UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ GRACE O. AKINFOLARIN, Petitioner,

v. MERRICK B. GARLAND, United States Attorney General,  Respondent. No. 20-9547 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT **

________________ _________________ Before MATHESON , BRISCOE , and CARSON , Circuit Judges.

________________ _________________ Grace O. Akinfolarin, a native and citiz en of Nigeria, applied for asylum, withholding of removal, and relief unde r the Convention Against Torture (“CAT”) based on her religion and memb ership in particular soci al groups. The immigration

 On March 11, 2021, Merrick B. Garl and became Attorney General of the United States. His name has been substitute d for William P. Barr as Respondent, per Fed. R. App. P. 43(c)(2).

** After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 24, 2021 Christopher M. Wolpert Clerk of Court2 judge (“IJ”) denied relief, and the Board of Immigration Appeals (“Board” or “BIA”) dismissed the appeal. Ms. Akinfolarin now petitions for review of the Board’s decision. Exercising jurisdic tion under 8 U.S.C. § 1252(a), we dismiss the petition in part and deny it in part.
I. BACKGROUND
A. Legal Background To succeed with an asylum claim, a pe titioner must estab lish that she is a refugee. See 8 U.S.C. § 1158(b)(1)(A). A ref ugee is a person who is “unable or unwilling to return to the country of orig in ‘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.’” Rivera-Barrien tos v. Holder , 666 F.3d 641, 645-46 (10th Cir. 2012) (quoting 8 U.S.C. § 1101(a)(42)(A)) (emphasis omitted). “Persecution is the infliction of suffering or harm upon those who differ . . . in a way regarded as of fensive and must entail more than just restrictions or threats to life and liberty.” Ritonga v. Holder , 633 F.3d 971, 975 (10th Cir. 2011) (quotations omitted). “[P]ers ecution may be inflicted by the government itself, or by a non-governmental group that the government is unwilling or unable to control.” Id. (quotations omitted). “The showing required for withholding of removal is more stringent tha[n] the showing required for asylum.” Zhi Wei Pang v. Holder , 665 F.3d 1226, 1233 (10th Cir. 2012). “To be eligible for wi thholding of removal, an applicant must3 demonstrate that there is a clear probability of persecution because of [her] race, religion, nationality, membership in a partic ular social group, or political opinion.” Id. (quotations omitted). If an applicant “f ails to satisfy the lower burden of proof required for asylum, [s]he also fails to sati sfy the higher standard of eligibility for withholding of removal.” Id. at 1234. Finally, “[t]o be eligible for relief unde r the CAT, an individual must establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” Id. at 1233-34 (quotations omitted). “Torture” is “any act by which severe pain or suff ering, whether physi cal or mental, is intentionally inflicted” for ce rtain purposes “by or at the instigation of or with the consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity .” 8 C.F.R. § 208.18(a)(1).
B. Factual and Procedural Background Ms. Akinfolarin is a Christian. She f ears harm from a secret society called the Ogboni Fraternity, which counted her father as a member. In May 2018, her father took her to th e Ogboni shrine, where she was required to participate in a ritu al with persons dressed in white. Four months later, her father died. Ms. Akinfolarin intended to give him a Christian burial, but Ogboni Fraternity members disrupted the burial a nd started to take the body. When she attempted to prevent them, they th reatened her and then beat he r with a horsewhip, chairs, and broken bottles. Ms. Akinfola rin awoke in the hospital, where she remained for a4 week because of her injuri es. While she was unconscious , the Ogboni had absconded with her father’s body. Ms. Akinfolarin’s pastor reported the at tack. Two police of ficers visited the hospital to take her statemen t. She recognized them as Ogboni members from the May ritual and from Ogboni rings they were wearing. Although Ms. Akinfolarin was frightened, she gave her statement. The offi cers said they would investigate, but she does not know whether they did. Her father’s body was not returned. After Ms. Akinfolarin left th e hospital, the Ogboni wrot e to her that her father had pledged her as his replacement, and sh e had no choice but to join. Her pastor advised her to engage in a prayer vigil. During her vigil, a grou p of persons dressed in white surrounded her house, chanting and singing. She and her son fled for the church. Their house was burned down that night. Ogboni members also threatened the church if it did not release her to them. The church helped her to relocate to La gos, but strangers came looking for her at her new church. Her pastors helped he r flee from Nigeria to Venezuela. After some time in Venezuela and Mexico, she arrived in th e United States, where she immediately sought asylum. Ms. Akinfolarin represented herself at her hearing before the IJ. After listening to her testimony, the IJ concl uded she was credible and the harm she described rose to the level of persecution. But he furthe r held that Ms. Akinfolarin5 had failed to establish that the harm she suffered was “on account of” of a protected ground, as requi red for asylum. The IJ first examined whether the harm was on account of being a member of a particular social group. Ms. Akinfolari n, proceeding pro se, had not defined any particular social group, but the IJ identified th e following two groups: (1) “individuals in Nigeria whose fathers ha ve died and the Ogboni Fraternity wants them to take their place,” and (2) “indivi duals that attempted to stop the Ogboni Fraternity from burying or attending to a me mber in a manner cons istent with their traditions.” Admin. R. at 68. 1 The IJ held that these groups were not cognizable “particular social groups” becau se the record did not show that they are socially distinct. See Rodas-Orellana v. Holder , 780 F.3d 982, 990- 91 (10th Cir. 2015) (requiring that a cognizable “particul ar social group” have immutability, particularity, and social distinction). The IJ next examined whether the ha rm was on account of Ms. Akinfolarin’s Christian religion. While recognizing that the Ogboni had harmed Ms. Akinfolarin and threatened her, he held that “there simply is insuff icient evidence in the record that the Ogboni were motivated to harm [her] because of he r religious beliefs. . . .

1 During the hearing, the IJ also referred to a group of “individuals that are opposed to joining the Ogboni Fraternity,” Admin. R. at 123, but the IJ’s oral decision did not address that group. Ms. Akinfolarin did not request consideration of that group before the Board, and the Bo ard’s decision addre ssed only the groups identified in the IJ’s oral de cision. We consider only th e groups the Board addressed.6 While [her] Christianity may be the reason why she does not want to participate, there is insufficient evidence that [her] Ch ristianity was the reason that the Ogboni sought to harm her.” Admin. R. at 69. “Rather, the eviden ce in the record indicates it is the Ogboni’s desire to have her join their organizati on [that] is the reason that they were harassing her.” Id. at 69-70. The IJ further determined that there wa s insufficient evidence to conclude that the government of Nigeria was unable or un willing to protect Ms. Akinfolarin. The IJ noted Ms. Akinfolarin’s belief that many Ogboni members were in the police force, but held that the record did not support th at belief. Because Ms. Akinfolarin faile d to satisfy the standards for asylum, the IJ also denied withholding of removal. As for CA T relief, the IJ held that the record was insufficient to determine that Ms. Akinfolarin would likely be tortured “by or at the instigation of or with the consent or acqui escence of a public offi cial or person acting in an official capacity.” Id. at 72. Ms. Akinfolarin obtained counsel for her appeal to the Board. In a brief one-member order, the Board affirmed the IJ’s determinations and dismissed the appeal. Represented by diffe rent counsel before this court, Ms. Akinfolarin now petitions for review of the Board’s decision.
II. DISCUSSION “When a single member of the BIA issu es a brief order affirming an IJ’s decision, this court reviews both the decisi on of the BIA and any parts of the IJ’s7 decision relied on by the BIA in reaching its conclusion.” Dallakoti v. Holder , 619 F.3d 1264, 1267 (10th Ci r. 2010) (quotations omi tted). We review legal conclusions de novo and factual findi ngs for substantial evidence. Id . Under the substantial-evidence st andard, “[t]he agency’s ‘finding s of fact are conclusive unless any reasonable adjudicator w ould be compelled to conc lude to the contrary.’” Nasrallah v. Barr , 140 S. Ct. 1683, 1692 (2020) (quo ting 8 U.S.C. § 1252(b)(4)(B)).
A. Asylum Failure to Develop the Record In arguing that the agen cy erred in analyzing wh ether she was harmed on account of a protected ground, Ms. Akinfolari n first asserts that the IJ failed to create a full factual record at the hearing. She asserts that “there are, arguably, constitutional and statutory due process responsibilities that require[] the IJ to adequately develop the record on partic ular social group, es pecially when the Petitioner is pro se.” Pe t’r Br. at 13. As Ms. Akinfolarin concedes, however, she did not raise this argument before the Board. This court genera lly lacks jurisdiction to c onsider arguments that the petitioner did not first ra ise before the Board. See 8 U.S.C. § 1252(d)(1); Garcia-Carbajal v. Holder , 625 F.3d 1233, 1237 (10th Ci r. 2010). And although there is an exception for cons titutional questions, “objections to procedural errors or defects that the BIA could have remedied must be exhausted even if the alien later8 attempts to frame them in terms of constit utional due process on judicial review.” Vicente-Elias v. Mukasey , 532 F.3d 1086, 1094 (10th Cir. 2008). Ms. Akinfolarin’s argument th at the IJ failed to adequa tely develop the record is a procedural defect that the Board could have remedied. Because she did not raise the argument before the Board, we do not have jurisdiction to consider it. Cf. Soberanes v. Comfort , 388 F.3d 1305, 1309 (10th Cir. 2004) (“[P]etitioner’s complaints about omissions by counsel and as sociated inadequacies in his evidentiary and review proceedings fall within th e [jurisdictional] prohibition.”). Error in Formulating Pa rticular Social Groups As described above, because Ms. Akin folarin proceeded pro se, the IJ identified two potential social groups for her. She argue s that he erred in formulating “very narrow, odd renditions of particular social groups” and instead “should have identified particular social gr oups within existing standards.” Pet’r Br. at 17. But as with her first argument, we lack jurisdiction consider th is argument because she did not raise it before the Board. See § 1252(d)(1); Garcia-Carbajal , 625 F.3d at 1237.
Persecution on Account of Members hip in a Particular Social Group Ms. Akinfolarin next argues that the agency erred in det ermining that the social groups the IJ identified were not c ognizable groups. Sh e asserts that the groups are immutable, particul ar, and socially distinct, see Rodas-Orellana , 780 F.3d at 990-91. We need not consider immuta bility and particularity because social distinction—the ground relied on by th e IJ and the Board—is dispositive.9 Social distinction means that the grou p is perceived as a group by the society in question. See id. at 991. It “requires that th e relevant trait be potentially identifiable by members of the community, either because it is evident or because the information defining the characteri stic is publicly accessible.” Id. (quotations omitted). Ms. Akinfolarin argues that an Immigration and Refug ee Board of Canada report in the record demonstr ates that the Ogboni are so cially distinct. But that misses the point. Ms. Akinfola rin must show the social distinctiveness not of the Ogboni themselves, but of “i ndividuals in Nigeria whose fathers have died and the Ogboni Fraternity wants them to take thei r place” and/or “indivi duals that attempted to stop the Ogboni Fraterni ty from burying or attending to a member in a manner consistent with their traditi ons,” Admin. R. at 68. Th e Refugee Board report says nothing about such groups, and Ms. Akinfo larin points to no other evidence in the record to undermine the agen cy’s conclusion that th e proposed groups are not socially distinct. Ms. Akinfolarin asserts that the social group her c ounsel argued on appeal to the Board—the nuclear family unit of her and her father—was “e ssentially the same as the IJ’s social group base d on her relationship to her fa ther,” Pet’r Br. at 23, and therefore the Board erred in declining to c onsider that group after determining that it was newly raised on appeal. But we agree w ith the Board that her nuclear family was sufficiently different from the other groups so as to constitute a new proposed group on appeal.10 Persecution on Account of Religion Ms. Akinfolarin next challenges the dete rmination that she was not persecuted on account of her religion. She asserts th at when she opposed the Ogboni’s removal of her father’s body because sh e wanted to bury him in th e Christian tradition, “[h]er religious beliefs were made known a nd she was harmed on account of it.” Id. at 24. “For persecution to be ‘on account o f’ [a protected ground], the victim’s protected characteristic must be central to the persecutor’s decision to act against the victim.” Niang v. Gonzales , 422 F.3d 1187, 1200 (1 0th Cir. 2005); see also § 1158(b)(1)(B)(i) (requiring th e asylum applicant to es tablish that a protected ground “was or will be at least one central reason” for persecuti on). “[T]he protected ground cannot play a minor role in the al ien’s past mistreatmen t or fears of future mistreatment. That is, it ca nnot be incidental, tangential, superficial, or subordinate to another reason for harm.” Dallakoti , 619 F.3d at 1268 (quotations omitted). To reverse the Board’s decision, “the record must esta blish that any reasonable adjudicator would be compe lled to conclude that one of the central reasons” the Ogboni targeted Ms. Akinfolarin was because of her religion. Id. But it does not. Rather, the record c ontains substantial evidence that the Ogboni harmed and threatened Ms. Akinfolarin not because she is a Christian, but because she obstructed th eir efforts to achieve their own objectives. See Orellana-Recinos v. Garland , 993 F.3d 851, 858 (10th Cir. 2021) (petitioner failed to demonstrate nexus where “the gang’s ‘ultimat e motivation’ was to recruit [her son],11 not to attack his family”); Rodas-Orellana , 780 F.3d at 996 (petit ioner was subject to harm not because of his membership in a particular social group, but because his assailants wanted “to take his m oney or have him join the gang”); Dallakoti , 619 F.3d at 1268 (petitioner was threatened b ecause he could supply resources to the assailants, not because of his political opinion). 2
B. Withholding of Removal Because Ms. Akinfolarin fa ils to satisfy the burden of proof for asylum, she also necessarily fail s to satisfy the highe r standard for withholding of removal. See Zhi Wei Pang , 665 F.3d at 1234; Dallakoti , 619 F.3d at 1268.
C. CAT Relief With regard to her CAT claim, Ms. Akin folarin refers to her earlier discussion of the IJ’s duty to develop the record and argues that “[t]here is insufficient evidence to determine whether Nigeria may torture Ms. Akinfolarin becaus e the IJ failed to elicit sufficient testimony in th is area.” Pet’r Br. at 30. Although she did not argue this issue before the Board, it appears that this court may exercise jurisdiction over the argument in the contex t of the CAT claim. See 8 U.S.C. § 1252(d)(1) (requiring exhaustion of remedies with regard to “a final order of removal”); Nasrallah ,

2 Having upheld the Board’s conclusion that Ms. Akinfolarin has not shown persecution on account of a protected ground, we need not consider her argument that the agency erred in concl uding that the government of Nigeria is not unable or unwilling to protect her.12 140 S. Ct. at 1691, 1694 (recogn izing that an order denying CAT relief is not “a final order of removal”). But even without a juri sdictional bar, our general rule is that we do not entertain arguments for reversing an agency decision that are raised for the first time in this court. See Garcia-Carbajal , 625 F.3d at 1237. Ms. Akinfolarin gives us no reason to di sregard that rule.
III. CONCLUSION Ms. Akinfolarin’s motion to proceed wit hout prepayment of costs and fees is granted. The asylum and withholding argu ments that were not raised before the Board are dismissed for lack of jurisdiction, and the petiti on for review is otherwise denied.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge