United States Court of Appeals For the First Circuit

No. 23-1543

PAMLAR FERREIRA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Before

Barron, Chief Judge, Gelpí and Rikelman, Circuit Judges.

SangYeob Kim, with whom Gilles Bissonnette and American Civil Liberties Union of New Hampshire were on brief, for petitioner.

Joseph A. O'Connell, Attorney, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, and Cindy S. Ferrier, Assistant Director, were on brief, for respondent.

Daniel V. Ward, Marianne Staniunas, Abigail Alfaro, Michelle Marie Mlacker, Colleen S. Roberts, and Ropes & Gray LLP on brief for Immigration Law Professors et al., amici curiae.

Deborah Anker, Sabrineh Ardalan, Nancy Kelly, John Willshire Carrera, and Harvard Immigration & Refugee Clinical Program on brief for Harvard Immigration and Refugee Clinical Program et al., amici curiae. March 21, 2024 RIKELMAN, Circuit Judge. Pamlar Ferreira petitions for

review of a decision by the Board of Immigration Appeals ("BIA")

upholding the denial of her application for withholding of removal.

Ferreira requests that we remand the case so that the BIA may

consider anew whether withholding is appropriate on the basis of

her two asserted particular social groups: "family" and

"Trinidadian women who oppose Trinidad's social norms in that they

do not want to be subjected to abuse or violent sexual abuse by

family members or significant others based on their gender." We

grant the petition in part, vacate the BIA's decision as to

Ferreira's gender-based claim, and remand for further proceedings

consistent with this opinion.

I. BACKGROUND

A. Relevant Facts1

Ferreira is a sixty-one-year-old citizen of Trinidad and

Tobago. As a young child, Ferreira lived with her parents and

siblings. When Ferreira was nine, however, her parents divorced,

and she went to live with her aunt. Two other family members

resided in her aunt's household: Jason Mujica, the aunt's twenty-

1"We draw the relevant facts from the administrative record," including Ferreira's testimony, which the immigration judge expressly found to be credible. Barnica-Lopez v. Garland,

, 525 n.1 (1st Cir. 2023) (citing Adeyanju v. Garland,

(1st Cir. 2022)).

- 3 - three-year-old husband and Ferreira's uncle, and Ferreira's

cousin.

The uncle began sexually abusing Ferreira shortly after

she joined the household. Although Ferreira resisted, the uncle

threatened to kill her mother if she did not comply. The abuse

occurred "almost every night" for six years, from the time Ferreira

was nine until she was fifteen. Despite threats from her uncle

that he would kill her if she left, Ferreira ran away from her

aunt's home at the age of fifteen and began living at her

grandmother's store. Ferreira testified that she was both afraid

of her uncle and ashamed of having been abused by a family member;

as a result, she did not go to the police or tell anyone else about

the abuse. Instead, she stayed in her grandmother's store, leaving

only to attend school.

After leaving her aunt's house, Ferreira never saw or

spoke to the uncle again. However, the uncle asked other family

members about Ferreira on two separate occasions. First,

approximately one month after Ferreira ran away, her older brother

informed her that the uncle had asked about her. Second, many

decades later, Ferreira's mother, then residing in the United

States, encountered the uncle when she returned to Trinidad to

sell a property in 2018. During the encounter, which we describe

in detail below, the uncle asked about Ferreira and whether she

- 4 - was ever returning to Trinidad. Ferreira's mother lied and told

the uncle that she had lost touch with Ferreira.

When Ferreira came to the United States in the mid-1980s,

at the age of twenty-three, she told her sister about the uncle's

abuse, but her sister did not believe her. In 2010, Ferreira was

diagnosed with post-traumatic stress disorder, a condition she

attributes to the years of sexual abuse she endured.

The last interaction between the uncle and Ferreira's

nuclear family was in 2018, when Ferreira's mother briefly returned

to Trinidad to sell her house. The uncle, accompanied by three or

four other men, accosted the mother at her property and attempted

to rob her. The men tied the mother to a chair for several hours

before releasing her. Ferreira's mother never reported the

incident to police.

B. Legal Proceedings

On December 21, 1985, Ferreira entered the United States

on a B-2 nonimmigrant visa with authorization to remain for up to

six months. Ferreira has resided in the United States without

authorization since her visa expired.

In March 2019, Ferreira was convicted in the United

States District Court for the District of New Hampshire of three

criminal charges related to her fraudulent application for a United

- 5 - States passport.2 The district court sentenced her to twelve

months and one day of incarceration.

The Department of Homeland Security then commenced

removal proceedings against Ferreira on October 4, 2019. In the

Boston Immigration Court, Ferreira initially applied for asylum,

withholding of removal, and protection under the Convention

Against Torture ("CAT"), but she later clarified that she would

seek only withholding of removal and protection under the CAT.3

Ferreira's statutory withholding claim was based on her membership

in two particular social groups ("PSGs"): (1) "Trinidadian women

who oppose Trinidad's social norms in that they do not want to be

subjected to abuse or violent sexual abuse by family members or

significant others based on their gender"; and (2) "family." By

"family," Ferreira explained that her persecutor's "relationship

as her uncle forms a social group because the fact that they are

related is a definitive characteristic that cannot be changed;

their kinship is fundamental to their identities."

In her pre-hearing briefing and testimony before the

immigration judge ("IJ"), Ferreira recounted the abuse she

2 See

(a)(2) (false statements);

(false claim of citizenship);

(a)(7)(B) (false representation of a social security number). 3 Ferreira only seeks review of the denial of her statutory withholding claim. Therefore, in recounting the decisions below, we limit our discussion to the withholding analysis.

- 6 - experienced as a child and her ongoing fear of her uncle. Ferreira

also testified that the uncle was now at least seventy years old

and she could not confirm that he was still alive or that he would

have any interest in harming her if she returned to Trinidad.

Ferreira stated that, if she did return to Trinidad and her uncle

were still alive, she would try to report him to the police.

The IJ issued his opinion on February 12, 2020. He

concluded both that Ferreira was credible and that the abuse

Ferreira experienced was severe enough to rise to the level of

persecution. Nonetheless, the IJ denied Ferreira's statutory

withholding claim.

First, the IJ held that neither of Ferreira's proffered

PSGs were legally cognizable. Assessing Ferreira's family-based

PSG, the IJ concluded that Ferreira failed to demonstrate that her

family was socially distinct within Trinidad, citing Matter of

L-E-A-, 27 I.& N. Dec. 581 (A.G. 2019), later vacated by Matter of

L-E-A-,

(A.G. 2021). Addressing Ferreira's

gender-based PSG, the IJ found that the PSG was not particular

because "it is not clear what someone would have to do to oppose

a social norm in Trinidad, nor is it clear . . . what the Trinidad

social norms are." Further, the IJ concluded that the gender-based

PSG was too amorphous and lacked social distinction because of

"insufficient evidence that [those] opposing Trinidad social norms

are recognized as discrete elements of society."

- 7 - Second, the IJ determined that, even if Ferreira's

asserted PSGs were cognizable, Ferreira's abuse was not "on account

of" a statutorily protected ground. The IJ found that "there [was]

insufficient evidence the uncle was motivated [to harm] or

targeted" Ferreira because of her membership in either PSG.

Instead, the uncle was a "predator" who committed "a criminal act

of child abuse," and he focused on Ferreira because she "was

younger than him" and because of her "proximity" to him "under his

own roof."

Ferreira appealed the IJ's decision to the BIA. However,

the BIA received her initial brief a day late, and Ferreira later

resubmitted it with a motion to accept the late-filed brief. The

BIA did not rule on Ferreira's motion but affirmed the IJ's

decision without issuing an opinion. Ferreira then sought review

from this court. See Ferreira v. Garland, No. 20-1865 (1st Cir.

2020). After Ferreira submitted her opening brief, the government

filed an unopposed motion to remand the case back to the BIA; we

granted that motion.

On remand, the BIA once again affirmed the IJ's denial

of Ferreira's statutory withholding claim. As to the family-based

claim, the BIA did not adopt the IJ's cognizability analysis and

instead acknowledged that "family" can constitute a valid PSG.

Nevertheless, the BIA upheld the IJ's rejection of Ferreira's

family-based claim on nexus grounds, finding "no clear error" in

- 8 - the IJ's determination that there was insufficient evidence that

the uncle was motivated to harm Ferreira or targeted her based on

her membership in their family. The BIA also expressly agreed

with the IJ's finding that "the uncle's criminal intent fueled

[his] abuse of [Ferreira]."

The BIA then turned to the gender-based PSG and agreed

with the IJ that it was not legally cognizable. Framing Ferreira's

PSG as "women who are subjected to and oppose" gender-based

violence, the BIA adopted the IJ's legal determination that this

PSG was amorphous and not defined with particularity. It also

concluded that the PSG was circular because it was "impermissibly

defined in large part by the harm inflicted on its members."

Finally, although Ferreira had argued to the BIA that "a true

articulation" of her gender-based PSG may have been "Trinidadian

women" or "female Trinidadian survivors of domestic violence," the

BIA declined to address any "other particular social groups

[offered] for the first time on appeal," citing Matter of W-Y-C- &

H-O-B-,

(BIA 2018). Ferreira timely

sought review from our court.

- 9 - II. DISCUSSION

A. Legal Framework

We begin by discussing the legal framework governing

Ferreira's claims. As factfinder, the IJ "conduct[s] proceedings

for deciding the inadmissibility or deportability" of an

individual. 8 U.S.C. § 1229a(a)(1); see also

(a). On appeal, the BIA is tasked with reviewing the

IJ's factual conclusions for clear error.

(d)(3)(i). But the BIA reviews de novo "questions of law,

discretion, and judgment and all other issues in appeals from

decisions of immigration judges,"

(d)(3)(ii),

including the ultimate conclusion of whether the facts identified

by the IJ are sufficient to satisfy the legal requirements of

nexus, see Matter of S-E-G-,

, 588 n.5 (BIA

2008) ("The record before us is adequate to allow us to perform

de novo review of the legal issues presented, specifically,

whether the [applicants] established that they were persecuted 'on

account of' a protected ground.").

Turning to our standard of review, we "typically focus[]

on the final decision of the BIA." Loja-Tene v. Barr,

(1st Cir. 2020). However, "to the extent that the BIA

deferred to or adopted the IJ's reasoning, we review those portions

of the IJ's decision" as well. Chavez v. Garland,

,

- 10 - 429 (1st Cir. 2022) (citing Bonilla v. Mukasey,

(1st Cir. 2008)).

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

deference to its interpretations of statutes and regulations

related to immigration matters.'" Espinoza-Ochoa v. Garland,

(1st Cir. 2023) (quoting Aldana-Ramos v. Holder,

(1st Cir. 2014)).4 We uphold factual findings under

the substantial evidence standard unless the record compels a

contrary conclusion.

(citing Varela-Chavarria v. Garland,

(1st Cir. 2023)). When discussing the BIA and IJ's

decisions as a unit, we refer to them jointly as "the agency."

Pineda-Maldonado v. Garland,

(1st Cir. 2024).

An applicant for withholding of removal "must establish

a clear probability that, if returned to [her] homeland, [s]he

4 In a footnote, Ferreira points out that although the BIA reviews de novo the ultimate legal conclusion of whether the facts and evidence are sufficient to satisfy the nexus requirement, this court reviews the BIA's nexus determination under the substantial evidence standard. As Ferreira recognizes, our decision in Aguilar-Escoto v. Garland noted the tension inherent in applying the substantial evidence standard, a mode of review "reserved for factual findings," to "the determination of whether a given set of facts meets the standard of persecution," a legal conclusion.

(1st Cir. 2023). This same tension exists in how we review the agency's nexus conclusion, which, as with persecution, involves factual determinations by the IJ but a de novo review by the BIA as to whether those facts taken together are sufficient to meet the legal standard. See 8 C.F.R. 1003.1(d)(3)(ii); Matter of S-E-G-,

n.5. However, Ferreira does not ask us to resolve the tension in these different standards of review.

- 11 - will be persecuted on account of a statutorily protected ground."

Varela-Chavarria,

(alterations in original)

(quoting Sanchez-Vasquez v. Garland,

(1st Cir.

2021)). To satisfy this standard, an applicant must meet a

three-part test: "a threshold level of past or anticipated serious

harm, a nexus between that harm and government action or inaction,

and a causal connection to one of the five statutorily protected

grounds." Espinoza-Ochoa,

(citation omitted).

The statutorily protected grounds include "race,

religion, nationality, membership in a particular social group, or

political opinion."

(b)(3)(A). When "an applicant

[is] seeking relief based on [her] membership in a PSG [she] '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.'"

Espinoza-Ochoa,

(quoting Paiz-Morales v. Lynch,

(1st Cir. 2015)).

To meet the nexus requirement, an applicant must

demonstrate "that [her] persecution was 'on account of' [the]

protected ground, meaning that the protected ground was 'at least

one central reason' for the persecution." Id. at 235 (emphasis

and internal citations omitted). That does not mean that the

applicant must "demonstrate that [s]he was singled out only due to

[her] protected trait" or even that the protected trait was the

- 12 - most important reason for the persecution. Id. (quoting

Barnica-Lopez,

).5 Instead, she must show that the

PSG "was not 'incidental, tangential, superficial, or subordinate

to another reason for [the] harm.'"

(alteration in original)

(quoting Barnica-Lopez,

).

"In the case of withholding of removal . . . evidence of

past persecution creates a rebuttable presumption of future

persecution." Pineda-Maldonado,

.

B. Family-Based PSG

The BIA found that Ferreira was not entitled to

withholding of removal on the basis of her family-based PSG because

she failed to demonstrate a nexus between the abuse she experienced

and her family membership. In reaching this conclusion, the BIA

relied on the IJ's factual findings that the abuse was "a criminal

act done by a predator based on his proximity to the victim" and

that there was "insufficient evidence the uncle was motivated [to

harm] or targeted [Ferreira] because of family." Ferreira

challenges the BIA's rejection of her family-based PSG claim on

both factual and legal grounds. After careful consideration, we

conclude that the record does not compel a contrary conclusion as

"Due to the substantive similarities in the standards for 5

asylum and withholding of removal claims, asylum precedents may be helpful in analyzing withholding-of-removal cases, and vice versa." Espinoza-Ochoa,

(internal quotations omitted) (quoting Barnica-Lopez,

).

- 13 - to the underlying facts and find no legal errors in the BIA's

analysis.

We have frequently had cause to consider if persecution

is "on account of" family membership. See id. at 85 (collecting

cases). Our precedent provides that "[i]n order for family

membership to serve as 'the linchpin for a protected social group,'

it 'must be at the root of the persecution, so that family

membership itself brings about the persecutorial conduct.'"

Ruiz-Escobar v. Sessions,

(1st Cir. 2018)

(quoting Ruiz v. Mukasey,

(1st Cir. 2008)); see

also Matter of L-E-A-,

(BIA 2017) ("If

the persecutor would have treated the applicant the same if the

protected characteristic of the family did not exist, then the

applicant has not established a claim on this ground."). We also

consider whether it is possible to "'disentangle' the applicant's

family status" from the persecutor's other motives, or if "they

are two sides of the same coin." Pineda-Maldonado,

-89 (quoting Perez-Sanchez v. U.S. Att'y Gen.,

(11th Cir. 2019)). Therefore, the "fact-dependent nature of

the nexus inquiry" is of particular importance when we assess

"claims of persecution 'on account of' family status." Id. at 86.

We thus begin with Ferreira's argument that the agency

did not fully consider her credible testimony and the documentary

country conditions evidence when it found that her abuse was "a

- 14 - criminal act done by a predator based on his proximity to the

victim" -- not a result of Ferreira's family membership. The

decisions below, however, demonstrate that the agency did consider

the aspects of the record that Ferreira brings to our attention.

As to Ferreira's testimony, our review of the record

reveals that Ferreira never stated that she believed her uncle

abused her because she was his niece. Instead, Ferreira testified

that the uncle abused her "because he[ was] having a good time[,

and] . . . he[ was] enjoying it," consistent with the IJ's finding

that his abuse was motivated by his own criminal, sexual desires.

Ferreira's account of the timeline of the abuse also

supports the IJ's factual finding and so fails to show that the

agency did not consider the evidence that she contends supports

her claim. Ferreira testified that after she went to live with

her aunt's family, her uncle sexually abused her from the ages of

nine to fifteen. Ferreira did not experience abuse before moving

into the aunt's home. And after Ferreira ran away from the home,

she never saw or spoke to the uncle again. The IJ relied on the

fact that the uncle "never harmed her before or after she lived

there" as evidence that Ferreira's proximity in the uncle's home

was the underlying reason for the abuse, not her status as the

uncle's niece, a family connection that both pre- and post-dated

the abuse.

- 15 - Relatedly, Ferreira contends that she "credibly

testified that the uncle continuously pursued [her] even after she

escaped from the house" and objects to the agency's factual finding

to the contrary. But the record does not support Ferreira on this

point. In the decade after her abuse, Ferreira's own testimony

establishes that the uncle inquired about her only on a single

occasion, when he spoke to Ferreira's brother, approximately one

month after she ran away. This single instance of inquiry is

insufficient to compel a contrary conclusion on this factual issue.

The evidence on which Ferreira relies also is insufficient to show

that the IJ's findings were clearly erroneous such that the BIA

legally erred in its application of clear-error review.

Moving to her country conditions evidence, Ferreira

argues that the agency ignored this evidence altogether in its

nexus analysis. But the IJ expressly discussed the "seven numbered

exhibits" Ferreira had submitted into the record below, which

included the country conditions reports, and stated that he had

considered those exhibits, whether discussed in his decision or

not. And the BIA explicitly noted that it had considered

Ferreira's arguments on appeal following remand, citing to the

pages of her brief that discussed the documentary evidence and

holding it found her arguments "not persuasive."

To be sure, in some situations this generic language

would be insufficient and would justify a decision to vacate,

- 16 - including when the evidence at issue provides particularly strong

support for the applicant or when there are other indications the

agency simply turned a "blind eye" to relevant evidence.

Aguilar-Escoto,

. But that is not the case here.

Instead, the documentary evidence generally discusses societal

conditions in Trinidad, such as "male dominance in the family" and

statistics showing the prevalence of domestic violence, including

sexual abuse, and provides basic background facts that the parties

do not dispute. Ferreira argues that these societal conditions

contributed to her uncle's decision to select her for abuse, such

that their family connection was part of the reason she was

targeted. But the country conditions evidence, although

important, is not sufficient to establish persecution on the basis

of family membership in every case. There is no doubt that the

sexual abuse Ferreira endured was horrific and easily meets the

standard for persecution. But the IJ's factual finding that there

was no nexus between the family relationship and that persecution

is supported by substantial evidence, and thus, here, too, the BIA

did not err in its application of clear-error review.

Ferreira also urges us to vacate based on what she views

as legal errors in the agency's nexus analysis. Ferreira's legal

challenges to the rejection of her family-based PSG focus on four

overlapping arguments: (1) the BIA was obligated to conduct a de

novo review of the IJ's ultimate nexus conclusion; (2) the agency

- 17 - cited but never applied a mixed-motive analysis and thus failed to

consider if her family-based PSG was intertwined with her uncle's

criminal motivation; (3) the agency never conducted what she

describes as an unwilling or unable analysis; and (4) the agency

never considered her standalone claim of future persecution.

As we have explained, the BIA does have an obligation to

review de novo the IJ's ultimate nexus conclusion in light of the

arguments presented by a petitioner. See Matter of S-E-G-,

n.5. Here, the BIA's decision indicates that it

did consider each of Ferreira's nexus-related arguments and thus

committed no legal error in affirming the IJ's ultimate nexus

conclusion.

We begin with Ferreira's argument that the agency never

engaged in a mixed-motive analysis. Our review reveals that the

IJ did not ignore the possibility of multiple motives but simply

concluded that, on this record, there was not enough evidence to

establish other motivations or reasons for the abuse.

Specifically, the IJ found that there was "insufficient evidence"

to conclude that Ferreira was targeted on the basis of her family

membership. Instead, the IJ found her abuse was on account of

other factors: Ferreira was a child, she was living in the uncle's

house, and the uncle was "a predator." The BIA affirmed that

Ferreira's abuse was on account of these reasons and held there

- 18 - was "no nexus" between Ferreira's family-based PSG and the harm

she experienced.

Ferreira argues that the "close physical proximity" to

her uncle occurred only because of their family relationship. But

although the family relationship was the reason that Ferreira ended

up living with the uncle, the record here does not compel the

conclusion that the "family membership itself [brought] about the

persecutorial conduct." Ruiz-Escobar,

(quoting

Ruiz,

). Rather, there is record support for the

IJ's finding that the uncle targeted Ferreira because she was

present in his home, regardless of their relationship. As a

result, there is substantial evidence for "the agency's conclusion

that family ties did not motivate [Ferreira's] persecution, even

though those ties may have brought [her] into proximity with [her]

persecutor." Loja-Tene,

.

In sum, the BIA held that there was "no nexus" between

Ferreira's persecution and her status as her persecutor's niece.

Because there is substantial evidence in the record here for that

finding, the BIA did not need to go further. Pineda-Maldonado,

("[W]e do not disagree with the agency that, insofar

as the record supportably shows in this case that the mistreatment

at issue was solely driven by a [motivation not protected under

- 19 - the statute], there would be no basis for overturning the agency's

nexus finding.").6

We turn next to Ferreira's contention that the BIA failed

to conduct what she describes as an unwilling or unable analysis.7

In her brief to the BIA, Ferreira argued that "nexus may flow from

the reasons for lack of state protection, rather than the reasons

motivating" the persecutor. Specifically, Ferreira contended that

the Trinidadian government was unwilling or unable to protect

Ferreira from her uncle's sexual abuse because the government does

not intervene in situations of domestic violence, which are

perceived in Trinidad as "family matter[s]."

We conclude that the BIA did consider this argument and

find no legal error in its analysis. After discussing both PSGs,

6Ferreira and her amici also invite us to reject our past application of the "one central reason" nexus standard for evaluating mixed-motive withholding of removal claims and to instead adopt a less demanding "a reason" standard, which they argue better accords with the plain meaning of the withholding statute. However, we decline to opine on the mixed-motive standard for withholding of removal in a case where the agency did not err in concluding that the asserted protected ground (here, family) was not even a reason for the applicant's persecution. 7In a supplemental brief, the government argues that Ferreira waived the unwilling or unable argument because she did not advance it before the IJ. The BIA did not raise the issue of waiver or forfeiture as to any of Ferreira's nexus arguments but rather dismissed them as "not persuasive." As such, we assume without deciding that Ferreira adequately raised the issue. See James v. Garland,

, 321 n.1 (1st Cir. 2021) (not addressing issue of waiver when BIA did not raise or address potential waiver).

- 20 - the BIA included a final paragraph in its decision indicating that

it had considered all of Ferreira's arguments "concerning the two

relevant particular social groups in this case (Respondent's Brief

at 7-21)" and rejected them as "not persuasive" and "largely

rely[ing] on cases arising outside the jurisdiction of the First

Circuit." Ferreira's alternative nexus argument is included in

the page range delineated by the BIA. And, before both the BIA

and this court, Ferreira supports her alternative nexus argument

exclusively with out-of-circuit precedent. See Kamar v. Sessions,

(6th Cir. 2017); Sarhan v. Holder,

(7th Cir. 2011).8

Further, the extent of Ferreira's argument to the BIA on

this theory was a single sentence in her brief -- "[c]ircuit courts

and the BIA have found that nexus may flow from the reasons for

lack of state protection, rather than the reasons motivating the

agent of harm" -- followed by a string cite to the out-of-circuit

precedent. In both Kamar and Sarhan, however, the two cases on

8 Ferreira also cites Matter of Kasinga, which would be binding on the agency.

(BIA 1996) ("We agree with the parties that, as described and documented in this record, FGM [(female genital mutilation)] is practiced, at least in some significant part, to overcome sexual characteristics of young women of the tribe who have not been, and do not wish to be, subjected to FGM. We therefore find that the persecution the applicant fears in Togo is 'on account of' her status as a member of the defined social group."). However, a close review of the nexus holding in that case reveals that the conclusion was still predicated on the motivation of the applicant's persecutors.

.

- 21 - which Ferreira relies, the courts evaluated withholding claims

based solely on a claim of future persecution. See Kamar,

; Sarhan,

. Specifically, the applicants

in Kamar and Sarhan were Jordanian women who alleged that they

would be murdered in an "honor killing" if forced to return to

their home country and that it would be futile for them to seek

protection from the Jordanian government because it would refuse

to intervene. See Kamar,

; Sarhan,

. In support, both applicants pointed to widespread social

norms in Jordan "that impose behavioral standards on women and

permit family members to sentence those who violate these standards

to death." Kamar,

; see also Sarhan,

("[The applicant] faces death because of a widely-held social

norm in Jordan -- a norm that imposes behavioral obligations on

her and permits [male persecutors] to enforce them in the most

drastic way."). The court in each case therefore held that the

agency had erred in concluding the applicant would not "be

persecuted on account of her membership in the social group she

ha[d] identified." Sarhan,

; see also Kamar,

.

Here, by contrast, Ferreira did not testify that if she

returned to Trinidad and her uncle attempted to abuse her, the

government would refuse to protect her. Instead, Ferreira

indicated that she was unsure if her uncle was even alive, and

- 22 - that, if he were and tried to harm her, she would turn to the

police.9 Given the factual differences between Ferreira's

circumstances and these out-of-circuit cases, the BIA did not err

as a matter of law in rejecting Ferreira's alternative nexus claim.

Finally, Ferreira argues that the BIA did not address

her claim of family-based future persecution. As a reminder, to

be eligible for withholding of removal, the applicant must

demonstrate "that it is 'more likely than not that [she] will be

persecuted on account of a protected ground upon [her] return to

[her] native land.'" López-Castro v. Holder,

(1st

Cir. 2009) (quoting Da Silva v. Ashcroft,

(1st Cir.

2005)). Unlike in the asylum context, this is solely an objective

inquiry that does not consider an applicant's subjective fear.

.

Given that we analyze the BIA and IJ's opinions together

to the extent the BIA adopts the IJ's decision, Chavez,

, we conclude that the agency did sufficiently address

9We note that usually the unwilling or unable analysis concerns whether conduct by a non-government actor can still qualify as persecution. See, e.g., Aguilar-Escoto,

("In order to constitute 'persecution' for purposes of asylum and withholding of removal, harm must either be perpetrated by the government itself or by a private actor that the government is unwilling or unable to control." (citations omitted)). But the unwilling or unable argument that Ferreira makes to us does not concern the requirement that the government be unwilling or unable to prevent the private conduct in order for that private conduct to qualify as persecution.

- 23 - Ferreira's claims of future persecution. At the outset of its

analysis, the BIA explained that it disagreed with Ferreira that

the IJ "should have found a likelihood of persecution on account

of one or both [of her] particular social groups." And the IJ

clearly found that Ferreira "did not have any objective,

well-founded fear of future persecution" on account of her

family-based PSG. He noted that Ferreira had not spoken to her

uncle since 1985; there was no evidence that the uncle had tried

to contact Ferreira in the intervening years, including via phone

or social media; and Ferreira herself testified that she was not

certain her uncle would even care about her at this juncture. The

IJ also discussed the uncle's encounter with Ferreira's mother in

2018, concluded the uncle's harassment was a criminal attempt "to

obtain money from respondent's mother because he thought that she

had money," and found that their conversation about Ferreira did

not support a clear probability of persecution by the uncle. The

BIA affirmed the IJ on this point. The BIA also affirmed the IJ's

finding that Ferreira's testimony indicated the uncle targeted her

mother for pecuniary reasons and not on account of family

membership. Based on this record, we find no legal error in the

agency's analysis, especially when we also affirm the agency's

conclusion that Ferreira had failed to establish past persecution

on account of her family membership.

- 24 - C. Gender-Based PSG

We now turn to Ferreira's gender-based PSG claim, which

the BIA rejected because it concluded her proffered PSG was not

legally cognizable. As a secondary holding, the BIA explained

that "[t]o the extent the respondent proposes other particular

social groups for the first time on appeal, [it] declined to

address those groups."

Ferreira argues that the BIA was wrong on both counts.

Specifically, she contends the BIA erred in concluding her PSG was

not cognizable because it fundamentally misunderstood her proposed

PSG and this misunderstanding infected the BIA's subsequent

findings on particularity, social distinction, and circularity.

With regard to her alternative formulations of her gender-based

PSG, Ferreira asserts that the BIA failed to consider if they were

"substantially different" from her original PSG, as required under

the framework established in Matter of W-Y-C-, 27 I. & N. Dec. at

190-91. Finally, Ferreira argues that the BIA ignored her request

to remand to the IJ for additional consideration of her

gender-based PSG in light of our intervening decision in De

Pena-Paniagua v. Barr,

(1st Cir. 2020).

The gender-based PSG that Ferreira advanced to the

agency was "Trinidadian women who oppose Trinidad's social norms

in that they do not want to be subjected to abuse or violent sexual

abuse by family members or significant others based on their

- 25 - gender." "Under the BIA's well-established interpretation of the

[Immigration and Nationality Act], an applicant seeking relief

based on [her] membership in a PSG '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.'" Espinoza-Ochoa,

(quoting Paiz-Morales,

). The social

distinction requirement also encompasses the rule against

circularity, which requires "that an eligible PSG must 'be

perceived as a group by society,' not merely by its persecutors."

(quoting Matter of M-E-V-G-,

(BIA

2014)).

Although the BIA correctly restated this PSG at the

outset of its opinion, when it began its analysis of the PSG in

earnest it inaccurately delineated the PSG as "women who are

subjected to and oppose such violence." (Emphasis added.)

Similarly, the BIA held that "[t]here is insufficient evidence to

establish that Trinidadian society recognizes those past victims

of domestic violence who oppose such violence as a distinct group."

(Emphasis added.) Seemingly on this basis, the BIA also explained

that the PSG is "impermissibly defined in large part by the harm

inflicted on its members."

The BIA did not accurately represent Ferreira's

articulated PSG. On its face, Ferreira's PSG includes all

- 26 - Trinidadian women who oppose social norms "in that they do not

want to be subjected" to gender-based domestic violence. The BIA,

by defining Ferreira's group as women "who are subjected to and

oppose" gender-based domestic violence, imposed an additional

condition: that the women in the PSG also must be survivors of

gender-based violence.10 Ferreira's articulated PSG includes no

such limitation. This one alteration was crucial to the BIA's

ultimate conclusion that Ferreira's PSG was not cognizable. The

BIA rejected her PSG because it was amorphous and defined by the

"the harm inflicted on its members." Both conclusions stem from

the introduction of "past victims of domestic violence" into the

definition of the PSG.

10The government argues that the BIA's framing of Ferreira's PSG addresses two sub-groups: (1) women who are subjected to gender-based violence and (2) women who oppose such violence, regardless of whether they have previously been subjected to it. Under this reading, the government argues, the BIA both understood and addressed Ferreira's articulated social group. We do not share the government's view. In this context, the word "and" indicates that the two elements "who are subjected to" and "[who] oppose" should be read jointly. See Bruesewitz v. Wyeth LLC,

(2011) ("[L]inking independent ideas is the job of a coordinating [con]junction like 'and.'"). Had the BIA intended for the clauses to be read separately, it should have used the conjunction "or." See Loughrin v. United States,

, 357 (2014) (explaining that the ordinary meaning of the word "or" is "almost always disjunctive, that is, the words it connects are to be given separate meanings"). Moreover, the BIA's description of "women who are subjected to and oppose such violence" as "a discrete group" indicates that the BIA intended to refer to a single group of women.

- 27 - Read correctly, however, Ferreira's PSG can fairly be

divided into two parts: a statement of the individuals included in

the group ("Trinidadian women who oppose Trinidad's social norms")

and a definition of what it means to "oppose Trinidad's social

norms" ("in that they do not want to be subjected to abuse or

violent sexual abuse by family members or significant others based

on their gender"). Accordingly, Ferreira's PSG can be restated

simply as "Trinidadian women who oppose gender-based domestic

violence." There is no requirement that its members be survivors

of such violence.

In sum, the BIA rejected a PSG of its own devising and

not the social group Ferreira advanced. Its characterization

substantively altered the meaning of Ferreira's proffered PSG and

amounts to legal error. See Crespin-Valladares v. Holder,

(4th Cir. 2011) (The "[legal] error flowed from the

fact that, as the Government concedes, the BIA's removal order

rejected a group different from that which the Crespins

proposed.").

The government contends that, even properly formulated,

Ferreira's PSG is not cognizable because it lacks social

distinctiveness and particularity, and we may therefore affirm the

agency's denial of Ferreira's claim of withholding of removal on

that ground. We note that particularity and social distinctiveness

are context-specific inquiries. See Perez-Rabanales v. Sessions,

- 28 -

(1st Cir. 2018) ("The particularity requirement

seeks to determine whether a proffered social group can be

described in a manner sufficiently unique to ensure that the group

would be recognized in its own society as a discrete class of

persons."); Matter of M-E-V-G-,

(stating

that the particularity and social distinctiveness requirements are

to be "applied in the fact-specific context of an applicant's claim

for relief"). Critically, the agency has not had an opportunity

to pass on the proper formulation of Ferreira's PSG, and due to

the record-dependent nature of the inquiry, it should have the

opportunity to do so in the first instance. For that reason, we

remand to the BIA. On remand, the BIA should carefully consider

Ferreira's gender-based PSG in light of our decisions in De

Pena-Paniagua and Espinoza-Ochoa.

Before we end, we consider Ferreira's claim that the BIA

should have determined, or remanded to the IJ to determine in the

first instance, whether "Trinidadian women" was an appropriate

reading of her gender-based PSG. In her briefing to the BIA,

Ferreira explained that "a true articulation" of her gender-based

PSG "may have been 'Trinidadian women'" and identified portions of

the record arguably supporting her contention that she implicitly

advanced the "Trinidadian women" formulation of her PSG at the

outset.

- 29 - In a footnote, the BIA explained that "[t]o the extent

[Ferreira] proposes other particular social groups for the first

time on appeal, [it] decline[d] to address those groups," citing

Matter of W-Y-C-, 27 I. & N. Dec. at 190-91. Ferreira argues that

this brief footnote is not enough to demonstrate that the BIA

actually engaged in the analysis under Matter of W-Y-C-, which

requires comparing the PSGs at issue to determine if they are

substantially similar.

But we do not need to decide if the BIA conducted the

necessary legal analysis or if that analysis was correct because,

as we have concluded, the BIA misunderstood Ferreira's original

PSG. Thus, at best, it compared the PSG of "Trinidadian women" to

a PSG that Ferreira never advanced. Accordingly, should Ferreira

continue to offer this alternative iteration on remand, the BIA

should evaluate whether "Trinidadian women" is substantially

similar to Ferreira's original gender-based PSG, as correctly

formulated, before refusing to consider it.

III. CONCLUSION

For all of these reasons, we grant the petition in part,

vacate in part, and remand for proceedings consistent with this

opinion.

- 30 -