Amber Michelle Sanchez-Rodriguez v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14306
Non-Argument Calendar
____________________
AMBER MICHELLE SANCHEZ-RODRIGUEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A206-793-572
____________________
USCA11 Case: 20-14306 Date Filed: 02/01/2022 Page: 1 of 13

-- 1 of 13 --

2 Opinion of the Court 20-14306
Before J ORDAN, G RANT, and TJOFLAT, Circuit Judges.
PER CURIAM:
Ambar Sanchez-Rodriguez, a native and citizen of Hondu-
ras, seeks review of the Board of Immigration Appeals’ (“BIA”) de-
cision, affirming the Immigration Judge’s (“IJ”) denial of her appli-
cations for asylum, withholding of removal, and protection under
the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (“CAT”). On
petition to this Court, Sanchez-Rodriguez argues that the IJ failed
to analyze her gender-based fear of persecution and ignored evi-
dence that she cannot reasonably relocate within Honduras. Be-
cause of a lack of administrative exhaustion and failure to challenge
factual findings on appeal, this petition must be dismissed.
I.
Sanchez-Rodriguez entered the United States on May 30,
2014, without inspection. In July 2014, she was served with a No-
tice to Appear at a deportation proceeding for her inadmissibility.
After initially being deemed removable by an IJ, she filed a petition
for asylum. In a September 2015 proceeding related to her asylum
claim, she conceded removability. She stated that she was entitled
to asylum, withholding of removal, and CAT protection based on
threats and actual harm suffered based on refused recruitment into
a gang.
USCA11 Case: 20-14306 Date Filed: 02/01/2022 Page: 2 of 13

-- 2 of 13 --

20-14306 Opinion of the Court 3
In her declarations to the IJ, Sanchez-Rodriguez claimed that
she faced violence in early 2014, because a man named Christian
tried to recruit her to a gang so that she could sell drugs at a local
college. She refused several times. On March 15, 2014, Christian
called her and said that he had a “business proposal” for her. She
hung up the phone but was threatened the next day. On April 5,
2014, gang members accosted Sanchez-Rodriguez and her sister,
and stole their belongings. On April 7, 2014, Sanchez-Rodriguez
again refused recruitment and several gang members beat her un-
conscious. Sanchez-Rodriguez’s sister stated in a declaration that
on April 8, she was chased and beaten by the other gang members.
Sanchez-Rodriguez later stated in a hearing that the gang shot at
her home and left dead animals in front of the house, and that her
grandmother had to move because the gang pursued her as well
for information on Sanchez-Rodriguez. None of these incidents
were reported to the police for fear of retaliation. Family members
also submitted declarations to similar effects, and indicating that
several members of the family were forced to pay a “war tax” to
the gang. She argued at her hearing that she was being persecuted
based on her membership in two groups: (1) “young women who
refuse to join gangs who are without protection;” and (2) “women
who are without protection.”
The IJ denied the application and ordered removal. He
found Sanchez-Rodriguez credible but ultimately also found that
that (1) there was no nexus between the alleged harm and any pro-
tected ground, and (2) the attacks did not rise to the level of past
USCA11 Case: 20-14306 Date Filed: 02/01/2022 Page: 3 of 13

-- 3 of 13 --

4 Opinion of the Court 20-14306
persecution. In finding her credible, he noted minor inconsisten-
cies, which included that in her application Sanchez-Rodriguez had
claimed that Christian wanted to marry her, but at the hearing tes-
tified that he had merely made a business proposal to her. In as-
sessing the nexus, the IJ found that Sanchez-Rodriguez’s persecu-
tion was based on her refusal to join a gang, rather than her status
in a particular social group. Further, the IJ found that the proposed
groups were not “particular social groups,” under the Immigration
and Nationality Act (“INA”) because they lacked particularity, en-
compassed large segments of society, and were not socially distinct
within Honduran society. In other words, the IJ found that this
case boiled down to a refusal to join a gang claim—which is insuf-
ficient to establish asylum. Moreover, she had not established that
she could not get protection from Honduran authorities, because
she refused to contact them. Further, the requirement for her fam-
ily to pay a war tax was not an enumerated ground for asylum.
Because she had failed to meet the lower burden for asylum, she
also failed to meet the higher burden for withholding of removal;
and because Sanchez-Rodriguez had no problems with the police
or government authority or government-related torture, her CAT
relief claim was also denied. The BIA affirmed without opinion.
II.
A. Standards of Review
We generally review only the BIA’s decision.
Perez-Zen-
teno v. U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). But
USCA11 Case: 20-14306 Date Filed: 02/01/2022 Page: 4 of 13

-- 4 of 13 --

20-14306 Opinion of the Court 5
where (as in this case) the BIA adopted or agreed with the reason-
ing of the IJ’s decision, we review the decisions of both the BIA and
the IJ.
Id. We review any constitutional claim or question of law
de novo.
Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1252 (11th Cir.
2008). We review factual determinations, however, under the sub-
stantial evidence test.
Gonzalez v. U.S. Att’y Gen., 820 F.3d 399,
403 (11th Cir. 2016). Under this test, “we view the record evidence
in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.”
Sanchez Jimenez
v. U.S. Att’y Gen., 492 F.3d 1223, 1230 (11th Cir. 2007) (quotation
marks omitted). The record must compel a contrary conclusion to
warrant reversal, and the mere fact that the record may support a
different conclusion is not sufficient to justify a reversal of admin-
istrative findings.
Id.
We review our subject matter jurisdiction
de novo.
In-
drawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). We
lack jurisdiction to review final orders in immigration cases unless
the applicant has exhausted all administrative remedies available as
of right. Immigration and Nationality Act (“INA”) § 242(d)(1), 8
U.S.C. § 1252(d)(1);
Indrawati, 779 F.3d at 1297. This exhaustion
requirement is not stringent but requires that a petitioner provide
sufficient information to allow the BIA an opportunity to address
an issue.
See Indrawati, 779 F.3d at 1297
. The exhaustion require-
ment is not satisfied by “[u]nadorned, conclusory statements,” alt-
hough it does not require “precise legal terminology” or “a well-
developed argument.”
Id. (quotation marks and brackets omitted).
USCA11 Case: 20-14306 Date Filed: 02/01/2022 Page: 5 of 13

-- 5 of 13 --

6 Opinion of the Court 20-14306
Unless a petitioner raises a purely legal question, she fails to ex-
haust an argument when she does not provide her argument’s rel-
evant factual underpinnings.
Id. at 1298.
We will not review a decision by the BIA if there remains an
alternative holding that serves as a reason to dismiss the petition
because reviewing an alternative ground would amount to render-
ing an advisory opinion.
Malu v. U.S. Att’y Gen., 764 F.3d 1282,
1290–91 (11th Cir. 2014). Where a judgment is based on multiple
independent grounds, an appellant must challenge every stated
ground for the decision, and if he fails to challenge one ground, he
is deemed to have abandoned that challenge, which will result in
the judgment being affirmed.
Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 680 (11th Cir. 2014) (non-immigration context).
B. General Legal Principles
To establish asylum eligibility, the non-citizen bears the bur-
den of proving that she meets the INA’s definition of “refugee.” §
1101(a)(42)(a); § 1158(b)(1)(B)(i). A “refugee” is defined as:
any person who is outside any country of such per-
son’s nationality . . . and who is unable or unwilling
to return to, and is unable or unwilling to avail him-
self or herself of the protection of, that country be-
cause of persecution or a well-founded fear of perse-
cution on account of race, religion, nationality, mem-
bership in a particular social group, or political opin-
ion.
USCA11 Case: 20-14306 Date Filed: 02/01/2022 Page: 6 of 13

-- 6 of 13 --

20-14306 Opinion of the Court 7
8 U.S.C. § 1101(a)(42)(A). To meet this burden, the non-citizen
generally must show four things: (1) past persecution or a well-
founded fear of future persecution, (2) on account of (or at least in
part because of), (3) a protected ground, (4) by her home govern-
ment or forces the government is unwilling or unable to control.
Persecution includes (1) past persecution on account of a
statutorily listed protected ground, or (2) a well-founded fear that
the statutorily protected ground will cause future persecution.
Di-
allo v. U.S. Att’y Gen., 596 F.3d 1329, 1332 (11th Cir. 2010). A
well-founded fear means a reasonable possibility of future persecu-
tion.
Li Shan Chen v. U.S. Att’y Gen., 672 F.3d 961, 965 (11th Cir.
2011). Protected grounds include “race, religion, nationality, mem-
bership in a particular social group, or political opinion.”
See INA
§ 101(a)(42)(B), 8 U.S.C. § 1101(a)(42)(B). An applicant does not
have a well-founded fear of future persecution if she could “avoid
persecution by relocating to another part of the applicant’s [home]
country,” where such relocation is reasonable. 8 C.F.R. §
1208.13(b)(2)(ii);
see also Arboleda v. U.S. Att’y Gen., 434 F.3d
1220, 1223–24 (11th Cir. 2006). Where an applicant has not estab-
lished past persecution, the burden is on the applicant to show that
she could not avoid persecution by relocating to another part of
her home country. 8 C.F.R. § 1208.13(b)(3)(i).
The requirement that such persecution be “on account of”
is called the nexus requirement, and an applicant must show that
“persecution is, at least in part, motivated by a protected ground.”
Ayala v. U.S. Att’y Gen., 605 F.3d 941, 949 (11th Cir. 2010).
USCA11 Case: 20-14306 Date Filed: 02/01/2022 Page: 7 of 13

-- 7 of 13 --

8 Opinion of the Court 20-14306
While the INA does not define “particular social group,” we
have applied
Chevron1 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 char-
acteristic.”
Perez-Zenteno, 913 F.3d at 1308–09. The characteristic
must be unchangeable or fundamental to “individual identities or
consciences,” and the group must be socially distinct within the rel-
evant society and defined with particularity, not overbroadly or
amorphously.
Id. at 1309. 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 cu-
riam);
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).
To establish asylum eligibility, the applicant “must show not
only past persecution or a well-founded fear of future persecution,
but also that she is unable to avail herself of the protection of her
home country.”
Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1345
(11th Cir. 2007). “In all cases, the persecution must be by govern-
ment forces or by non-government groups that the government
cannot control.”
Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1331 (11th
Cir. 2019) (internal quotations omitted). Thus, “[a]n applicant for
1
Chevron, U.S.A., Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837
(1984).
USCA11 Case: 20-14306 Date Filed: 02/01/2022 Page: 8 of 13

-- 8 of 13 --

20-14306 Opinion of the Court 9
asylum who alleges persecution by a private actor must prove that
his home country is unable or unwilling to protect him.”
Ayala v.
U.S. Att’y Gen., 605 F.3d 941, 950 (11th Cir. 2010).
To qualify for withholding of removal, an applicant must es-
tablish that his life or freedom would be threatened in his country
because of the alien’s 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). The applicant must show that it is more
likely than not that he will be persecuted on account of a protected
ground if returned to his home country.
Rodriguez, 735 F.3d at
1308. Generally, where an applicant fails to establish eligibility for
asylum, he necessarily fails to establish eligibility under the more
stringent standard for withholding of removal.
Zheng v. U.S. Att’y
Gen., 451 F.3d 1287, 1292 (11th Cir. 2006).
III.
On appeal, Sanchez-Rodriguez raises issues with two factual
findings by the IJ: (1) that the IJ failed by ignoring the gendered
element of the persecution against her, and (2) the IJ ignored criti-
cal facts demonstrating unreasonableness of Sanchez-Rodriguez’s
safety in relocating in Honduras. As to the first, Sanchez-Rodri-
guez argues that she presented evidence that part of her fears
stemmed from being forced to marry Christian, a gang leader, and
the IJ erred by addressing this evidence under credibility.2 As to
2 She initially had framed Christian’s proposition as a marriage pro-
posal, but at her hearing, stated this was a business proposal to have her sell
USCA11 Case: 20-14306 Date Filed: 02/01/2022 Page: 9 of 13

-- 9 of 13 --

10 Opinion of the Court 20-14306
the second, she argues that the IJ ignored evidence that the gangs
were continuing to stalk and harass her family members even
when they moved within Honduras. She argues that this demon-
strates that relocation within Honduras was not reasonable for her.
Still, we must dismiss her claim.
As a threshold matter, we note that Sanchez-Rodriguez
waived any CAT relief determination by not raising it. Moreover,
where an asylum claim is made about the conduct of private par-
ties, a litigant must make a showing that the government is “unable
and unwilling” to assist her.
See Ayala, 605 F.3d at 950. Sanchez-
Rodriguez never provided argument of this issue to our court.3
See
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318
(11th Cir. 2012);
Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir.
1995) (“We note that issues that clearly are not designated in the
initial brief ordinarily are considered abandoned.”). Sanchez-Ro-
driguez claims in her reply brief that the Government wrongfully
treats the “unable or unwilling finding as untethered from the
nexus element of asylum,” and that she raised the nexus determi-
nation. In other words, she argues that raising the nexus
drugs. As noted earlier, the IJ noted Sanchez-Rodriguez’s inconsistency when
assessing her credibility. She states that the IJ should have seen this as a part
of a mixed motive for her fear that qualifies for a nexus.
3 In her initial brief, Sanchez-Rodriguez states in her facts section that
it was “common knowledge” that Christian bought the police. But without
further argumentation, such a passing reference is insufficient to raise the is-
sue.
Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1145 (11th Cir. 2010).
USCA11 Case: 20-14306 Date Filed: 02/01/2022 Page: 10 of 13

-- 10 of 13 --

20-14306 Opinion of the Court 11
determination raises the “unable or unwilling” issue. But these are
two separate findings, as an applicant can show a nexus between
persecution and membership in a protected class without showing
that a government would be unwilling or unable to assist an appli-
cant, and vice versa.
See Ayala, 605 F.3d at 949–51 (treating these
two factual findings as separate). Because this is a dispositive find-
ing, her failure to appeal it dooms her asylum claim and thus her
withholding of removal claim as well.
See Zheng, 451 F.3d at 1292.
Sanchez-Rodriguez also did not challenge specific findings
before the BIA that are critical to her claim on appeal. An applicant
must exhaust her administrative remedies to the BIA before we can
assume jurisdiction.
Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir.
2003) (opining that the exhaustion requirement is jurisdictional).
We have stated that “unadorned, conclusory statements” are not
sufficient argumentation for exhaustion purposes.
See Indrawati,
779 F.3d at 1297. A petitioner must do more than “merely iden-
tif[y] an issue to” the BIA; the petitioner must “raise[] the “core is-
sue” before the BIA, and also set out any discrete arguments he re-
lies on in support of that claim.”
Jeune v. U.S. Att’y Gen., 81 F.3d
792, 800 (11th Cir. 2016) (citations omitted). Before the BIA,
Sanchez-Rodriguez did not challenge the findings that (1) her pro-
posed social groups were not cognizable, and (2) that she failed to
show that it was unreasonable to relocate within Honduras. Nei-
ther were argued in her briefs before the BIA. The relocation issue
was only referenced in her notice of appeal, stating that the IJ
“erred by denying relief because respondent never attempted to
USCA11 Case: 20-14306 Date Filed: 02/01/2022 Page: 11 of 13

-- 11 of 13 --

12 Opinion of the Court 20-14306
relocate.” But this is an “unadorned, conclusory statement” that
does not suffice for exhaustion.
See id. The IJ’s reliance on
Sanchez-Rodriguez’s failure to attempt to relocate is different from
(and less specific than) the evidence she said the IJ failed to consider
on appeal—that her family members were continuously stalked af-
ter they moved within Honduras. This method of presentation
hardly gives the BIA a “full opportunity” to consider the issue.
See
Amaya–Artunduaga, 463 F.3d at 1250. Accordingly, we lack juris-
diction to review her arguments on these points—and these points
are also dispositive of her claim.
See Sapuppo, 739 F.3d at 680.
Finally, we need not remand this case for further proceed-
ings.
See Amaya-Artunduaga, 463 F.3d at 1250 (dismissing a peti-
tion based on a failure to exhaust).4 Accordingly, the petition is
4 Sanchez-Rodriguez argues that remand is appropriate with respect
to these three issues because she claims that she exhausted at the administra-
tive level unlike the petitioner in
Amaya-Artunduaga. 463 F.3d at 1250. She
argues that she always argued about the IJ’s nexus analysis, and that this is
broad enough to encompass all of the factual findings addressed here.
See
Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1228 n.3 (11th Cir. 2008)
(noting the difference between abandoning an issue at the administrative level
for remand or dismissal purposes). It is true that where the BIA fails to con-
sider an issue
before it, we usually must remand unless there are exceptional
circumstances.
INS v. Ventura, 537 U.S. 12, 16–17, 123 S. Ct. 353, 355 (2002).
This argument ignores, however, that these factual findings were not actually
briefed to the BIA, unlike the petitioner in
Montano Cisneros who argued that
there was ineffective assistance of counsel before the BIA. 514 F.3d at 1228
n.3. Rather, her brief to the BIA simply sets out the governing law, then recites
Sanchez-Rodriguez’s testimony at length, without providing any further legal
argument. As noted above, her passing references to relocation in her notice
USCA11 Case: 20-14306 Date Filed: 02/01/2022 Page: 12 of 13

-- 12 of 13 --

20-14306 Opinion of the Court 13
DISMISSED.
of appeal are insufficient to raise these issues.
Lapaix, 605 F.3d at 1145. As a
result, the proper disposition is to dismiss this petition, not to remand.
See
Amaya-Artunduaga, 463 F.3d at 1250.
USCA11 Case: 20-14306 Date Filed: 02/01/2022 Page: 13 of 13

-- 13 of 13 --