[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11618

Non-Argument Calendar

____________________

MARIO ALBER CRUZ-APARICIO, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A200-264-803

____________________

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2 Opinion of the Court 23-11618

Before JILL PRYOR, BRANCH, AND LAGOA, Circuit Judges.

PER CURIAM:

Mario Cruz-Aparicio petitions for review of the order of the 

Board of Immigrations Appeals (“BIA”) affirming the Immigration 

Judge’s denial of his application for asylum, withholding of removal, and relief under the United Nations Convention Against 

Torture and Other Cruel, Inhuman, or Degrading Treatment or 

Punishment (“CAT”). Cruz-Aparicio raises separate challenges to 

the denial of each of his three claims, and we consider each in turn.

I.

We review the decision of the BIA, and we review the IJ’s 

decision as well to the extent the BIA expressly adopted it. Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1344 (11th Cir. 2008). We review legal questions, including our own jurisdiction, de novo. Farah 

v. U.S. Att’y Gen., 12 F.4th 1312, 1321 (11th Cir. 2021). 

An asylum application must be filed within one year of a 

non-citizen’s entry into the United States, but the agency may consider an untimely application if the non-citizen is able to show “either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application.” Immigration 

and Nationality Act (“INA”) § 208(a)(2)(B), (D), 8 U.S.C. 

§ 1158(a)(2)(B), (D). However, “[n]o court shall have jurisdiction to 

review any determination of the Attorney General” as to the timeliness of the application or the existence of changed or 

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23-11618 Opinion of the Court 3

extraordinary circumstances. INA § 208(a)(3), 8 U.S.C. § 1158(a)(3). 

“[Section 1158(a)(3)] divests us of jurisdiction to review decisions 

of whether an alien complied with the one-year time limit, or 

whether extraordinary circumstances were present to justify untimely filing of the asylum application.” Ruiz v. Gonzales, 479 F.3d 

762, 765 (11th Cir. 2007). We have held that, when the BIA reaches 

a decision based on two independent grounds and we are barred 

from reviewing one of those grounds on a jurisdictional basis, we

also lack jurisdiction to review the other ground based on the advisory opinion doctrine. Malu v. U.S. Att’y Gen., 764 F.3d 1282, 1290-91 

(11th Cir. 2014), abrogated in part on other grounds by Santos-Zacaria 

v. Garland, 598 U.S. 411 (2023). 

We do not have jurisdiction to review Cruz-Aparicio’s challenge to the denial of his asylum application as untimely. 

Cruz-Aparicio does not challenge the BIA’s alternative denial of his 

asylum application on the merits, but, even if he did, we would be 

jurisdictionally barred from reviewing it because we lack jurisdiction to review the timeliness finding.

II.

“Whether an asserted group qualifies as a ‘particular social 

group’ under the INA is a question of law.” Gonzalez v. U.S. Att’y 

Gen., 820 F.3d 399, 403 (11th Cir. 2016). “When an appellant fails 

to offer argument on an issue, that issue is abandoned.” Sepulveda 

v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). This includes when an appellant only makes a passing reference to an issue. Id.

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A non-citizen is entitled to withholding of removal under 

the INA if he can show that his “life or freedom would be threatened in [the] country [of removal] because of [his] race, religion, 

nationality, membership in a particular social group, or political 

opinion.” INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). “[T]o satisfy 

the ‘on account of a statutorily protected ground’ requirement, the 

applicant must prove that the protected ground ‘was or will be at 

least one central reason for persecuting the applicant.’” Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1307 (11th Cir. 2019) (quoting

INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i)). 

The phrase “particular social group” is not defined in the 

INA, but we have deferred to the BIA’s formulation of the criteria 

for when a group qualifies. Id. A particular social group needs to 

possess a shared characteristic, which “‘must be one that the members of the group either cannot change, or should not be required 

to change because it is fundamental to their individual identities or 

consciences.’” Id. at 1309 (quoting In re Acosta, 19 I. & N. 211, 233 

(BIA 1985)). “[A] particular social group also must be ‘defined with 

particularity’ and be ‘socially distinct within the society in question.’” Id. (quoting In re M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 

2014)). “Regarding particularity, the BIA has said that ‘[t]he [proposed] group must . . . be discrete and have definable boundaries --

it must not be amorphous, overbroad, diffuse, or subjective.’” Id. 

(alterations and omission in original) (quoting In re W-G-R-, 26 I. & 

N. Dec. 208, 214 (BIA 2014)). Further, a group “cannot be circularly 

defined by the persecution of its members”; instead, the group 

members “must share a narrowing characteristic other than their 

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risk of being persecuted.” Alvarado v. U.S. Att’y Gen., 984 F.3d 982, 

989 (11th Cir. 2020) (alterations adopted) (quoting Amezcua-Preciado v. U.S. Att’y Gen., 943 F.3d 1337, 1343 (11th Cir. 2019)). The 

group must exist independently of the risk of persecution to avoid 

particular-social-group persecution becoming “catch all” for any 

persecution that does not fit within the other protected grounds. 

Id.

Cruz-Aparicio asserted that he would be persecuted on account of membership in two particular social groups, one based on 

his family and the other based on being a returnee to Mexico after 

more than a decade living in the United States. We conclude that 

he has abandoned any challenge to the finding that he has failed to 

establish a nexus between his alleged persecution and his family-based social group, which is dispositive of that portion of his 

claim for withholding of removal. As to the rest, the BIA correctly 

concluded that his returnee-based social group was not cognizable 

under the INA.

III.

We review administrative findings of fact for substantial evidence. Farah, 12 F.4th at 1321. Under the substantial evidence test, 

“we will not disturb an immigration judge’s factual findings so long 

as they are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’” Jathursan v. U.S. Att’y 

Gen., 17 F.4th 1365, 1372 (11th Cir. 2021) (quoting Lopez v. U.S. Att’y 

Gen., 914 F.3d 1292, 1297 (11th Cir. 2019)). “‘[W]e review the record 

evidence in the light most favorable to the agency’s decision and 

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6 Opinion of the Court 23-11618

draw all reasonable inferences in favor of that decision.’” HasanNayem v. U.S. Att’y Gen., 55 F.4th 831, 842 (11th Cir. 2022) (quoting 

Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005)). “[W]e 

reverse factual findings ‘only if the record compels reversal, and the

mere fact that the record may support a contrary conclusion is insufficient to justify reversal.’” Id. (quoting Jathursan, 17 F.4th at 

1372).

To satisfy the standard for CAT relief, an applicant must “establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. 

§ 208.16(c)(2). “The evidence must demonstrate that the applicant 

will be specifically and individually targeted for torture.” K.Y. v. U.S. 

Att’y Gen., 43 F.4th 1175, 1181 (11th Cir. 2022) (emphasis in original).

Further, the torture must be “by or at the instigation of or 

with the consent or acquiescence of a public official or other person acting in an official capacity.” Id. § 208.18(a)(1). “Acquiescence 

‘requires that the public official, prior to the activity constituting 

torture, have awareness of such activity and thereafter breach his 

or her legal responsibility to intervene to prevent such activity.’” 

Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) 

(quoting 8 C.F.R. § 208.18(a)(7)). A government does not acquiesce 

to persecution simply because it failed to catch the perpetrators of 

persecution. Id. at 1243. It does not acquiesce to torture so long as 

it combats it in some way, even if it is unsuccessful in its attempts. 

Id.

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Here, substantial evidence supports the BIA’s and Immigration Judge’s denial of Cruz-Aparicio’s application for CAT relief because the record does not compel the finding that it is more likely 

than not that he will be tortured with the consent or acquiescence 

of the Mexican government if he is removed to Mexico.

PETITION DISMISSED IN PART, DENIED IN PART.

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