Sandra Vail-Romero v. U.S. Attorney General

23-13363 Opinion of the Court 3

I. STANDARD OF REVIEW

We generally "review[] only the BIA's decision, except to the extent the BIA expressly adopted the IJ's opinion or agreed with the IJ's reasoning." Alvarado v. U.S. Att'y Gen., 984 F.3d 982, 988 (11th Cir. 2020). Thus, where the BIA agrees with the IJ's reason- ing, we review both the BIA's and IJ's decisions. Perez-Zenteno v. U.S. Att'y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). However, find- ings of the IJ that the BIA did not reach are not properly before us. Lopez v. U.S. Att'y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007). We review the BIA's factual findings under the highly defer- ential substantial evidence standard, which permits reversal only if the record compels, and not merely supports, reversal. Edwards v. U.S. Att'y Gen., 97 F.4th 725, 734 (11th Cir. 2024). Conversely, we review legal conclusions de novo. Alvarado, 984 F.3d at 988. Whether an asserted group qualifies as a particular social group un- der the INA is a legal conclusion reviewed de novo. Perez-Zenteno,

913 F.3d at 1306.

II. ASYLUM

The Attorney General may grant asylum to a noncitizen who meets the INA's definition of a refugee. INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). A refugee is a person who is (1) outside the country of her nationality, (2) unwilling to return to that country, and (3) unable to avail herself of its protection (4) because of perse- cution or a well-founded fear of persecution on account of one of the five statutorily protected grounds. INA § 101(a)(42)(A),

8 U.S.C. § 1101(a)(42)(A). The five protected grounds are race,

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4 Opinion of the Court 23-13363 religion, nationality, membership in a particular social group, and political opinion. Id. The noncitizen bears the burden of proving qualification as a refugee. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i); Diallo v. U.S. Att'y Gen., 596 F.3d 1329, 1332 (11th Cir. 2010).

To be eligible for asylum, the noncitizen must show that she is unable to avail herself of her home country's protection. Lopez,

504 F.3d at 1345. When a noncitizen's alleged persecution oc- curred from the hands of a private actor, the noncitizen must prove she cannot avail herself of her home country's protection "by pre- senting evidence that [s]he reported the persecution to local gov- ernment authorities or that it would have been useless to do so."

Ayala v. U.S. Att'y Gen., 605 F.3d 941, 950 (11th Cir. 2010) (citing Lopez, 504 F.3d at 1345).

Moreover, to meet the burden of establishing eligibility for asylum, the noncitizen must, with specific and credible evi- dence, establish (1) past persecution on account of a statutorily pro- tected ground, or (2) a "well-founded fear" that they will be perse- cuted on account of a protected ground, such as membership in a particular social group. Diallo, 596 F.3d at 1332 (quotation marks omitted); 8 C.F.R. § 208.13(a)-(b).

An appellant who fails to argue an issue in his initial appel- late brief abandons it. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). To preserve an argument, the party must clearly and specifically identify the claim in its brief, such as by de- voting a discrete section of its argument to that claim. Zhou Hua

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23-13363 Opinion of the Court 5 Zhu v. U.S. Att'y Gen., 703 F.3d 1303, 1316 n.3 (11th Cir. 2013); see also Sapuppo v. Allstate Floridian Ins., 739 F.3d 678, 681 (11th Cir. 2014) (holding that a party abandons a claim on appeal when they make passing references to it in their summary of the argument). Even more, to obtain reversal of a judgment "based on multiple, independent grounds," a party must challenge "every stated ground for the judgment against him." Sapuppo, 739 F.3d at 680. When a party fails to properly challenge on appeal one of the grounds upon which the judgment against him was based, she has abandoned any challenge of that ground, and the judgment is due to be affirmed. Id.

Here, Vail-Romero has abandoned on appeal any arguments related to the BIA's determination that she failed to establish that Guatemalan officials were unable or unwilling to protect her be- cause she failed to sufficiently brief that issue on appeal. Accord- ingly, because she failed to challenge one of the BIA's independent grounds for affirming the IJ's denial of her applications for asylum and withholding of removal, her petition is due to be denied. Even if she had not abandoned the issue, the BIA's determination that Vail-Romero failed to demonstrate that the Guatemalan govern- ment would not, or could not, protect her was supported by sub- stantial evidence. As such, we deny her petition to review these issues and need not address Vail-Romero's arguments that the BIA erred in determining that her particular social groups were not cog- nizable.

III. CAT RELIEF

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6 Opinion of the Court 23-13363 To be eligible for CAT relief, a noncitizen applicant must meet a higher burden of proof than for asylum eligibility and show that she will more likely than not be tortured if returned to the des- ignated country of removal. 8 C.F.R. § 1208.16(c)(2); Lingeswaran

v. U.S. Att'y Gen., 969 F.3d 1278, 1293 (11th Cir. 2020). Torture is defined as an act which inflicts "severe pain or suffering, whether physical or mental," and must be "inflicted by or at the instigation of or with the consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity." 8 C.F.R. § 208.18(a)(1); Reyes-Sanchez v. U.S. Att'y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004). A government does not acquiesce to torture by non-state actors so long as it combats the unlawful activity in some way, even if the government is unsuccessful. Reyes-Sanchez,

369 F.3d at 1243. Similar to her asylum and withholding of removal claims, substantial evidence supports the BIA's determination that Guate- malan officials would not consent or acquiesce to Vail-Romero be- ing tortured should she return to Guatemala because, by Vail- Romero's own evidence, specifically, the police report, the police did take her claims of domestic violence seriously. Even more, Vail-Romero testified that she witnessed police speaking with her ex-boyfriend after she filed the report. Again, while she speculated that her ex-boyfriend may have talked his way out of being in trou- ble, the record does not support her theory, and instead makes it seem as though the police took her complaints seriously. Moreo- ver, the country conditions evidence that Vail-Romero presented showed that Guatemala is taking steps to combat domestic

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23-13363 Opinion of the Court 7 violence and femicide by outlawing both. Simply because Guate- malan officials may not be successful in combating these issues does not mean they will consent or acquiesce to Vail-Romero's po- tential torture upon her return. Reyes-Sanchez, 369 F.3d at 1243. In essence, the record simply does not compel reversal of the BIA's denial of CAT relief. See Edwards, 97 F.4th at 734. As such, we deny her petition to review this issue.

IV. REMAND

"A motion to remand based on new evidence is treated as a motion to reopen, the denial of which is reviewed for abuse of dis- cretion." Dos Santos v. U.S. Att'y Gen., 982 F.3d 1315, 1322 (11th Cir. 2020) (citing Sow v. U.S. Att'y Gen., 949 F.3d 1312, 1317 (11th Cir. 2020)). Under this standard, we consider whether the BIA exer- cised its discretion arbitrarily or capriciously. Id. at 1323. The BIA generally will not consider in the first instance issues not presented to the IJ. In re J-Y-C-, 24 I. & N. Dec. 260, 261 n.1 (BIA 2007) (de- clining to consider the respondent's claim that she was eligible for asylum based on her mother's death from a forced sterilization pro- cedure because that claim was never raised before the IJ). An IJ may enter an order granting voluntary departure at the conclusion of the immigration proceedings if the petitioner: (1) has been present in the United States for at least one year; (2) had good moral character for the preceding five years; (3) was not deportable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) or INA § 237(a)(4), 8 U.S.C. § 1227(a)(4); and (4) she has established by clear and convincing evidence that she has the means to depart the

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8 Opinion of the Court 23-13363 United States and that she intends to do so. INA § 240B(b)(1), 8 U.S.C. § 1229c(b)(1). The one-year continuous presence require- ment looks at whether the noncitizen "has been physically present in the United States for period of at least one year preceding the date the Notice to Appear was served under section 239(a) of the Act." 8 C.F.R. § 1240.26(c)(1)(i).

In the cancellation of removal context, any period of contin- uous physical presence is deemed to end when the noncitizen is served with a Notice to Appear ("NTA"). See INA § 240A(d)(1),

8 U.S.C. § 1229b(d)(1). In 2018, the Supreme Court in Pereira v. Ses- sions, 585 U.S. 198 (2018), explained that the government could not circumvent this "stop-time" rule by providing noncitizens NTAs that lacked the statutorily required information, such as the time and place of the noncitizen's removal proceedings. 585 U.S. at 202. In 2021, in Niz-Chavez v. Garland, 593 U.S. 155 (2021), the Supreme Court expanded on its holding in Pereira. 593 U.S. at 159-60. There, the Court ruled that the government could not provide piecemeal NTAs to noncitizens when the original NTA did not provide all statutorily required information. Id. at 171-72. Instead, to provide a noncitizen with a compliant NTA that stops the clock on the noncitizen's continuous physical presence, the government must provide all required information in a singular document. Id. Here, the BIA did not abuse its discretion in denying Vail- Romero's request to remand her case to the IJ for the purpose of determining her eligibility for and granting voluntary departure be- cause she had an opportunity to request voluntary departure at

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23-13363 Opinion of the Court 9 many points throughout her immigration proceedings but failed to do so. Specifically, after the IJ informed her that she would not be granting her applications for asylum, withholding of removal, or CAT relief, Vail-Romero never mentioned that she would like to seek voluntary departure, nor did she attempt to move for volun- tary departure between the oral pronouncement and the written order. Vail-Romero's reliance on Niz-Chavez as the reason why she did not raise the issue is misplaced. While she argues that her claim for voluntary departure was not clear until the Niz-Chavez decision, Pereira, at the very least, gave her notice that her NTA was insuffi- cient, as the Pereira decision was issued before her final immigra- tion hearing. Pereira, 585 U.S. at 202. Moreover, at least twice, she raised the issue about her clock being stopped at zero days, demon- strating that the stop time issue was something being considered at that time. While Niz-Chavez may have clarified Pereira, Pereira's holding did not limit her from validly moving for voluntary depar- ture before the IJ. As such, she was not deprived of an opportunity to request voluntary departure before the IJ, and the BIA did not abuse its discretion in denying her request. Accordingly, we deny her petition to review this issue.

PETITION DENIED.

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