Angelina Pedro-Pablo v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 26, 2018
• Docket: 17-11013
• Status: Unpublished

Opinion

Case: 17-11013 Date Filed: 01/26/2018 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-11013 Non-Argument Calendar ________________________

Agency No. A202-054-722

ANGELINA PEDRO-PABLO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(January 26, 2018)

Before WILLIAM PRYOR, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:

Angelina Pedro-Pablo, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ order affirming the Immigration Case: 17-11013 Date Filed: 01/26/2018 Page: 2 of 8

Judge’s denial of her application for asylum pursuant to § 208 of the Immigration

and Nationality Act (“INA”), 8 U.S.C. § 1158(a), withholding of removal under

INA § 241(b)(3), 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. § 208.16(c). After careful review, we deny her

petition.

I

Ms. Pedro-Pablo was born in Guatemala and raised in a small, primarily

indigenous village called Pecano Grande. She only speaks Acateno, a Mayan

dialect, and is a practicing Catholic. On November 25, 2014, Ms. Pedro-Pablo,

then 29 years old, left Guatemala for the United States, transported by human

smugglers. She entered the United States near San Ysidro, California on

December 7, 2014, and was apprehended by the Department of Homeland Security

that same day. The government sought removal and, in response, Ms. Pedro-Pablo

filed an application for asylum and withholding of removal under the INA and for

relief under the CAT in November of 2015.

In support of her application, Ms. Pedro-Pablo stated that, in 2013 and 2014,

a man she knew as Jose Pedro Miguel told her he was going to kill her if she “did

not want to be with him anymore” and that he was “there to bother” her. This

harassment took place along the road that Ms. Pedro-Pablo would take to Sunday

2 Case: 17-11013 Date Filed: 01/26/2018 Page: 3 of 8

church services. Ms. Pedro-Pablo reported that Jose Pedro Miguel was not

physically abusive, but abused her verbally. She noted that he made repeated

threats to kill her after she refused to marry him and that she was also afraid of

being kidnapped because kidnapping is prevalent in Guatemala.

Ms. Pedro-Pablo had a merits hearing on her application in July of 2016. In

addition to the events described above, Ms. Pedro-Pablo testified that Jose Pedro

Miguel was from a different village far away from hers and would cross paths with

her only on the route to church beginning in 2013. The real problems began, she

says, in 2014 when he confronted her and said that if she refused to marry him, he

would find her and kill her. Ms. Pedro-Pablo testified that she told her father about

this instance and that she wanted to leave Guatemala. Over the course of 2014,

Jose Pedro Miguel harassed Ms. Pedro-Pablo five or six times.

Consistent with her application, she testified that Jose Pedro Miguel never

physically assaulted her. At the merits hearing, Ms. Pedro-Pablo added that Jose

Pedro Miguel threatened her with a machete and that he always carried one with

him. She also testified that, after she fled to the United States, Jose Pedro Miguel

came to her father’s home and told him that he would find and kill her. Ms. Pedro-

Pablo also explained that her stepmother, Ramona, was physically abusive towards

her. Ms. Pedro-Pablo’s counsel asked why this abuse continued into adulthood,

but the government’s attorney objected to the relevance of the question. The IJ

3 Case: 17-11013 Date Filed: 01/26/2018 Page: 4 of 8

sustained the objection and counsel did not ask any further questions about

Ramona.

The IJ denied Ms. Pedro-Pablo’s application for relief for a variety of

reasons. First, the IJ found that Ms. Pedro-Pablo had embellished her testimony

and was not credible based on several substantial and material inconsistencies

between the application and hearing testimony. Second, the IJ found that she had

failed to meet her burden to prove that she suffered past persecution or had a well-

founded fear of future persecution on account of a statutorily protected ground.

Because she failed to establish any nexus between a protected ground—such as

race, religion, or membership in a particular social group—and her claim, she

could not obtain relief. For similar reasons, the IJ found Ms. Pedro-Pablo was not

eligible for protection under the CAT.

The BIA entered an order affirming the IJ’s denial of Ms. Pedro-Pablo’s

application for asylum, withholding of removal, and CAT claim. The BIA agreed

with the adverse credibility determination made by the IJ and also concluded that

Ms. Pedro-Pablo did not establish a nexus between her claims any protected

ground. She timely filed a petition for review of these determinations in our court.

II

Before addressing Ms. Pedro-Pablo’s arguments on the merits, we asses our

subject-matter jurisdiction de novo. See Indrawati v. U.S. Att’y Gen., 779 F.3d

4 Case: 17-11013 Date Filed: 01/26/2018 Page: 5 of 8

1284, 1297 (11th Cir. 2015). We may review a final order of removal only if a

petitioner has exhausted all administrative remedies available as a matter of right.

See 8 U.S.C. § 1252(d)(1); Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir.

2016). “[W]hen a petitioner has neglected to assert an error before the BIA that

[s]he later attempts to raise before us, the petitioner has failed to exhaust [her]

administrative remedies.” Jeune, 810 F.3d at 800 (citing Amaya-Artunduaga v.

U.S. Att’y Gen., 463 F.3d 1247, 1250–51 (11th Cir. 2006)).

To exhaust a claim before the BIA, a petitioner must have previously argued

“the core issue now on appeal” before the BIA. See Indrawati, 779 F.3d at 1297.

Although “exhaustion does not require a petitioner to use precise legal terminology

or provide well-developed arguments to support [a] claim; it does require that the

petitioner provide information sufficient to enable the BIA to review and correct

any errors below.” Jeune, 810 F.3d at 800 (citations and quotation marks omitted).

Ms. Pedro-Pablo asserts that her due process rights were violated when the

IJ sustained the government’s relevance objection to her counsel’s question about

her stepmother’s abuse. She argues that this prevented her from fully presenting

her case, but made no such argument before the BIA. We have acknowledged that

some due process claims and constitutional challenges may not require exhaustion

when the BIA does not have power to adjudicate those claims. See Amaya-

Artunduaga, 463 F.3d at 1251; Sundar v. I.N.S., 328 F.3d 1320, 1325 (11th Cir.

5 Case: 17-11013 Date Filed: 01/26/2018 Page: 6 of 8

2003). But we have also held that a petitioner must exhaust due process claims

when the BIA is capable of providing a remedy. See id. Ms. Pedro-Pablo could

have received a remedy in this case. If her due process claim had merit, the BIA

could have remanded the case to the IJ for further factual development. See 8

C.F.R. § 1003.1(d)(3)(iv). Therefore, her “allegation of a due process violation—

that [she] was denied a full and fair hearing before a neutral factfinder—is

precisely the kind of procedural error which requires exhaustion.” Amaya-

Artunduaga, 463 F.3d at 1251. Because her due process claim is unexhausted, we

lack jurisdiction to consider it.

III

We review only the decision of the BIA, except to the extent that the BIA

expressly adopts the IJ’s decision. See Jeune, 810 F.3d at 799; Al Najjar v.

Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). On appeal from the BIA’s

decision, we review legal questions de novo. See Ayala v. U.S. Att’y Gen., 605

F.3d 941, 948 (11th Cir. 2010). We review factual determinations under the

substantial evidence test. See Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th

Cir. 2004). The usual rules regarding proper presentation of issues for purposes of

waiver and abandonment also apply to petitions for review. See Sepulveda v. U.S.

Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (holding that issues not raised

on appeal are deemed abandoned).

6 Case: 17-11013 Date Filed: 01/26/2018 Page: 7 of 8

Agreeing with the IJ’s decision, the BIA denied Ms. Pedro-Pablo’s request

for asylum and withholding of removal under the INA for two reasons. First, the

BIA found that the IJ’s adverse credibility determination was not clearly

erroneous. Second, the BIA noted that Ms. Pedro-Pablo failed to challenge the IJ’s

determination that she did not establish a nexus to a protected ground required

under the INA. See 8 U.S.C. § 1158(b)(1)(B)(i) (“[T]he applicant must establish

that race, religion, nationality, membership in a particular social group, or political

opinion was or will be at least one central reason for persecuting the applicant.”);

Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1310 (11th Cir. 2013) (denying

petition where “proposed family member group” was not a particular social group

under meaning of INA).

Ms. Pedro-Pablo only challenges the first of these two grounds. Because she

has failed to properly challenge the BIA’s nexus determination—her due process

claim, as we have held, is not exhausted—she has abandoned the argument. See

Sepulveda, 401 F.3d at 1228, n.2. Her failure to challenge this independent ground

on appeal requires us to deny her petition. See Sapuppo v. Allstate Floridian Ins.

Co., 739 F.3d 678, 680 (11th Cir. 2014) (“When an appellant fails to challenge

properly on appeal one of the grounds on which the district court based its

7 Case: 17-11013 Date Filed: 01/26/2018 Page: 8 of 8

judgment, he is deemed to have abandoned any challenge of that ground, and it

follows that the judgment is due to be affirmed.”). 1

IV

Ms. Pedro-Pablo did not contest the BIA’s alternative finding that she failed

to satisfy the nexus requirement. Because this alone requires denial of her petition,

we do not address her claim that substantial evidence did not support the BIA’s

and IJ’s adverse credibility determination. Without jurisdiction over her

unexhausted due process claim, we cannot consider that either. Accordingly, we

deny her petition for review.

PETITION DENIED.

1 Similarly, Ms. Pedro-Pablo has abandoned challenge the determination that she failed to establish eligibility for protection under the CAT by failing to raise it on appeal. See Reyes- Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) (“[T]he burden of proof is on the applicant for withholding of removal under the CAT to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”) (alterations omitted); Sepulveda, 401 F.3d at 1228, n.2 (holding that failure to challenge denial of relief under the CAT abandoned the issue). 8