Wendy Araceli Castanion-Lopez; A.J.G.C. v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 22-2803
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Wendy Araceli Castanion-Lopez; A.J.G.C.
Petitioners
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: March 14, 2023
Filed: July 11, 2023
[Unpublished]
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Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges.
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PER CURIAM.
Wendy Araceli Castanion-Lopez and her son, natives and citizens of
Guatemala, petition for review of a Board of Immigration Appeals (BIA) order
denying their motion to remand and affirming the immigration judge’s (IJ) decision
ordering them removed. Having jurisdiction under 8 U.S.C. § 1252, we deny the
petition.

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I.
Castanion-Lopez fled with her son to the United States from Guatemala after
a group protesting the mayor of her town wrongfully suspected Castanion-Lopez of
being involved in the killing of one of its members and retaliated against her.
Castanion-Lopez and her son entered the United States without being admitted on
or about November 7, 2016. The Department of Homeland Security issued a Notice
to Appear for both Castanion-Lopez and her son, charging them with removability.
Castanion-Lopez ultimately conceded removability but applied for relief in the form
of asylum, statutory withholding of removal, and protection under the Convention
Against Torture (CAT). She listed her son as a derivative applicant. In her pre-
hearing briefing, Castanion-Lopez claimed persecution on the basis of her political
opinion and membership in two particular social groups, specifically, “Guatemalans
who are witnesses to mob killings and Guatemalans who are believed to have
participated in mob killings.” However, at her hearing, Castanion-Lopez’s attorney
waived her claim for relief based on a political opinion and explained that her son
was not requesting relief apart from her asylum application.
The IJ first found Castanion-Lopez’s application for asylum untimely. See
8 U.S.C. § 1158(a)(2)(B) (requiring that a noncitizen file an application for asylum
“within 1 year after the date of the [noncitizen]’s arrival in the United States”).
Nonetheless, the IJ addressed the merits of Castanion-Lopez’s claims. First, it
determined that the harm she suffered did not constitute persecution. It then found
that Castanion-Lopez’s purported particular social groups were not cognizable.
Finally, it determined that the Guatemalan government did not acquiesce in the
mob’s conduct and that Castanion-Lopez’s fears of future persecution were not well-
founded. Accordingly, the IJ denied her application for asylum and statutory
withholding of removal. The IJ did not discuss her claim for protection under CAT.
Castanion-Lopez appealed the decision to the BIA with new counsel,
generally challenging the IJ’s decision and requesting relief on the basis of her
former attorney’s performance. She also filed a motion to remand based on her

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purported membership in the class recognized in the Rojas v. Johnson, 305 F. Supp.
3d 1176 (W.D. Wash. 2018) settlement, which extended the one-year filing deadline
for asylum applications for certain noncitizens. The BIA addressed the challenges
in a single order. First, the BIA found that Castanion-Lopez failed to challenge the
IJ’s finding that her purported particular social groups were not cognizable and,
accordingly, upheld the IJ’s denial of her claims for asylum and statutory
withholding of removal. The BIA also determined that Castanion-Lopez did not
request protection under CAT before the IJ and, thus, forfeited her opportunity to
obtain it. Second, given that the IJ had considered the merits of Castanion-Lopez’s
claims, the BIA found that the timeliness, or lack thereof, of her application was
immaterial to the decision and accordingly denied the motion to remand based on
Rojas.
II.
Castanion-Lopez petitions this Court for review of the BIA’s order. First, she
claims that the case should be remanded “because the proceedings below were
fundamentally unfair and the BIA abused its discretion in refusing to reopen [her]
case.” Pet’rs’ Br. 14.1 “We review both the denial of a motion to remand and the
denial of a motion to reopen for abuse of discretion.” Sharif v. Barr, 965 F.3d 612,
618 (8th Cir. 2020) (citation omitted). We will find an abuse of discretion only “if
[the BIA’s] decision is without rational explanation, departs from established
policies, insidiously discriminates against a particular race or group, or where the
agency fails to consider all factors presented by the [noncitizen] or distorts important
aspects of the claim.” Id. (citation omitted).
Notwithstanding the performance of Castanion-Lopez’s attorney before the
IJ, we cannot say that the BIA abused its discretion by failing to reopen her case
when no such motion was filed with the agency. Castanion-Lopez contends that her
1 Castanion-Lopez did not file a motion to reopen with the BIA. She argues
that her BIA appeal and motion to remand, read together, “were effectively a motion
to reopen [that] asked the BIA to consider new facts or evidence.” Pet’rs’ Br. 18.

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motion to remand, combined with her appeal to the BIA, created a sufficient basis
to put the BIA on notice of her first attorney’s allegedly deficient performance and
the need to reopen her case. Assuming that an implicit motion to reopen is even
possible, Castanion-Lopez’s filings did not constitute one before the BIA. Her
motion to remand presents no new evidence other than her purported membership in
the Rojas settlement class. See Administrative R. 38-40. And her appeal to the BIA
makes only two cursory references to this ineffective-assistance claim by referring
to Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), the case outlining the standard
for ineffective-assistance claims in immigration proceedings. See Administrative
R. 21 (“Thus, at this point, Castanion’s argument regarding asylum may not be ripe,
since a motion to remand or reopen under Matter of Lozada appears to be required.”);
Administrative R. 28 (“Similar to the asylum issue noted above, the discrepancy in
the record without much of an explanation may warrant further inquiry pursuant to
Matter of Lozada.”). Even so, these references contemplate some future filing and
are devoid of any substantive legal argument regarding the alleged ineffective
assistance of her former counsel. Accordingly, we find that Castanion-Lopez did
not move the BIA to reopen her case, and, thus, the BIA did not err, much less abuse
its discretion, by failing to do so.
Second and alternatively, Castanion-Lopez contends that the BIA erred in
dismissing her appeal because its findings were not supported by substantial
evidence. “We review the BIA’s legal determinations de novo and employ the
deferential ‘substantial evidence’ standard when reviewing the BIA’s factual
determinations.” Gonzales v. Garland, 29 F.4th 989, 994 (8th Cir. 2022) (citation
omitted). Under the “substantial evidence” standard, “we will affirm the BIA’s
factual findings ‘unless any reasonable adjudicator would be compelled to conclude
to the contrary.’” Id. (citation omitted).
However, it is unnecessary to determine whether substantial evidence
supports the BIA’s findings because Castanion-Lopez’s claims fail as a matter of
law. The IJ determined that Castanion-Lopez’s purported particular social groups
were not cognizable, and, thus, unable to support a claim for asylum or statutory

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withholding of removal. See 8 U.S.C. § 1158(b)(1)(B)(i) (restricting eligibility for
asylum to those who are persecuted on a statutorily protected basis, including, as
relevant here, “membership in a particular social group”); 8 U.S.C. § 1231(b)(3)(A)
(restricting eligibility for statutory withholding of removal in the same manner). The
BIA found that Castanion-Lopez failed to challenge this dispositive determination
and accordingly affirmed the IJ. While she now argues that her purported particular
social groups are cognizable before this Court, she fails to explain how she
appropriately raised this argument before the BIA and thus properly exhausted her
administrative remedies. See Marambo v. Barr, 932 F.3d 650, 654 (8th Cir. 2019)
(noting that “we are unable to review [an unexhausted] claim for the first time on a
petition for review”). Accordingly, because Castanion-Lopez failed to challenge
this determination before the BIA, we are unable to address it on appeal and are left
with the IJ’s determination that these groups are not cognizable. Because this
finding is fatal to her claims for relief, Castanion-Lopez’s claims fail as a matter of
law.2
2 We note that Castanion-Lopez does not directly challenge the BIA’s
determination that she did not request protection under CAT before the IJ. Instead,
she claims that her former attorney’s failure to draw attention to the IJ’s alleged
oversight of the requested relief constituted ineffective assistance. See Pet’rs’ Br.
19-20 (“The second most obvious violation of Castanion’s procedural due process
was the failure of counsel to insist that Castanion had a claim for relief under
CAT . . . . This failure resulted in Castanion’s forfeiture of her claims for CAT
protection before both the IJ and BIA.”). Contrary to the BIA’s findings, the record
appears to suggest that Castanion-Lopez did in fact request withholding of removal
under CAT. Administrative R. 330 (Castanion-Lopez’s I-589) (indicating that
Castanion-Lopez wished to “apply for withholding of removal under the Convention
Against Torture”). But because Castanion-Lopez does not directly challenge the
BIA’s forfeiture determination, we are unable to review it on a petition for review
or grant her relief on that basis. See Hassan v. Rosen, 985 F.3d 587, 590 n.1 (8th
Cir. 2021) (declining to consider petitioner’s arguments regarding CAT relief when
petitioner provided “no supporting legal authority and only cursory supporting
arguments”).

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III.
For the foregoing reasons, we deny the petition for review.
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