Blanca Marisol Moncada, et al v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10267
____________________
BLANCA MARISOL MONCADA,
BEATRIZ MARISOL CASTRO-MONCADA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A208-778-595
____________________
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2 Opinion of the Court 21-10267
ON REMAND FROM THE SUPREME COURT OF THE
UNITED STATES
Before J ILL PRYOR , L UCK , and L AGOA , Circuit Judges.
PER CURIAM:
Blanca Marisol Moncada and her daughter, Beatriz Marisol
Castro-Moncada, petition for review of a decision from the Board
of Immigration Appeals affirming an immigration judge’s denial of
Moncada’s application for asylum, withholding of removal, and re-
lief under the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT”). Previously, we dismissed the petition, concluding that we
lacked jurisdiction because Moncada had not raised the issues in
her petition before the Board and thus failed to exhaust her admin-
istrative remedies. The United States Supreme Court granted cer-
tiorari, vacated our opinion, and remanded for further considera-
tion in light of its decision in Santos-Zacaria v. Garland, 143 S. Ct.
1103 (2023). Upon remand, we conclude that we have jurisdiction
to review the petition, but we deny it on its merits.
I.
Both Moncada and Beatriz are citizens of Honduras who en-
tered the United States in 2015. After entering the country, they
were charged with being removable as noncitizens present in the
United States without having been admitted or paroled. See
8 U.S.C. § 1182(a)(6)(A)(i). In their immigration proceedings,
Moncada and Beatriz conceded removability.
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21-10267 Opinion of the Court 3
Moncada applied for asylum, withholding of removal, and
CAT relief. She alleged that she suffered past persecution and had
a well-founded fear of future persecution based on membership in
a particular social group, “mothers of females that are of child-bear-
ing age claimed by men in transnational criminal organizations.”
AR at 196.1 Beatriz is a derivative beneficiary of her mother’s
claims; she did not file her own application.
In her application and at a hearing before an immigration
judge, Moncada described how a man named Eduardo, a member
of the MS-13 gang, began pursuing Beatriz, her teenage daughter.
Moncada understood Eduardo to be dangerous and someone who
would not take no for an answer. Eduardo once showed Moncada’s
son, Fernando, tattoos that he said represented individuals whom
he had killed because they had refused his advances on members
of their family. In addition, gang members who previously ex-
tracted monthly bribes from Moncada’s business told her they
were not going to request a bribe; rather, they said, “[w]e want
your daughter.” Id. at 140.
Eduardo also communicated his desires regarding Beatriz
through a woman named María José Montalván. Montalván made
repeated harassing phone calls to Beatriz on Eduardo’s behalf.
Once, Montalván told Moncada that she knew where Moncada’s
bank was, where her children went to school, that her husband was
living in Miami, and on which days the family went to church.
1 “AR” refers to the administrative record.
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4 Opinion of the Court 21-10267
Montalván and Eduardo also came to Moncada’s house and
screamed obscenities and Beatriz’s name while throwing beer bot-
tles at the family’s front door. They threatened to burn down the
house if Beatriz did not come out and leave with them. Moncada
did not report any of these incidents to police.
The day after Montalván and Eduardo came to the home,
Moncada and Beatriz, fearing for their safety, fled. They went to
San Pedro Sula, another city in Honduras, to stay with extended
family. But they did not feel safe in San Pedro Sula because the MS-
13 gang controlled that city as well. After two days in San Pedro
Sula, Moncada and Beatriz left Honduras and made their way to
the United States.
When Moncada and Beatriz left for the United States, Fer-
nando initially stayed in Honduras. Then, fearing Eduardo, Fer-
nando, too, came to the United States. He stayed in the United
States for two or three months before returning to Honduras to
care for his pregnant girlfriend.
At the hearing before the immigration judge, Moncada tes-
tified that she believed that if she and Beatriz returned to Hondu-
ras, Eduardo would carry out his threats directed at Beatriz. She
explained that she was especially afraid because of her own experi-
ence as a victim of sexual violence in Honduras. Approximately 20
years earlier, a man named Luis had drugged and raped her. Alt-
hough Moncada reported the rape to police, no action was taken.
As a result of the sexual assault, she became pregnant with Fer-
nando.
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21-10267 Opinion of the Court 5
Moncada testified that after the rape, Luis continued to
threaten her. When Fernando was three years old, Luis was jailed
for sexually abusing the child. But Luis was released from jail after
about 10 months. He later became a police officer and continued
to threaten Moncada and her family.
The immigration judge denied Moncada’s application for
asylum, withholding of removal, and CAT relief. He expressed
concerns about Moncada’s credibility based upon her demeanor
while she testified and because of inconsistencies in her testimony.
The immigration judge nevertheless found her testimony to be
“overall credible,” saying that he was giving her “the benefit of the
doubt.” Id. at 54.
For the asylum claim, the immigration judge found that
Moncada had failed to meet her burden to establish that she had
been the victim of past persecution or that she had a well-founded
fear of future persecution in Honduras. He concluded that the
threats Moncada faced did not rise to the level of persecution, not-
ing that Eduardo and Montalván had not physically harmed
Moncada. And because Moncada had not reported to law enforce-
ment Eduardo’s and Montalván’s threats, the immigration judge
concluded that she had failed to establish that Honduran authori-
ties would be unwilling or unable to protect her. The immigration
judge also determined that Moncada had failed to show that she
could not safely relocate to another part of Honduras.
Further, even if the threats amounted to persecution, the
immigration judge found that Moncada had not shown that the
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6 Opinion of the Court 21-10267
threats were made on account of a protected ground. The immi-
gration judge considered Moncada’s proposed particular social
group: mothers of females that are of child-bearing age claimed by
men in transnational criminal organizations. He concluded that
this proposed group was not a valid particular social group and also
that Moncada was not necessarily targeted because of her member-
ship in that group. The immigration judge considered that
Moncada’s proposed social group also could be described as a fam-
ily kinship—a different protected ground—but concluded that
Moncada still was not entitled to relief. He explained that Moncada
was not threatened because she was Beatriz’s mother but, instead,
because she had resisted Eduardo’s attempts to take Beatriz.
The immigration judge also found that Moncada had failed
to establish a well-founded fear of future persecution on account of
a protected ground. She had not established that she would be
harmed “on account of” her membership in a particular social
group. Id. at 60. Instead, any harm would arise “from the fact that
she would be viewed as a person who would try to impede” Edu-
ardo’s attempts to approach Beatriz and that “any person, family
or otherwise, who would try to do the same thing would probably
face the same consequences.” Id.
Given that Moncada had not met the standard for asylum,
the immigration judge determined that she also had failed to
demonstrate eligibility for withholding of removal. In addition, she
was ineligible for CAT relief because she had failed to establish that
it was more likely than not that she would be tortured with the
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21-10267 Opinion of the Court 7
consent or acquiescence of Honduran authorities upon her return
to that country. Although Luis had previously raped Moncada, the
immigration judge noted that the incident had occurred more than
two decades ago. And even though Luis had continued to threaten
Moncada, he had not acted on these threats. The immigration
judge also concluded that Moncada had failed to establish that it
was more likely than not that she would be tortured by Eduardo
and Montalván if she returned to Honduras because “these individ-
uals had never physically harmed” her in the past. Id. at 62.
But even if Moncada could establish that it was more likely
than not that she would be tortured in Honduras, the immigration
judge found that she had failed to establish that authorities in Hon-
duras would acquiesce to this mistreatment. Because Moncada had
not reported any of the incidents involving Eduardo and Mon-
talván to the police, the immigration judge concluded that “the au-
thorities in Honduras . . . could not be deemed to have acquiesced
to such potential physical mistreatment.” Id. at 63. In addition, be-
cause police had arrested and detained Luis for several months af-
ter he sexually abused a child, the immigration judge found that
authorities in Honduras were not “totally indifferent to crime” and
would take some action to protect Moncada. Id.
Moncada appealed to the Board. The only argument she
raised in the appeal was that the immigration judge had erred in
determining that she had failed to “establish[] past persecution and
fear of future persecution.” Id. at 10.
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8 Opinion of the Court 21-10267
The Board affirmed the immigration judge’s decision. It
agreed with the immigration judge that Moncada had failed to “es-
tablish that any past harm that she suffered and that she fears she
will suffer in the future was or will be on account of her member-
ship in a valid particular social group, family or kinship ties, or any
other ground protected by” the Immigration and Nationality Act.
Id. at 3. Because Moncada’s asylum and withholding of removal
claims failed on this ground, the Board found it “unnecessary” to
consider the other aspects of the immigration judge’s decision. Id.
at 4. The Board further determined that Moncada had not estab-
lished that, if returned to Honduras, it was more likely than not
that she would experience torture with the consent or acquies-
cence of the Honduran government.
Moncada and Beatriz petitioned this Court for review. They
argue that the Board erred in finding that Moncada had not (1) es-
tablished a nexus between the threats Moncada received and her
particular social group and (2) shown that it was more likely than
not that she would be tortured with consent or acquiescence of the
Honduran government.
In a previous decision, a panel of this Court concluded that
we lacked jurisdiction to consider the petition. See Moncada v. U.S.
Att’y Gen. (Moncada I), No. 21-10267, 2022 WL 1090937 (11th Cir.
Apr. 12, 2022) (unpublished). We stated that we lacked “jurisdic-
tion to consider a claim raised in a petition for review unless the
petitioner has exhausted her administrative remedies by presenting
that claim to the [Board].” Id. at *2. Because “Moncada did not
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21-10267 Opinion of the Court 9
argue before the [Board] either that the harm she suffered or feared
would be on account of her membership in her asserted social
group, or that it was more likely than not that she would be tor-
tured with the consent or acquiescence of the Honduran govern-
ment,” we concluded that she failed to exhaust her administrative
remedies as to these issues and thus we lacked jurisdiction to con-
sider them. Id. at *3. We dismissed the petition.2 Id.
After we issued our decision in Moncada I, the Supreme
Court held that the statutory requirement that a noncitizen must
exhaust administrative remedies before challenging an order of re-
moval in court is not jurisdictional. See Santos-Zacaria v. Garland,
598 U.S. 411, 413 (2023). The Supreme Court then vacated our de-
cision in Moncada I and remanded the case for further consideration
in light of Santos-Zacaria. Upon remand, the parties submitted sup-
plemental briefs addressing Santos-Zacaria.
II.
“We review the decision of the Board.” Kazemzadeh v. U.S.
Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009) (internal quotation
marks omitted). We review the decision of the immigration judge
only “to the extent that the Board expressly adopted” the immigra-
tion judge’s opinion. Id. (internal quotation marks omitted). We
review de novo the Board’s conclusions of law. Id. And we review
its factual determinations under a substantial evidence standard,
2 We also denied the petition to the extent that Moncada challenged findings
of the immigration judge that the Board did not adopt. See Moncada I, 2022 WL
1090937, at *3.
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10 Opinion of the Court 21-10267
which requires us to “view the record evidence in the light most
favorable to the agency’s decision and draw all reasonable infer-
ences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022,
1026–27 (11th Cir. 2004) (en banc). Findings of fact may be reversed
“only when the record compels a reversal.” Id. “[T]he mere fact
that the record may support a contrary conclusion is not enough
to justify a reversal of the administrative findings.” Id.
III.
We begin by addressing our jurisdiction to review the peti-
tion. The Immigration and Nationality Act provides, in relevant
part, that a “court may review a final order of removal only if” the
noncitizen “has exhausted all administrative remedies available . . .
as of right.” 8 U.S.C. § 1252(d)(1). We previously “interpreted this
provision as a jurisdictional bar on review of removal challenges
not raised before the” Board. Kemokai v. U.S. Att’y Gen., 83 F.4th
886, 891 (11th Cir. 2023). But the Supreme Court in Santos-Zacaria
recently held that this exhaustion requirement is not jurisdictional,
but rather, it is a claim-processing rule. 598 U.S. at 419. Santos-Zac-
aria thus abrogated our prior precedent treating the exhaustion re-
quirement as jurisdictional. See Kemokai, 83 F.4th at 891 (recogniz-
ing the abrogation). Accordingly, even if Moncada and Beatriz
failed to exhaust their administrative remedies, we have jurisdic-
tion to review their petition.3
3 Although § 1252(d)(1)’s exhaustion requirement is not jurisdictional, we
must enforce the requirement when the government properly raises it. See Fort
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21-10267 Opinion of the Court 11
IV.
In their petition, Moncada and Beatriz primarily raise two
challenges to the Board’s decision. First, they argue that substantial
evidence does not support the Board’s conclusion that Moncada
failed to establish a sufficient “nexus” between the threats from Ed-
uardo and Montalván and Moncada’s membership in a valid partic-
ular social group. Second, they say that substantial evidence does
not support the Board’s determination that Moncada failed to show
that it was more likely than not that she would experience torture
with the consent or acquiescence of the government if she returned
to Honduras. We consider each issue in turn.
A.
An undocumented immigrant who is present in the United
States may apply for asylum. 8 U.S.C. § 1158(a)(1). The govern-
ment has the discretion to grant asylum if an applicant establishes
that she is a “refugee.” Id. § 1158(b)(1)(A). A refugee is a person
“who is unable or unwilling to return to” her country of nationality
“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.” Id. § 1101(a)(42)(A).
Bend Cnty. v. Davis, 139 S. Ct. 1843, 1849 (2019). But, as a claim-processing rule,
the exhaustion requirement “may be waived or forfeited.” Hamer v. Neighbor-
hood Hous. Servs. of Chi., 583 U.S. 17, 20 (2017). Here, the government has ex-
pressly forfeited any reliance on the exhaustion requirement.
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12 Opinion of the Court 21-10267
To be eligible for asylum, an applicant must, “with specific
and credible evidence,” show “(1) past persecution on account of a
statutorily listed factor” or “(2) a well-founded fear that the statu-
torily listed factor will cause future persecution.” Ruiz v. U.S. Att’y
Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (internal quotation marks
omitted). Persecution is an “extreme concept, requiring more than
a few isolated incidents of verbal harassment or intimidation,” and
“mere harassment does not amount to persecution.” Sepulveda v.
U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (alteration
adopted) (internal quotation marks omitted).
In addition, an applicant must satisfy the nexus requirement,
meaning she must prove that the persecution was, or would be,
“on account of a protected basis.” Perez-Sanchez v. U.S. Att’y Gen.,
935 F.3d 1148, 1158 (11th Cir. 2019) (internal quotation marks omit-
ted). “[T]o satisfy the nexus requirement, an applicant must estab-
lish [her] membership in a particular social group was or is ‘at least
one central reason’ for [her] persecution.” Id. (quoting 8 U.S.C.
§ 1158(b)(1)(B)(i)).
A central reason is one that “is essential to the motivation of
the persecutor.” Sanchez-Castro v. U.S. Att’y Gen., 998 F.3d 1281,
1286 (11th Cir. 2021) (internal quotation marks omitted). “In other
words, the protected ground cannot play a minor role in the [appli-
cant’s] past mistreatment or fears of future mistreatment. That is,
it cannot be incidental, tangential, superficial, or subordinate to an-
other reason for harm.” Id. (internal quotation marks omitted). Ev-
idence that merely shows that a person has been the victim of
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21-10267 Opinion of the Court 13
crime or private violence does not establish persecution based on a
statutorily protected ground. Ruiz, 440 F.3d at 1258.
Moncada and Beatriz argue that substantial evidence does
not support the Board’s determination that Moncada failed to sat-
isfy the nexus standard. They say that Moncada established the req-
uisite nexus because Eduardo and Montalván targeted her because
of her familial relationship with Beatriz.
In previous cases, we have analyzed the nexus requirement
when a petitioner claims membership in a family-based particular
social group. In Sanchez-Castro, an El Salvador citizen petitioned for
review of the denial of her asylum claim in which she asserted that
gang members targeted her family based on the assumption that
her father’s work in the United States had made her family wealthy.
998 F.3d at 1283–84. We held that substantial evidence supported
the Board’s decision that the petitioner failed to satisfy the nexus
requirement because the gang targeted her family to obtain
money, not because of any animus against the family. Id. at 1286–
87. In doing so, we distinguished persecution because of member-
ship in a family from persecution for some other, tangential reason:
“Where a gang targets a family only as a means to another end, the
gang is not acting because of who the family is; the identity of the
family is only incidentally relevant.” Id. at 1287; see Rodriguez v. U.S.
Att’y Gen., 735 F.3d 1302, 1310–11 (11th Cir. 2013) (concluding that
petitioner failed to establish nexus for his family-based particular
social group).
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14 Opinion of the Court 21-10267
We also considered the nexus requirement in connection
with a family-based particular social group in Perez-Sanchez. In that
case, Perez-Sanchez, the applicant, was threatened, beaten, and ex-
torted by members of a cartel in Mexico. 935 F.3d at 1150–51. Pe-
rez-Sanchez’s father-in-law owed a debt to the cartel because he
had lost a shipment of cocaine belonging to the cartel. Id. Years af-
ter the cocaine was lost, cartel members tracked down Perez-
Sanchez and demanded that he provide information about his fa-
ther-in-law’s whereabouts. Id. Perez-Sanchez had no information
about his father-in-law, who had long ago abandoned the family.
Id. at 1151. Members of the cartel nevertheless beat Perez-Sanchez,
saying that “because [] Perez-Sanchez’s father-in-law owed them
money, Perez-Sanchez did as well.” Id. The cartel then required Pe-
rez-Sanchez to make payments to the cartel every month. Id.
After fleeing to the United States, Perez-Sanchez applied for
asylum and withholding of removal. Id. at 1151–52. But the Board
denied the application, concluding that “Perez-Sanchez’s relation-
ship to his father-in-law played only an incidental role in the cartel’s
decision to persecute him.” Id. at 1158 (internal quotation marks
omitted). We held that substantial evidence did not support the
Board’s decision because “[a]bsent the familial relationship be-
tween [] Perez-Sanchez and [his father-in-law], the cartel would
never have hunted [Perez-Sanchez] . . . down to begin with or con-
tinued persecuting [him] for months.” Id. We concluded that it was
“impossible to disentangle [Perez-Sanchez’s] relationship to his fa-
ther-in-law from the Gulf Cartel’s pecuniary motive,” saying they
were “two sides of the same coin.” Id. We explained that the record
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21-10267 Opinion of the Court 15
was “replete” with evidence that the cartel had targeted Sanchez-
Perez “because of his father-in-law’s past history with the cartel.” Id.
(emphasis in original). Because the record compelled us to con-
clude that the familial relationship was a “central reason” for the
persecution, we granted his petition. Id. at 1158–59.
After considering our precedent, we cannot say that the rec-
ord compels a conclusion that Moncada satisfied the nexus require-
ment. Certainly, the record reflects that Eduardo and Montalván
threatened Moncada after she tried to shield Beatriz from Eduardo.
And it is also true that Beatriz is Moncada’s daughter. But we agree
with the government that, based on the record, a factfinder could
conclude that “any individual, [whether] related or not [to Beatriz],
would likely face the same treatment if he or she were to interfere
with Eduardo’s advances.” Respondent’s Br. 16–17. As a result, we
cannot say that the record compels a conclusion that Moncada’s
familial relationship was one central reason why she was, or would
be, targeted or threatened. See Sanchez-Castro, 998 F.3d at 1283. We
thus conclude that substantial evidence supports the Board’s deci-
sion that Moncada was ineligible for asylum and withholding of re-
moval. See id. at 1286 (recognizing that applicant who could not
meet nexus standard for asylum was “necessarily ineligible” for
withholding of removal).4
4 In their petition, Moncada and Beatriz also challenge other findings the im-
migration judge made in analyzing the asylum claim, including whether
Moncada safely could relocate to other parts of Honduras. But the Board did
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16 Opinion of the Court 21-10267
B.
Moncada and Beatriz also petition for review of the Board’s
decision denying CAT relief, arguing that substantial evidence does
not support the Board’s finding that Moncada failed to establish
that it was more likely than not that she would experience torture
if she returned to Honduras.
To qualify for CAT relief, an applicant must “establish 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) (internal quotation marks
omitted). The torture must be “inflicted by or at the instigation of
or with the consent or acquiescence of a public official or other per-
son acting in an official capacity.” Id. (internal quotation marks
omitted). 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.” Id. (internal quotation marks omitted). A
government does not acquiesce to torture when it “actively, albeit
not entirely successfully, combats the alleged torture.” Lingeswaran
v. U.S. Att’y Gen., 969 F.3d 1278, 1294 (11th Cir. 2020) (internal quo-
tation marks omitted). We thus have held that the record did not
compel a conclusion that a government would acquiesce in torture
not adopt these factual findings, and they “do[] not form any part of the order
currently under review.” Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th Cir.
2007). To the extent that the petition seeks review of the immigration judge’s
findings that the Board has not adopted, we deny the petition.
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21-10267 Opinion of the Court 17
when there was evidence of country conditions showing the coun-
try had attempted to curb torture. See id.
Here, Moncada and Beatriz argue that “substantial evidence
does not support the agency’s findings as to acquiescence.” Peti-
tioners’ Br. 25. They say that if Eduardo harmed Moncada in the
future, the Honduran government would take no action to help
her because the police and government have been “infiltrated by
gangs,” noting there is an “overall unwillingness to protect victims
of gang violence.” Id.
Moncada’s testimony at the evidentiary hearing certainly
shows that she does not trust the police in Honduras to help her if
she were threatened or harmed in the future. But because Moncada
did not report any of the incidents involving Eduardo and Mon-
talván to the police, there is no evidence showing that the police
would take no action if she made a report. In addition, the record
includes evidence of country conditions detailing the Honduran
government’s efforts to combat the corruption about which
Moncada complains, including by removing or suspending corrupt
police officers. Because the record reflects that the Honduran gov-
ernment is actively taking steps to combat the alleged corruption,
we cannot say that the record compels a conclusion that the gov-
ernment would acquiesce in any future harm to Moncada. See Lin-
geswaran, 969 F.3d at 1294. We thus conclude that substantial evi-
dence supports the Board’s denial of Moncada’s application for
CAT relief.
V.
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18 Opinion of the Court 21-10267
For the reasons set forth above, we deny the petition.
PETITION DENIED.
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