Mima Lisseth Lazo-Velasquez v. U.S. Attorney General

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10373
Non-Argument Calendar
____________________
MIMA LISSETH LAZO-VELASQUEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A206-103-419
____________________
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2 Opinion of the Court 21-10373
Before WILSON, JORDAN, and MARCUS, Circuit Judges:
PER CURIAM:
Mima Lazo-Velasquez seeks review of the Board of Immi-
gration Appeals’ (“BIA”) final order affirming the Immigration
Judge’s (“IJ”) denial of her applications for asylum pursuant to the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158(a), with-
holding of removal under the INA, 8 U.S.C. § 1231(b)(3), and relief
under the United Nations Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”),
8 C.F.R. § 1208.16(c). In her petition, Lazo-Velasquez argues that:
(1) the Agency erred in denying her asylum and withholding of re-
moval claims because the IJ erred in determining that her proposed
particular social group -- female students without male protection
-- was not cognizable; (2) the Agency wrongly determined that she
failed to satisfy the nexus requirement for her asylum and with-
holding of removal claims; (3) she met her burden for withholding
of removal under the INA because she established that she experi-
enced past persecution and that the Salvadoran government is un-
able and unwilling to protect her; and (4) the Agency erred in deny-
ing her CAT relief because the IJ erroneously found that the gov-
ernment would not acquiesce to her torture if she were removed
to her home country of El Salvador. After thorough review, we
deny the petition.
We review only the decision of the BIA except to the extent
the BIA expressly adopts the IJ’s decision. Lopez v. U.S. Att’y Gen.,
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21-10373 Opinion of the Court 3
504 F.3d 1341, 1344 (11th Cir. 2007). When the BIA agrees with the
IJ’s findings but makes additional observations, we review both de-
cisions on those issues. Singh v. U.S. Att’y Gen., 561 F.3d 1275,
1278 (11th Cir. 2009). Issues that the BIA did not reach in the first
instance are not properly before us, and we will not consider them.
Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016).
Factual determinations, including nexus determinations, are
reviewed under the substantial evidence test. Rodriguez v. U.S.
Att’y Gen., 735 F.3d 1302, 1308, 1311 (11th Cir. 2013). Under this
highly deferential standard, we “must affirm the BIA’s factual find-
ings so long as they are supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Lin-
geswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1286 (11th Cir. 2020)
(quotations omitted). We “review the record evidence in the light
most favorable to the agency’s decision and draw all reasonable in-
ferences in favor of that decision.” Ruiz v. U.S. Att’y Gen., 440 F.3d
1247, 1255 (11th Cir. 2006) (quotations omitted). We will reverse
a finding of fact only when the record compels it, not merely be-
cause the record may support a contrary conclusion. Id. A peti-
tioner abandons an issue before us by failing to address it in her
brief or by only making passing reference to it. Sepulveda v. U.S.
Atty. Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
First, we are unpersuaded by Lazo-Velasquez’s argument
that the Agency erred in denying her asylum and withholding of
removal claims. To establish asylum eligibility, the applicant must
show that she is a refugee. 8 U.S.C. § 1158(b)(1); Diallo v. U.S.
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4 Opinion of the Court 21-10373
Att’y Gen., 596 F.3d 1329, 1332 (11th Cir. 2010). The INA defines
a refugee as “any person who is outside any country of such per-
son’s nationality . . . and who is unable or unwilling to return to,
and is unable or unwilling to avail himself or herself of the protec-
tion of, that country because of” either (1) past persecution on ac-
count of a statutorily listed protected ground or (2) a well-founded
fear that the statutorily protected ground will cause future perse-
cution. 8 U.S.C. § 1101(a)(42)(A); Diallo, 596 F.3d at 1332. Pro-
tected grounds include “race, religion, nationality, membership in
a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A).
Under the INA’s withholding of removal provision, an ap-
plicant shall not be removed to a country if her “life or freedom
would be threatened in that country because of [her] race, religion,
nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). The applicant must show that
it is more likely than not that she will be persecuted or tortured on
account of a protected ground upon being returned to her country.
Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1238 (11th Cir.
2007). This standard is more stringent than the well-founded fear
standard for asylum claims, “so an applicant who is ineligible for
asylum is necessarily ineligible for withholding of removal.”
Sanchez-Castro v. U.S. Att’y Gen., 998 F.3d 1281, 1286 (11th Cir.
2021).
“Both standards contain a causal element known as the
nexus requirement.” Id. Under the nexus requirement, the
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21-10373 Opinion of the Court 5
noncitizen must show “that a protected ground ‘was or will be at
least one central reason for’” her persecution. Id. (quoting 8 U.S.C.
§ 1158(b)(1)). Protected grounds are not one central reason for an
applicant’s persecution if those grounds are “incidental” or “subor-
dinate to another reason for” an attack. Id. (quotations omitted).
Instead, “[a] reason is central if it is essential to the motivation of
the persecutor.” Id. (quotations omitted). Therefore, private acts
of violence and general criminal activity “do[] not constitute evi-
dence of persecution based on a statutorily protected ground.”
Ruiz, 440 F.3d at 1258. When “a gang targets a [victim] only as a
means to another end,” such as taking the victim’s money, “the
identity of the [victim] is only incidentally relevant,” and the attack
is not on account of the victim’s membership in a particular social
group. Sanchez-Castro, 998 F.3d at 1287.
Here, the Agency did not err in denying Lazo-Velasquez’s
asylum and withholding of removal claims. 1 As the record reflects,
1 We note at the outset that the BIA affirmed the IJ’s conclusion that Lazo-
Velasquez was ineligible for asylum or withholding of removal on the ground
that there was not enough evidence to find a nexus between the harm she
suffered and her membership in her particular social groups. In so doing, the
BIA assumed that her particular social groups were cognizable and made no
determinations about them. As a result, her argument about the cognizability
of her proposed social groups is not properly before us, and we will not con-
sider it. Gonzalez, 820 F.3d at 403. Nor will we address her arguments con-
cerning past persecution or future persecution, including whether the
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6 Opinion of the Court 21-10373
substantial evidence supports the Agency’s determination that
Lazo-Velasquez failed to establish that she was attacked on account
of her status as an unprotected female student, as opposed to being
attacked because the attackers wanted her money or for her to stay
out of their neighborhoods. Specifically, the record demonstrates
that she was attacked only outside of her town, the attackers stole
her belongings on each occasion, and they told her to stay outside
of their town. She testified that she did not know who her assail-
ants were, whether the assailants for each attack were the same, or
why they attacked her. Further, both her testimony and the coun-
try conditions evidence support that gang violence and extortion
are common. Although her cousin, who was also a student, was
killed, Lazo-Velasquez did not state why her cousin was killed, and
when the IJ asked if she believed that her attackers targeted her for
a specific reason, she said that she did not know. Accordingly, the
record does not compel the conclusion that she was attacked be-
cause she was an unprotected female student. Ruiz, 440 F.3d at
1255.
Salvadoran government is unable or unwilling to protect her, since the BIA
did not rule on these issues either. Id.However, we disagree with the government’s claim that Lazo-Ve-
lasquez has not meaningfully challenged the Agency’s determination that her
protected status was not “at least one central reason.” Our review of the brief-
ing reveals that Lazo-Velasquez has made sufficient legal and factual argu-
ments about this determination to have adequately raised it to us. Sepulveda,
401 F.3d at 1228 n.2.
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21-10373 Opinion of the Court 7
Because Lazo-Velasquez cannot satisfy the nexus require-
ment for her asylum claim, she necessarily cannot satisfy the nexus
requirement for her withholding of removal claim. Sanchez-Cas-
tro, 998 F.3d at 1286. Accordingly, she cannot satisfy the require-
ments for either asylum or withholding of removal and we deny
the petition as to these issues.
We similarly are unconvinced by Lazo-Velasquez’s claim
that the Agency erred in denying her CAT relief. We review the
BIA’s determination that a petitioner is ineligible for CAT relief un-
der the substantial evidence standard. Sanchez-Castro, 998 F.3d at
1288. An applicant seeking CAT relief must establish “that it is
more likely than not that he or she would be tortured if removed
to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2);
Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir.
2004). Torture is any act intended to cause “severe physical or
mental pain or suffering,” and the applicant must show that it
would be “inflicted by or . . . with the consent or acquiescence of a
public official acting in an official capacity or other person acting in
an official capacity.” 8 C.F.R. § 1208.18(a)(1), (5). “A government
does not acquiesce to torture where it actively, albeit not entirely
successfully, combats the alleged torture.” Lingeswaran, 969 F.3d
at 1294 (quotations omitted). Evidence relevant to an applicant’s
eligibility for CAT relief includes, but is not limited to: (1) incidents
of past torture inflicted upon the applicant; (2) the viability of relo-
cation within the country of removal as a means to avoid torture;
(3) flagrant violations of human rights within the country of
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8 Opinion of the Court 21-10373
removal; and (4) other relevant country conditions. 8 C.F.R.
§ 1208.16(c)(3)(i)-(iv).
Here, substantial evidence supports the Agency’s determi-
nation that Lazo-Velasquez failed to show that a public official
would acquiesce to her harm. Notably, she testified that she was
not afraid of the Salvadoran government and did not believe that
anyone connected to the government would harm her. Addition-
ally, the country report shows that the government is attempting
to control criminal activity. Thus, she cannot show that crime in
El Salvador alone constitutes government acquiescence to her po-
tential torture. See Lingeswaran, 969 F.3d at 1294. Moreover, Lazo-
Velasquez’s general allegations of the government’s corruption
and inefficiency do not show that the Salvadoran government will
more likely than not acquiesce to her torture if she is removed to
El Salvador. Id.; 8 C.F.R. § 1208.16(c)(2). Accordingly, substantial
evidence supports the BIA’s dismissal of her appeal, and we deny
her petition for review.
PETITION DENIED.