          United States Court of Appeals
                     For the First Circuit


No. 18-2100

               JACELYS MIGUELINA DE PENA-PANIAGUA,

                           Petitioner,

                               v.

               WILLIAM P. BARR, Attorney General,

                           Respondent.


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


                             Before

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


     Jonathan Ng, with whom Robert F. Ley and Law Offices of
Johanna Herrero were on brief, for petitioner.
     Eunice Lee, with whom Blaine Bookey, Anne Dutton, and Karen
Musalo were on brief, for Center for Gender and Refugee Studies,
amicus curiae.
     Sheila I. Velez Martinez, Linda Hamilton, Nahla Kamaluddin,
and University of Pittsburgh School of Law Immigration Law Clinic,
on brief for Catholic Legal Immigration Network, Inc., Hebrew
Immigrant Aid Society, Leadership Conference of Women Religious,
National Council of Jewish Women, and Unitarian Universalist
Service Committee, amici curiae.
     Anjum Gupta and Mary Holper, on brief for Immigration Law
Professors, amicus curiae.
     John Willshire Carrera, Zachary A. Albun, Nancy Kelly,
Sabrineh Ardalan, Deborah Anker, Steven H. Schulman, Martine E.
Cicconi, and Akin Gump Strauss Hauer & Feld LLP, on brief for
Harvard Immigration and Refugee Clinical Program, amicus curiae.
     Richard W. Mark, Amer S. Ahmed, Indraneel Sur, Timothy Sun,
Grace E. Hart, Chris Jones, and Gibson, Dunn & Crutcher LLP, on
brief for Twenty-Nine Former Immigration Judges and Members of the
Board of Immigration Appeals, amicus curiae.
     Christina P. Greer, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, with whom Joseph H. Hunt,
Assistant Attorney General, Civil Division, U.S. Department of
Justice, and Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, were on brief, for respondent.


                         April 24, 2020
            KAYATTA, Circuit Judge.        In this case we confront the

perplexing question of whether the requirements for establishing

membership in a particular social group in support of a request

for asylum or withholding of removal categorically reject any group

defined in material part as women "unable to leave" a domestic

relationship.     For the following reasons, we hold that there is no

such categorical rule precluding any and all applicants from

successfully relying upon such a group in support of a request for

asylum or withholding of removal.

                                     I.

                                     A.

            Petitioner Jacelys Miguelina De Pena-Paniagua (De Pena),

a native and citizen of the Dominican Republic, entered the United

States without inspection in late 2013.           Conceding removability,

she   sought    asylum,   withholding      of   removal    under    8   U.S.C.

§ 1231(b)(3), and protection under Article 3 of the United Nations

Convention Against Torture (CAT).           De Pena alleges that Hanlet

Rafael Arias Melo (Arias), her former domestic partner and the

father of her son, abused her in the past, will abuse her in the

future, and will remain undeterred by Dominican law enforcement

authorities, who have been nonresponsive to her requests for help.

            According to De Pena, her mistreatment by Arias began

with "verbal abuse and controlling behavior."               Once she became

pregnant,   the   abuse   worsened    in   form   and     degree.       In   her


                                 - 3 -
declaration, De Pena stated that Arias raped her five times during

her pregnancy in 2006.

          After one incident in which Arias "threw [her] against

the wall," De Pena became afraid that she would miscarry and moved

back to her parents' house.        She testified that she and Arias

stopped living together in November 2006 and finally broke off

their relationship sometime after their son, Ronny, was born on

December 4, 2006.

          Arias   made   no   effort   to    force   De   Pena   to   take   up

residence with him again.      Instead, almost immediately following

Ronny's birth, Arias turned his efforts towards securing control

of the child.     On December 12, 2006, Arias came to De Pena's

parents' home and threatened to kill De Pena if she refused to

turn over their son.     He pulled her hair and tried to strangle

her. De Pena fell down with the baby in her arms, and her C-section

scar opened.    De Pena's neighbors took her to the hospital.                On

December 14, 2006, she reported this attack to the national police

and a local domestic violence unit.         The police report labeled her

complaint as an "attempted homicide" and "death threat," noting

that De Pena complained that Arias "abuse[d her] psychologically

and verbally and want[ed] to take [their] son away by use of

force," threatened to kill her if she did not turn Ronny over, and

tried to "force [her] to sign . . . false judicial documents"

pertaining to Ronny's custody.         Arias was never arrested, and


                                 - 4 -
De Pena testified that the police "didn't do anything" to protect

her.

          From 2007 to 2013, De Pena continued to live with Ronny

at her parents' house, apart from Arias.   According to her, Arias

continued to turn up frequently at the parents' house to harass

and threaten her, demanding that she hand over Ronny.   Arias also

refused to financially support Ronny's medical care.    There was a

period of relative calm when Arias seemed to be "over the anger,"

but, De Pena claimed, "he became really furious" when she started

seeing another man.     On January 10, 2013, Arias came to her

parents' house and again demanded that she give Ronny to him.    He

threw a telephone at her head, pulled her hair, hit her, and

started to strangle her.   De Pena testified that he "tried to kill

[her]."   Ronny ran out of the room screaming, and the neighbors

separated Arias and De Pena and brought De Pena to the hospital.

Medical records from the hospital visit indicated that she had

"bruised trauma of the face, chest, and right arm."        De Pena

reported this attack to the local police, who labeled the incident,

"Death Threat & Attempted Homicide."   Arias was not arrested.

          In April 2013, De Pena left the Dominican Republic for

Panama, leaving Ronny behind with her parents.       Shortly after

arriving in Panama, De Pena realized she was pregnant with her

second child.   In September of that year, Arias called De Pena's




                               - 5 -
mother and told her that he had figured out where De Pena was

living in Panama.

            So, De Pena testified, she fled to the United States.

She entered Laredo, Texas, on or around December 18, 2013, where

she was apprehended by Customs and Border Patrol.                  Her daughter

was born the next day.

            De Pena retained the services of counsel who secured her

release from Department of Homeland Security custody. She received

a Notice to Appear for removal proceedings on December 19, 2013,

and   admitted      to   the     allegations     against       her,    conceding

removability.       On   March    20,    2014,      she    submitted   an    I-589

Application,     complying     with     the   applicable      one-year      filing

deadline.      On   December 15,      2015,   she    filed    a   revised    I-589

Application, which was accepted as timely.                The immigration court

in Boston heard the merits of her I-589 application for asylum,

withholding or removal, and CAT protection on September 11, 2017.

                                        B.

            De Pena's merits hearing did not go well for her.                  The

immigration judge (IJ) found her testimony inconsistent in several

respects.    De Pena initially denied having a Facebook page but

then admitted that she does maintain a public Facebook profile on

which she posts pictures of both her children.                     The IJ also

underlined the apparent discrepancy between De Pena's testimony

about her son and her later behavior.               Recall that in regard to


                                      - 6 -
both the 2006 and 2013 assaults that she reported to the police,

De Pena testified that Arias's threats and violence were aimed at

obtaining custody of Ronny, rather than securing her return to

Arias's house.      Yet, when De Pena fled the country, she left her

son behind with her parents in the same neighborhood as Arias.                      No

evidence was submitted that Arias attempted to assert control over

the child in De Pena's absence either.            The IJ further noted that

the police reports De Pena submitted in support of her application

did not indicate, as she testified on direct, that Arias attempted

to strangle her.

            These discrepancies do not bear directly on the question

of whether Arias severely abused De Pena.                Nor did the IJ find

De Pena not credible generally.            But the cited discrepancies do

seem to have contributed to the IJ's doubts about her reliability,

especially   as    it   applies   to    her    claim    of    a   fear   of     future

persecution.      See Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir. 2007)

("Some of these inconsistencies, in isolation, may seem like small

potatoes.    What counts, however, is that their cumulative effect

is great."); see also Legal v. Lynch, 838 F.3d 51, 54 (1st Cir.

2016) ("[A] factfinder may base a credibility determination on

inconsistencies . . . 'without           regard    to        whether     [any     such

inconsistency] goes to the heart of the applicant's claim.'"

(quoting 8 U.S.C. § 1158(b)(1)(B)(iii))).




                                       - 7 -
              The IJ ruled against De Pena for several reasons. First,

after noting that "[p]ersecution is an extreme concept requiring

more   than    a   few   isolated   incidents    of   verbal   harassment   or

intimidation," the IJ stated that De Pena "has only testified to

two isolated incidents" of abuse, describing the incidents as

"being pushed up against a wall and . . . having been supposedly

choked."      In so stating, the IJ made no mention of De Pena's claim

to have been repeatedly raped prior to 2006.            The IJ also did not

mention De Pena's allegation that Arias repeatedly harassed and

threatened her and her parents after she stopped living with him.

Second, the IJ declared that there is no "credible evidence

presented that the [Dominican] government is unable or unwilling

to intervene or protect [De Pena]," stating that "the police have

indicated that they would investigate the incidents . . . and the

police further took police reports."            Third, because she left her

son in the Dominican Republic where Arias can reach him and keeps

a Facebook page that would allow Arias to find her, the IJ found

that she lacked either subjective or objective fear of persecution.

Fourth, the IJ found that "the particular social group that is

claimed by [De Pena] does not meet the requirements under the law."

The IJ did not address whether De Pena, who had moved out of her

home with Arias in 2006, actually belonged to any of the groups in

which she claimed membership, and the government did not contend

that she did not.


                                     - 8 -
            De Pena appealed to the Board of Immigration Appeals

(BIA).     The BIA found "no legal error or clear factual error in

the Immigration Judge's determination that [De Pena] has not

established past persecution or a well-founded fear of persecution

on account of one of the five enumerated grounds under the Act,"

citing generally to the IJ's explanation of the grounds for his

decision.       It added, however, that "[e]ven if [De Pena] had

suffered harm rising to the level of past persecution," De Pena's

proposed particular social groups are analogous to those in Matter

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

understood to have been "overruled" by the Attorney General in

Matter of A-B, 27 I. & N. Dec. 316, 319 (A.G. 2018).           The BIA read

A-B as "determin[ing] that the particular social group of 'married

women in Guatemala who are unable to leave their relationship' did

not meet the legal standards to qualify as a valid particular

social group."

            At first blush, the BIA opinion does not make clear

whether the Board adopted all of the reasons given by the IJ for

refusing relief, or whether it found it sufficient to rest its

ruling only on the claimed inadequacy of the tendered social

groups.1     A footnote added at the end of the ruling provides


      1The BIA did, however, clearly determine that De Pena had
waived her CAT claim.    De Pena does not meaningfully challenge
this decision on appeal before this court. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in


                                     - 9 -
guidance.   It states in relevant part:    "In light of our decision,

we find it unnecessary to address any of the remaining issues

raised by [De Pena] on appeal." Given this guidance, we are unable

to presume that the BIA made any rulings beyond the social group

ruling which, if correct, would indeed render the additional issues

of no moment.2   Reading the decision so finds further support in

the BIA's reliance on A-B, which prominently states:        "[I]f an

alien's asylum application is fatally flawed in one respect, . . .

the Board need not examine the remaining elements of the asylum

claim."   27 I. & N. Dec. at 340.     We therefore train our analysis

on the social group ruling.

                                II.

            To prevail on a claim for asylum, or withholding of

removal, a petitioner need prove that she is unable or unwilling

to return or to avail herself of the protection of her own country

"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).

De Pena claims persecution on account of her membership in a

particular social group, prompting the contest in this case over


a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
     2 We thus do not address whether there is merit to the
arguments that De Pena raises about problems with the IJ's rulings
on those grounds.


                              - 10 -
whether the several groups in which she claims membership qualify

as "a particular social group."   Those groups, as defined by her

before the BIA and on appeal, all share the common definitional

element of including Dominican women unable to leave (or "escape")

a relationship with the man who abuses them.    The groups are as

follows:   "Dominican women abused and viewed as property by their

romantic partners, who are unable to escape or seek protection, by

virtue of their gender"; "Dominican women viewed as property and

unable to leave a domestic relationship"; and "Dominican women

unable to leave a domestic relationship."

           To affirm the IJ's conclusion that De Pena's proposed

social groups "do[] not meet the requirements under the law," the

BIA relied exclusively on the Attorney General's decision in A-B,

27 I. & N. Dec. at 319.      The BIA construed that opinion as

"determin[ing] that the particular social group of 'married women

in Guatemala who are unable to leave their relationship' did not

meet the legal standards to qualify as a valued particular social

group."    Based on that reading of A-B, the BIA concluded that

De Pena "has not presented a cognizable particular social group."

           That conclusion poses two questions to be resolved on

this appeal: First, does A-B categorically reject any social group

defined in material part by its members' "inability to leave" the

relationships in which they are being persecuted; and, second, if

so, is A-B to that extent consistent with the law?


                              - 11 -
            As to the first question, A-B points to three reasons

for rejecting groups defined in part by their members' inability

leave   a   relationship:         (1) "Social      groups     defined     by   their

vulnerability    to     private    criminal       activity     likely   lack    the

particularity    required . . . ."           Id.   at   335;    (2) "[T]here     is

significant room for doubt that Guatemalan society views these

women . . . as members of a distinct group in society . . . ."

Id. at 336; and (3) Because the "inability 'to leave'" is "created

by   harm   or   threatened       harm,"    the    group     definition    becomes

improperly circular as it "moots the need to establish actual

persecution,"     id.     at      335,     notwithstanding       the      statutory

requirement that an asylum applicant show that she has suffered

persecution "on account of" her membership in a particular social

group, 8 U.S.C. § 1101(a)(42)(A).             "[A] particular social group

must 'exist independently' of the harm asserted in an application

for asylum or statutory withholding of removal."                       Id. at 334

(emphasis in original) (quoting Matter of M-E-V-G, 26 I. & N. Dec.

227, 236 n.11 (BIA 2014)).

            A-B quite clearly does not hold out the first two stated

reasons as categorically and necessarily applicable to render

inadequate in every case a group defined in part by its members'

inability to leave the relationship that results in their abuse.

Indeed, as to particularity, A-B holds only that such a group

"likely" lacks the required particularity.              Id. at 335.       And as to


                                     - 12 -
social distinctiveness, A-B only voices "significant room for

doubt that Guatemalan society views these women . . . as members

of a distinct group."     Id. at 336.      Neither of these observations

on its face claims to provide any justification for categorically

rejecting   such   a   group   without    further   consideration   of    the

particulars of a given case.

            Less clear is the full reach and meaning of A-B's

objection to "unable to leave" groups as improperly defined by the

persecution of their members.            Id. at 335. ("[I]f a group is

defined by the persecution of its members, then the definition of

the group moots the need to establish actual persecution").              This

objection to the claimed circularity of the group definition can

be read as categorial, as the opinion adopts a quote from Rreshpja

v. Gonzales, stating that "[t]he individuals in the group must

share a narrowing characteristic other than their risk of being

persecuted."   Id. (alteration in original) (quoting Rreshpja, 420

F.3d 551, 556 (6th Cir. 2005)).           And the Attorney General also

critiqued the BIA holding in A-R-C-G not because it failed to

consider whether the "unable to leave" group suffered from such

circularity, but rather because it "never considered that 'married

women in Guatemala who are unable to leave their relationship'"

was a group "defined to consist of women in Guatemala who are

victims of domestic abuse," where their        "inability 'to leave' was

created by harm or threatened harm."         Id. (emphasis added).


                                  - 13 -
            It is nevertheless not entirely clear that A-B should be

read as categorical even on the matter of circularity.                     After all,

A-B remanded the case for further consideration, rather than

decreeing rejection of the application.                      But given the BIA's

decision in this case to declare De Pena's proffered groups

inadequate without any discussion of her particular circumstances

or evidence of attitudes and views in the Dominican Republic, it

seems clear that the BIA in this case must have viewed the

circularity objection as categorical; i.e., that any group defined

by   its   members'     inability      to    leave     a    relationship     must     be

insufficient. Indeed, we see no other way to reconcile the precise

language in A-B with the holding in this case.

            So   that    brings   us    to     our   second     question.       Is    it

reasonable to read the law as supporting such a categorical

rejection of any group defined by its members' inability to leave

relationships with their abusers?              A-B itself cites only fiat to

support its affirmative answer to this question.                     It presumes that

the inability to leave is always caused by the persecution from

which the noncitizen seeks haven, and it presumes that no type of

persecution      can   do   double     duty,    both       helping    to   define    the

particular social group and providing the harm blocking the pathway

to that haven.         These presumptions strike us as arbitrary on at

least two grounds.




                                       - 14 -
           First, a woman's inability to leave a relationship may

be   the   product   of    forces    other    than   physical   abuse.    In

Perez-Rabanales v. Sessions, we distinguished a putative group of

women defined by their attempt "to escape systemic and severe

violence" from a group defined as "married women in Guatemala who

are unable to leave their relationship," describing only the former

as defined by the persecution of its members.            881 F.3d 61, 67

(1st Cir. 2018).     In fact, the combination of several cultural,

societal, religious, economic, or other factors may in some cases

explain why a woman is unable to leave a relationship.                    See

A-R-C-G, 26 I. & N. Dec. at 393 (explaining that "a married woman's

inability to leave the relationship may be informed by societal

expectations about gender and subordination, as well as legal

constraints    regarding     divorce    and    separation");    see      also

Paiz-Morales v. Lynch, 795 F.3d 238, 245 (1st Cir. 2015) ("Social

group determinations are made on a case-by-case basis." (quoting

M-E-V-G, 26 I. & N. Dec. at 251)); Gizelle Lugo, The Dominican

Republic's Epidemic of Domestic Violence, Guardian (Nov. 23, 2012)

("[E]conomic disparity puts women in a vulnerable position because

it renders them powerless and, in an abusive situation, complicates

the process of leaving."). We therefore do not see any basis other

than arbitrary and unexamined fiat for categorically decreeing

without examination that there are no women in Guatemala who

reasonably feel unable to leave domestic relationships as a result


                                    - 15 -
of forces other than physical abuse.         In such cases, physical abuse

might be visited upon women because they are among those unable to

leave, even though such abuse does not define membership in the group

of women who are unable to leave.

             Second,   threatened     physical   abuse   that   precludes

departure from a domestic relationship may not always be the same

in type or quality as the physical abuse visited upon a woman

within the relationship.      More importantly, we see no logic or

reason behind the assertion that abuse cannot do double duty, both

helping to define the group, and providing the basis for a finding

of persecution.    An unfreed slave in first century Rome might well

have been persecuted precisely because he had been enslaved (making

him all the same unable to leave his master).        Yet we see no reason

why such a person could not seek asylum merely because the threat

of abuse maintained his enslaved status.             As DHS itself once

observed, the "sustained physical abuse of [a] slave undoubtedly

could constitute persecution independently of the condition of

slavery."    Brief of DHS at 34 n.10, Matter of R-A, 23 I. & N. Dec.

694 (A.G. 2005).

             For these reasons, we reject as arbitrary and unexamined

the BIA holding in this case that De Pena's claim necessarily fails

because the groups to which she claims to belong are necessarily

deficient.     Rather, the BIA need consider, at least, whether the




                                    - 16 -
proffered groups exist and in fact satisfy the requirements for

constituting a particular social group to which De Pena belongs.

           The foregoing does leave one possible loose end.            While

De Pena did not claim membership in a group defined by gender alone

before the IJ or the Board, relying instead on A-R-C-G, 26 I. & N.

at 388, she did cite to Matter of Acosta, 19 I. & N. Dec. 211 (BIA

1985), overruled in part on other grounds by Matter of Mogharrabi,

19 I. & N. Dec. 439, 441 (BIA 1987), to note that the "Board

specifically recognized 'sex' as an example of an innate or

immutable characteristic that can define a [particular social

group]," and that a "[particular social group] defined based on

gender per se is necessary."         She also stated that "[a] social

group defined by gender satisfies the particularity requirement

because   gender   is   not   a   vague,   indeterminate,   or    subjective

characteristic."    On appeal, she again argues that her "proposed

social groups satisfy the immutability requirement because they

are defined by gender and nationality, two innate characteristics

that are fundamental to an individual’s identity."               She further

maintains that a group based on gender, namely "Dominican women,"

satisfies the particularity requirement.

           One might therefore ask, why bother with "unable to

leave" in the group definition.        "Women," or "women in a certain

country," are groups that are much more clearly defined, thus

eliminating the problems presented by groups defined as "women who


                                   - 17 -
are unable to leave."      Precedent, though, encouraged the attempt

at group definitions such as relied on here by De Pena.          Some case

law gave rise to a fear that "women," or "women in country X," or

even "women in a domestic relationship," might be too large or too

indistinct a group to serve as a particular social group.              See,

e.g., Da Silva v. Att'y Gen., 459 F. App'x 838, 841 (11th Cir.

2012); Rreshpja, 420 F.3d at 556; Safaie v. INS, 25 F.3d 636, 640

(8th Cir. 1994).      But see Hassan v. Gonzales, 484 F.3d 513, 518

(8th Cir. 2007).      At the same time, precedent -- most notably the

BIA's own decision in A-R-C-G, 26 I. & N. Dec. at 393 -- held out

"unable to leave" as a supposedly smaller, better-suited safe

harbor for women seeking asylum and withholding of removal.

           The Attorney General has now seen fit to announce the

closure -- or at least the minimizing -- of that safe harbor. A-B,

27   I. & N.   Dec.   at   333-40.   And   in   De   Pena's    case,   that

announcement came after her hearing before the IJ closed.          Whether

that timing entitles her to claim now on remand to belong to a

group defined merely as Dominican women, or Dominican women in

domestic relationship, we leave in the first instance to the BIA.

           But grasping for the larger group hardly strikes us as

a fool's errand.      In 1985, the BIA recognized that a particular

social group is indeed a group of "persons all of whom share a

common, immutable characteristic," including "sex."           Acosta, 19 I.

& N. Dec. at 233; see also M-E-V-G, 26 I. & N. Dec. at 246 (observing


                                 - 18 -
that "[s]ocial groups based on innate characteristics such as sex .

. . are generally easily recognizable and understood by others to

constitute social groups" (quoting Matter of C-A, 23 I. & N. Dec.

951, 959 (BIA 2006))).      This circuit has adopted this formulation,

recognizing    sex    as   an    immutable    characteristic.       See,    e.g.,

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

v. Holder, 558 F.3d 53, 58 n.2 (1st Cir. 2009).

             Two additional requirements have been added over the

years and deployed in ways that may have cast some doubt on the

possibility of a group defined as "women," as sensible as it would

seem to be.      In a pair of cases in 2008, the BIA decided that

"particularity" and "social visibility" were further requirements

for a particular social group, in addition to Acosta's "immutable

characteristics" test.          See Matter of S-E-G, 24 I. & N. Dec. 579,

582   (BIA    2008)   (explaining      that    a   social   group    must    have

"particular and well-defined boundaries, and . . . possess a

recognized level of social visibility"); Matter of E-A-G, 24

I. & N. Dec. 591, 594 (BIA 2008) (explaining that a group must

exhibit "social visibility that would allow others to identify

[the group's] members as part of such a group").                    The "social

visibility" requirement has further evolved into a requirement of

"social distinction," meaning, "an external perception . . . within

a given society."      M-E-V-G, 26 I. & N. Dec. at 236.




                                     - 19 -
             As the test currently stands in this circuit, then, "an

applicant seeking asylum or withholding of removal 'based on

"membership in a particular social group" must establish that the

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.'"          Paiz-Morales, 795 F.3d

at 244 (quoting M-E-V-G, 26 I. & N. Dec. at 237).               Applying the

"particularity" and "social distinctiveness" requirements, we have

previously found proposed groups relying on categories similar to

"unable to leave" impermissible, based on the records in those

cases.     See Aguilar-De Guillen v. Sessions, 902 F.3d 28, 35 (1st

Cir. 2018) (rejecting a claimed particular social group of "single

mothers who are living without male protection and cannot relocate

elsewhere    in   the   country");    Perez-Rabanales,    881   F.3d   at   66

(rejecting     petitioner's     claimed   particular     social   group     of

"Guatemalan women who try to escape systemic and sever violence

who are unable to receive official protection"); Mendez-Barrera v.

Holder, 602 F.3d 21, 27 (1st Cir. 2010) (affirming the BIA's

rejection of a claimed particular social group of "young women

recruited by gang members who resist such recruitment").

             But it is not clear why a larger group defined as

"women,"     or   "women   in   country       X" -- without   reference     to

additional limiting terms -- fails either the "particularity" or

"social distinction" requirement.         Certainly, it is difficult to


                                     - 20 -
think of a country in which women are not viewed as "distinct"

from other members of society.                In some countries, gender serves

as a principal, basic differentiation for assigning social and

political status and rights, with women sometimes being compelled

to attire and conduct themselves in a manner that signifies and

highlights     their     membership      in    their   group.       It    is    equally

difficult to think of a country in which women do not form a

"particular" and "well-defined" group of persons.                    While certain

more    narrowly-parsed         groups    might     fail    to   exhibit       societal

salience, or internally coherent membership, the same does not

follow for a group based on a gender.

              In Acosta, the Board applied the doctrine of ejusdem

generis when interpreting the meaning of the term "refugee," which,

pursuant to statute, requires that an applicant demonstrate "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).            This doctrine, as explained

by the Board, "holds that general words used in an enumeration

with specific words should be construed in a manner consistent

with the specific words." Acosta, 19 I. & N. Dec. at 233. Reading

the     statute    in    this    light,       the   Board   reasoned      that     each

term -- "race, religion, nationality, membership in a particular

social    group,    or    political      opinion" -- "describes          persecution

aimed    at   an   immutable       characteristic."           Id.        "The    shared


                                         - 21 -
characteristic" underlying a particular social group, therefore,

"might be an innate one such as sex, color, or kinship ties," which

would make the fact of membership "something comparable to the

other four grounds of persecution under the Act."                 Id.    It is

unsurprising,   then,   that   if   race,    religion,      and   nationality

typically refer to large classes of persons, particular social

groups -- which are equally based on innate characteristics -- may

sometimes do so as well.    See Perdomo v. Holder, 611 F.3d 662, 669

(9th   Cir.   2010)   (explaining    in     the   context    of   a     claimed

gender-based particular social group that the "size and breadth of

a group alone does not preclude a group from qualifying as . . .

a social group"); see also N.L.A. v. Holder, 744 F.3d 425, 438

(7th Cir. 2014) (noting that the court "does not determine the

legitimacy of social groups by the narrowness of the category");

Cece v. Holder, 733 F.3d 662, 674-75 (7th Cir. 2013) (en banc)

(rejecting "breadth of category" as grounds for denying a social

group, citing to examples of large social groups, such as Jews in

Nazi Germany and ethnic Tutsis during the Rwandan genocide).

          Nor is our decision in Perez-Rabanales to the contrary.

The proffered social group in that case was "Guatemalan women who

try to escape systemic and severe violence but who are unable to

receive official protection."       Perez-Rabanales, 881 F.3d at 66.

We found that the definition produced a group that was amorphous

rather than particular. Id. It "potentially encompasses all women


                                - 22 -
in Guatemala."      Id. (emphasis added).       And the "potential" for

finding an individual member turned on whether one fell "victim to

violence   and     f[ound]    herself    unable    to    obtain   official

protection."      Id.   We never held -- or even said -- that "women"

as a descriptor of a group lacked particularity or precludes

determining who is in the group.

           Courts have found appropriate certain large, particular

social groups where the group is defined with reference to an

underlying immutable characteristic.        See Perdomo, 611 F.3d at 669

(explaining that the Ninth Circuit has "rejected the notion that

a persecuted group may simply represent too large a portion of a

population to allow its members to qualify for asylum"); see also

Malonga v. Mukasey, 546 F.3d 546, 553-54 (8th Cir. 2008) (rejecting

the IJ's denial of petitioner's particular social group solely on

the basis that his ethnic group was part of a tribe comprising

forty-eight percent of the country's population).             In Kadri v.

Mukasey,   this    circuit   explained   that   sexual   orientation,   for

example, "can serve as the foundation for a claim of persecution,

as it is the basis for inclusion in a particular social group."

543 F.3d 16, 21 (1st Cir. 2008) (citing Karouni v. Gonzales, 399

F.3d 1163, 1172 (9th Cir. 2005)).        And in Silva v. Aschcroft, this

circuit noted that a particular social group may refer to an innate

characteristic such as gender.      394 F.3d 1, 5 (1st Cir. 2005).       As

it explained, while "stand-alone social group claims are rather


                                  - 23 -
rare" "[b]ecause the most obvious groups meeting [the protected

category]   criteria -- such    as   racial   or   ethnic    groups -- are

independently covered under the withholding of removal statute,"

when claims based on a particular social group are proffered, "they

usually are based on discrete classes such as gender."3           Id.

            Some courts in other circuits have also looked favorably

upon the possibility of a broad social group based on gender.              See

Ticas-Guillen v. Whitaker, 744 F. App'x 410, 410 (9th Cir. 2018)

(mem.) (remanding to the BIA after finding that the "IJ's ground

for   denial -- that   the   proposed   social     group    ["women   in    El

Salvador"] was 'just too broad' to satisfy the 'particularity'

requirement -- cannot stand" as "gender and nationality can form

a particular social group"); Silvestre-Mendoza v. Sessions, 729 F.

App'x 597, 598-99 (9th Cir. 2018) (mem.) (remanding to the BIA for

consideration of whether "Guatemalan women" is a particular social

group subsuming the petitioner's claimed narrower group); Paloka


      3While not binding, guidance on the definition of a "refugee"
provided by the United Nations High Commissioner for Refugees
supports the possibility of a particular social group based on
gender. It explains that "[t]he size of the purported social group
is not a relevant criterion in determining whether a particular
social group exists within the meaning of Article 1A(2)" of the
1951 Refugee Convention. U.N. High Comm'r for Refugees, Guidelines
on International Protection: Membership of a particular social
group within the context of Article 1A(2) of the 1951 Convention
and/or Its 1967 Protocol Relating to the Status of Refugees," ¶
18, U.N. Doc. HCR/GIP/02/02 (May 7, 2002); see INS v.
Cardoza-Fonseca, 480 U.S. 421, 438-440, 439 n.22 (1987) (citing
the Handbook on Procedures and Criteria for Determining Refugee
Status (Geneva, 1979)).


                                - 24 -
v. Holder, 762 F.3d 191, 194 (2d Cir. 2014) (remanding to the BIA

for consideration of the particular social groups of "unmarried

women," "young women in Albania," and "unmarried young women in

Albania"); Hassan, 484 F.3d at 518 (accepting a social group of

"Somali   females,"    and   recognizing   that   "a   factfinder   could

reasonably conclude that all Somali females have a well-founded

fear of persecution based solely on gender given the prevalence of

[female genital mutilation]").

           For many of the foregoing reasons, at least one of the

amici on this appeal urges us to rule as a matter of law that

"Dominican women" can accurately describe a particular social

group in this case.4    But De Pena's failure to assert such a group

in the agency proceedings deprived the BIA of the opportunity to

consider the wider group.      And the law generally calls for us to

limit our holding to issues first presented to the BIA.               See

Velerio-Ramirez v. Lynch, 808 F.3d 111, 117 (1st Cir. 2015) (citing

Negusie v. Holder, 555 U.S. 511, 516 (2009), and noting that "when

the BIA has not spoken on an issue that a statute has placed in

its hands, remand is appropriate to give the BIA an opportunity to

address the issue in the first instance"); see also Tillery v.

Lynch, 821 F.3d 182, 186 (1st Cir. 2016) ("Our task is to review




     4 See Brief for Harvard Immigration & Refugee Clinic as Amicus
Curiae Supporting Petitioner at 4.


                                 - 25 -
the agency's legal interpretation, not perform it in the first

instance.").

                               III.

          We therefore remand to the BIA for further proceedings

consistent with this opinion. To the extent that the BIA on remand

finds it appropriate or necessary to reach other grounds for denial

cited by the IJ, or to remand the case to the IJ, nothing in this

opinion prevents it from doing so.




                              - 26 -
