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 citizen of Nigeria, applied for asylum, 

withholding of removal, and relief under the Convention Against Torture (“CAT”) 

based on her religion and membership in particular social groups. The immigration 

 On March 11, 2021, Merrick B. Garland became Attorney General of the 

United States. His name has been substituted for William P. Barr as Respondent, per 

Fed. R. App. P. 43(c)(2). 

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

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 24, 2021

Christopher M. Wolpert 

Clerk of Court
2 

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 jurisdiction 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 petitioner must establish that she is a 

refugee. See 8 U.S.C. § 1158(b)(1)(A). A refugee is a person who is “unable or 

unwilling to return to the country of origin ‘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-Barrientos 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 offensive 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]ersecution 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 withholding of removal, an applicant must 
3 

demonstrate that there is a clear probability of persecution because of [her] race, 

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

Id. (quotations omitted). If an applicant “fails to satisfy the lower burden of proof 

required for asylum, [s]he also fails to satisfy the higher standard of eligibility for 

withholding of removal.” Id. at 1234. 

Finally, “[t]o be eligible for relief under 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 suffering, whether physical or mental, is 

intentionally inflicted” for certain 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 fears harm from a secret society called the 

Ogboni Fraternity, which counted her father as a member. 

In May 2018, her father took her to the Ogboni shrine, where she was required 

to participate in a ritual 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 and started to take the body. When she attempted to 

prevent them, they threatened her and then beat her with a horsewhip, chairs, and 

broken bottles. Ms. Akinfolarin awoke in the hospital, where she remained for a 
4 

week because of her injuries. While she was unconscious, the Ogboni had absconded 

with her father’s body. 

Ms. Akinfolarin’s pastor reported the attack. Two police officers visited the 

hospital to take her statement. 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 officers said they would investigate, but she 

does not know whether they did. Her father’s body was not returned. 

After Ms. Akinfolarin left the hospital, the Ogboni wrote to her that her father 

had pledged her as his replacement, and she had no choice but to join. Her pastor 

advised her to engage in a prayer vigil. During her vigil, a group 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 Lagos, but strangers came looking for her 

at her new church. Her pastors helped her flee from Nigeria to Venezuela. After 

some time in Venezuela and Mexico, she arrived in the United States, where she 

immediately sought asylum. 

Ms. Akinfolarin represented herself at her hearing before the IJ. After 

listening to her testimony, the IJ concluded she was credible and the harm she 

described rose to the level of persecution. But he further held that Ms. Akinfolarin 
5 

had failed to establish that the harm she suffered was “on account of” of a protected 

ground, as required for asylum. 

The IJ first examined whether the harm was on account of being a member of a 

particular social group. Ms. Akinfolarin, proceeding pro se, had not defined any 

particular social group, but the IJ identified the following two groups: 

(1) “individuals in Nigeria whose fathers have died and the Ogboni Fraternity wants 

them to take their place,” and (2) “individuals that attempted to stop the Ogboni 

Fraternity from burying or attending to a member in a manner consistent with their 

traditions.” Admin. R. at 68.1

 The IJ held that these groups were not cognizable 

“particular social groups” because 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 “particular social group” have immutability, 

particularity, and social distinction). 

The IJ next examined whether the harm 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 insufficient evidence in the record 

that the Ogboni were motivated to harm [her] because of her 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 Board’s decision addressed only the groups 

identified in the IJ’s oral decision. We consider only the 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] Christianity was the reason that the Ogboni 

sought to harm her.” Admin. R. at 69. “Rather, the evidence in the record indicates 

it is the Ogboni’s desire to have her join their organization [that] is the reason that 

they were harassing her.” Id. at 69-70. 

The IJ further determined that there was insufficient evidence to conclude that 

the government of Nigeria was unable or unwilling 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 that belief. 

Because Ms. Akinfolarin failed to satisfy the standards for asylum, the IJ also 

denied withholding of removal. As for CAT 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 acquiescence of a public official 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 different counsel before this court, Ms. Akinfolarin now 

petitions for review of the Board’s decision. 

II. DISCUSSION 

“When a single member of the BIA issues a brief order affirming an IJ’s 

decision, this court reviews both the decision of the BIA and any parts of the IJ’s 
7 

decision relied on by the BIA in reaching its conclusion.” Dallakoti v. Holder, 

619 F.3d 1264, 1267 (10th Cir. 2010) (quotations omitted). We review legal 

conclusions de novo and factual findings for substantial evidence. Id. Under the 

substantial-evidence standard, “[t]he agency’s ‘findings of fact are conclusive unless 

any reasonable adjudicator would be compelled to conclude to the contrary.’” 

Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B)). 

A. Asylum 

Failure to Develop the Record 

In arguing that the agency erred in analyzing whether she was harmed on 

account of a protected ground, Ms. Akinfolarin 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 particular social group, especially when the 

Petitioner is pro se.” Pet’r Br. at 13. 

As Ms. Akinfolarin concedes, however, she did not raise this argument before 

the Board. This court generally lacks jurisdiction to consider arguments that the 

petitioner did not first raise before the Board. See 8 U.S.C. § 1252(d)(1); 

Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010). And although 

there is an exception for constitutional questions, “objections to procedural errors or 

defects that the BIA could have remedied must be exhausted even if the alien later 
8 

attempts to frame them in terms of constitutional due process on judicial review.” 

Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094 (10th Cir. 2008). 

Ms. Akinfolarin’s argument that the IJ failed to adequately 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 associated inadequacies in his evidentiary 

and review proceedings fall within the [jurisdictional] prohibition.”). 

Error in Formulating Particular Social Groups 

As described above, because Ms. Akinfolarin proceeded pro se, the IJ 

identified two potential social groups for her. She argues that he erred in formulating 

“very narrow, odd renditions of particular social groups” and instead “should have 

identified particular social groups within existing standards.” Pet’r Br. at 17. But as 

with her first argument, we lack jurisdiction consider this 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 Membership in a Particular Social Group 

Ms. Akinfolarin next argues that the agency erred in determining that the 

social groups the IJ identified were not cognizable groups. She asserts that the 

groups are immutable, particular, and socially distinct, see Rodas-Orellana, 780 F.3d 

at 990-91. We need not consider immutability and particularity because social 

distinction—the ground relied on by the IJ and the Board—is dispositive. 
9 

Social distinction means that the group is perceived as a group by the society 

in question. See id. at 991. It “requires that the relevant trait be potentially 

identifiable by members of the community, either because it is evident or because the 

information defining the characteristic is publicly accessible.” Id. (quotations 

omitted). Ms. Akinfolarin argues that an Immigration and Refugee Board of Canada 

report in the record demonstrates that the Ogboni are socially distinct. But that 

misses the point. Ms. Akinfolarin must show the social distinctiveness not of the 

Ogboni themselves, but of “individuals in Nigeria whose fathers have died and the 

Ogboni Fraternity wants them to take their place” and/or “individuals that attempted 

to stop the Ogboni Fraternity from burying or attending to a member in a manner 

consistent with their traditions,” Admin. R. at 68. The Refugee Board report says 

nothing about such groups, and Ms. Akinfolarin points to no other evidence in the 

record to undermine the agency’s conclusion that the proposed groups are not 

socially distinct. 

Ms. Akinfolarin asserts that the social group her counsel argued on appeal to 

the Board—the nuclear family unit of her and her father—was “essentially the same 

as the IJ’s social group based on her relationship to her father,” Pet’r Br. at 23, and 

therefore the Board erred in declining to consider that group after determining that it 

was newly raised on appeal. But we agree with 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 determination that she was not persecuted 

on account of her religion. She asserts that when she opposed the Ogboni’s removal 

of her father’s body because she wanted to bury him in the Christian tradition, “[h]er 

religious beliefs were made known and she was harmed on account of it.” Id. at 24. 

“For persecution to be ‘on account of’ [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 (10th Cir. 2005); see also

§ 1158(b)(1)(B)(i) (requiring the asylum applicant to establish that a protected 

ground “was or will be at least one central reason” for persecution). “[T]he protected 

ground cannot play a minor role in the alien’s past mistreatment or fears of future 

mistreatment. That is, it cannot be incidental, tangential, superficial, or subordinate 

to another reason for harm.” Dallakoti, 619 F.3d at 1268 (quotations omitted). To 

reverse the Board’s decision, “the record must establish that any reasonable 

adjudicator would be compelled 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 contains substantial evidence that the 

Ogboni harmed and threatened Ms. Akinfolarin not because she is a Christian, but 

because she obstructed their 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 ‘ultimate motivation’ was to recruit [her son], 
11 

not to attack his family”); Rodas-Orellana, 780 F.3d at 996 (petitioner was subject to 

harm not because of his membership in a particular social group, but because his 

assailants wanted “to take his money or have him join the gang”); Dallakoti, 

619 F.3d at 1268 (petitioner was threatened because he could supply resources to the 

assailants, not because of his political opinion).2

B. Withholding of Removal 

Because Ms. Akinfolarin fails to satisfy the burden of proof for asylum, she 

also necessarily fails to satisfy the higher 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. Akinfolarin 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 because the IJ failed to 

elicit sufficient testimony in this 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 context 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 concluding that the government of Nigeria is not unable or 

unwilling to protect her. 
12 

140 S. Ct. at 1691, 1694 (recognizing that an order denying CAT relief is not “a final 

order of removal”). But even without a jurisdictional 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 disregard that rule. 

III. CONCLUSION 

Ms. Akinfolarin’s motion to proceed without prepayment of costs and fees is 

granted. The asylum and withholding arguments that were not raised before the 

Board are dismissed for lack of jurisdiction, and the petition for review is otherwise 

denied. 

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge