Israel Marcos Miranda Gomes v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 28, 2024
• Docket: 23-13919
• Status: Unpublished

Opinion

USCA11 Case: 23-13919 Document: 22-1 Date Filed: 10/28/2024 Page: 1 of 11

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-13919 Non-Argument Calendar ____________________

ISRAEL MARCOS MIRANDA GOMES, JESSICA DE OLVEIRA GOMES, YASMYN OLVEIRA MIRANDA GOMEZ, Petitioners, versus U.S. ATTORNEY GENERAL, Respondent. ____________________

Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A240-567-769 ____________________ USCA11 Case: 23-13919 Document: 22-1 Date Filed: 10/28/2024 Page: 2 of 11

2 Opinion of the Court 23-13919

Before NEWSOM, ABUDU, and ANDERSON, Circuit Judges. PER CURIAM: Israel Marcos Miranda Gomes1 seeks review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an immigration judge’s (“IJ”) denial of his applications for asylum under the Immigration and Nationality Act (“INA”) § 208(a), 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 Conven- tion Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 1208.16(c). Miranda Gomes argues that the BIA erred in dismissing his appeal and in finding that he did not qualify for asylum. The government moves for summary disposition. After careful review, we grant the gov- ernment’s motion. I. FACTUAL BACKGROUND & PROCEDURAL HISTORY Miranda Gomes, a native and citizen of Brazil, arrived in the United States in January 2022. The Department of Homeland Se- curity later charged him as removable as a noncitizen who entered the United States without being admitted or paroled. After obtain- ing counsel, Miranda Gomes conceded that he was removable and applied for asylum, withholding of removal, and protection under the CAT.

1 Miranda Gomes is the lead petitioner in this case, and his wife and daughter

are derivative petitioners. References throughout to Miranda Gomes refer to the family unit together except where otherwise noted. USCA11 Case: 23-13919 Document: 22-1 Date Filed: 10/28/2024 Page: 3 of 11

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As relevant here, Miranda Gomes’ applications argued that he was eligible for asylum based on his membership in a particular social group (“PSG”), which he defined as “Small Business Owners in Brazil.” He explained that he had been the owner of a restaurant and that drug traffickers had come to his restaurant and asked him to store guns, ammunition, and drugs for them. He added that, after he refused the traffickers’ demands, they watched his busi- ness, threatened his family, robbed him, and told him that he could not operate his restaurant anymore. After a hearing, an IJ denied Miranda Gomes’ applications. The IJ first found that the harm Miranda Gomes had suffered did not rise to the level of “persecution” under the INA. It then ad- dressed Miranda Gomes’ PSG. It noted that a cognizable PSG must be “(1) composed of members who share a common immutable characteristic; (2) defined with particularity; and (3) socially distinct within the society in question.” As relevant, the IJ concluded that Miranda Gomes’ proposed PSG was not cognizable because it failed the third of these prongs—i.e., because there was “insuffi- cient evidence . . . to show that small business owners in Brazil are socially distinct . . . .” The IJ independently found that there was not sufficient ev- idence to show that Miranda Gomes’ mistreatment had a “nexus” to his proposed PSG. In other words, it reasoned that there was insufficient evidence that Miranda Gomes faced mistreatment be- cause he was a small business owner in Brazil. The IJ also denied USCA11 Case: 23-13919 Document: 22-1 Date Filed: 10/28/2024 Page: 4 of 11

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Miranda Gomes’ applications for withholding of removal under the INA and for relief under the CAT. Miranda Gomes administratively appealed the IJ’s decision, still represented by counsel. He did not file a brief in support of his appeal. Instead, he made several arguments in his notice of appeal. As relevant, he contested the IJ’s rulings about his proposed PSG by: (1) arguing that his proposed PSG was “immutable” because he should not be required to change his status as a business owner; and (2) arguing that his proposed PSG was “defined with particu- larity, [because] it is clear who is in and out of the group.” How- ever, he did not make any arguments about whether his proposed PSG was socially distinct. He also argued that there was “a nexus” between the mistreatment he suffered and his membership in the proposed PSG. A temporary appellate immigration judge of the BIA dis- missed Miranda Gomes’ administrative appeal. The BIA first noted that the arguments in Miranda Gomes’ notice of appeal only chal- lenged the denial of his asylum application and had raised no issue related to the denial of his applications for withholding of removal under the INA and for relief under the CAT. It therefore concluded that the denials of those applications were not preserved for its re- view. Next, the BIA noted that Miranda Gomes’ statement of rea- sons had “not challenge[d]” the IJ’s finding that his proposed PSG lacked social distinction in Brazil. It reasoned that this “dispositive issue [wa]s not preserved for review.” USCA11 Case: 23-13919 Document: 22-1 Date Filed: 10/28/2024 Page: 5 of 11

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The BIA concluded that, in any event, Miranda Gomes’ pro- posed PSG was “invalid as a matter of law because small business ownership is not an ‘immutable’ characteristic.” The BIA ulti- mately ruled that the IJ properly denied Miranda Gomes’ applica- tion for asylum “because [Miranda Gomes] did not establish mem- bership in a cognizable [PSG] or demonstrate that he suffered or fears persecution on account of any other protected belief or char- acteristic.” Miranda Gomes timely petitioned for review of the BIA’s decision. After he filed his initial brief, the government moved for summary disposition or, in the alternative, for an extension of time to file its response brief. For the reasons set forth below, we affirm the BIA’s decision. II. DISCUSSION On appeal, Miranda Gomes argues that his membership in his proposed PSG, small business owners in Brazil, is “immutable” and “cannot be changed.” He explains that “[h]is small business is his method of providing for his family” and he contends that “he should not be required to sell or abandon his business because peo- ple seek to persecute him” for running it. He also argues that his proposed PSG is defined with particularity, as it has “high social visibility” and “it is clear who is in and out of the group.” He fur- ther contends that he suffered past persecution, and will suffer fu- ture persecution, on account of his membership in this PSG. The government, in turn, moves for summary disposition, arguing that USCA11 Case: 23-13919 Document: 22-1 Date Filed: 10/28/2024 Page: 6 of 11

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Miranda Gomes cannot prevail because he has abandoned or failed to exhaust all dispositive issues. We review only the decision of the BIA, except to the extent that the BIA expressly 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) (“We do not consider issues that were not reached by the BIA.”). Summary disposition is appropriate either where time is of the essence, such as “situations where important public policy is- sues are involved or those where rights delayed are rights denied,” or where “the position of one of the parties is clearly right as a mat- ter of law so that there can be no substantial question as to the out- come of the case, or where, as is more frequently the case, the ap- peal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1161-62 (5th Cir. 1969). 2 The Attorney General has the authority to grant asylum to a noncitizen who meets the INA’s definition of “refugee.” INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). A refugee is: any person who is outside any country of such per- son’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail him or

2 All Fifth Circuit decisions issued by the close of business on September 30,

1981, are binding precedent in this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). USCA11 Case: 23-13919 Document: 22-1 Date Filed: 10/28/2024 Page: 7 of 11

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herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (emphasis added). In determining whether a social group satisfies the INA’s definition of “particular social group,” we have historically looked to BIA precedent, which has held that a proposed social group is cognizable where: (1) its members share “a common, immutable characteristic”; (2) the group is “socially distinct within the society in question”; and (3) the group is “defined with particularity.” Gon- zalez, 820 F.3d at 404 (first quoting Matter of Acosta, 19 I. & N. Dec. 211, 212 (BIA 1985); and then quoting Matter of M-E-V-G, 26 I. & N. Dec. 227, 237 (BIA 2014)). 3 A noncitizen who fails to argue an issue in his initial appel- late brief, however, abandons it. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). To preserve an argument, “[a] party must ‘specifically and clearly identif[y]’ a claim in its brief, for instance by devoting a discrete section of its argument to that

3 In this case, we do not reach whether Miranda Gomes’ proposed PSG meets

the INA’s definition of a “particular social group.” We note that Miranda Gomes has not argued that our precedent interpreting that phrase has been abrogated or overruled by recent Supreme Court precedent, see Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024) (overturning Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)), nor has he moved to file a supplemental brief along those lines. We accordingly do not address that issue here either. USCA11 Case: 23-13919 Document: 22-1 Date Filed: 10/28/2024 Page: 8 of 11

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claim . . . .” Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1316 n.3 (11th Cir. 2013) (alterations in original) (quoting Access Now, Inc. v. Sw. Air- lines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)). Section 1252(d)(1) of the INA provides, in relevant part, that a court can review a final order of removal only if the noncitizen “has exhausted all administrative remedies available to the [noncit- izen] as of right.” INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). We have held that “[a] petitioner has not exhausted a claim unless he has both raised the core issue before the BIA, and also set out any dis- crete arguments he relies on in support of that claim.” Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016) (citations and internal quotations omitted), overruled in part on other grounds by Santos-Zac- aria v. Garland, 598 U.S. 411, 419-23 & n.2 (2023). 4 However, ex- haustion is “not a stringent requirement.” Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015), overruled in part on other grounds by Santos-Zacaria, 598 U.S. at 419-23 & n.2. “Simply put, petitioners must have previously argued the ‘core issue now on ap- peal’ before the BIA.” Id. (quoting Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1228 n.3 (11th Cir. 2008)). Section 1252(d)(1), as a claims-processing rule, is generally applied when it has been asserted by a party. Kemokai v. U.S. Att’y Gen., 83 F.4th 886, 891 (11th Cir. 2023).

4 In 2023, the Supreme Court held that the obligation to exhaust administra-

tive remedies in § 1252(d)(1) is a claims-processing rule, not a jurisdictional limitation, and is subject to waiver and forfeiture, overturning our prior prec- edent to the contrary. Santos-Zacaria, 598 U.S. at 419-23 & n.2. USCA11 Case: 23-13919 Document: 22-1 Date Filed: 10/28/2024 Page: 9 of 11

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Here, we grant the government’s motion for summary dis- position because the government “is clearly right as a matter of law” that Miranda Gomes has abandoned or failed to exhaust the dispositive issues in his petition for review. Groendyke Transp., 406 F.2d at 1161-62. 5 Miranda Gomes’ brief only addresses the agency’s denial of his asylum application. He has not made any argument in his brief about the agency’s denial of his applications for withholding of re- moval under the INA and protection under the CAT. Thus, the government is clearly correct that any challenge to the agency’s withholding of removal decision and its denial of CAT relief are abandoned. Sepulveda, 401 F.3d at 1228 n.2; Zhu, 703 F.3d at 1316 n.3. Moreover, even though Miranda Gomes challenges the de- nial of his asylum application, he does not challenge the BIA’s rul- ing that he had failed to challenge, in his notice of appeal, the IJ’s finding that his PSG lacked social distinction, or the BIA’s determi- nation that the failure to challenge that finding was dispositive. Therefore, Miranda Gomes’ has abandoned any challenge to the BIA’s conclusions in this respect. Sepulveda, 401 F.3d at 1228 n.2; Zhu, 703 F.3d at 1316 n.3; see also Sapuppo v. Allstate Floridian Ins.,

5 A petitioner’s failure to exhaust does not jurisdictionally bar us from review-

ing a petition, Kemokai, 83 F.4th at 891, so we can decide abandonment and exhaustion issues in any order, see Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (“[A] federal court has leeway to choose among threshold grounds for denying audience to a case on the merits.” (quotation omitted)). USCA11 Case: 23-13919 Document: 22-1 Date Filed: 10/28/2024 Page: 10 of 11

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739 F.3d 678, 680 (11th Cir. 2014) (explaining that, to obtain rever- sal of a judgment “based on multiple, independent grounds,” a party must challenge “every stated ground for the judgment against him”). The government is also correct that the arguments that Mi- randa Gomes raises on appeal are not exhausted. Before the BIA, Miranda Gomes argued that his proposed PSG was cognizable be- cause it was immutable and defined with particularity. However, he did not assert that his proposed PSG was socially distinct. Even assuming his statement that “it is clear who is in and out of” his proposed PSG, was sufficient to present the “core issue” of social distinction to the BIA, Miranda Gomes did not present any “dis- crete arguments he relie[d] on in support of that claim.” Jeune, 810 F.3d at 800. Accordingly, even if not abandoned, Miranda Gomes’ arguments about his proposed PSG’s social distinction are unexhausted, and the government has raised this claims processing rule. Kemokai, 83 F.4th at 891. III. CONCLUSION In sum, the government is “clearly correct” that Miranda Gomes abandoned any challenge to the agency’s denial of his ap- plications for CAT relief and for withholding of removal. As for the agency’s denial of asylum, the government is “clearly correct” that he failed to challenge the BIA’s conclusion that he did not pre- serve the dispositive issue of his proposed PSG’s social distinction, or argue that issue was not dispositive, and he failed to exhaust any challenge to the IJ’s decision with respect to that issue as well. For USCA11 Case: 23-13919 Document: 22-1 Date Filed: 10/28/2024 Page: 11 of 11

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these reasons, we GRANT the government’s motion for summary disposition and DENY AS MOOT its motion for an extension of time to file its response brief. PETITION DENIED.