Petitions for Review of Orders of the Board of Immigration
ELROD and WILLETT, Circuit Judges. [*]
JENNIFER WALKER ELROD, CIRCUIT JUDGE.
Suyapa Gonzales-Veliz, a Honduran citizen, petitions for
review of the denial of asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). While
her initial petition for review was pending before us,
Gonzales-Veliz also filed a motion for reconsideration with
the Board of Immigration Appeals (BIA), which subsequently
denied reconsideration by invoking an intervening decision in
Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).
Gonzales-Veliz also petitions for review of the denial of
reconsideration. We deny both petitions for review.
is a native and citizen of Honduras. In August 2014,
Gonzales-Veliz entered the United States without inspection,
was apprehended at the United States border, and was removed
to Honduras under an expedited removal order. In a sworn
statement, Gonzales-Veliz stated that she entered the United
States "to look for employment" and that she had no
fear of harm or returning to Honduras. Later in April 2015,
Gonzales-Veliz once again entered the United States illegally
and was apprehended. The Department of Homeland Security
reinstated the 2014 removal order and sought to remove her,
but this time, Gonzales-Veliz claimed that she feared
returning to Honduras due to widespread gang violence there.
An asylum officer referred the matter to an immigration judge
hearing testimony, the IJ denied Gonzales-Veliz's
application for asylum, withholding of removal, and CAT
protection. Citing controlling Fifth Circuit cases, the IJ
held that Gonzales-Veliz was ineligible to apply for asylum
because she unlawfully reentered the United States and had
her previous removal order reinstated. See Ramirez-Mejia
v. Lynch, 794 F.3d 485, 491 (5th Cir. 2015)
("[A]liens whose removal orders are reinstated may not
apply for asylum."). The IJ further concluded that
Gonzales-Veliz failed to demonstrate that she was harmed on
account of a membership in a particular social group-
Honduran women unable to leave their relationship. The IJ
also determined that Gonzales-Veliz failed to demonstrate
that the Honduran government was unable or unwilling to
protect her because her testimony showed that the police took
actions to protect her. Moreover, the IJ found her not
credible. As to her application for CAT protection, the IJ
found that the Honduran government would not acquiesce in
torture that she was allegedly expecting at the hands of
another individual with whom she had previously been in a
relationship. Alternatively, the IJ denied Gonzales-Veliz CAT
relief because she lacked credibility.
appealed to the BIA, which dismissed the appeal. The BIA
found that, even if Gonzales-Veliz was credible, she did not
belong to her proffered particular social group because her
own testimony showed that she was able to leave her
relationship. The BIA further found that Gonzales-Veliz was
not harmed on account of belonging to that group. The BIA
denied Gonzales-Veliz's asylum and withholding of removal
claims based on these grounds, and it did not rely on other
grounds offered by the IJ in denying relief, such as the
reentry bar for asylum and Gonzales-Veliz's lack of
credibility. As to the IJ's denial of CAT relief, the BIA
found insufficient evidence to disturb the IJ's finding
that the Honduran government would not acquiesce in torture.
Gonzales-Veliz petitioned for review of the BIA's denial
of asylum, withholding of removal, and CAT protection.
filing her initial petition for review, Gonzales-Veliz also
filed a motion for reconsideration before the BIA. See
Espinal v. Holder, 636 F.3d 703, 705 (5th Cir. 2011)
("In addition to filing a petition for review in this
court, an alien may simultaneously seek reconsideration by
the BIA."). While Gonzales-Veliz's motion for
reconsideration was still pending, then-Attorney General
Sessions issued his decision in Matter of A-B-, 27
I. & N. Dec. 316 (A.G. 2018), holding that "married
women in Guatemala who are unable to leave their
relationship" did not constitute a particular social
group and clarifying other points of law pertaining to asylum
and withholding of removal claims. The BIA denied
Gonzales-Veliz's motion for reconsideration by invoking
the Attorney General's A-B- decision.
Gonzales-Veliz filed a second petition for review,
challenging the denial of reconsideration.
first turn to Gonzales-Veliz's initial petition for
review concerning the denial of asylum, withholding of
removal, and CAT relief. We review factual findings for
substantial evidence and "may not reverse the BIA's
factual findings unless the evidence compels it."
Wang v. Holder, 569 F.3d 531, 536- 37 (5th Cir.
2009); 8 U.S.C. § 1252(b)(4)(B) ("[T]he
administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary."). We hold that substantial evidence supports
the BIA's denial of asylum, withholding of removal, and
qualify for asylum, an alien must show "that he is
'unable or unwilling to return to . . . [and] avail
himself . . . of the protection of [his home] 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.'"
Ghotra v. Whitaker, 912 F.3d 284, 288 (5th Cir.
2019) (alterations in original) (quoting 8 U.S.C. §
1101(a)(42)(A)). To qualify for withholding of removal, the
alien must make the same showing but must establish that
persecution is "more likely than not," which is
"a higher bar than the 'well-founded fear'
standard for asylum." Id. (quoting Efe v.
Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002)). "If
an applicant does not carry his burden for asylum, he will
not qualify for withholding of removal." Id.
both asylum and withholding-of-removal claims, the alleged
persecutor's motive-whether the persecutor acted against
the alien on account of her membership in a
particular social group-is crucial. Thus, an alien must show
that a protected ground (e.g., membership in a
particular social group) was "at least one central
reason for persecuting the applicant." 8 U.S.C. §
1158(b)(1)(B)(i). "[A]lthough a statutorily protected
ground need not subordinate to another reason for
harm.'" Shaikh v. Holder, 588 F.3d 861, 864
(5th Cir. 2009) (quoting Matter of J-B-N & S-M-,
24 I. & N. Dec. 208, 214 (BIA 2007)).
the BIA found that Gonzales-Veliz failed to show that she was
harmed on account of her membership in a particular social
group-i.e., that her ex-boyfriend harmed her for
being a Honduran woman unable to leave her relationship.
Substantial evidence supports this finding.
Gonzales-Veliz's own testimony belies her claim.
Gonzales-Veliz testified before the IJ that she and her
ex-boyfriend had no problem after she left him and that
"problems began" only after she sued her
ex-boyfriend for child support. Gonzales-Veliz argues that
the machismo culture and her ex-boyfriend's
desire to sexually dominate her were additional reasons that
her ex-boyfriend harmed her. However, the BIA found that her
ex-boyfriend was "motivated only by retribution after
she sued him," and the record does not compel a contrary
conclusion. See Wang, 569 F.3d at 536-37.
obtain protection under the CAT, an alien must demonstrate
that, if removed to a country, it is more likely than not
[she] would be tortured by, or with the acquiescence of,
government officials acting under the color of law."
Hakim v. Holder, 628 F.3d 151, 155 (5th Cir. 2010).
Acquiescence by the government includes "willful
blindness of torturous activity." Id.
argues that the BIA failed to provide a reasoned explanation
in denying her CAT relief. Because the Chenery
doctrine restricts a reviewing court to evaluate the
propriety of an agency's decision on the grounds invoked
by the agency, "that basis must be set forth with such
clarity as to be understandable." SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947). "It will not do
for a court to be compelled to guess at the theory underlying
the agency's action." Id. at 196-97. The
central question under Chenery is whether the
BIA's decision "deprive[s] [us] of a reasoned basis
for review." Soadjede v. Ashcroft, 324 F.3d
830, 832 (5th Cir. 2003). The BIA does not implicate
Chenery if it adopts the IJ's opinion such that
"the [IJ's] opinion provides the basis for
review." Id. Here, the BIA observed that
"there [was] insufficient reason to disturb the denial
of the applicant's request for protection under the
[CAT], on the basis of the [IJ's] conclusion that she did
not meet her burden . . . ." The BIA's statement can
fairly be read as incorporating the IJ's opinion. The IJ
denied CAT relief because Gonzales-Veliz failed to show that
the Honduran government would consent to or acquiesce in her
torture and because she lacked credibility.
evidence supports the IJ's finding that the Honduran
police did not and would not acquiesce to
Gonzales-Veliz's alleged torture by her ex-boyfriend.
Gonzales-Veliz testified that when her ex-boyfriend came to
her house to threaten her, the police came and stopped the
harassment. Against this record evidence, Gonzales-Veliz
simply speculates that her ex-boyfriend called someone
higher-up in the police ranks who ordered the police officer
to return the gun to her ex-boyfriend and let him go and that
her ex-boyfriend later murdered that police officer. However,
speculation alone is insufficient to compel a conclusion that
is contrary to the IJ's finding. See Milat v.
Holder, 755 F.3d 354, 363-64 (5th Cir. 2014) (rejecting
an alien's speculation as the basis for reversing a
BIA's finding under the substantial evidence standard).
Furthermore, although Gonzales-Veliz testified that the
police also told her that they could not help her as they
lacked the personnel, to the extent that this statement is to
be believed, it points to a lack of resources and funding,
not consent or acquiescence, on the part of the police force.
Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th
Cir. 2006) (holding that "the [alien's home
government's] lack of financial resources to eradicate
the threat or risk of torture" is insufficient to
warrant CAT relief).
* * *
substantial evidence supports the denial of asylum,
withholding of removal, and CAT relief, we deny
Gonzales-Veliz's first petition for review.
turn to Gonzales-Veliz's second petition for review
concerning the BIA's denial of her motion for
reconsideration. As discussed above, Gonzales-Veliz filed her
motion for reconsideration with the BIA while her first
petition for review was pending before us. On June 11, 2018,
while Gonzales-Veliz's motion for reconsideration was
still pending before the BIA, Attorney General Sessions
issued Matter of A-B-, overruling the BIA's
precedential decision in Matter of A-R-C-G-, which
Gonzales-Veliz cited in crafting her asylum and withholding
of removal claims. Matter of A-B-, 27 I. & N.
Dec. 316 (A.G. 2018), vacated in part, Grace v.
Whitaker, 344 F.Supp.3d 96 (D.D.C. 2018), appeal
filed sub nom. Grace v. Barr, No. 19-5013 (D.C. Cir.
filed Jan. 30, 2019). On June 29, 2019, the BIA denied
reconsideration, holding that Gonzales-Veliz "has not
demonstrated that reconsideration is warranted." In
particular, the BIA invoked A-B- in denying
reconsideration of its previous denial of asylum and
withholding of removal.
review the BIA's denial of a motion for reconsideration
under a highly deferential abuse-of-discretion standard.
Lowe v. Sessions, 872 F.3d 713, 715 (5th Cir. 2017).
To succeed on a motion for reconsideration, the petitioner
must "identify a change in the law, a misapplication of
the law, or an aspect of the case that the BIA
overlooked." Zhao v. Gonzales, 404 F.3d 295,
301 (5th Cir. 2005). Gonzales-Veliz puts forth a
comprehensive challenge against the BIA's decision not to
reconsider its denial of asylum and withholding of removal.
First, she argues that the BIA misinterpreted A-B-.
Second, assuming arguendo that the BIA correctly
interpreted A-B-, she contends that the
A-B-decision was arbitrary and capricious. Third and
alternatively, she asks us to remand her matter to the
immigration judge so that she can have a fresh start under
the A-B- standard. The government responds that we
lack jurisdiction to entertain Gonzales-Veliz's arguments
relating to A-B- because Gonzales-Veliz failed to
exhaust all available administrative remedies.
to the complexity of the A-B- issue, while
Gonzales-Veliz's second petition for review was pending
before us, the District Court for the District of Columbia
enjoined and vacated in part the A-B- decision.
Grace, 344 F.Supp.3d at 146. The government in that
case appealed the decision, and the appeal is currently
pending before the D.C. Circuit. However, because the
district court denied the stay of the injunction, the
injunction still stands. Grace v. Whitaker, No.
18-1853, 2019 WL 329572 (D.D.C. Jan. 25, 2019).
that: (1) we have jurisdiction to entertain
Gonzales-Veliz's arguments concerning A-B-; (2)
the Grace injunction does not affect our ability to
review A-B-, nor could it, as it does not bind
courts in this circuit; (3) the BIA correctly interpreted
A-B-; (4) A-B- was not arbitrary and
capricious; and (5) remand to the immigration judge is not
warranted. We address each issue in turn.
first turn to the government's argument that we lack
jurisdiction to entertain Gonzales-Veliz's arguments
concerning A-B-. "[F]ailure to exhaust an issue
deprives this court of jurisdiction over that issue."
Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 2009).
"Petitioners fail to exhaust their administrative
remedies as to an issue if they do not first raise the issue
before the BIA . . . ." Id. at 318. "This
exhaustion requirement applies to all issues for which an
administrative remedy is available to a petitioner 'as of
right.'" Id. A remedy is available as of
right if: (1) the ...