Case: 21-60138 Document: 00516473985 Page: 1 Date Filed: 09/16/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 16, 2022 No. 21-60138 Lyle W. Cayce Summary Calendar Clerk Rosa Del Carmen Gonzales-De Valle, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Agency No. A208 376 173 Before Wiener, Elrod, and Engelhardt, Circuit Judges. Per Curiam:* Rosa Del Carmen Gonzales-De Valle, a native and citizen of El Salvador, has filed a petition seeking review of a decision of the Board of Immigration Appeals (BIA) denying her motion to reconsider its decision affirming an Immigration Judge’s (IJ) denial of her application for asylum, * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-60138 Document: 00516473985 Page: 2 Date Filed: 09/16/2022 No. 21-60138 withholding of removal, and relief under the Convention Against Torture (CAT). This court reviews the BIA’s denial of a motion to reconsider “under a highly deferential abuse-of-discretion standard.” Lowe v. Sessions, 872 F.3d 713, 715 (5th Cir. 2017) (internal quotation marks and citation omitted). As long as the BIA’s decision “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,” it will be upheld. Id. (internal quotation marks and citation omitted). Gonzales-De Valle argues that the BIA erred in rejecting her motion to reconsider as an attempt to relitigate claims that could have been raised in her initial appeal of the decision of the IJ. She contends that the BIA based its particular social group (PSG) analysis on a change in the law that she could not have foreseen when she filed her brief, and it was therefore proper for her to challenge the BIA’s analysis in her motion for reconsideration. The BIA rejected Gonzales-De Valle’s proposed PSG of “lower-class Salvadoran women who have refused a forced sexual relationship with a gang member” as impermissibly defined by the harm directed at its members. The BIA noted that, while her appeal was pending, the Attorney General had overruled Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014), and had concluded that, to be cognizable, a PSG must exist independently of the harm asserted in the asylum application. See Matter of A-B-, 27 I. & N. Dec. 316, 316 (A.G. 2018) (A-B- I). Matter of A-B- I has since been vacated, however, and the Attorney General has instructed IJs and the BIA to follow pre-A-B- I precedent, including Matter of A-R-C-G-, under which some PSGs based on domestic violence were recognized. See Matter of A-B-, 28 I & N. Dec. 307, 309 (A.G. 2 Case: 21-60138 Document: 00516473985 Page: 3 Date Filed: 09/16/2022 No. 21-60138 2021) (A-B- III). Gonzales-De Valle argues that because Matter of …
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