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. She then petitioned the Fifth Circuit for review, arguing in part that the BIA should have considered or remanded for consideration of particular social groups she first presented on appeal. She also asserted that her stepfather, who she said repeatedly raped her when she was 13 and fathered her son, would find and harm her if she returned to 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 not presented to the immigration judge. The court also rejected her contention that the BIA had to decide whether her proposed groups were cognizable before affirming on lack-of-nexus grounds. Because she did not address the BIA’s dispositive no-nexus determination, she forfeited appellate review of that issue, defeating her asylum and withholding claims.
Substantial evidence also supported the denial of CAT protection. Perez-Hernandez had lived without harm for nine years in another Guatemalan city and did not explain why relocation could not protect her again. She also failed adequately to 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 was more likely than not to be tortured if returned to Guatemala. The court did not reach her arguments about past torture or governmental acquiescence because the likelihood-of-future-torture ruling was dispositive.
Key Takeaways
- The BIA need not consider or remand for consideration of particular social groups first raised on administrative appeal.
- A lack-of-nexus ruling may dispose of asylum and withholding claims without a separate determination whether the proposed social groups are cognizable.
- An applicant forfeits review by failing to brief a dispositive BIA determination, and evidence of successful past relocation may undermine a CAT claim based on future harm.
Why It Matters
The decision underscores the importance of presenting proposed particular social groups before the immigration judge and directly challenging every dispositive ground relied upon by the BIA. It also illustrates that a CAT applicant must show the record compels the conclusion that future torture is more likely than not; serious past abuse alone does not require relief when evidence concerning relocation and changed vulnerability supports the agency’s contrary finding.
Judge Douglas concurred only in the judgment.