Mario Alber Cruz-Aparicio v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11618
Non-Argument Calendar
____________________
MARIO ALBER CRUZ-APARICIO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A200-264-803
____________________
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2 Opinion of the Court 23-11618
Before JILL PRYOR , BRANCH, AND L AGOA, Circuit Judges.
PER CURIAM:
Mario Cruz-Aparicio petitions for review of the order of the
Board of Immigrations Appeals (“BIA”) affirming the Immigration
Judge’s denial of his application for asylum, withholding of re-
moval, and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”). Cruz-Aparicio raises separate challenges to
the denial of each of his three claims, and we consider each in turn.
I.
We review the decision of the BIA, and we review the IJ’s
decision as well to the extent the BIA expressly adopted it. Moham-
med v. U.S. Att’y Gen., 547 F.3d 1340, 1344 (11th Cir. 2008). We re-
view legal questions, including our own jurisdiction, de novo. Farah
v. U.S. Att’y Gen., 12 F.4th 1312, 1321 (11th Cir. 2021).
An asylum application must be filed within one year of a
non-citizen’s entry into the United States, but the agency may con-
sider an untimely application if the non-citizen is able to show “ei-
ther the existence of changed circumstances which materially af-
fect the applicant’s eligibility for asylum or extraordinary circum-
stances relating to the delay in filing an application.” Immigration
and Nationality Act (“INA”) § 208(a)(2)(B), (D), 8 U.S.C.
§ 1158(a)(2)(B), (D). However, “[n]o court shall have jurisdiction to
review any determination of the Attorney General” as to the time-
liness of the application or the existence of changed or
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23-11618 Opinion of the Court 3
extraordinary circumstances. INA § 208(a)(3), 8 U.S.C. § 1158(a)(3).
“[Section 1158(a)(3)] divests us of jurisdiction to review decisions
of whether an alien complied with the one-year time limit, or
whether extraordinary circumstances were present to justify un-
timely filing of the asylum application.” Ruiz v. Gonzales, 479 F.3d
762, 765 (11th Cir. 2007). We have held that, when the BIA reaches
a decision based on two independent grounds and we are barred
from reviewing one of those grounds on a jurisdictional basis, we
also lack jurisdiction to review the other ground based on the advi-
sory opinion doctrine. Malu v. U.S. Att’y Gen., 764 F.3d 1282, 1290-91
(11th Cir. 2014), abrogated in part on other grounds by Santos-Zacaria
v. Garland, 598 U.S. 411 (2023).
We do not have jurisdiction to review Cruz-Aparicio’s chal-
lenge to the denial of his asylum application as untimely.
Cruz-Aparicio does not challenge the BIA’s alternative denial of his
asylum application on the merits, but, even if he did, we would be
jurisdictionally barred from reviewing it because we lack jurisdic-
tion to review the timeliness finding.
II.
“Whether an asserted group qualifies as a ‘particular social
group’ under the INA is a question of law.” Gonzalez v. U.S. Att’y
Gen., 820 F.3d 399, 403 (11th Cir. 2016). “When an appellant fails
to offer argument on an issue, that issue is abandoned.” Sepulveda
v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). This in-
cludes when an appellant only makes a passing reference to an is-
sue. Id.
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4 Opinion of the Court 23-11618
A non-citizen is entitled to withholding of removal under
the INA if he can show that his “life or freedom would be threat-
ened in [the] country [of removal] because of [his] race, religion,
nationality, membership in a particular social group, or political
opinion.” INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). “[T]o satisfy
the ‘on account of a statutorily protected ground’ requirement, the
applicant must prove that the protected ground ‘was or will be at
least one central reason for persecuting the applicant.’” Perez-Zen-
teno v. U.S. Att’y Gen., 913 F.3d 1301, 1307 (11th Cir. 2019) (quoting
INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i)).
The phrase “particular social group” is not defined in the
INA, but we have deferred to the BIA’s formulation of the criteria
for when a group qualifies. Id. A particular social group needs to
possess a shared characteristic, which “‘must be one that the mem-
bers of the group either cannot change, or should not be required
to change because it is fundamental to their individual identities or
consciences.’” Id. at 1309 (quoting In re Acosta, 19 I. & N. 211, 233
(BIA 1985)). “[A] particular social group also must be ‘defined with
particularity’ and be ‘socially distinct within the society in ques-
tion.’” Id. (quoting In re M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA
2014)). “Regarding particularity, the BIA has said that ‘[t]he [pro-
posed] group must . . . be discrete and have definable boundaries --
it must not be amorphous, overbroad, diffuse, or subjective.’” Id.
(alterations and omission in original) (quoting In re W-G-R-, 26 I. &
N. Dec. 208, 214 (BIA 2014)). Further, a group “cannot be circularly
defined by the persecution of its members”; instead, the group
members “must share a narrowing characteristic other than their
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23-11618 Opinion of the Court 5
risk of being persecuted.” Alvarado v. U.S. Att’y Gen., 984 F.3d 982,
989 (11th Cir. 2020) (alterations adopted) (quoting Amezcua-Preci-
ado v. U.S. Att’y Gen., 943 F.3d 1337, 1343 (11th Cir. 2019)). The
group must exist independently of the risk of persecution to avoid
particular-social-group persecution becoming “catch all” for any
persecution that does not fit within the other protected grounds.
Id.
Cruz-Aparicio asserted that he would be persecuted on ac-
count of membership in two particular social groups, one based on
his family and the other based on being a returnee to Mexico after
more than a decade living in the United States. We conclude that
he has abandoned any challenge to the finding that he has failed to
establish a nexus between his alleged persecution and his fam-
ily-based social group, which is dispositive of that portion of his
claim for withholding of removal. As to the rest, the BIA correctly
concluded that his returnee-based social group was not cognizable
under the INA.
III.
We review administrative findings of fact for substantial ev-
idence. Farah, 12 F.4th at 1321. Under the substantial evidence test,
“we will not disturb an immigration judge’s factual findings so long
as they are ‘supported by reasonable, substantial, and probative ev-
idence on the record considered as a whole.’” Jathursan v. U.S. Att’y
Gen., 17 F.4th 1365, 1372 (11th Cir. 2021) (quoting Lopez v. U.S. Att’y
Gen., 914 F.3d 1292, 1297 (11th Cir. 2019)). “‘[W]e review the record
evidence in the light most favorable to the agency’s decision and
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6 Opinion of the Court 23-11618
draw all reasonable inferences in favor of that decision.’” Hasan-
Nayem v. U.S. Att’y Gen., 55 F.4th 831, 842 (11th Cir. 2022) (quoting
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005)). “[W]e
reverse factual findings ‘only if the record compels reversal, and the
mere fact that the record may support a contrary conclusion is in-
sufficient to justify reversal.’” Id. (quoting Jathursan, 17 F.4th at
1372).
To satisfy the standard for CAT relief, an applicant must “es-
tablish that it is more likely than not that he or she would be tor-
tured if removed to the proposed country of removal.” 8 C.F.R.
§ 208.16(c)(2). “The evidence must demonstrate that the applicant
will be specifically and individually targeted for torture.” K.Y. v. U.S.
Att’y Gen., 43 F.4th 1175, 1181 (11th Cir. 2022) (emphasis in origi-
nal).
Further, the torture must be “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. § 208.18(a)(1). “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)
(quoting 8 C.F.R. § 208.18(a)(7)). A government does not acquiesce
to persecution simply because it failed to catch the perpetrators of
persecution. Id. at 1243. It does not acquiesce to torture so long as
it combats it in some way, even if it is unsuccessful in its attempts.
Id.
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23-11618 Opinion of the Court 7
Here, substantial evidence supports the BIA’s and Immigra-
tion Judge’s denial of Cruz-Aparicio’s application for CAT relief be-
cause the record does not compel the finding that it is more likely
than not that he will be tortured with the consent or acquiescence
of the Mexican government if he is removed to Mexico.
PETITION DISMISSED IN PART, DENIED IN PART.
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