De Pena-Paniagua v. Barr
957 F.3d 88
1st Cir.2020Background
- Petitioner Jacelys Miguelina De Pena-Paniagua, a Dominican national, alleged long‑term domestic abuse by her former partner (including rape, repeated threats, assaults, and attempts to control custody of her son) and reported incidents to Dominican police who did not effectively protect her.
- De Pena fled the Dominican Republic (to Panama, then the United States in Dec. 2013), applied for asylum, withholding of removal, and CAT protection; the immigration judge (IJ) found credibility issues and denied relief, including concluding her proposed particular social groups were legally deficient.
- The Board of Immigration Appeals (BIA) affirmed, relying solely on the Attorney General’s decision in Matter of A‑B as categorically foreclosing groups defined in material part by members’ "inability to leave" abusive relationships.
- De Pena appealed, arguing that A‑B does not categorically bar such groups and that the BIA erred by refusing to evaluate her proposed groups against the social‑group requirements on the record evidence.
- The First Circuit rejected a categorical rule that bars any group defined in material part as women "unable to leave" a relationship, held the BIA’s per se rejection was arbitrary, and remanded for case‑specific consideration of whether De Pena’s proposed groups satisfy the particular social group elements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Matter of A‑B categorically precludes any social group defined in material part by members' "inability to leave" an abusive relationship | A categorical bar is incorrect; groups must be evaluated case‑by‑case and deprivation to leave can arise from factors other than the persecution itself | A‑B rejects such groups as circular, lacking particularity and social distinctiveness; thus BIA may treat them as legally deficient | A‑B does not create a categorical rule; BIA erred by refusing to assess De Pena’s groups on the record and must consider them case‑specifically (remand) |
| Whether a broader group (e.g., "Dominican women") can constitute a particular social group here | A broader gender‑based group may be cognizable; gender is an immutable characteristic and can satisfy particularity and social distinctiveness | Not fully developed before the BIA; agency should have first opportunity to address it | Court declined to resolve; remanded so BIA can consider whether De Pena may pursue a broader group on remand |
| Whether the BIA may rely solely on A‑B without examining country‑specific evidence of group existence, particularity, or social distinctiveness | BIA must evaluate evidence showing that a proposed group exists and meets the three‑part test (immutability, particularity, social distinctiveness) | BIA treated A‑B as dispositive and need not examine further in all cases | Court held BIA must evaluate proffered groups against the governing legal requirements and the record; blanket application of A‑B is arbitrary |
Key Cases Cited
- Rreshpja v. Gonzales, 420 F.3d 551 (6th Cir. 2005) (individuals in a group must share a narrowing characteristic other than their risk of persecution)
- Perez‑Rabanales v. Sessions, 881 F.3d 61 (1st Cir. 2018) (rejecting an amorphous "unable to receive protection" group; social‑group determinations are case‑by‑case)
- Pan v. Gonzales, 489 F.3d 80 (1st Cir. 2007) (credibility determinations may rest on cumulative inconsistencies)
- Kadri v. Mukasey, 543 F.3d 16 (1st Cir. 2008) (sexual orientation and similar traits can form the basis of a particular social group)
- Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) (breadth of a group's membership alone does not preclude recognition as a particular social group)
- Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010) (size/breadth of a group does not necessarily defeat a social‑group claim)
- INS v. Cardoza‑Fonseca, 480 U.S. 421 (1987) (context on refugee/asylum law principles)