Alma Aracely Castaneda-Martinez v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10115
Non-Argument Calendar
____________________
ALMA ARACELY CASTANEDA-MARTINEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A089-099-071
____________________
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2 Opinion of the Court 21-10115
Before J ORDAN, NEWSOM , and L AGOA , Circuit Judges.
PER CURIAM:
Alma Castaneda-Martinez petitions this Court for review of
the Board of Immigration Appeals’ (“BIA”) decision affirming the
immigration judge’s denial of her claim for withholding of re-
moval. She argues that the BIA and the immigration judge’s find-
ing that her mistreatment by the gang, Los Chentes, was motivated
by personal animus rather than her membership in a particular so-
cial group is unsupported by the record. Further, Castaneda-Mar-
tinez contends that the IJ erred in concluding that her proposed
particular social group—witnesses to gang crimes who attempt to
report those crimes—was not cognizable. In response, the govern-
ment argues that we lack jurisdiction to consider Castaneda-Mar-
tinez’s challenge to the immigration judge’s nexus finding because
she failed to raise that argument before the BIA and that we should
thus dismiss her petition.
I.
Castaneda-Martinez, a Honduran citizen, was previously re-
moved from the United States in 2008. She reentered the United
States in May 2016 and was detained by the Department of Home-
land Security and received a reasonable fear interview, after which
an asylum officer found that she had a reasonable fear of persecu-
tion should she return to Honduras. Subsequently, she was placed
in withholding-only proceedings before an immigration judge.
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21-10115 Opinion of the Court 3
Castaneda-Martinez applied for withholding of removal un-
der section 241(b)(3) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1231(b)(3)(A), and for relief under the Conven-
tion Against Torture (“CAT”), asserting persecution on account of
membership in a particular social group. In a statement attached
to her application, she asserted that she left Honduras because her
life was threated by a gang known as Los Chentes. According to
Castaneda-Martinez, the threats began after she witnessed gang
members murder her uncle because he refused to continue paying
a “tax” to the gang. She decided to contact the police, despite being
warned by the gang members not to do so. But, when Castaneda-
Martinez, accompanied by her cousin and grandmother, arrived at
the police station, no one was there for her to report the murder.
During the next several days, she received threatening text mes-
sages and heard from neighbors that those gang members intended
to kill her as well. She moved to a friend’s house in a nearby village,
but the gang members found her after five months. While Cas-
taneda-Martinez escaped, her friend’s daughter was raped by the
gang members. She moved to another friend’s house, but after
people in her home village heard Castaneda-Martinez was staying
with that friend and reported that Los Chentes was still looking for
her, her friend informed her she could no longer stay with her. As
such, Castaneda-Martinez fled to the United States.
At the hearing on her application, Castaneda-Martinez pro-
vided testimony similar to her personal statement and also testified
that her cousin had been murdered after the attempted report of
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4 Opinion of the Court 21-10115
her uncle’s murder to the police. Through counsel, she articulated
three particular social groups: (1) a person who “witnessed
firsthand the murder of her uncle by the Los Chentes [and] took
steps to file a report”; (2) a person “persecuted by Los Chentes on
account of her familial relationship,” i.e., her uncle; and (3) a person
“persecuted by the Los Chentes gang because she is related to a
business owner who refused to pay a local tax.” She further argued
that her opposition to the gang was sufficient to establish her mem-
bership in those proposed social groups because it existed inde-
pendently of her persecution and was the reason the gang targeted
her.
The immigration judge issued an oral decision denying Cas-
taneda-Martinez’s withholding of removal and CAT claims. While
finding her testimony credible, the immigration judge found that
she had “not posited a cognizable particular social group definition
or demonstrated any type of nexus between [the three] claimed
groups and any type of harm she fears in Honduras.” As to her first
proposed group, the immigration judge held it was not cognizable
because it only contained Castaneda-Martinez and was not “so-
cially distinct within society for any reason.” In analyzing the first
group, the immigration judge noted that Castaneda-Martinez had
never filed a police report against the gang members. As to her
second group, the immigration judge found that she had not
shown the gang was motivated by animus against her family, in
particular noting that Castaneda-Martinez’s grandmother still
safely lived in Honduras and that her parents and siblings
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21-10115 Opinion of the Court 5
continued to live in Honduras safely. As to the third proposed
group, the judge found it insufficient to show any type of social
distinction within society. And the immigration judge found that
it was clear that Castaneda-Martinez “simply feared being the vic-
tim of crime and in the matters for a general . . . criminal strife,”
but that “generalized fear of harm or violence without more does
not support” a withholding of removal claim.1 Thus, because Cas-
taneda-Martinez “failed to demonstrate any type of nexus due to
one of the five annuity grounds such as that of membership to their
social group definition,” the immigration judge found her applica-
tion for withholding of removal must fail. The immigration judge
therefore ordered Castaneda-Martinez removed to Honduras.
Castaneda-Martinez appealed to the BIA. Her notice of ap-
peal argued that the immigration judge erred in determining that
her proposed social groups were not cognizable as well as in find-
ing that she could live elsewhere in Honduras without risk of per-
secution by the gang. She stated that she “was targeted because of
her relationship with her uncle and because she was connected to
activities involving seeking justice with the prosecutor, which re-
sulted in the assassination of [her] cousin and the gang's attempt to
kill [her].”
In her brief to the BIA, Castaneda-Martinez argued that the
immigration judge erroneously limited her first proposed social
1 The immigration judge also denied Castaneda-Martinez’s CAT claim, but she
does not make any argument challenging that denial on appeal.
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6 Opinion of the Court 21-10115
group “to the facts solely specific to [her]—a single person—rather
than to the large group consisting of ‘individuals who witness gang
crimes and take steps to report them.’” She also argued that the
fact that she failed to file a report was not required for her proposed
group to be recognized. She further argued that she and her cousin
“were targeted and threatened because they went to the state’s of-
fice to file a complaint—even though no complaint was filed.” And
she concluded that she had “demonstrated that her the social group
defined as ‘witnesses of gang crimes who took steps (attempted to
file) a police report/complaint,’ was a cognizable particular social
group.” Her brief, however, did not challenge the immigration
judge’s rejection of her two other proposed social groups. And she
did not challenge the immigration judge’s finding that she “simply
feared being the victim of crime and in the matters for a general . . .
criminal strife,” which was a “generalized fear of harm or violence”
that could not support a withholding of removal claim—i.e., that
there was a nexus between the persecution she suffered and a pro-
tected ground.
See Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437–
38 (11th Cir. 2004). Instead, she merely argued that her attempt to
file a police report “was one of the central reasons, if not the main
reason, why she was persecuted.”
On December 23, 2020, the BIA adopted and affirmed the
immigration judge’s decision, as there was no clear error in the
judge’s findings of fact concerning the actual motive of the gang
members in Honduras, i.e., that “gang members were not moti-
vated to harm the applicant on account of a protected ground.”
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21-10115 Opinion of the Court 7
Rather, the BIA explained that the events “appear[ed] to concern a
personal dispute or vendetta for a crime committed by gang mem-
bers, which does not amount to past persecution on account of a
protected ground.” This petition followed.
II.
Generally, when the BIA issues a decision, we only review
that decision.
Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir.
2016). However, “[w]hen the BIA explicitly agrees with the find-
ings of the immigration judge, we review the decision of both the
BIA and immigration judge as to those issues.”
Id. We review legal
questions, including our own jurisdiction,
de novo.
Id.; Amaya-
Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
And we do not consider issues not decided by the BIA.
Gonzalez
v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016).
Additionally, we may review a final order of removal only if
the petitioner has exhausted her administrative remedies. 8 U.S.C.
§ 1252(d)(1). “[W]hen a petitioner has neglected to assert an error
before the BIA that [she] later attempts to raise before us, the peti-
tioner has failed to exhaust [her] administrative remedies.”
Jeune,
810 F.3d at 800. It is not enough for the petitioner to “merely iden-
tif[y]” an issue before the BIA.
Id. She must raise the “core issue”
to the BIA and set out any discrete arguments relied on in support
of her claim.
Id. “‘Unadorned, conclusory statements do not sat-
isfy this requirement,’ and the petitioner must do more than make
a passing reference to the issue.”
Id. And, even if the BIA addresses
an issue that the petitioner failed to raise in her appeal to the BIA
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8 Opinion of the Court 21-10115
sua sponte, the petitioner has still failed to exhaust that claim.
See
Amaya-Artunduaga, 463 F.3d at 1251 (“[W]e think the goals of ex-
haustion are better served by our declining to review claims a peti-
tioner, without excuse or exception, failed to present before the
BIA, even if the BIA addressed the underlying issue sua sponte.”).
An otherwise removable individual is entitled to withhold-
ing of removal if her “life or freedom would be threatened in th[e]
country [of removal] because of [her] . . . membership in a particu-
lar social group.” 8 U.S.C. § 1231(b)(3)(A). An applicant for with-
holding of removal “bears the burden of demonstrating that it is
‘more likely than not’ she will be persecuted or tortured upon be-
ing returned to her country.”
Sanchez Jimenez v. U.S. Att’y Gen.,
492 F.3d 1223, 1238 (11th Cir. 2007) (quoting
Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005)). “[E]vidence that
either is consistent with acts of private violence . . . or that merely
shows that a person has been the victim of criminal activity, does
not constitute evidence of persecution based on a statutorily pro-
tected ground.”
Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th
Cir. 2006).
Here, we conclude that Castaneda-Martinez failed to ex-
haust her challenge to the immigration judge’s nexus finding. In
rejecting Castaneda-Martinez’s claims for relief, the immigration
judge rejected each of her proposed particular social groups. The
immigration judge also found that Castaneda-Martinez had not
“demonstrated any type of nexus between these claimed groups
and any type of harm she fears in Honduras.” Rather, the judge
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21-10115 Opinion of the Court 9
found she simply possessed a “generalized fear of harm or vio-
lence”—i.e., a fear of being a victim of crime and of general crimi-
nal strife—but that fear could not support any type of application
for withholding of removal. In its review of the immigration
judge’s order, the BIA found that “the events described by the ap-
plicant appear to concern a personal dispute or vendetta for a crime
committed by gang members, which does not amount to past per-
secution on account of a protected ground.”
But Castaneda-Martinez did not challenge the immigration
judge’s determination that she had not demonstrated the requisite
nexus between her proposed social groups and the harm she feared
in Honduras or the finding that she merely had a generalized fear
of harm or violence in her brief to the BIA. Indeed, her brief fails
to articulate an argument or provide a factual or legal basis address-
ing how the immigration judge erred in this respect. Castaneda-
Martinez’s brief rather challenged the immigration judge’s deter-
minations that her “group consisted of only one member” and that
she was “not able to meet the witness social group simply because
she did not actually [file a police report].” While her brief to the
BIA briefly mentions that her attempt to file a police report “was
one of the central reasons, if not the main reason, why she was per-
secuted,” we conclude that this passing reference, to the extent it
can be construed as raising argument as to the nexus requirement,
was not sufficient for exhaustion purposes.
Because Castaneda-Martinez failed to exhaust her adminis-
trative remedies as to the key nexus issue for her withholding of
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10 Opinion of the Court 21-10115
removal claim, we lack jurisdiction to review it. Accordingly, we
dismiss the petition.2
PETITION DISMISSED.
2 Castaneda-Martinez’s other challenge, regarding the cognizability of one of
her proposed particular social groups, is also not properly before us as the BIA
did not consider and decide that issue.
See Gonzalez, 820 F.3d at 403.
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