UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ESTELA GUADALUPE CASTILLO REYES, a/k/a Estela Castillo Reyes; KEVIN ALEXANDER BARAHONA CASTILLO; KATE RINE MICHELLE CASTILLO REYES, Petitioners,

v. JEFFERSON B. SESSIONS, III, United States Attorney General, Respondent. No. 17-9550 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , HARTZ , and MORITZ , Circuit Judges.

________________ _________________ Estela Guadalupe Castillo Reyes a nd her minor children Kevin Al exander Barahona Castillo and Katerine Mi chelle Castillo R eyes are nati ves and citizens of El Salvador who entered the Un ited States illegally. They peti tion for review of an order by the Board of Immigration Appeals (BIA) affirming a dec ision by the

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 18, 2018
Elisabeth A. Shumaker Clerk of Court2 Immigration Judge (IJ) that denie d their applications for asylu m, withholding of removal, and protection under th e Convention Against Torture. Exercising jurisdiction pursuant to 8 U.S .C. § 1252(a), we deny the petiti on for review.
BACKGROUND Castillo Reyes, through her asylum application and testimony before the IJ, alleges the following facts: 1 She was born in El Salva dor in 1990, and entered the United States with her two child ren when she was 24. Castillo Reyes reports her family in El Salvador was very poor and that she lived alone at 16 after her mother left to find work and didn’t retu rn. Castillo Reyes shared her home for some period of time with the father of her f irst child, Katerine, but was l eft alone with her daughter at 19 when Katerine’s fa ther died. Two of Castillo Re yes’s uncles then began sexually harassing her an d one of them broke into her hom e and raped her. She didn’t report the rape to th e police because she didn’t thi nk they would do anything. Castillo Reyes testifi ed that the uncles were her on ly remaining family in El Salvador. After Castillo Reyes’s uncle bra gged about the rape to others, one of Castillo Reyes’s acquaintances , Juan Carlos Barahona Gomez, offered to p rotect her. She and her young daughter moved in with h im, but he soon began physica lly and verbally abusing her. She testified tha t she nonetheless stayed with hi m because she and Katerine had nowhere else to go.

1 The IJ found Castillo Reyes’ testimony was credible.3 Castillo Reyes became pregnant by Barahona Gomez and gave birth to Kevin in February 2014. But two weeks after Kevin was born, Barahona Gomez threw Castillo Reyes, Katerine, Kevin and their clothes out on the st reet after Castillo Reyes refused to be intimate with him. The brother of a neighb or, Enrique Mestizo, saw Castillo Reyes’s situation and offered his home to Castillo Reyes and the children. After she and the children moved in with him, he ins isted that she pay him for his generosity by living as husband and wife. Mestizo also beat her. In August 2014, Castillo Reyes dis covered Mestizo molesting fou r-year old Katerine while the child slept . She didn’t report the incident to the police because Mestizo said he would kill her and the children if she did. No t long thereafter, Castillo Reyes left Mestizo and traveled to the United States w ith the children. Castillo Reyes and her children entered the United States witho ut inspection or parole by an immigration offi cer in September 2014. She and th e children were subsequently served with a Noti ce to Appear and placed in immig ration removal proceedings. In May 2015, Cas tillo Reyes and her children, thr ough counsel, admitted the allegations in the Notice and conceded they were r emovable as charged. On the same day, Castillo Reyes applied for asylum, withholding of removal and protection under the Convention Against Torture on behalf of he rself and her children. Castillo Rey es’s children later filed their own appl ications, citing the harm to their mother as their basis. After a hearing, the IJ denied t he applications and ordered Cas tillo Reyes and the children removed to El Salv ador. On October 10, 2017, the BIA dismissed their4 appeals of the IJ’s decision. C astillo Reyes and the children timely petitioned for review of the BIA’s decision.
DISCUSSION
A. Standard of Review The BIA affirmed the IJ’s decisi on in a brief order issued by a single judge. In this circumstance, “we review th e BIA’s decision as the final a gency determination and limit our review to issues s pecifically addressed therein.” Diallo v. Gonzales , 447 F.3d 1274, 1279 (10t h Cir. 2006). “Howeve r, when seeking to understand the grounds provided by the BIA, we are not precluded from consulti ng the IJ’s more complete explanation of those same grounds.” Uanreroro v. Gonzales , 443 F.3d 1197, 1204 (10th Cir. 2006). “We review the BIA’s legal determinatio ns de novo, and its findings of fact unde r a substantial-evidence standard.” Niang v. Gonzales , 422 F.3d 1187, 1196 ( 10th Cir. 2005). Under the substantial-ev idence standard, “[t]he BIA’s findings of fact are conclusive unless the record demonstrates that any reasonable adjudicator would be c ompelled to conclude to the co ntrary.” Id . (internal quotation marks omitted).
B. Asylum and Withholding of Removal For Castillo Reyes and the childre n to succeed in their applica tions for asylum and withholding of removal, Castillo Reyes must prove she is el igible for this relief. 2
See Rodas-Orellana v. Holder , 780 F.3d 982, 986 (10th Cir . 2015). To be eligible for

2 As noted earlier, the children’ s applications for asylum and withholding of removal rely on the harm experi enced by their mother, and there fore depend on whether Castillo Reyes has demons trated harm allowing such reli ef.5 asylum, Castillo Reyes must prove she is a refugee, which requi res that she establish that she is unable or unwilling to return to her country of nat ionality “because of persecution or a well-founded f ear of future persecution on acc ount of race, religion, nationality, membership in a par ticular social group, or politi cal opinion.” Immigration and Naturalization Ac t (INA), 8 U.S.C. § 1101(a)(42 )(A). For withholding, she must prove a “ clear probability of persecution on account of” one of the statutorily pro tected grounds. Rodas-Orellana , 780 F.3d at 987 (internal quotation marks omitted). The burden of proof i s higher for wi thholding of removal than for asylum, with the result that “[f]ailure to meet the burden of proof for an asylum claim necessarily foreclo ses meeting the burden for a wi thholding claim. ” Id.
at 986-87.
1. Particular Social Group and Nexus Castillo Reyes asserts she is e ligible for asylum and withholdi ng because she has been persecuted in the pas t and has a well-founded fear of future persecution on account of her membership in two particular socia l groups, fema le victims of domestic violence and females in El Salvador. The BIA rejected this contention, holding Castillo Reyes failed to demonstrate that the harm she suffered was on account of her membership in a va lid particular social group. The BIA held that Castillo Reyes ’s first proposed group, female victims of domestic violence, didn’t qualify as a particular social group because it’s defined by the harm she and other group memb ers experienced . Reviewing th is legal determination de novo, see Cruz-Funez v. Gonzales , 406 F.3d 1187, 1191 (10th Cir.6 2005) (“What constitutes a partic ular social group is a pure qu estion of law that we review de novo.”), we concur. T he BIA has held that “[p]ersecu tory conduct aimed at a social group cannot alone define the group, which must exist independently of the persecution.” Matter of W-G-R- , 26 I. & N. Dec. 208, 215 (BIA 2014), affirmed in part , vacated in part on other grounds sub nom. Reyes v. Lynch , 842 F.3d 1125 (9th Cir. 2016), cert. denied , 138 S. Ct. 736 (2018). Circuit courts have agreed, holding t hat a proposed social group “may not be circularly defined by the fac t that it suffers persecution.” Rreshpja v. Gonzales , 420 F.3d 551, 556 (6th Cir. 2005); see PerezRabanales v. Sessions , 881 F.3d 61, 67 (1st Cir. 2018) (particular social gr oup “must exist independent of the persecu tion claimed to have been suffe red by the alien and must have existed before the alle ged persecution began”); Escobar v. Holder , 657 F.3d 537, 545 (7th Cir. 2011) (no ting that “[w]here a proposed group is d efined only by the characteristic that it is pers ecuted, it does not qualify as a social group” (internal quotation marks omitted)). Castillo Reyes’s proposed soci al group of female victims of domestic violence is circularly defined by the harm suffered by its members and therefore isn’t a valid particular social group under the INA. The BIA rejected Castillo Reyes ’s reliance on the second propos ed social group, females in El Salvador, on two grounds. First, it concl uded without discussion that this group lacked particularity—one of the requ irements for demonstrating a legally cognizable social group under the Act. 3 Second, even if

3 To be cognizable under the INA , a proposed social group must (1) share a common immutable characteristic, (2) be defined with particular ity, and (3) be7 “females in El Salvador” qualifie s as a particular social group , the BIA affirmed the IJ’s finding that Castillo Reyes h ad failed to prove that the h arm she experienced was “on account of” her membership i n this group. We affirm the BI A’s decision on the latter ground. 4 For past or future persecution to be “on account of” membership in a social group, “the victim’s protected c haracteristic must be central t o the persecutor’s decision to act again st the victim.” Niang , 422 F.3d at 1200; see Rodas-Orellana , 780 F.3d at 996 (“A protected gro und must be ‘at least one cent ral reason for persecuting the applicant.’” (quoting 8 U. S.C. § 1158(b)(1)(B)(i))). Wheth er this nexus exists is a factual determination, see Dallakoti v. Holder , 619 F.3d 1264, 1268 (10th Cir. 2010), that focuses on the persecutors’ m otive in mistreating the appl icant, see INS v. EliasZacarias , 502 U.S. 478, 483 (1992). To satisfy the statute, “ the protected ground cannot play a minor role in the alien’s past mistreatment or fears of future mistreatment. That is, it cannot be incidental , tangential, superficial, or s ubordinate to another reason for harm.” Dallakoti , 619 F.3d at 1268 (internal quotation marks omitted).

socially distinct within the society in question. See Rodas-Orellana , 780 F.3d at 990-91. The particularity re quirement “means the group cann ot be indeterminate[,] too subjectiv e, inchoate, and variable.” Id. at 990 (ellipsis and internal quotation marks omitted).

4 Although we don’t decide wheth er a social group based on gend er alone would be cognizable under the A ct, we note that we have previou sly said that “the focus with respect to such claims should be not on whether eith er gender constitutes a social group (which both certain ly do) but on whether the membe rs of that group are sufficiently likely to be persecut ed that one could say that th ey are persecuted ‘on account of’ their membership.” Niang , 422 F.3d at 1199-1200.8 In this case, the BIA affirmed the IJ’s determination that Cast illo Reyes failed to establish that the harm she suffered had a nexus to her memb ership in the particular social group of being female. The IJ found based on the evidence presented that Castillo Reyes wasn’t harmed by her uncle, Barahona Gomez, and Mestizo “because of her gender, but becau se she was unfortunately vuln erable to their mistreatment during the ti mes that she lived alone or was dependent on the men for providing for her and her ch ildren.” R. at 42. As a resul t, the IJ found, Castillo Reyes’s gender was “tangential a nd even subordinate to another reason for harm: vulnerability.” Id. The BIA found no clear error in these findings, and as a resu lt held that Castillo Reyes failed to establish the required nexus between the harm she experienced and her membership i n the social group of being fem ale. Id. at 5. We must affirm these factual fi ndings unless the record compels the conclusion that Castill o Reyes’ status as a female in El Salvad or was a central reason for her past mistreatment at the hands of the three men and the mistreatment she fears she will suffer in the future if she returns to her country. See 8 U.S.C. § 1252(b)(4)(B); Niang , 422 F.3d at 1196. After caref ully examining the record, we can’t say that the evidence Cast illo Reyes presented is so comp elling that any reasonable factfinder would be r equired to make this finding. In each instance, Castillo Reyes was harmed when s he lived alone o r, as she testi fied, had nowhere else to go when she was mistreate d. Under these circumstances, we conclude that substantial evidence supports t he IJ’s findings, as affirmed by the BIA.9 Castillo Reyes also argues the BIA erred in not addressing her claim that she suffered past persecution. But i t was unnecessary for the BIA to do so in light of its determination that Castillo Reyes had failed to e stablish a nex us between her membership in a particular soc ial group and her alleged persecu tion as required to establish eligibility for asylum. See 8 U.S.C. § 1158(b)(1)(B )(i) (to be eligible for asylum, “the applicant must est ablish that race, religion, nati onality, membership in a particular social group, or po litical opinion was or will be at least one central reason for persecuting the applicant”); Perez-Rabanales , 881 F.3d at 68 (“Be cause 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.”). Having failed to demonstrate her eligibility for asylum, Castil lo Reyes also necessarily failed to carry her burden of proving eligibility f or withholding of removal. See Rodas-Orellana , 780 F.3d at 987.
2. Matter of A-R-C-GCastillo Reyes also contends t he BIA erred in failing to consid er whether she qualified as a refugee under Matter of A-R-C-G- , a case in which the BIA affirmed that “married women i n Guatemala who are unable to leave their relationship” constitute a cognizable par ticular social group. See 26 I. & N. Dec. 388, 392-95 (BIA 2014). Castillo Reyes argue s that she was a member of a p articular social group related to her domestic re lationships, and that this grou p is cognizable under
A-R-C-G-

.10 The IJ considered and rejec ted this argument, finding A-R-C-G- was inapplicable because the eviden ce didn’t establish that Castill o Reyes was unable to leave the two domestic relationships to which she testified. C astillo Reyes didn’t challenge the IJ’s determin ation or otherwise raise A-R-C-G- in her appeal to the BIA. “We have recognized that neglecting to take an appeal to the BIA constitutes a failure to exhaust administrativ e remedies as to any issue that could have been raised, negating the jurisdiction necessa ry for subsequent judicial rev iew.” Sidabutar v. Gonzales , 503 F.3d 1116, 1118 (10th Cir. 2007) (internal quotation mark s omitted). The BIA also didn’t address this iss ue sua sponte. Under these cir cumstances, we lack jurisdiction to d ecide this issue. 5 See id. at 1118, 1120.
C. Convention Against Torture Castillo Reyes and the children didn’t present argument in thei r opening brief challenging the denial of their a pplications for protection und er the Convention Against Torture. Accordingly , this issue has been waived. See Kabba v. Mukasey , 530 F.3d 1239, 1248 ( 10th Cir. 2008) (holdi ng that issues insuf ficiently raised in an opening brief are waived).

5 We also note that after the B IA issued its fin al decision and the parties completed briefing in this app eal, Attorney Gener al Sessions ov erruled A-R-C-G-

. See Matter of A-B- , 27 I. & N. Dec. 316, 317 (A.G. 2018).11 CONCLUSION For the foregoing reasons, we deny the petition for review. Entered for the Court
Nancy L. Moritz Circuit Judge