NOT RECOMMENDED FOR PUBLICATION File Name: 26a0043n.06
No. 25-3275
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 22, 2026 ) KELLY L. STEPHENS, Clerk ) ERICA DE CASTRO-LOBO; JOUBERTH ) HENRIQUE LOBO-DE SOUZA, ) ON PETITION FOR REVIEW Petitioners, ) FROM THE BOARD OF ) IMMIGRATION APPEALS v. ) ) OPINION PAMELA BONDI, Attorney General, ) Respondent. ) )
Before: STRANCH, BUSH, and READLER, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Erica De Castro-Lobo and her son, Jouberth Henrique
Lobo-de Souza, petition for review of the decision of the Board of Immigration Appeals (BIA)
denying their request for asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). The BIA concluded that the CAT claim fails because petitioners failed to show
the Brazilian government would take part in, acquiesce in, or be willfully blind to any torture. We
see no grounds to disturb that ruling. Meanwhile, the other claims fail because they were not
exhausted before the BIA. We therefore DENY the petition for review.
* * *
Petitioners are natives and citizens of Brazil. In 2016, the Department of Homeland
Security initiated removal proceedings against them. After conceding removability, petitioners No. 25-3275, De Castro-Lobo v. Bondi
sought asylum, withholding of removal, and CAT relief to avoid deportation.1 According to De
Castro-Lobo, she was in an abusive relationship with her son’s father. She alleges that he
repeatedly raped her, pulled her hair, broke her bones, and strangled her while they were in Brazil.
But she “never reported the abuse to authorities or sought medical attention for her injuries.”
AR065; accord AR126–27.
The father’s family is politically connected; his uncle was mayor of De Castro-Lobo’s
town. De Castro-Lobo claims that the father’s family did not try to stop the abuse. She also alleges
he sold cocaine and was a member of a gang, but she could not remember its name. In 2004, the
father fled Brazil because his fellow gang members had been arrested. He returned to Brazil in
2009 and contacted De Castro-Lobo, but she did not see him again until 2011. She claims he
threatened to kill her, and he faces an arrest warrant in Brazil for murder.
According to De Castro-Lobo’s account, the father’s last contact with her was in August
2011. At some time during that month, she and her son went to a party at her brother’s home,
where the father threatened to kill her and everyone else at the party if they called law enforcement.
De Castro-Lobo also claims that, over the next five years, the father repeatedly called her family,
threatening to kill her. In 2014, she obtained a Brazilian court order allowing her to take her son
to the United States. The two illegally immigrated to the United States in 2016. Subsequently,
the father (still in Brazil) repeatedly called the son at his school in the United States, threatening
to kill both him and De Castro-Lobo. De Castro-Lobo then sought relief on behalf of herself and
her son based on her claimed fear that she will be killed by the father if she returns to Brazil.
1 De Castro-Lobo and her son assert the same grounds for relief, so we will only refer to De Castro-Lobo.
2 No. 25-3275, De Castro-Lobo v. Bondi
The Immigration Judge (IJ) denied relief, and the BIA affirmed. The BIA explained that,
even if De Castro-Lobo’s claims were credible, she had not established eligibility for asylum or
withholding relief because the harm she alleged would not be based on her membership in a
protected class. Nor could she base her claim for relief on her familial ties or her alleged status as
a rape victim, as those characteristics did not amount to a legally cognizable particular social group
receiving protection under the Immigration and Nationality Act. Finally, De Castro-Lobo had not
shown with respect to her CAT claim that she would more likely than not be tortured in Brazil at
the hands of, or with the permission or willful blindness of, a government official.
Upon petitioning this court for review, petitioners moved to stay their deportation, which
we denied. The government informed the court that the son was set to be deported on or after
August 26, 2025, but the record does not reflect whether that has taken place. Petitioners have
also informed the court that they currently have a pending motion to reopen their case before the
BIA because De Castro Lobo’s American-citizen spouse has petitioned to adjust petitioners’ status
on their behalf. The outcome of that proceeding is not in the record, nor is any appeal from that
proceeding properly before us.
We review the BIA’s opinion if the BIA issues a reasoned decision, and if it adopts the IJ’s
reasoning, we review the IJ’s decision. Gilaj v. Gonzales, 408 F.3d 275, 282–83 (6th Cir. 2005)
(per curiam); Kolov v. Garland, 78 F.4th 911, 920 (6th Cir. 2023), abrogated in part on other
grounds by Riley v. Bondi, 145 S. Ct. 2190 (2025). We may review only “the administrative record
on which the order of removal is based,” 8 U.S.C. § 1252(b)(4)(A), and we may affirm only for
the reasons articulated in the BIA’s decision, Daneshvar v. Ashcroft, 355 F.3d 615, 626 (6th Cir.
3 No. 25-3275, De Castro-Lobo v. Bondi
2004). We review the BIA’s legal conclusions de novo and its factual findings for substantial
evidence. Mateo-Esteban v. Garland, 125 F.4th 762, 766 (6th Cir. 2025).
We reject the CAT claim for lack of government action. To obtain relief under CAT, the
alien must show that the torture “is inflicted by, or at the instigation of, or with the consent or
acquiescence of, a public official acting in an official capacity or other person acting in an official
capacity.” 8 C.F.R. § 1208.18(a)(1). “CAT does not afford protection to torturous acts inflicted
by wholly private actors.” Zaldana Menijar v. Lynch, 812 F.3d 491, 501 (6th Cir. 2015).
There is no evidence in the record that the father was a government actor. True, his family
might have political connections, but an alien must show that the government is the entity doing
the torture, consenting to it, or acquiescing in it. Marqus v. Barr, 968 F.3d 583, 587 (6th Cir.
2020). Even accepting De Castro-Lobo’s account, she has not made this showing. Her testimony
shows that the father is a private citizen who engages in much violent crime, not that he is a
government actor. Nor has she shown that the government engaged in, consented to, or was
willfully blind to, the father’s alleged violence. Indeed, De Castro-Lobo never reported the
incidents in question to authorities, and that failure “typically dooms a CAT claim.” Patel v. Bondi,
131 F.4th 377, 382 (6th Cir. 2025).
Free access — add to your briefcase to read the full text and ask questions with AI
NOT RECOMMENDED FOR PUBLICATION File Name: 26a0043n.06
No. 25-3275
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 22, 2026 ) KELLY L. STEPHENS, Clerk ) ERICA DE CASTRO-LOBO; JOUBERTH ) HENRIQUE LOBO-DE SOUZA, ) ON PETITION FOR REVIEW Petitioners, ) FROM THE BOARD OF ) IMMIGRATION APPEALS v. ) ) OPINION PAMELA BONDI, Attorney General, ) Respondent. ) )
Before: STRANCH, BUSH, and READLER, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Erica De Castro-Lobo and her son, Jouberth Henrique
Lobo-de Souza, petition for review of the decision of the Board of Immigration Appeals (BIA)
denying their request for asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). The BIA concluded that the CAT claim fails because petitioners failed to show
the Brazilian government would take part in, acquiesce in, or be willfully blind to any torture. We
see no grounds to disturb that ruling. Meanwhile, the other claims fail because they were not
exhausted before the BIA. We therefore DENY the petition for review.
* * *
Petitioners are natives and citizens of Brazil. In 2016, the Department of Homeland
Security initiated removal proceedings against them. After conceding removability, petitioners No. 25-3275, De Castro-Lobo v. Bondi
sought asylum, withholding of removal, and CAT relief to avoid deportation.1 According to De
Castro-Lobo, she was in an abusive relationship with her son’s father. She alleges that he
repeatedly raped her, pulled her hair, broke her bones, and strangled her while they were in Brazil.
But she “never reported the abuse to authorities or sought medical attention for her injuries.”
AR065; accord AR126–27.
The father’s family is politically connected; his uncle was mayor of De Castro-Lobo’s
town. De Castro-Lobo claims that the father’s family did not try to stop the abuse. She also alleges
he sold cocaine and was a member of a gang, but she could not remember its name. In 2004, the
father fled Brazil because his fellow gang members had been arrested. He returned to Brazil in
2009 and contacted De Castro-Lobo, but she did not see him again until 2011. She claims he
threatened to kill her, and he faces an arrest warrant in Brazil for murder.
According to De Castro-Lobo’s account, the father’s last contact with her was in August
2011. At some time during that month, she and her son went to a party at her brother’s home,
where the father threatened to kill her and everyone else at the party if they called law enforcement.
De Castro-Lobo also claims that, over the next five years, the father repeatedly called her family,
threatening to kill her. In 2014, she obtained a Brazilian court order allowing her to take her son
to the United States. The two illegally immigrated to the United States in 2016. Subsequently,
the father (still in Brazil) repeatedly called the son at his school in the United States, threatening
to kill both him and De Castro-Lobo. De Castro-Lobo then sought relief on behalf of herself and
her son based on her claimed fear that she will be killed by the father if she returns to Brazil.
1 De Castro-Lobo and her son assert the same grounds for relief, so we will only refer to De Castro-Lobo.
2 No. 25-3275, De Castro-Lobo v. Bondi
The Immigration Judge (IJ) denied relief, and the BIA affirmed. The BIA explained that,
even if De Castro-Lobo’s claims were credible, she had not established eligibility for asylum or
withholding relief because the harm she alleged would not be based on her membership in a
protected class. Nor could she base her claim for relief on her familial ties or her alleged status as
a rape victim, as those characteristics did not amount to a legally cognizable particular social group
receiving protection under the Immigration and Nationality Act. Finally, De Castro-Lobo had not
shown with respect to her CAT claim that she would more likely than not be tortured in Brazil at
the hands of, or with the permission or willful blindness of, a government official.
Upon petitioning this court for review, petitioners moved to stay their deportation, which
we denied. The government informed the court that the son was set to be deported on or after
August 26, 2025, but the record does not reflect whether that has taken place. Petitioners have
also informed the court that they currently have a pending motion to reopen their case before the
BIA because De Castro Lobo’s American-citizen spouse has petitioned to adjust petitioners’ status
on their behalf. The outcome of that proceeding is not in the record, nor is any appeal from that
proceeding properly before us.
We review the BIA’s opinion if the BIA issues a reasoned decision, and if it adopts the IJ’s
reasoning, we review the IJ’s decision. Gilaj v. Gonzales, 408 F.3d 275, 282–83 (6th Cir. 2005)
(per curiam); Kolov v. Garland, 78 F.4th 911, 920 (6th Cir. 2023), abrogated in part on other
grounds by Riley v. Bondi, 145 S. Ct. 2190 (2025). We may review only “the administrative record
on which the order of removal is based,” 8 U.S.C. § 1252(b)(4)(A), and we may affirm only for
the reasons articulated in the BIA’s decision, Daneshvar v. Ashcroft, 355 F.3d 615, 626 (6th Cir.
3 No. 25-3275, De Castro-Lobo v. Bondi
2004). We review the BIA’s legal conclusions de novo and its factual findings for substantial
evidence. Mateo-Esteban v. Garland, 125 F.4th 762, 766 (6th Cir. 2025).
We reject the CAT claim for lack of government action. To obtain relief under CAT, the
alien must show that the torture “is inflicted by, or at the instigation of, or with the consent or
acquiescence of, a public official acting in an official capacity or other person acting in an official
capacity.” 8 C.F.R. § 1208.18(a)(1). “CAT does not afford protection to torturous acts inflicted
by wholly private actors.” Zaldana Menijar v. Lynch, 812 F.3d 491, 501 (6th Cir. 2015).
There is no evidence in the record that the father was a government actor. True, his family
might have political connections, but an alien must show that the government is the entity doing
the torture, consenting to it, or acquiescing in it. Marqus v. Barr, 968 F.3d 583, 587 (6th Cir.
2020). Even accepting De Castro-Lobo’s account, she has not made this showing. Her testimony
shows that the father is a private citizen who engages in much violent crime, not that he is a
government actor. Nor has she shown that the government engaged in, consented to, or was
willfully blind to, the father’s alleged violence. Indeed, De Castro-Lobo never reported the
incidents in question to authorities, and that failure “typically dooms a CAT claim.” Patel v. Bondi,
131 F.4th 377, 382 (6th Cir. 2025). Nor does the record provide any other compelling evidence
of government acquiescence. See id. Instead, the record contains substantial evidence that the
Brazilian government is actively trying to protect women like De Castro-Lobo in this case,
including with the military police. The BIA, therefore, properly affirmed the IJ’s denial of De
Castro-Lobo’s CAT claim. See Zaldana Menijar, 812 F.3d at 501–02.
We reject the remaining claims for lack of exhaustion. All aliens “must exhaust their
claims with the Board of Immigration Appeals before we can review them.” Cuevas-Nuno v. Barr,
4 No. 25-3275, De Castro-Lobo v. Bondi
969 F.3d 331, 332 (6th Cir. 2020). When the alien is asserting an asylum and withholding of
removal claim, she must rely on the same particular social groups before this court as she did
before the agency—changing the definition of those groups renders the claims unexhausted. See
Viuda De Mejia v. Sessions, 691 F. App’x 245, 247 (6th Cir. 2017).
Before the BIA, De Castro-Lobo asserted that she was a part of two particular social
groups: (1) “[the father’s] politically connected family” and (2) “Brazilian women subjected to
domestic violence including rape.” AR036–37. But in this court, she asserts two different
particular social groups: (1) “Petitioner’s family” and (2) “Brazilian women unable to leave
abusive relationships.” Petitioners’ Brief at 19. Those are different particular social groups than
those raised before the IJ and BIA, so the claims are not exhausted. And because she does not
brief any challenges to the BIA’s decision based on the particular social groups as she presented
them to the IJ and the BIA, De Castro-Lobo has waived those challenges in this court. See, e.g.,
El-Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009).
The petition for review is therefore DENIED.2
2 Petitioners raise several other claims in this court, but they do not change the outcome because they cannot overcome the failings noted above.