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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 18-60731 Document: 00515297708 Page: 2 Date Filed: 02/04/2020 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 2 Case: 18-60731 Document: 00515297708 Page: 3 Date Filed: ...
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