                                                             FILED
                                                 United States Court of Appeals
                  UNITED STATES COURT OF APPEALS         Tenth Circuit

                         FOR THE TENTH CIRCUIT                      August 6, 2018
                         _________________________________
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
    CLAUDIA BEATRIZ HERNANDEZ
    LOPEZ,

          Petitioner,

    v.                                             Nos. 17-9517 & 17-9531
                                                    (Petitions for Review)
    JEFFERSON B. SESSIONS III,
    United States Attorney General,

          Respondent.
                         _________________________________

                         ORDER AND JUDGMENT *
                         _________________________________

Before BACHARACH, McKAY, and BALDOCK, Circuit Judges.
                 _________________________________

         Ms. Claudia Beatriz Hernandez Lopez is a Salvadoran citizen who

has allegedly been tormented, raped, and threatened for rebuffing the

advances of a gang member, known as “Tiny.” To escape Tiny’s clutches,




*
     Oral argument would not materially aid our consideration of the
appeal. Thus, we have decided the appeal based on the briefs. See Fed. R.
App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
Ms. Lopez has tried four times to enter the United States. Her fourth try

resulted in these proceedings.

     They began when Ms. Lopez was caught crossing the United States

border. Because she was illegally in the United States, the government

began removal proceedings. She sought an order withholding removal.

     Removal can be withheld when it would endanger the lives of aliens

based on membership in particular social groups. 8 U.S.C. § 1231(b)(3)(A).

The Immigration Judge and Board of Immigration Appeals did not question

the danger facing Ms. Lopez if she were returned to El Salvador. The

question was instead whether this danger existed because of Ms. Lopez’s

membership in a particular social group. The Immigration Judge answered

“no,” and the Board of Immigration Appeals dismissed Ms. Lopez’s appeal

and motion for reconsideration. Ms. Lopez petitions for review of the

Board’s dismissals, and we deny the petitions.

1.   Ms. Lopez’s Alleged Social Groups

     Ms. Lopez has focused on three groups: (1) Salvadoran women

unable to leave domestic relationships, 1 (2) Salvadoran women who refuse

to be in domestic relationships with gang members, and (3) Salvadoran




1
      In the administrative proceedings, Ms. Lopez included “attempted
domestic relationships.” In our court, however, she has dropped this part of
her proposed group.

                                        2
women who refuse to be victims of gang members’ sexual predation. 2 The

Board found that Ms. Lopez was not a member of the first group and that

the two other groups were not socially distinct. We agree.

2.        The First Alleged Social Group: Salvadoran Women Unable to
          Leave Domestic Relationships

          The Board found that Ms. Lopez could not rely on the first group

(Salvadoran women unable to leave domestic relationships) because she

was never in a domestic relationship with Tiny. Ms. Lopez contends that

she was forced into a relationship with Tiny. But the Board could

reasonably

              find that Ms. Lopez had failed to prove eligibility for relief and

              decline to reconsider this finding.




2
      In the administrative proceedings, Ms. Lopez had also alleged the
existence of five other social groups:

     1.   Salvadoran women who fled future sexual violence by gang members,

     2.   female victims of domestic or sexual violence who fled further
          persecution in El Salvador,

     3.   Salvadoran women who were sexually victimized by gang members,

     4.   unaccompanied women returning to El Salvador after living in the
          United States, and

     5.   Salvadoran women lacking familial protection.


                                            3
      The Board did not err in finding that Ms. Lopez had failed to prove

eligibility for relief. In seeking withholding of removal, Ms. Lopez had to

prove eligibility for relief. 8 U.S.C. § 1231(b)(3)(C); see Rodas-Orellana

v. Holder, 780 F.3d 982, 986 (10th Cir. 2015) (“The applicant must

establish eligibility for . . . withholding of removal.”). For eligibility,

Ms. Lopez had to show that removal would create a clear probability of

persecution because of her membership in a particular social group. Pang

v. Holder, 665 F.3d 1226, 1233 (10th Cir. 2012). 3 The Board found that

Ms. Lopez was not a member of her proposed social group: Salvadoran

women unable to leave domestic relationships.

      We review this finding under the substantial-evidence standard.

Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir. 2012). Under

this standard, the evidence is considered substantial unless every

reasonable adjudicator would be compelled to reach a different finding. Id.

      In our view, substantial evidence supported the Board’s finding that

Ms. Lopez and Tiny had never been in a domestic relationship. Ms. Lopez

rejected Tiny’s advances, hid in her house for months to avoid Tiny, and

quit her job to isolate herself from Tiny. Focusing on these steps to evade




3
      Ms. Lopez could also have satisfied her burden by tying the threat of
persecution to her race, religion, nationality, or political opinion. Pang,
665 F.3d at 1233. But she did not allege any of these reasons.
                                           4
Tiny, the Board found that he and Ms. Lopez had never been in a domestic

relationship.

      On appeal, Ms. Lopez points to evidence of

           her rape as an initiation into a coerced relationship with Tiny
            and other gang members,

           Tiny’s statements that Ms. Lopez would be his, and

           descriptions of women as “girlfriends of the gang.”

From this evidence, the Board could have reasonably inferred that

Ms. Lopez had been in an involuntary relationship with Tiny. But such an

inference was not compelled. And even with this inference, the Board

could have reasonably found that Ms. Lopez’s forced relationship had not

constituted a true “domestic relationship.” A contrary finding could

suggest that every female rape victim of a gang member was in a domestic

relationship with the rapist, and the Board could reasonably balk at

equating rape and a domestic relationship. Cf. Cardona v. Sessions, 848

F.3d 519, 523–24 (1st Cir. 2017) (holding that the evidence supported the

Board’s finding that a Guatemalan woman had never been in a “domestic

relationship” with a male individual even though the two had dated for

several months). Thus, the Board had substantial evidence to find that

Ms. Lopez had not been in a domestic relationship with Tiny.

      The Board acted within its discretion in dismissing the motion for

reconsideration. Ms. Lopez contends that the Board erred in dismissing not

                                         5
only the appeal from the Immigration Judge’s decision but also the motion

for reconsideration. We conclude that the Board did not err in dismissing

the motion for reconsideration.

     In reviewing the denial of reconsideration, we apply the

abuse-of-discretion standard. Rodas-Orellana v. Holder, 780 F.3d 982, 990

(10th Cir. 2015). In evaluating whether the Board abused its discretion, we

consider its reasons for dismissing the motion for reconsideration. The

Board stated that Ms. Lopez

          had essentially repeated the same arguments that she had made
           earlier and

          had not shown any errors in the Board’s decision.

     Ms. Lopez contends that the Board overlooked its prior failure to

address her allegation of a nonconsensual relationship with Tiny. We

disagree. In dismissing the appeal, the Board noted that Ms. Lopez had

presented evidence of identification as Tiny’s girlfriend and inability to

leave “a relationship forced on her.” Admin. Record at 103, No. 17-9531.

Notwithstanding this evidence, the Board rejected Ms. Lopez’s challenge

to the Immigration Judge’s finding of “insufficient indicia of a domestic or

comparable type of relationship.” Id.

     In seeking reconsideration, Ms. Lopez acknowledged that the Board

had found “insufficient indicia” of a relationship with Tiny. Id. at 94–95.

She contested this finding, repeating her argument that she had been in a


                                         6
nonconsensual relationship with Tiny. Id. at 94–96. The Board had

acknowledged this argument when it dismissed the appeal and had no need

to repeat its reasons when dismissing Ms. Lopez’s motion for

reconsideration. As a result, we conclude that the Board acted within its

discretion in dismissing the motion for reconsideration.

3.   The Second and Third Alleged Social Groups: Salvadoran Women
     Who Refuse to Be in Domestic Relationships with Gang Members
     or to Be Victimized by Their Sexual Predation

     Ms. Lopez also identifies two other social groups of Salvadoran

women: (1) those who refuse to participate in domestic relationships with

gang members and (2) those who refuse to be victimized by gang members’

sexual predation. The Board concluded that these two groups were not

perceived as socially distinct in El Salvador. We agree.

     In reviewing the Board’s initial decision, we engage in de novo

review because the issue involves a matter of law. See Cruz-Funez v.

Gonzales, 406 F.3d 1187, 1191 (10th Cir. 2005) (“What constitutes a

particular social group is a pure question of law that we review de novo.”).

In conducting de novo review, we consider whether the underlying facts

support characterization of Ms. Lopez’s proposed groups as particular

social groups under 8 U.S.C. § 1231(b)(3)(A). This matter of law turns on

the evidence presented in the administrative proceedings.

     We consider this evidence under the overarching test of what

constitutes a particular social group. To qualify, a group must be particular

                                         7
and socially distinct. Rodas-Orellana v. Holder, 780 F.3d 982, 990–91

(10th Cir. 2015). A group is considered particular when the boundaries are

well defined. Rivera-Barrientos v. Holder, 666 F.3d 641, 648–49 (10th Cir.

2012). A group is considered socially distinct only if the society in the

alien’s home country

           would consider individuals with the pertinent trait a distinct
            social group and

           would be able to identify someone as a member of the group.

Id. at 650–51; see also Matter of A-B-, 27 I. & N. Dec. 316, 336 (A.G. June

11, 2018) (“[T]he key thread running through the particular social group

framework is that social groups must be classes recognizable by society at

large.”). In addition, the “particular social group must ‘exist

independently’ of the harm asserted in an application for . . . statutory

withholding of removal.” Matter of A-B-, 27 I. & N. Dec. 316, 334 (A.G.

June 11, 2018) (emphasis in original) (citations omitted).

      In applying this test, we have rejected another alien’s proposed group

of young women who have resisted gang recruitment in El Salvador,

reasoning that such individuals are in substantially the same situation as

anyone who has crossed a gang or is a perceived threat to the gang’s

interests. Id. at 653. The same is true of the two groups proposed here.

      Ms. Lopez points to evidence showing the existence of

           Salvadoran programs supporting female victims of sexual
            violence,
                                          8
           widespread sexual violence against women in El Salvador, and

           widespread sexual violence by Salvadoran gang members.

But Ms. Lopez has not proposed a group consisting of victims of sexual

violence; she has proposed groups defined by a refusal to participate in

domestic relationships with gang members or to succumb to their sexual

predation. Although her evidence shows widespread sexual violence in

El Salvador, that violence is not limited to women who resist gang

members’ domestic relationships. See Umaña-Ramos v. Holder, 724 F.3d

667, 674 (6th Cir. 2013) (holding that a group of young Salvadorans

threatened for refusal to join a gang lacks social visibility because gang

violence in El Salvador affects all segments of the population, not just

those refusing to join a gang); see also Rodas-Orellana v. Holder, 780 F.3d

982, 991–93 (10th Cir. 2015) (stating that a group—Salvadoran males

threatened and actively recruited by gangs who resist joining because they

oppose the gangs—is not socially distinct). And Ms. Lopez did not present

any evidence that Salvadorans view women in her two proposed groups as

discrete societal groups. 4 Thus, we conclude that the two proposed groups

lack the social distinction required for a “particular social group.” Cf.


4
      Ms. Lopez did present evidence that referred to “girlfriends of the
gangs.” But her evidence did not restrict this term to females refusing to
enter domestic relationships with gang members or resisting sexual
violence perpetrated by gang members.

                                         9
Vega-Ayala v. Lynch, 833 F.3d 34, 39–40 (1st Cir. 2016) (stating that

evidence of widespread domestic violence in El Salvador does not support

a social group involving “Salvadoran women in intimate relationships with

partners who view them as property”). 5

4.    The Harvard Clinic’s Motion for Leave to Appear as Amicus
      Curiae

      The Harvard Immigration and Refugee Clinical Program requests

leave to appear as an amicus curiae. As an amicus, the Harvard Clinic

would characterize Ms. Lopez’s gender as the particular social group

causing her persecution. We deny the request for amicus status.

5.    Ms. Lopez’s Request for Leave to Proceed In Forma Pauperis

      Ms. Lopez requests leave to appear in forma pauperis. We grant this

request.

                                     Entered for the Court



                                     Robert E. Bacharach
                                     Circuit Judge




5
      We express no opinion on whether stronger evidence of social
distinction could support recognition of the two proposed groups as
“particular social groups.”

                                          10
Hernandez Lopez v. Sessions III, Nos. 17-9517 & 17-9531

BACHARACH, J., concurring.

     The Harvard Clinic moved for leave to file an amicus brief, seeking

to argue that Ms. Lopez’s gender constituted the particular social group

causing her persecution. The majority correctly denies this motion.

     The dissent would grant the Clinic’s motion on the grounds that its

argument is important and lies at the heart of Ms. Lopez’s administrative

claims. 1 In my view, however, we would lack jurisdiction to consider the

Harvard Clinic’s argument. Our jurisdiction is confined to claims

exhausted in the administrative proceedings. Torres de la Cruz v. Maurer,

483 F.3d 1013, 1017 (10th Cir. 2007). And those claims did not include

persecution based on Ms. Lopez’s gender.

     In proceedings before the Immigration Judge, Ms. Lopez alleged

membership in eight different “particular social groups.” When appealing

to the Board, she narrowed her focus to three of these groups. But in her

arguments to either the Immigration Judge or the Board, she never

identified her gender as a particular social group. Thus, the Harvard



1
      Even when we have jurisdiction to consider an amicus’s new
arguments, we generally decline to exercise that jurisdiction when the
arguments are not advanced by a party. EagleMed LLC v. Cox, 868 F.3d
893, 902 (10th Cir. 2017); see also Tyler v. City of Manhattan, 118 F.3d
1400, 1404 (10th Cir. 1997) (stating that when an amicus curiae presents
arguments not raised by a party, we should consider the arguments only in
exceptional circumstances).
Clinic’s argument is unexhausted. See Cardona v. Sessions, 848 F.3d 519,

524 n.6 (1st Cir. 2017) (holding that the petitioner failed to exhaust her

claim based on a proposed particular social group that differed from the

proposed groups raised before the Board); Kanagu v. Holder, 781 F.3d 912,

917 (8th Cir. 2015) (holding that the court lacked jurisdiction to consider a

proposed social group where the petitioner had urged a broader formulation

of the group to the Board of Immigration Appeals); Duarte-Salagosa v.

Holder, 775 F.3d 841, 845 (7th Cir. 2014) (holding that the petitioner had

failed to exhaust a claim regarding a proposed particular social group); see

also Torres-Rivera v. Sessions, 706 F. App’x 482, 485 (10th Cir. 2017)

(unpublished) (holding that the court lacked jurisdiction to consider a

proposed particular social group that the petitioner had not identified in his

appeal to the Board).

      The dissent contends that the Harvard Clinic’s argument lies at the

heart of Ms. Lopez’s administrative claims. But that is not enough;

exhaustion required Ms. Lopez to present the Board of Immigration

Appeals with “the same specific legal theory” before she can present it in

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

(emphasis in original). As a result, we can consider an issue exhausted

only if Ms. Lopez had presented the claim to the Board of Immigration

Appeals “in the manner it is now addressed before us.” Torres de la Cruz

v. Maurer, 483 F.3d 1013, 1018 (10th Cir. 2007). Similarity is not enough,

                                      2
and we would lack jurisdiction over the Harvard Clinic’s argument

regardless of how close the Harvard Clinic’s contention is to the theories

that Ms. Lopez presented in the Board of Immigration Appeals.

      Unlike the dissent, the Harvard Clinic does not question Ms. Lopez’s

failure to argue in the administrative proceedings that she had been

persecuted on account of her gender. Instead, the Clinic contends that we

can consider its argument because the Board necessarily decided that

Ms. Lopez had not been persecuted on account of her gender. I assume that

this contention is based on our narrow exception to the exhaustion

requirement. See Sidabutar v. Gonzales, 503 F.3d 1116, 1119–22 (10th Cir.

2007). Under this exception, we have jurisdiction over arguments when the

Board decides them sua sponte. Id. But this exception is limited. See

Garcia-Carbajal, 625 F.3d at 1235 (“Sidabutar’s ‘sua sponte exhaustion’

rule . . . is a narrow one.”). This exception applies only if the Board of

Immigration Appeals “(1) clearly identif[ies] a claim, issue, or argument

not presented by the petitioner; (2) exercise[s] its discretion to entertain

that matter; and (3) explicitly decide[s] that matter in a full explanatory

opinion or substantive discussion.” Id. Satisfaction of all three

requirements is necessary to trigger the exception. Id.

      The first and third requirements were not met. Even if the Board had

necessarily considered gender as a particular social group, this

consideration was not explicit and the Board did not clearly identify an

                                       3
issue involving Ms. Lopez’s gender as a particular social group. Thus, the

first and third requirements would not have been satisfied even if the

Board had necessarily rejected the Harvard Clinic’s proposed argument.

                                      *

      Because the Harvard Clinic’s new argument is unexhausted and was

not decided sua sponte, we would lack jurisdiction to address gender as a

particular social group. As a result, I agree with the majority’s denial of

leave to file an amicus brief.




                                      4
Hernandez Lopez v. Sessions, Nos. 17-9517 & 17-9531

McKAY, dissenting.

      I respectfully dissent. Like many other types of immigration proceedings,

removal proceedings present “extremely serious problems” and “involve

tremendously high stakes for the individual.” Knauer v. United States, 328 U.S.

654, 659 (1946). As the Supreme Court has repeatedly recognized, deportation

may result “in loss of both property and life, or of all that makes life worth

living.” Ng Fung Ho v. White, 259 U.S. 276, 284 (1922); see also, e.g., Bridges

v. Wixon, 326 U.S. 135, 147 (1945). The record in this case certainly suggests

that Ms. Hernandez Lopez risks such consequences if she is removed back to her

native country. “[W]here the fate of a human being is at stake,” Knauer, 328 U.S.

at 659, I believe we must be especially cautious to avoid relying on procedural

grounds to evade consideration of the serious problems before us.

      While it is true that Ms. Hernandez Lopez’s brief did not raise the precise

argument that the Harvard Immigration and Refugee Clinical Program raises in its

proposed amicus brief, the underlying basis of all her arguments to the Board of

Immigrations Appeals and to this court has been her status as a woman and the

distinct vulnerability she faces in her home country because of her gender. Thus,

the heart of her claim remains the same even though the HIRC framed the

argument differently. Given the “tremendously high stakes” this case holds for

Ms. Hernandez Lopez’s safety and life, I believe the interests of justice call for

this court to exercise its discretion to consider the arguments the HIRC has made
on her behalf. Cf. Singleton v. Wulff, 428 U.S. 106, 121 (1976) (holding that “a

federal appellate court is justified in resolving an issue not passed on below . . .

where injustice might otherwise result”) (internal quotation marks and citations

omitted). I would accordingly grant the HIRC’s motion to file a brief as amicus

curiae.

      I would then hold, in accordance with the HIRC’s persuasive brief and the

authorities cited therein, that (1) Ms. Hernandez Lopez’s status as a woman is

sufficient to establish her membership in a particular social group of persons who

share a common immutable characteristic, and (2) she has been “persecuted

because of the inferior status accorded to [her] gender in [her] home society.”

Fornah (FC) v. Sec’y of State for Home Dep’t, [2006] UKHL 46, para. 86. As we

noted in Niang v. Gonzales, 422 F.3d 1187, 1199 (10th Cir. 2005), some may

contend that gender should not be used as a group-defining characteristic, since

“[o]ne may be reluctant to permit . . . half a nation’s residents to obtain asylum on

the ground that women are persecuted there.” However, “the focus with respect

to such claims should be not on whether either gender constitutes a social group

(which both certainly do) but on whether the members of that group are

sufficiently likely to be persecuted that one could say that they are persecuted ‘on

account of’ their membership.” Id. at 1199–1200 (quoting 8 U.S.C. §

1101(a)42(A)). In many cases, “only certain women,” like “those who protest

inequities” or those who belong to a particular tribe, will “suffer harm severe

                                         -2-
enough to be considered persecution.” Id. at 1200. In Niang, we held that the

petitioner had identified a social group based on “gender plus tribal membership,”

and we did not address whether gender alone would have sufficed under the

particular circumstances of that case. Id. However, our holding in Niang

certainly left open the possibility that gender alone could be sufficient to satisfy

the immigration standard in a particular case, where there is evidence that women

are persecuted “on account of” their membership in this particular, albeit large,

social group.

      The record in this case strongly supports the conclusion that women in El

Salvador face such persecution. See, e.g., R. at 39 (“Increasing numbers of

women and girls are fleeing El Salvador, Guatemala and Honduras amid mounting

evidence that criminal gangs are systematically targeting adolescent girls as

sexual slaves.”); R. at 40 (According to the UN’s special rapporteur for

contemporary slavery, “‘Gangs reflect the deeply patriarchal power structures that

prevail in this region,’ [and] ‘It’s a problem affecting millions of women and

girls.’”); R. at 45 (“According to an Associated Press investigation, members of

[certain criminal] gangs in El Salvador typically subject their girlfriends to gang

rape and even killings, in addition to kidnapping and abusing women and girls

who are not affiliated with the group.”); R. at 46 (“As illustrated by the AP,

violence against women has reached endemic proportions in El Salvador. In

2012, the country had the highest rate of femicide in the world, with many of the

                                          -3-
murders attributed to gang members.”); R. at 357 (“‘Any girl or woman who gets

near this world sooner or later will be collectively abused by the gang.’”); R. at

357 (“‘All of the gang members victimize women.’”); R. at 359 (“The unequal

treatment of women is seen in gang initiation practices.”); R. at 362 (“The

violence gripping El Salvador affects women in a different way than men. . . .

[G]ang and security force violence has exacerbated a broader, long-standing

acceptance of violence against women.”); R. at 362 (“The prevalence of sexual

violence against women in El Salvador is . . . staggering.”); R. at 363 (“The

targeted killing of women based on their gender, known as femicide, is also on

the rise.”); see also Angoucheva v. INS, 106 F.3d 781, 792 n.2 (7th Cir. 1997)

(Rovner, J., concurring) (“Rape and sexual assault are generally understood today

not as sexual acts borne of attraction, but as acts of violent aggression that stem

from the perpetrator’s power over and desire to harm his victim.”).

      Ms. Hernandez Lopez is a member of a particular and socially distinct

social group defined by the immutable characteristic of gender. She has presented

ample evidence that she has faced and continues to face a severe threat of

persecution on account of her membership in this social group. Her removal

would place her at a very serious risk of losing “all that makes life worth living,”

if not life itself. Ng Fung Ho, 259 U.S. at 284. Therefore, in the interests of

justice, I would consider the arguments raised in HIRC’s amicus brief and grant

relief to Ms. Hernandez Lopez on that basis.

                                         -4-
