Burbano Adoption Equals Exhaustion, and Internal Relocation to Family Can Defeat Well‑Founded Fear: Perez‑Ordonez v. Bondi (5th Cir. 2025)

Introduction

This commentary examines the Fifth Circuit’s unpublished decision in Perez‑Ordonez v. Bondi (No. 23‑60014, Aug. 29, 2025), affirming the Board of Immigration Appeals’ (BIA) denial of asylum to a Guatemalan mother and her two sons fleeing gang violence by Mara 18. The opinion addresses two issues with broader significance to asylum law and appellate procedure:

• Exhaustion after Santos‑Zacaria v. Garland: Whether a petitioner’s failure to brief an issue to the BIA is excused when the BIA adopts the Immigration Judge’s (IJ) decision under Matter of Burbano, thereby “addressing” the issue on the merits.
• Internal relocation: Whether substantial evidence supported the IJ/BIA’s finding that the petitioners could reasonably avoid future persecution by relocating within Guatemala—specifically by moving to the sisters’ village—despite continuing telephonic threats from the gang.

The court denied the petition for review, holding that exhaustion was satisfied because the BIA expressly adopted the IJ’s decision (including the internal-relocation analysis), and that substantial evidence supported the agency’s determination that internal relocation was reasonable on this record.

Summary of the Judgment

The petitioners, natives and citizens of Guatemala, sought asylum based on political opinion and membership in a particular social group, arising from the mother’s service on a village development council that resisted Mara 18’s efforts to control the village entry point. After council members were murdered and the petitioners were threatened—including after a move to a nearby village—the IJ found the mother credible but denied asylum, withholding, and CAT relief. The BIA adopted the IJ’s decision in full.

On petition for review, the Fifth Circuit:

• Held the internal-relocation issue was exhausted because the BIA adopted the IJ’s decision under Matter of Burbano, which meant the BIA addressed the issue on the merits even if not distinctly briefed to the BIA.
• Applied the substantial evidence standard and affirmed the agency’s finding that internal relocation within Guatemala would be reasonable, emphasizing the absence of evidence showing Mara 18’s presence in the sisters’ village and the lack of in‑person threats or harm after the initial move.
• Noted that petitioners abandoned challenges to past persecution, PSG cognizability, withholding, and CAT on appeal, leaving only the asylum claim premised on a fear of future persecution.
• Denied the petition for review.

Analysis

Precedents Cited and Their Influence

• Wang v. Holder, 569 F.3d 531 (5th Cir. 2009): Confirms the court reviews the BIA decision and may also review the IJ’s reasoning to the extent the BIA adopted it. This framed the scope of review here.
• Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994): Permits the BIA to adopt IJ decisions in full. The court treated such adoption as the BIA addressing issues “on the merits,” which in turn satisfied exhaustion.
• Lopez‑Dubon v. Holder, 609 F.3d 642 (5th Cir. 2010), abrogated on other grounds by Santos‑Zacaria: Establishes that an issue is exhausted if the BIA addresses it on the merits, even if not properly presented. The panel relied on this to reject the Government’s exhaustion objection.
• Santos‑Zacaria v. Garland, 598 U.S. 411 (2023): Holds § 1252(d)(1)’s exhaustion requirement is a nonjurisdictional claim‑processing rule. The panel noted this posture and the open question whether it is mandatory, but held exhaustion satisfied regardless, because the BIA adopted the IJ’s merits ruling.
• Cornejo Paredes v. Garland, No. 21‑60221, 2023 WL 2755580 (5th Cir. Apr. 3, 2023) (unpublished): Reinforces that BIA adoption under Burbano preserves the IJ decision for review, functionally constituting merits disposition.
• 8 U.S.C. § 1158(b)(1)(B)(i); Orellana‑Monson v. Holder, 685 F.3d 511 (5th Cir. 2012): States the nexus requirement for asylum—persecution on account of a protected ground—and articulates the “substantial evidence” standard; the panel quoted Orellana‑Monson for the “compel a contrary conclusion” formulation.
• Cabrera v. Sessions, 890 F.3d 153 (5th Cir. 2018): Describes the subjective/objective components of a well‑founded fear for future persecution when no past persecution is shown.
• 8 C.F.R. § 1208.13(b)(2)(ii), (b)(3): Governs internal relocation, including the totality-of-circumstances factors and the applicant’s burden (absent past persecution) to show relocation would be unreasonable.
• Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004): Notes that a well‑founded fear is negated if persecution can be avoided by relocating within the home country.
• Munoz‑Granados v. Barr, 958 F.3d 402 (5th Cir. 2020): Confirms the applicant’s burden to prove the unreasonableness of internal relocation.
• Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006): Articulates substantial evidence review of BIA factual findings.
• Reyes‑Hoyes v. Garland, No. 20‑60133, 2023 WL 3075064 (5th Cir. Apr. 25, 2023) (unpublished): A contrasting case where the court granted relief because the BIA failed to address record evidence showing that multiple moves plus economic, social, and familial circumstances made a further move unreasonable. The panel invoked this to acknowledge that a different factfinder could have ruled differently on this record but that substantial evidence nonetheless supported the IJ.
• Singh v. Sessions, 898 F.3d 518 (5th Cir. 2018) and United States v. Griffith, 522 F.3d 607 (5th Cir. 2008): Support the panel’s abandonment holdings for issues not pursued on appeal.
• Fort Bend County v. Davis, 587 U.S. 541 (2019): Cited for the principle that mandatory claim‑processing rules must be enforced if properly invoked—relevant to the Government’s exhaustion argument post‑Santos‑Zacaria.

Legal Reasoning

Issue Exhaustion. The Government contended the petitioners failed to exhaust their challenge to the internal-relocation finding. The court acknowledged that after Santos‑Zacaria, § 1252(d)(1) is a nonjurisdictional claim‑processing rule and may be mandatory. Nevertheless, the panel held the internal‑relocation issue exhausted because the BIA adopted the IJ’s decision in full under Matter of Burbano. That adoption, the court reasoned, constitutes the BIA addressing the issue on the merits within the meaning of Lopez‑Dubon; and when the BIA addresses an issue, the Fifth Circuit treats it as exhausted even if not independently presented in briefing to the BIA.

Internal Relocation. On the merits, the court applied 8 C.F.R. § 1208.13(b)(2)(ii) and (b)(3). Because the petitioners did not establish past persecution, they had the burden to prove that internal relocation would be unreasonable under the totality of the circumstances. The IJ found relocation reasonable because, although threats continued by phone after a move one hour away, there was no evidence of in‑person threats or harm post‑move, no evidence the gang had a presence in the sisters’ village, and no indication the gang tried to reach the petitioners through the sisters who remained in Guatemala. While the petitioner expressed concern about endangering her sisters, the IJ determined she had not explained why—after being away from Guatemala for over a year and a half—it would be unreasonable to relocate to the sisters’ village.

Applying substantial evidence review, the panel concluded that the record did not compel a finding that relocation would be unreasonable. The court expressly recognized that a different factfinder might have weighed the evidence differently (citing Reyes‑Hoyes) but held that the IJ’s reasoning was permissible in light of the absence of evidence of a gang presence in the proposed place of relocation and the lack of post‑move physical targeting. That settled the asylum claim because an applicant lacks a well‑founded fear if she can reasonably avoid persecution by internal relocation.

Abandonment of Other Issues. The petitioners did not challenge the agency’s findings of no past persecution, non‑cognizable PSGs, and denials of withholding and CAT protection—those issues were deemed abandoned. The court therefore focused exclusively on the future‑persecution asylum theory and the internal‑relocation dispositive finding.

Impact

• Exhaustion Clarified in the Burbano Context. This decision reinforces that, in the Fifth Circuit, when the BIA adopts the IJ’s decision under Matter of Burbano, issues addressed by the IJ are treated as addressed by the BIA “on the merits.” That satisfies § 1252(d)(1) exhaustion, even if the petitioner did not separately brief the issue to the BIA. Post‑Santos‑Zacaria, this provides important practical assurance that wholesale BIA adoption will not allow the Government to block judicial review through exhaustion objections.
• Internal Relocation Remains a Powerful Gatekeeper. The opinion underscores that internal relocation can be outcome‑determinative. Petitioners must marshal concrete, locale‑specific evidence showing why relocation is unreasonable, especially where the agency points to a viable familial relocation option. Generalized assertions of gang reach, unsupported allegations of police collusion, or continued telephonic threats may be insufficient under substantial evidence review absent proof of presence and capability in the proposed place of refuge.
• Burden and Standard of Review are Decisive. Without past persecution, the applicant bears the burden to prove unreasonableness of relocation. Coupled with the deferential substantial evidence standard (“compel a contrary conclusion”), agency findings will often be sustained in close cases—even where a different factfinder could have ruled for the applicant.
• Guidance for Gang‑Targeting Claims. Even where a claim plausibly involves political opinion (e.g., village council resistance to gangs), adjudicators may deny relief solely on internal relocation grounds. Practitioners must therefore develop a robust record on the “reach” and “locus” factors in § 1208.13(b)(3), including evidence of nationwide or regional gang penetration, information‑sharing networks, or specific threats and encounters in proposed relocation areas.
• Unpublished but Persuasive. Although unpublished and non‑precedential under 5th Cir. R. 47.5, the decision is instructive on two fronts: how the court treats BIA Burbano adoptions for exhaustion, and how it weighs familial relocation options against continuing but non‑physical threats.

Complex Concepts Simplified

• Exhaustion of Administrative Remedies: Before going to federal court, an immigrant generally must raise her issues to the BIA. But if the BIA actually decides an issue (including by adopting the IJ’s ruling), the Fifth Circuit treats that issue as exhausted—even if the petitioner’s BIA briefing did not separately argue it.
• Claim‑Processing Rule vs. Jurisdictional Bar: Santos‑Zacaria held that the exhaustion statute (§ 1252(d)(1)) is not jurisdictional; it is a rule that courts enforce if properly invoked. That distinction affects timing and waiver but not the need to comply if the Government raises the issue.
• Substantial Evidence Standard: A highly deferential standard of review. The court asks whether the evidence compels a contrary result—i.e., whether no reasonable factfinder could agree with the agency. If reasonable minds can differ, the agency wins.
• Well‑Founded Fear of Persecution: Requires both subjective fear and objective reasonableness. If the applicant can reasonably avoid harm by relocating inside her country, the fear is not legally “well‑founded.”
• Internal Relocation Reasonableness (8 C.F.R. § 1208.13(b)(3)): Assessed under the totality of circumstances, including the persecutor’s reach, the geographic locus of harm, the country’s size, and practicalities like social/familial ties. Without past persecution, the applicant bears the burden to show relocation would be unreasonable.
• Matter of Burbano Adoption: When the BIA adopts the IJ’s decision wholesale, it is as though the BIA itself decided those issues. This affects both the scope of judicial review and exhaustion analysis.
• Derivative Asylum: Children can be included as derivatives on a parent’s asylum application. Their fates often track the principal applicant’s claim unless they establish independent bases for relief.

Conclusion

Perez‑Ordonez v. Bondi establishes two practical rules for Fifth Circuit immigration litigation. First, a BIA adoption under Matter of Burbano counts as the BIA addressing an issue on the merits, satisfying exhaustion even after Santos‑Zacaria’s reframing of § 1252(d)(1). Second, on the merits of future‑persecution asylum claims without past persecution, internal relocation remains a potent and often dispositive hurdle. Where the record lacks evidence of the persecutor’s presence or reach into a proposed place of family relocation, and post‑move contacts are limited to telephonic threats, substantial evidence will usually sustain an agency finding that relocation is reasonable.

The decision reinforces the need for applicants to compile detailed, location‑specific evidence on persecutor reach, government collusion or incapacity, and the social and familial impracticalities of moving—especially when the agency points to relatives as a relocation option. Even though unpublished, Perez‑Ordonez offers clear guidance on exhaustion in the Burbano context and on how internal relocation can defeat a well‑founded fear in gang‑targeting cases.