PAEZ, Circuit Judge:
Lesly Yajayra Perdomo ("Perdomo"), a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals' ("BIA") affirmance of the immigration judge's ("IJ") order denying asylum, withholding of removal, and relief under the United Nations Convention Against Torture ("CAT"). Perdomo sought asylum based on her fear of persecution as a young woman in Guatemala. Specifically, Perdomo argued that women were murdered at a high rate with impunity. The IJ denied the application because she found that young women in Guatemala were not a cognizable social group. The BIA affirmed, finding that a social group consisting of "all women in Guatemala" is over-broad and "a mere demographic division of the population rather than a particular social group."
I. FACTUAL AND PROCEDURAL BACKGROUND
Lesly Yajayra Perdomo is a citizen and native of Guatemala. She left Guatemala at age fifteen to join her mother in the United States in April 1991.
Perdomo has lived continuously in the United States since her entry in 1991, and she is fluent in English and Spanish. She completed high school in Reno, Nevada, and is currently employed as a Medicaid account executive at a medical facility in Reno. Perdomo is single, and she has no children. Both of Perdomo's parents are deceased, and she no longer has any close relatives in Guatemala; she currently lives with her stepfather and sister in Reno. Perdomo is actively involved in her Pentecostal church.
On April 21, 2003, the Immigration and Naturalization Service ("INS")
She requested asylum because she feared persecution as a member of a particular social group consisting of women between the ages of fourteen and forty. Perdomo testified that her fear was based on the high incidence of murder of women in Guatemala, and her own status as a Guatemalan woman. She provided the IJ with several reports by the Guatemala Human Rights Commission, which is based in the United States, documenting the torture and killing of women, the brutality of the killings, the non-responsiveness of the Guatemalan government to such atrocities, the countrywide prevalence of the killings, and the lack of explanation for the killings. Perdomo did not assert that she was the victim of past persecution; rather, she expressed a fear of future persecution if she were returned to Guatemala. Perdomo also testified that she would be targeted because she would not be accepted as a native citizen in Guatemala, but would be considered an American with financial resources due to the number of years that she has lived in the United States. She further testified that she may be targeted because of her active involvement in the Pentecostal church as well as her lack of family and other personal contacts in Guatemala. Perdomo also testified that she would not be able to obtain employment in Guatemala because the secretarial positions listed in Guatemalan newspapers only accept female applicants between the ages of eighteen and twenty-five, and job applications must be submitted with photographs.
Although the IJ found Perdomo's testimony to be credible and truthful, she denied
On appeal, the BIA agreed with the IJ's determination that Perdomo failed to establish a well-founded fear of future persecution in Guatemala on account of her membership in a particular social group. The BIA considered the group of "women between the ages of fourteen and forty who are Guatemalan and live in the United States" to be too broad to qualify as a protected social group. The BIA also rejected Perdomo's revised definition of the protected social group—"all women in Guatemala." The BIA concluded that this social group was even broader, and was a demographic rather than a cognizable social group under the INA. The BIA also upheld the IJ's denial of withholding of removal and relief under CAT, and granted Perdomo sixty days for voluntary departure.
Our jurisdiction to review a final order of removal is governed by 8 U.S.C. § 1252. We have jurisdiction to review the denial of an asylum application when a petitioner raises a question of law, including mixed questions of law and fact.
III. STANDARD OF REVIEW
Whether a group constitutes a "particular social group" under the INA is a question of law we review de novo. Hernandez-Montiel v. INS, 225 F.3d 1084, 1091(9th Cir.2000).
Where the BIA conducts its own review of the evidence and law rather than simply adopting the immigration judge's decision, as here, our review is limited to the BIA's decision. Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006).
A. General Framework
The Attorney General may, in his discretion, grant asylum to an alien who qualifies as a refugee within the meaning of INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). INA § 208(a)-(b)(1)(A), 8 U.S.C. § 1158(a)-(b)(1)(A). An alien establishes refugee status if she is unable or unwilling to return to her country of nationality either because of past persecution or a well-founded fear of future persecution on account of her race, religion, nationality, political opinion or membership in a particular social group. INA § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A); Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir.2005). The applicant bears the burden of proving her eligibility for refugee status. Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995).
B. Women as a Particular Social Group
The INA does not provide a definition for the term "particular social group." Hernandez-Montiel, 225 F.3d at 1091. The BIA has interpreted the term to mean a group with members who "share a common, immutable characteristic" that "members of the group either cannot change, or should not be required to change because
The BIA, however, does not "generally require a `voluntary associational relationship,' `cohesiveness,' or strict `homogeneity among group members.'" Id. at 74. The BIA has not yet specifically addressed in a precedential decision whether gender by itself could form the basis of a particular social group. It has, however, recognized as a "particular social group" women who belong to a particular tribe and who oppose female genital mutilation because that group is defined by characteristics that cannot be changed or should not be changed. In re Fauziya Kasinga, 21 I. & N. Dec. 357, 366 (BIA 1996). Whether females in a particular country, without any other defining characteristics, could constitute a protected social group remains an unresolved question for the BIA.
Our case law examining asylum claims based on membership in a particular social group continues to evolve. Initially, we required a "voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group." Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir.1986). We reasoned that the term "particular social group" was intended to apply to "cohesive, homogeneous group[s]" in order to avoid "extending refugee status to every alien displaced by general conditions of unrest or violence in his or her home country." Id. at 1577.
More recently, recognizing that we were the only circuit to require a "voluntary associational relationship," and noting that members of some social groups do not associate by choice, we developed a two-pronged approach to recognizing a protected social group. Hernandez-Montiel, 225 F.3d at 1092. In Hernandez-Montiel, we held that "[A] `particular social group' is one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it." Id. at 1093. Applying this definition, the court held that "gay men with female sexual identities in Mexico" constituted a particular social group. Id. at 1094. In so holding, we reasoned that "[s]exual orientation and sexual identity are immutable" and "are so fundamental to one's identity that a person should not be required to abandon them." Id. at 1093. We further noted that the evidence demonstrated that members of this group were specifically targeted for persecution "on account of" these characteristics.
While we have not held expressly that females, without other defining characteristics, constitute a particular social group,
C. The BIA's Analysis of Perdomo's Claim
Perdomo argues that women in Guatemala comprise a "particular social group" at high risk of "femicide," and that as a woman she has an objectively well-founded fear of future persecution in Guatemala.
The BIA reasoned that "all women in Guatemala" is overly broad and internally diverse, and constitutes "a mere demographic division . . . rather than a particular social group." The BIA relied on our decision in Sanchez-Trujillo in which we said that a group could not be defined by a "sweeping demographic division" where its members "naturally manifest a plethora of different lifestyles, varying interests, diverse cultures, and contrary political leanings." Sanchez-Trujillo, 801 F.2d at 1576-77. In Sanchez-Trujillo, we ultimately held that "young, urban, working class males of military age who had never served in the military or otherwise expressed support for the government of El Salvador" did not constitute a particular social group for purposes of asylum. Id. at 1577.
An analysis of whether a particular social group qualifies for asylum does not end with Sanchez-Trujillo, however. Under Hernandez-Montiel, which is based in large part on the BIA's Acosta decision, an innate characteristic may be the basis for a protected social group. Indeed, we have focused on the innate characteristics of such broad and internally diverse social groups as homosexuals and Gypsies to conclude that they constituted particular social groups for purposes of asylum. Karouni v. Gonzales, 399 F.3d 1163, 1172(9th Cir.2005) (holding that "all alien homosexuals are members of a `particular social group'"); Mihalev v. Ashcroft, 388 F.3d 722, 726 (9th Cir.2004) (concluding that "[t]here is no question that Gypsies are an identifiable ethnic group and that being a Gypsy is a protected ground [for asylum]").
To the extent we have rejected certain social groups as too broad, we have done so where "[t]here is no unifying relationship or characteristic to narrow th[e] diverse and disconnected group." Ochoa v. Gonzales, 406 F.3d 1166, 1171(9th Cir. 2005) (emphasis added). In Ochoa, the court determined that "business owners in Colombia who rejected demands by narco-traffickers to participate in illegal activity" was too broad because such a group had neither a voluntary relationship nor an innate characteristic to bond its members. Id. at 1170-71. Most recently, in Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir.2010), we noted that the proposed social group, "returning Mexicans from the United States," was similar to the types of large and diverse social groups we considered in Ochoa and Sanchez-Trujillo, which we concluded were too broad to qualify as cognizable social groups because they shared neither a voluntary relationship nor an innate characteristic.
Because the BIA failed to apply both prongs of the Hernandez-Montiel definition to Perdomo's claim that women in Guatemala constitute a particular social group, and because the BIA's decision is inconsistent with its own opinions in Matter of Acosta, 19 I. & N. Dec. at 233-34, and In re C-A-, 23 I. & N. Dec. at 955, we grant Perdomo's petition for review. We are mindful that under the ordinary remand rule, the agency should be given an opportunity in the first instance to make legal determinations entrusted to it by Congress. See Gonzales v. Thomas, 547 U.S. 183, 185, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006). This rule is particularly applicable here because we have said that "`[p]articular social group' . . . is an amorphous term." See Ramos-Lopez v. Holder, 563 F.3d 855, 859 (9th Cir.2009). We therefore remand for the BIA to determine in the first instance whether women in Guatemala constitute a particular social group, and, if so, whether Perdomo has demonstrated a fear of persecution "on account of" her membership in such a group. See Thomas, 547 U.S. at 185, 126 S.Ct. 1613; see also Negusie v. Holder, ___ U.S. ___, 129 S.Ct. 1159, 1167-68, 173 L.Ed.2d 20 (2009).
The petition for review is granted and remanded for further proceedings consistent with this opinion.