Case: 19-11631 Date Filed: 12/27/2019 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-11631 Non-Argument Calendar ________________________
Agency No. A206-622-169
BRENDY ASCENCIO-CORADO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(December 27, 2019)
Before MARTIN, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM: Case: 19-11631 Date Filed: 12/27/2019 Page: 2 of 8
Brendy Ascencio-Corado, a citizen of Guatemala, seeks review of the Board
of Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”)
denial of her application for asylum, withholding of removal, and Convention
Against Torture (“CAT”) protection. Ascencio-Corado argues that the BIA erred
when it retroactively applied Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018),
because agency rules should apply only prospectively given their close tie to
legislation.
I. A. FACTUAL BACKGROUND
Ascencio-Corado is a native and citizen of Guatemala, born July 16, 1982, in
Jalpatagua, Guatemala. In 2010, she met her husband, Josue Gilberto Pacheco
Lopez. They dated for three years before she and her two children from a previous
relationship moved in with Pacheco Lopez in July of 2013. One month later,
Pacheco Lopez began to abuse her and control her life. He dictated how Ascencio-
Corado could dress and whether she could wear makeup at her job. He physically
and verbally abused her in both private and public. For example, Pacheco Lopez
(1) once hit Ascencio-Corado in the face with an umbrella at a bus stop; (2) put her
in a headlock upon picking her up from work; and (3) hit her in front of his mother
and grandfather. In private, Pacheco Lopez would rape her daily, and if she
attempted to refuse him, he would hit her and she believed he would kill her.
2 Case: 19-11631 Date Filed: 12/27/2019 Page: 3 of 8
During this time, Ascencio-Corado continued to work, even though Pacheco Lopez
did not want her to. However, she eventually quit her job because Pacheco Lopez
continuously pursued her while she was at work and would abuse her physically
when he came to her workplace. Ascencio-Corado also sent her children to live
with another family member because she did not want them to see Pacheco Lopez
abuse her.
After five or six months of living together, Pacheco Lopez confessed to
Ascencio-Corado that he was a “gang member” and “a murderer.” He admitted
that he had killed his former girlfriend because of her affiliation with another gang,
and, when a potential gang member refused to join, Pacheco Lopez threw him
down a ravine. Around the time of this confession, Ascencio-Corado tried to leave
Pacheco Lopez for the first of many times. She was largely unsuccessful because
each time she voiced her intention to leave, he would threaten to kill her and her
children. Ascencio-Corado was also afraid of Pacheco Lopez’s connections,
through his gang, to the police.
She tried to leave him five times in total. The first time, in November 2013,
she told Pacheco Lopez she could not take it anymore because he was going to kill
her. He responded by saying she did not know who she was messing with.
Ascencio-Corado did not physically leave the house that first time because she was
scared. The other four times she tried to leave him, she told him—when he was
3 Case: 19-11631 Date Filed: 12/27/2019 Page: 4 of 8
calm—that it was best if they separated, but he replied with verbal threats. She
finally separated from him on January 5, 2015, because she “made a decision either
to live or to die.” While Ascencio-Corado was waiting at a bus stop, Pacheco
Lopez arrived—very drunk—grabbed her by the head, and beat her. While he was
beating her, a motorcycle drove by. The biker saw what was happening, stopped,
and told Pacheco Lopez to stop or he would call the police. Pacheco Lopez
released Ascencio-Corado and she left, bleeding. She then went to a friend’s house
to live for about a month.
However, Pacheco Lopez found her at the friend’s house, forced her to let
him inside, and beat her. She left and relocated eight hours away to her mother’s
home. Pacheco Lopez searched for Ascencio-Corado, but never found her at this
location. She never reported the abuse she suffered to the Guatemalan police
because, if she had, Pacheco Lopez would “immediately” find out.
Ascencio-Corado then left for the United States, where she entered near
Hidalgo, Texas, around February 28, 2014, and was detained by the Department of
Homeland Security (“DHS”). Pacheco Lopez does not know Ascencio-Corado is
in the United States, and she fears returning to Guatemala because she believes he
will kill her.
4 Case: 19-11631 Date Filed: 12/27/2019 Page: 5 of 8
B. PROCEDURAL HISTORY
DHS commenced removal proceedings on March 21, 2014, when it served
Ascencio-Corado with a Notice to Appear (“NTA”), charging her as removable
from the United States for being present without having been admitted or paroled.
Ascencio-Corado appeared pro se before the San Antonio Immigration Court on
May 12, 2014, and admitted the factual allegations in the NTA. She timely filed
her Form I-589 Application for Asylum under Section 208 of the Immigration and
Nationality Act (“INA”), and timely filed her applications for withholding of
removal and CAT protection.
On December 11, 2017, the IJ issued a decision denying her application for
asylum, withholding of removal and relief under the CAT, and ordered her
removed to Guatemala. In explaining its decision, the IJ found that Ascencio-
Corado was not credible. The IJ also found that her proposed “particular social
group” (“PSG”) of “women of Guatemala who are unable to leave their
relationship” was a cognizable PSG, but the IJ held that she did not establish her
membership within that PSG nor that her fear of future harm was caused by her
membership within the PSG. The IJ also held that her fear of returning to
Guatemala was not objectively reasonable.
On December 26, 2017, Ascencio-Corado timely appealed the IJ’s decision
to the BIA. The BIA issued a decision on March 13, 2019, affirming the IJ’s
5 Case: 19-11631 Date Filed: 12/27/2019 Page: 6 of 8
determination that Ascencio-Corado did not meet her burden of proof to qualify for
asylum. Applying Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), the BIA
reversed the IJ’s determination that Ascencio-Corado’s PSG was cognizable. It
then upheld the IJ’s decision that Ascencio-Corado did not prove her fear of future
harm was caused by her membership in the PSG she proposed. Finally, the BIA
declined to terminate Ascencio-Corado’s proceedings based on her argument that
the NTA issued in her case did not list the time and place of her initial removal
hearing.
Ascencio-Corado timely appealed the BIA’s determination to this Court.
See INA § 242(b)(1), 8 U.S.C. § 1252(b)(1).
II. Ascencio-Corado’s only argument on appeal is that the BIA erred in
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Case: 19-11631 Date Filed: 12/27/2019 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-11631 Non-Argument Calendar ________________________
Agency No. A206-622-169
BRENDY ASCENCIO-CORADO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(December 27, 2019)
Before MARTIN, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM: Case: 19-11631 Date Filed: 12/27/2019 Page: 2 of 8
Brendy Ascencio-Corado, a citizen of Guatemala, seeks review of the Board
of Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”)
denial of her application for asylum, withholding of removal, and Convention
Against Torture (“CAT”) protection. Ascencio-Corado argues that the BIA erred
when it retroactively applied Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018),
because agency rules should apply only prospectively given their close tie to
legislation.
I. A. FACTUAL BACKGROUND
Ascencio-Corado is a native and citizen of Guatemala, born July 16, 1982, in
Jalpatagua, Guatemala. In 2010, she met her husband, Josue Gilberto Pacheco
Lopez. They dated for three years before she and her two children from a previous
relationship moved in with Pacheco Lopez in July of 2013. One month later,
Pacheco Lopez began to abuse her and control her life. He dictated how Ascencio-
Corado could dress and whether she could wear makeup at her job. He physically
and verbally abused her in both private and public. For example, Pacheco Lopez
(1) once hit Ascencio-Corado in the face with an umbrella at a bus stop; (2) put her
in a headlock upon picking her up from work; and (3) hit her in front of his mother
and grandfather. In private, Pacheco Lopez would rape her daily, and if she
attempted to refuse him, he would hit her and she believed he would kill her.
2 Case: 19-11631 Date Filed: 12/27/2019 Page: 3 of 8
During this time, Ascencio-Corado continued to work, even though Pacheco Lopez
did not want her to. However, she eventually quit her job because Pacheco Lopez
continuously pursued her while she was at work and would abuse her physically
when he came to her workplace. Ascencio-Corado also sent her children to live
with another family member because she did not want them to see Pacheco Lopez
abuse her.
After five or six months of living together, Pacheco Lopez confessed to
Ascencio-Corado that he was a “gang member” and “a murderer.” He admitted
that he had killed his former girlfriend because of her affiliation with another gang,
and, when a potential gang member refused to join, Pacheco Lopez threw him
down a ravine. Around the time of this confession, Ascencio-Corado tried to leave
Pacheco Lopez for the first of many times. She was largely unsuccessful because
each time she voiced her intention to leave, he would threaten to kill her and her
children. Ascencio-Corado was also afraid of Pacheco Lopez’s connections,
through his gang, to the police.
She tried to leave him five times in total. The first time, in November 2013,
she told Pacheco Lopez she could not take it anymore because he was going to kill
her. He responded by saying she did not know who she was messing with.
Ascencio-Corado did not physically leave the house that first time because she was
scared. The other four times she tried to leave him, she told him—when he was
3 Case: 19-11631 Date Filed: 12/27/2019 Page: 4 of 8
calm—that it was best if they separated, but he replied with verbal threats. She
finally separated from him on January 5, 2015, because she “made a decision either
to live or to die.” While Ascencio-Corado was waiting at a bus stop, Pacheco
Lopez arrived—very drunk—grabbed her by the head, and beat her. While he was
beating her, a motorcycle drove by. The biker saw what was happening, stopped,
and told Pacheco Lopez to stop or he would call the police. Pacheco Lopez
released Ascencio-Corado and she left, bleeding. She then went to a friend’s house
to live for about a month.
However, Pacheco Lopez found her at the friend’s house, forced her to let
him inside, and beat her. She left and relocated eight hours away to her mother’s
home. Pacheco Lopez searched for Ascencio-Corado, but never found her at this
location. She never reported the abuse she suffered to the Guatemalan police
because, if she had, Pacheco Lopez would “immediately” find out.
Ascencio-Corado then left for the United States, where she entered near
Hidalgo, Texas, around February 28, 2014, and was detained by the Department of
Homeland Security (“DHS”). Pacheco Lopez does not know Ascencio-Corado is
in the United States, and she fears returning to Guatemala because she believes he
will kill her.
4 Case: 19-11631 Date Filed: 12/27/2019 Page: 5 of 8
B. PROCEDURAL HISTORY
DHS commenced removal proceedings on March 21, 2014, when it served
Ascencio-Corado with a Notice to Appear (“NTA”), charging her as removable
from the United States for being present without having been admitted or paroled.
Ascencio-Corado appeared pro se before the San Antonio Immigration Court on
May 12, 2014, and admitted the factual allegations in the NTA. She timely filed
her Form I-589 Application for Asylum under Section 208 of the Immigration and
Nationality Act (“INA”), and timely filed her applications for withholding of
removal and CAT protection.
On December 11, 2017, the IJ issued a decision denying her application for
asylum, withholding of removal and relief under the CAT, and ordered her
removed to Guatemala. In explaining its decision, the IJ found that Ascencio-
Corado was not credible. The IJ also found that her proposed “particular social
group” (“PSG”) of “women of Guatemala who are unable to leave their
relationship” was a cognizable PSG, but the IJ held that she did not establish her
membership within that PSG nor that her fear of future harm was caused by her
membership within the PSG. The IJ also held that her fear of returning to
Guatemala was not objectively reasonable.
On December 26, 2017, Ascencio-Corado timely appealed the IJ’s decision
to the BIA. The BIA issued a decision on March 13, 2019, affirming the IJ’s
5 Case: 19-11631 Date Filed: 12/27/2019 Page: 6 of 8
determination that Ascencio-Corado did not meet her burden of proof to qualify for
asylum. Applying Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), the BIA
reversed the IJ’s determination that Ascencio-Corado’s PSG was cognizable. It
then upheld the IJ’s decision that Ascencio-Corado did not prove her fear of future
harm was caused by her membership in the PSG she proposed. Finally, the BIA
declined to terminate Ascencio-Corado’s proceedings based on her argument that
the NTA issued in her case did not list the time and place of her initial removal
hearing.
Ascencio-Corado timely appealed the BIA’s determination to this Court.
See INA § 242(b)(1), 8 U.S.C. § 1252(b)(1).
II. Ascencio-Corado’s only argument on appeal is that the BIA erred in
retroactively applying Matter of A-B- to her appeal to hold that her proposed PSG
of “women of Guatemala who are unable to leave their relationship” was not
cognizable. 1 She requests that her petition be remanded to the BIA for further
consideration “without the impermissible retroactive reliance on Matter of A-B-.”
The Government argues that Ascencio-Corado waived this argument by failing to
1 We need not address the government’s argument that we do not have jurisdiction to review the denial of Ascencio-Corado’s application for CAT protection because she has not raised this issue. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014) (“Abandonment of an issue can also occur when passing references appear . . . [as] mere ‘background’ to the appellant’s main arguments.”). 6 Case: 19-11631 Date Filed: 12/27/2019 Page: 7 of 8
argue that Matter of A-B- should not be applied retroactively before the BIA, and,
in the alternative, that the BIA properly applied Matter of A-B- because it did not
announce a new agency rule and simply reiterated BIA precedent.
Before addressing Ascencio-Corado’s arguments on the merits, we must
review our subject matter jurisdiction de novo. Indrawati v. U.S. Att’y Gen., 779
F.3d 1284, 1297 (11th Cir. 2015). We conclude that we need not address whether
the BIA properly applied Matter of A-B- retroactively because we lack jurisdiction
to hear Ascencio-Corado’s claim. We lack jurisdiction to consider a claim raised
in a petition for review unless the petitioner has exhausted her administrative
remedies. See 8 U.S.C. § 1252(d)(1). In other words, we “lack jurisdiction to
consider claims that have not been raised before the BIA.” Sundar v. INS, 328
F.3d 1320, 1323 (11th Cir. 2003).
Matter of A-B- was issued approximately two months before Ascencio-
Corado submitted her brief appealing the IJ’s decision to the BIA. In that brief,
Ascencio-Corado argued that “her proposed group is still cognizable, even after the
ghastly decision rendered by the Attorney General in Matter of A-B-, 27 I&N Dec.
316 (A.G. 2018).” She failed to address whether Matter of A-B- applied
retroactively, therefore depriving the BIA of the opportunity to fully consider her
claims. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250–51 (11th
Cir. 2006) (per curiam).
7 Case: 19-11631 Date Filed: 12/27/2019 Page: 8 of 8
We have previously rejected a failure-to-exhaust argument when the
underlying claim is based on the text of the BIA’s decision, but Ascencio-Corado’s
claim is different from the “reasoned consideration” claims we addressed in
Indrawati. See 779 F.3d at 1299. There, we held it was “facially nonsensical” to
fault the petitioner for not raising an argument about the lack of reasoned
consideration displayed by a decision that was not yet in existence. Id. As
described above, Ascencio-Corado’s decision to handle Matter of A-B- by arguing
her PSG was still cognizable “does not constitute grounds for reversal or remand
that arose only after the issuance of the BIA’s decision.” See Munguia-Mejia v.
U.S. Att’y Gen., 781 F. App’x 857, 860 (11th Cir. 2019) (unpublished) (per
curiam). Rather, she chose to make one argument regarding Matter of A-B- and
chose to forego the argument she raises now. This means the BIA did not have an
opportunity to fully consider the “core issue now on appeal,” and we do not have
jurisdiction to hear her claim. Indrawati, 779 F.3d at 1297; cf. Guzman-Garcia v.
U.S. Att’y Gen., 760 F. App’x 896, 898 (11th Cir. 2019) (unpublished) (per
curiam) (holding petitioner did not satisfy “core issue” exhaustion requirement
when he generally raised an issue before the BIA but “failed to exhaust the more
specific argument” he raised before this Court). Accordingly, we must deny
Ascencio-Corado’s petition for review.
PETITION DENIED.