Maria Hernandez-Guevara v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 8, 2020
• Docket: 19-11234
• Status: Unpublished

Opinion

Case: 19-11234 Date Filed: 01/08/2020 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11234 Non-Argument Calendar ________________________

Agency No. A206-838-227

MARIA HERNANDEZ-GUEVARA, et al.,

Petitioners,

versus

UNITED STATES ATTORNEY GENERAL,

Respondent.

________________________

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

(January 8, 2020)

Before MARCUS, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 19-11234 Date Filed: 01/08/2020 Page: 2 of 7

Maria Hernandez-Guevara and her son seek review of the Board of

Immigration Appeals’ (BIA) final order adopting and affirming the Immigration

Judge’s (IJ) denial of her application for asylum, withholding of removal, and

relief under the United Nations Convention Against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment (CAT). The agency denied

relief, in part, because Hernandez-Guevara did not allege a cognizable particular

social group under the Immigration and Nationality Act (INA), and because she

did not establish the necessary likelihood of torture by the Honduran government

or with its acquiescence. We affirm the BIA’s and IJ’s decisions and deny

Hernandez-Guevara’s petition.

I. ASYLUM AND WITHHOLDING OF REMOVAL

To start, Hernandez-Guevara did not abandon her opportunity to challenge

the BIA’s determinations regarding asylum and withholding of removal. We will

consider Hernandez-Guevara’s arguments because she adequately identified the

issues and relevant arguments in her brief. See Cole v. U.S. Att’y. Gen., 712 F.3d

517, 530–31 (11th Cir. 2013). Despite the dearth of citations to the record and

applicable law, she sufficiently developed her arguments—certainly making more

than “passing references” to the core issues—to avoid abandonment or waiver. See

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681–82 (11th Cir. 2014).

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We review only the BIA’s decision, “except to the extent that it expressly

adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). Because the BIA adopted the IJ’s decision here, we review both decisions.

See id.

Hernandez-Guevara seeks asylum as a refugee. She has the burden of

proving statutory “refugee” status. INA § 208(b)(1)(B)(i), 8 U.S.C. §

1158(b)(1)(B)(i). To establish refugee status, an applicant must prove “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).

At issue here, first, is whether Hernandez-Guevara asserted a cognizable

“particular social group,” a question of law that we review de novo. See Gonzalez

v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016) (per curiam). While the

INA does not define “particular social group,” we have applied Chevron deference

to the BIA’s formulation of the criteria that must be satisfied. Castillo-Arias v.

U.S. Att’y Gen., 446 F.3d 1190, 1196–97 (11th Cir. 2006). A “particular social

group” is “a group of persons all of whom share a common, immutable

characteristic.” Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1308–09 (11th

Cir. 2019) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985),

overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA

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1987)). The characteristic must be unchangeable or fundamental to individual

identities or consciences. Id. at 1309. The group must be socially distinct within

the relevant society and defined with particularity, not overbroadly or

amorphously. Id. The common characteristic must be something other than the

risk of being persecuted. See Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1310

(11th Cir. 2013) (per curiam); see also Matter of E-A-G-, 24 I. & N. Dec. 591,

594–95 (BIA 2008) (finding that people who resist joining gangs are not part of a

socially distinct group within Honduran society).

Here, the IJ and BIA properly found that Hernandez-Guevara’s asserted

social group—Honduran women who have been victimized by the Mara 18 for

opposition to their acts—did not constitute a particular social group under the INA.

For one, Hernandez-Guevara provides no evidence suggesting that the group is

recognized as distinct in Honduran society. See Perez-Zenteno, 913 F.3d at 1309.

Further, her group is amorphous and lacks particularity. See id. Women of all

ages and backgrounds could be members. And only the human imagination limits

potential forms of victimization, making definition impossible. The same is true

for forms of opposition. Beyond that, the group is defined by the alleged

persecution, which cannot create a particular social group. See Rodriguez, 735

F.3d at 1310. Therefore, we agree with the IJ and BIA; Hernandez-Guevara’s

asserted group is not cognizable.

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Because the IJ and BIA properly held that Hernandez-Guevara’s alleged

group is not cognizable, we need not address her challenge to the factual findings

that she failed to show past persecution or a well-founded fear of future

persecution. Also, because Hernandez-Guevara cannot show a particular social

group for asylum, she likewise cannot show one for purposes of proving

withholding of removal. See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A).

Accordingly, the IJ and BIA did not err in denying Hernandez-Guevara’s asylum

and withholding of removal claims.

II. CAT

Turning to Hernandez-Guevara’s CAT relief claim, we must address the

government’s argument that we lack jurisdiction because she failed to exhaust her

administrative remedies. We “may review a final order of removal only if . . . the

alien has exhausted all administrative remedies available to [her] as of right.” INA

§ 242(d)(1), 8 U.S.C. § 1252(d)(1). The exhaustion requirement is jurisdictional

and precludes review of a claim not presented to the BIA. Amaya-Artunduaga v.

U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). To exhaust an

issue, all we require is that the party raise before the BIA the “core issue” now on

appeal, not the specific reasons the IJ gave for denying relief. Montano Cisneros v.

U.S. Att’y Gen., 514 F.3d 1224, 1228 n.3 (11th Cir. 2008). A petitioner need not

have used “precise legal terminology” or provided the BIA with “a well-developed

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argument,” so long as she gave the BIA sufficient information to allow it to review

and correct any errors. Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th

Cir. 2015) (alteration accepted). “This is not a stringent requirement.” Id.

Here, Hernandez-Guevara exhausted her administrative remedies. In her

brief to the BIA, she raised the “core issue” of the IJ’s denial of her CAT claim.

See Montano Cisneros, 514 F.3d at 1228 n.3. She provided a legal standard

evoking torture and the more-likely-than-not standard, argued that the IJ erred in

weighing the evidence, and stated that she had established that she would more

likely than not be tortured upon return to Honduras. Indeed, the BIA then

addressed these arguments in its decision. Though her arguments were not

necessarily well developed, she gave the BIA sufficient information to allow it to

review and correct errors as to the weighing of the evidence. See Indrawati, 779

F.3d at 1297.

Turning to the merits, we uphold a denial of CAT relief if it is supported by

substantial evidence; the record must compel reversal. See Alim v. Gonzales, 446

F.3d 1239, 1254–55, 1257 (11th Cir. 2006). The applicant bears the burden of

proving that it is more likely than not that she would be tortured if removed to the

proposed country of removal. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239,

1242 (11th Cir. 2004); 8 C.F.R. § 208.16(c)(2). To qualify as torture, the requisite

pain and suffering must be “inflicted by or at the instigation of or with the consent

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or acquiescence of a public official or other person acting in an official capacity.”

8 C.F.R. § 208.18(a)(1). Acquiescence requires that the government, prior to the

activity constituting torture, be aware of such activity and fail to intervene.

Reyes-Sanchez, 369 F.3d at 1242.

Hernandez-Guevara argues that, if she returns to Honduras, it is more likely

than not that she will be killed or kidnapped by the Mara 18 with the government’s

acquiescence because the gang’s crimes are a normal occurrence and the police do

not protect citizens from the gang. Though some record evidence may support a

contrary conclusion, the record does not compel us to find that Hernandez-Guevara

would more likely than not suffer torture by the Honduran government or with its

acquiescence. See Alim, 446 F.3d at 1254–55. The Honduran constitution and

laws prohibit government torture, and the government formed a commission to

address the problem of persons displaced by violence and gang activity. More

specifically to Hernandez-Guevara, the police responded to the report her family

filed concerning the incident where the Mara 18 tied and beat her and her

grandparents and shot her cousin. Thus, substantial evidence supports the IJ’s and

BIA’s denial of Hernandez-Guevara’s claim for CAT relief.

PETITION DENIED.