     Case: 18-60731      Document: 00515297708         Page: 1    Date Filed: 02/04/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                 FILED
                                                                            February 4, 2020
                                      No. 18-60731
                                                                              Lyle W. Cayce
                                                                                   Clerk
FRANCISCA DEL CARMEN SERRANO-DE PORTILLO; DAYANA
ALEXANDRA PORTILLO-SERRANO; MELISSA MAGALY PORTILLO-
SERRANO,

                                                 Petitioners

v.

WILLIAM P. BARR, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A208 893 804
                               BIA No. A208 893 805
                               BIA No. A208 893 806


Before KING, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Francisca Del Carmen Serrano-de Portillo and her two children, Dayana
and Melissa Portillo-Serrano, are citizens of El Salvador. They seek review of
the order of the Board of Immigration Appeals (BIA) denying their motion for
reconsideration. The unsuccessful motion sought reconsideration of the BIA’s


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-60731

dismissal of their appeal from the Immigration Judge’s (IJ) denial of their
application for asylum, withholding of removal, and protection under the
Convention Against Torture.
      “We review the BIA’s denial of a motion for reconsideration under a
highly deferential abuse-of-discretion standard.” Gonzales-Veliz v. Barr, 938
F.3d 219, 226 (5th Cir. 2019). Under this standard, even an erroneous decision
will stand, “so long as it is not capricious, racially invidious, utterly without
foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach.” Zhao v. Gonzales, 404
F.3d 295, 304 (5th Cir. 2005) (quotations omitted).
      Petitioners are unable to meet this demanding standard for overturning
the denial of reconsideration. They first contend that the BIA abused its
discretion in concluding that the proposed particular social group of “El
Salvadoran women targeted by gang members to be gang girlfriends” was not
cognizable because it was partially defined by the harm suffered. But the BIA
explained that it did not matter that the IJ used a partially-defined-by-harm
standard instead of an exclusively-defined-by-harm standard. The “guiding
standard,” the BIA explained, is that “a ‘particular social group’ must exist
independently of the persecution suffered by the applicant for asylum.” Matter
of M-E-V-G-, 26 I. & N. Dec. 227, 236 n.11 (BIA 2014) (quoting Lukwago v.
Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003)). Applying that standard, the BIA
found that the proposed group was impermissibly circular and could not exist
independently of the harm the Petitioners asserted. In other words, members
of a group of El Salvadoran women “targeted by gangs” cannot be persecuted
“on account of” membership in that group until they are, indeed, targeted by
gangs, which loops the inquiry. Given that our court and others have relied on
this circularity problem in affirming the denial of asylum applications, the



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                                  No. 18-60731

BIA’s refusal to reconsider this analysis was not arbitrary or otherwise an
abuse of discretion. See, e.g., Gonzales-Veliz, 938 F.3d at 232 (holding that the
particular social group of “Honduran women unable to leave their relationship”
was “impermissibly defined in a circular manner”); Cornejo-Bonilla v. Barr,
2019 WL 6125180, at *1, *3 (5th Cir. Nov. 18, 2019) (per curiam) (affirming the
BIA’s denial of asylum based on membership in the particular social group of
“mothers and daughters unable to escape threats from gang members”);
Lukwago, 329 F.3d at 172–73 (affirming the BIA’s holding that petitioner was
not persecuted “on account of” membership in the particular social group of
“children from Northern Uganda who are abducted and enslaved by the LRA
and oppose their involuntary servitude”); see also Matter of A-B-, 27 I. & N.
Dec. 316, 334–35 (A.G. 2018).
      Petitioners next contend that their counsel sufficiently raised a proposed
alternative group of “El Salvadoran women” before the IJ and that the BIA
abused its discretion by failing to reconsider whether the IJ need consider that
group. See Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191–93 (BIA 2018).
But in immigration court the Petitioners consistently delineated the proposed
particular social group as “El Salvadoran women who have been targeted by
gang members to be gang girlfriends.” Although Petitioners did emphasize the
importance of “country of origin and gender” to that group, they never officially
proposed an alternative group of “El Salvadoran women.”                In asylum
proceedings, the petitioners bear the burden of “clearly indicat[ing] the exact
delineation of any particular social group(s) to which [they] claim[] to belong.”
Id. at 191 (quotation omitted). So while the IJ “should seek clarification” if an
applicant is unclear as to that “exact delineation,” id., the IJ is not required to
infer alternative groups from an applicant’s testimony, Del Cid-Lazo v. Barr,
784 F. App’x 894, 896 (5th Cir. 2019) (per curiam). Even if the BIA’s initial



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                                 No. 18-60731

ruling on this issue is debatable, taking one side of a close issue is not
irrational. Consequently, the BIA did not abuse its discretion in refusing to
reconsider its finding that the Petitioners failed to raise the alternative group
before the IJ.
      Finally, the Petitioners contend that the BIA improperly relied on its
recent A-B- decision in rejecting their proposed social groups. But we recently
explained that A-B- did not alter the legal burden for asylum claims. Gonzales-
Veliz, 938 F.3d at 235.      It merely “restated established principles and
overruled” a case that “deviated from those principles.” Id. Additionally, the
BIA did not abuse its discretion in analyzing only the circular-harm aspect of
Petitioners’ primary group; it had no need to analyze particularity and social
distinction because the asylum claim had already failed. See Flores-Gutierrez
v. Sessions, 690 F. App’x 196, 197 (5th Cir. 2017) (per curiam); A-B-, 27 I. & N.
Dec. at 340.
      Because the BIA did not abuse its discretion in denying the motion for
reconsideration, the petition for review is DENIED.




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