PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-2031

_____________

S.E.R.L.; Y.N.S.R.; Y.Y.R.L.,

 Petitioners

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA 

______________

On Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(BIA-1:A206-800-692, A206-800-690, A206-800-691)

Immigration Judge: Hon. John B. Carle

_______________

ARGUED

March 12, 2018

Before: JORDAN, KRAUSE, and GREENBERG, 

Circuit Judges

(Filed: July 3, 2018)

_______________
2

David C. Bennion 

1706 N. 2nd Street - #L4

Philadelphia, PA 19122

Elizabeth A. Cuneo

Russell H. Falconer [ARGUED]

Chelsea G. Glover

Gibson Dunn & Crutcher

2100 McKinney Avenue - #1100

Dallas, TX 75201

Charles Roth

Lisa Koop

Ashley Huebner

National Immigrant Justice Center

208 South LaSalle Street

Chicago, IL 60604

 Counsel for Petitioners

Jefferson B. Sessions, III

Chad A. Readler

Anthony P. Nicastro

Sheri R. Glaser [ARGUED]

United States Department of Justice

Office of Immigration Litigation

P. O. Box 878

Ben Franklin Station 

Washington, DC 20044

 Counsel for Respondents
3

Blaine M. Bookey

Anne Dutton

Eunice Lee

Karen Musalo

Hastings College of the Law 

Center for Gender & Refugee Studies

200 McAllister Street

San Francisco, CA 94102

 Amicus Counsel for American Immigration

 Lawyers Association, Center for Gender &

 Refugee Studies, and Hebrew Immigrant

 Aid Society PA

Kirsten L. Nathanson

Crowell & Moring

1001 Pennsylvania Avenue, NW

Washington, DC 20004

Emily T. Kuwahara

Daniel P. Wierzba

Crowell & Moring

515 S. Flower Street 40th Fl.

Los Angeles, CA 90071

Tu-Quyen Pham

Crowell & Moring

3 Park Plaza, 20th Fl.

Irvine, CA 92694

 Amicus Counsel for NIWAP Inc. and

 Pennsylvania Coalition Against Domestic Violence
4

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge

In this immigration case, we consider the term

“particular social group,” which is part of the definition of 

“refugee” in the Immigration and Nationality Act (“INA”), 8 

U.S.C. § 1101(a)(42). We must decide whether a revised 

interpretation of that term by the Board of Immigration 

Appeals (the “BIA” or the “Board”) is reasonable and 

therefore entitled to deference under the strictures of

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837 (1984). Like other circuit courts, we had 

dutifully deferred to the initial interpretation of that term 

given by the Board in Matter of Acosta, 19 I. & N. Dec. 211, 

233 (BIA 1985), overruled on other grounds by Matter of 

Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). Fatin v. I.N.S., 

12 F.3d 1233, 1239-40 (3d Cir. 1993). But, over time, the 

Board began adding new requirements to its test for 

determining whether an applicant had established the 

existence of a particular social group and could thereby claim 

refugee status. In Valdiviezo-Galdamez v. Attorney General, 

663 F.3d 582 (3d Cir. 2011), we concluded that the BIA had 

departed from Acosta without a principled explanation and 

that its new requirements for proving a particular social group 

were incapable of consistent application. We therefore held 

that its interpretation of “particular social group” was not 

entitled to Chevron deference. Id. at 608.
5

The BIA has since responded to our concerns. In a 

pair of precedential decisions, 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), affirmed in part, vacated and 

remanded in part on other grounds sub nom. Reyes v. Lynch, 

842 F.3d 1125 (9th Cir. 2016), it articulated a three-part test

for proving the existence of a cognizable particular social 

group. The test requires applicants to “establish that the 

group [at issue] is (1) composed of members who share a 

common immutable characteristic, (2) defined with 

particularity, and (3) socially distinct within the society in 

question.” M-E-V-G-, 26 I. & N. Dec. at 237. We now hold 

that that statutory interpretation is entitled to Chevron

deference, and, applying the newly framed test here, we 

conclude that substantial evidence supports the BIA’s 

determination that the petitioner has not met its requirements. 

Accordingly, we will deny the petition for review.

I. BACKGROUND1

S.E.R.L., a native of Honduras, seeks review of the 

denial of her application for asylum and statutory withholding 

 

1 We accept the agency’s factual findings as 

conclusive, unless “any reasonable adjudicator would be 

compelled to conclude to the contrary[.]” 8 U.S.C. 

§ 1252(b)(4)(B). We therefore recite the facts as found by the 

immigration judge, who determined that S.E.R.L. testified 

credibly and afforded her testimony full evidentiary weight, 

and as accepted by the BIA. We supplement the facts with 

additional details found in S.E.R.L.’s affidavit and testimony, 

where consistent with those findings.
6

of removal based on membership in a proposed particular 

social group that she characterizes as “immediate family 

members of Honduran women unable to leave a domestic 

relationship[.]”

2

(Opening Br. at 21.) She fears persecution 

by two men, Jose Angel and Juan Orellana. Jose Angel

abducted, raped, and continues to stalk one of S.E.R.L.’s

daughters, K.Y.R.L. That daughter has already been granted 

asylum in the United States. Juan Orellana is S.E.R.L.’s 

stepfather and has repeatedly abused S.E.R.L.’s mother. 

S.E.R.L. fears that if she is removed to Honduras, both men

will persecute her, Jose Angel because of her relationship to 

her daughter, and Juan Orellana because of her relationship to 

her mother. 

S.E.R.L. and two of her children fled here from 

Honduras in 2014. Within a month of their unlawful arrival, 

the Department of Homeland Security initiated removal 

proceedings pursuant to INA § 212(a)(6)(A)(i).3 S.E.R.L.

 

2 This petition for review was filed on behalf of 

S.E.R.L., as well as two of her minor children, Y.N.S.R. and 

Y.Y.R.L. The children are derivative applicants on 

S.E.R.L.’s application for asylum and related relief, so we 

will refer to S.E.R.L. as the petitioner, in the singular.

3 That statutory subsection provides:

An alien present in the United States without 

being admitted or paroled, or who arrives in the 

United States at any time or place other than as 

designated by the Attorney General, is 

inadmissible.
7

conceded removability, and timely applied for asylum and

statutory withholding of removal.4 In support of her claims

for relief, she alleged past persecution and a fear of future 

persecution based on the relationships just noted. 

An immigration judge (“IJ”) reviewed S.E.R.L.’s 

application and conducted a merits hearing. Although finding 

her credible, the IJ concluded that S.E.R.L. had not met her 

burden to establish eligibility for any of the relief she had 

requested. According to the IJ, S.E.R.L. had not established 

past persecution or an objectively reasonable fear of future 

persecution by Jose Angel, given that he had targeted 

S.E.R.L.’s daughter, not her. Though crediting S.E.R.L.’s 

testimony about Juan Orellana’s abuse of her mother and past 

threats directed at S.E.R.L., herself, the IJ also noted that

S.E.R.L. said “her stepfather never physically harmed her.”

(Administrative Record (“AR”) at 86.) The IJ did not state 

whether S.E.R.L. had established past persecution by Juan 

Orellana. 

The IJ did say that, even if she had suffered past 

persecution, S.E.R.L. failed to establish that the harm she 

suffered was on account of a protected ground. Applying the 

BIA’s newly clarified three-part test from M-E-V-G-, the IJ 

rejected S.E.R.L.’s argument that “immediate family 

members of Honduran women unable to leave a domestic 

relationship” constituted a cognizable group. (AR at 89-90.) 

According to the IJ, the group “lack[ed] the requisite level of

 

8 U.S.C. § 1182(a)(6)(A)(i).

4 S.E.R.L. also initially sought protection under the 

Convention Against Torture but no longer pursues that relief. 
8

particularity and social distinction” and thus failed the test’s 

second and third requirements. (AR at 90.) The IJ also noted 

that “asylum and refugee laws do not protect people from 

general conditions of strife, such as crime and other societal 

afflictions.” (AR at 90 (quoting M-E-V-G-, 26 I. & N. Dec. at 

235).) Consequently, the IJ denied relief and ordered that

S.E.R.L. be removed.5 

She appealed that decision to the BIA. It too

concluded that she had not met her burden to establish 

eligibility for either asylum or withholding of removal. It 

agreed with the IJ’s conclusion that she had not established 

past persecution by Jose Angel, and it further concluded that 

she had not established past persecution by Juan Orellana, 

because any threats he made “d[id] not rise to the level of 

persecution[.]” (AR at 4.)

The BIA also agreed that S.E.R.L.’s proposed 

particular social group – immediate family members of 

Honduran women unable to leave a domestic relationship –

lacked the requisite particularity and social distinction. As to 

 

5 The IJ rejected three other particular social groups 

proposed by S.E.R.L. as alternatives, including (1) Honduran 

women unable to leave a domestic relationship, (2) immediate 

family members of young Honduran women without a father 

in the home, and (3) Honduran women who report genderbased crimes to the police. S.E.R.L. has not challenged those 

rulings in her petition to us and so those proposed groups are 

not before us. See Frias-Camilo v. Att’y Gen., 826 F.3d 699, 

701 n.1 (3d Cir. 2016) (explaining that a petitioner’s failure to 

challenge certain portions of the BIA’s decision results in 

waiver).
9

particularity, the BIA observed that “[the] proposed group 

could include individuals of any age, sex, or background, and 

it is not limited to those who ... take overt action to assist, or 

are meaningfully involved with, the family member who is 

unable to leave a domestic relationship.” (AR at 5.) The BIA

further “agree[d] that [S.E.R.L.] ha[d] not presented evidence 

that this group is socially distinct within Honduran society, as 

the record does not reflect that members of such a group 

would be perceived, considered, or recognized in Honduras as 

a distinct group[.]” (AR at 5.) Even assuming a cognizable 

particular social group, the Board “discern[ed] no legal error 

or clear factual error” in the IJ’s determination that S.E.R.L.

had not established a well-founded fear of future persecution 

by Jose Angel. (AR at 5-6.) The Board did not, however, 

reach the issue of future persecution by Juan Orellana.

It turned last to the question of withholding of removal 

and concluded that, “[i]nasmuch as [S.E.R.L.] has failed to 

satisfy the lower burden of proof required for asylum, it 

follows that she has failed to satisfy the more stringent 

standard required for withholding of removal[.]” (AR at 6.) 

The Board thus dismissed the appeal. S.E.R.L. has timely 

petitioned for review. 
10

II. DISCUSSION6

S.E.R.L. contends that she is entitled to asylum and 

withholding of removal because she has established a wellfounded fear of future persecution on account of her 

membership in a legally cognizable particular social group, 

that again being “immediate family members of Honduran 

women unable to leave a domestic relationship[.]” (Opening 

Br. at 21.) The parties’ primary dispute is whether the BIA’s 

revised interpretation of “particular social group,” as set forth 

in Matter of M-E-V-G-, warrants Chevron deference. 

S.E.R.L., supported by amici,7asks us to reject the test from

M-E-V-G- because it is “deeply flawed,” “has no basis in the 

asylum statute,” and fails to resolve the concerns raised in our 

 

6 The BIA had jurisdiction under 8 U.S.C. § 1103 and 

8 C.F.R. § 1003.1(b). Because “denial of ... [an] applicant’s 

petition for asylum, withholding of removal, and relief under 

the CAT constitutes a final order of removal,” Shehu v. Att’y 

Gen., 482 F.3d 652, 656 (3d Cir. 2007) (internal quotation 

marks and citation omitted), we have appellate jurisdiction 

pursuant to 8 U.S.C. § 1252(a).

7 We thank the National Immigrant Women’s 

Advocacy Project and the Pennsylvania Coalition Against 

Domestic Violence, and the Center for Gender & Refugee 

Studies, American Immigration Lawyers Association, and 

Hebrew Immigrant Aid Society Pennsylvania for filing 

amicus briefs in this matter, which have assisted our 

consideration of the legal issues before us and also shine a 

light on an issue of international concern: violence against 

women, including Honduran women who intervene on behalf 

of victims suffering from domestic abuse. 
11

decision in Valdiviezo-Galdamez. (Opening Br. at 1-2.) 

Instead, S.E.R.L. argues, we should continue to apply the test 

from Matter of Acosta, which she claims to “satisf[y] ... with 

ease.” (Opening Br. at 22.) She also says that, in the event

the Board’s new interpretation is given deference, she has met 

its particularity and social distinction requirements. Finally, 

she contends that remand is required, if for no other reason,

because neither the IJ nor the BIA addressed whether she has 

a well-founded fear of future persecution by Juan Orellana. 

Before we address those arguments, we first discuss

the governing legal principles and provide a review of our

Valdiviezo-Galdamez decision and the BIA’s response in 

M-E-V-G-.

A. General Legal Principles

1. Standard of Review

Whether a petitioner’s “proffered particular social 

group is cognizable under [8 U.S.C. § 1101(a)(42)(A)] is a 

question of law ... subject to de novo review,” which, we 

have said, is “subject to established principles of [Chevron] 

deference[.]” Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 

339 (3d Cir. 2008) (internal quotation marks and citation 

omitted).

8

 More precisely, the existence of a cognizable 

 

8

In cases like this one, we have often described the 

governing standard of review as being “de novo, subject to 

principles of Chevron deference.” See Mondragon-Gonzalez 

v. Att’y Gen., 884 F.3d 155, 158 (3d Cir. 2018) (“We accord 

de novo review to questions of law, including the BIA’s 

interpretation of the INA, subject to the deference dictated by 
12

particular social group presents a mixed question of law and 

fact, since the ultimate legal question of cognizability 

depends on underlying factual questions concerning the group 

and the society of which it is a part. Cf. Fatin, 12 F.3d at 

1240-41 (noting the “sparse” evidence supporting the 

petitioner’s proposed particular social group, and concluding 

that, even if cognizable, “the administrative record does not 

establish that she is a member of [her proposed] group”). We 

thus review de novo the ultimate legal conclusion as to the 

existence of a particular social group, while we review the 

underlying factual findings for “substantial evidence[.]” See

Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir. 2003) 

(reviewing the BIA’s statutory interpretation of “particular 

social group” in accordance with Chevron principles, and 

stating, “[o]n the other hand, we must treat the BIA’s findings 

of fact as ‘conclusive unless any reasonable adjudicator 

would be compelled to conclude to the contrary’” (quoting 8 

U.S.C. § 1252(b)(4)(B))).

Whether a petitioner has established membership in a 

particular social group also involves agency fact-finding. Id.

at 167, 178-79. “Our review is confined solely to the 

administrative record,” Gomez-Zuluaga, 527 F.3d at 340, and 

administrative findings of fact are “conclusive unless any 

reasonable adjudicator would be compelled to conclude to the 

contrary,” id. (quoting 8 U.S.C. § 1252(b)(4)(B)). That 

means that factual “determinations will be upheld if they are 

 

Chevron[.]”). That may sound like a contradiction in terms. 

What we mean is that we are required by Chevron principles 

to defer to the BIA’s interpretation of the INA, when 

reasonable, but we review de novo any legal challenge to the 

application of that interpretation. 
13

supported by reasonable, substantial, and probative evidence 

in the record considered as a whole.” Kang v. Att’y Gen., 611 

F.3d 157, 164 (3d Cir. 2010) (citation omitted).

Because here “the BIA adopted and affirmed the IJ’s 

decisions and orders as well as [conducting] an independent 

analysis, we review both the IJ’s and the BIA’s decisions and 

orders.” Ordonez-Tevalan v. Att’y Gen., 837 F.3d 331, 340-

41 (3d Cir. 2016). But we look to the IJ’s opinion “only 

where the BIA has substantially relied on that opinion.” 

Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009), as 

amended (Nov. 4, 2009).

2. Asylum and Withholding of Removal

Under the INA, the Attorney General has the 

discretion to grant asylum to a removable alien, 8 U.S.C. 

§ 1158(b)(1)(A), as long as the alien meets the INA’s 

definition of “refugee.” That definition is as follows:

Any person who is outside any country of such 

person’s nationality or, in the case of a person 

having no nationality, is outside any country in 

which such person last habitually resided, and 

who is unable or unwilling to return to, and is 

unable or unwilling to avail himself or herself 

of the protection of, that 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[.]

Id. § 1101(a)(42)(A). 
14

A petitioner has the burden to establish that she is a 

refugee, and thus eligible for asylum relief under the INA. Id.

§ 1158(b)(1)(B). One way of doing so is to show “a wellfounded fear of persecution on account of ... membership in a 

particular social group[.]” Id. § 1101(a)(42)(A). That is the 

route S.E.R.L. chose to pursue, and so she bore the burden of 

establishing the following elements: (1) a particular social 

group that is legally cognizable; (2) membership in that 

group; (3) a well-founded fear of persecution, which must be 

subjectively genuine and objectively reasonable; and (4) a 

nexus, or causal link, between the persecution and 

membership in the particular social group. Fatin, 12 F.3d at 

1240.9

As for withholding of removal, under 8 U.S.C. 

§ 1231(b)(3), an alien must “establish a ‘clear probability of 

persecution,’ i.e., that it is more likely than not, that s/he 

would suffer persecution upon returning home.” Valdiviezo-

 

9 Our decision in Fatin v. I.N.S. lays these out as three 

elements, combining into one what we have noted here as 

elements (3) and (4). See Fatin, 12 F.3d at 1240 (“The alien 

must ... (3) show that he or she would be persecuted or has a 

well-founded fear of persecution based on that 

membership.”). Because the issue of nexus between alleged 

persecution and membership in a particular social group is 

sometimes the focus of dispute, see Gomez-Zuluaga, 527 F.3d 

at 343-45 (reviewing the BIA’s conclusion that the petitioner 

“failed ... [to] show her political opinion or her particular 

social group constituted ‘at least one central reason’ for her 

persecution”), we have thought it best to frame it here as a 

separate element of proof.
15

Galdamez, 663 F.3d at 591 (citing I.N.S. v. Stevic, 467 U.S. 

407, 429-30 (1984)). “Since [that] standard is more 

demanding than that governing eligibility for asylum, an alien 

who fails to qualify for asylum is necessarily ineligible for 

withholding of removal.” Id.

B. Our Decision in Valdiviezo-Galdamez and the 

BIA’s Response in Matter of M-E-V-GIn Valdiviezo-Galdamez, we reviewed at length the 

BIA’s evolving efforts to interpret the term “particular social 

group,” beginning with the definition it set forth in Matter of 

Acosta. We need not fully repeat that history here but, for 

purposes of our analysis, will summarize a few important 

points from the pertinent decisions of the BIA.

From 1985 to 2006, the Board interpreted “particular 

social group” to mean “a group of persons all of whom share 

a common, immutable characteristic.” Valdiviezo-Galdamez, 

663 F.3d at 595 (quoting Acosta, 19 I. & N. Dec. at 233). 

That standard became known as the Acosta test. It was rooted 

in the interpretive doctrine of ejusdem generis, which teaches 

that words in a list should be understood as referring to things

of the same general class or kind. Acosta, 19 I. & N. Dec. at 

233. In the context of the statutory definition of “refugee,” 

that means that the term “particular social group” should be 

understood as being akin to the other characteristics listed in 

the definition, namely race, religion, nationality, and political 

opinion. 8 U.S.C. § 1101(a)(42)(A); see also 

id. §§ 1158(b)(1), 1231(b)(3). According to the BIA, all of 

those focus on “an immutable characteristic,” which the BIA 

explained includes both those characteristics that are 

technically “immutable” as well as those a person “should not 
16

be required” to change “as a matter of conscience” to avoid 

persecution. Acosta, 19 I. & N. Dec. at 233-34. Thus, the 

Acosta test required members of a “particular social group” to 

have “a common, immutable characteristic” that “the group 

either cannot change, or should not be required to change 

because it is fundamental to their individual identities or 

consciences.” Id. The BIA listed examples of innate 

characteristics, like “sex, color, or kinship ties[.]” Id. It also 

noted that, in certain circumstances, “a shared past experience 

such as former military leadership or land ownership” could 

be the defining characteristic of a cognizable “particular 

social group,” but such determinations would be made “on a 

case-by-case basis.”10 Id.

Over time, employing the Acosta test, the BIA 

recognized several particular social groups based on 

discernable and immutable characteristics. For example, in In 

re H-, 21 I. & N. Dec. 337 (BIA 1996), it accepted “kinship” 

as an immutable characteristic, concluding that “[t]he record 

before us makes clear not only that the Marehan [– a familial 

sub-clan in Somalia –] share ties of kinship, but that they are 

identifiable as a group based upon linguistic commonalities.” 

Id. at 343. Importantly, however, in other cases, the Board

accepted particular social groups that did not share such 

plainly discernable characteristics. In Matter of Fuentes, 19 I. 

 

10 In Acosta, itself, the petitioner had claimed 

persecution on account of his membership in a group of San 

Salvador taxi drivers who refused to participate in guerrillasponsored work stoppages. Id. at 216-17. The BIA rejected 

that proposed group under the “immutable characteristic” test, 

concluding that a taxi driver could change his occupation and 

avoid the danger he faced. Id. at 233-34.
17

& N. Dec. 658 (BIA 1988), it recognized the status of being a 

former policeman as an innate characteristic and, although not 

definitively reaching the issue in that case, it stated that 

mistreatment because of that status could constitute 

persecution on account of political opinion or membership in 

a particular social group. Id. at 662-63. In Matter of TobosoAlfonso, 20 I. & N. Dec. 819 (BIA 1990), it accepted a 

particular social group of homosexuals in Cuba. Id. at 822-

23. And in In re Kasinga, 21 I. & N. Dec. 357 (BIA 1996), it 

accepted the particular social group of “young women of the 

Tchamba-Kunsuntu Tribe who have not had [female genital 

mutilation], as practiced by that tribe, and who oppose the 

practice.” Id. at 365.

Eventually, the BIA determined that the Acosta test 

had proven to be over-inclusive and unworkable, in part 

because it encompassed virtually any past acts or experiences, 

since the past cannot be changed and is, by definition,

immutable. Thus, in 1999, the BIA began supplementing the 

Acosta test with additional requirements. ValdiviezoGaldamez, 663 F.3d at 596-97. For example, in In re R-A-, 

22 I. & N. Dec. 906 (BIA 1999; A.G. 2001), remanded for 

reconsideration in Matter of R-A-, 24 I. & N. Dec. 629 (A.G. 

2008),

11 it took issue with particular social groups that were 

“defined principally, if not exclusively, for the purposes of 

 

11 In that case, the Attorney General remanded the case 

for reconsideration in light of the Board’s intervening 

decisions. See Matter of R-A-, 24 I. & N. Dec. at 630 (citing 

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

S-E-G-, 24 I. & N. Dec. 579 (BIA 2008); In re A-M-E- & 

J-G-U-, 24 I. & N. Dec. 69 (BIA 2007); In re C-A-, 23 I. & 

N. Dec. 951 (BIA 2006)).
18

[litigation] ... without regard to the question of whether 

anyone in [a given country] perceives [those] group[s] to exist 

in any form whatsoever.” Id. at 918. Although the Board

maintained that the Acosta test was the starting point for 

assessing particular social groups, it said that the test would

no longer be the ending point. Id. at 919. Other factors 

would be considered, including whether the alleged defining 

characteristic of the social group is important within the 

society in question and whether that society understands or 

recognizes the proposed social group as a distinct segment of 

the population. Id. at 918-19. 

By 2006, the BIA appeared to have transformed its 

requirements for establishing a particular social group into a 

new three-part test: (1) the original Acosta test, requiring 

members to have a common, immutable characteristic; (2) 

social visibility, meaning that members of the social group 

are visible and recognizable by others in the society in 

question; and (3) particularity, meaning that the group has 

defined boundaries. See Valdiviezo-Galdamez, 663 F.3d at 

599 (citing a pair of BIA cases as establishing the social 

visibility and particularity requirements, In re C-A-, 23 I. & 

N. Dec. 951 (BIA 2006), aff’d sub nom. Castillo-Arias v. 

Att’y Gen., 446 F.3d 1190 (11th Cir. 2006), and In re A-M-E-

& J-G-U-, 24 I. & N. Dec. 69 (BIA 2007), aff’d sub nom. 

Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007)). 

Although several of our sister courts of appeals gave Chevron

deference to that interpretation,12 we, along with the Seventh 

 

12 See Valdiviezo-Galdamez, 663 F.3d at 603 n.16 

(noting that the First, Second, Eighth, Ninth, and Eleventh 

Circuits had accepted the BIA’s three-part definition without 

issue).
19

Circuit, rejected the BIA’s social visibility and particularity 

requirements. Id. at 603-09; see also Benitez Ramos v. 

Holder, 589 F.3d 426 (7th Cir. 2009); Gatimi v. Holder, 578 

F.3d 611 (7th Cir. 2009).

In Valdiviezo-Galdamez, we took issue with the BIA’s 

departure from Acosta. 663 F.3d at 603-09; see also id. at 

613 (Hardiman, J., concurring). Two specific concerns 

animated our analysis. First, we said that the BIA had applied 

the “social visibility” requirement in an “inconsistent” 

manner. Id. at 603-04. Specifically, we expressed concern

that, in cases like In re C-A-, the Board had referred to “social 

visibility” as “recognizability” and as “involv[ing] 

characteristics that were highly visible and recognizable by 

others in the country in question,” id. at 603 (quoting 

C-A-, 23 I. & N. Dec. at 959-60), yet in other cases, it had 

accepted particular social groups for refugee status based on 

internal characteristics that lacked any apparent visibility, 

absent self-disclosure, including “women who are opposed to 

female genital mutilation (Matter of Kasinga), homosexuals 

required to register in Cuba, (Matter of Toboso-Alfonso), and 

former members of the El Salvador national police (Matter of 

Fuentes).” Id. at 604. 

We cited the Seventh Circuit’s criticism that “[o]ften it 

is unclear whether the Board is using the term ‘social 

visibility’ in the literal sense, or in the ‘external criterion’ 

sense, or even whether it understands the difference.” Id. at 

606 (quoting Benitez Ramos, 589 F.3d at 430). Because the 

BIA had applied the social visibility requirement 

inconsistently, we concluded that it was “an unreasonable

addition to the requirements for establishing refugee status 
20

where that status turns upon persecution on account of 

membership in a particular social group.” Id. at 604.

Second, we said that social visibility and particularity

“appear to be different articulations of the same concept,” id. 

at 608, at least as the BIA had defined them in prior 

decisions. Id. at 607. To illustrate the point, we quoted the 

decision in Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 

2008), in which the BIA described the “essence” of 

particularity as an assessment of “whether the proposed group 

can accurately be described in a manner sufficiently distinct 

that the group would be recognized, in the society in question,

as a discrete class of persons,” and noted that the size of the 

group “may be an important factor[.]” Id. at 607 (quoting 

S-E-G-, 24 I. & N. Dec. at 584). The BIA did go on to say 

that “the key question is whether the proposed description is 

sufficiently particular, or is too amorphous ... to create a 

benchmark for determining group membership,” id.

(alteration in original) (quoting S-E-G-, 24 I. & N. Dec. at 

584), but what it said about the essence of particularity led us 

to reject the requirement as both confusing and “little more 

than a reworked definition of ‘social visibility[.]’” Id. at 608.

Having decided that “the BIA’s requirements that a 

‘particular social group’ possess the elements of ‘social 

visibility’ and ‘particularity’ [were] inconsistent with prior 

BIA decisions” and repetitive, we then held that they were not 

entitled to Chevron deference. Id. But we expressly noted

that the BIA was free to depart from or change its 

interpretation of “particular social group,” and that a new 

view could be entitled to deference if supported by a

“principled reason” and explanation for any new 
21

requirements.13 Id. In the aftermath of Valdiviezo-Galdamez, 

we continued to apply the BIA’s original Acosta test. See, 

e.g., Garcia v. Att’y Gen., 665 F.3d 496, 504 n.5 (3d Cir. 

2011) (“Until the BIA provides an analysis that adequately 

supports its departure from Acosta, we remain bound by the 

well-established definition of ‘particular social group’ found 

in Fatin [where we adopted the Acosta test].”). 

The BIA promptly responded to our concerns and 

announced a revised interpretation of “particular social 

group” in Matter of M-E-V-G-, which it also applied in a 

companion case pending in the Ninth Circuit, Matter of

W-G-R-. The Board adhered to its more restrictive

interpretation of particular social group, and it clarified the 

three requirements that an applicant for asylum or 

withholding of removal must satisfy to establish a cognizable 

 

13 In a concurring opinion, Judge Hardiman said:

[T]he only problem that I find with the BIA’s 

evolving approach to ‘particular social group’ 

cases is that the Board has failed to 

acknowledge a change in course and 

forthrightly address how that change affects the 

continued validity of conflicting precedent. 

Accordingly, remand is necessary so the Board 

can either choose between its reasonable new 

requirements and its older but equally 

reasonable precedents, or reconcile the two 

interpretations in a coherent way.

Valdiviezo-Galdamez, 663 F.3d at 612 (Hardiman, J., 

concurring).
22

particular social group. As stated in M-E-V-G-, an applicant 

must “establish that the [proposed] 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.” 26 I. & N. Dec. at 237.

The BIA reviewed its prior efforts to outline what 

constitutes a “particular social group.” Id. It said that the 

addition of “particularity” and “social distinction” as required 

elements is both “consistent with ... the language of the 

[INA]” as well as consistent with the interpretation “set forth 

in Matter of Acosta[.]” Id.; see also id. at 234 (citing earlier 

cases, and stating that it would continue to “adhere to the 

social group requirements announced in” its prior decisions). 

It explained that the INA’s “enumerated grounds of 

persecution have more in common than simply describing 

persecution aimed at an immutable characteristic. They have 

an external perception component within a given society, 

which ... separates various factions within a particular 

society.” Id. at 236. In the Board’s view, adding

“particularity” and “social distinction” as requirements for 

proving a particular social group became necessary, based on 

its experience in cases since Acosta. Id. at 232-33.

The “particularity” requirement, it said, “is included in 

the plain language of the [statute] and is consistent with the 

specificity by which race, religion, nationality, and political 

opinion are commonly defined.” Id. at 239. “Particularity” is 

largely definitional, ensuring that the characteristics defining 

a group “provide a clear benchmark for determining who falls 

within the group.” Id. The BIA explained that particularity 

requires the group to be “discrete and have definable 

boundaries” that are not “amorphous, overbroad, diffuse, or 
23

subjective,” ensuring that an immutable characteristic is

“sufficiently precise to define a particular social group.” Id.

The “social distinction” requirement, it said, was a 

reworking of the social visibility requirement and was 

intended to resolve any “misconception” that literal visibility 

was meant. Id. at 236. According to the BIA, social visibility 

“was never meant to be read literally.” Id. at 240. The 

change in terminology to “social distinction” was made to 

“clarif[y] that social visibility does not mean ‘ocular’

visibility – either of the group as a whole or of individuals 

within the group – any more than a person holding a protected 

religious or political belief must be ‘ocularly’ visible to others 

in society.” Id. Instead, the Board explained, “[t]o be 

socially distinct, a group need not be seen by society; rather, 

it must be perceived as a group by society.” Id.

The Board noted our concern about the inconsistent 

application of the former “social visibility” requirement, and 

described why it viewed the revised social distinction 

requirement as nevertheless being an appropriate approach. It 

stated:

It may not be easy or possible to identify who is 

opposed to [female genital mutilation], who is 

homosexual, or who is a former member of the 

national police. These immutable 

characteristics are certainly not ocularly visible. 

Nonetheless, a society could still perceive 

[members of those groups] to comprise a 

particular social group for a host of reasons, 

such as sociopolitical or cultural conditions in 

the country.
24

Id. at 240.

For that reason, it said, “the fact that members of a 

particular social group may make efforts to hide their 

membership in the group to avoid persecution does not 

deprive the group of its protected status as a particular social 

group.” Id. The BIA also directly addressed its prior 

decision in In re C-A-, stating, “to the extent that [the 

decision] has been interpreted as requiring literal or ‘ocular’ 

visibility, we now clarify that it does not.” Id. at 246-47. 

The BIA then answered our concern that particularity 

and social visibility, now recast as social distinction, are not 

discernibly different. Id. at 240-41. Although acknowledging

that “there is considerable overlap” between particularity and 

social distinction, the BIA explained its view that they are 

both different and necessary. Id. It said that, although 

relying on an overlapping body of evidence, “each 

emphasize[s] a different aspect of a particular social group.” 

Id. at 241. “Particularity” addresses “the ‘outer limits’ of a 

group’s boundaries and is definitional in nature,” whereas 

“social distinction” focuses on “whether the people of a given 

society would perceive a proposed group as sufficiently 

separate or distinct[.]” Id.

Finally, the BIA also took the opportunity to 

emphasize that “a group’s recognition for asylum purposes is 

determined by the perception of the society in question, rather 

than by the perception of the persecutor.” Id. at 242. There 

must be a distinction, the Board explained, between the INA’s 

requirement that an applicant “establish[] the existence of one 

of the enumerated grounds,” including “particular social 
25

group,” and the INA’s nexus requirement, which addresses 

whether an applicant has suffered persecution “on account of” 

that enumerated ground. Id. Although relevant to the extent 

indicative of society’s views as a whole, the Board stated that 

“persecutory conduct alone cannot define [a particular social] 

group.” Id. 

With that background in mind, we now turn to the 

main dispute in this case – whether the revised test for 

determining the cognizability of a particular social group 

resolves the concerns we raised in Valdiviezo-Galdamez and 

is therefore entitled to Chevron deference. 

C. The BIA’s Revised Interpretation of 

“Particular Social Group” is Entitled to 

Chevron Deference

“Congress has charged the Attorney General with 

administering the INA,” who has chosen to delegate that 

authority to the BIA. Negusie v. Holder, 555 U.S. 511, 516-

17 (2009). And, “[c]onsistent with the rule in Chevron ..., 

the BIA is entitled to deference in interpreting ambiguous 

provisions of the INA.” Id. at 516. The Supreme Court has 

instructed that “[j]udicial deference in the immigration 

context is of special importance, for executive officials 

exercise especially sensitive political functions that implicate 

questions of foreign relations.” Id. at 517 (internal quotation 

marks and citation omitted); see also id. (noting that the 

judiciary is not well-suited to assume primary responsibility 

for assessing important diplomatic factors). Hence, “the BIA 

should be accorded Chevron deference as it gives ambiguous 

statutory terms ‘concrete meaning through a process of case-
26

by-case adjudication.’” Id. (quoting I.N.S. v. AguirreAguirre, 526 U.S. 415, 425 (1999)).

The familiar Chevron two-step analysis thus applies 

with full force in the immigration context. When

“considering an interpretation adopted by the Board, we must 

ask ‘whether Congress has directly spoken to the precise 

question at issue.’” Fatin, 12 F.3d at 1239 (quoting Chevron, 

467 U.S. at 842). “If it has not, we may not ‘simply impose 

[our] own construction on the statute.’” Id. (alteration in 

original) (quoting Chevron, 467 U.S. at 843). “Rather, if the 

statute is silent or ambiguous with respect to the specific 

issue, the question for the court is whether the agency’s 

answer is based on a permissible construction of the statute.” 

Id. (quoting Chevron, 467 U.S. at 843). 

Our case law has already established that the term

“particular social group” is undefined in the statute, and its 

meaning is unclear. We have observed that “[b]oth courts 

and commentators have struggled to define ‘particular social 

group.’ Read in its broadest literal sense, the phrase is almost 

completely open-ended.” Valdiviezo-Galdamez, 663 F.3d at 

594 (quoting Fatin, 12 F.3d at 1238). The statutory language 

is “not very instructive” and there is scant evidence of 

legislative intent. Id. (quoting Fatin, 12 F.3d at 1238). Thus, 

the question before us now, as in the past, is whether the 

Board’s interpretation of that ambiguous term is a reasonable 

one.

14

 

14 Although initially contending that the BIA’s new 

interpretation fails Chevron step one, S.E.R.L. acknowledged 

at oral argument that the Chevron framework applies, and that 

the term “particular social group” is ambiguous. We agree 
27

S.E.R.L. contends that the BIA’s change in

nomenclature from “social visibility” to “social distinction” is

the only change the BIA has made to its test for assessing a 

“particular social group,” and, she says, that is a “distinction 

without a difference.” (Reply Br. at 5.) According to 

S.E.R.L., our decision in Valdiviezo-Galdamez forecloses 

application of the “particularity” and “social distinction” 

requirements. She also argues that the BIA plainly 

acknowledges that it has not changed course, nor has it

provided a “principled” explanation for why it continues to 

impose criteria we rejected in Valdiviezo-Galdamez. 

(Opening Br. at 31.) 

In addition, those who have filed amicus briefs in this 

case point out that the BIA’s decisions in M-E-V-G- and 

W-G-R- could be read as inconsistent with certain other BIA 

decisions and contrary to the canon of ejusdem generis. 

Amici note, for example, that in W-G-R-, the BIA concluded 

that “‘former members of the Mara 18 gang in El Salvador 

who have renounced their gang membership’ does not 

constitute a particular social group” in part because “the 

group could include persons of any age, sex, or background.” 

26 I. & N. Dec. at 221. Yet, even though the groups varied 

significantly across age, sex, and background, the BIA has 

also held that “Filipinos of Chinese [a]ncestry” constituted a 

“particular social group,” In re V-T-S-, 21 I. & N. Dec. 792, 

798 (BIA 1997), and that “former member[s] of the national 

 

and thus proceed directly to step two. See ValdiviezoGaldamez, 663 F.3d at 603 (rejecting the petitioner’s 

argument that the BIA’s particularity and social visibility 

requirements were contrary to the intent of the INA). 
28

police” in El Salvador, Fuentes, 19 I. & N. Dec. at 662, 

likewise could be cognizable.15 And although the BIA 

expressly justified its new requirements as “[c]onsistent with 

the interpretive canon ‘ejusdem generis,’” M-E-V-G-, 26 I. & 

N. Dec. at 234, amici highlight that some of the enumerated 

grounds for persecution, including “political opinion,” and 

“religion,” 8 U.S.C. § 1101(a)(42)(A), may themselves be 

thought of as amorphous, diffuse, or subjective and therefore 

as insufficient bases for PSGs under M-E-V-G-’s 

requirements.

Those critiques raise legitimate concerns. The BIA 

has chosen to maintain a three-part test for determining the 

existence of a particular social group, and it has discussed 

how the revised particularity and social distinction 

requirements are not a departure from but a ratification of 

requirements articulated in its prior decisions. M-E-V-G-, 26 

I. & N. Dec. at 234. And the arguable inconsistencies in its 

precedent highlight the risk that those requirements could be 

applied arbitrarily and interpreted to impose an unreasonably 

high evidentiary burden, especially for pro se petitioners, at 

the threshold. At the same time, however, we recognize that 

M-E-V-G- is a relatively recent decision and clarity and 

consistency can be expected to emerge with the accretion of 

case law. That process is aided by M-E-V-G- itself, which 

 

15 Although S.E.R.L. also relies heavily on Matter of 

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

had held that “married women in Guatemala who are unable 

to leave their relationship” constituted a particular social 

group, the Attorney General recently issued a decision 

overruling A-R-C-G-. See Matter of A-B-, 27 I. & N. Dec. 

316 (A.G. 2018).
29

addressed the specific concerns we raised in ValdiviezoGaldamez, and explained why the particularity and social 

distinction requirements are different from one another and 

necessary. We now consider each of those requirements, 

beginning with social distinction, to explain why, 

notwithstanding our concerns, we conclude that the 

requirements are reasonable and warrant Chevron deference.

1. Social Distinction

“Social distinction” means social recognition, or 

“whether the people of a given society would perceive a 

proposed group as sufficiently separate or distinct[.]” 

M-E-V-G-, 26 I. & N. Dec. at 241. The BIA has clarified that 

“social distinction” is not a matter of being “seen” by society 

in an “ocular” sense, as one might have understood from

decisions applying the old “social visibility” factor. Id. at 

240. The change in terminology from “social visibility” to

“social distinction” was intended to resolve any 

“misconception” that literal visibility was a requirement. Id.

at 236. As defined in M-E-V-G-, social distinction accounts 

for the particular social groups that the BIA has recognized in 

the past and wishes to continue to recognize, including those 

whose members share an immutable, though not literally 

visible, characteristic.

16

 See id. at 244-45 (addressing 

 

16 S.E.R.L. argues that the Board’s interpretation in 

M-E-V-G- is unreasonable because the petitioners that 

prevailed in several earlier cases could not have satisfied the 

new test on the record before the agency in those cases. If 

that were the litmus for assessing an agency’s revised 

interpretation, however, then its first interpretation would be 

all but set in stone. The Supreme Court has expressly 
30

Kasinga, Toboso-Alfonso, and Fuentes). The Board thus

addressed our concern in Valdiviezo-Galdamez that it had 

seemingly defined “social visibility” in “the literal sense” and 

had been applying it inconsistently. Valdiviezo-Galdamez, 

663 F.3d at 606 (quoting Benitez Ramos, 589 F.3d at 430).

S.E.R.L. nevertheless suggests that by defining the 

“social distinction” factor as based on the perception of the 

society in question rather than by the perception of the 

persecutor, the Board has impermissibly conflated the INA’s 

“particular social group” and “nexus” requirements, rendering 

the test set forth in Matter of M-E-V-G- an unreasonable 

interpretation. We disagree, and we are not the first court to 

do so. 

Reviewing the companion case to M-E-V-G-, the Ninth 

Circuit considered and rejected a similar challenge. In Reyes 

v. Lynch, the court concluded that “the ‘social distinction’

requirement is not redundant in light of the ‘nexus’

requirement for asylum and withholding claims.” 842 F.3d 

1125, 1136 (9th Cir. 2016) (reviewing W-G-R-), cert. denied 

sub nom. Reyes v. Sessions, 138 S. Ct. 736 (2018). “Rather 

than conflate the ‘social distinction’ and ‘nexus’ 

requirements,” the court said, “the BIA’s reasoning reflects

 

rejected such a rigid standard and has acknowledged that an 

agency “must consider varying interpretations and the 

wisdom of its policy on a continuing basis,” Rust v. Sullivan, 

500 U.S. 173, 186 (1991) (citation omitted), and, when it 

concludes that deviation is required, that it “display 

awareness that it is changing position” and “provide reasoned 

explanation” for the change, FCC v. Fox Television Stations, 

Inc., 556 U.S. 502, 515 (2009) (emphasis omitted).
31

an appreciation of the need to distinguish between the 

showing an applicant must make in order to demonstrate 

membership in a ‘particular social group’ and the showing 

that is necessary to demonstrate that he was persecuted, or 

fears persecution, ‘on account of’ that membership.” Id.; see 

also I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483 (1992) 

(explaining that the INA “makes motive critical” and 

requiring that an asylum applicant present evidence of his 

persecutors’ motives to satisfy the “nexus” requirement). 

That reasoning is entirely persuasive.

It is well within the bounds of reasonableness for the 

BIA to interpret the term “particular social group” in the INA

as requiring evidence that the society in question recognizes a 

proposed group as distinct. The persecutor’s motive may be 

relevant but is not alone sufficient in that regard. See 

M-E-V-G-, 26 I. & N. Dec. at 243. Otherwise, every act of 

persecution could be claimed as being on the basis of a 

protected ground, since the internal motivations of a 

persecutor are likely to be more obscure than are the 

perceptions of a society generally. Also, one bad actor’s 

twisted views should not be attributed to a whole society. We 

therefore agree with the Ninth Circuit that the BIA’s

interpretation better maintains the distinction between 

“particular social group” and the “nexus” requirement.

Finally, although we are cognizant of arguable 

inconsistencies in its application to date and the need for 

careful review by the BIA and this Court to ensure a fair and 

principled approach, we reject the suggestion by S.E.R.L. and 

amici that the BIA’s social distinction requirement is 

categorically incapable of rational application and that the 

BIA has failed to “provide meaningful guidance about how 
32

one would establish social distinction.” (Reply Br. at 17.) In 

M-E-V-G-, the BIA described the kind of evidence that a 

petitioner could rely on, stating “[e]vidence such as country 

conditions reports, expert witness testimony, and press 

accounts of discriminatory laws and policies, historical 

animosities, and the like may establish that a group exists and 

is perceived as ‘distinct’ ... in a particular society.” 26 I. & 

N. Dec. at 244. We do not read that list as exclusive, and it is 

not unlike evidence the Board relies on in petitions alleging

persecution on account of other enumerated grounds. See

generally Sheriff v. Att’y Gen., 587 F.3d 584, 592 (3d Cir. 

2009) (discussing regulations “explicitly envision[ing] that 

the BIA will consider Country Reports” and other official 

documents); Lukwago, 329 F.3d at 169-71, 177 (noting the 

use of testimonial, documentary, and expert evidence). Thus, 

we conclude that the social distinction requirement is a 

reasonable feature of the BIA’s interpretation of “particular 

social group.”

2. Particularity

Likewise, the particularity requirement is reasonable. 

The word “particular” is in the text of the statute, 8 U.S.C. 

§ 1101(a)(42)(A), and it is sensible to construe that word as 

requiring an alleged social group to have “discrete and ...

definable boundaries” that are not “amorphous, overbroad, 

diffuse, or subjective,” M-E-V-G-, 26 I. & N. Dec. at 239, so 

as to provide a clear standard for determining who is a 

member of it, W-G-R-, 26 I. & N. Dec. at 214. The BIA has 

explained that the “particularity requirement ... clarif[ies] the 

point, at least implicit in earlier case law, that not every 

immutable characteristic is sufficiently precise to define a 

particular social group.” Id. at 213. For example, in Escobar
33

v. Gonzales, 417 F.3d 363 (3d Cir. 2005), a proposed 

particular social group defined by “[p]overty, homelessness, 

and youth” was held to be “too vague and all encompassing” 

to set discernible parameters. Id. at 368.17 

Given its explicit roots in the statute and the sensible 

explanation of a need for some measure of definitional 

precision, the particularity requirement is also a reasonable 

feature of the BIA’s interpretation of “particular social 

group.”

 

17 See also, e.g., S-E-G-, 24 I. & N. Dec. at 584-85 

(stating that “the key question is whether the proposed 

description is sufficiently particular, or is too amorphous ... to 

create a benchmark for determining group membership,” and 

rejecting the proposed group of “male children who lack 

stable families and meaningful adult protection, who are from 

middle and low income classes, who live in the territories 

controlled by the MS-13 gang, and who refuse recruitment” 

as too amorphous (alteration in original) (internal quotation 

marks and citation omitted)); A-M-E- & J-G-U-, 24 I. & N. 

Dec. at 76-77 (explaining that “affluent Guatemalans” did not 

qualify as a particular social group in part because the 

“characteristic of wealth or affluence is simply too subjective, 

inchoate, and variable to provide the sole basis for 

membership”); C-A-, 23 I. & N. Dec. at 959, 961 (rejecting a 

proposed group of “noncriminal drug informants working 

against the Cali drug cartel” due, in part, to the fact that the 

distinction between government informants who had been 

compensated for their services and those who acted out of 

civic motives was not sufficient to carve out a particular 

“subgroup” of uncompensated informants).
34

3. The BIA has adequately distinguished 

social distinction and particularity

We had expressed concern in Valdiviezo-Galdamez

that “social visibility” (now “social distinction”) and 

“particularity” were really two ways of saying the same thing. 

663 F.3d at 608. But the BIA has adequately articulated why 

it deems the ideas to be separate and why both are needed. In 

the BIA’s reasoning, “social distinction” works to narrow the 

universe of “particular social groups” to those whose 

members are seen to be “distinct” or “other,” like the 

distinctiveness inherent in the other enumerated grounds of 

race, religion, nationality, and political opinion, while

“particularity” ensures that a group has “discrete ...

boundaries” capable of a common, accepted definition. 

M-E-V-G-, 26 I. & N. Dec. at 239-40, 244. We agree that 

particularity and social distinction address different aspects of 

whether an applicant has established a particular social 

group.18 Although they may often involve similar evidence, 

which the BIA readily acknowledges, id. at 241, that alone is 

not a basis to reject them as being indistinguishable. 

Some overlap is to be expected, given that each 

requirement is meant to illuminate whether a particular social 

group exists in the society in question. See id. (“[The 

requirements] overlap because the overall definition is 

applied in the fact-specific context of an applicant’s claim for 

 

18 The Ninth Circuit has also concluded that the two 

requirements are sufficiently distinct. See Reyes, 842 F.3d at 

1135-37 (discussing differences between social distinction 

and particularity).
35

relief.”). But particularity and social distinction are different

in an important respect: the former is essentially an objective

inquiry, asking whether a reasonable person could look at the 

proposed definition of a social group and determine who falls 

within it, whereas the latter poses a more subjective question, 

whether the alien’s home society actually does recognize that 

group as being a “distinct” and identifiable group. Inquiring 

separately about objective and subjective perspectives is a 

familiar task in the law19 and is not out of bounds in this 

context. For example, “[t]he well-found fear of persecution 

standard involves both a subjectively genuine fear of 

persecution and an objectively reasonable possibility of 

persecution.” Valdiviezo-Galdamez, 663 F.3d at 590-91. In 

short, we are satisfied that the BIA has explained why the two 

requirements are not really just the same thing done over.

The BIA has also explained why it views the addition 

of “social distinction” and “particularity” as necessary 

limitations on the Acosta test. It noted its concern that

Acosta’s immutable characteristic requirement resulted in 

“confusion and a lack of consistency as adjudicators struggled 

with various possible social groups, some of which appeared 

to be created exclusively for asylum purposes.” M-E-V-G-, 

26 I. & N. Dec. at 231. The additional requirements of social 

 

19 See generally Kyllo v. United States, 533 U.S. 27, 33 

(2001) (describing Fourth Amendment inquiry as involving 

“a subjective expectation of privacy that society recognizes as 

reasonable”); United States v. Elonis, 841 F.3d 589, 596 (3d 

Cir. 2016) (construing 18 U.S.C. § 875(c)’s prohibition on 

transmitting communications containing a threat to injure 

another as including “both a subjective and objective 

component”), cert. denied 138 S. Ct. 67 (2017). 
36

distinction and particularity arose from the BIA’s experience 

adjudicating prior cases and its desire to give further 

guidance. When, in Valdiviezo-Galdamez, we remanded for 

the Board to give a “principled reason” and explanation for 

the added requirements, we indeed hoped to receive what we 

asked for and did not intend to foreclose any additions to the 

original Acosta test. Id. at 608; see also id. at 612 (Hardiman, 

J., concurring) (stating that “remand is necessary so the Board

can either choose between its reasonable new requirements 

and its older but equally reasonable precedents, or reconcile 

the two interpretations in a coherent way”); cf. Negusie, 555 

U.S. at 525 (Scalia, J., and Alito, J., concurring) (“I would not 

agree to remand if I did not think that the [BIA] has the 

option of adhering to its decision. The majority appears to 

leave that question undecided[.]”). S.E.R.L. is thus mistaken 

in reading Valdiviezo-Galdamez as precluding the three-part 

test the BIA adopted in M-E-V-G-. 

We are not alone in deferring to the BIA’s better 

explained interpretation of “particular social group.” Since 

we issued our decision in Valdiviezo-Galdamez, the majority 

of our sister circuits have applied the test from M-E-V-G-, 

including the First, Second, Fourth, Fifth, Sixth, Eighth, 

Tenth, and Eleventh Circuits.20 Moreover, in Reyes, the 

 

20 See Perez-Rabanales v. Sessions, 881 F.3d 61, 66 

(1st Cir. 2018) (applying BIA’s interpretation in M-E-V-Gand rejecting proffered social group of “Guatemalan women 

who try to escape systemic and severe violence but who are 

unable to receive official protection”); Pacas-Renderos v. 

Sessions, 691 F. App’x 796, 804 (4th Cir. 2017) (applying 

criteria from M-E-V-G-); Hernandez-De La Cruz v. Lynch, 

819 F.3d 784, 786-87 & n.1 (5th Cir. 2016) (endorsing BIA’s 
37

Ninth Circuit expressly endorsed the BIA’s interpretation of 

“particular social group” and granted it Chevron deference. 

See 842 F.3d at 1135 (concluding that “particularity” and 

“social distinction” are reasonable requirements). The wide

acceptance of the BIA’s revised test from M-E-V-G-, and, in 

particular, the Ninth Circuit’s analysis of the companion case, 

W-G-R-, constitute persuasive support for our conclusion

today. Cf. In re Grossman’s Inc., 607 F.3d 114, 121 (3d Cir. 

2010) (en banc) (explaining that the “widely held views [of 

other circuit courts] impel us to consider whether the 

reasoning applied by our colleagues elsewhere is 

persuasive”). Independent of Chevron, we are constrained to 

acknowledge again that our role in the process of construing

the term “particular social group” is rightly limited. As the 

Supreme Court has noted, courts are neither policy-makers 

nor diplomats; we are ill-suited for those roles. Negusie, 555 

U.S. at 516-17. Immigration policy properly resides with the 

elected branches of government.

And, of course, we are not operating independently of

the rule in Chevron. Fatin, 12 F.3d at 1239. The Chevron 

doctrine of deference to federal agencies is open to question, 

 

interpretation); Zaldana Menijar v. Lynch, 812 F.3d 491, 498-

99 (6th Cir. 2015) (same); Rodas-Orellana v. Holder, 780 

F.3d 982, 992 (10th Cir. 2015) (concluding that M-E-V-Gand W-G-R- are “consistent with [the court’s] past 

interpretation of social visibility”); Juarez Chilel v. Holder, 

779 F.3d 850, 855 (8th Cir. 2015) (endorsing BIA’s 

interpretation); Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 

2014) (granting the BIA’s interpretation in M-E-V-GChevron deference); Chavez v. Att’y Gen., 571 F. App’x 861, 

864-65 (11th Cir. 2014) (applying criteria from M-E-V-G-).
38

see Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th 

Cir. 2016) (Gorsuch, J., concurring) (“Chevron and Brand X

permit executive bureaucracies to swallow huge amounts of 

core judicial and legislative power and concentrate federal 

power in a way that seems more than a little difficult to 

square with the Constitution of the framers’ design.”), but it is 

the law, and it allows the BIA to change its statutory 

interpretation and still be entitled to full deference from 

Article III courts, see Nat’l Cable & Telecomms. Ass’n v. 

Brand X Internet Servs., 545 U.S. 967, 981 (2005) (“Agency 

inconsistency is not a basis for declining to analyze the 

agency’s interpretation under the Chevron framework.”). All 

that is required is that the agency provide a “reasoned 

explanation” for its interpretation. Id. at 1000. The BIA has 

done so here, and because the three-part test endorsed in 

M-E-V-G- is based on a “reasonable construction of the 

statute, whether or not it is the only possible interpretation or 

... the one [we] might think best,” that test prevails.21 Holder 

v. Martinez Gutierrez, 566 U.S. 583, 591 (2012).

 

21 At the same time, we are mindful of the role that 

courts can and must play to ensure that agencies comply with 

their “obligation to render consistent opinions,” Chisholm v. 

Def. Logistics Agency, 656 F.2d 42, 47 (3d Cir. 1981), 

including, as relevant here, review of BIA decisions for 

inconsistent application of M-E-V-G’s requirements to 

similarly situated petitioners, routine rejection of proposed 

PSGs without reasoned explanation, and the imposition of 

insurmountable evidentiary burdens that would render 

illusory the opportunity to establish a PSG. However, just as 

we will carefully examine cases on petition for review to 

guard against such dangers, we anticipate that the BIA will 

scrutinize the IJ decisions that come before it with those 
39

D. S.E.R.L. Has Not Established 

Membership in a Cognizable 

Particular Social Group

Having concluded that the BIA’s interpretation is 

entitled to Chevron deference, we now consider S.E.R.L.’s 

claim that her proposed particular social group – immediate 

family members of Honduran women unable to leave a 

domestic relationship – nevertheless satisfies the test from

M-E-V-G-. To prevail on her asylum and withholding of 

removal claims, S.E.R.L. bore the burden of both alleging a 

cognizable particular social group as well as establishing her 

membership in that group based on evidence of record. 

Although “[t]he BIA is not permitted simply to ignore or 

misconstrue evidence” in the record, Espinosa-Cortez v. Att’y 

Gen., 607 F.3d 101, 114 (3d Cir. 2010), we may only reverse 

factual findings if we conclude that “the evidence ‘compels’ a 

different result.” Kang, 611 F.3d at 164 (quoting EliasZacarias, 502 U.S. at 481). We agree with the BIA’s 

conclusion that S.E.R.L. has not satisfied the social 

distinction requirement.

S.E.R.L. focuses on the legal aspect of our inquiry, 

arguing that her proposed social group must be cognizable 

because it comprises two groups that the BIA has already 

recognized as meeting the particularity and social distinction 

requirements: “women of a particular nationality who are 

trapped in abusive relationships,” and “immediate family.” 

(Reply Br. at 1.) She illustrates her argument by way of a

Venn diagram, suggesting that her group constitutes a 

 

considerations in mind and with an eye towards providing 

clear guidance and a coherent body of law in this area.
40

particular social group as a matter of logic. While her 

reasoning has some superficial appeal, it is flawed, and we 

reject it for two reasons.

First, and most fundamentally, it ignores the factual 

feature in determining whether a particular social group is 

cognizable. The BIA has repeatedly stated that the particular 

social group determination depends on the facts of the case at 

hand. See Acosta, 19 I. & N. Dec. at 233-34 (“The particular 

kind of group characteristic that will qualify under this 

construction remains to be determined on a case-by-case 

basis.”); accord Matter of L-E-A-, 27 I. & N. Dec. 40, 42

(BIA 2017); M-E-V-G-, 26 I. & N. Dec. at 251. And that 

must naturally be so, once it is given that social distinction 

involves proof of societal views. What those views are and 

how they may differ from one society to another are questions 

of fact upon which the ultimate legal question of cognizability 

rests. Consequently, it does not follow that because the BIA 

has accepted that one society recognizes a particular group as 

distinct that all societies must be seen as recognizing such a 

group. Kinship, marital status, and domestic relationships can 

each be a defining characteristic of a particular social group, 

but that does not mean that adding two or more of those 

characteristics together necessarily establishes a cognizable 

particular social group. In fact, that kind of addition may well 

broaden, rather than narrow, a group such that the society in 

question would not recognize it as distinct. Thus, as a matter 

of logic, it is invalid to assert that proof in one context is 

proof in all contexts.

Second and closely related, the Board made an 

important factual distinction between this case and its prior 

decision in Matter of A-R-C-G-. S.E.R.L. relies heavily on 
41

that decision, in which the Board considered a group 

consisting of married female victims of domestic violence. 

Matter of A-R-C-G-, 26 I. & N. Dec. 388, 390-95 (BIA 2014), 

overruled by Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 

2018). Importantly, however, A-R-C-G- was premised on 

“DHS’s concession that a particular social group exist[ed],” 

based on “unrebutted evidence that Guatemala has a culture 

of ‘machismo and family violence.’” Id. at 394 (citation 

omitted). And, as earlier noted, see supra n.15, A-R-C-G- has 

recently been abrogated by the Attorney General, who stated 

that it “caused confusion because it recognized an expansive 

new category of particular social groups based on private 

violence.” Matter of A-B-, 27 I. & N. Dec. at 319.

Here, relying on M-E-V-G- and A-R-C-G-, the BIA 

concluded that S.E.R.L.’s proposed group failed, in part 

because she had not identified sufficient evidence that 

immediate family members of Honduran women unable to 

leave a domestic relationship are viewed as socially distinct 

within Honduran society. 

S.E.R.L. argues that the Board’s decision is 

indefensible, because the record parallels what was presented 

in A-R-C-G-. She points to evidence, including country 

reports documenting violence against Honduran women, 

Honduran laws enacted to protect women and victims of 

domestic abuse, and evidence suggesting that those laws are 

underenforced, as well as a Honduran initiative to combat 

violence against women. But that evidence does not compel 

the conclusion that S.E.R.L.’s broader proposed group, which 

encompasses family members of domestic abuse victims –

including family members who are male or female, young or
42

old, and live with or apart from the victims – is socially 

distinct. 

We do not read the BIA’s opinion as, in effect,

“ignor[ing] S.E.R.L.’s evidence of rampant violence against 

women and their families in Honduras.” (Reply Br. at 17, 

18.) To be sure, the record includes disturbing evidence of 

crime, gang-related violence, and general human rights 

abuses, including gender-based violence against women in 

Honduras. The Board, however, noted the lack of evidence in 

the record establishing that “members of [S.E.R.L.’s 

proposed] group would be perceived, considered, or 

recognized in Honduras as a distinct group[.]” (AR at 5.) 

Although arguing that the BIA should not be free to credit or 

ignore evidence or avoid analyzing precedent just by claiming 

that the issue before it is different, S.E.R.L. fails to direct us 

to anything in the record that the IJ or BIA has ignored and 

that would compel the conclusion that Honduran society 

perceives immediate family members of women who cannot 

leave domestic relationships as constituting a socially distinct

group. Thus, even if such a group were still cognizable after 

the Attorney General’s recent decision overruling A-R-C-G-, 

the argument for granting the petition for review in this case 

fails.

S.E.R.L.’s criticism of the BIA’s analysis strikes at the 

heart of the Board’s discretion to adopt additional 

requirements for identifying a particular social group and its 

ability to apply those requirements on a case-by-case basis. 

That criticism may or may not be valid but, in any event, 

should be directed to Congress. As the law stands now, the 

BIA has the discretion it exercised, and while it remains to be 

seen whether the application of those requirements proves 
43

principled and consistent, what matters for our purposes is 

that they are capable of such application. Martinez Gutierrez, 

566 U.S. at 591, 596. In light of the deference owed to the 

BIA’s view of the INA, and after reviewing the record as a 

whole, we conclude that S.E.R.L. has not met her burden of 

showing that the evidence here compels the conclusion that 

her proposed social group is viewed in Honduras as being

socially distinct.22

III. CONCLUSION

For the reasons set forth, we will deny S.E.R.L.’s 

petition for review.23

 

22 Because we agree that S.E.R.L. has not adduced 

sufficient evidence to establish the existence of her proposed 

particular social group, we do not reach any of the other bases 

for the BIA’s denial of her application for asylum and 

withholding of removal, and her final argument suggesting 

that remand is required for the agency to address her wellfounded fear of persecution by Juan Orellana is moot.

23 S.E.R.L.’s outstanding motion to supplement the 

record will also be denied. That motion is premised on a 

motion to reopen proceedings before the BIA. The BIA 

denied her motion, and S.E.R.L. has not appealed that 

decision. Thus, her motion and the new evidence it discusses 

are not properly before us. See Kamara v. Att’y Gen., 420 

F.3d 202, 218 (3d Cir. 2005) (noting that we “must approve 

or reject the agency’s action purely on the basis of the reasons 

offered by, and the record compiled before, the agency itself” 

(citation omitted)).