UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-2171

DIANA MARIA BERMUDEZ-BOTERO, a/k/a Diana Bermudez,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General, 

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Submitted: March 31, 2010 Decided: April 22, 2010

Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.

Petition dismissed in part; denied in part by unpublished per 

curiam opinion.

Diana Maria Bermudez-Botero, Petitioner Pro Se. Daniel Eric 

Goldman, Matthew Allan Spurlock, Office of Immigration 

Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, 

D.C., for Respondent. 

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Diana Maria Bermudez-Botero, a native and citizen of 

Colombia, petitions for review of the Board of Immigration 

Appeals’ (“Board”) order, which vacated the immigration judge’s 

decision, denied Bermudez-Botero’s application for withholding 

of removal, and ordered her removed to Colombia.1

Bermudez-Botero was charged with removability pursuant 

to Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 

codified at 8 U.S.C. § 1227(a)(1)(B) (2006), because she 

overstayed her visa, and pursuant to INA § 237(a)(2)(B)(i), 

codified at 8 U.S.C. § 1227(a)(2)(B)(i) (2006), because she had 

two prior convictions for controlled substance offenses. In 

response, Bermudez-Botero applied for withholding of removal, 

claiming a fear of future harm due to her membership in the 

particular social group of “displaced women without family 

support.”

After her merits hearing, the immigration judge 

granted Bermudez-Botero withholding of removal. The Department 

of Homeland Security appealed, and the Board vacated the 

 1 Although Bermudez-Botero also initially requested 

protection under the Convention Against Torture, because she 

does not advance any argument relevant to that claim in her 

informal brief, she has abandoned that issue on appeal. See 4th 

Cir. R. 34(b); Edwards v. City of Goldsboro, 178 F.3d 231, 241 

n.6 (4th Cir. 1999).
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immigration judge’s order, finding “displaced women without 

family support” was not a cognizable “social group” within the 

meaning of the INA. Bermudez-Botero challenges this ruling in 

her petition for review.

Pursuant to 8 U.S.C. § 1252(a)(2)(C) (2006), we lack 

“jurisdiction to review any final order of removal against an 

alien who is removable by reason of having committed a criminal 

offense covered in . . . [§] 1227(a)(2)(B).” In turn, 

§ 1227(a)(2)(B)(i) provides, among other things, that an alien 

is removable if convicted of a violation of any federal or state 

law or regulation relating to a controlled substance as defined 

in 21 U.S.C. § 802 (2006). 8 U.S.C. § 1227(a)(2)(B)(i). 

Bermudez-Botero’s two prior convictions for controlled substance 

offenses, which are undisputed, fall squarely within these 

parameters.

However, we retain jurisdiction to review 

“constitutional claims or questions of law.” 8 U.S.C. 

§ 1252(a)(2)(D) (2006); Mbea v. Gonzales, 482 F.3d 276, 278 n.1 

(4th Cir. 2007). Bermudez-Botero’s argument that the Board 

committed legal error in finding “displaced women without family 

support” did not qualify as a “social group” within the meaning 

of the INA presents an issue of law, which we will review de 
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novo.2

“Withholding of removal is available under 8 U.S.C. 

§ 1231(b)(3) if the alien shows that it is more likely than not 

that her life or freedom would be threatened in the country of 

removal because of her race, religion, nationality, membership 

in a particular social group, or political opinion.”

 See Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir.), 

cert. denied, 129 S. Ct. 595 (2008); accord Malonga v. Mukasey, 

546 F.3d 546, 553 (8th Cir. 2008).

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 2 Conversely, to the extent that Bermudez-Botero asks us to 

review the Board’s alternative, factual holding that she failed 

to establish inclusion in the advanced social group, we lack 

jurisdiction to review that determination. See Kporlor v. 

Holder, __ F.3d __, 2010 WL 746442, at *4 (4th Cir. Mar. 5, 

2010) (“Section 1252(a)(2)(D) does not permit review of 

discretionary judgments that rest on factual circumstances.”).

 Gomis v. 

Holder, 571 F.3d 353, 359 (4th Cir. 2009), cert. denied, 130 S. 

Ct. 1048 (2010) (internal quotation marks omitted). “This is a 

more stringent standard than that for asylum. . . . [W]hile 

asylum is discretionary, if an alien establishes eligibility for 

withholding of removal, the grant is mandatory.” GandziamiMickhou v. Gonzales, 445 F.3d 351, 353-54 (4th Cir. 2006).

3 Amendments made by the REAL ID Act of 2005 apply in this 

case, because Bermudez-Botero’s application was filed after the 

May 11, 2005 effective date of that legislation. In relevant 

part, the REAL ID Act amended the INA to provide that the 

applicant must establish that the asserted protected ground “was 

or will be at least one central reason for persecuting the 

applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) (2006).
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Through a series of published, precedential decisions, 

the Board has identified several factors that must be present in 

order for a proposed social group to qualify under the INA. See

In re A-M-E & J-G-U-, 24 I. & N. Dec. 69 (B.I.A. 2007); In re 

C-A, 23 I. & N. Dec. 951 (B.I.A. 2006). As succinctly 

summarized by the First Circuit, these cases reflect that, in 

addition to the immutability component first identified in In re 

Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985), overruled on 

other grounds by In re Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 

1987), the proposed group (1) must “have social visibility, 

meaning members possess characteristics . . . visible and 

recognizable by others in the [native] country, (2) be defined 

with sufficient particularity to avoid indeterminacy, and (3) 

not be defined exclusively by the fact that its members have 

been targeted for persecution.” Scatambuli v. Holder, 558 F.3d 

53, 59 (1st Cir. 2009) (alterations in original) (internal 

quotation marks & citations omitted).

Because neither the INA nor the relevant regulations 

specifically define “particular social group,” this court will 

defer to the Board’s “reasonable interpretation” of the term. 

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 

U.S. 837, 843-44 (1984); Li Fang Lin v. Mukasey, 517 F.3d 685, 

691-92 (4th Cir. 2008) (noting that this court will “afford[]

appropriate deference to the [Board]’s interpretation of the INA
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and any attendant regulations”). The Board applied the 

analytical framework set forth in its precedential decisions in 

In re A-M-E & J-G-U- and In re C-A to determine that BermudezBotero did not belong to a “particular social group” such that 

she would be eligible for withholding of removal. We find this 

analysis is reasonable, and thus deny the petition for review of 

this issue.

Bermudez-Botero next argues the past persecution her 

uncle and distant cousin sustained entitle her to a rebuttable 

presumption of a well-founded fear of future persecution. We 

lack jurisdiction to consider this claim, because it was not 

raised on appeal to the Board and thus is not exhausted. 

8 U.S.C. § 1252(d)(1) (2006); Massis v. Mukasey, 549 F.3d 631, 

638, 640 (4th Cir. 2008), cert. denied, 130 S. Ct. 736 (2009). 

Accordingly, we dismiss this claim for lack of jurisdiction.

For the foregoing reasons, we deny the petition for 

review in part and dismiss it in part for lack of jurisdiction. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

PETITION DISMISSED IN PART;

DENIED IN PART