fails to satisfy either of these 

prerequisites. 

 The particularity requirement seeks to determine whether 

a proffered social group can be described in a manner sufficiently 

unique to ensure that the group would be recognized in its own 

society as a discrete class of persons. See Matter of S-E-G-, 24 

I. & N. Dec. 579, 584 (BIA 2008). If the description of the group 

is so amorphous as to preclude a rational determination of group 

membership, the particularity requirement is not met. See id. It 
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follows, we think, that a proffered social group is not 

sufficiently particular if it is broad to the point of 

indeterminacy. See Tay-Chan v. Holder, 699 F.3d 107, 112 (1st 

Cir. 2012) (holding that a group consisting of "victims of gang 

threats and possible extortion" was overly broad and, thus, 

insufficiently particular). The petitioner's proffered social 

group potentially encompasses all women in Guatemala, as any woman 

in Guatemala may fall victim to violence and find herself unable 

to obtain official protection. The amorphous nature of this 

sprawling group precludes determinacy and renders the group 

insufficiently particular. 

 Nor is this the only shortcoming in the petitioner's 

attempt to construct a cognizable social group. The social 

distinctiveness requirement demands that the proffered group be 

perceived as a group by the society in which it exists. See VegaAyala v. Lynch, 833 F.3d 34, 39-40 (1st Cir. 2016). This element 

turns on "whether members of a particular group 'are set apart, or 

distinct, from other persons within the society in some significant 

way.'" Id. at 39 (quoting Granada-Rubio, 814 F.3d at 39). The 

test is whether, "if the common, immutable characteristic were 

known, those with the characteristic in the society in question 

would be meaningfully distinguished from those who do not have 

it." Id. at 39-40. 
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 The petitioner argues that her status as a woman who 

feels unable to seek official recourse placed her in a socially 

visible group within her society in Guatemala. She relies on 

Matter of A-R-C-G- to buttress her proposition that a particular 

social group may consist of women subject to violence. See, 

Matter of A-R-C-G-, 26 I. & N. Dec. at 390-94 (holding that 

"married women in Guatemala who are unable to leave their 

relationship" may constitute a cognizable social group). The BIA 

rejected this attempted comparison, finding that the petitioner's 

proffered social group — unlike the social group recognized in 

Matter of A-R-C-G- — lacks any socially visible characteristics 

independent of the harm of which the petitioner complains. 

 We agree. Comparing the petitioner's proffered social 

group to the social group found cognizable in Matter of A-R-C-Gis like comparing carrots to cucumbers. The alien in Matter of AR-C-G- was able to show that the group in which she claimed 

membership — "married women in Guatemala who are unable to leave 

their relationship" — was viewed by her society as a discrete class 

of persons. Id. The members' status as women forced to remain in 

their marriages left them uniquely vulnerable to persecution — a 

fact that was easily recognizable by Guatemalan society. See id. 

at 394 (noting that Guatemala's "culture of machismo and family 

violence" and a consistent failure on the part of law enforcement 
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to protect married women from these offenses contribute 

significantly to the social distinctiveness of the group). 

 Here — unlike in Matter of A-R-C-G- — the petitioner's 

proffered social group is defined by the persecution of its 

members. This distinction has decretory significance. 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. See Burbiene 

v. Holder, 568 F.3d 251, 254 (1st Cir. 2009); Rreshpja v. Gonzales, 

420 F.3d 551, 556 (6th Cir. 2005); Matter of W-G-R-, 26 I. & N. 

Dec. 208, 215 (BIA 2014); see also Escobar v. Holder, 657 F.3d 

537, 545 (7th Cir. 2011) (noting that "[w]here a proposed group is 

defined only by the characteristic that it is persecuted, it does 

not qualify as a 'social group'"). The petitioner has offered no 

evidence to show that the members of her proffered social group 

("Guatemalan women who try to escape systemic and severe violence 

but who are unable to receive official protection") — unlike the 

members of the social group recognized in Matter of A-R-C-G- — 

were viewed by Guatemalan society as either distinct or uniquely 

vulnerable prior to the commission of the acts of persecution of 

which they complain. Consequently, the petitioner's proffered 

social group fails to satisfy the social distinctiveness 

requirement. 
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 That ends this aspect of the matter. The petitioner's 

failure to satisfy both the particularity and the social 

distinctiveness requirements defeats her attempt to qualify as a 

refugee through membership in a particular social group.1 

 As an attempted fallback, the petitioner argues that the 

agency erred in failing to analyze her claim of past persecution. 

The Immigration and Nationality Act, though, does not provide a 

pathway to asylum for all individuals who have suffered harm severe 

enough to rise to the level of persecution. See Sugiarto v. 

Holder, 586 F.3d 90, 95 (1st Cir. 2009). To warrant such relief, 

the claimed harm must have been causally connected to one of the 

five statutorily protected grounds. See Lopez Perez v. Holder, 

587 F.3d 456, 462 (1st Cir. 2009). Absent such a nexus, a freefloating finding of persecution is not itself sufficient to pave 

the way for asylum. See Sugiarto, 586 F.3d at 95. Because the IJ 

and the BIA supportably found that the petitioner failed to 

establish a nexus between the claimed harm and a statutorily 

protected ground, there was no error in forgoing an analysis of 

past persecution. 

 1 In an effort to change the trajectory of the debate, the 

petitioner suggests that she may qualify for relief as a member of 

a different social group: "victims of a crime." Because the 

petitioner proffers this alternative description for the first 

time in this court, we lack jurisdiction to consider it. See VillaLondono, 600 F.3d at 25. 
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 So, too, the IJ and the BIA did not err in declining to 

reach the issue of humanitarian parole. Since humanitarian parole 

requires a showing of past persecution on account of a statutorily 

protected ground, see Ordonez-Quino v. Holder, 760 F.3d 80, 96 

(1st Cir. 2014), no separate analysis was needed to warrant the 

dismissal of this claim. 

 Having disposed of the petitioner's application for 

asylum, we need not linger long over her application for 

withholding of removal. "[C]laims for withholding of removal 

require a higher level of proof than claims for asylum. It follows 

that if a claim for asylum is rejected on the merits, a counterpart 

claim for withholding of removal must necessarily fail." VillaLondono, 600 F.3d at 24 n.1; accord Rodriguez-Ramirez v. Ashcroft, 

398 F.3d 120, 123 (1st Cir. 2005). Because the petitioner's asylum 

claim fails on its merits, her counterpart claim for withholding 

of removal fails as well. 

 Finally, both the IJ and the BIA rejected the 

petitioner's claim for CAT protection, concluding that she had not 

shown a likelihood that she would be subject to torture upon her 

return to Guatemala at the instigation or with the acquiescence of 

a government official. See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a). 

In this court, the petitioner has not advanced any developed 

argumentation relating to this claim. Consequently, we deem it 

abandoned. See Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010). 
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III. CONCLUSION 

 We need go no further. Although the petitioner presents 

a sympathetic case, it is not a case that demonstrates her 

entitlement to the relief that she seeks. Accordingly, we deny 

the petition for judicial review. 

So Ordered.