UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ESTELA GUADALUPE CASTILLO 

REYES, a/k/a Estela Castillo Reyes; 

KEVIN ALEXANDER BARAHONA 

CASTILLO; KATERINE 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 and her minor children Kevin Alexander 

Barahona Castillo and Katerine Michelle Castillo Reyes are natives and citizens of 

El Salvador who entered the United States illegally. They petition for review of an 

order by the Board of Immigration Appeals (BIA) affirming a decision by the 

 * After examining the briefs and appellate record, this panel has 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 therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and 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 Court
2 

Immigration Judge (IJ) that denied their applications for asylum, withholding of 

removal, and protection under the Convention Against Torture. Exercising 

jurisdiction pursuant to 8 U.S.C. § 1252(a), we deny the petition for review. 

BACKGROUND 

Castillo Reyes, through her asylum application and testimony before the IJ, 

alleges the following facts:1

 She was born in El Salvador in 1990, and entered the 

United States with her two children 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 return. Castillo Reyes shared her home for some period 

of time with the father of her first child, Katerine, but was left alone with her 

daughter at 19 when Katerine’s father died. Two of Castillo Reyes’s uncles then 

began sexually harassing her and one of them broke into her home and raped her. 

She didn’t report the rape to the police because she didn’t think they would do 

anything. Castillo Reyes testified that the uncles were her only remaining family in 

El Salvador. 

After Castillo Reyes’s uncle bragged about the rape to others, one of Castillo 

Reyes’s acquaintances, Juan Carlos Barahona Gomez, offered to protect her. She and 

her young daughter moved in with him, but he soon began physically and verbally 

abusing her. She testified that she nonetheless stayed with him 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 street after Castillo 

Reyes refused to be intimate with him. The brother of a neighbor, 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 insisted that she pay him 

for his generosity by living as husband and wife. Mestizo also beat her. 

In August 2014, Castillo Reyes discovered Mestizo molesting four-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. Not long thereafter, 

Castillo Reyes left Mestizo and traveled to the United States with the children. 

Castillo Reyes and her children entered the United States without inspection or 

parole by an immigration officer in September 2014. She and the children were 

subsequently served with a Notice to Appear and placed in immigration removal 

proceedings. In May 2015, Castillo Reyes and her children, through counsel, 

admitted the allegations in the Notice and conceded they were removable as charged. 

On the same day, Castillo Reyes applied for asylum, withholding of removal and 

protection under the Convention Against Torture on behalf of herself and her 

children. Castillo Reyes’s children later filed their own applications, citing the harm 

to their mother as their basis. 

After a hearing, the IJ denied the applications and ordered Castillo Reyes and 

the children removed to El Salvador. On October 10, 2017, the BIA dismissed their 
4 

appeals of the IJ’s decision. Castillo Reyes and the children timely petitioned for 

review of the BIA’s decision. 

DISCUSSION 

A. Standard of Review 

The BIA affirmed the IJ’s decision in a brief order issued by a single judge. In 

this circumstance, “we review the BIA’s decision as the final agency determination 

and limit our review to issues specifically addressed therein.” Diallo v. Gonzales, 

447 F.3d 1274, 1279 (10th Cir. 2006). “However, when seeking to understand the 

grounds provided by the BIA, we are not precluded from consulting 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 determinations de novo, and its 

findings of fact under a substantial-evidence standard.” Niang v. Gonzales, 

422 F.3d 1187, 1196 (10th Cir. 2005). Under the substantial-evidence standard, 

“[t]he BIA’s findings of fact are conclusive unless the record demonstrates that any 

reasonable adjudicator would be compelled to conclude to the contrary.” Id. (internal 

quotation marks omitted). 

B. Asylum and Withholding of Removal 

For Castillo Reyes and the children to succeed in their applications for asylum 

and withholding of removal, Castillo Reyes must prove she is eligible 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 experienced by their mother, and therefore depend on 

whether Castillo Reyes has demonstrated harm allowing such relief. 
5 

asylum, Castillo Reyes must prove she is a refugee, which requires that she establish 

that she is unable or unwilling to return to her country of nationality “because of 

persecution or a well-founded fear of future persecution on account of race, religion, 

nationality, membership in a particular social group, or political opinion.” 

Immigration and Naturalization Act (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 protected grounds. Rodas-Orellana, 780 F.3d at 987 (internal 

quotation marks omitted). The burden of proof is higher for withholding of removal 

than for asylum, with the result that “[f]ailure to meet the burden of proof for an 

asylum claim necessarily forecloses meeting the burden for a withholding claim.” Id.

at 986-87. 

1. Particular Social Group and Nexus 

Castillo Reyes asserts she is eligible for asylum and withholding because she 

has been persecuted in the past and has a well-founded fear of future persecution on 

account of her membership in two particular social groups, female 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 valid 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 members experienced. Reviewing this legal 

determination de novo, see Cruz-Funez v. Gonzales, 406 F.3d 1187, 1191 (10th Cir. 
6 

2005) (“What constitutes a particular social group is a pure question of law that we 

review de novo.”), we concur. The BIA has held that “[p]ersecutory 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 that a 

proposed social group “may not be circularly defined by the fact 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 group “must 

exist independent of the persecution claimed to have been suffered by the alien and must 

have existed before the alleged persecution began”); 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” (internal 

quotation marks omitted)). Castillo Reyes’s proposed social 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 proposed social 

group, females in El Salvador, on two grounds. First, it concluded without 

discussion that this group lacked particularity—one of the requirements 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 particularity, and (3) be 
7 

“females in El Salvador” qualifies as a particular social group, the BIA affirmed the 

IJ’s finding that Castillo Reyes had failed to prove that the harm she experienced was 

“on account of” her membership in this group. We affirm the BIA’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 characteristic must be central to the persecutor’s 

decision to act against the victim.” Niang, 422 F.3d at 1200; see Rodas-Orellana, 

780 F.3d at 996 (“A protected ground must be ‘at least one central reason for persecuting 

the applicant.’” (quoting 8 U.S.C. § 1158(b)(1)(B)(i))). Whether this nexus exists is a 

factual determination, see Dallakoti v. Holder, 619 F.3d 1264, 1268 (10th Cir. 2010), 

that focuses on the persecutors’ motive in mistreating the applicant, 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 subordinate 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 requirement “means the group cannot be 

indeterminate[,] too subjective, inchoate, and variable.” Id. at 990 (ellipsis and 

internal quotation marks omitted). 

4

 Although we don’t decide whether a social group based on gender alone 

would be cognizable under the Act, we note that we have previously said that “the 

focus with respect to such claims should be not on whether either gender constitutes a 

social group (which both certainly do) but on whether the members of that group are 

sufficiently likely to be persecuted that one could say that they 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 Castillo Reyes failed 

to establish that the harm she suffered had a nexus to her membership 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 because she was unfortunately vulnerable to 

their mistreatment during the times that she lived alone or was dependent on the men 

for providing for her and her children.” R. at 42. As a result, the IJ found, Castillo 

Reyes’s gender was “tangential and even subordinate to another reason for harm: 

vulnerability.” Id. The BIA found no clear error in these findings, and as a result 

held that Castillo Reyes failed to establish the required nexus between the harm she 

experienced and her membership in the social group of being female. Id. at 5. 

We must affirm these factual findings unless the record compels the 

conclusion that Castillo Reyes’ status as a female in El Salvador 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 carefully examining the record, we 

can’t say that the evidence Castillo Reyes presented is so compelling that any 

reasonable factfinder would be required to make this finding. In each instance, 

Castillo Reyes was harmed when she lived alone or, as she testified, had nowhere 

else to go when she was mistreated. Under these circumstances, we conclude that 

substantial evidence supports the 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 it was unnecessary for the BIA to do so in light of its 

determination that Castillo Reyes had failed to establish a nexus between her 

membership in a particular social group and her alleged persecution 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 establish that race, religion, nationality, membership in a 

particular social group, or political opinion was or will be at least one central reason for 

persecuting the applicant”); Perez-Rabanales, 881 F.3d at 68 (“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.”).

Having failed to demonstrate her eligibility for asylum, Castillo Reyes also 

necessarily failed to carry her burden of proving eligibility for withholding of 

removal. See Rodas-Orellana, 780 F.3d at 987. 

2. Matter of A-R-C-GCastillo Reyes also contends the BIA erred in failing to consider whether she 

qualified as a refugee under Matter of A-R-C-G-, a case in which the BIA affirmed 

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

constitute a cognizable particular social group. See 26 I. & N. Dec. 388, 392-95 

(BIA 2014). Castillo Reyes argues that she was a member of a particular social 

group related to her domestic relationships, and that this group is cognizable under 

A-R-C-G-. 
10 

The IJ considered and rejected this argument, finding A-R-C-G- was 

inapplicable because the evidence didn’t establish that Castillo Reyes was unable to 

leave the two domestic relationships to which she testified. Castillo Reyes didn’t 

challenge the IJ’s determination 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 administrative remedies as to any issue that could have been raised, 

negating the jurisdiction necessary for subsequent judicial review.” Sidabutar v. 

Gonzales, 503 F.3d 1116, 1118 (10th Cir. 2007) (internal quotation marks omitted). The 

BIA also didn’t address this issue sua sponte. Under these circumstances, we lack 

jurisdiction to decide this issue.5 See id. at 1118, 1120. 

C. Convention Against Torture 

Castillo Reyes and the children didn’t present argument in their opening brief 

challenging the denial of their applications for protection under the Convention 

Against Torture. Accordingly, this issue has been waived. See Kabba v. Mukasey, 

530 F.3d 1239, 1248 (10th Cir. 2008) (holding that issues insufficiently raised in an 

opening brief are waived). 

 5

 We also note that after the BIA issued its final decision and the parties 

completed briefing in this appeal, Attorney General Sessions overruled 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