Barnica-Lopez v. Garland ( 2023 )

United States Court of Appeals
For the First Circuit
No. 21-1313
BRENDA BARNICA-LOPEZ; ASHLEY NICOLE LOPEZ-BARNICA,
Petitioners,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lynch, and Howard,
Circuit Judges.
Kevin P. MacMurray, Daniel T. Welch, and MacMurray &
Associates LLC on brief for petitioners.
Brian M. Boynton, Principal Deputy Assistant Attorney
General, Civil Division, U.S. Department of Justice, Anthony C.
Payne, Assistant Director, Office of Immigration Litigation, and
Alexander J. Lutz, Trial Attorney, Office of Immigration
Litigation, on brief for respondent.
February 8, 2023
HOWARD, Circuit Judge. Petitioners Brenda Barnica-Lopez
("Barnica") and her daughter, Ashley Nicole Lopez-Barnica
("Ashley"), both natives and citizens of Honduras, petition for
review of a final order of the Board of Immigration Appeals
("BIA"), which upheld an immigration judge's ("IJ") denial of their
request for asylum, withholding of removal, and protection under
the Convention Against Torture ("CAT"). The agency denied their
requests for asylum and withholding of removal based on a finding
that they had failed to demonstrate a well-founded fear of future
persecution "on account of" their membership in a protected social
group consisting of their nuclear family. Because we conclude
that this finding is supported by substantial evidence and that
the petitioners' CAT claim was not administratively exhausted, we
deny the petition in part and otherwise dismiss it for lack of
jurisdiction.
I.
From 2010 to 2013, Barnica and her long-time life partner
and now husband, Leslie Rene Lopez ("Rene"), were engaged in
business buying gold jewelry in Guatemala and reselling it for
profit in Honduras.1 As part of this venture, Rene drove back and
forth between Guatemala and Honduras two to three times per month
1 We draw the relevant facts from the administrative record.
See Adeyanju v. Garland, 27 F.4th 25, 31 (1st Cir. 2022). This
includes testimony before the IJ from Barnica and her husband,
which the IJ found to be credible and corroborated.
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to buy and transport the jewelry. He testified that he travelled
the same route each time and was often accompanied by Barnica or
other associates. For approximately two years, Rene completed
these trips without incident.
While carrying a large amount of jewelry during one of
these trips in June 2012, Rene and Barnica were closely followed
by a truck for about 30 minutes. They eventually shook the tail,
but the event left them frightened. Nevertheless, the couple
continued the periodic trips to Guatemala over the next several
months. In April 2013, however, a similar incident occurred that
escalated into a violent attack involving gunfire and at least one
of the attackers being shot and perhaps killed by one of Rene and
Barnica's two traveling companions. Rene and Barnica reported
this incident to two separate police agencies, at least one of
which conducted an immediate if perhaps incomplete investigation.
Following this incident, Rene and Barnica discontinued
their gold re-sale business, fearing that the attack was an
attempted robbery and that any future trips to Guatemala would
invite similar trouble. About one month later, Rene began
receiving death threats over the phone from the assailants,
including many text messages stating, e.g., that "this isn't over"
and "what you've done will not be left unpunished." The callers
told Rene that they would kill him and his family because of "what
[Rene's associate] had done to their partner." The associate
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received similar threats. Rene eventually changed his phone
number, and the threats temporarily stopped. Sometime thereafter,
however, Rene and Barnica received a "crumpled-up note" at their
home stating that, "no matter how much [they] hide," these men
would find them "to take revenge." It further stated that the
authors of the note "already knew that [Rene and Barnica] had a
daughter" -- who was Ashley, an infant at the time -- and that
they "were going to start off with [her]." The couple did not
report these threats to the police, believing that doing so would
be futile. They feared that Ashley would be killed if they stayed
in Honduras and so decided to leave.
In December 2013, Barnica and Ashley (together, the
"Barnicas") entered the United States without inspection and were
placed in removal proceedings for unlawful entry, pursuant to
Section 212(a)(6)(A)(i) of the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1182 (a)(6)(A)(i)). The Barnicas conceded
removability and, with the aid of counsel, applied for asylum,
withholding of removal, and protection under CAT. As grounds for
asylum and withholding of removal under the INA, the Barnicas
claimed that the series of death threats they received amounted to
past persecution due to their family relationship to Rene and that,
if returned to Honduras, they would suffer further persecution on
that protected ground. They did not separately articulate a basis
for CAT protection. An IJ denied the Barnicas' asylum and
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withholding of removal applications upon finding that they had
failed to demonstrate that a protected ground was "one central
reason" for past or future persecution. The IJ denied their
request for CAT protection on the ground that the Barnicas had
failed to prove a clear probability that they would be tortured
with the acquiescence of the Honduran government if repatriated.
The BIA affirmed that determination, largely adopting the IJ's
reasoning, although the BIA deemed certain essential aspects of
the petitioners' CAT claims to be waived on appeal.2 This timely
petition followed.
2 We agree that the Barnicas failed to administratively
exhaust their challenges to the agency's denial of CAT protection,
as the administrative record contains no developed argumentation
to the BIA specifically about the Barnicas' purported entitlement
to protection on this basis.
In their brief to us, the Barnicas contend that the IJ erred
in implicitly finding that the "[m]ental pain or suffering"
resulting from the death threats did not amount to past torture,
see 8 C.F.R. § 1208.18(a)(4), and they also contend that the
"[i]nadequate [r]esponsive [a]ction and [p]rotection" from the
Honduran police compelled a finding that they were and would be
subjected to torture "by" or "with . . . the acquiescence of" the
Honduran police, see id. § 1208.18(a)(1). But neither of these
arguments was presented in the Barnicas' appeal to the BIA. Rather,
their appellate brief to the BIA focused exclusively on their
asylum and withholding of removal claims and the elements
necessary to qualify for those distinct forms of relief. We have
repeatedly held that "[a] petitioner's 'failure to present
developed argumentation to the BIA on a particular theory [of
relief] amounts to a failure to exhaust administrative remedies as
to that theory.'" Yong Gao v. Barr, 950 F.3d 147, 153 (1st Cir.
2020) (quoting Avelar Gonzalez v. Whitaker, 908 F.3d 820, 828 (1st
Cir. 2018)); see, e.g., De Lima v. Sessions, 867 F.3d 260, 267
(1st Cir. 2017); Pérez Batres v. Lynch, 796 F.3d 157, 160 (1st
Cir. 2015). Accordingly, we dismiss their petition insofar as it
seeks review of the denial of CAT relief.
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II.
In their challenge to the agency's denial of their
requests for asylum and withholding of removal under the INA, the
Barnicas contend that the agency erred in finding that they failed
to establish that they have been or would be persecuted "on account
of" a statutorily protected ground. We disagree.
A.
Our review "typically focuses on the final decision of
the BIA," Loja-Tene v. Barr, 975 F.3d 58, 60 (1st Cir. 2020), but
"[w]here, as here, the BIA 'adopts and affirms the IJ's ruling'
but nevertheless 'examines some of the IJ's conclusions,' we review
both the BIA and IJ opinions as a unit," Gómez-Medina v. Barr, 975
F.3d 27, 31 (1st Cir. 2020) (quoting Perlera-Sola v. Holder, 699
F.3d 572, 576 (1st Cir. 2012)). In so doing, we review the agency's
legal conclusions de novo, "with some deference to [its] reasonable
interpretation of statutes and regulations that fall within its
purview," and its factual findings under "the substantial evidence
rule." Loja-Tene, 975 F.3d at 61 (quoting Pulisir v. Mukasey, 524
F.3d 302, 307 (1st Cir. 2008)). Under the substantial evidence
standard, we will only disturb the agency's findings if, in
reviewing the record as a whole, "any reasonable adjudicator would
be compelled to conclude to the contrary." Gómez-Medina, 975 F.3d
at 31 (quoting 8 U.S.C. § 1252(b)(4)(B)).
To qualify for asylum relief, an applicant bears the
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burden of proving that she is a refugee within the meaning of the
INA. 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 1208.13(a). A "refugee"
is someone "who is unable or unwilling to return to" her country
of origin "because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion." 8 U.S.C.
§ 1101(a)(42)(A); Al Amiri v. Rosen, 985 F.3d 1, 3 (1st Cir. 2021).
"Persecution" in this context requires proof of "a certain level
of serious harm (whether past or anticipated), a sufficient nexus
between that harm and government action or inaction, and a causal
connection to one of the statutorily protected grounds" enumerated
above. Martínez-Pérez v. Sessions, 897 F.3d 33, 39 (1st Cir. 2018)
(quoting Carvalho-Frois v. Holder, 667 F.3d 69, 72 (1st Cir.
2012)).
Applicants may satisfy this burden under one of two
approaches. Marín-Portillo v. Lynch, 834 F.3d 99, 101 (1st Cir.
2016); see 8 C.F.R. § 1208.13(b). First, if they can prove that
they "suffered from past persecution on account of one or more of
the five [protected] grounds," they are entitled to "a rebuttable
presumption that their fear of future persecution is well-
founded." Marín-Portillo, 834 F.3d at 101 (quoting Butt v.
Keisler, 506 F.3d 86, 90 (1st Cir. 2007)). Alternatively, they
may prove a well-founded fear of future persecution by presenting
"record evidence demonstrat[ing] that they genuinely harbor such
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a fear, and that it is objectively reasonable." Id. (quoting Butt,
506 F.3d at 90).
Similarly, "[t]o obtain relief in the form of
withholding of removal [under the INA], an alien must establish a
clear probability that, if returned to his homeland, he will be
persecuted on account of a statutorily protected ground." Sanchez-
Vasquez v. Garland, 994 F.3d 40, 46 (1st Cir. 2021) (citing 8
U.S.C. § 1231(b)(3)(A)). Like asylum, establishing persecution
for withholding of removal purposes requires an applicant to prove
"three discrete elements: a threshold level of past or anticipated
serious harm, a nexus between that harm and government action or
inaction, and a causal connection to one of the five statutorily
protected grounds" enumerated above. Id. The difference between
the two claims lies only in the requisite likelihood of future
persecution and the relevance of subjective fear. See Aguilar-
Escoto v. Sessions, 874 F.3d 334, 337-38 (1st Cir. 2017). That
is, "[w]ithholding of removal requires . . . a clear probability
of persecution, rather than merely [the] well-founded fear of
persecution" required for asylum, Sanchez-Vasquez, 994 F.3d at 46
(first alteration in original) (quoting Ang v. Gonzales, 430 F.3d
50, 58 (1st Cir. 2005)), and subjective fear is only relevant for
the latter, Aguilar-Escoto, 874 F.3d at 337-38. Accordingly,
"asylum precedents may be helpful in analyzing withholding-of-
removal cases," and vice versa. Sanchez-Vasquez, 994 F.3d at 46.
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B.
The Barnicas' petition concerns only the third of these
burdens, i.e., whether they established a causal relationship
between a statutorily protected ground and the death threats they
received in Honduras.
1.
For both asylum and withholding of removal purposes,
"[a] causal connection exists only if the statutorily protected
ground . . . was 'one central reason' for the harm alleged." Id.
at 47 (quoting Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008)
(quoting 8 U.S.C. § 1158(b)(1)(B)(i))). "In many cases, of course,
persecutors may have more than one motivation." Singh, 543 F.3d
at 5. Where such a "mixed motive" is asserted, "the statutorily
protected ground need not be the sole factor driving the alleged
persecution" and "the presence of a non-protected motivation does
not render an applicant ineligible for [relief]." Loja-Tene, 975
F.3d at 61 (internal quotes and cites omitted). Nevertheless, "to
qualify as [one] 'central reason,' for the harm, the [protected]
ground cannot be 'incidental, tangential, superficial, or
subordinate to another reason for [the] harm.'" Sanchez-Vasquez,
994 F.3d at 47 (quoting Singh, 543 F.3d at 5 (quoting In re J-B-
N- & S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007))). And, "[i]n all
events, the applicant retains the burden" of proving this element
of their claim. Loja-Tene, 975 F.3d at 61.
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The Barnicas' principal claim before the agency was that
"their family relationship" to Rene was a protected ground and
that it was (or would be) at least one central reason for the past
(or well-founded fear of future) persecution against them. To
support this contention, the Barnicas argued that the death threats
they received were "solely because of their familial ties to
[Rene,] who was a successful businessman." Put differently, they
argued that Rene had been "targeted for violence and menacing
threats" after he "refused to give in to his assailants" and that
the Barnicas "faced the same danger of retaliation by virtue of
their relationship to him." At the hearing before the IJ, however,
both Barnica and Rene testified that the assailants' threats were
motivated by a desire both to extort their money and to exact
revenge for their associate having shot one of the assailants.
In an oral decision, the IJ rejected the Barnicas' asylum
and withholding of removal claims after finding that they had
failed to establish that a protected ground was "one central
reason" for the shooting incident and death threats. First, the
IJ agreed with the petitioners that Barnica's and Rene's status as
"business owners and gold dealers" was a reason they were
"targeted" by the assailants, but determined that "this occupation
is not an immutable characteristic and therefore" failed to meet
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the applicable test for a particular social group.3
Second, the IJ found that, although the Barnicas' family
relationship could constitute a particular social group, the
evidence failed to establish that "their family membership is one
central reason that they were shot at or threatened with death" in
the past or reasonably feared they would be in the future. Rather,
the IJ found that the Barnicas were victims of criminal violence
and threats "due to transporting cash and gold and the revenge
that the criminals sought to extract once [their associate] shot
back and killed one of the assailants."
The BIA affirmed the IJ's findings in a written decision,
noting that neither "general violence and civil strife" nor
"personal disputes based on revenge" ordinarily demonstrate a
nexus to a protected ground, citing Marín-Portillo v. Lynch, 834
F.3d 99, 101-02 (1st Cir. 2016) and Escobar v. Holder, 698 F.3d
36, 38 (1st Cir. 2012). The BIA further noted that, here, the IJ
supportably found that "the only allusion to the [Barnicas'] family
was that the criminals, in making one of the threats, stated that
they knew [Barnica] had a daughter," but that Barnica had not
"otherwise provided evidence demonstrating that one central reason
3The Barnicas do not challenge this determination in their
petition for review, so we do not consider it here. See Perez
Vasquez v. Garland, 4 F.4th 213, 220 n.4 (4th Cir. 2021).
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for the shooting incident or the subsequent death threats was the
criminals' desire to overcome this protected ground."
2.
In their petition for review, the Barnicas essentially
advance three interrelated claims of error: 1) that the agency
committed legal error by failing to recognize "that there may be
more than one central reason for past persecution" and by ignoring
certain evidence of family targeting; 2) that the agency erred in
finding that their family membership was not at least one central
reason for their past persecution; and 3) that the BIA erroneously
deemed other proposed social groups reformulated in their appeal
to be waived. None of these claims of error is availing.
i.
The Barnicas' contention that the agency erred as a
matter of law by failing to "consider[] . . . the idea that there
may be more than one central reason for past persecution" and
overlooking certain evidence "suggest[ing] specific targeting of
the family" is belied by the record.
While we have remanded agency decisions that incorrectly
concluded "that a family cannot qualify as a particular social
group" without more, Aldana-Ramos v. Holder, 757 F.3d 9, 15 (1st
Cir. 2014) (emphasis added), as well as agency decisions that
failed to "utilize[] a mixed-motive or 'at least one central
reason' analysis, as the statute requires," Enamorado-Rodriguez
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v. Barr, 941 F.3d 589, 596-97 (1st Cir. 2019), the agency's
decision in this matter suffers from neither infirmity. The agency
accepted the Barnicas' family relationship as a cognizable social
group and repeatedly cited to and correctly applied the "one
central reason" standard in examining the nexus between that
protected ground and the harm they suffered. In so doing, the
agency necessarily "acknowledged the possibility of a mixed-motive
case, but based on the evidence presented, made a fact-specific
determination that [the Barnicas] had not shown that the
persecution was motivated by a family relationship." Villalta-
Martinez v. Sessions, 882 F.3d 20, 24 (1st Cir. 2018).
Accordingly, the Barnicas' first claim of legal error comes up
dry. Cf. Loja-Tene, 975 F.3d at 61-62 (holding that "the agency
did not improperly preclude the possibility of mixed-motive
persecution" where, as here, the agency properly applied the "one
central reason" standard (citing Villalta-Martinez, 882 F.3d at 24(same))).
Nor can we agree with the Barnicas' contention that the
agency ignored any evidence relevant to the causation inquiry. In
arguing otherwise, the Barnicas point to written statements
submitted by Barnica, Rene, and an associate, recounting the
roadway attack and the apparent motivation behind the subsequent
death threats received by Rene. Specifically, they contend that
the IJ ignored Barnica's statement that she believed the threats
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were motivated by the assailants' desire to "make a public
statement about what happens to people who attempt to defend
themselves." Similarly, the associate stated his belief that
"[w]hen [the assailants] were unsuccessful in their pursuits, they
became enraged and their goal is now to kill Rene, [Barnica, and
their two associates] to demonstrate how powerful they are."
But the IJ explicitly stated that she considered these
submissions and accepted them into the record. Although the IJ
did not specifically discuss these statements in her analysis,
that failure is not fatal. Although "an IJ may not simply ignore
substantial testimonial and documentary proof, she need not
discuss ad nauseam every piece of evidence." Pan v. Gonzales, 489
F.3d 80, 87 (1st Cir. 2007). "So long as the IJ has given reasoned
consideration to the evidence as a whole, made supportable
findings, and adequately explained its reasoning, no more is
exigible." Id. Here, the IJ did so. Indeed, the evidence
discussed above is consistent with the IJ's ultimate finding that
the threats were due to "the revenge that the criminals sought to
extract" in retaliation for resistance to the attempted robbery.
Thus, we cannot conclude that this evidence was ignored. Cf. Sok
v. Mukasey, 541 F.3d 43, 47 (1st Cir. 2008).
ii.
Next, the Barnicas broadly contend that the agency erred
in finding that their family relationship to Rene was not "one
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central reason for [their] past persecution." This is a factual
finding that we review under the "'highly deferential' substantial
evidence rule." Loja-Tene, 975 F.3d at 62 (quoting Lopez de
Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007)); see also
Ordonez-Quino v. Holder, 760 F.3d 80, 87 (1st Cir. 2014).
Accordingly, we consider whether the record considered as a whole
"compel[s] [a] contrary conclusion" to that reached by the agency,
Sompotan v. Mukasey, 533 F.3d 63, 68 (1st Cir. 2008) (quoting Lopez
de Hincapie, 494 F.3d at 218), and conclude that it does not.
"In order for family membership to serve as 'the linchpin
for a protected social group,' it 'must be at the root of the
persecution, so that family membership itself brings about the
persecutorial conduct.'" Ruiz-Escobar v. Sessions, 881 F.3d 252,
259 (1st Cir. 2018) (quoting Ruiz v. Mukasey, 526 F.3d 31, 38 (1st
Cir. 2008)); see also Perlera-Sola, 699 F.3d at 576 ("This
'kinship' criterion, it should be stressed, applies only where the
motivation for persecution is kinship and not because multiple
family members happen to be persecuted for a common reason but the
animus is not kinship."). Here, the record evidence does not
compel a finding that the Barnicas made this demonstration.
Indeed, the IJ's finding that "[t]he only [a]llusion to
the [Barnicas'] family from the criminals" was the final letter's
mention that Barnica and Rene had a daughter is supported by the
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record. 4
No other evidence concerning the death threats suggested
any kinship-motivated targeting, and the Barnicas concede that the
criminals' "initial" motivation in attempting to rob Rene and
Barnica was due to the gold they were carrying rather than any
animosity towards their nuclear family. Moreover, the record amply
supports the agency's finding that the subsequent death threats
were motivated by "revenge." Although the "at least one central
reason" standard does "not require an asylum applicant to
demonstrate that he was singled out only due to his protected
trait," Enamorado-Rodriguez, 941 F.3d at 596 (quoting Ordonez-
Quino, 760 F.3d at 90), the protected ground must be more than
"incidental, tangential, superficial, or subordinate to another
reason for [the] harm" to qualify as "one central reason."
Sanchez-Vasquez, 994 F.3d at 47 (quoting Singh, 543 F.3d at 5).
Substantial evidence supports the agency's implicit
4 The Barnicas also contend that the IJ's characterization of
this reference as an "illusion" demonstrates that the agency "only
briefly acknowledge[d]" their argument about their family
membership being a central reason for their persecution. But this
apparent transcription error was corrected to "allusion" by the
BIA, and both agency decisions treated the Barnicas' family
membership as lying at the heart of their claims. In any event,
and as previously discussed, "the body of the BIA's opinion (like
the IJ's [oral decision]) makes clear that [the agency] understood
that actions may be driven by more than one central motive." Loja-
Tene, 975 F.3d at 61 n.2. Thus, even if the IJ meant "illusion,"
rather than "allusion," we have regularly declined to give
dispositive weight to such an "isolated lapsus linguae." Id. The
agency plainly considered the death threats directed at the family.
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finding that the Barnicas' family ties to Rene were incidental or
subordinate to the assailants' vengeful purpose, rather than "at
the root of [the death threats]." Ruiz-Escobar, 881 F.3d at 259(quoting Ruiz, 526 F.3d at 38). It is well established that
"[e]vents that stem from personal disputes are generally not enough
to show the required nexus" between past harm and a protected
ground, Sompotan, 533 F.3d at 71, and we have long "viewed disputes
motivated by revenge as personal in nature," Marín-Portillo, 834
F.3d at 101 (citing Costa v. Holder, 733 F.3d 13, 17 (1st Cir.
2013)). In acknowledging this precedent, the agency supportably
found that the death threats at issue were motivated by revenge,
as both Barnica and Rene consistently testified that they believed
they were threatened because an associate had shot one of the
assailants. Indeed, Rene succinctly stated that "it was revenge"
that the men were after. His credited testimony was further
bolstered by evidence of the content of some of these threats --
which were described as saying "this isn't over" and "what you've
done will not be left unpunished" -- as well as evidence that a
non-family member also received similar threats. Cf. Villalta-
Martinez, 882 F.3d at 23-24 (testimony supporting finding that
gang members targeted all employees of petitioner's partner's
store for extortion contributed to substantial evidence that
petitioner's family relationship with the store owner was not one
central reason for the threats directed at her).
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The mere fact that the Barnicas received threats as a
family unit, without more, "does not convert the non-protected
criminal motivation into persecution on the basis of family
connections." Loja-Tene, 975 F.3d at 62 (quoting Aldana-Ramos,
757 F.3d at 19). Rather, "family membership itself [must] bring[]
about the persecutorial conduct" to constitute one central reason.
Ruiz-Escobar, 881 F.3d at 259 (quoting Ruiz, 526 F.3d at 38); see
also Perlera-Sola, 699 F.3d at 576-77. The agency's determination
that evidence of such a kinship-centered animus was lacking is
supported by substantial evidence, as we cannot say that "a
reasonable adjudicator would be compelled to conclude to the
contrary." Villalta-Martinez, 882 F.3d at 24; cf. Loja-Tene, 975
F.3d at 62 (holding that substantial evidence supported agency's
finding that "family ties did not motivate the petitioner's
persecution, even though those ties may have brought him into
proximity with his persecutor"); Marín-Portillo, 834 F.3d at 102("The mere fact that [the persecutor] . . . targeted members of
[the petitioner's] family does not . . . mean that the only
logical inference is that kinship ties, rather than the desire for
retaliation or deterrence, prompted [the persecutor's] threats."
(internal quotes omitted)).
iii.
Lastly, the Barnicas contend that the BIA erred in
finding that they had waived two other proposed social groups by
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failing to raise them before the IJ. The two groups were described
in briefing to the BIA as (i) "recognizable immediate family
members of successful and highly-targeted individuals," and (ii)
"individuals who are targeted after refusing to be victimized by
criminals." The BIA declined to address these groups on appeal,
relying on agency precedent requiring an applicant to "clearly
indicate" on the record before the IJ "the exact delineation" of
any proposed social group and noting that the BIA will generally
not consider "a new social group that is substantially different
from the one delineated below." Matter of W-Y-C- & H-O-B-, 27 I.
& N. Dec. 189, 191-92 (BIA 2018). The Barnicas argue that this
was legal error. We review questions of law de novo. Loja-Tene,
975 F.3d at 61; see also Cantarero-Lagos v. Barr, 924 F.3d 145,
149 (5th Cir. 2019) (applying de novo review to whether the BIA
erred by refusing to consider a reformulated social group).
The Barnicas contend that they preserved these social
groups by arguing before the IJ that they "suffered persecution
due to their membership in a social group as the family of a
successful business owner who refused to be victimized." (Emphasis
added). But the two groups presented on appeal to the BIA are, on
their face, linguistically and logically different from this group
proposed to the IJ. Cf. Cantarero-Lagos, 924 F.3d at 150-51. And
the Barnicas have failed to advance any explanation or argument
for how they are not "substantially different" under Matter of W-
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Y-C-. We therefore deem any such argument waived and do not find
that the BIA erred by not considering the proposed social groups.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
III.
For the forgoing reasons, the Barnicas' petition is
denied in part and otherwise dismissed for lack of jurisdiction.
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