Unreported / Non-Citable
Background
Kimberly Perez-Hernandez and her minor son, Abner Saul Perez-Hernandez, are natives and citizens of Guatemala. Perez-Hernandez sought asylum, withholding of removal, and protection under the Convention Against Torture. Her son was a derivative beneficiary of her asylum claim.
An immigration judge denied relief, and the Board of Immigration Appeals dismissed Perez-Hernandez’s appeal. In seeking Fifth Circuit review, she argued that the BIA should have remanded for consideration of particular social groups she first identified on administrative appeal and should have evaluated those groups before affirming the finding that her feared harm lacked the required nexus to a protected ground.
Her CAT claim rested on abuse and threats by her stepfather, whom she said repeatedly raped her when she was 13, resulting in her son’s birth. She asserted that he would find and harm her wherever she lived in Guatemala.
The Court’s Holding
The Fifth Circuit denied the petition for review. It held that the BIA was not required to consider or remand for consideration of particular social groups that Perez-Hernandez had failed to present to the immigration judge. The court also explained that the BIA could resolve the asylum and withholding claims on lack-of-nexus grounds without first deciding whether her proposed groups were legally cognizable. Because Perez-Hernandez did not address the dispositive no-nexus determination, she forfeited appellate review of that issue.
Substantial evidence also supported denial of CAT protection. Perez-Hernandez had lived unharmed for nine years in another Guatemalan city and did not adequately explain why relocation could not protect her again. She also failed to adequately challenge the BIA’s finding that, as an adult, she was no longer vulnerable to her stepfather’s abuse. The evidence therefore did not compel a finding that she would more likely than not be tortured upon returning to Guatemala.
Because the likelihood-of-torture determination independently defeated the CAT claim, the court did not reach her arguments concerning past torture or governmental acquiescence. Judge Douglas concurred only in the judgment.
Key Takeaways
- The BIA need not consider or remand for consideration of particular social groups first raised on administrative appeal.
- A lack-of-nexus finding can dispose of asylum and withholding claims without a prior ruling on whether the proposed social group is cognizable.
- Failure to brief a dispositive BIA determination forfeits appellate review of that issue.
- Evidence of successful internal relocation and changed vulnerability supported the finding that future torture was not more likely than not.
Why It Matters
The decision underscores the importance of presenting proposed particular social groups before the immigration judge and directly challenging every dispositive basis for the BIA’s ruling. Raising a new group on appeal does not require the BIA to consider it or return the case to the immigration judge.
For CAT applicants alleging threats from a private individual, the opinion also shows that a substantial period of safe internal relocation and changes in the applicant’s circumstances may support denial based solely on failure to establish a likelihood of future torture.