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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 17-10651, 17-14840
Non-Argument Calendar
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Agency No. A206-895-603
LEIDY MAYBELI OSORIO-ZACARIAS,
A.O.B.O.,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 14, 2018)
Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Leidy Osorio-Zacarias and her minor son seek review of the Board of
Immigration Appeals’s (“BIA”) decision affirming the immigration judge’s (“IJ”)
denial of her application for asylum, withholding of removal, and relief under the
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Convention Against Torture (“CAT relief”), and the BIA’s denial of her motion to
reopen. On appeal, Osorio-Zacarias argues that: (1) she qualifies for asylum and
withholding of removal because she suffered past persecution in Guatemala and
established a well-founded fear of future persecution; (2) the BIA abused its
discretion when it denied her motion to reopen based on new evidence of her post-
traumatic stress disorder (“PTSD”) diagnosis and of country conditions. After
careful review, we dismiss the petition in part, and deny it in part.
We review only the BIA’s decision, except to the extent the BIA expressly
adopted or agreed with the opinion of the IJ. Ayala v. U.S. Att’y Gen., 605 F.3d
941, 947-48 (11th Cir. 2010). We review the BIA’s legal determinations de novo
and its factual determinations under the substantial-evidence test. Lopez v. U.S.
Att’y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007). We must affirm the BIA’s
decision if it is supported by reasonable, substantial, and probative evidence on the
record considered as a whole. Id. Under the substantial-evidence test, we review
the record evidence in the light most favorable to the agency’s decision and draw
all reasonable inferences in favor of that decision. Adefemi v. Ashcroft, 386 F.3d
1022, 1027 (11th Cir. 2004). We review our subject-matter jurisdiction de novo.
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
Finally, we review the BIA’s denial of a motion to reopen for abuse of discretion.
Verano-Velasco v. U.S. Att’y Gen., 456 F.3d 1372, 1376 (11th Cir. 2006).
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First, we are unpersuaded by Osorio-Zacarias’s claim that the BIA erred by
denying her asylum and withholding of removal. The Attorney General has the
discretion to grant asylum to an alien who establishes that she is a refugee. 8
U.S.C. § 1158(b)(1)(A). To establish asylum based on past persecution, the
applicant must prove that: (1) she was persecuted; and (2) the persecution was on
account of a protected ground. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236
(11th Cir. 2006). Persecution is an extreme concept, requiring more than a few
isolated incidents of verbal harassment or intimidation, and mere harassment does
not amount to persecution. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231
(11th Cir. 2005). A credible death threat by a person who has the immediate
ability to act on it constitutes persecution even if the threat is not successfully
carried out. Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1333-34 (11th Cir. 2010).
In Diallo, we concluded that the petitioner had suffered persecution where soldiers
killed his brother and threatened him, noting that there was no reason why he
should have to stay in his country awaiting death in order to succeed on a claim of
past persecution. Id. at 1334. The threat was attributed to the Guinean government
and was based on the petitioner’s opposition to the government. Id. at 1331, 1334.
“An applicant who has been found to have established . . . past persecution
shall also be presumed to have a well-founded fear of persecution on the basis of
the original claim.” 8 C.F.R. § 208.13(b)(1). That presumption may be rebutted if
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the government establishes by a preponderance of the evidence that: (1) “[t]here
has been a fundamental change in circumstances such that the applicant no longer
has a well-founded fear of persecution”; or (2) “[t]he applicant could avoid future
persecution by relocating to another part of the applicant’s country of nationality . .
. and under all the circumstances, it would be reasonable to expect the applicant to
do so.” Id. § 208.13(b)(1)(i)(A) & (B), (b)(1)(ii).
An applicant may also establish a well-founded fear of persecution without
proving past persecution. Id. § 208.13(b)(2). To do so, an applicant must establish
a fear of persecution in her country of nationality on account of a protected ground,
a “reasonable possibility” of suffering persecution if she returns to that country,
and that she is unable or unwilling to return because of her fear. Id. §
208.13(b)(2)(i). The applicant’s fear of persecution must be “subjectively genuine
and objectively reasonable.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir.
2001). The applicant need not establish a reasonable possibility of persecution if
the applicant instead proves that she is a member of, or is identified with, a group
that is subjected to a “pattern or practice” of persecution in her country of
nationality. 8 C.F.R. § 208.13(b)(2)(iii). “An applicant does not have a well-
founded fear of persecution if the applicant could avoid persecution by relocating
to another part of the applicant’s country of nationality . . . if under all the
circumstances, it would be reasonable to expect the applicant to do so.” Id. §
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208.13(b)(2)(ii). The applicant bears the burden of proving that it would not be
reasonable for her to relocate, “unless the persecution is by a government or is
government-sponsored,” id. § 208.13(b)(3)(i), in which case relocation is presumed
to be unreasonable “unless the [government] establishes by a preponderance of the
evidence that, under all the circumstances, it would be reasonable for the applicant
to relocate.” Id. § 208.13(b)(3)(ii). When an applicant cannot meet the “well-
founded fear” standard of asylum, she is generally precluded from qualifying for
either asylum or withholding of removal. Kazemzadeh v. U.S. Atty. Gen., 577
F.3d 1341, 1351–52 (11th Cir. 2009)
An asylum applicant must also establish a nexus between the feared
persecution and a statutorily-protected factor by presenting specific, detailed facts
showing that she will be singled out on account of the protected factor. Forgue v.
U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). A protected factor need
only be one of the motivations for the persecution. Sanchez Jimenez v. U.S. Att’y
Gen., 492 F.3d 1223, 1235 (11th Cir. 2007). To qualify as a “particular social
group,” a group must be defined by a shared, immutable characteristic that the
members of the group either cannot change, or should not be required to change
because it is fundamental to their individual identities. Castillo-Arias v. U.S. Att’y
Gen., 446 F.3d 1190, 1193, 1196 (11th Cir. 2006).
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An alien shall not be removed to a country if her life or freedom would be
threatened on account of race, religion, nationality, membership in a particular
social group, or political opinion. 8 U.S.C. § 1231(b)(3). She must show that it is
more likely than not that she will be persecuted or tortured upon being returned to
her country. Sepulveda, 401 F.3d at 1232. This standard is more stringent than
asylum’s well-founded fear standard. Kazemzadeh, 577 F.3d at 1352. The alien
bears the burden to show her eligibility for withholding of removal under the
Immigration and Nationality Act (“INA”). 8 C.F.R. § 208.16(b). To do so, the
alien must either demonstrate past persecution based on a protected ground, Tan v.
U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006), or she must demonstrate a
future threat to her life or freedom. Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437
(11th Cir. 2004). The statutes governing asylum and withholding of removal
protect only against persecution on account of the victim’s political opinion, not
the persecutor’s. Ruiz v. U.S. Atty. Gen., 440 F.3d 1247, 1257 (11th Cir. 2006).
Private acts of violence, general criminal activity, and purely personal retribution
do not qualify as persecution based on a statutorily protected ground. Id.
In order to obtain CAT relief, the burden of proof is on the applicant to
establish that it is more likely than not that she would be tortured if removed to her
country. 8 C.F.R. § 208.16(c)(2); Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d
1239, 1242 (11th Cir. 2004). The alien must demonstrate that the torture would be
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inflicted by the government or that the government would be aware of the torture
and would fail to intervene. Reyes-Sanchez, 369 F.3d at 1242.
Here, the BIA did not err in concluding that Osorio-Zacarias was not entitled
to asylum or withholding of removal because she failed to show she was
persecuted against in Guatemala. According to the record, Osorio-Zacarias sought
relief based on her fear that if she returned to Guatemala, she and her son would be
killed like her husband, Jorge Mario Barrientos-Nufio, was when he was murdered
by a local man named Mateo. Osorio-Zacarias explained that three days after the
murder, Mateo called to warn her that, if she went to the police, he would kill her
and her older son. Osorio-Zacarias moved one kilometer away to live with her
parents, thinking that Mateo would do nothing because she had not reported him to
the police. She had no further contact with Mateo until six years later, when Mateo
and his brothers told her that, because her son was older and could seek revenge
for his father, she and her son should leave the country or be killed. She left to
work in San Martin, a town on the Guatemala/Mexico border, and when she
returned a month later, Mateo’s brothers saw her in town and told her they knew
she had been in San Martin.
As the record reveals, however, Osorio-Zacarias’s two threats came from
Mateo, who was a private actor, and she had failed to seek protection from Mateo
from authorities within Guatemala, which alone is enough to defeat her claim.
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While she attempted to overcome this failure with evidence that the authorities
would have been unwilling or unable to protect her had she reported the threats to
them, Osorio-Zacarias’s country-condition evidence does not support this
argument. See Lopez, 504 F.3d at 1345. Instead, the country-condition evidence
mainly showed some corruption and ineffectiveness in the Guatemalan police force
as it relates to cases of organized crime, gang violence, and domestic abuse, and
nothing suggests that Osorio-Zacarias’s husband’s murder was connected to
organized crime or gang violence or that Mateo’s threats were domestic abuse.
Further, even if Osorio-Zacarias had sought police protection within
Guatemala, her two encounters with Mateo were isolated incidents that occurred
over a six-year period. See Sepulveda, 401 F.3d at 1231 (stating that isolated
incidents are not sufficient to establish past persecution). Thus, unlike in Diallo,
there was no indication that when Mateo made death threats, he had the
“immediate ability to act on” them. 596 F.3d at 1331-34 (holding that past
persecution occurred where the petitioner was threatened with death by the same
soldiers who killed his brother and was only able to avoid the same fate by
escaping from detention). Rather, Mateo first threatened Osorio-Zacarias by
telephone and did not confront her for six years and, after his second threat, he did
not confront her at any time in the two months before she left for the United States.
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Moreover, even if Mateo’s threats did rise to the level of persecution,
substantial evidence supported the IJ’s and BIA’s conclusion that they were not
based on a protected ground. See Forgue, 401 F.3d at 1286. Rather, substantial
evidence supports the IJ’s and BIA’s conclusion that Mateo was motivated by
general criminality rather than on the basis of a protected ground. See Ruiz, 440
F.3d at 1257. Mateo explicitly threatened Osorio-Zacarias and her son to prevent
them from reporting him to the police, which furthered his criminal goals. Id.
Finally, for Osorio-Zacarias to establish a well-founded fear of future
persecution, she would need to show that she could not avoid persecution by
relocating elsewhere in Guatemala. See 8 C.F.R. § 208.13(b)(2)(ii) (indicating that
a fear is not well-founded if the applicant could relocate within their country).
However, we lack jurisdiction to address the IJ’s and BIA’s conclusion that
Osorio-Zacarias failed to establish that she could not relocate within Guatemala.
We may only review a final order of removal if the petitioner exhausted all
administrative remedies that were available as of right. 8 U.S.C. § 1252(d)(1). A
petitioner fails to exhaust the administrative remedies for a particular claim when
she does not argue the “core issue now on appeal” before the BIA. Indrawati v.
U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). We lack jurisdiction to
consider an argument the petitioner did not raise before the BIA even if the BIA
addressed the issue sua sponte. Amaya-Artunduaga, 463 F.3d at 1250.
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As the record shows, Osorio-Zacarias did not exhaust the relocation issue
before the BIA. Indeed, her brief to the BIA did not address relocation; at best it
implied that Mateo could find her elsewhere in the country without developing the
argument that his ability to find her meant that she could not effectively relocate.
See Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800-01 (11th Cir. 2016) (holding that
a petitioner must make more than passing references to exhaust an issue). This is
so even though her legal memorandum to the IJ, which was otherwise identical to
her BIA brief, included a discrete section discussing the relocation issue. And
although the BIA addressed the relocation issue anyway, that does not provide us
with jurisdiction where Osorio-Zacarias failed to exhaust the argument. See
Amaya-Artunduaga, 463 F.3d at 1250. 1 Accordingly, because Osorio-Zacarias
failed to establish that she suffered past persecution based on a protected ground,
and that she could not relocate within Guatemala, the IJ and BIA did not err in
denying her application for asylum and withholding of removal.
We also find no merit to Osorio-Zacarias’s argument that the BIA abused its
discretion when it denied her motion to reopen. A motion to reopen must state
new facts that would be proven at a hearing to be held if the motion is granted, and
should be supported by affidavits and other evidentiary materials. 8 U.S.C. §
1
We also lack jurisdiction to review the denial of CAT relief because Osorio-Zacarias
failed to exhaust that issue before the BIA. 8 U.S.C. § 1252(d)(1). Her brief to the BIA included
conclusory statements that she was entitled to CAT relief, but she never raised any specific
arguments about CAT relief. See Jeune, 810 F.3d at 800-01.
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1229a(c)(7)(A), (B). Motions to reopen may be granted if there is new evidence
that is material and was not available and could not have been discovered or
presented at the removal hearing. 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3). To
make such a showing, the alien bears a heavy burden and must present evidence of
such a nature that the BIA is satisfied that, if the proceedings before the IJ were
reopened, the new evidence offered would likely change the result in the case. Ali
v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006).
We cannot say the BIA abused its discretion when it denied Osorio-
Zacarias’s motion to reopen her applications for asylum or withholding of removal.
As the record indicates, the new evidence she submitted was unrelated to whether
there was a nexus between the harms she suffered and a protected ground and,
accordingly, was not likely to change the outcome of the case. See id. Thus, for
example, the evidence of her PTSD diagnosis was unrelated to her claim that she
was persecuted against as a member of a particular social group. To the extent
Osorio-Zacarias contended that her PTSD prevented her from testifying
completely, she indicated only that she could have testified regarding her suspicion
that Mateo made the second threat because she reported an unrelated sexual assault
to the police and he mistakenly believed she was reporting him. However, this
testimony would have been cumulative because Osorio-Zacarias recounted this
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suspicion in her declaration when she noted that Mateo may have approached her
the second time because he heard that she had been to the police station.
As for the additional country-condition evidence that discussed rampant
violence against women in Guatemala and a lack of available mental healthcare,
which may relate to her ability to relocate within the country, these issues also
were unrelated to her claim that she was persecuted against as a member of a
particular social group. 2 Moreover, this evidence was cumulative of evidence of
violence against women and inadequate mental healthcare in the original record.
Finally, the BIA did not abuse its discretion when it denied the motion to
reopen Osorio-Zacarias’s application for CAT relief. Although CAT relief does
not require a showing that the harm would be based on a protected ground, the new
evidence did not help establish that it was more likely than not that Osorio-
Zacarias would be tortured with the acquiescence of government officials in
Guatemala. The new country-condition evidence showed that the police had
significant issues in prosecuting crimes, particularly those related to organized
crime or gang violence, and that Guatemalan society had a pervasive bias against
women, particularly in domestic disputes, but nothing indicated that the
Guatemalan government would acquiesce in the torture of a woman in Osorio-
2
This evidence could have helped Osorio-Zacarias’s claims that she was persecuted against as a
Guatamalan woman or a Guatamalan woman who reported a crime, but she has expressly
abandoned those two claims on appeal. Sepulveda, 401 F.3d at 1228 n.2. She also has
abandoned any argument about the IJ’s denial of her motion to continue because she made only a
passing reference to it in a footnote. Id.
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Zacarias’s position. Thus, because the new evidence was not likely to change the
outcome of the case, we deny Osorio-Zacarias’s petition for review regarding the
BIA’s denial of her motion to reopen. See id.
Petition DISMISSED in part and DENIED in part.
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Leidy Maybeli Osorio-Zacarias v. U.S. Attorney General
Combined Opinion