Eydi Xec-Chavez v. Merrick B. Garland

United States Court of Appeals
For the Eighth Circuit
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No. 21-2851
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Eydi Xec-Chavez
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: March 3, 2022
Filed: March 24, 2022
[Unpublished]
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Before COLLOTON, SHEPHERD, and GRASZ, Circuit Judges.
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PER CURIAM.
Eydi Xec-Chavez, a native and citizen of Guatemala, petitions for review of an
order of the Board of Immigration Appeals (BIA). The BIA dismissed her appeal
from an immigration judge’s (IJ’s) decision denying her application for asylum and
withholding of removal.1 Having considered the record and the parties’ arguments,
we deny the petition for review.
Xec-Chavez sought relief before the IJ based on membership in the following
proposed particular social groups (PSGs): (1) “family members of Guatemalan
soldiers,” involving threats made by gang members, and (2) “individuals who have
been mistreated by a family member,” involving unrelated abuse from a family
member. In her BIA appeal, however, she expressly delineated a reformulated
version of her second proposed PSG. The BIA did not consider it and instead
considered her claims as she originally delineated them.
In this court, Xec-Chavez expressly abandons her first proposed PSG. To the
extent she nevertheless continues to assert entitlement to relief based on the gang-
related incidents, she cannot do so in light of her decision to abandon the PSG on
which she based those claims. See Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756
(8th Cir. 2004).
As for her second proposed PSG, Xec-Chavez argues the BIA erred by failing
to consider the re-delineated version, claiming counsel “inarticulately” defined the
PSG before the IJ. On the record in this case, we conclude the BIA did not reversibly
err by disregarding her reformulated PSG on appeal. See Matter of W-Y-C- &
H-O-B-, 27 I. & N. Dec. 189, 190–91 (BIA 2018) (reiterating the BIA’s long-standing
waiver rule and the applicant’s burden to “clearly indicate ‘the exact delineation of
any [PSG(s)] to which she claims to belong’”) (citation omitted); see also, e.g., Jaco
v. Garland, 24 F.4th 395, 402 (5th Cir. 2021) (explaining the BIA has discretion to
entertain new PSGs but “does not commit reversible error by declining to do so”);
1
We do not review Xec-Chavez’s claim for protection under the Convention
Against Torture because she expressly abandoned it. See Chay-Velasquez v. Ashcroft,
367 F.3d 751, 756 (8th Cir. 2004).
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Cantarero-Lagos v. Barr, 924 F.3d 145, 151–52 (5th Cir. 2019) (concluding
requirement in W-Y-C- for an “exact delineation” for PSGs was not “excessively
strict”); accord Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (holding
BIA “does not per se err when it concludes that arguments raised for the first time on
appeal do not have to be entertained.”). To the extent Xec-Chavez further attempts
to narrow her PSG in this court, we lack jurisdiction to consider it. See Baltti v.
Sessions, 878 F.3d 240, 244 (8th Cir. 2017).
Because Xec-Chavez argues she was entitled to asylum based on her
reformulated PSG, but does not meaningfully challenge the BIA’s reasons for
denying her claim as originally delineated, we conclude she has waived review of the
BIA’s dispositive determinations. See Chay-Velasquez, 367 F.3d at 756. In any
event, the agency did not err in denying asylum. See, e.g., Fuentes v. Barr, 969 F.3d
865, 871–72 (8th Cir. 2020) (cognizability); Silvestre-Giron v. Barr, 949 F.3d 1114,
1117, 1117–19 & n.3 (8th Cir. 2020) (nexus); Barillas-Mendez v. Lynch, 790 F.3d
787, 788–90 (8th Cir. 2015) (past persecution). Finally, to the extent Xec-Chavez
intended to challenge the denial of withholding of removal, her claim fails. See
Baltti, 878 F.3d at 246 (explaining a petitioner ineligible for asylum necessarily
cannot meet the higher burden of proof required for withholding of removal).
For these reasons, we deny the petition for review. See 8th Cir. R. 47B.
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