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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-10084 Non-Argument Calendar ________________________
Agency No. A209-299-888
JOSUE ERNESTO MUNOZ-GARCIA, A. C. M.,
Petitioners, versus U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(August 25, 2020)
Before MARTIN, LUCK, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Petitioner Josue Ernesto Munoz-Garcia and his minor daughter, co-
Petitioner Angie Camila Munoz-Pineda, seek review of the Board of Immigration
Appeals’ (“BIA”) decision adopting and affirming the Immigration Judge’s (“IJ”)
denial of their applications for asylum and withholding of removal under the Case: 20-10084 Date Filed: 08/25/2020 Page: 2 of 26
Immigration and Nationality Act (“INA”), and relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“CAT”). On appeal, Petitioners challenge the IJ’s denial of asylum
and withholding of removal, arguing that the IJ erred in concluding that
Petitioners’ proposed group of “persons from El Salvador who refused to assist
gangs, reported the gangs to the police after threats, and faced increase gang
violence as a result” did not constitute a cognizable “particular social group” under
the INA. Petitioners also argue that substantial evidence did not support the IJ’s
denial of CAT relief. The Government responds that we lack jurisdiction to review
the petition because Petitioners failed to exhaust their administrative remedies
before the BIA, and that Petitioners’ arguments fail on the merits in any event.
After careful review, we conclude that we have jurisdiction to review the
petition because Petitioners exhausted their challenges to the IJ’s denial of asylum
and withholding of removal, and exhausted a substantial-evidence challenge to the
IJ’s denial of CAT relief. Our jurisdiction to review the CAT claim is limited,
however. Because Petitioners failed to argue before the BIA that the IJ clearly
erred in finding that Petitioner twice safely relocated within El Salvador, we may
not review Petitioners’ unexhausted challenge to that factual finding. Thus, in
assessing whether substantial evidence supported the agency’s denial of CAT
relief, we may not revisit the IJ’s “relocation” finding.
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Although we conclude that we have jurisdiction to review the agency’s
denial of asylum, withholding of removal, and CAT relief, we ultimately agree
with the Government on the merits of Petitioners’ claims. Because substantial
evidence supported the agency’s denial of relief, we deny the petition.
I. BACKGROUND A. Factual Background
Petitioners are natives and citizens of El Salvador. Thirteen years ago, in
2007, when Petitioner was residing in the city of San Salvador, police officers
came to his door with their faces covered and demanded to be let in. When
Petitioner refused, they forced the door open, hit Petitioner with a baton,
handcuffed him, and transported him to the police station. At the police station,
officers refused to explain why they had arrested Petitioner, give Petitioner their
badge numbers, or allow him to speak to their commanding officer. Stating that
“they were the law,” the officers removed Petitioner’s clothes, repeatedly beat him
while handcuffed, and pepper sprayed his face.
At some point, an individual whom Petitioner could not see entered the room
and told the officers to stop. The officers then transferred Petitioner to a detention
center, where he was detained for several days before meeting with his lawyer.
Petitioner testified that the police had unjustly arrested him without a warrant on
false charges of carrying weapons. According to Petitioner, counsel advised him
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that they could prove his innocence, but that the only way to avoid further
detention was for him to plead guilty. To obtain his release, Petitioner decided to
accept the plea deal. Petitioner’s criminal records showed that, pursuant to the
guilty plea, he was convicted for illegal bearing, possession, or use of a weapon of
war, and for resisting arrest. He received a sentence of one year probation.
Before returning to his home in San Salvador, which is in central El
Salvador, Petitioner rested for four days at his sister’s house in the nearby city of
Soyapango. When Petitioner finally arrived home, his neighbors informed him
that the police officers who had previously mistreated him had returned. Fearing
additional harm, Petitioner went to Sonsonate in western El Salvador, where he
stayed with his parents for about a month. Petitioner obtained permission to
transfer his sentence from the central region of El Salvador to the western region
and served his probation there.
Many years later, in June 2016, Petitioners were heading into their home in
San Salvador when they saw two young men running. The men, who looked like
gang members, signaled for Petitioner to stop. Although Petitioner did not know
what they wanted, he speculated that they might have been seeking refuge in his
home. Rather than helping the men, Petitioner closed the door to keep his daughter
safe.
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Fifteen days later, the men intercepted Petitioners as they left their house and
threatened to kill them if they did not leave the city. The next day, Petitioner made
a formal complaint at the police station and asked the officers to keep him safe
while he collected his belongings from his apartment. The police told Petitioner
that they would watch the street while he moved out. When Petitioner returned to
his apartment, he encountered four men, who beat Petitioner and warned that he
needed to retract his police report. Although the police were parked a block away,
within range to see the incident, they did not intervene to help Petitioner.
Petitioner believed that the men were gang members, even though they were not
dressed like gang members, and that they had a relationship with the police
because only the police and his family knew when he would return to his
apartment and that he had filed a police report. According to Petitioner, he
suffered some internal bleeding from the beating but did not seek medical
treatment.
Petitioner then stayed at his parents’ house in Sonsonate without incident for
24 days. He learned from family friends, however, that the gang was asking why
he had moved. Fearing that they were not safe, Petitioners left for the United
States.
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B. Removal Proceedings
Petitioners entered the United States without inspection in August 2016.
The Department of Homeland Security served them with notices to appear,
charging Petitioner with being removable as an alien present in the United States
without a valid entry document, and charging co-Petitioner with being removable
as an alien present in the United States without being admitted or paroled.
Although Petitioner conceded removability, he applied for asylum,
withholding of removal, and CAT relief, with co-Petitioner as a derivative
beneficiary. He alleged that, if returned to El Salvador, gang members, aided by
corrupt police, would kill him based on his membership in a particular social group
defined as “persons from El Salvador who refused to assist gangs, reported the
gangs to the police after threats, and faced increase gang violence as a result.”
After a hearing, the IJ found Petitioner credible but concluded that he did not
qualify for relief. The IJ found that Petitioners did not qualify for asylum or
withholding of removal because they failed to establish either a cognizable
“particular social group” or a nexus between that group and any past or future
harm. The IJ explained that Petitioners’ proposed group was not cognizable as a
“particular social group” under the INA because it did not meet the three
requirements of “immutability, particularity, and social distinction.” First, the IJ
found that the proposed group did not have an “independent and immutable
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characteristic” because it was “defined by the very persecution its members are
suffering.” Second, the IJ found that, rather than being particularly defined, the
proposed group was overbroad, including a large portion of the Salvadoran
population. Finally, given widespread resistance to the gangs in El Salvador, the IJ
found that the proposed group would not be perceived as a socially distinct group.
Even assuming that the proposed group was cognizable, however, the IJ found that
Petitioners had not established a nexus to the group because the evidence showed
that the gang was motivated to harm Petitioner in retribution for refusing to assist
them and for making a police report, not because of his membership in the
proposed group.
The IJ also denied relief under the CAT. The IJ found that Petitioner’s
mistreatment by the police in 2007 rose to the level of torture, although his
mistreatment by the gang members in 2016 did not. The IJ explained, however,
that “evidence of past torture is only one factor the [IJ] considers in assessing the
likelihood of torture.” Considering several other factors, the IJ concluded that
Petitioner had not carried his burden to show that he would be tortured by the
police or gang members with the consent or acquiescence of a public official if
removed to El Salvador. The IJ found that the police officers had tortured
Petitioner without official authorization in 2007, given that another officer had told
them to stop, and that the country conditions evidence did not suggest a likelihood
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of torture by the police. The IJ also found that Petitioner had safely relocated
within El Salvador following both his 2007 arrest and the 2016 incident. As to the
2016 incident, the IJ found that Petitioner had not shown that the police
coordinated with the gang or acquiesced in his mistreatment because the record did
not establish that the police leaked the report to the gang, that the police knew
about the attack in advance, or that the police did not have an operational reason
for failing to intervene. Finally, even assuming that the police had some role in the
2016 attack, the IJ found that they had acted without official authorization, based
on country-conditions evidence showing that El Salvador had taken steps to
discipline and remove security officials with gang ties. “In light of the above,” the
IJ found that Petitioners were not entitled to relief under the CAT.
Petitioner appealed to the BIA. In relevant part, Petitioner’s brief to the BIA
challenged the IJ’s finding that “persons from El Salvador who refused to assist
gangs, reported the gangs to the police after threats, and faced increase gang
violence as a result” were not “a cognizable particular social group.” He noted the
legal requirements that a particular social group must (1) share an immutable
characteristic, (2) be particularly defined, and (3) have social distinction. As to the
first requirement, Petitioner argued that his proposed group shared the immutable
characteristic of having “filed a police report against the gang members,” which
was a “shared past action, which by its very nature cannot be undone.” He argued
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that his proposed group was particularly defined because it was “specific to only
those who filed a police report.” As to social distinction, he argued that his
identity as an individual who had filed a police report was not confidential and that
his persecutors knew who he was.
In his brief to the BIA, Petitioner also challenged the denial of CAT relief,
arguing that he had suffered past harm by the police in 2007, which the IJ had
found rose to the level of torture, and that the police had failed to protect him when
he sought their help in 2016. Citing the country conditions evidence, Petitioner
further argued that El Salvador’s police force and judicial system were incapable
of protecting witnesses who reported gang activity from further harm.
The BIA expressly adopted and affirmed the IJ’s decision. The BIA agreed
with the IJ that Petitioner’s proposed group was “impermissibly circularly defined
by the asserted harm.” The BIA further stated that Petitioner had not explained
why the IJ had erred in denying withholding of removal. Finally, the BIA affirmed
the IJ’s denial of CAT relief, noting that past harm was only one relevant factor,
that Petitioner had not meaningfully challenged the IJ’s “determination that he was
able to avoid further harm from local police by moving away from his hometown
in 2007,” and that evidence of government efforts to address gang violence
supported the IJ’s finding that the government would not acquiesce in Petitioner’s
torture. This appeal followed.
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II. DISCUSSION
A. Standards of Review In immigration cases, our review is limited to “final orders of removal.”
Gaksakuman v. U.S. Att’y Gen., 767 F.3d 1164, 1168 (11th Cir. 2014) (alteration
accepted). “We review the BIA’s decision as the final judgment, unless the BIA
expressly adopted the IJ’s opinion” or “agree[d] with the IJ’s reasoning.” Perez-
Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). When, as here,
the BIA issues its own decision and also expressly adopts the decision of the IJ, we
review both decisions. Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir.
2016).
We review our subject matter jurisdiction de novo. Indrawati v. U.S. Att’y
Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). Once our jurisdiction is established,
we review conclusions of law de novo and factual determinations under the highly
deferential substantial-evidence test, viewing the record evidence in the light most
favorable to, and drawing all reasonable inferences in favor of, the agency’s
decision. Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011). We must
affirm the agency’s decision “if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Indrawati, 779 F.3d at
1297 (quotation marks omitted). We will reverse “only when the record compels a
reversal.” Id. (quotation marks omitted).
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B. Jurisdiction
On appeal, Petitioners challenge the agency’s denial of asylum and
withholding of removal, arguing that the agency erred in concluding that their
proposed “particular social group” was circularly defined and therefore not
cognizable. Petitioners also argue that substantial evidence did not support the
agency’s denial of CAT relief because officers tortured Petitioner in 2007,
Petitioner was not able to safely relocate following that torture, officers failed to
protect Petitioner when he sought their help in 2016, and country conditions
evidence showed that government officials could not protect witnesses who report
gang activity.
Before reaching the merits of these arguments, however, we must assess
whether we have jurisdiction to do so. Indrawati, 779 F.3d at 1297. Our
jurisdiction to review claims raised in a petition for review is limited by the
exhaustion requirement in 8 U.S.C. § 1252(d)(1), which provides that “[a] court
may review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right.” INA § 242(d)(1),
8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250
(11th Cir. 2006) (“We lack jurisdiction to consider a claim raised in a petition for
review unless the petitioner has exhausted his administrative remedies with respect
thereto.”). “A petitioner fails to exhaust [his] administrative remedies with respect
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to a particular claim when [he] does not raise that claim before the BIA.”
Indrawati, 779 F.3d at 1297. Thus, “when a petitioner has neglected to assert an
error before the BIA that he later attempts to raise before us,” we lack jurisdiction
to consider the claim of error, Jeune, 810 F.3d at 800, “even if the BIA addressed
the underlying issue sua sponte,” Amaya-Artunduaga, 463 F.3d at 1251.
Exhaustion “is not a stringent requirement.” Indrawati, 779 F.3d at 1297. A
petitioner is not required “to use precise legal terminology or provide well-
developed arguments to support his claim.” Jeune, 810 F.3d at 800 (quotation
marks omitted). Instead, a petitioner need only “raise[] the core issue before the
BIA” and “set out any discrete arguments he relies on in support of that claim,”
such that the BIA has sufficient information “to review and correct any errors
below.” Id. (quotation marks omitted). These requirements serve the core
functions of exhaustion, namely, “avoiding premature interference with the
administrative process and ensuring that the agency has had a full opportunity to
consider a petitioner’s claims.” Indrawati, 779 F.3d at 1298 (quotation marks
omitted).
On appeal, the Government argues that we lack jurisdiction to consider the
petition for review because, when Petitioners appealed to the BIA, they failed to
challenge two dispositive rulings in the IJ’s decision. First, the Government
contends that we cannot review the agency’s denial of asylums and withholding of
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removal because Petitioners did not argue before the BIA that the IJ erred in
finding that the proposed “particular social group” was circularly defined and
therefore not cognizable. Second, the Government argues that we cannot review
the agency’s denial of CAT relief because Petitioners did not challenge the IJ’s
“dispositive” finding that they could avoid future harm from the local police and
gang members by relocating within El Salvador.
After careful review, we reject the former argument and agree in part with
the latter argument. In short, we conclude that we have jurisdiction to review the
agency’s finding that Petitioners’ proposed “particular social group” was not
cognizable because Petitioners exhausted their challenge to the IJ’s “circularity”
finding. As to the CAT claim, we conclude that we lack jurisdiction to review the
IJ’s finding that Petitioners had twice safely relocated within El Salvador because
they did not raise that issue before the BIA. Nevertheless, because the IJ denied
CAT relief based on the totality of the evidence without ruling that Petitioner’s
ability to relocate alone precluded relief, we conclude that we retain jurisdiction to
review whether substantial evidence supported the agency’s denial of Petitioners’
CAT claim.
First, contrary to the Government’s argument, we have jurisdiction to review
the agency’s denial of asylum and withholding of removal on the ground that
Petitioners’ proposed “particular social group” was not cognizable. To obtain
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asylum or withholding of removal under the INA, an applicant must prove that, if
returned to his home country, he will be persecuted 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) (asylum); INA § 241(b)(3)(A),
8 U.S.C. § 1231(b)(3)(A) (withholding of removal). Under the INA, a group is
cognizable as a “particular social group” only if it satisfies three requirements.
Amezcua-Preciado v. U.S. Att’y Gen., 943 F.3d 1337, 1342–43 (11th Cir. 2019).
First, “the group’s members must have a common characteristic other than their
risk of being persecuted” that is “immutable or fundamental to a member’s
individual conscience or identity.” Id. at 1342 (quotation marks omitted). In other
words, the group cannot be circularly defined by the fact that members have been
persecuted or are at risk of persecution; instead, group members must share an
immutable characteristic that is independent of the harm members have or will
suffer. Second, the group “must have sufficient social distinction,” such that it
would “be perceived as a distinct group by society.” Id. Finally, the group “must
be defined with particularity, meaning it must be discrete and have definable
boundaries, and not be amorphous, overbroad, diffuse, or subjective.” Id. at 1343
(quotation marks omitted).
Here, we disagree with the Government’s contention that Petitioners did not
exhaust a challenge to the IJ’s dispositive finding that their proposed particular
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social group—“persons from El Salvador who refused to assist gangs, reported the
gangs to the police after threats, and faced increase gang violence as a result”—
was circularly defined by group members’ persecution and therefore not
cognizable. The IJ’s finding that the proposed group was “defined by the very
persecution its members are suffering” was part and parcel of its finding that
Petitioners had not met the first “particular social group” requirement—that the
group’s members share an immutable characteristic that is independent of the risk
of persecution. See id. at 1342. In their BIA brief, Petitioners identified the three
“particular social group” requirements and argued that their proposed group met
the first requirement because members shared the immutable characteristic of
having “filed a police report against the gang members.”
While the Government correctly notes that Petitioners referred to
“immutability” rather than “circularity” in their brief to the BIA, that fact is
unsurprising because the IJ herself never used the term “circularity.” Instead, the
IJ—like Petitioners in their brief to the BIA—referred to “immutability” as a
catch-all term for the requirement that a group’s members must have a shared
characteristic that is “independent and immutable.”1 Moreover, Petitioners’ failure
to refer to “circularity” in their BIA brief is irrelevant because “precise legal
terminology” is not required to exhaust a claim. Jeune, 810 F.3d at 800 (quotation
1 Only the BIA expressly described the group as “impermissibly circularly defined.” 15 Case: 20-10084 Date Filed: 08/25/2020 Page: 16 of 26
marks omitted). By expressly challenging the IJ’s finding on a discrete legal
issue—whether the proposed group’s members had a legally cognizable shared
characteristic—and presenting an argument that, if accepted, would result in a
reversal of the IJ’s circularity finding, Petitioners exhausted their claim of error. 2
Accordingly, we have jurisdiction to review the agency’s ruling that the proposed
“particular social group” was not cognizable. See Amaya-Artunduaga, 463 F.3d at
1250.
The Government also argues that we lack jurisdiction to review the denial of
CAT relief because, in their brief to the BIA, Petitioners failed to challenge the IJ’s
“dispositive” finding that they could safely relocate within El Salvador. This
argument, however, misinterprets the nature of the IJ’s “relocation” finding.
To qualify for CAT relief, an applicant must “establish that it is more likely
than not that he or she would be tortured if removed to the proposed country of
removal,” 8 C.F.R. § 208.16(c)(2), and that the torture would be “inflicted by or at
the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity,” 8 C.F.R. § 1208.18(a)(1). In assessing a
CAT claim, the agency must consider “all evidence relevant to the possibility of
2 The IJ also found that the proposed group was not cognizable because it was not particularly defined or socially distinct. Petitioners articulated challenges to those findings in their BIA brief, and the Government does not contend that Petitioners failed to exhaust their asylum and withholding-of-removal claims on those grounds. 16 Case: 20-10084 Date Filed: 08/25/2020 Page: 17 of 26
future torture.” 8 C.F.R. § 1208.16(c)(3). Relevant evidence includes, among
other things, (1) “[e]vidence of past torture inflicted upon the applicant,”
(2) “[e]vidence that the applicant could relocate to a part of the country of removal
where he or she is not likely to be tortured,” (3) “[e]vidence of gross, flagrant or
mass violations of human rights within the country of removal,” and (4) “[o]ther
relevant information regarding conditions in the country of removal.” Id.
§ 1208.16(c)(3)(i)–(iv).
In denying Petitioners’ CAT claim, the IJ found that Petitioner had safely
relocated twice, after both his 2007 arrest and the 2016 gang incident. Insofar as
the Government argues that Petitioners failed to exhaust a challenge to this finding,
we agree. Petitioners made no reference to the IJ’s “relocation” finding in either
their notice of appeal to the BIA or their BIA brief. We therefore lack jurisdiction
to review that finding.
But our inability to review the IJ’s “relocation” finding does not deprive us
of jurisdiction to review whether substantial evidence supported the agency’s
denial of Petitioners’ CAT claim. This is so because, contrary to the Government’s
argument, the IJ did not rule as a dispositive matter that Petitioners’ ability to
safely relocate precluded CAT relief. Instead, following the CAT regulations, the
IJ and BIA considered the fact that Petitioner had safely relocated as one of “many
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factors” relevant to Petitioners’ CAT claim. 3 In other words, the agency made an
“all things considered” judgment that Petitioners were not likely to be tortured with
the consent or acquiescence of a government official based on all of the record
evidence. This evidence included not only the fact that Petitioner had avoided
further injury by relocating within El Salvador, but also evidence indicating that
the government would not consent to or acquiesce in Petitioners’ torture.
With the exception of Petitioners’ “relocation” arguments, which they raise
for the first time here, their BIA brief identified each argument that they now rely
on in arguing that substantial evidence did not support the IJ’s finding that they
would not be tortured if removed to El Salvador.4 Thus, we have jurisdiction to
3 The Government’s argument appears to confuse the regulations governing withholding-of- removal claims under the INA with those governing CAT claims. When assessing a withholding-of-removal claim under the INA, a finding that the applicant could safely relocate within the country is legally dispositive. 8 C.F.R. § 1208.16(b)(1)(B), (b)(2) (stating that an applicant for withholding of removal under the INA cannot demonstrate a well-founded fear of future persecution if “the applicant could avoid a future threat to his or her life or freedom by relocating to another part of the proposed country of removal and, under all the circumstances, it would be reasonable to expect the applicant to do so”). By contrast, the regulations governing CAT claims merely state that “[e]vidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured” is “evidence relevant to the possibility of future torture,” which must be considered along with other evidence. 8 C.F.R. § 1208.16(c)(3). The Government has not cited any authority indicating that an applicant’s ability to relocate is legally dispositive for a CAT claim. In any event, the Government misreads the IJ’s decision in suggesting that her “relocation” finding was dispositive, since the IJ merely considered Petitioners’ ability to relocate as further evidence that they would not likely be tortured if removed. Cf. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1292 & n.4 (11th Cir. 2006) (concluding that the petitioner had not shown a reasonable probability of future persecution in part because he had safely relocated in the past, and finding no occasion to further consider whether his ability to relocate in the future was legally dispositive). 4 Notably, the Government’s exhaustion argument focuses exclusively on the IJ’s “relocation” finding. The Government does not contend that Petitioners failed to exhaust challenges to the 18 Case: 20-10084 Date Filed: 08/25/2020 Page: 19 of 26
review whether substantial evidence supported the agency’s denial of CAT relief,
even though we may not revisit the IJ’s finding that Petitioner had safely relocated
within El Salvador. Cf. Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1048–49 & n.4
(11th Cir. 2009) (declining to address an unexhausted argument that the IJ engaged
in speculation in discrediting the petitioner, but nevertheless reviewing the
agency’s negative credibility finding to the extent that the petitioner had raised
other challenges to that finding in his appeal to the BIA).
Having concluded that we retain jurisdiction to review the petition for
review, with the exception of the IJ’s finding that Petitioner had twice safely
relocated, we proceed to the merits of Petitioners’ appeal.
C. Asylum and Withholding of Removal Petitioner sought asylum and withholding of removal under the INA on the
ground that he would be persecuted based on his membership in a “particular
social group” defined as “persons from El Salvador who refused to assist gangs,
reported the gangs to the police after threats, and faced increase gang violence as a
result.” The IJ found that the proposed group was not legally cognizable because,
among other things, it was circularly “defined by the very persecution its members
are suffering” and therefore members did not have an “independent and
other findings underlying the IJ’s denial of CAT relief. After reviewing Petitioners’ BIA brief, we conclude that they exhausted an argument that substantial evidence did not support the agency’s denial of CAT relief. 19 Case: 20-10084 Date Filed: 08/25/2020 Page: 20 of 26
immutable” shared characteristic. The BIA agreed with the IJ, concluding that the
proposed group was “impermissibly circularly defined by the asserted harm.”
Although Petitioner challenges these findings on appeal, we agree with the agency
that the proposed “particular social group” is not cognizable.
As noted above, to be cognizable as a “particular social group” under the
INA, a proposed group must satisfy three requirements: (1) the group’s members
must be united by “a common, immutable characteristic”; (2) the group “must be
defined with particularity”; and (3) the group must “be socially distinct within the
society in question.” Perez-Zenteno, 913 F.3d at 1308–09 (quotation marks
omitted). As relevant here, the group members’ common, immutable characteristic
must be independent of the persecution or risk of persecution alleged. Id. at 1309–
10. In other words, “[t]he group cannot be [circularly] defined by the persecution
of its members, but rather the individuals in the group must share a narrowing
characteristic other than their risk of being persecuted.” Amezcua-Preciado, 943
F.3d at 1343 (quotation marks omitted). This is so because the term “particular
social group” in the INA “should not be a ‘catch all’ for all persons alleging
persecution who do not fit” within the other categories of persons protected under
the statute. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1198 (11th Cir.
2006).
20 Case: 20-10084 Date Filed: 08/25/2020 Page: 21 of 26
Here, the agency did not err in concluding that Petitioner’s proposed
“particular social group” failed to identify a common characteristic independent of
members’ persecution or risk of persecution. Indeed, Petitioner’s definition of the
group as “persons from El Salvador who refused to assist gangs, reported the gangs
to the police after threats, and faced increase gang violence as a result” evokes the
alleged underlying persecution or risk of persecution three times. First, individuals
“who refused to assist gangs” have necessarily been targeted for assistance.
Second, individuals who “reported the gangs to the police after threats” have
necessarily been threatened. And third, individuals who “faced increase gang
violence as a result [of reporting gang threats]” are necessarily at risk of future
violence. Although Petitioner seeks to focus our attention on the shared historical
attribute of having “filed a police report against the gang members,” even he
cannot maintain that narrow construction of his proposed group for long. Within
the same paragraph he allows the alleged underlying persecution to slip back into
his definition of the group, stating that members have reported the gangs to the
police “after threats.”
Petitioners proposed “particular social group” is not meaningfully different
from the many proposed groups that we have held are circularly defined by group
members’ persecution or risk of persecution. Perez-Zenteno, 913 F.3d at 1309–10
(proposed group of “Mexican citizens targeted by criminal groups because they
21 Case: 20-10084 Date Filed: 08/25/2020 Page: 22 of 26
have been in the United States and have families in the United States” was
“impermissibly circular” because “its defining attribute is the risk of persecution
stemming from being targeted by criminal groups” (emphasis omitted)); Amezcua-
Preciado, 943 F.3d at 1345 (proposed group of “Mexican women who are unable
to leave their domestic relationships because they fear physical or psychological
abuse by their spouse or domestic partner” was not cognizable because it was
circularly “defined by the underlying harm asserted as persecution”); Castillo-
Arias, 446 F.3d at 1196, 1198 (proposed group of “noncriminal informants
working against the Cali cartel” was not cognizable because “their defining
attribute is their persecution by the cartel”); Rodriguez v. U.S. Att’y Gen., 735 F.3d
1302, 1310 (11th Cir. 2013) (proposed group of “members of a family targeted by
a drug-trafficking organization because a family member sought criminal justice
against a member of the drug-trafficking organization” was not cognizable because
the group’s “defining attribute” was “its persecution by the drug-trafficking
organization”). Accordingly, Petitioners failed to identify a cognizable “particular
social group” and were ineligible for asylum. See INA § 101(a)(42)(A),
8 U.S.C. § 1101(a)(42)(A) (providing that asylum requires a showing of
persecution “on account of” a protected category such as “membership in a
particular social group”). Because Petitioners did not qualify for asylum, the
22 Case: 20-10084 Date Filed: 08/25/2020 Page: 23 of 26
agency correctly denied their withholding-of-removal claim as well.5 D-Muhumed
v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004) (noting that an applicant
who cannot establish that he qualifies for asylum cannot meet the “more stringent”
standard for withholding of removal).
D. Convention Against Torture To qualify for relief under the CAT, an applicant must establish that he
would more likely than not be tortured with the consent or acquiescence of a public
official if removed to his proposed country of removal. 8 C.F.R. §§ 208.16(c)(2),
1208.18(a)(1). In assessing a CAT claim, the agency must consider “all evidence
relevant to the possibility of future torture,” including evidence that the applicant
could safely relocate within the country and other evidence regarding country
conditions. 8 C.F.R. § 1208.16(c)(3).
Here, substantial evidence supported the agency’s finding that Petitioners
had not shown a likelihood of future torture with the Salvadoran government’s
consent or acquiescence. First, as discussed above, we lack jurisdiction to review
the agency’s finding that Petitioner had twice safely relocated within El
Salvador—after police officers tortured him in 2007, and after gang members
attacked him in 2016. We therefore treat that finding as established.
5 Because Petitioner’s failure to identify a cognizable “particular social group” was dispositive as to his claims for asylum and withholding of removal, we need not address the parties’ other arguments regarding those claims. 23 Case: 20-10084 Date Filed: 08/25/2020 Page: 24 of 26
Second, the State Department’s country reports on El Salvador provided
substantial evidence for the agency’s finding that the Salvadoran government
would not consent to or acquiesce in future torture by the police or the gangs.
“Acquiescence requires that the public official, prior to the activity constituting
torture, have awareness of such activity and thereafter breach his or her legal
responsibility to intervene to prevent such activity.” Reyes-Sanchez v. U.S. Att’y
Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) (quotation marks omitted). Here, the
country reports noted that, in response to complaints about police misconduct, the
Salvadoran government had launched a new internal investigative office, which
had disciplined and removed hundreds of police officers for engaging in criminal
conduct or having gang ties. The State Department further reported that, although
gang violence remained a problem, the Salvadoran government had made efforts to
address criminal gang activity. Given this evidence, the record does not compel a
finding that the Salvadoran government would consent to or acquiesce in
Petitioners’ torture. Id. at 1243 (affirming the BIA’s finding that the Peruvian
government would not acquiesce in the petitioner’s torture by a terrorist group
because the State Department reports indicated that the government was attempting
to combat the terrorist group, “albeit not entirely successfully” (quotation marks
omitted)). This is so even if Petitioners are correct that the record evidence might
have supported a different finding. See Seck, 663 F.3d at 1364 (“[T]he mere fact
24 Case: 20-10084 Date Filed: 08/25/2020 Page: 25 of 26
that the record may support a contrary conclusion is not enough” to show that the
record compels reversal. (quotation marks omitted)).
Because Petitioner was able to safely relocate within El Salvador and failed
to show that the Salvadoran government would consent to or acquiesce in his
torture, substantial evidence supported the agency’s finding that Petitioners did not
qualify for relief under the CAT. 6 Accordingly, we affirm the agency’s denial of
Petitioners’ CAT claim.
III. CONCLUSION Although we reject the Government’s argument that we lack jurisdiction to
review the petition, we agree with the Government that substantial evidence
6 Petitioners also argue that the agency did not give reasoned consideration to their CAT claim because the agency failed to evaluate Petitioner’s testimony regarding the 2016 gang attack. Specifically, Petitioners argue that the agency should have found that, in 2016, the police consented to or acquiesced in Petitioner’s mistreatment by the gang because Petitioner testified that the police were close enough to see the attack but failed to intervene, that only the police knew about his police report, and that only the police and his family knew when he would return to his apartment. We have jurisdiction to review this argument. See Indrawati, 779 F.3d at 1299 (concluding that a petitioner need not exhaust an argument that the BIA’s decision lacked reasoned consideration because, when appealing to the BIA, a petitioner cannot “rais[e] an argument about the lack of reasoned consideration displayed by a [BIA] decision not yet in existence”). Nevertheless, the record belies Petitioners’ contention. The IJ expressly considered Petitioner’s testimony on these points and explained why that testimony did not compel an inference that the police had cooperated with the gang. See Min Yong Huang v. Holder, 774 F.3d 1342, 1349 (11th Cir. 2014) (noting that the agency gives reasoned consideration to an application if it “consider[s] the issues raised by the applicant and announce[s] its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted” (alteration accepted) (quotation marks omitted)). In any event, given the country-conditions evidence and Petitioner’s history of safely relocating, the record would not compel reversal even if the record did not support the agency’s findings regarding past mistreatment or torture. 25 Case: 20-10084 Date Filed: 08/25/2020 Page: 26 of 26
supported the agency’s denial of asylum, withholding of removal, and CAT relief.
Accordingly, we deny the petition.
PETITION DENIED.