Re-affirming the Anti-Circularity Rule for “Particular Social Groups” and the Consequences of Waiver under CAT:
Commentary on Vanegas Hernandez v. U.S. Attorney General

Introduction

The Eleventh Circuit’s unpublished decision in Aleyda Evelyn Vanegas Hernandez v. U.S. Attorney General, No. 23-12607 (11th Cir. July 1, 2025) (per curiam), revisits two perennial themes in U.S. immigration law: (1) what constitutes a cognizable “particular social group” (PSG) for asylum and withholding purposes, and (2) how issues—particularly Convention Against Torture (CAT) claims—are lost through waiver and failure to exhaust. Although designated “Do Not Publish,” the opinion crystallises doctrinal boundaries that practitioners must heed, especially in domestic-violence-based claims after the vacatur of the controversial Attorney General decision Matter of A-B- I.

Petitioners Aleyda Evelyn Vanegas Hernandez and her minor daughter fled El Salvador after decade-long abuse by Ms Vanegas Hernandez’s former partner. She sought asylum, withholding of removal, and CAT relief, proposing a PSG framed around Salvadoran women who, after entering a new relationship and having children by a second man, are viewed as “property” by the first partner. The Immigration Judge (IJ) found the PSG non-cognizable and denied CAT relief; the Board of Immigration Appeals (BIA) affirmed, determining the CAT claim waived. The Eleventh Circuit has now dismissed the CAT portion for failure to exhaust and denied review of the PSG ruling, holding the group “impermissibly circular” and unsupported by country-conditions evidence.

Summary of the Judgment

• CAT Relief: The court dismissed the CAT claim for lack of exhaustion because the petitioner “did not meaningfully challenge” the IJ’s denial before the BIA. Argument on the merits before the court of appeals could not cure the waiver.
• Asylum and Withholding: The court denied the petition, agreeing that the proposed PSG— “Salvadoran women in a domestic relationship with another or a second man with children born out of the first relationship … who are viewed as property by the first man”—is non-cognizable. It is circularly defined by the very harm feared (being viewed as property and abused) and lacks the “social distinction” and evidentiary support demanded by precedents such as Matter of M-E-V-G-.

Analysis

Precedents Cited and Their Influence

The panel wove a dense network of Board and circuit decisions that have shaped PSG jurisprudence:

• Matter of Acosta, 19 I.&N. Dec. 211 (BIA 1985): Origin of the “immutable characteristic” test.
• Matter of M-E-V-G-, 26 I.&N. Dec. 227 (BIA 2014) and Matter of W-G-R-: Elaborated the “particularity” and “social distinction” prongs, stressing that persecutory conduct alone cannot create a group.
• Matter of A-R-C-G-, 26 I.&N. Dec. 388 (BIA 2014): Recognised a domestic-violence-based PSG (“married women in Guatemala who are unable to leave their relationship”) and highlighted the need for societal recognition and legal constraints.
• Matter of A-B- I, 28 I.&N. Dec. 307 (AG 2021) (vacated 2021) & AG’s 2021 vacatur: Although the IJ had relied on A-B-I, the Eleventh Circuit clarified that the anti-circularity principle pre-dated and survived A-B-I’s vacatur.
• Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302 (11th Cir. 2013); Alvarado v. U.S. Att’y Gen., 984 F.3d 982 (11th Cir. 2020); Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301 (11th Cir. 2019): Circuit decisions rejecting PSGs defined mainly by risk of persecution or too broadly (e.g., “Honduran women viewed as property”).
• Sepulveda, 401 F.3d 1226 (11th Cir. 2005) & Hasan-Nayem, 55 F.4th 831 (11th Cir. 2022): Applied to affirm waiver of CAT issues not briefed to the BIA.
• Standards of review outlined in Farah, Jeune, etc.

Legal Reasoning of the Court

1. Waiver / Exhaustion (CAT)
   Under 8 U.S.C. §1252(d)(1) and Eleventh Circuit precedent, an issue not argued “meaningfully” before the BIA is unexhausted. The petitioner’s passing mention of CAT in her BIA brief was insufficient; therefore the court lacked jurisdiction to review.
2. Non-Cognizability of the Proposed PSG
   a. Anti-Circularity: The defining feature “viewed as property” is itself the persecution feared (domestic violence and subjugation), violating the rule that “risk of persecution alone does not create a group.”
   b. Lack of Social Distinction: Country-conditions evidence showed widespread violence against all women, not heightened targeting of the narrower subset (women with children by a prior partner). Thus society would not perceive the subgroup as distinct.
   c. Insufficient Particularity Evidence: No demographic, legal, or societal markers distinguished the subgroup; it was “amorphous, overbroad, diffuse, or subjective.”
3. Reasoned Consideration Challenge Rejected
   The petitioner argued the BIA/IJ failed to give “reasoned consideration” because they relied on vacated A-B-I. The panel countered that only the anti-circularity holding—long-standing and independent of A-B-I—was applied. Therefore, the agency’s analysis remained sound and reviewable.

Impact of the Judgment

• Domestic-Violence-Based Asylum Strategy
  The opinion reiterates that successful PSGs must (i) isolate an immutable characteristic unrelated to the persecutor’s acts, (ii) show societal recognition, and (iii) avoid circular definitions. Applicants relying on domestic-violence narratives must therefore document legal, cultural, or institutional constraints (e.g., inability to divorce, patriarchal norms codified in law) that single them out as a socially distinct class.
• Preservation of CAT Claims
  The case is a cautionary tale: merely “checking the CAT box” in a notice of appeal does not preserve the issue. Practitioners should treat CAT as a separate claim, with its own headings, legal framework, and argumentation.
• Continued Vitality of Anti-Circularity Doctrine
  Even post-vacatur of A-B-I, circuits will police PSG definitions aggressively. Attempting to embed persecution (e.g., “targeted,” “viewed as property,” “extorted”) into the group label will likely fail unless anchored to an independent immutable trait and corroborated by country conditions.
• Unpublished but Persuasive
  Although “Do Not Publish” opinions are non-precedential in the Eleventh Circuit, they can be cited for persuasive value in other circuits and before the agency, reinforcing existing Board and Eleventh Circuit caselaw.

Complex Concepts Simplified

• Particular Social Group (PSG): Think of a PSG like a club. To qualify, membership must be: (1) based on something people cannot change (immutable), (2) clearly defined so outsiders can tell who is in or out (particular), (3) recognized by society as a distinct set (socially distinct). Importantly, you cannot create the club only by saying “people persecuted by X.”
• Circular Definition: A legal “no-go” where the group is defined by the very harm it fears. Example: “People targeted by gangs” is circular because being “targeted” is the persecution.
• Waiver vs. Exhaustion: “Exhaustion” requires raising an argument before the BIA so a court can review it later. “Waiver” occurs when an argument is abandoned or not developed. In practice, if you waive at the BIA level, you also fail to exhaust, and the court of appeals must dismiss for lack of jurisdiction.

Conclusion

Vanegas Hernandez underscores two pivotal lessons. First, domestic-violence and other private-actor claims still can succeed, but only when the PSG is crafted with precision, is free from circularity, and is supported by robust evidence of societal perception. Second, issue preservation is paramount; cursory or undeveloped references to CAT or any other relief are fatal on review. For immigration advocates, the case is a timely reminder that meticulous PSG formulation and comprehensive briefing at every stage remain the linchpins of humanitarian relief.