Nelida Ramirez Mendez v. U.S. Attorney General

USCA11 Case: 22-12509 Document: 20-1 Date Filed: 05/08/2023 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12509
Non-Argument Calendar
____________________
NELIDA RAMIREZ MENDEZ,
DEILY DOMINGO RAMIREZ,
DELEIDI DOMINGO RAMIREZ,
MILBER DOMINGO RAMIREZ,
UBILMER DOMINGO RAMIREZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
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2 Opinion of the Court 22-12509
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A208-193-212
____________________
Before WILSON, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Nelida Ramirez Mendez and her daughter, Deleidi Do-
mingo Ramirez, seek review of the Board of Immigration Appeals’
(BIA) final order affirming the immigration judge’s (IJ) order deny-
ing their respective applications for asylum, withholding of re-
moval, and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT). 1 After careful review, we dismiss in part, deny
in part, and grant in part the petition for review. We also vacate
certain parts of the BIA order and remand for further proceedings.
I.
First, Ramirez Mendez argues that the BIA erred in finding
that she did not suffer past persecution or have a well-founded fear
of future persecution on account of her race as an indigenous Ma-
yan.
1 Ramirez Mendez and Domingo Ramirez filed their own respective applica-
tions for asylum, withholding of removal, and CAT relief. Ramirez Mendez’s
application includes her children as derivative beneficiaries: Deleidi, Deily,
Milber, and Ubilmer Domingo Ramirez.
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22-12509 Opinion of the Court 3
We review only the decision of the BIA, unless the BIA ex-
pressly adopted the decision of the IJ. Kazemzadeh v. U.S. Att’y Gen.,
577 F.3d 1341, 1350 (11th Cir. 2009). In deciding whether to uphold
the BIA’s decision, we are limited to the grounds upon which the
BIA relied. See Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th
Cir. 2016) (per curiam).
We review legal conclusions de novo and review factual find-
ings for substantial evidence. Perez-Zenteno v. U.S. Att’y Gen., 913
F.3d 1301, 1306 (11th Cir. 2019). Under the substantial evidence
standard, we view the evidence in the light most favorable to the
agency’s decision, draw all reasonable inferences in favor of that
decision, and affirm the BIA’s decision “if it is supported by reason-
able, substantial, and probative evidence on the record considered
as a whole.” Id. (quotation marks omitted). To reverse the agency’s
fact findings, we must find that the record not only supports rever-
sal but compels it. Id. The mere fact that the record may support
a contrary conclusion is not enough to justify a reversal of the
agency’s findings. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.
2004) (en banc).
To meet the burden of establishing eligibility for asylum, a
non-citizen must, with specific and credible evidence, establish
(1) past persecution on account of a statutorily protected ground,
or (2) a “well-founded fear” that the non-citizen will be persecuted
on account of a protected ground. Diallo v. U.S. Att’y Gen., 596 F.3d
1329, 1332 (11th Cir. 2010) (per curiam); 8 C.F.R. § 1208.13(a), (b).
The protected grounds include, among other things, race and
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4 Opinion of the Court 22-12509
membership in a “particular social group.” Immigration and Na-
tionality Act (INA) § 101(a)(42), 8 U.S.C. § 1101(a)(42); 8 C.F.R.
§ 1208.13(a), (b). Past persecution creates a rebuttable presumption
of a well-founded fear of future persecution. De Santamaria v. U.S.
Att’y Gen., 525 F.3d 999, 1007 (11th Cir. 2008). Without a showing
of past persecution, an asylum applicant may show a well-founded
fear of future persecution by showing that the fear is subjectively
genuine and objectively reasonable. Id. The applicant must show
a reasonable possibility of suffering persecution, either by being
singled out for persecution or being identified with a regularly per-
secuted group. Li Shan Chen v. U.S. Att’y Gen., 672 F.3d 961, 965
(11th Cir. 2011) (per curiam).
An applicant must also establish a nexus between the feared
persecution and a protected ground, demonstrating that the pro-
tected ground “was or will be at least one central reason for perse-
cuting” her. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i). We
have held that “[e]vidence that treatment is consistent with general
criminal activity does not help [a petitioner] with the nexus require-
ment.” Sanchez-Castro v. U.S. Att’y Gen., 998 F.3d 1281, 1288 (11th
Cir. 2021). In Silva v. U.S. Attorney General, we held that although it
could be inferred that Silva was shot at because of her political ac-
tivity, substantial evidence did not compel such a conclusion because
Silva had not explained or distinguished herself “from the majority
of Colombians who are also subject to the general conditions of
violence and criminal activity in Colombia.” 448 F.3d 1229, 1238
(11th Cir. 2006). We found that although country reports reflected
that there was widespread and indiscriminate violence in Colombia
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22-12509 Opinion of the Court 5
and that Silva testified that Colombians routinely suffer similar in-
cidents of terroristic threats and violence, we could not say the
shooting was “indisputably related” to her political activity when
looking at the evidence in the light most favorable to the IJ’s deci-
sion. Id.A non-citizen is eligible for withholding of removal if she
shows that, upon return to her country, she more likely than not
will be persecuted there because of a protected ground, such as her
race or membership in a particular social group. INA § 241(b)(3), 8
U.S.C. § 1231(b)(3). If an applicant cannot meet the well-founded
fear standard of asylum, she generally will not be eligible for with-
holding of removal. Kazemzadeh, 577 F.3d at 1352.
Before we dive into whether the BIA’s decision is supported
by substantial evidence, we have a few housekeeping matters to ad-
dress. First, despite both Ramirez Mendez and Domingo Ramirez
appealing the BIA’s decision, their brief argues only a well-founded
fear of persecution on account of race as a protected ground for
Ramirez Mendez. Thus, Domingo Ramirez has abandoned her
claim for well-founded fear of future persecution on account of
race. See Ruga v. U.S. Att’y Gen., 757 F.3d 1193, 1196 (11th Cir. 2014).
Second, Ramirez Mendez argues that the BIA erred as to her
claim of past persecution and well-founded fear of future persecu-
tion. But as the government correctly notes, Ramirez Mendez did
not argue to the BIA that the IJ erred on the claim of past persecu-
tion, meaning Ramirez Mendez failed to exhaust that claim. Jeune
v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016). Thus, we lack
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6 Opinion of the Court 22-12509
jurisdiction to consider Ramirez Mendez’s claim of past persecu-
tion because she failed to exhaust her administrative remedies. See
INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S.
Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam).
Turning to the merits of Ramirez Mendez’s petition, we find
that substantial evidence supports the BIA’s determination denying
asylum and withholding of removal to Ramirez Mendez based on
her claim that she had a well-founded fear of future persecution
due to her race as an indigenous Mayan. Ramirez Mendez did not
provide evidence of past persecution, and without such evidence,
she is not entitled to a presumption of future persecution. See De
Santamaria, 525 F.3d at 1007. As a result, Ramirez Mendez must
show that she had a well-founded fear of future persecution.
Ramirez Mendez submitted reports about the conditions in
Guatemala, specifically for indigenous people. Those reports de-
tailed inequality and exclusion based on racism and structural dis-
criminatory actions. One report noted that indigenous people ex-
perienced societal harm because of the “ongoing lack of protection
for the human rights of indigenous people and communities in ac-
cordance with international standards.” Ramirez Mendez testified
generally about that harm but only provided one specific instance
in which her neighbor threatened to take her land but ultimately
did not take the land.
Even if the record may support a conclusion contrary to the
BIA, that is not enough to compel us to reverse the BIA’s findings.
See Perez-Zenteno, 913 F.3d at 1306. Ramirez Mendez cannot rely
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22-12509 Opinion of the Court 7
on general violence as a claim for future persecution. See Silva, 448
F.3d at 1238. Despite the reports about the treatment of indigenous
people, other reports provided to the BIA show that Guatemalan
law does provide for equal rights for indigenous people. Thus, sub-
stantial evidence supports the BIA denying Ramirez Mendez’s ap-
plication for asylum. Because Ramirez Mendez does not meet the
more lenient standards for asylum relief, she cannot meet the high
standard to be eligible for withholding of removal. See Kazemzadeh,
577 F.3d at 1352.
The BIA’s decision to deny Ramirez Mendez’s application
for asylum and withholding of removal based on her race as an in-
digenous Mayan is supported by substantial evidence. Accord-
ingly, we deny the petition for review as to this issue.
II.
Second, Ramirez Mendez and Domingo Ramirez argue the
BIA erred in finding that they did not suffer past persecution or
have a well-founded fear of future persecution on account of their
particular social groups (PSG).
The BIA must provide “reasoned consideration” to a peti-
tioner’s claims. Jathursan v. U.S. Att’y Gen., 17 F.4th 1365, 1372 (11th
Cir. 2021). In Indrawati v. U.S. Attorney General, we analyzed the pe-
titioner’s claims that we considered were “arguments clothed in
reasoned consideration garb.” 779 F.3d 1284, 1302 (11th Cir. 2015)
(quotation marks omitted). We stated that we have sometimes
“granted petitions for review, vacated agency decisions, and re-
manded for further proceedings when the agency’s decision was so
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8 Opinion of the Court 22-12509
lacking in reasoned consideration and explanation that meaningful
review was impossible.” Id. “When assessing whether a decision
displays reasoned consideration, we look only to ensure that the IJ
and the BIA considered the issues raised and announced their deci-
sions in terms sufficient to enable review.” Id. “[T]he IJ and the
BIA need not address specifically each claim the petitioner made or
each piece of evidence the petitioner presented.” Id. (quotation
marks omitted). We will remand for lack of reasoned considera-
tion not because we disagree with the agency’s legal conclusions
and factual findings but because “given the facts and claims in the
specific case before the IJ and BIA, the agency decision [wa]s so fun-
damentally incomplete that a review of legal and factual determi-
nations would be quixotic.” Id. (quotation marks and emphasis
omitted).
In I.N.S. v. Orlando Ventura, the Supreme Court stated that “a
court of appeals should remand a case to an agency for decision of
a matter that statutes place primarily in agency hands.” 537 U.S.
12, 16 (2002) (per curiam). “The agency can bring its expertise to
bear upon the matter; it can evaluate the evidence; it can make an
initial determination; and, in doing so, it can, through informed
discussion and analysis, help a court later determine whether its
decision exceeds the leeway that the law provides.” Id. at 17.
Here, before the BIA, Ramirez Mendez and Domingo
Ramirez argued that their PSG was based on the interplay between
race and disability—specifically, their race as indigenous Mayans,
Domingo Ramirez’s disability, and Ramirez Mendez being the
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22-12509 Opinion of the Court 9
parent of a disabled child. 2 Based on the cumulative effect of those
two characteristics and their interplay, Ramirez Mendez and Do-
mingo Ramirez argued that this increased discrimination against
them and decreased their access to medical care. Despite them
making this clear argument, the BIA separately addressed the two
characteristics: (1) race as indigenous Mayans and (2) Ramirez
Mendez as the parent of a disabled child and Domingo Ramirez as
a disabled child. But the BIA failed to address those two character-
istics in combination. The BIA should have addressed how these
two characteristics interact to exaggerate the threat of persecution
to possibly establish a claim of well-founded fear of future persecu-
tion. Thus, the BIA failed to give reasoned consideration to
Ramirez Mendez’s and Domingo Ramirez’s PSG claims.
Because this was an important argument of Ramirez Men-
dez and Domingo Ramirez, the BIA’s decision not to address the
PSG is “so fundamentally incomplete that a review of legal and fac-
tual determinations would be quixotic.” Indrawati, 779 F.3d at
1302. Because the BIA did not address this issue, we must remand
to the agency, which sits in a better place to decide the matter in
the first instance. See Orlando Ventura, 537 U.S. at 17.
Because the BIA failed to give reasoned consideration to
Ramirez Mendez’s and Domingo Ramirez’s PSG claim based on
the interplay between their race as indigenous Mayans and
2 They also made the argument before the IJ, who did not address the inter-
play between those two characteristics.
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10 Opinion of the Court 22-12509
disability, we grant the petition for review as to this issue and re-
mand to the agency to address each petitioner’s claim in the first
instance.
III.
Last, Ramirez Mendez and Domingo Ramirez argue that the
BIA erred in denying their request for CAT relief.
We review the BIA’s factual determinations for the denial of
CAT relief3 under the substantial evidence standard, where we will
reverse the BIA only where the record compels it. Edwards v. U.S.
Att’y Gen., 56 F.4th 951, 966 (11th Cir. 2022). But sometimes we are
“prevented from performing that review in the first place.” Ali v.
U.S. Att’y Gen., 931 F.3d 1327, 1333 (11th Cir. 2019). “[O]ur review
of the Board’s decisions operates on a simple premise: The Board
has reached a decision only after having evaluated the entire evi-
dentiary record.” Id. But “[w]hen the Board has not convinced us
that it has done so, as is the case when we remand for a lack of
reasoned consideration, we hold that the decision is incapable of
review and thus do not proceed to analyze the Board’s legal or fac-
tual conclusions.” Id.3 To be eligible for CAT relief, an applicant must show that she more likely
than not will 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). All relevant evidence must be considered, including her abil-
ity to relocate and human rights violations within the country.
8 C.F.R. § 1208.16(c)(3).
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22-12509 Opinion of the Court 11
Here, in this BIA order, it is hard to comprehend whether the
BIA has addressed both Ramirez Mendez’s and Domingo Ramirez’s
CAT claims. When the BIA says that it is affirming the IJ’s denial
of CAT relief as to “respondents,” we assume that it means both
Ramirez Mendez and Domingo Ramirez. But as the BIA order pro-
gresses, it appears to only discuss Ramirez Mendez’s CAT claim
and not Domingo Ramirez’s CAT claim. This is a problem because
Ramirez Mendez’s and Domingo Ramirez’s CAT claims are not the
same. As noted, Domingo Ramirez is disabled, and she likely has a
stronger claim as a disabled indigenous Mayan than Ramirez Men-
dez, who is the indigenous Mayan mother of a disabled child. It
appears that the BIA either conflated Domingo Ramirez’s CAT
claim with Ramirez Mendez’s claim or simply ignored and failed to
address Domingo Ramirez’s CAT claim. As a result, the BIA has
failed to announce a decision “in terms sufficient to enable” this
court to review and understand why Domingo Ramirez’s CAT
claim was ultimately rejected. Tan v. U.S. Att’y Gen., 446 F.3d 1369,
1374 (11th Cir. 2006). Thus, the BIA failed to give reasoned consid-
eration to Ramirez Mendez’s and Domingo Ramirez’s CAT claims
as separate claims.
We do not pass judgment on whether or not it was a good
idea to address Domingo Ramirez’s and Ramirez Mendez’s peti-
tions together for review. And the BIA may ultimately come to the
same conclusion on remand, but remand requires the BIA to sepa-
rately address each petitioner’s individual CAT claim. If the BIA
reviews multiple petitions together (like for a family, as is the case
here), the BIA needs to make sure that it delineates whose claim it
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12 Opinion of the Court 22-12509
is referencing to ensure meaningful appellate review. Accordingly,
we grant the petition for review as to this issue and remand to the
agency to address each petitioner’s claim in the first instance.
IV.
To recap, we dismiss the petition in part for lack of jurisdic-
tion on Ramirez Mendez’s claim of past persecution because she
failed to exhaust her administrative remedies. We deny the petition
in part as to Domingo Ramirez’s and Ramirez Mendez’s claims that
they had a well-founded fear of future persecution due to their race
as indigenous Mayans. But we grant the petition in part because
the BIA did not adequately address Domingo Ramirez’s and
Ramirez Mendez’s PSG as a whole, nor did the BIA address Do-
mingo Ramirez’s and Ramirez Mendez’s request for CAT relief as
separate claims. Thus, we vacate the BIA’s order on those claims
and remand to the BIA. The BIA must consider Domingo
Ramirez’s and Ramirez Mendez’s PSG: (1) on account of how
Ramirez Mendez’s race as an indigenous Mayan interacted with
Ramirez Mendez having an indigenous child with a disability; and
(2) on account of how Domingo Ramirez’s race as an indigenous
Mayan interacted with her disability status. The BIA must also ad-
dress Domingo Ramirez’s and Ramirez Mendez’s CAT relief claims
separately.
PETITION DISMISSED IN PART, DENIED IN PART,
AND GRANTED IN PART.