Alba Herlinda Jiminez-Perez, et al. v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 19-12614
Non-Argument Calendar
________________________

Agency No. A208-567-292
ALBA HERLINDA JIMENEZ-PEREZ,
J. J. D. J. P.,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.
________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 29, 2020)
Before GRANT, LUCK and MARCUS, Circuit Judges.

PER CURIAM:
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Alba Jimenez-Perez and her son seek review of the final order of the Board of
Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of
their application for asylum, withholding of removal, humanitarian asylum, and
Convention Against Torture (“CAT”) relief.
1
In her petition, Jimenez-Perez argues
that: (1) in light of Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148 (11th Cir. 2019),
the BIA erred by relying on Matter of Bermudez-Cota, 27 I. & N. Dec. 441 (BIA
2018), in dismissing her appeal because her notices to appear (“NTA”) that did not
specify the time and place of her hearing violated the agency’s claim-processing
rules; and (2) the IJ and BIA failed to afford reasoned consideration and applied
incorrect legal standards to her claims for asylum, humanitarian asylum, and CAT
relief. After thorough review, we dismiss the petition in part and deny it in part.
For starters, we lack jurisdiction to review Jimenez-Perez’s claim-processing
argument. We review our own subject matter jurisdiction de novo. Amaya-
Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We lack
jurisdiction to review the BIA’s decision unless the petitioner has exhausted all
administrative remedies available to her. Indrawati v. U.S. Att’y Gen., 779 F.3d
1284, 1297 (11th Cir. 2015). A petitioner fails to exhaust all administrative remedies
regarding a specific claim when she neglects to raise that claim before the BIA. Id.

1
Because the applications for relief are based on Jimenez-Perez’s past persecution and her
son is a derivative beneficiary, we discuss the proceedings only as to Jimenez-Perez.
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This requirement is not “stringent.” Id. It merely requires the petitioner to have
previously argued the “core issue” now on appeal before the BIA, as well as set out
any discrete arguments supporting the claim. Jeune v. Att’y Gen., 810 F.3d 792,
800 (11th Cir. 2016) (quotations omitted). Although she is not required to “use
precise legal terminology” or present a well-developed argument supporting her
claim, the petitioner must “provide information sufficient to enable the BIA to
review and correct any errors below.” Id. (quotations omitted). The exhaustion
requirement precludes review of a claim not presented to the BIA even if the BIA
elected to address the issue sua sponte. Amaya-Artunduaga, 463 F.3d at 1250-51.
An immigration court is vested with jurisdiction to conduct removal
proceedings upon the filing of a “charging document.” 8 C.F.R. § 1003.14(a). An
NTA is a charging document. Cunningham v. U.S. Att’y Gen., 335 F.3d 1262, 1266
(11th Cir. 2003). The Immigration and Nationality Act (“INA”) requires an NTA to
specify the time and place at which an alien’s removal hearing will be held. 8 U.S.C.
§ 1229(a)(1)(G)(i). The regulatory framework, however, does not require an NTA
to specify the time and place of a removal hearing. See generally 8 C.F.R. § 1003.15.
In Pereira v. Sessions, the Supreme Court considered when an alien’s
continuous physical presence for purposes of cancellation of removal ends, and held
that an NTA that does not specify the time and place of a hearing does not comport
with 8 U.S.C. § 1229(a) and consequently is not an NTA at all. 138 S. Ct. 2105,
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2110 (2018). Following Pereira, the BIA addressed the question of whether a
defective NTA nevertheless vests the IJ with jurisdiction. Bermudez-Cota, 27 I. &
N. Dec. at 442-43. The BIA concluded that an NTA that does not specify the time
and place of an alien’s initial hearing is sufficient to vest the IJ with jurisdiction so
long as it is followed by a notice of hearing that supplies this missing information.
Id. at 447. The BIA noted both the long history of NTAs that lacked time and place
specifications and that the Supreme Court in Pereira remanded the case for further
proceedings, indicating that there was jurisdiction over the case. Id. at 443-47.
After Pereira, we held that, although an NTA’s failure to specify the time of
the hearing violated 8 U.S.C. § 1229, the statutory requirement was not jurisdictional
and was instead a claim-processing rule. Perez-Sanchez, 935 F.3d at 1153-55. We
further reasoned that 8 C.F.R. § 1003.14 was a claim-processing rule because
agencies cannot set or limit their own jurisdiction. Id. at 1155-57. Thus, we held
that, even if the NTA’s failure to specify the time of the hearing rendered it deficient
under 8 C.F.R. § 1003.14, the agency still properly exercised jurisdiction because
the regulation could not have imposed a jurisdictional limitation. Id. We then
determined that we lacked jurisdiction to address whether the case should be
remanded on the basis that the NTA violated the agency’s claim-processing rules
because the petitioner had not exhausted that claim. Id. at 1157.
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Here, under our binding case law, Jimenez-Perez’s defective NTA did not
deprive the IJ of jurisdiction. See id. Moreover, we lack jurisdiction to consider
Jimenez-Perez’s claim-processing argument because she did not raise it before the
BIA. See id. While Jimenez-Perez raised the “core issue” of the defective NTAs to
the BIA, she did not challenge the agency’s claim-processing rule in any way,
instead urging that the IJ lacked jurisdiction. Jeune, 810 F.3d at 800. To the extent
the BIA addressed the claim-processing issue sua sponte when it said that Jimenez-
Perez had waived any challenge to her NTAs by failing to raise it before the IJ, that
statement did not remove the exhaustion requirement. Amaya-Artunduaga, 463 F.3d
at 1250-51. Accordingly, we dismiss her petition for lack of jurisdiction to the extent
that she argues that the defective NTAs violated the agency’s claim-processing rule.
We turn now to Jimenez-Perez’s substantive argument that the IJ and BIA
failed to afford reasoned consideration and applied incorrect legal standards to her
claims for asylum and humanitarian asylum. In this analysis, we review only the
BIA’s decision, except to the extent that the BIA either expressly adopts the IJ’s
decision or explicitly agrees with the IJ’s findings. Jeune, 810 F.3d at 799. In
reviewing the BIA decision, we review de novo the agency’s legal conclusions, but
we “defer to the BIA’s interpretation of a statute if it is reasonable and does not
contradict the clear intent of Congress.” Quinchia v. U.S. Att’y Gen., 552 F.3d 1255,
1258 (11th Cir. 2008) (quotations omitted); Chevron, U.S.A., Inc. v. Nat. Res. Def.
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Council, Inc., 467 U.S. 837, 842-44 (1984). However, if congressional intent is
clear, courts and agencies “must give effect to [Congress’s] unambiguously
expressed intent.” Chevron, 467 U.S. at 842-43. An agency’s “interpretation is
reasonable and controlling unless it is arbitrary, capricious, or manifestly contrary
to the statute.” Dawson v. Scott, 50 F.3d 884, 887 (11th Cir. 1995) (quotations
omitted). Chevron deference is appropriate in cases involving precedential three-
member decisions of the BIA or single member BIA decisions resting on existing
BIA or federal court precedent. Quinchia, 552 F.3d at 1258.
Claims that the agency failed to give reasoned consideration or applied the
wrong legal standard to an issue are questions of law that we review de novo. Jeune,
810 F.3d at 799. In a reasoned-consideration examination, we ask whether the
agency “consider[ed] the issues raised and announce[ed] its decision in terms
sufficient to enable a reviewing court to perceive that it has heard and thought and
not merely reacted.” Id. at 803 (quotations omitted). “[T]he agency does not give
reasoned consideration to a claim when it misstates the contents of the record, fails
to adequately explain its rejection of logical conclusions, or provides justifications
for its decision which are unreasonable and which do not respond to any arguments
in the record.” Id. However, the BIA and IJ “are not required to address specifically
each claim the petitioner made or each piece of evidence the petitioner presented.”
Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010) (quotations omitted).
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We review the agency’s factual findings under the substantial evidence test.
Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Under this test,
the agency’s decision will be affirmed “if it is supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Silva v. U.S. Att’y
Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (quotations omitted). Thus, the agency’s
factual findings may be reversed only if the record compels reversal. Id.
Issues not briefed on appeal are deemed abandoned. Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008). Issues raised for the first time in a reply brief are
also deemed abandoned. Id. To raise an issue on appeal, a party must “specifically
and clearly identif[y] it in its opening brief.” Cole v. U.S. Att’y Gen., 712 F.3d 517,
530 (11th Cir. 2013) (quotations omitted).
An applicant for asylum must meet the INA’s definition of a refugee. 8 U.S.C.
§ 1158(b)(1). The definition of “refugee” includes:
any person who is outside any country of such person’s nationality . . .
and who is unable or unwilling to return to, and is unable or unwilling
to avail himself or herself of the protection of, that country because of
persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion.

8 U.S.C. § 1101(a)(42)(A). Thus, the applicant must, with “specific and credible
evidence,” establish (1) past persecution on account of a statutorily listed factor, or
(2) a well-founded fear that the statutorily listed factor will cause future persecution.
Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (quotations omitted).
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An “applicant must prove that the protected ground was or will be at least one central
reason for persecuti[on].” Perez-Zeneto v. U.S. Att’y Gen., 913 F.3d 1301, 1307
(11th Cir. 2019) (quotations omitted). We’ve held that “persecution is an extreme
concept, requiring more than a few isolated incidents of verbal harassment or
intimidation, and that mere harassment does not amount to persecution.” De
Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008 (11th Cir. 2008) (quotations
omitted). “In determining whether an alien has suffered past persecution, the IJ must
consider the cumulative effect of the alleged persecutory incidents.” Id.
The INA does not define “particular social group,” but we’ve deferred to the
BIA’s criteria. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1196 (11th Cir.
2006). Whether an applicant’s proposed group constitutes a particular social group
is a question of law. Perez-Zeneto, 913 F.3d at 1306.
To satisfy the particular social group criteria, the group’s members first must
have a “common characteristic other than their risk of being persecuted,” and that
characteristic must be immutable or fundamental to a member’s individual
conscience or identity. Castillo-Arias, 446 F.3d at 1193–94, 1196–97. Notably,
“[t]he risk of persecution alone does not create a particular social group within the
meaning of the INA.” Id. at 1198. Second, a group must have sufficient social
visibility. Id. at 1194, 1197–98. Social visibility, or “social distinction,” requires a
group to be socially distinct within the society in question, meaning it must be
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perceived as a group by society. Matter of W-G-R-, 26 I. & N. Dec. 208, 216 (BIA
2014). Whether a group is socially distinct is determined by the perception of the
society as a whole and not by the persecutor’s perception of the group. Matter of
M-E-V-G-, 26 I. & N. Dec. 227, 242 (BIA 2014). Third, a group must be “defined
with particularity,” so it must “be discrete and have definable boundaries” and not
“amorphous, overbroad, diffuse, or subjective.” Gonzalez, 820 F.3d at 404 (quoting
W-G-R-, 26 I. & N. Dec. at 214); see also M-E-V-G-, 26 I. & N. Dec. at 239 (“A
particular social group must be defined by characteristics that provide a clear
benchmark for determining who falls within the group.”). The BIA decides on a
“case-by-case basis” whether a “particular kind of group characteristic” meets these
requirements. Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), overruled on
other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439, 441 (1987).
In Perez-Zeneto, we considered whether “Mexican citizens targeted by
criminal groups because they have been in the United States and they have families
in the United States” was a particular social group under the INA. 913 F.3d at 1304.
We explained that the IJ and BIA had reasonably applied precedent requiring
particular social groups to be socially distinct and defined with particularity and

reasonably concluded that Perez-Zenteno had failed to establish that her proffered
group was either socially distinct or defined with sufficient particularity. Id. at
1308–09. Additionally, the BIA had reasonably determined that the group was
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circularly defined by the risk of persecution because the group’s defining attribute
was that it was “targeted by” criminal groups. Id. at 1309–10. Even reviewing the
matter de novo, we concluded that Perez-Zenteno’s proffered definition did not
constitute a particular social group because the group had been “drawn far too
broadly” and the petitioner had “done nothing to limit or circumscribe this large and
diverse group in any way.” Id. at 1311.
The BIA also recently explored the meaning of the phrase “particular social
group.” In Matter of A-R-C-G-, the BIA determined that the respondent, a domestic-
violence victim, was a member of a particular social group of “married women in
Guatemala who are unable to leave their relationship.” 26 I. & N. Dec. 388, 388-90
(BIA 2014). But then, in Matter of A-B-, the Attorney General addressed whether
“being a victim of private criminal activity constitutes a cognizable ‘particular social
group’ for purposes of an application for asylum or withholding of removal.” 27 I.
& N. Dec. 316, 317 (BIA 2018). Changing course, the Attorney General overruled
A-R-C-G- as wrongly decided on the grounds that it was based on concessions by
the Department of Homeland Security that the group was cognizable, and that the
BIA’s analysis was cursory, lacked rigor and broke with precedent. Id. at 331–33.
According to the Attorney General, a particular social group must “exist
independently of the harm asserted” by the applicant. Id. at 334 (quotations
omitted). However, A-R-C-G- had “never considered that ‘married women in
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Guatemala who are unable to leave their relationship’ was effectively defined to
consist of women in Guatemala who are victims of domestic abuse because the
inability ‘to leave’ was created by harm or threatened harm,” and was not
independent of it. Id. at 335. The Attorney General noted that “[s]ocial groups
defined by their vulnerability to private criminal activity likely lack the particularity
required under M-E-V-G-, given that broad swaths of society may be susceptible to
victimization.” Id. at 335. Similarly, the Attorney General criticized A-R -C-G- for
viewing the group as cognizable because there was “significant room for doubt” that
Guatemalan society viewed the women as members of a distinct group in society,
rather than each as a victim of a particular abuser in highly individualized
circumstances. Id. at 336.
Thereafter, in Amezcua-Preciado v. U.S. Attorney General, 943 F.3d 1337
(11th Cir. 2019), we held that we deferred to the interpretation of the term “particular
social group” the Attorney General used in A-B-, and based on that interpretation,
the BIA did not err in concluding that “women in Mexico who are unable to leave
their domestic relationship” was not a cognizable social group. Id. at 1344. As we
explained, Amezcua-Preciado’s proposed group closely mirrored, and suffered from
the same defects as, the proposed group in A-R-C-G- that the Attorney General
found not cognizable. Id. at 1344-45. In other words, the proposed group was not
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socially distinct within Mexican society, was not defined with sufficient
particularity, and was circularly defined with regard to the asserted persecution. Id.
An applicant may qualify for asylum even without showing a well-founded
fear of future persecution if she (1) demonstrates “compelling reasons for being
unwilling or unable to return to the country arising out of the severity of the past
persecution”; or (2) establishes “a reasonable possibility that he or she may suffer
other serious harm upon removal to that country.” 8 C.F.R. § 1208.13(b)(1)(iii).
This provision describes what courts refer to as “humanitarian asylum.” Mehmeti
v. U.S. Att’y Gen., 572 F.3d 1196, 1200 (11th Cir. 2009). Nevertheless, an applicant
for humanitarian asylum still must show that she is a “refugee” within the meaning
of the INA. Perez-Zeneto, 913 F.3d at 1311 n.3.
Here, Jimenez-Perez sought asylum and humanitarian asylum based on her
claims that she had been persecuted on account of her membership in the particular
social group of “Guatemalan women viewed as property” and on account of her
membership in “the Jimenez family.” She now argues that the BIA applied incorrect
legal standards in rejecting both of these claims. We disagree.
First, we note that, even on de novo review, Jimenez-Perez has not identified
any legal errors in the BIA’s decision that “Guatemalan women viewed as property”
is not a particular social group. Among other things, Jimenez-Perez’s group lacks
particularity because, while the words “viewed as property” indicates that the group
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is intended to encompass some subset of “Guatemalan women,” there is no obvious
criterion for whether a Guatemalan woman is viewed as property. See Gonzalez,
820 F.3d at 404; Amezcua-Preciado, 943 F.3d 1344-45. To the extent Jimenez-Perez
intends “viewed as property” to mean that an individual is treated as property, in the
sense that she was subjected to mistreatment, the definition is impermissibly circular
because it is defined by the persecution that its members experience. See Perez-
Zeneto, 913 F.3d at 1309-10; Amezcua-Preciado, 943 F.3d at 1345; A-B-, 27 I. &
N. Dec. at 334-35. Jimenez-Perez argues that in evaluating this factor, the BIA
conflated diversity with overbreadth, but she cites only out-of-circuit decisions for
this proposition. The BIA’s language, notably, was consistent with our precedent
that a petitioner’s failure to limit a “large and diverse group” may render the group
overbroad. Perez-Zeneto, 913 F.3d at 1311.
Further, Jimenez-Perez’s proposed group lacks social distinctness because
nothing suggests that Guatemalan society recognizes women who are viewed as
property to be socially distinct. Amezcua-Preciado, 943 F.3d at 1344-45; W-G-R -,
26 I. & N. Dec. at 216; M-E-V-G-, 26 I. & N. Dec. at 242; A-B-, 27 I. & N. Dec. at
336. And while the BIA expressly held that Jimenez-Perez had failed to show that
her group was socially distinct, providing an independent basis for its decision,
Jimenez-Perez did not sufficiently challenge that determination in her initial brief to
this Court. Timson, 518 F.3d at 874; Cole, 712 F.3d at 530. On this record, we
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cannot say that the BIA legally erred in holding that “Guatemalan women viewed as
property” is not a particular social group.
As for Jimenez-Perez’s claim based on her membership in the Jimenez family,
the record reveals that the BIA afforded reasoned consideration to this claim. The
BIA properly noted that a protected ground need only be “a central reason” for
persecution; Jimenez-Perez offers nothing the BIA failed to consider; and the BIA’s
decision is not disorganized nor confusing. Jeune, 810 F.3d at 799, 803. Further,
the BIA properly applied clear-error review to the IJ’s factual finding that certain
threats and attacks were “on account of criminal intent or due to personal disputes,”
and did not improperly apply clear-error review to any conclusions of law. Id. While
Jimenez-Perez says the BIA legally erred in holding that particular threats and
attacks did not constitute persecution, the BIA did not reach that issue since it found
that the acts had no nexus to a protected ground. The BIA also identified and applied
the proper legal standard for showing a well-founded fear of persecution. And the
BIA’s treatment of her claims based on her father’s abuse did not impose an
improperly high standard of proof. To the contrary, it accurately tracked our
precedent that the agency must consider the “cumulative effect” of alleged incidents
of persecution, and it nowhere required her to provide additional corroborating
evidence of persecution. De Santamaria, 525 F.3d at 1008.
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As for her claim for humanitarian asylum, the record again reflects that the
BIA afforded her reasoned consideration, recognizing that its determination that she
was not a “refugee” foreclosed the claim. Perez-Zeneto, 913 F.3d at 1311 n.3. Thus,
for all of these reasons, Jimenez-Perez has not shown that the BIA erred as a matter
of law in evaluating her applications for asylum or humanitarian asylum.
Finally, we find no merit to Jimenez-Perez’s claim that the BIA failed to
afford reasoned consideration or applied an incorrect legal standard to her claim for
CAT relief. We review the BIA’s and IJ’s factual findings concerning CAT relief
under the substantial evidence test. See Alim v. Gonzales, 446 F.3d 1239, 1255-57
(11th Cir. 2006). “The burden of proof is on the applicant for withholding of
removal under [CAT] to establish that it is more likely than not that . . . she would
be tortured if removed to the proposed country of removal.” 8 C.F.R. §
1208.16(c)(2). In order for an act to constitute torture, it must be “inflicted by or at
the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.” Id. § 1208.18(a)(1). “Acquiescence” requires
that a “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.” Id. § 1208.18(a)(7). In other words, it means that “the
government was aware of the torture, yet breached its responsibility to intervene.”
Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 891 (11th Cir. 2007); see also
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Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1243 (11th Cir. 2004) (holding
that the Peruvian government did not acquiesce to torture where police responded to
reported incident of torture, even if never apprehended those responsible).
In assessing a CAT claim, the IJ must consider “all evidence relevant to the
possibility of future torture.” 8 C.F.R. § 1208.16(c)(3). Specifically, the IJ must
consider: (1) “[e]vidence of past torture”; (2) “[e]vidence that the applicant could
relocate to a part of the country . . . where . . . she is not likely to be tortured”; (3)
“[e]vidence of gross, flagrant or mass violations of human rights within the country”;
and (4) “[o]ther relevant information regarding conditions.” Id.
Here, we cannot say the BIA legally erred in rejecting Jimenez-Perez’s claim
for CAT relief. The BIA’s detailed discussion of the issue indicates that it did not
simply agree with the IJ, but instead conducted its own analysis. For instance, when
Jimenez-Perez argued that the Guatemalan government’s failure to prevent or
respond to the harms she’d suffered showed it would acquiesce to her torture in the
future, the BIA found that, in each instance, she had not shown government
acquiescence. The BIA’s analysis confirmed that it “heard and thought and [did]
not merely react[]” in rejecting her claim. Jeune, 810 F.3d at 803.
To the extent Jimenez-Perez says the BIA and IJ did not consider all of the
evidence, they were not required to specifically address each piece of evidence.
Ayala, 605 F.3d at 948. Regardless, the record reveals that the BIA reviewed it all,
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thoroughly rejecting Jimenez-Perez’s argument that the IJ had failed to consider
evidence. Further, because the BIA and IJ treated Jimenez-Perez’s testimony as true
in evaluating her claims, they did not need to specifically address the evidence
corroborating her testimony as well. See id. Nor did the BIA impose a requirement
that Jimenez-Perez report past incidents of torture to the police. Rather, it noted only
that she had not reported certain incidents as evidence that the government was
unaware of them.
Accordingly, we dismiss Jimenez-Perez’s petition for review to the extent that
she argues that her defective NTA violated the agency’s claim-processing rule and
deny the petition in all other respects.
2

DISMISSED IN PART AND DENIED IN PART.

2
We add that Jimenez-Perez has abandoned any challenge to the BIA’s and IJ’s determinations
that she was ineligible for withholding of removal and any challenge to the BIA’s factual
findings concerning her CAT claim, since she does not raise those issues in her initial brief. See
Timson, 518 F.3d at 874. She also concedes that she is not challenging the IJ’s and BIA’s
factual determinations concerning her asylum claim, so she’s abandoned that challenge as well.
Id. As for her argument that the BIA erred in evaluating her proposed social group of “the
Jimenez family,” it is misplaced because the BIA assumed that the group was cognizable.
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