          United States Court of Appeals
                      For the First Circuit


No. 17-1782

                KAREN LILIANA RIVAS-DURÁN, ET AL.,

                           Petitioners,

                                v.

                         WILLIAM P. BARR,
                 UNITED STATES ATTORNEY GENERAL,

                           Respondent.


                PETITION FOR REVIEW OF AN ORDER OF
                  THE BOARD OF IMMIGRATION APPEALS


                              Before

                       Howard, Chief Judge,
              Torruella and Kayatta, Circuit Judges.



     Ondine Galvez Sniffin and Law Office of Ondine G. Sniffin, on
brief for petitioners.
     Jason Wisecup, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Chad A.
Readler, Acting Assistant Attorney General, and Bernard A. Joseph,
Senior Litigation Counsel, Office of Immigration Litigation, on
brief for respondent.


                          June 17, 2019
          TORRUELLA, Circuit Judge.             Appellant Karen Liliana Rivas

Durán ("Rivas-Durán") fled her native El Salvador and entered the

United States without inspection with her twin sons.                 After being

detained, Rivas-Durán sought asylum, with her sons as derivative

beneficiaries, claiming that the children's father threatened her

on numerous occasions.          The Immigration Judge ("IJ") granted

Rivas-Durán's application for asylum, but the Board of Immigration

Appeals ("BIA") vacated the IJ's decision and ordered her removal,

holding that she was ineligible for asylum under 8 U.S.C. § 1158

or withholding of removal under 8 U.S.C. § 1231(b)(3).                     The BIA

found that Rivas-Durán failed to establish that she suffered

persecution or that she was a member of her particular social

group,   "women   in    El    Salvador        unable    to   leave   a    domestic

relationship."      Rivas-Durán now appeals.            After careful review,

we deny her petition.

                               I.   Background

          On July 1, 2014, the Department of Homeland Security

("DHS") charged Rivas-Durán and her sons with removability under

8 U.S.C. § 1182(a)(6)(A)(i), as aliens present in the United States

who have not been admitted or paroled.             Rivas-Durán sought asylum

and   withholding      of    removal,    with     her    sons   as       derivative

beneficiaries of her asylum application.




                                        -2-
           In support of her I-589 Application for Political Asylum

and Withholding of Removal, Rivas-Durán declared that when she was

eighteen years-old she met Pedro Ernesto Burgos-Rivas ("Pedro"),

and after dating him for six months she became pregnant with twins.

After learning of her pregnancy, Pedro "became aggressive" and

would "grab [Rivas-Durán] by her shoulders."           "At that point,"

Rivas-Durán   "told   him    [that    they]   needed   to   end   [their]

relationship[,] but he insisted on calling [her]."           During that

time, she lived with her father.

           While Pedro visited Rivas-Durán in the hospital after

she gave birth, she declared that she did not see him again until

eight months later when he suddenly showed up at her father's

house.   During that visit, Pedro became aggressive towards Rivas-

Durán after she received a phone call, slapping her and pushing

her down on the sofa.       After that incident, Rivas-Durán did not

see Pedro for more than a year.        She declared that Pedro, who was

a gang member, continued to harass and threaten her intermittently

until she moved to the United States.         On one occasion, when the

twins were three years-old, Pedro showed up at her father's house

with "about 3 other gang members" and warned her that if she

"didn't want to put [her] sons in danger," she should not let them

wear t-shirts with the number eighteen on them as the number

represented a rival gang.     Rivas-Durán further declared that after


                                     -3-
she was in the United States, Pedro's mother tracked her address,

visited her, and tried to see her grandsons.

             Following Rivas-Durán's merits hearing on January 6,

2016, the IJ granted her asylum claim.          The IJ deemed Rivas-Durán's

testimony    credible    and     "consistent    with    the    application       she

filed."     The IJ concluded that Rivas-Durán had been the victim of

past persecution.        The IJ explained that despite the fact that

"there [was] only one incident of physical harm that the respondent

suffered at the hands of the father of her children," she suffered

past    persecution      because,       "although     sporadic,"       this     "was

accompanied by threats and the knowledge that [Pedro] had the

ability to act on these threats."

             As to the one incident of physical harm, the IJ recounted

the time when Rivas-Durán received a phone call while Pedro was

visiting at her father's house after the twins were born.                     As the

IJ described it, Pedro

          impulsively grabbed [Rivas-Durán] by the shoulders
          and threatened that, if she were not his, she would
          belong to no one. He slapped her across her face and
          pushed her down on the sofa . . . . He threatened
          that she was not to tell anyone that he had done so,
          not even her family.

             Furthermore, the IJ identified two other instances of

threats: 1) "[o]n one occasion," Pedro "grabbed [Rivas-Durán] by

the    shoulders   and    told    her    that   she    could     not   leave     the

relationship";     and   2)    "[s]everal     years    later,"    Pedro   visited

                                        -4-
Rivas-Durán with gang-member friends and warned her that their

kids could not wear either red shirts or the number eighteen as

these were symbols of a rival gang.      Regarding this last incident,

the IJ found that Pedro "specifically brought the other gang

members so that [Rivas-Durán] would be intimidated and threatened

by their presence."   Finally, the IJ highlighted that after Rivas-

Durán left El Salvador, "Pedro's mother tracked down the twins in

the United States . . ., lied to get into the building in which

[Rivas-Durán] and the twins lived with [Rivas-Durán's] mother and

step-father, and lied to get into the apartment."       Based on these

facts, the IJ concluded that "although the threats were few and

the physical harm a single incident, taken together in this

scenario, Pedro's collective actions signal the potential for

imminent and dire danger for the respondent and the children."

          Moreover,   the   IJ   found   that   Rivas-Durán   had   shown

membership in a cognizable particular social group, specifically,

"women in El Salvador unable to leave a domestic relationship."

The IJ explained that, "[e]ven after leaving El Salvador, her

controlling partner continued to search for her."        Moreover, the

IJ highlighted that according to the BIA in Matter of A-R-C-G-, 26

I & N Dec. 388 (BIA 2014), "[w]hether a woman is married or

unmarried, if she is unable to leave the relationship, it makes no

difference in the court's view."


                                  -5-
          DHS appealed the IJ's decision to the BIA.    On July 5,

2017, the BIA vacated the IJ's decision granting asylum and ordered

Rivas-Durán and her children removed from the United States.    It

held that the IJ erred in finding that Rivas-Durán had been

persecuted, as the harm she suffered did not rise to the level of

persecution required to grant asylum.   The BIA further found that

the IJ clearly erred in finding that Rivas-Durán was a member of

her particular social group, as the relationship with her ex-

partner "[did] not have the hallmarks of a domestic relationship

required to establish membership in a particular social group based

on domestic violence."

          Rivas-Durán now appeals the BIA's decision.   She claims

that the evidence on the record compels the IJ's finding that the

harm she suffered constitutes persecution, and that the BIA failed

to analyze the issue under the "clearly erroneous" standard.

Further, she argues that First Circuit and BIA precedent, as well

as the record, compel the IJ's conclusion that she was a member of

her particular social group.    As Rivas-Durán's membership in a

particular social group is an indispensable element of her claims,

our analysis begins and ends with it.   See Aguilón-López v. Lynch,

664 Fed. App'x. 14, 19 n.2 (1st Cir. 2016) (Petitioner's "claim

fails because, regardless of whether he established persecution,




                               -6-
he did not establish his membership in a particularized social

group.").

                                   II.    Analysis

             We review the BIA's legal conclusions de novo, "with

appropriate    deference      to    the    agency's   interpretation      of   the

underlying     statute       in    accordance     with       administrative    law

principles."       Vásquez v. Holder, 635 F.3d 563, 565 (1st Cir. 2011)

(quoting Stroni v. González, 454 F.3d 82, 87 (1st Cir. 2006)).                 By

contrast,     we    review   factual      findings    under     the   deferential

"'substantial evidence standard,' meaning that we will not disturb

such findings if they are 'supported by reasonable, substantial,

and probative evidence on the record considered as a whole.'"

Aguilar-Escoto v. Sessions, 874 F.3d 334, 336-37 (1st Cir. 2017)

(quoting Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir 2015)).

             An applicant can obtain asylum by proving that he or she

is a refugee pursuant to section 101(a)(42)(A) of the Immigration

and   Nationality     Act    ("INA").       8   U.S.C.   §    1101,   1158.    The

applicant must show that she is "unable or unwilling" to return to

her 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."

8 U.S.C. § 1101(a)(42)(A) (emphasis added).




                                          -7-
            To    determine     that     a    petitioner      is     a    member    of   a

particular social group, the petitioner 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."                         Vega-Ayala

v. Lynch, 833 F.3d 34, 39 (1st Cir. 2016) (quoting Paiz-Morales v.

Lynch,    795    F.3d   238,    244    (1st    Cir.    2015)).           "An    immutable

characteristic is one that 'members of the group either cannot

change,   or     should   not   be     required     to      change       because   it    is

fundamental to their individual identities or consciences.'"                            Id.

(quoting Mayorga-Vidal v. Holder, 675 F.3d 9, 14 (1st Cir. 2012)).

            In order to meet the particularity requirement, "a group

must be 'discrete and have definable boundaries-- it must not be

amorphous, overbroad, diffuse or subjective.'"                     Paiz-Morales, 795

F.3d at 244 (citing Matter of M-E-V-G-, 26 I. & N. Dec. 227, 239

(BIA 2014)).      Finally, social distinction refers to "whether those

with a common immutable characteristic are set apart, or distinct,

from other persons within the society in some significant way."

Matter of M-E-V-G-, 26 I. & N. Dec. at 238.                     In other words, a

socially distinct group is one that is recognized or perceived as

such within the petitioner's society.                 Id.    In 2014, the BIA held

that "married women in Guatemala who are unable to leave their

relationship" can constitute a cognizable particular social group


                                         -8-
that forms the basis of a claim for asylum or withholding of

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

Rivas-Durán's application for asylum was based on a social group

allegedly analogous to that of Matter of A-R-C-G-.1

           On   appeal,   Rivas-Durán    challenges    the   BIA's

determination that the IJ "clearly erred in determining that [she]

is a member of a particular social group [of] 'women in El Salvador

unable to leave a domestic relationship.'"    She argues that the

record compelled the IJ's finding that she fits within that

proposed social group.    She contends that she indeed was in a

domestic relationship, even though she did not live with Pedro.

She explains that her relationship with Pedro "was a domestic

relationship in that they had two children together, they both had

feelings for one another, Pedro expressed concern for her as the

mother of his children, [she] expressed jealousy at learning of



1  After this appeal was filed, the Attorney General overruled
Matter of A-R-C-G-, finding that "without performing the rigorous
analysis required by the [BIA's] precedents," it recognized "an
expansive new category of particular social groups based on private
violence." Matter of A-B, 27 I & N Dec. 316, 317, 319 (A.G. 2018).
None of the parties request remand for application of Matter of A-
B in the first instance. In any case, we need not remand, as the
BIA found that Rivas-Durán did not prove that she was a member of
her proposed social group, even when Matter of A-R-C-G- was still
in effect, and the intervening case would not change that result.
Here, we need not reach the question of whether Rivas-Durán's
proposed social group was cognizable, which is where Matter of A-
R-C-G would come into play.


                               -9-
his other relationships and still imagines being with him as

parents to their twins."        Furthermore, she stresses that "Pedro,

verbally and physically, from 2010 until 2015, expressed his belief

that [she] belonged to him, despite her expression of having 'ended

it' in 2010."      Finally, she contends that, even if she never lived

with Pedro, "further evidence of [her] inability to leave the

relationship are the unsuccessful attempts she made to end her

communication with Pedro."        Her arguments are unpersuasive.

             The BIA's holding that the IJ clearly erred is "a legal

determination that the evidence in the record was insufficient as

a   matter    of    law   to    support    the   IJ's    factual      finding."

Rosales Justo v. Sessions, 895 F.3d 154, 161 (1st Cir. 2018).

Thus, "because the BIA's holding that the IJ committed clear error

is legal in nature, our review of that conclusion is de novo."

Id. at 162.        We conduct de novo review "of the justifications

provided by the BIA for concluding that the IJ's finding . . . was

clearly erroneous."       Id.

             We agree with the BIA that "the record was insufficient

as a matter of law to support the IJ's factual finding" that Rivas-

Durán fit within her proposed social group.             Id. at 161.    The BIA

highlighted that Rivas-Durán and Pedro never lived together, were

not married or engaged, and that although her ex-partner harassed

her intermittently over various years, her relationship did not


                                    -10-
"have   the    hallmarks      of    a   domestic   relationship      required     to

establish membership in a particular social group."                    The record

supports this determination.

              First, Cortez-Cardona v. Sessions, 848 F.3d 519 (1st

Cir.    2017),    discredits       Rivas-Durán's     interpretation        of   what

qualifies as a "domestic" relationship.                In Cortez-Cardona, the

asylum applicant had been in an abusive relationship with a gang

member.     Id. at 520.          She maintained that she belonged to two

proposed       social      groups:       "Guatemalan     women    in       domestic

relationships who are unable to leave" and "women who are viewed

as   property     by    virtue     of   their   positions   within     a   domestic

relationship."         Id. at 523.      The BIA emphasized the definition of

"domestic," which included "devoted to home life or household

affairs," and found that Cortez-Cardona was not in a domestic

relationship where she had dated her ex-partner for various months

and after that refused his offer to "be his woman."                  Id. at 523.

We upheld the BIA's stance.             Id. at 523-24.

              Moreover, the BIA cited Vega-Ayala v. Lynch, 833 F.3d 34

(1st Cir. 2016), which also supports denial of Rivas-Durán's

petition.      Vega-Ayala argued that she had been persecuted because

of her membership in the particular social group of "Salvadoran

women in intimate relationships with partners who view them as

property."       Id. at 36.      The BIA found, and this court sustained,


                                         -11-
that Vega-Ayala failed to show that her proposed social group was

immutable, as she had not demonstrated an inability to leave her

partner.    Id. at 39.   This court distinguished Vega-Ayala's case

from Matter of A-R-C-G- in that she

        never lived with [her partner].     She saw him only
        twice a week and continued to attend a university.
        She chose to live in a home that he purchased in her
        name while he was in jail. Their relationship spanned
        only eighteen months, and he was incarcerated for
        twelve of those months."

Id.
            As in Vega-Ayala and Cortez-Cardona, and unlike the

applicant in Matter of A-R-C-G-, it is undisputed that Rivas-Durán

never lived with Pedro, but rather chose to live with her father.

Pedro never forced her to leave her father's house to stay with

him.    She was only in contact with Pedro when he sporadically

tried to contact her or visit her and the twins in her father's

home.      And   Rivas-Durán   has    provided   no   authority   for   her

proposition that she was in a domestic relationship merely because

she bore Pedro's children and they "had feelings for one another."2



2  Rivas-Durán contends that a woman's marital status should not
be "the determinative factor" in deciding her domestic violence
asylum claim. As was the case in Cortez-Cardona, 848 F.3d at 523,
the BIA here focused on whether the relationship was "domestic,"
not on whether Rivas-Durán was married.      Rivas-Durán does not
point to, and we did not find, anything in the record or the BIA's
decision that suggests that marriage was the determining factor in
the BIA's decision. Thus, we need not linger on this undeveloped
argument.


                                     -12-
Hence,   hers   was   not   a    "domestic"   relationship,   as   has   been

interpreted by the BIA and this court.3

                                III.   Conclusion

            For the reasons discussed above, we deny Rivas-Durán's

petition.    See Cortez-Cardona, 848 F.3d at 523 (finding that the

record supported the BIA's determination that petitioner "had not

demonstrated factually that she fit within her own proposed social

groups").




3  The same reasoning is dispositive of petitioner's claim for
withholding of removal.       As with asylum, an alien seeking
withholding of removal must show that any persecution is on account
of one of the protected grounds, including membership in a "legally
cognizable social group." Paiz-Morales, 795 F.3d at 245 (noting
that withholding of removal "requires a showing that an alien is
more likely than not to face persecution on account of a protected
ground," and that "[a] petitioner who cannot clear the lower hurdle
for asylum will necessarily fail to meet the higher bar for
withholding of removal").


                                       -13-
