United States Court of Appeals 

For the First Circuit 

No. 15-2095 

VERONICA CARMELA CORTEZ CARDONA, 

a/k/a VERONICA DEL CARMEN CORTEZ, 

Petitioner, 

v. 

JEFFERSON B. SESSIONS, III,*

UNITED STATES ATTORNEY GENERAL, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS 

Before 

Thompson, Selya, and Lipez, 

Circuit Judges. 

 Hans J. Bremer and Bremer Law & Associates, LLC on brief for 

petitioner. 

 Benjamin C. Mizer, Principal Deputy Assistant Attorney 

General, U.S. Department of Justice, Civil Division; Anthony 

Nicastro, Acting Assistant Director, Office of Immigration 

Litigation; and Joanna L. Watson, Trial Attorney, Office of 

Immigration Litigation, Civil Division, on brief for respondent. 

February 17, 2017 

 

 * Pursuant to Fed. R. App. P. 43(c)(2), U.S. Attorney General 

Jefferson B. Sessions, III, has been substituted for U.S. Attorney 

General Loretta E. Lynch as respondent. 
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LIPEZ, Circuit Judge. The petitioner, Veronica Carmela 

Cortez Cardona ("Cortez"), a native and citizen of Guatemala, seeks 

review of a decision from the Board of Immigration Appeals ("BIA" 

or "Board") denying her motion to reopen an appeal challenging an 

immigration judge's ("IJ") decision to reject her request for 

asylum and withholding of removal pursuant to the Immigration and 

Nationality Act ("INA"), 8 U.S.C. §§ 1158, 1231(b)(3). Under the 

deferential standard of review accorded to the BIA's decision to 

reject a motion to reopen and reconsider its own proceedings, we 

deny her petition. 

I. 

Cortez arrived in the United States without proper entry 

documentation on April 17, 2013. During the following month, the 

Department of Homeland Security served her with a Notice to Appear 

("NTA") before an IJ, alleging that she failed to possess a valid 

travel document at her time of entry into the United States in 

violation of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I).

In a July 2013 written pleading, Cortez admitted the 

factual allegations and the removal charge alleged in her NTA and 

filed an application for asylum, withholding of removal, and 

protection under the Convention Against Torture ("CAT"). Cortez's 

asylum application recounted an emotionally, physically, and 

sexually abusive relationship with a man whom she had dated in 

Guatemala named Juan Carlos. She testified before the IJ that her 
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relationship with Juan Carlos went well for a few months after 

they first began dating, but eventually Juan Carlos introduced 

Cortez to his many friends who were gang members and attempted to 

recruit her into his gang. After rebuffing these efforts, her 

relationship with Juan Carlos quickly crumbled, and he became 

abusive. In order to escape Juan Carlos's physical and sexual 

violence, she made arrangements to travel to the United States. 

Cortez asserted before the IJ -- and continues to maintain 

here -- that she is eligible for asylum based upon a fear of 

persecution due to her "membership in a particular social group." 

8 U.S.C. § 1158(b)(1)(B)(i). She proposed two potential social 

groups in her hearing before the IJ -- "Guatemalan women who have 

been involved intimately with Guatemalan male companions who 

believe that women are to live under male domination" and "women 

in domestic relationships who are unable to leave."1

Providing three reasons for his decision rejecting her 

application for relief, the IJ first cited inconsistencies between 

Cortez's testimony and statements she had made to border agents, 

and concluded that her testimony about her abusive relationship 

with Juan Carlos was not credible. Second, the IJ stated that 

even if Cortez's testimony was credible, her proposed social groups 

 1 On appeal to the BIA, Cortez refined these two potential 

social groups to "women who are viewed as property by virtue of 

their positions within a domestic relationship" and "Guatemalan 

women in domestic relationships who are unable to leave." 
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were not cognizable under the INA because the statute requires 

such a group "be sufficiently particular to permit an accurate 

separation of members from non-members" and an "objective observer 

would not reliably [be able to] gauge who is or who is not a member 

of the group[s]" proposed by Cortez. Finally, the IJ noted that 

internal relocation in Guatemala remained a "significant 

possibility" for Cortez.

Cortez appealed the IJ's denial to the BIA. In its June 

2015 decision, the Board chose not to address the IJ's 

determination as to Cortez's credibility or her ability to relocate 

internally in Guatemala. Moreover, the BIA did not adopt the IJ's 

determination that Cortez failed to define a cognizable social 

group under the INA. Rather, the BIA acknowledged that in one of 

its recent decisions, Matter of A-R-C-G-, the Board held that, 

depending upon the circumstances of an individual case, "married 

women in Guatemala who are unable to leave their relationship" can 

constitute a cognizable social group under the act." 26 I. & N. 

Dec. 388, 392 (BIA 2014). Ignoring the obvious fact that Cortez 

was not married to Juan Carlos, the BIA stated that "the respondent 

and her boyfriend had not established a domestic relationship, and 

the respondent has limited knowledge about her former boyfriend's 

life."2 [Id.] The BIA thus concluded that "the respondent has 

 2 The BIA noted that even though Cortez testified she dated 

her boyfriend for six months, she did not know his last name, where 
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not shown that she was in a domestic relationship and does not fit 

within the particular social group that she claims." As a result, 

the BIA upheld the IJ's denial and dismissed Cortez's appeal. 

Cortez next filed a timely motion requesting that the 

Board reopen and reconsider her appeal, insisting the BIA committed 

three distinct legal errors.3 First, she argued that it was 

improper for the BIA to cite Matter of A-R-C-G- in its decision 

because that case was decided after she had submitted her appeal 

brief. Second, even if the BIA appropriately cited Matter of AR-C-G-, she should have been allowed to submit a brief in response 

to that decision in order to present a full argument to the Board. 

Finally, she contended that the BIA erred when it decided she was 

not in a "domestic relationship" with her boyfriend, Juan Carlos. 

The BIA rejected Cortez's arguments and denied her motion to reopen 

and reconsider. This timely petition for review of the Board's 

decision against reopening and reconsideration followed. 

 

 

he lived, or his birthday and that she did not know anything about 

his immediate family. 

3 Cortez's motion to reopen and reconsider only addressed the 

BIA's decision on her application for asylum and withholding of 

removal. She did not seek review of the BIA's denial of her 

application for CAT protection. Hence, we do not consider that 

issue here. 
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II.

We review the denial of a motion to reopen and reconsider 

for abuse of discretion.4 Martinez-Lopez v. Holder, 704 F.3d 169, 

171 (1st Cir. 2013). "This is a deferential standard, and we will 

find an abuse of discretion only when the 'denial was made without 

a rational explanation, inexplicably departed from established 

policies, or rested on an impermissible basis.'" Id. at 172 

(quoting Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003)). 

Cortez presses before us the three legal arguments she 

advanced in her motion to reopen. We address each in turn. 

A. The BIA's Reliance upon Matter of A-R-C-GCortez urges that, "[i]n the interests of equity and 

fairness," the BIA should not be permitted to cite a case in its 

decision denying her appeal from the IJ that was decided after she 

submitted her brief to the Board. In its denial of the motion to 

reopen and reconsider, the BIA noted that its Practice Manual 

provides an opportunity for parties to file a supplemental brief 

if the party discovers new authority that creates a change in the 

law. Cortez contends that her counsel did not discover Matter of 

A-R-C-G- before her appeal was decided, and it cannot "be 

reasonably expected that in the dynamic and ever changing area of 

 4 Cortez's petition asks us only to reexamine the Board's 

decision denying her motion to reopen and reconsider her case. 

She does not seek and we do not review the BIA's initial dismissal 

of her appeal. 
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immigration law, a party's counsel will always be immediately 

apprised of every new authority that arises shortly after a brief 

has been submitted with the Board."

We disagree. It is counsel's role to be alert to changes 

in the law. See United States v. Gonzalez Vargas, 585 F.2d 546, 

547 (1st Cir. 1978) (per curiam) ("It is the responsibility of 

counsel to keep abreast of the law and to inform the court of the 

correct state of the law."). Not only was the BIA acting well 

within its broad discretion in citing Matter of A-R-C-G- when it 

reviewed the IJ's decision, its failure to consider such an 

important and relevant intervening decision could, itself, be 

grounds for remand from this court. See Kadri v. Mukasey, 543 

F.3d 16, 22 (1st Cir. 2008) (remanding case to the IJ to evaluate 

petitioner's claim in light of intervening case law). 

B. The BIA's Refusal to Allow Further Briefing 

Even if the BIA could have properly cited Matter of 

A-R-C-G- in its decision, Cortez argues that it improperly denied 

her request to submit additional briefing in response to her motion 

to reopen and reconsider. She further asserts that the "severe 

time constraints" placed upon her for filing a timely motion to 

reconsider prevented her from fully briefing the matter and 

"[a]ffording more time would not have placed a burden on the BIA." 

Perhaps not, but the Board had no obligation to permit 

further briefing. Also, in rejecting Cortez's argument, the Board 
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explained that Cortez had set forth her Matter of A-R-C-Gcontention in her motion to reopen and reconsider, and it was 

willing to reconsider that argument sua sponte, without the benefit 

of further briefing. There was no abuse of discretion in the 

Board's decision to consider Cortez's argument on the basis of the 

papers before it. 

C. The BIA's Cognizable Social Group Analysis 

In challenging the BIA's reconsideration of her Matter 

of A-R-C-G- argument, Cortez insists that the BIA erred by narrowly 

focusing on the fact that she was not married to her abusive 

boyfriend and thus did not fit within the particular social group 

defined in Matter of A-R-C-G-. Cortez misconstrues the Board's 

decision. 

In its initial decision the Board acknowledged that 

Matter of A-R-C-G- recognized "married women in Guatemala who are 

unable to leave their relationship" as a particular social group 

potentially eligible for asylum under the INA. 26 I. & N. Dec. at 

392. However, the Board did not state that Cortez had to fit 

within that same social group of married women. To the contrary, 

it focused on the domestic relationship issue, and it concluded 

that Cortez had not demonstrated factually that she fit within her 

own proposed social groups -- "Guatemalan women in domestic 

relationships who are unable to leave" or "women who are viewed as 
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property by virtue of their positions within a domestic 

relationship."5

In reconsidering that conclusion in response to Cortez's 

motion to reopen, the Board elaborated on its position: 

 5 By choosing to focus on the domestic relationship issue 

rather than the absence of Cortez's marital relationship, the BIA 

adds to the ongoing debate about the scope of Matter of A-R-C-G-. 

In at least two unpublished decisions from earlier in 2015, the 

BIA categorically stated that marital status should not be the 

determinative factor in deciding a domestic violence asylum claim. 

See Matter of D-M-R-, 3 (BIA June 9, 2015), 

https://www.scribd.com/document/271354416/D-M-R-BIA-June-9-2015 

(last visited Feb. 16, 2017); Matter of E-M-, 1 (BIA Feb. 18, 

2015), https://www.scribd.com/document/271353122/E-M-BIA-Feb-18-

2015 (last visited Feb. 16, 2017); see also Blaine Bookey, GenderBased Asylum Post-Matter of A-R-C-G-: Evolving Standards and Fair 

Application of the Law, 22 Sw. J. Int'l L. 1, 14 & n.55 (2016). 

In a third unpublished decision from 2015, the BIA noted that it 

was proper for an IJ to attach "some significance" to the absence 

of a marital relationship in denying an applicant's request for 

asylum, though it also reiterated its previous position that 

marital status is not necessarily determinative. Unpublished BIA 

Decision, 3 (BIA July 28, 2015) (available as Case No. 11018 in 

the Center for Gender and Refugee Studies database at the 

University of California Hastings College of Law); see also Bookey 

at 14 & n.56. However, the applicant in that case filed a motion 

to reconsider, and upon further review the Board reversed its 

initial decision, stated that it was not proper to consider marital 

status in the analysis, and remanded the case to the IJ for further 

proceedings. Unpublished BIA Decision, 1 (BIA Nov. 9, 2015) 

(available as Case No. 11018 in the Center for Gender and Refugee 

Studies database at the University of California Hastings College 

of Law). Because unpublished BIA decisions carry no precedential 

value, practitioners and scholars have urged the Board to publish 

more decisions on the domestic relationship issue to provide 

additional clarity for IJs. See, e.g., Sital Kalantry & Carolyn 

Wald, Asylum for Domestic Violence Survivors: Immigration 

Advocates Urge Board of Immigration Appeals to Publish More 

Precedent Cases, Catholic Legal Immigration Network, Inc. (Mar. 1, 

2016), https://cliniclegal.org/news/asylum-domestic-violencesurvivors-immigration-advocate-urges-board-immigration-appealspublish (last visited Feb. 16, 2017). 
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The respondent was not in a "domestic 

relationship." The word "domestic" is defined 

at http://dictionary.reference.com as "of or 

relating to the home, the household, household 

affairs, or the family[,]" or as "devoted to 

home life or household affairs." The 

respondent testified that she dated Juan 

Carlos happily for 3 months and did things 

like going to the park and getting ice cream. 

After dating for 3 months, he introduced her 

to some of the members of the gang to which he 

belonged, and asked her to be his woman and 

belong to the gang. She refused his offer. 

The respondent was never in a "domestic" 

relationship with Juan Carlos. 

The record amply supports this determination by the Board. Hence, 

the BIA did not abuse its discretion when it denied Cortez's 

motion.6

 For the forgoing reasons, the petition is dismissed.

 6 Before us, Cortez has argued that the proper cognizable 

social group to consider should be "women, married or unmarried, 

in Guatemala who are unable to leave their relationship." This 

description, which avoids using the term "domestic relationship," 

is similar to a social group Cortez proposed to the IJ, but it 

represents a different proposed social group from those she pressed 

before the BIA. Hence, Cortez may not propose this social group 

in a petition for review, since she "failed to exhaust this claim 

before the agency." Pheng v. Holder, 640 F.3d 43, 47 n.4 (1st 

Cir. 2011) (citing 8 U.S.C. § 1252(d)(1)).