[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10023

____________________

OLIVIA TERESA D’SOUZA, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A088-001-549

____________________

Before WILSON, LUCK, and LAGOA, Circuit Judges.

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 1 of 27
2 Opinion of the Court 23-10023

PER CURIAM:

Olivia D’Souza seeks review of the decision of the Board of 

Immigration Appeals (the “BIA”) that affirmed an immigration 

judge’s denial of her application for withholding of removal. In her 

petition for review, D’Souza, a lesbian woman, challenges the 

BIA’s determinations that she had not suffered past persecution in 

India, nor had a well-founded fear of future persecution if she returned to India, based on her sexual orientation. 

While we empathize with D’Souza’s circumstances, especially when considered with the decade-long duration of her removal proceedings, we cannot say that the BIA erred in its decision.

Under the substantial evidence test, the record evidence does not 

compel reversal of the BIA’s factual findings on D’Souza’s withholding of removal claim. See Diallo v. U.S. Att’y Gen., 596 F.3d 

1329, 1332 (11th Cir. 2010). Thus, after carefully considering the 

parties’ arguments and with the benefit of oral argument, we deny 

D’Souza’s petition for review as to both issues.

I. BACKGROUND

D’Souza is a citizen and national of India who arrived in the 

United States through a port of entry on a B2 visa in November 

2007. Although D’Souza’s visa expired in November 2008, 

D’Souza remained in the United States. 

On December 14, 2011, the Department of Homeland Security issued D’Souza a notice to appear (“NTA”), charging her as removable under 8 U.S.C. § 1227(a)(1)(B) for remaining in the United 

States longer than she was permitted. At an initial hearing on 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 2 of 27
23-10023 Opinion of the Court 3

December 11, 2012, D’Souza admitted the factual allegations in the 

NTA and conceded the charge of removability. 

In 2013, D’Souza filed an application for asylum, statutory 

withholding of removal, and withholding of removal under the 

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). D’Souza stated that 

she feared harm or mistreatment if she returned to India because 

she was forced to live a closeted life as a gay woman in India and 

was afraid that the Indian government and other individuals would 

hurt or kill her if she returned. 

In a written supplemental statement, D’Souza elaborated 

upon her fears. First, she recounted an incident, occurring when 

she was around eleven years old, where she became close with a 

female classmate, and that classmate’s brother had a police officer 

inform D’Souza to stop contacting the classmate or risk being 

jailed. She also described her father’s abusive tendencies and her 

fear that he would beat her with a cane if he discovered that she 

was a lesbian. She relayed how, at the age of twenty-one, she fell 

in love with a female coworker, but her supervisor, after finding

out about the relationship, informed D’Souza that she would be 

fired for being “queer.” D’Souza described how, when her family 

found out that she was in a relationship with a woman, her father 

beat D’Souza’s girlfriend and her sister tore the girlfriend’s shirt.

D’Souza’s family then followed D’Souza and her girlfriend to her 

girlfriend’s mother’s house, where D’Souza’s father threatened her 

girlfriend’s family. D’Souza left her family home after that incident 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 3 of 27
4 Opinion of the Court 23-10023

and did not speak to her family for ten years. Finally, she recalled

an incident at a party where police came and beat up gay men in 

attendance. 

D’Souza attached five documents to her application: four 

news articles detailing the conditions for LGBT individuals in India 

and the U.S. Department of State’s “India 2018 Human Rights Report.” The first article, published after the Indian Supreme Court 

ruled in favor of decriminalizing same-sex relations in 2018, described the dismissal of a petition seeking civil rights for LGBT individuals. The second article explained that gangs were using popular phone applications to locate and extort homosexual individuals and referenced two incidents where gay men were beaten and 

robbed after connecting with someone on a dating application. 

The third article, published before India’s decriminalization of 

same-sex relations, discussed a lesbian couple’s decision to commit 

suicide due to discrimination and noted the prevalence of “corrective rape” in rural areas. The last article noted that recent Indian 

court judgments had laid the groundwork for better protection 

from discrimination based on sexual orientation and that the Indian 

government’s stance on LGBT rights had evolved considerably, although it asserted that much more was needed to protect people on 

the basis of sexual orientation in India. 

The Department of State’s Report indicated that violence 

and discrimination based on sexual orientation still occurred in India. The Report noted that the Indian Supreme Court decriminalized same-sex relations in 2018 and that it was too early to 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 4 of 27
23-10023 Opinion of the Court 5

determine how the verdict would translate into social acceptance. 

It also noted that LGBT persons still faced physical attacks, rape, 

and blackmail in India, particularly in rural areas, and indicated that 

police participated in some crimes against LGBT persons, using the 

threat of arrest to coerce victims not to report the incidents. The 

Report also noted that several Indian states, with the aid of nongovernmental organizations, were offering education and sensitivity training to police. 

At a merits hearing before an immigration judge in 2019,

D’Souza testified to the following. In the past, D’Souza would at 

times attend parties with other gay men and women, and the police 

were often called on them. When the police showed up, the men 

in attendance were beaten. When D’Souza was in seventh or 

eighth grade, a police inspector, acting at the request of a wealthy 

family, threatened her with jail if she did not end her relationship 

with a girl who was a member of the family. D’Souza speculated 

that the Indian Supreme Court’s ruling decriminalizing homosexuality would not make a difference because the political party in 

power was “going after” gay individuals. In response to a question 

about D’Souza’s ability to live safely in an Indian city as a lesbian, 

she could not answer definitively but stated that she would not be 

permitted to have an open relationship with a woman while residing in India. 

D’Souza recounted how she had worked for an airline in India and, right before she started, she was asked whether she was 

“queer.” At the time, she was in a relationship with another 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 5 of 27
6 Opinion of the Court 23-10023

woman, and following this questioning, she and her girlfriend split. 

Additionally, as to this particular girlfriend, D’Souza testified that 

her family discovered their relationship, and her father “threw [the 

girlfriend] out of the house and tore the front of her shirt.” D’Souza 

fled from the house, but her family chased her to her girlfriend’s 

family’s home and “created a scene there.” When describing her 

father’s use of a cane to beat her, D’Souza noted that it mostly occurred when he was “high” and occurred because of “who [she 

was]”—a lesbian woman—though she admitted that her father

never spoke about her sexual orientation with her. 

On cross-examination, she testified that she was still in contact with her ex-girlfriend in India but did not have contact with 

any other gay people in India. She explained that she had not heard 

whether persecution of the same type was still occurring in India 

because her ex-girlfriend did not live openly as a lesbian. She also 

stated that neighbors would call the police on social gatherings that 

she attended with gay men and lesbians, where some attendees 

were arrested and others would lie about their sexuality. 

After the merits hearing, the immigration judge denied 

D’Souza’s applications for relief and ordered her removed to India. 

The immigration judge found her testimony was credible but concluded that she failed to show past persecution. The immigration 

judge stated that the incidents D’Souza described involving the police, her employer, and her family all occurred in the late 1970s and 

early 1980s. And the immigration judge noted that while D’Souza 

had testified to various ugly incidents that occurred while she was 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 6 of 27
23-10023 Opinion of the Court 7

still residing in India, none of it rose to the level of past persecution 

sufficient to satisfy her legal burden. 

The immigration judge accepted that D’Souza had a subjectively genuine fear of returning to India but found that the record 

failed to support the conclusion that her fear was objectively reasonable. The immigration judge found that the persecution against 

homosexual individuals in India was not so widespread that 

D’Souza would be unable to live anywhere in the country should 

she return. The immigration judge acknowledged D’Souza’s concerns about her inability to live freely or openly in India but noted 

that those concerns were different from stating with certainty that 

she would be targeted or singled out for persecution, as D’Souza 

“herself expressed uncertainty as to what would await her should 

she return” to India. The immigration judge also noted that

D’Souza’s ex-girlfriend appeared to maintain some semblance of 

her identity while remaining in India and found that this fact undermined the objective reasonableness of D’Souza’s fear. 

D’Souza appealed the immigration judge’s decision to the 

BIA. The BIA then issued an order dismissing her appeal. 

First, the BIA narrowed the scope of her appeal to her statutory withholding of removal claims. The BIA found that D’Souza 

had not separately challenged the immigration judge’s determination that her asylum claim was untimely filed and that she waived 

an appeal of her CAT claim because she did not renew her arguments for that claim in her brief to the BIA. 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 7 of 27
8 Opinion of the Court 23-10023

Next, the BIA agreed that the evidence, considered cumulatively, was insufficiently severe to constitute harm rising to the 

level of persecution. The BIA agreed with the immigration judge 

that, based on the record evidence and testimony, D’Souza failed 

to meet her burden to establish that it was more likely than not that 

she would be persecuted on account of her sexual orientation in 

India. The BIA noted the immigration judge’s consideration of the 

Department of State Report, which provided that same-sex relations were decriminalized in India and that it was too early to determine how that would translate into social acceptance, including 

safe and equal opportunities at work and educational institutions. 

Thus, “[w]hile the evidence in the record establishes that the respondent may face discrimination and harassment in India, such 

possibilities do not establish that she would be persecuted on this 

basis.” The BIA found that the immigration judge “correctly concluded that [D’Souza’s] fear of returning to India is based on speculation that she would be persecuted.” 

The BIA also noted that the immigration judge had found 

D’Souza’s “fear of future persecution is undermined by the fact that 

her ex-girlfriend, who is lesbian, continues to safety live in India.” 

The BIA acknowledged D’Souza’s testimony that “although her exgirlfriend did not live openly as lesbian, [she] was unaware of any 

harm that her ex-girlfriend experienced on account of her sexual 

orientation.” The BIA then found no error in the immigration 

judge’s weighing of this evidence. 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 8 of 27
23-10023 Opinion of the Court 9

The BIA thus affirmed the immigration judge’s denial of 

D’Souza’s application of withholding of removal and dismissed her 

appeal. D’Souza now seeks review of the BIA’s decision.1

II. STANDARD OF REVIEW

We review the BIA’s decision when it does not expressly 

adopt the immigration judge’s opinion. Diallo, 596 F.3d at 1332. 

When the BIA expressly adopts or explicitly agrees with the immigration judge’s findings about an issue, though, we review both the 

BIA’s and immigration judge’s decisions as to that issue. Thamotar 

v. U.S. Att’y Gen., 1 F.4th 958, 969 (11th Cir. 2021); Bing Quan Lin v. 

U.S. Att’y Gen., 881 F.3d 860, 872 (11th Cir. 2018). And if the BIA 

issues its own opinion but relies on the immigration judge’s decision and reasoning without expressly adopting that decision, we review the immigration judge’s opinion to the extent that the BIA 

found the judge’s reasons were supported by the record but review 

the BIA’s decision as to matters on which it rendered its own opinion and reasoning. Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th 

Cir. 2011).

We review factual findings under the substantial evidence 

test and “must affirm the BIA’s decision if it is supported by reasonable, substantial, and probative evidence on the record considered 

as a whole.” Diallo, 596 F.3d at 1332 (quoting Al Najjar v. Ashcroft, 

257 F.3d 1262, 1283–84 (11th Cir. 2001)). In applying the substantial 

evidence test, “we review the record evidence in the light most 

1 D’Souza does not seek review of her asylum and CAT claims with this Court.

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 9 of 27
10 Opinion of the Court 23-10023

favorable to the agency’s decision and draw all reasonable inferences in favor of that decision.” Id. (quoting Ruiz v. U.S. Att’y Gen., 

440 F.3d 1247, 1255 (11th Cir. 2006)). “Thus, ‘a finding of fact will 

be reversed only when the record compels a reversal; the mere fact 

that the record may support a contrary conclusion is not enough 

to justify a reversal of the administrative finding.’” Id. (quoting 

Ruiz, 440 F.3d at 1255); accord Mazariegos v. Off. of U.S. Att’y Gen., 

241 F.3d 1320, 1324 (11th Cir. 2001) (“Our inquiry is whether there 

is substantial evidence for the findings made by the BIA, not

whether there is substantial evidence for some other finding that 

could have been, but was not, made.” (emphasis original)).

Finally, we review the BIA’s legal determinations de novo. Diallo, 596 F.3d at 1332.

III. ANALYSIS

Under 8 U.S.C. § 1231(b)(3)(A), an alien seeking withholding 

of removal must show that her “life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 

“An alien bears the burden of demonstrating that he more-likelythan-not would be persecuted or tortured upon his return to the 

country in question.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 

(11th Cir. 2003). The alien can meet her burden by showing either: 

“(1) ‘past persecution in [her] country based on a protected 

ground,’ in which case a rebuttable presumption is created that 

[her] life or freedom would be threatened if [s]he returned to h[er]

country; or (2) ‘a future threat to [her] life or freedom on a 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 10 of 27
23-10023 Opinion of the Court 11

protected ground in [her] country.’” Delgado v. U.S. Att’y Gen., 487 

F.3d 855, 861 (11th Cir. 2007) (quoting Al Najjar, 257 F.3d at 1287). 

Under BIA precedent, D’Souza, a lesbian woman, is a member of 

a protected group. See Sama v. U.S. Att’y Gen., 887 F.3d 1225, 1232 

(11th Cir. 2018); Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948–49 (11th 

Cir. 2010).

In her petition for review, D’Souza challenges the BIA’s decision finding that she had not suffered past persecution nor had a 

well-founded fear of future persecution. We address these issues 

in turn.

A. Past Persecution

As to past persecution, D’Souza claims that the BIA explicitly agreed with the immigration judge’s opinion about past persecution, requiring us to review the judge’s ruling. She argues that 

the immigration judge failed to sufficiently analyze the events that

constituted past persecution in India and that the BIA misstated the 

contents of the record when it described the judge’s ruling as 

amounting to a cumulative assessment. 

“Persecution is an extreme concept, requiring more than a 

few isolated incidents of verbal harassment or intimidation.” Delgado, 487 F.3d at 861 (alteration adopted) (quoting Sepulveda v. U.S. 

Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)); accord Murugan v. 

U.S. Att’y Gen., 10 F.4th 1185, 1192 (11th Cir. 2021) (“[P]ersecution 

is an extreme concept that does not include every sort of treatment 

our society regards as offensive.” (quoting Gonzalez v. Reno, 212 F.3d 

1338, 1355 (11th Cir. 2000))). For example, “minor physical abuse 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 11 of 27
12 Opinion of the Court 23-10023

and brief detentions do not amount to persecution.” Murugan, 10 

F.4th at 1192 (alteration adopted) (quoting Kazemzadeh v. U.S. Att’y 

Gen., 577 F.3d 1341, 1353 (11th Cir. 2009)). Similarly, “mere harassment does not amount to persecution.” De Santamaria v. U.S. Att’y 

Gen., 525 F.3d 999, 1008 (11th Cir. 2008) (quoting Sanchez Jimenez v. 

U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th Cir. 2007)). In determining 

whether an alien has suffered past persecution, the immigration 

judge “must consider the cumulative effects of the incidents.” Delgado, 487 F.3d at 861. But while the BIA must “‘consider all evidence introduced by the applicant,’ it is not required to ‘address 

specifically each claim the petitioner made or each piece of evidence the petitioner presented.’” Sama, 887 F.3d at 1235 (quoting 

Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006)).

In addressing past persecution, the BIA affirmed the immigration judge’s determination that D’Souza had not established 

past persecution, as she had not shown that she experienced harm 

that was sufficiently severe to rise to the level of persecution. The 

BIA noted that the immigration judge had acknowledged the incidents of harm that D’Souza experienced, e.g., being taken to the 

police station in eighth grade because of a lesbian relationship; her 

experience with the airline employer threatening to fire her for being “queer”; and the fact that her parents threw her out of the 

house and ceased further contact. The BIA also recognized 

D’Souza’s testimony about her father beating her with a cane. 

Based on all of this, the BIA “agree[d] with the Immigration Judge 

that considered cumulatively, the harm [D’Souza] described is 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 12 of 27
23-10023 Opinion of the Court 13

insufficiently severe to constitute harm rising to the level of persecution.” 

As an initial matter, we disagree with D’Souza that the BIA 

expressly adopted the immigration judge’s decision as to this issue. 

Rather, the BIA only recounted the evidence that the immigration 

judge considered, noted additional evidence, and agreed with the 

immigration judge that, considered cumulatively, the harms 

D’Souza suffered did not rise to the level of persecution. And we 

review the immigration judge’s decision only to the extent the BIA 

found the immigration judge’s reasons were supported by the record. See Seck, 663 F.3d at 1364. D’Souza also argues that the BIA 

erred because it “misstate[d] the contents of the record,” see 

Jathursan v. U.S. Att’y Gen., 17 F.4th 1365, 1374 (11th Cir. 2021) (quoting Jeune v. U.S. Att’y Gen., 810 F.3d 792, 803 (11th Cir. 2016)), by 

describing the immigration judge’s ruling on past persecution as a 

cumulative assessment. But the BIA independently determined 

that D’Souza’s past experiences in India, “considered cumulatively,” 

were “insufficiently severe to constitute harm rising to the level of 

persecution.” And our review asks whether the BIA’s decision is 

supported by substantial evidence.

Reviewing the BIA’s decision and the record evidence, we 

agree with the BIA that the incidents of harassment and discrimination that D’Souza experienced in India, while wrong, do not rise 

to the level of persecution as required by our precedent. Our decision in Sama is instructive. 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 13 of 27
14 Opinion of the Court 23-10023

In Sama, an anti-gay group in the applicant’s college attacked 

him for posting a message in a college publication in Cameroon 

“supporting homosexuality and asking for equal rights for homosexuals” and protesting the expulsion of his gay friends from the 

college. 887 F.3d at 1228. In response, the police issued a warrant 

for Sama’s arrest that charged him with “carrying out homosexual 

activities” but did not arrest him. Id. at 1228–29 (alterations 

adopted). Later, four men attacked Sama, “cut his neck,” and

threatened to kill him unless he “stop[ped] his homosexual activities.” Id. at 1228 (alterations adopted). Sama was treated at a hospital for “wounds and a big cut on his neck,” a “head ache and swollen face,” “serious bleeding,” and “other symptoms of an ‘assault.’” 

Id. (alterations adopted). After Sama’s discharge from the hospital, 

someone threw a brick through the window of his room, with an 

inscribed message stating, “we don’t want gays in our community.” 

Id. at 1229. Two days later, the police attempted to execute the 

warrant for his arrest at his mother’s house, and when his mother 

refused to tell the police where Sama was, they arrested and detained her. Id.

In reviewing the BIA’s decision, we found that substantial evidence supported the BIA’s finding that Sama did not experience 

past persecution. Id. at 1232. We found that the incidents Sama 

experienced did “not amount to ‘more than a few isolated incidents 

of . . . harassment or intimidation’” and thus did not “compel” reversal. Id. (quoting Sepulveda, 401 F.3d at 1231). In doing so, we 

noted that: (1) “Sama never alleged that he was physically harmed 

by the police”; (2) “the police expressed an interest in bringing 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 14 of 27
23-10023 Opinion of the Court 15

Sama’s attackers to justice when they visited the hospital to take his 

statement about the attack”; (3) “Sama [never] suggested that he 

was afraid to speak with the officers at the hospital”; (4) “the police 

never questioned him about his sexuality or support for gay rights”; 

(5) he was never arrested or questioned by the police; and (6) he 

never spent any time in Cameroonian jail. Id.

Here, when viewing the evidence in the light most favorable 

to the BIA’s decision, as we must, substantial evidence supports the 

BIA’s finding that D’Souza did not suffer past harms that rose to the 

level of past persecution. D’Souza testified about several instances 

of being stigmatized or discriminated against because she had relationships with other women. But these incidents of harm are 

largely isolated—e.g., one occurring when D’Souza was in middle 

school (the incident with the police inspector called by the wealthy 

family), one occurring when she was twenty-one (the incident with 

her father and her ex-girlfriend), and one occurring at some point 

when she worked for the airline. While this past discrimination 

against D’Souza based on her sexual orientation is condemnable, 

these incidents do not rise to the level of persecution under our 

precedent. See De Santamaria, 525 F.3d at 1008. As to her father’s 

caning of her, D’Souza did not specify how often this occurred and

only speculated that it was because she was a lesbian, admitting

that her father never spoke of the reason he caned her. See Murugan, 10 F.4th at 1192. In light of our decision in Sama, we cannot 

say that these “few isolated incidents of harassment or intimidation” experienced by D’Souza compel a reversal of the BIA’s finding 

that D’Souza did not suffer past persecution. See Sama, 887 F.3d at 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 15 of 27
16 Opinion of the Court 23-10023

1232 (quoting Sepulveda, 401 F.3d at 1231); Diallo, 596 F.3d at 1333. 

Accordingly, we deny D’Souza’s petition as to this issue.

B. Well-founded Fear of Future Persecution

As to whether D’Souza established a well-founded fear of 

future persecution in India, she again asserts that the BIA expressly 

agreed with the immigration judge’s decision on the issue. She argues that the immigration judge’s conclusion that persecution was 

insufficiently widespread in India is contrary to the evidence. She 

asserts that the immigration judge neither concluded her fears 

were speculative nor made any predictive factfinding of what might 

happen if she returned to India, even though the Department of 

State’s Report indicated that homosexual individuals faced physical 

attacks, rape, blackmail, and widespread societal discrimination 

and violence in India. Further, she argues that the immigration 

judge erred in finding that her inability to live freely and openly as 

a member of her particular social group was not a form of persecution.

If an applicant does not establish past persecution, she bears 

the burden of showing a well-founded fear of persecution by showing the following: (1) she fears persecution based on her membership in a particular social group, political opinion, or other statutorily listed factor; (2) there is a reasonable possibility that she will 

suffer such persecution if removed to her native country; and (3) 

she is unable or unwilling to return to her native country because 

she fears persecution. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1291 

(11th Cir. 2006); 8 C.F.R. § 208.13(b)(2)(i). “An applicant alleging 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 16 of 27
23-10023 Opinion of the Court 17

fear of future persecution bears the burden of proving ‘(1) “a subjectively genuine and objectively reasonable” fear of persecution 

that is (2) on account of a protected ground.’” Sama, 887 F.3d at 

1232 (quoting Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 

2006)). “An alien can also establish a well-founded fear of future 

persecution (and does not need to show an individualized risk of 

persecution) if [s]he proves a pattern or practice of persecuting ‘a 

group of persons similarly situated to [herself ].’” Murugan, 10 F.4th 

at 1193 (quoting 8 C.F.R. § 1208.13(b)(2)(iii)). “To prove the existence of a pattern or practice of persecution, the alien must prove 

that the mistreatment of persons similarly situated is ‘extreme and 

pervasive.’” Id. (quoting Lingeswaran v. U.S. Att’y Gen., 969 F.3d 

1278, 1291 (11th Cir. 2020)). And an applicant’s ability to relocate 

to a different region in their home country to avoid future persecution may defeat a well-founded fear of future persecution, if, under 

the circumstances, it is reasonable to expect the applicant to relocate. See Mazariegos, 241 F.3d at 1326–27.

After briefing concluded in this case, the BIA issued its published decision in In re C-G-T-, 28 I. & N. Dec. 740 (BIA 2023), which 

D’Souza filed as supplemental authority to this Court. In C-G-T-, 

the applicant testified that his father abused him in the Dominican 

Republic because of his sexual orientation, and declarations from 

his relatives stated that they believed the father beat the applicant 

because the father thought the son was gay. Id. at 741. After the 

applicant came to the United States, the applicant’s mother told his 

father that he was gay, and the applicant was later diagnosed as 

HIV-positive. Id. The immigration judge denied the application 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 17 of 27
18 Opinion of the Court 23-10023

for relief, among other reasons, for failing to show that he was 

“more likely than not to suffer future persecution because he did 

not show that anyone in the Dominican Republic, aside from his 

father, knew he was gay or HIV-positive and would harm him for 

that reason.” Id.

In addressing the applicant’s fear of future persecution, the 

BIA stated that “[a]s a general matter, we do not base consideration 

of an applicant’s fear of future harm on the ability or requirement 

to hide his or her sexual orientation.” Id. at 745. Thus, the BIA 

determined that, to the extent the immigration judge’s conclusion 

“could be viewed as based on an assumption that the respondent 

could avoid future harm by not engaging in conduct that would 

identify himself as gay, it would be in error.” Id. The BIA explained 

that “[s]exual orientation, like other protected grounds, is ‘a characteristic that either is beyond the power of an individual to change 

or is so fundamental to individual identity or conscience that it 

ought not be required to be changed.’” Id. (quoting In re Acosta, 19 

I. & N. Dec. 211, 233 (BIA 1985)). And it stated that, “when considering future harm, adjudicators should not expect a respondent to 

hide his or her sexual orientation if removed to his or her native 

country.” Id. (citing Doe v. Att’y Gen. of the United States, 956 F.3d 

135, 154 (3d Cir. 2020); and Singh v. Sessions, 898 F.3d 518, 522 (5th 

Cir. 2018)).

Although we do not have precedent explicitly stating 

whether an applicant for asylum and withholding of removal 

should be expected to hide his or her sexual orientation to avoid 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 18 of 27
23-10023 Opinion of the Court 19

future persecution in the applicant’s home country, we have recognized that the Immigration and Nationality Act (“INA”) and its related regulations “do not require applicants who have faced persecution ‘on account of race, religion, nationality, membership in a 

particular social group, or political opinion’ to avoid signaling to 

others that they are indeed members of a particular race, or adherents of a certain religion, etc.” Antipova v. U.S. Att’y Gen., 392 F.3d 

1259, 1264–65 (11th Cir. 2004) (quoting 8 C.F.R. § 208.16(b)). For 

example, in Kazemzadeh, we found that “having to practice religion 

underground to avoid punishment is itself a form of persecution” 

in the case of an Iranian applicant who had converted from Islam 

to Christianity. See 577 F.3d at 1354. And some of our sister circuits 

have found that an applicant should not be expected to hide his or 

her sexual orientation to avoid persecution in this context. See, e.g., 

Doe, 956 F.3d at 154; Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th 

Cir. 2005).

Under our precedents in Antipova and Kazemzadeh, an applicant is not expected to hide her identity in a protected group to 

avoid future persecution. And persecution based on an applicant’s 

sexual orientation constitutes a protected ground. See Sama, 887 

F.3d at 1232; Ayala, 605 F.3d at 948–49. Therefore, as is the case for 

other protected groups, the INA and its regulations do not require 

applicants like D’Souza to avoid signaling their sexual orientations 

to avoid persecution in their home countries. See Antipova, 392 F.3d 

at 1264–65. We do not read the BIA’s decision to suggest that it 

expected D’Souza to hide her identity and not openly live as a lesbian if she returned to India to avoid future persecution. But, to 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 19 of 27
20 Opinion of the Court 23-10023

the extent that the BIA did so, the decision is inconsistent with its 

decision in C-G-T- and the reasoning in Antipova and Kazemzadeh.

However, upon reviewing the BIA’s decision, we agree that 

the BIA made a separate independent determination regarding

whether D’Souza had shown a well-founded fear of future persecution—specifically, that D’Souza’s fear of returning to India was 

based on speculation. We now turn to whether substantial evidence supports this specific determination.

In making this separate determination, the BIA first cited to 

the Department of State’s India 2018 Human Rights Report. Under our precedent, the BIA is “entitled to rely heavily on” the Department of State’s reports about country conditions. Seck, 663 

F.3d at 1368 (quoting Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 

1243 (11th Cir. 2004)). Here, the Department of State’s Report 

notes that the Indian Supreme Court decriminalized same-sex relations in a unanimous verdict. It states that “[a]ctivists welcomed 

the verdict but stated it was too early to determine how the verdict 

would translate into social acceptance, including safe and equal opportunities at workspaces and educational institutions.” The Report continues that LGBT individuals had “faced physical attacks, 

rape, and blackmail,” as well as “widespread societal discrimination 

and violence,” “particularly in rural areas.” And the Report notes 

that some police forces in India were receiving “education and sensitivity training” for LGBT individuals. An article presented by 

D’Souza similarly notes that recent Indian court judgments had 

laid the groundwork for better protection from discrimination 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 20 of 27
23-10023 Opinion of the Court 21

based on sexual orientation and that the Indian government’s 

stance on LGBT rights had evolved considerably. And, in considering the Department of State’s Report, the BIA found that D’Souza 

may face discrimination and harassment in India, but that “such 

possibilities” did not establish persecution, which the BIA found 

was speculative. 

The BIA also cited to D’Souza’s testimony, in which she expressed uncertainty as to what would await her should she return 

to India. In response to being asked whether she could live safely 

in an Indian city as a lesbian, D’Souza testified:

I can’t answer that, really. I don’t know too much but 

I know that you cannot have an open relationship 

kind of a thing. It’s the same because it is, the way it 

is in India, it’s like, do they, even though they are ultramodern in their way of dressing, the thinking is 

still you cannot have a child, period. You cannot live 

together as a couple.

D’Souza, however, did not testify that she would suffer physical 

harm nor that the Indian government would be unwilling or unable 

to protect her from individuals who would target her on account 

of her identity as a lesbian. Cf. Sama, 887 F.3d at 1233–34 (finding 

that the applicant failed to establish a well-founded fear of persecution, despite his argument that he introduced evidence that authorities persecuted gay activists and look away when they are persecuted, attack or killed, in part because recent country reports stated 

that conditions were improving). 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 21 of 27
22 Opinion of the Court 23-10023

Viewing this evidence in the light most favorable to the BIA’s 

decision, we find that substantial evidence supports its determination that D’Souza’s fear of future persecution was based on speculation. The record evidence relied upon by the BIA shows that: (1)

there are some improvements towards acceptance of LGBT individuals in India since 2018, such as the Indian Supreme Court’s decriminalization of same-sex relations, although there is uncertainty 

as to how that will translate into future improvements for acceptance of such individuals; (2) D’Souza expressed uncertainty as 

to what will happen to her if she returns to India; and (3) even if 

D’Souza did suffer some future discrimination and harassment because she is a lesbian woman, it would not be considered persecution, as defined by the INA. See De Santamaria, 525 F.3d at 1008.

Again, we empathize with D’Souza’s case. But while the inferences that D’Souza draws from the record evidence may be reasonable, the record does not compel the conclusion that, if she returns to India, she will be singled out for persecution on the basis 

of her sexuality or that there is a pattern or practice of persecution 

against lesbians in India. See Diallo, 596 F.3d at 1332; cf. Sama, 887 

F.3d at 1233–34. Accordingly, we deny D’Souza’s petition as to this 

issue because the BIA’s determination that D’Souza failed to show 

a well-founded fear of future persecution is supported by substantial evidence.

IV. CONCLUSION

For the foregoing reasons, we deny D’Souza’s petition for 

review.

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 22 of 27
23-10023 Opinion of the Court 23

PETITION DENIED.

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 23 of 27
1 WILSON, J., Concurring 23-10023

WILSON, Circuit Judge, concurring in judgment: 

Under our deferential standard of review, I concur in the 

majority’s judgment to deny Olivia D’Souza’s petition.1 I write 

separately to express concerns with the implications of our decision.

D’Souza’s case highlights an important question this court 

has yet to resolve: to what degree can or should we expect an individual to hide or minimize a protected characteristic to avoid persecution or persecution-like consequences? The majority concludes that a firm answer to this question is not required because

the BIA found D’Souza’s fear of returning to India speculative. I 

have reservations with this determination because I do not believe 

that one’s ability to live openly can be separated from a risk of future persecution. Numerous sister circuit rulings prove instructive 

here, as many persuasively explain the inextricable relationship between one’s ability to live freely and openly and a fear of future 

persecution. 

In Karouni v. Gonzales, the Ninth Circuit discussed at length 

how “abstaining from future homosexual acts” essentially requires 

asking a person “to change a fundamental aspect of [their] human 

identity.” 399 F.3d 1163, 1173 (9th Cir. 2005). The Seventh Circuit 

1 In reviewing Board of Immigration Appeals (BIA) factual findings, we may 

not “reweigh the evidence from scratch,” Adefemi v. Ashcroft, 386 F.3d 1022, 

1027 (11th Cir. 2004) (quotation marks omitted), and may only reverse where 

the record “compels it,” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th 

Cir. 2003). 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 24 of 27
23-10023 WILSON, J., Concurring 2

reviewed a comparable issue in the context of religious liberties, 

holding that “[a]sylum exists to protect people from having to return to a country and conceal their beliefs,” so it is unreasonable to 

expect asylum seekers to return to their home country only to 

“conceal their beliefs.” Shan Zhu Qiu v. Holder, 611 F.3d 403, 408 

(7th Cir. 2010). The Fifth Circuit similarly held that the law is clear 

that a petitioner “cannot be forced to live in hiding in order to avoid 

persecution.” Singh v. Sessions, 898 F.3d 518, 522 (5th Cir. 2018). 

And in a case analogous to ours—where the petitioner challenged 

returning to a country where he would have to “suppress[] his identity and sexuality as a gay man” to avoid persecution—the Third 

Circuit vacated the BIA’s denial of asylum, writing that “[t]he notion that one can live a ‘full life’ while being forced to hide or suppress a core component of one’s identity is an oxymoron.” Doe v. 

U.S. Att’y Gen., 956 F.3d 135, 154 (3d Cir. 2020).2 

D’Souza’s case mirrors those considered by our sister circuits. When asked if she would be able to “live safely in a city as a 

lesbian,” D’Souza testified to the following: “I don’t know too 

much but I know that you cannot have an open relationship kind 

of a thing.” Her testimony was informed by her lived experiences

in India, which included going to parties where police threatened, 

2 Notably, all four circuit decisions referenced in this paragraph reversed the 

decisions of the BIA to hold that hiding a key aspect of one’s identity to avoid 

harm amounts to a well-founded fear of future persecution.

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 25 of 27
3 WILSON, J., Concurring 23-10023

beat, and arrested gay men in attendance.3 The India 2018 Human 

Rights Report4 seems to support finding that what D’Souza experienced does not happen in isolation. The report recounts how 

“[s]ome police [have] committed crimes against LGBTI[5] persons 

and used the threat of arrest to coerce victims not to report the 

incidents.” Considered together, D’Souza’s testimony and the Human Rights Report speak to a past—and ever-present reality—of 

harm LGBTI persons face at the hands of police in India. Put 

simply, the threat of violence seems attached to whether she must 

hide her identity.6

3 In making its determination as to D’Souza’s claim of past persecution, the 

majority relies heavily on Sama v. U.S. Att’y Gen., 887 F.3d 1225 (11th Cir. 

2018). There, petitioner Sama sought asylum following an attack at the hands 

of an “anti-gay group” in his home country. Id. at 1228. We denied Sama’s 

petition because we found that Sama had never been “physically harmed by 

police,” nor had the police attempted to arrest him or “questioned him about 

his sexuality or support for gay rights.” Id. at 1232. D’Souza’s case is distinguishable however because her record includes examples of sexual orientation-based threats and coercion perpetrated explicitly by police.

4 In reviewing both past and future persecution the BIA is “entitled to rely 

heavily on country reports.” Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1175 

(11th Cir. 2008) (quotation marks omitted). 

5 We use the term “LGBTI” consistently to match the term’s use in the India 

2018 Human Rights Report, where it is used as an acronym for lesbian, gay, 

bisexual, transgender, and intersex.

6 D’Souza also submitted evidence in which gay rights activists described lesbians as “fac[ing] a life of double discrimination” because of their gender and 

sexuality and explained that “[i]t is more common to hear about lesbians 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 26 of 27
23-10023 WILSON, J., Concurring 4 

The BIA places significant emphasis on the India Supreme 

Court’s 2018 decriminalization of same-sex relations—while overlooking our country’s own history in granting LGBTI-based protections. Same-sex relationships were criminalized across the 

United States until the early 2000s. See Lawrence v. Texas, 539 U.S. 

558, 578 (2003). But decriminalization was not a cure all. It took 

another decade for our Supreme Court to recognize that “[o]utlaw 

to outcast may be a step forward, but it does not achieve the full 

promise of liberty.” Obergefell v. Hodges, 576 U.S. 644, 667 (2015). It 

is logical to conclude that it may similarly take India years to extend

broad protections to LGBTI persons. While decriminalization is a 

step toward better protection, it is far from a guarantee. 

In reviewing cases like D’Souza’s, I urge our circuit to move 

toward that of our sister circuits. One’s ability to live freely and 

openly regarding a protected characteristic should be a critical factor in analyzing a threat of future persecution. Because we have 

not yet adopted this framework, we must defer to the BIA’s determination. For these reasons, I concur in judgment.

committing suicide than other members of the [LGBTI] community” because 

of the unique challenges they face in-country. 

USCA11 Case: 23-10023 Document: 27-1 Date Filed: 07/19/2024 Page: 27 of 27