No PSG Defined by Harm; Exhaustion Required: Second Circuit in Rojas-Toledo and the 2025 AG Reset of Domestic-Violence Asylum Law

No PSG Defined by Harm; Exhaustion Required: Second Circuit in Rojas-Toledo and the 2025 AG Reset of Domestic-Violence Asylum Law

Introduction

In Rojas-Toledo v. Bondi, No. 24-500 (2d Cir. Nov. 13, 2025) (summary order), the United States Court of Appeals for the Second Circuit denied a petition for review from a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge’s (IJ) denial of asylum and withholding of removal. The petitioner, Angelica Maribel Rojas-Toledo, a native and citizen of Ecuador, sought protection based on a proposed particular social group (PSG) centered on domestic violence and the inability to obtain police protection.

The case squarely presents two recurring issues in protection jurisprudence: (1) whether a PSG defined by harm (or by the failure of state protection in response to harm) is cognizable under the Immigration and Nationality Act, and (2) whether a petitioner’s failure to challenge the IJ’s nexus finding before the BIA precludes judicial review (issue exhaustion). The opinion also explicitly notes a significant change in Department of Justice policy: the Attorney General’s 2025 decision in Matter of S-S-F-M-, 29 I. & N. Dec. 207 (A.G. 2025), which instructs adjudicators to adhere to Matter of A-B- I and to disregard Matter of A-R-C-G-, thereby reshaping the domestic-violence asylum landscape once again.

Although the court’s disposition is a non-precedential summary order, it offers a current and instructive synthesis of governing doctrine: a PSG must exist independently of the feared harm; robust country-conditions evidence is essential to establish social distinction and particularity; and arguments not raised to the BIA are not preserved for judicial review when the government invokes exhaustion.

Summary of the Opinion

The Second Circuit (Judges Jacobs, Leval, and Lohier) denied Rojas-Toledo’s petition for review and affirmed the BIA’s January 30, 2024, decision upholding the IJ’s February 12, 2019, denial of asylum and withholding of removal. The court:

  • Agreed that the petitioner’s proposed PSG—“victims of domestic violence who were unsuccessful in seeking police assistance”—is not cognizable because it is impermissibly circular and defined by the persecution itself.
  • Rejected petitioner’s reliance on Matter of A-R-C-G-, distinguishing it factually (petitioner was not married and could leave her relationship) and doctrinally (A-R-C-G- does not allow a group to be defined by the fact of domestic violence). The court further observed that the Attorney General in 2025 instructed adjudicators to disregard A-R-C-G- and follow Matter of A-B- I.
  • Identified an independent, dispositive bar: petitioner failed to exhaust a challenge to the IJ’s express “nexus” finding before the BIA, and the government invoked issue exhaustion. The court therefore declined to consider nexus on review.
  • Noted that the petitioner abandoned any Convention Against Torture (CAT) claim by not briefing it.

Analysis

Precedents Cited and Their Influence

The court’s analysis draws on a well-developed line of precedent on PSG cognizability and administrative review standards:

  • Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014): Central to the panel’s reasoning, Paloka holds that a PSG must exist independently of the persecution. It also recognizes that persecution can sometimes act as a “catalyst” for societal recognition—meaning persecution may illuminate, but cannot constitute, the group. The petitioner failed to explain how her experience catalyzed societal recognition of her proposed group, or to provide evidence of such recognition in Ecuadorian society.
  • Matter of M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A. 2014) and Matter of W-G-R-, 26 I. & N. Dec. 208 (B.I.A. 2014): These BIA decisions supply the three-part PSG test: immutability, particularity, and social distinction. The Second Circuit reaffirmed that a PSG cannot be defined exclusively by harm, must have clear boundaries, and must be socially distinct within the relevant society.
  • Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007): Supports the requirement that a PSG be sufficiently discrete and not amorphous or subjective.
  • Matter of A-B- I, 27 I. & N. Dec. 316 (A.G. 2018), Matter of A-B- III, 28 I. & N. Dec. 307 (A.G. 2021), and Matter of S-S-F-M-, 29 I. & N. Dec. 207 (A.G. 2025):
    • In 2018, A-B- I expressed skepticism that victims of private domestic violence could establish cognizable PSGs, emphasizing the need for groups to exist independent of harm.
    • In 2021, A-B- III vacated A-B- I and instructed adjudicators to follow pre-A-B- caselaw, including A-R-C-G-.
    • In 2025, S-S-F-M- overturned A-B- III, instructing the agency to adhere to A-B- I and to disregard A-R-C-G-. While the Second Circuit did not rely on S-S-F-M- to decide this case, it flagged the development, signaling a return to a more restrictive posture toward domestic-violence PSGs.
  • Matter of A-R-C-G-, 26 I. & N. Dec. 388 (B.I.A. 2014): Recognized “married women in Guatemala who are unable to leave their relationship” as a cognizable PSG on a case-specific record. The Second Circuit distinguished Rojas-Toledo’s case: she was not married and could leave the relationship; A-R-C-G- itself cautioned that a PSG cannot be defined by being subject to domestic violence; and after S-S-F-M-, adjudicators are instructed to disregard A-R-C-G- altogether.
  • Castro v. Holder, 597 F.3d 93 (2d Cir. 2010): Emphasizes that an applicant must demonstrate a “sufficiently strong nexus” between persecution and a protected ground.
  • Quituizaca v. Garland, 52 F.4th 103 (2d Cir. 2022): Clarifies that the “one central reason” causation standard applies to both asylum and withholding of removal in the Second Circuit.
  • Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir. 2005) and Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005): The court reviews the IJ’s decision as modified and supplemented by the BIA.
  • Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018) and 8 U.S.C. § 1252(b)(4)(B): Establish the standards of review: substantial evidence for fact-finding and de novo for legal questions and mixed questions.
  • Santos-Zacaria v. Garland, 598 U.S. 411 (2023); Ud Din v. Garland, 72 F.4th 411 (2d Cir. 2023); Vera Punin v. Garland, 108 F.4th 114 (2d Cir. 2024); Prabhudial v. Holder, 780 F.3d 553 (2d Cir. 2015): Confirm that issue exhaustion, while non-jurisdictional, is mandatory when the government invokes it; arguments not presented to the BIA cannot be heard on judicial review.
  • Debique v. Garland, 58 F.4th 676 (2d Cir. 2023): Claims not briefed are deemed abandoned; here, petitioner’s CAT claim was not briefed and was therefore not considered.

Legal Reasoning

The court applied familiar asylum and withholding principles to affirm the agency:

  • PSG Cognizability: The petitioner’s PSG—“victims of domestic violence who were unsuccessful in seeking police assistance”—failed because it was impermissibly circular, defined by the very harm and state-response failure at issue. The court emphasized that a PSG must be “recognizable” as a discrete group within the society, with clear boundaries, and must exist independently of the persecution. The opinion tied this outcome to Paloka and M-E-V-G-, rather than any single Attorney General decision, making the result resilient to shifting DOJ precedents.
  • Distinguishing A-R-C-G-: Even during the period when A-R-C-G- could be cited (before S-S-F-M-), it did not endorse groups defined by harm; and the facts here did not align because petitioner was not married and left the relationship. The claimant presented no country-conditions evidence showing that Ecuadorian society recognizes, as a distinct group, “victims of domestic violence who were unsuccessful in seeking police assistance,” nor did she show immutability, social distinction, and particularity for that formulation.
  • “Catalyst” Theory: Paloka recognizes that persecution can catalyze societal recognition, but the petitioner did not explain how her experience operated in Ecuador to produce a socially distinct group. Without record evidence, the theory could not salvage her PSG.
  • Nexus and Issue Exhaustion: Separately and independently, the IJ expressly found no nexus: the feared harm was from a private actor for personal reasons, not “on account of” a protected ground. The petitioner did not challenge that nexus finding before the BIA. Because the government invoked exhaustion, the Second Circuit declined to consider the unexhausted nexus challenge on review. This independently sustains the denial regardless of PSG cognizability.
  • Abandonment of CAT: The petitioner did not brief a CAT claim; the court treated it as abandoned and did not reach it.

Impact

Although non-precedential, this decision has practical significance and reflects the current doctrinal environment for domestic-violence-based protection claims in the Second Circuit and nationally:

  • Reaffirmation of the “independence from harm” rule: The court’s outcome rests on circuit and BIA caselaw (Paloka; M-E-V-G-; W-G-R-) that predates and outlasts the DOJ’s shifting positions in the A-B- and A-R-C-G- line. Practitioners should expect continued scrutiny of circular formulations such as “victims of domestic violence,” “victims who could not obtain police protection,” or “women who were abused by partners,” unless those formulations are reworked to identify immutable characteristics and social recognition not defined by harm.
  • The 2025 Attorney General reset (S-S-F-M-): The opinion’s express note that S-S-F-M- instructs adjudicators to follow A-B- I and disregard A-R-C-G- is consequential. It signals a more restrictive approach to domestic-violence PSGs and will influence how IJs and the BIA evaluate similar claims going forward. Even without relying on S-S-F-M-, the court highlights it as the controlling administrative backdrop.
  • Evidence matters—especially country conditions: Establishing social distinction and particularity typically requires targeted, country-specific evidence. Here, the absence of evidence showing that Ecuadorian society recognizes “victims of domestic violence unsuccessful in obtaining police assistance” as a distinct group (with definable boundaries) undermined cognizability.
  • Nexus remains a gatekeeper: Even a cognizable PSG fails without proof that the protected characteristic is at least “one central reason” for the harm (Quituizaca). Where the IJ makes an adverse nexus finding, it must be challenged before the BIA to preserve it for judicial review.
  • Issue exhaustion is enforced when invoked: After Santos-Zacaria clarified that exhaustion is non-jurisdictional, the Second Circuit has consistently treated it as mandatory upon the government’s invocation (Ud Din; Vera Punin). This case applies that approach, underscoring that failure to brief issues to the BIA can be fatal on review.
  • Practice pointers for domestic-violence claims post-S-S-F-M-:
    • Carefully craft PSGs to avoid circular definitions tied to harm or inability to secure police protection.
    • Anchor the PSG in immutable traits (e.g., gender; a formally recognized relationship status where relevant, mindful that “inability to leave” must rest on societal and legal constraints, not merely factual history of prior abuse).
    • Develop robust country-conditions evidence showing that society recognizes the proposed group as distinct and that the group has clear, well-defined boundaries in that country.
    • Build and preserve the nexus case: document persecutor motives, statements, and patterns linking harm to the protected trait.
    • Exhaust every dispositive issue—cognizability, nexus, protected-ground theories, and CAT—before the BIA.

Complex Concepts Simplified

  • Particular Social Group (PSG): A protected category for asylum/withholding claims. To be cognizable, a PSG must:
    • Share an immutable characteristic (something you cannot change or should not be required to change, such as gender or, in some societies, marital status).
    • Be defined with particularity (clear, objective boundaries; not amorphous).
    • Be socially distinct (recognized by the relevant society as a distinct group).
    A PSG cannot be defined by the harm being suffered; it must exist independent of the persecution.
  • Circularity: A group is “circular” if it is defined by the very persecution claimed (e.g., “people targeted for extortion,” “women abused by partners”). Circular groups are generally not cognizable.
  • Social Distinction vs. Visibility: Social distinction does not require literal visibility; it asks whether society perceives the group as a distinct class. Country-conditions evidence often is critical here.
  • Nexus (“one central reason”): The protected characteristic must be a central reason for the persecutor’s conduct—more than incidental or tangential. Personal vendettas or purely criminal motives often fail this test.
  • Issue Exhaustion: To have an argument heard by a federal court, it must first be presented to the BIA. If the government invokes exhaustion, courts will refuse to consider issues not raised below.
  • Standards of Review:
    • Substantial evidence for factual findings (the court upholds them unless any reasonable adjudicator would be compelled to reach the opposite conclusion).
    • De novo for legal questions and application of law to fact.
  • CAT Abandonment: Claims not briefed on appeal are treated as abandoned and will not be considered.

Conclusion

Rojas-Toledo underscores two decisive features of current protection law in the Second Circuit. First, PSGs must be framed around immutable traits with clear boundaries and social recognition—not around the persecution suffered or the state’s failure to protect. Without country-specific evidence establishing social distinction and particularity, such claims will falter. Second, issue exhaustion is outcome-determinative when invoked by the government; a petitioner who fails to challenge the IJ’s nexus finding before the BIA effectively forfeits judicial review of that issue.

The court’s nod to the Attorney General’s 2025 decision in Matter of S-S-F-M- signals that adjudicators are to follow A-B- I and disregard A-R-C-G-. While the panel’s ruling ultimately rests on longstanding Second Circuit and BIA principles independent of DOJ policy shifts, the 2025 reset reinforces a more restrictive environment for domestic-violence-based PSG claims. The key takeaways are clear: define PSGs independently of harm, marshal country-conditions proof of social distinction and particularity, meticulously preserve all arguments before the BIA, and substantiate nexus with record evidence showing that a protected ground is one central reason for the harm.

Case Details

Year: 2025
Court: Court of Appeals for the Second Circuit

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