Maria Hernandez-Guevara v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11234
Non-Argument Calendar
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Agency No. A206-838-227
MARIA HERNANDEZ-GUEVARA, et al.,
Petitioners,
versus
UNITED STATES ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 8, 2020)
Before MARCUS, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
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Maria Hernandez-Guevara and her son seek review of the Board of
Immigration Appeals’ (BIA) final order adopting and affirming the Immigration
Judge’s (IJ) denial of her application for asylum, withholding of removal, and
relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (CAT). The agency denied
relief, in part, because Hernandez-Guevara did not allege a cognizable particular
social group under the Immigration and Nationality Act (INA), and because she
did not establish the necessary likelihood of torture by the Honduran government
or with its acquiescence. We affirm the BIA’s and IJ’s decisions and deny
Hernandez-Guevara’s petition.
I. ASYLUM AND WITHHOLDING OF REMOVAL
To start, Hernandez-Guevara did not abandon her opportunity to challenge
the BIA’s determinations regarding asylum and withholding of removal. We will
consider Hernandez-Guevara’s arguments because she adequately identified the
issues and relevant arguments in her brief. See Cole v. U.S. Att’y. Gen., 712 F.3d
517, 530–31 (11th Cir. 2013). Despite the dearth of citations to the record and
applicable law, she sufficiently developed her arguments—certainly making more
than “passing references” to the core issues—to avoid abandonment or waiver. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681–82 (11th Cir. 2014).
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We review only the BIA’s decision, “except to the extent that it expressly
adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). Because the BIA adopted the IJ’s decision here, we review both decisions.
See id.
Hernandez-Guevara seeks asylum as a refugee. She has the burden of
proving statutory “refugee” status. INA § 208(b)(1)(B)(i), 8 U.S.C. §
1158(b)(1)(B)(i). To establish refugee status, an applicant must prove “persecution
or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” INA
§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A).
At issue here, first, is whether Hernandez-Guevara asserted a cognizable
“particular social group,” a question of law that we review de novo. See Gonzalez
v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016) (per curiam). While the
INA does not define “particular social group,” we have applied Chevron deference
to the BIA’s formulation of the criteria that must be satisfied. Castillo-Arias v.
U.S. Att’y Gen., 446 F.3d 1190, 1196–97 (11th Cir. 2006). A “particular social
group” is “a group of persons all of whom share a common, immutable
characteristic.” Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1308–09 (11th
Cir. 2019) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985),
overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA
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1987)). The characteristic must be unchangeable or fundamental to individual
identities or consciences. Id. at 1309. The group must be socially distinct within
the relevant society and defined with particularity, not overbroadly or
amorphously. Id. The common characteristic must be something other than the
risk of being persecuted. See Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1310
(11th Cir. 2013) (per curiam); see also Matter of E-A-G-, 24 I. & N. Dec. 591,
594–95 (BIA 2008) (finding that people who resist joining gangs are not part of a
socially distinct group within Honduran society).
Here, the IJ and BIA properly found that Hernandez-Guevara’s asserted
social group—Honduran women who have been victimized by the Mara 18 for
opposition to their acts—did not constitute a particular social group under the INA.
For one, Hernandez-Guevara provides no evidence suggesting that the group is
recognized as distinct in Honduran society. See Perez-Zenteno, 913 F.3d at 1309.
Further, her group is amorphous and lacks particularity. See id. Women of all
ages and backgrounds could be members. And only the human imagination limits
potential forms of victimization, making definition impossible. The same is true
for forms of opposition. Beyond that, the group is defined by the alleged
persecution, which cannot create a particular social group. See Rodriguez, 735
F.3d at 1310. Therefore, we agree with the IJ and BIA; Hernandez-Guevara’s
asserted group is not cognizable.
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Because the IJ and BIA properly held that Hernandez-Guevara’s alleged
group is not cognizable, we need not address her challenge to the factual findings
that she failed to show past persecution or a well-founded fear of future
persecution. Also, because Hernandez-Guevara cannot show a particular social
group for asylum, she likewise cannot show one for purposes of proving
withholding of removal. See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A).
Accordingly, the IJ and BIA did not err in denying Hernandez-Guevara’s asylum
and withholding of removal claims.
II. CAT
Turning to Hernandez-Guevara’s CAT relief claim, we must address the
government’s argument that we lack jurisdiction because she failed to exhaust her
administrative remedies. We “may review a final order of removal only if . . . the
alien has exhausted all administrative remedies available to [her] as of right.” INA
§ 242(d)(1), 8 U.S.C. § 1252(d)(1). The exhaustion requirement is jurisdictional
and precludes review of a claim not presented to the BIA. Amaya-Artunduaga v.
U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). To exhaust an
issue, all we require is that the party raise before the BIA the “core issue” now on
appeal, not the specific reasons the IJ gave for denying relief. Montano Cisneros v.
U.S. Att’y Gen., 514 F.3d 1224, 1228 n.3 (11th Cir. 2008). A petitioner need not
have used “precise legal terminology” or provided the BIA with “a well-developed
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argument,” so long as she gave the BIA sufficient information to allow it to review
and correct any errors. Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th
Cir. 2015) (alteration accepted). “This is not a stringent requirement.” Id.
Here, Hernandez-Guevara exhausted her administrative remedies. In her
brief to the BIA, she raised the “core issue” of the IJ’s denial of her CAT claim.
See Montano Cisneros, 514 F.3d at 1228 n.3. She provided a legal standard
evoking torture and the more-likely-than-not standard, argued that the IJ erred in
weighing the evidence, and stated that she had established that she would more
likely than not be tortured upon return to Honduras. Indeed, the BIA then
addressed these arguments in its decision. Though her arguments were not
necessarily well developed, she gave the BIA sufficient information to allow it to
review and correct errors as to the weighing of the evidence. See Indrawati, 779
F.3d at 1297.
Turning to the merits, we uphold a denial of CAT relief if it is supported by
substantial evidence; the record must compel reversal. See Alim v. Gonzales, 446
F.3d 1239, 1254–55, 1257 (11th Cir. 2006). The applicant bears the burden of
proving that it is more likely than not that she would be tortured if removed to the
proposed country of removal. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239,
1242 (11th Cir. 2004); 8 C.F.R. § 208.16(c)(2). To qualify as torture, the requisite
pain and suffering must be “inflicted by or at the instigation of or with the consent
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or acquiescence of a public official or other person acting in an official capacity.”
8 C.F.R. § 208.18(a)(1). Acquiescence requires that the government, prior to the
activity constituting torture, be aware of such activity and fail to intervene.
Reyes-Sanchez, 369 F.3d at 1242.
Hernandez-Guevara argues that, if she returns to Honduras, it is more likely
than not that she will be killed or kidnapped by the Mara 18 with the government’s
acquiescence because the gang’s crimes are a normal occurrence and the police do
not protect citizens from the gang. Though some record evidence may support a
contrary conclusion, the record does not compel us to find that Hernandez-Guevara
would more likely than not suffer torture by the Honduran government or with its
acquiescence. See Alim, 446 F.3d at 1254–55. The Honduran constitution and
laws prohibit government torture, and the government formed a commission to
address the problem of persons displaced by violence and gang activity. More
specifically to Hernandez-Guevara, the police responded to the report her family
filed concerning the incident where the Mara 18 tied and beat her and her
grandparents and shot her cousin. Thus, substantial evidence supports the IJ’s and
BIA’s denial of Hernandez-Guevara’s claim for CAT relief.
PETITION DENIED.
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