Rosa Chiroy-Melchor v. William P. Barr ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0078n.06
No. 18-3564
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Feb 15, 2019
ROSA CHIROY-MELCHOR, ) DEBORAH S. HUNT, Clerk
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
WILLIAM P. BARR, Attorney General, ) APPEALS
)
Respondent. )
BEFORE: McKEAGUE, GRIFFIN, and NALBANDIAN, Circuit Judges.
PER CURIAM. Rosa Chiroy-Melchor, a native and citizen of Guatemala, petitions this
court for review of an order of the Board of Immigration Appeals (BIA) dismissing her appeal
from the denial of her asylum application. We DENY the petition for review.
I.
Chiroy-Melchor entered the United States without inspection in January 2014, when she
was twenty-three years old. Upon her apprehension in Arizona, the Department of Homeland
Security served Chiroy-Melchor with a notice to appear in removal proceedings, charging her with
removability as an alien lacking a valid entry document when she sought admission to the United
States. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Chiroy-Melchor appeared before an immigration judge
(IJ), admitted the factual allegations set forth in the notice to appear, and conceded removability
as charged.
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Chiroy-Melchor filed an application for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT), seeking relief based on her race and membership in
a particular social group. Chiroy-Melchor alleged in her application that her brothers-in-law
harassed and attempted to rape her and that they will rape and kill her and her daughter if she
returns to Guatemala. At the merits hearing before the IJ, Chiroy-Melchor testified that she came
to the United States because her brothers-in-law were threatening her. According to Chiroy-
Melchor, her brother-in-law, Hermenegildo, tried to rape her when she was eight years old and
continued to harass her after that. Chiroy-Melchor testified that Hermenegildo left her alone after
she got married in 2005, but resumed harassing her when her husband left for the United States in
2010. Another brother-in-law, Francisco, also harassed Chiroy-Melchor beginning in 2013. At
the conclusion of the hearing, Chiroy-Melchor claimed persecution based on her membership in
two particular social groups: (1) the Chiroy-Melchor family and (2) Guatemalan women who lack
effective familial protection.
The IJ subsequently denied Chiroy-Melchor’s application for asylum, withholding of
removal, and CAT protection and ordered her removal to Guatemala. The IJ found Chiroy-
Melchor to be credible but found, despite discrepancies between her testimony and her written
submissions, that the sexual advances of her brothers-in-law did not constitute persecution. The
IJ rejected Chiroy-Melchor’s particular social groups because she had failed to show that the
Chiroy-Melchor family was socially distinct within Guatemalan society or that the lack of effective
familial protection was an immutable characteristic. The IJ further noted that Chiroy-Melchor had
failed to explain why she could not relocate within Guatemala and that her daughter remained in
Guatemala unharmed. Because Chiroy-Melchor had not demonstrated a well-founded fear of
persecution to support her asylum claim, the IJ determined, she could not show a clear probability
of persecution to qualify for withholding of removal. As for her claim for CAT protection, the IJ
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concluded that Chiroy-Melchor had failed to prove a clear probability of torture if she returned to
Guatemala.
On appeal to the BIA, Chiroy-Melchor argued that the IJ failed to consider her “gender,
her status as an indigenous Achi Mayan in Guatemala, and her membership in a particular social
group” in denying her application. Chiroy-Melchor asserted that she was entitled to asylum and
withholding of removal because she “suffered past persecution due to her sex and ethnicity and
has a presumption of . . . a well-founded fear of future persecution.” The BIA dismissed Chiroy-
Melchor’s appeal. The BIA pointed out that Chiroy-Melchor asserted two particular social groups
before the IJ: (1) the Chiroy-Melchor family and (2) Guatemalan women who lack effective
familial protection. Because Chiroy-Melchor did “not meaningfully contest the Immigration
Judge’s conclusion that neither of these proffered particular social groups is cognizable,” the BIA
deemed the issue abandoned. The BIA refused to address the particular social groups asserted by
Chiroy-Melchor for the first time on appeal. The BIA went on to conclude that, without a nexus
to a protected ground, Chiroy-Melchor could not demonstrate past persecution or a well-founded
fear of persecution on account of a protected ground and therefore could not satisfy her burden of
proof for asylum or the more stringent standard for withholding of removal. Finally, the BIA
declined to disturb the IJ’s determination that Chiroy-Melchor had failed to meet her burden of
proof for CAT protection.
This timely petition for review followed. Chiroy-Melchor’s brief in support of her petition
does not address her claims for withholding of removal and CAT protection. Chiroy-Melchor has
therefore forfeited any challenge to the agency’s denial of those claims by failing to raise them
before this court. See Shkabari v. Gonzales, 427 F.3d 324, 327 n.1 (6th Cir. 2005).
II.
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“Where, as here, the BIA issues its own decision rather than summarily affirming the IJ,
the BIA decision is reviewed as the final agency decision, but the IJ’s decision is also reviewed to
the extent that the BIA adopted it.” Harmon v. Holder, 758 F.3d 728, 732 (6th Cir. 2014). We
review the agency’s factual findings, including the determination that the alien failed to establish
eligibility for asylum, for substantial evidence, Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir.
2006), reversing only if “any reasonable adjudicator would be compelled to conclude to the
contrary,” 8 U.S.C. § 1252(b)(4)(B). “An alien who seeks asylum must establish that she meets
the definition of a ‘refugee,’ which means a person who is unable or unwilling to return to her
home country because of past persecution or a ‘well-founded fear’ of future persecution ‘on
account of race, religion, nationality, membership in a particular social group, or political
opinion.’” Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010) (quoting 8 U.S.C.
§ 1101(a)(42)).
The BIA affirmed the IJ’s denial of asylum on the basis that, in the absence of a nexus
between her alleged persecution and a statutorily protected ground, Chiroy-Melchor could not
demonstrate past persecution or a well-founded fear of persecution on account of such a protected
ground. Pointing out that the nexus issue was dispositive, the BIA expressly declined to address
Chiroy-Melchor’s other arguments in support of her asylum claim. Because our review is limited
to the issues decided by the BIA, see INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002) (per
curiam), Chiroy-Melchor’s arguments about issues other than the dispositive nexus issue are
misplaced.
In support of her petition for review, Chiroy-Melchor contends that she established an
adequate nexus between the harm suffered by her and her membership in the proposed particular
social group of Guatemalan women without effective familial protection. But Chiroy-Melchor
failed to assert this particular social group in her appeal to the BIA. We lack jurisdiction to review
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issues that were not exhausted before the BIA. See 8 U.S.C. § 1252(d)(1); Lin v. Holder, 565 F.3d
971, 978 (6th Cir. 2009). Because Chiroy-Melchor’s appeal did “not meaningfully contest” the
IJ’s conclusion that her proposed particular social group of Guatemalan women who lack effective
familial protection was not cognizable, the BIA deemed the issue abandoned. Chiroy-Melchor has
forfeited any challenge to the BIA’s forfeiture ruling by failing to raise the issue before this court.
See Shkabari, 427 F.3d at 327 n.1. Chiroy-Melchor’s brief in support of her petition for review
also fails to address the other particular social groups that she proposed before the IJ and the BIA,
thereby forfeiting review of those issues as well.
III.
Given that Chiroy-Melchor failed to exhaust her administrative remedies and also forfeited
arguments with respect to defining a particular social group and establishing a nexus between the
alleged persecution and her membership in a cognizable group, the record does not compel the
conclusion that she is eligible for asylum. Accordingly, we DENY Chiroy-Melchor’s petition for
review.
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