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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13687
Non-Argument Calendar
____________________
MAIRA YOHANA FLORES-ZUNIGA,
EYMI ORDONEZ-FLORES,
SOFIA ORDONEZ-FLORES,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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2 Opinion of the Court 21-13687
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A212-909-286
____________________
Before JILL PRYOR, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Maira Flores-Zuniga,1 a native and citizen of Honduras,
seeks review of the Board of Immigration Appeals’ (BIA) final order
denying her motion for remand and affirming the immigration
judge’s (IJ) denial of her application for asylum, withholding of re-
moval, and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (CAT). First, she contends that the BIA and the IJ er-
roneously denied her petitions for asylum and withholding of re-
moval given what she contends is substantial evidence to the con-
trary. Second, she argues that the BIA and IJ erred in denying her
CAT claim because, she says, the record compels the conclusion
that she would be tortured by or with the acquiescence of the Hon-
duran authorities if she returns. Third, she argues that the BIA
abused its discretion in not remanding this case to the IJ in light of
1Flores-Zuniga’s petition for review is filed on behalf of herself and Sofia and
Eymi Ordonez-Flores, her minor children and derivate asylum applicants.
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21-13687 Opinion of the Court 3
the Attorney General’s vacatur of Matter of A-B-, 27 I. & N. Dec.
316 (A.G. 2018) (“Matter of A-B- I”), in Matter of A-B-, 28 I. & N.
Dec. 307 (A.G. 2021) (“Matter of A-B- III”). After careful consider-
ation of the claims, we deny the petition.
I
Flores-Zuniga argues that the BIA erred in affirming the IJ’s
denial of her asylum claim. The Attorney General may grant asy-
lum to a non-citizen who meets the Immigration and Nationality
Act’s (INA) definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A
refugee is defined as:
any person who is outside any country of such per-
son’s nationality . . . and who is unable or unwilling
to return to, and is unable or unwilling to avail him-
self or herself of the protection of, that country be-
cause of persecution or a well-founded fear of perse-
cution on account of race, religion, nationality, mem-
bership in a particular social group, or political opin-
ion.
Id. § 1101(a)(42)(A). The applicant bears the burden of proving that
she is a refugee. Id. § 1158(b)(1)(B)(i). As relevant to us, the appli-
cant must demonstrate that she (1) was persecuted in the past be-
cause of a protected ground or (2) has a well-founded fear that she
will be persecuted in the future because of a protected ground. Ro-
driguez Morales v. United States Att’y Gen., 488 F.3d 884, 890 (11th
Cir. 2007). This is also known as the “nexus” requirement. Id.
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4 Opinion of the Court 21-13687
An applicant for asylum who alleges persecution by a private
actor additionally must prove that her home country is unable or
unwilling to protect her. Ayala v. United States Att’y Gen., 605
F.3d 941, 950 (11th Cir. 2010). In such cases, failure to seek protec-
tion by reporting alleged persecution to local authorities “generally
is fatal to an asylum claim.” Lopez v. United States Att’y Gen., 504
F.3d 1341, 1345 (11th Cir. 2007). However, this failure is excused
where the applicant convincingly demonstrates the futility of seek-
ing assistance from those authorities because they would have
been unable or unwilling to protect her. Id.
For challenges to a denial of asylum, we primarily review
the decision of the BIA. Ayala, 605 F.3d at 947–48. We review the
IJ’s opinion only “to the extent that the BIA expressly adopts the
IJ’s opinion or reasoning.” Seck v. U.S. Att’y Gen., 663 F.3d 1356,
1364 (11th Cir. 2011). Here, the BIA issued its own opinion and
adopted portions of the IJ’s decision and reasoning. Therefore, we
review both the IJ’s and BIA’s decisions, to the extent of their agree-
ment. Id.
We review the BIA’s factual determinations under the sub-
stantial-evidence test. Gonzalez v. United States Att’y Gen., 820
F.3d 399, 403 (11th Cir. 2016). Under that highly deferential stand-
ard, we must affirm the BIA’s decision if it is “supported by reason-
able, substantial, and probative evidence on the record considered
as a whole.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir.
2004) (en banc). We view the evidence in the light most favorable
to the agency’s decision and draw all reasonable inferences in favor
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21-13687 Opinion of the Court 5
of that decision. Id. at 1027. The mere fact that the record might
support a contrary conclusion is not enough to justify a reversal of
the agency’s findings. Under the substantial-evidence test, a deci-
sion “can be reversed only if the evidence ‘compels’ a reasonable
fact finder to find otherwise.” Kueviakoe v. United States Att’y
Gen., 567 F.3d 1301, 1304 (11th Cir. 2009).
Here, the BIA assumed that Flores-Zuniga established past
persecution and membership in a cognizable particular social
group. Accordingly, this Court need not address those issues be-
cause we do not consider issues that were not reached by the BIA.
Gonzalez, 820 F.3d at 403. That leaves Flores-Zuniga with two re-
maining grounds regarding this claim: (1) the Board’s state-protec-
tion analysis and (2) the nexus requirement. We’ll take those in
turn.
First, substantial evidence supports the BIA’s agreement
with the IJ that Flores-Zuniga did not establish that Honduran au-
thorities would be unable or unwilling to protect her. Specifically,
the IJ found that police referred Flores-Zuniga to an institution that
provides support for domestic violence when she reported her
abuser to the police. While domestic violence and violence against
women are prevalent, underreported, and under-prosecuted in
Honduras, the IJ found that Honduran law penalizes domestic vio-
lence and rape and provides protective measures. According to the
IJ’s findings, the Honduran government also provides services to
victims of domestic violence in hospitals, health centers, and do-
mestic violence shelters, including in Flores-Zuniga’s neighboring
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6 Opinion of the Court 21-13687
town of Choluteca. Given this evidence, the IJ and the BIA did not
err in finding that Honduran authorities were not unwilling or un-
able to protect her.
Second, substantial evidence supports the BIA’s agreement
with the IJ that there is no nexus between the persecution and Flo-
res-Zuniga’s proposed particular social groups. The IJ found no
evidence that the abuser was motivated by Flores-Zuniga’s mem-
bership in a particular social group. Instead, the IJ found that the
abuser was motivated by reasons specific to Flores-Zuniga, such as
their arguments about extramarital affairs and family finances. The
IJ also found that there was no evidence that the abuser harmed
other individuals in the same social group. Thus, Flores-Zuniga’s
membership in a particular social group was not a central factor for
the abuse she suffered. Rather, the BIA found that she was the vic-
tim of private acts of violence. Accordingly, the record does not
compel the conclusion that Flores-Zuniga established nexus.
To qualify for withholding of removal under the INA, the
non-citizen petitioner must demonstrate that she would “more
likely than not” be persecuted on account of race, religion, nation-
ality, membership in a particular social group, or political opinion
if returned to the country of removal. D-Muhumed v. United
States Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004); see 8 C.F.R.
§ 208.16(b). If a petitioner is unable to meet the burden of proof
for asylum, she cannot meet the more stringent standard for with-
holding of removal. D-Muhumed, 388 F.3d at 819. Having failed
to meet her burden for her asylum claim, Flores-Zuniga also
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21-13687 Opinion of the Court 7
necessarily fails the higher burden required for withholding of re-
moval.
II
Flores-Zuniga further argues that the BIA erred in affirming
the IJ’s denial of her CAT claim. An applicant seeking protection
under CAT must establish that it is “more likely than not” that she
would be tortured if removed to the proposed country of removal.
Reyes-Sanchez v. United States Att’y Gen., 369 F.3d 1239, 1242
(11th Cir. 2004) (citing 8 C.F.R. § 208.16(c)(2)). Additionally, the
individual must show that the torture would be by or with the ac-
quiescence of the government. Id. Here too we subject the
agency’s findings to the substantial-evidence test. Lingeswaran v.
United States Att’y Gen., 969 F.3d 1278, 1286 (11th Cir. 2020).
The regulations define torture, in relevant part, as “any act
by which severe pain or suffering . . . is intentionally inflicted on a
person” when that harm is inflicted by or with acquiescence of a
government official. 8 C.F.R. § 208.18(a)(1). Acquiescence “re-
quires that the public official, prior to the activity constituting tor-
ture, have awareness of such activity and thereafter breach his or
her legal responsibility to intervene to prevent such activity.” Id.
§ 208.18(a)(7). This Court has explained that a government official
does not “‘acquiesce’ to torture where it ‘actively, albeit not en-
tirely successfully, combats’ the alleged torture.” Lingeswaran, 969
F.3d at 1294.
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8 Opinion of the Court 21-13687
Here, the BIA agreed with the IJ’s determination that she did
not meet her burden of proof for protection under CAT. The IJ
found that Flores-Zuniga failed to demonstrate a clear probability
that she would be tortured if she returned to Honduras. Although
domestic violence continues to be a serious problem in Honduras,
the IJ found that she had not shown a particularized risk of torture
over other similarly situated members of the public. The IJ also
found that she had not established that she would be tortured by,
at the hands of, or with the acquiescence or willful blindness of the
government of Honduras. The government services already de-
scribed are evidence that the Honduran government was “actively”
addressing domestic violence. Thus, the record does not compel
the conclusion that it was more likely than not that Flores-Zuniga
would be tortured by or with the acquiescence of the Honduran
government upon her return.
III
Flores-Zuniga separately argues that an intervening change
in law required the BIA to remand her case to the IJ for additional
fact-finding. We construe a motion to remand as a motion to reo-
pen proceedings, the denial of which we review for an abuse of dis-
cretion. See Ali v. U.S. Att'y Gen., 643 F.3d 1324, 1329 (11th Cir.
2011). “This review is limited to determining whether the BIA ex-
ercised its discretion in an arbitrary or capricious manner. The
moving party bears a heavy burden, as motions to reopen are dis-
favored, especially in removal proceedings.” Zhang v. United
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21-13687 Opinion of the Court 9
States Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009) (citations
omitted).
Flores-Zuniga contends that the intervening change in law
requires the IJ to engage in further fact-finding to determine
whether her proposed particular social groups were cognizable.
Flores-Zuniga argues that without this initial determination, nei-
ther the IJ nor the BIA was permitted to reach the issue of nexus.
As such, Flores-Zuniga argues that remand was necessary for the IJ
to “determine in the first instance whether Flores-Zuniga has es-
tablished her eligibility for protection under the current legal
framework.” (Blue Br. at 26).
Flores-Zuniga’s contention requires us to examine the his-
tory of the law applicable to her case. In Matter of A-R-C-G-, the
Attorney General recognized that “married women in Guatemala
who are unable to leave their relationship” was a cognizable par-
ticular social group. 26 I. & N. Dec. 388, 394–395 (A.G. 2014).
That gave petitioners like Flores-Zuniga a legal foothold to prove
that their membership in a particular social group of domestic vio-
lence victims is cognizable.
The Attorney General overruled Matter of A-R-C-G- in Mat-
ter of A-B- I. Matter of A-B-, 27 I. & N. Dec. at 319, 346. There,
the Attorney General reasoned that particular social groups that
are based on private violence are not legally cognizable because
they do not exist independently of the persecution that the mem-
bers of the group experience. Id. at 334–36. This is the framework
under which Flores-Zuniga’s claim was adjudicated.
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10 Opinion of the Court 21-13687
But in Matter of A-B- III, the Attorney General vacated Mat-
ter of A-B- I. Matter of A-B- III, 28 I. & N. Dec. at 308. The Attor-
ney General explained that Matter of A-B- I’’s broad statement that
victims of private criminal activity would not qualify for asylum
except in exceptional circumstances threatened to create confusion
and discourage careful case-by-case adjudication of asylum claims.
Id. at 308–09. Accordingly, the Attorney General stated that IJs and
the BIA should no longer follow Matter A-B- I when adjudicating
pending or future cases and should instead follow pre-Matter of A-
B- I law, including Matter of A-R-C-G-. Id. at 309.
In short, the current legal framework returns to Matter of A-
R-C-G-, which recognizes that certain particular social groups
based on private violence are cognizable for purposes of asylum.
Matter of A-R-C-G-, 26 I. & N. Dec. at 395. But even if an applicant
overcomes the cognizable social group barrier, “the issue of nexus
will depend on the facts and circumstances of an individual claim.”
Id.
The BIA did not abuse its discretion in denying Flores-Zun-
iga’s motion to remand based on the agency’s findings. Even
though the IJ determined that she did not belong to a particular
social group under Matter of A-B- I, the BIA assumed that her par-
ticular social groups were cognizable before conducting its nexus
analysis. In coming to its conclusion on nexus, the BIA relied ex-
clusively on pre-Matter of A-B- I administrative decisions. In doing
so, the BIA agreed with the IJ’s findings that the evidence was in-
sufficient to establish that Flores-Zuniga suffered harm because of
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21-13687 Opinion of the Court 11
her particular social group, a factual determination that Matter of
A-R-G-C- left to the IJ and BIA. Therefore, remand was not neces-
sary because the intervening change in law does not bear on the
BIA’s conclusions in this case.
To the extent that Flores-Zuniga argues that the BIA or IJ
engaged in impermissible fact-finding in violation of 8 C.F.R. §
1003.1(d)(3)(iv), her claim also fails. The IJ faithfully followed ad-
ministrative guidance to “make comprehensive findings of fact . . .
rather than just those findings pertinent to one issue that the Im-
migration Judge may deem dispositive of the case.” In Re S-H-, 23
I. & N. Dec. 462, 465 (BIA 2002). Contrary to Flores-Zuniga’s con-
tention, the IJ was permitted to reach the issue of nexus after deter-
mining that she did not meet the particular-social-group require-
ment. In turn, the BIA permissibly relied on the IJ’s nexus findings
to deny Flores-Zuniga’s motion for remand. Id.
* * *
Because there is substantial evidence that supports the BIA’s
denial of Flores-Zuniga’s petition for asylum, withholding of re-
moval, and CAT claim, and because the BIA acted within its au-
thority in not remanding this case, we deny the petition for review.
PETITION DENIED.