USCA11 Case: 20-12089 Date Filed: 03/23/2021 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-12089
Non-Argument Calendar
________________________
Agency No. A206-630-974
LETICIA HERNANDEZ-TROCHEZ,
EDIMILSON JOSE LINARES-HERNANDEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 23, 2021)
Before WILSON, ROSENBAUM, and LAGOA, Circuit Judges.
PER CURIAM:
Leticia Hernandez-Trochez and her son, Edimilson Jose Linares-Hernandez,
petition for review of the Board of Immigration Appeals’s (“BIA”) order affirming
USCA11 Case: 20-12089 Date Filed: 03/23/2021 Page: 2 of 12
the immigration judge’s order of removal and denial of their applications for asylum
and withholding of removal. For the reasons discussed below, we lack jurisdiction
and dismiss the petition.
I. FACTUAL AND PROCEDURAL HISTORY
Hernandez-Trochez and her son were born in and are citizens of Honduras.
On March 24, 2014, Hernandez-Trochez and her son entered the United States
through Texas without legal authorization. The Department of Homeland Security
served them with notices to appear, charging them as subject to removal because
they were present in the United States without being admitted or paroled by an
immigration officer. On August 11, 2014, at a removal hearing, Hernandez-
Trochez’s attorney conceded removability and expressed an intent to apply for
asylum.
On October 10, 2014, Hernandez-Trochez applied for asylum and withholding
of removal under both the Immigration and Nationality Act (“INA”) and the
Convention Against Torture (“CAT”). The application said that she was a member
of a particular social group and she feared returning to Honduras because her son’s
father, Jose Salomon Linares, subjected her to physical, mental, and sexual abuse.1
1
Under the INA, an alien is eligible for asylum if the alien was persecuted on account of
membership in a particular social group. 8 U.S.C. § 1158(b)(1)(A); id. § 1101(a)(42).
2
USCA11 Case: 20-12089 Date Filed: 03/23/2021 Page: 3 of 12
To support her claim, Hernandez-Trochez submitted two affidavits that were
identical except for the name of the affiant. She also included a third statement from
a Honduran municipal government employee that concluded that Linares subjected
Hernandez-Trochez to domestic violence. Additionally, she submitted reports from
the United States Department of State, Immigration and Refugee Board of Canada,
and a think tank called the Americas Program, all of which detailed the extent of the
violence against women in Honduras.
On February 4, 2015, an immigration judge held a merits hearing in this case.
At the hearing, Hernandez-Trochez testified that Hernandez-Trochez and Linares
were neighbors who met shortly after her family moved away. The two became
friends and Linares helped her financially. Eventually, he began to abuse her,
including sexually. Hernandez-Trochez gave birth to Linares’s son, but the abuse
continued. Linares threatened to take away her son if she left. She went to the police
three times, but the police refused to do anything about the situation. Eventually,
she left their home and went to stay with her sister, who lived about four hours away.
Linares was eventually able to find Hernandez-Trochez and caused a disturbance at
her sister’s house where she was staying. She filed a complaint with the police, and
Linares did not come back to her sister’s house. He did, however, tell her that he
was still watching her and might abduct their son after school. She further testified
that there was no place in Honduras where she and her son would be safe.
3
USCA11 Case: 20-12089 Date Filed: 03/23/2021 Page: 4 of 12
On cross-examination, Hernandez-Trochez said that the police took her
complaint and investigated after Linares showed up at her sister’s house. The police
searched for Linares but did not find him. As to the identical affidavits Hernandez-
Trochez submitted to support her asylum application, she testified that neighbors,
whom she had not spoken with since she arrived in the United States, were the
authors. She said that the affiants wrote the statements in Honduras and that she
brought them with her to the United States.
Hernandez-Trochez’s testimony about the origin of the letters was
inconsistent. For example, she said that she obtained the letters while in Honduras.
When asked why the letters had an Orlando, Florida, mailing address, she said that
she did not bring them from Honduras. She also did not fully explain why two of
the letters were virtually identical. As to the third letter, she said it was from her
sister’s neighbor, only to later admit that it was written by an official with a
government agency in Honduras called the Office of Women and Children. When
asked about this discrepancy, she said that she thought that the immigration judge
was referring to a different statement.
At the conclusion of the hearing, the immigration judge orally issued his initial
decision, which denied the application. The immigration judge found that
Hernandez-Trochez’s testimony concerning the affidavits was not credible. He also
found that Hernandez-Trochez had not shown past persecution, a reasonable
4
USCA11 Case: 20-12089 Date Filed: 03/23/2021 Page: 5 of 12
probability of future persecution, or a well-founded fear of future persecution on
account of membership in a particular social group if she returned to Honduras.
Third, the immigration judge concluded that Hernandez-Trochez did not show that
Honduran police were unwilling or unable to protect her.
Hernandez-Trochez appealed to the BIA. On November 6, 2015, the BIA
remanded to the immigration judge after concluding that it was clearly erroneous to
find Hernandez-Trochez testimony not credible merely because of the discrepancies
concerning the affidavits. It further concluded that the immigration judge should
have addressed the merits of Hernandez-Trochez’s proposed social group—
“Hondurans who are in a committed relationship and unable to leave”—and that, on
remand, should hear additional testimony as to whether the Honduran police could
or would protect her.
On June 19, 2017, after the case had been remanded, the immigration judge
held another merits hearing. As to the BIA’s credibility ruling, the immigration
judge thought the BIA “got it wrong and that must be because [he] didn’t articulate
it well.” The immigration judge thus called for additional testimony from
Hernandez-Trochez to help discern her credibility. Hernandez-Trochez’s counsel
argued that the BIA had already determined the credibility issue. The government
disagreed. Hernandez-Trochez testified again as follows. On one occasion, she
went to a police station and left after waiting for three hours for someone to take her
5
USCA11 Case: 20-12089 Date Filed: 03/23/2021 Page: 6 of 12
complaint. When she tried to file a complaint at the same police station months later,
she waited five hours and left because no one had taken her complaint. Six months
later, she moved to her sister’s house, and Linares went looking for her. Two days
later, she went to a police station near her sister’s home and filed a complaint. An
injunction prohibiting Linares from contacting Hernandez-Trochez was issued, and
police patrolled near her sister’s house about once per week in case Linares showed
up.
Nonetheless, Linares—either directly or through friends—stalked her and
her son for seven months after the injunction. Linares occasionally went back to the
sister’s house. On one occasion, he threw things around the sister’s house, and on
another occasion, he tried to take her and her son by force. Police responded on both
occasions, but Linares was gone by the time they arrived. Two days after the
attempted kidnapping, Hernandez-Trochez went to the police station again. She
thought they were not paying attention to her. A week later, she decided to flee to
the United States.
Cross-examination revealed an inconsistency in her testimony. Specifically,
she previously testified that she did not have any contact with Linares after the
injunction was issued but later admitted that he visited her at her sister’s house. She
also testified that she did not have a copy of the injunction and that she did not submit
copies of the police complaints.
6
USCA11 Case: 20-12089 Date Filed: 03/23/2021 Page: 7 of 12
The immigration judge again denied Hernandez-Trochez’s application for
asylum, withholding of removal, and CAT relief. He once again found that her
testimony was not credible. He cited inconsistent statements about how often police
were called, a lack of documentary support for her claims, and the discrepancies
surrounding the affidavits she submitted. He found that, given the injunction that
she obtained, the police attempts to arrest Linares, and the police patrols around her
son’s school, the Honduran police were willing and able to protect her. More
broadly, he noted that the Honduran government was working to combat domestic
violence. The immigration judge then denied her requests for asylum and
withholding of removal and ordered that Hernandez-Trochez be removed to
Honduras.
Hernandez-Trochez appealed to the BIA. As to the inconsistent statements,
she said that the passage of time helped clarify the traumatic experience.
Additionally, she argued that the BIA had already determined she was credible. As
to whether the Honduran police were willing and able to protect her, she noted that
it took three visits to the police station and an injunction for the police to take any
action. Even then, she contends that the patrols to protect her were limited and that
Linares had additional contact with her even after the injunction was issued. She
also noted that, “due to recent BIA decisions, respondent’s definition of her
[particular social group] might not be eligible to establish nexus to an enumerated
7
USCA11 Case: 20-12089 Date Filed: 03/23/2021 Page: 8 of 12
ground.” She also stated that if the BIA “evaluates that respondent’s definition of
PSG lacks the required criteria to be accepted as an enumerated ground, she
respectfully submits that this case be remanded to give [her] the opportunity to define
her PSG according to decisions released after” her case was submitted.
On May 12, 2020, the BIA dismissed the appeal. The BIA concluded that the
immigration judge did not clearly err in his credibility finding because he cited
specific, cogent reasons for the credibility finding. Additionally, the BIA noted that
its previous ruling did not determine whether Hernandez-Trochez was credible, only
that the immigration judge’s process for determining credibility at the first merits
hearing was flawed. The BIA also agreed with the immigration judge’s alternative
finding that police in Honduras were willing and able to help protect her from
Linares. The decision noted that police made attempts to arrest Linares and enjoined
him from approaching her. The BIA further determined that Hernandez-Trochez
waived the issue of CAT relief because she did not meaningfully raise it before the
BIA. Because the BIA’s conclusions concerning failure to establish past persecution
or a well-founded fear of future persecution and the willingness of the Honduran
police to protect her were dispositive, it did not address other issues. This timely
petition for review followed.
II. STANDARDS OF REVIEW
8
USCA11 Case: 20-12089 Date Filed: 03/23/2021 Page: 9 of 12
This Court’s subject matter jurisdiction is a legal issue that we review de novo.
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). When
we have subject-matter jurisdiction in a case, we review both the BIA’s decision and
those portions of the immigration judge’s decision expressly adopted by the BIA.
Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010).
The BIA and immigration judge must give “reasoned consideration” to a
petition for relief from removal. Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224,
1232 (11th Cir. 2013) (quoting 8 C.F.R. § 208.16(c)(3)). This standard is met so
long as the BIA does not (1) misstate the contents of the record, (2) fail to adequately
explain why it rejected logical conclusions, or (3) provide unreasonable
justifications for its decisions that do not respond to any arguments in the record.
Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1333–34 (11th Cir. 2019). The BIA cannot
fail to give reasoned consideration to an issue that was never before it. Indrawati v.
U.S. Att’y Gen., 779 F.3d 1284, 1303 (11th Cir. 2015)
We review the BIA’s legal conclusions de novo and factual findings for
substantial evidence. Ali., 931 F.3d at 1333. The Court will not vacate for lack of
substantial evidence unless “any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C § 1252(b)(4)(B).
III. ANALYSIS
9
USCA11 Case: 20-12089 Date Filed: 03/23/2021 Page: 10 of 12
In her petition for review, Hernandez-Trochez challenges two aspects of the
BIA’s decision.2 First, she contends that the BIA erred in not remanding the matter
so that she could restate her proposed particular social group in light of a decision
by the Attorney General. Second, she argues that the BIA decision on review denied
her due process by affirming the immigration judge’s credibility determination,
which she says contradicts a prior BIA decision. For the reasons explained below,
we lack jurisdiction to decide either of these claims.
Courts lack jurisdiction to review final orders of removal unless the petitioner
has exhausted all administrative remedies available as of right. 8 U.S.C.
§ 1252(d)(1). To exhaust a claim before the BIA, the petitioner must do more than
make “passing references” or “[u]nadored, conclusory statements” in her brief to the
BIA. Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016) (quoting
Indrawati, 779 F.3d at 1297). “Simply put, petitioners must have previously argued
the ‘core issue now on appeal’ before the BIA.” Indrawati, 779 F.3d at 1297
(quoting Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1228 n.3 (11th Cir.
2008)). The exhaustion requirement is jurisdictional and precludes review of a claim
that was not presented to the BIA. Amaya, 463 F.3d at 1249-50 (holding that we
2
In the petition for review, Hernandez-Trochez does not raise or challenge the denial of
her relief under CAT, the merits of her credibility determination, or the agency’s determination
that the Honduran government is unwilling or unable to protect her. Because Hernandez-Trochez
did not raise those issues in her opening brief, she has abandoned them. See Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005).
10
USCA11 Case: 20-12089 Date Filed: 03/23/2021 Page: 11 of 12
lack jurisdiction to review a claim not presented to the BIA even if the BIA reached
it sua sponte).
In her petition for review, Hernandez-Trochez contends that the BIA should
have remanded this matter to the immigration judge given the Attorney General’s
decision in Matter of A-B-, 27 I&N Dec. 316 (B.I.A. June 11, 2018). Her brief to
the BIA, however, does not specifically mention this decision. Instead, it mentions
“recent BIA decisions” that might be the basis for a remand for her to define her
particular social group. Even if we construe Hernandez-Trochez’s reference to
“recent BIA decisions” as referring to the Attorney General’s decision in Matter of
A-B-, as her brief to this Court suggests, it is a mere passing reference that did not
give the BIA an opportunity to “consider the niceties and contours of the relevant
arguments” and thus does not satisfy the exhaustion requirement. Amaya-
Artunduaga, 463 F.3d at 1250. As a result, we lack jurisdiction to consider this
issue.
Hernandez-Trochez’s due process claim suffers the same defect. In her
petition, Hernandez-Trochez contends that the immigration judge deprived her and
her son of due process because, at the second hearing, the immigration judge was
determined to reach the same credibility finding as he did at the initial hearing. Her
brief to the BIA challenged the substance of the credibility finding, but it did not
raise a due process claim regarding the immigration judge abandoning his role as a
11
USCA11 Case: 20-12089 Date Filed: 03/23/2021 Page: 12 of 12
neutral factfinder. “Where a procedural due process claim properly falls within the
immigration courts’ power to review and provide a remedy, the claim must be
exhausted before it can be considered by this Court.” See Bing Quan Lin v. U.S.
Att’y Gen., 881 F.3d 860, 868 (11th Cir. 2018).
A petitioner’s “due process claim, regarding the fairness of the Immigration Judge
as a neutral factfinder [is] ‘precisely the kind of procedural error which requires
exhaustion.’” Id. (quoting Amaya-Artunduaga, 463 F.3d at 1251). Because
Hernandez-Trochez did not exhaust her administrative remedies with respect to the
due process claim, we lack jurisdiction to consider it for the first time here.
IV. CONCLUSION
For the foregoing reasons, we dismiss the petition for review.
PETITION DISMISSED.
12
Leticia Hernandez-Trochez v. U.S. Attorney General
Combined Opinion