[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________ No. 18

- 14307 Non

- Argument Calendar

____________________
EDGUIN PEREZ

- GARCIA, Petitioner,

versus U.S. ATTORNEY GENERAL,
Respondent. USCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 1 of 182 Opinion of the Court 18

- 14307

____________________ No. 20

- 11381 Non

- Argument Calendar

____________________
EDGUIN PEREZ

- GARCIA, Petitioner,

versus U.S. ATTORNEY GENERAL,
Respondent.

____________________ Petition s for Review of a Decision of the Board of Immigration Appeals Agency No. A094

- 800

- 347

____________________ Before J ORDAN , J ILL P RYOR , and N EWSOM , Circuit Judges. PER CURIAM: Edguin Perez

- Garcia, a native and citizen of Honduras, seeks review of the Board of Immigration Appeals’ (“BIA”) orders affirming the Immigration Judge’s (“IJ”) denial of his application USCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 2 of 1818

- 14307 Opinion of the Court 3 for relief under the United Nations Convention Against Tortureand Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”) and denying his motion to reopen removal proceedings. After careful review, we dismiss his petition se eking review of the BIA’s decision on his CAT claim because he failed toexhaust the argument he now raises. We grant his petition seeking review of the denial of his motion to reopen, vacate the BIA’s decision, and remand because the BIA failed to give re asoned consideration to Perez

- Garcia’s central argument in support of that motion

. I. Perez

- Garcia first entered the United States in 2006; he was removed that same year. As relevant to this case, Perez

- Garcia re

entered in 201 2, and the Department of Homeland Security issued him a notice of intent to reinstate his prior removal order, char ging him as removable based on that prior removal order under the Immigration and Nationality Act, 8 U.S.C. § 1231(a)(5 )

. Perez

- Garcia underwent a reasonable fear interview and was found to have established a reasonable fear of torture should he return t o Honduras. During the interview, Perez

- Garcia told

an immigration officer that in February 20 12 he was working at a warehouse in Honduras when a police officer named Nectari and five or six other men broke down the door, pointed their guns at him, sprayed him with tear gas, tied him up, threw him in a trash

can , and threatened to set him on fire. At the time, Nectari was wearing a police shirt displaying his name. After throwing Perez

USCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 3 of 184 Opinion of the Court 18

- 14307 Garcia in the trash, the assailants stole tools and a truck. Nectari and the other assailants then t ried to light Perez

- Garcia on fire, but a coworker “came and shot in the air.” AR at 317. 1 Perez

Garcia “ran off,” but his coworker was shot. AR at 318. Perez

Garcia told immigration officer that his assailants were at the

ware house for “[a]bout two hours” before leaving. Id. at 317. Perez

- Garcia told an “ engineer ” who supervised work at the warehouse what happened and that he was afraid to return to work. Id. at 318. “[T]he owner [of the warehouse] made a report” to the police, but the police did not do anything in response. Id. The engineer “said it was not convenient for” Perez

- Garcia to be in Honduras, so Perez

- Garcia decided to leave and come to the United States. Id. at 319. Perez

- Garcia also le arned that his coworker was killed in May 2012

— the same month he departed for the United States

— by the same assailants who robbed the warehouse. The immigration offic er found Perez

- Garcia’s testimony credible and concluded that he had a reasonable fear of torture

. T he officer therefore referred his case to an IJ. As relevant to this case, Perez

- Garcia applied for CAT relief. 2 Represented by his then

- attorney James Levin , Perez

- Garcia

1 “AR” refers to the Administrative Record.

2 Perez

- Garcia also applied for withholding of removal, but he has expressly abandoned t his claim in his brief before this Court. USCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 4 of 1818

- 14307 Opinion of the Court 5 testified before an IJ regarding his CAT application , detailing the February 2012 incident at the warehouse where he worked as a guard

. Perez

- Garcia testified that Nectari, a policeman, arrived with other armed men to rob the warehouse of th e tools it was storing

. Perez

- Garcia recognized Nectari from the community and because Nectari was wearing a police shirt with his name on it. Nectari put tear gas in Perez

- Garcia’s eyes , then the men tied his hands behind his back, threw him in a trash ca n, and “were going to light it on fire

. ” AR at 235. The men said they were going to kill Perez

- Garcia and his coworkers. A coworker, Gregorio Chavez, “was screaming no, no .” Id. Chavez was shot but managed to escape
. Perez

- Garcia , who was blinded by the ga s for “[m]ore or less . . . 15 minutes,” also managed to flee ; meanwhile, the men “stole everything

. ” Id. at 240

– 41

. On cross

- examination, Perez

- Garcia clarified that, from the moment of Nectari’s arrival until the moment of Perez

- Garcia’s escape, about 15 minutes elapsed. Perez

- Garcia explained that when he told the reasonable fear interviewer that the attack had lasted two hours, he had been confused due to all of the questions

. After the incident, Perez

- Garcia’s “parents . . . p l aced a report,” but he “never heard anything.” Id. at 236. When confronted with his statement during his reasonable fear interview that the w arehouse’s owner filed a report, Perez

- Garcia said that he did not know “exactly” who filed it, but “[s]upposedly” the owner filed a report “together” with his parents. Id. at 255. USCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 5 of 186 Opinion of the Court 18

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Perez

- Garcia, knowing the men were looking for him, fled. He testified that he never returned to talk to his “boss.” Id. at 261. The IJ responded, “[W]hy does your interview say that you told your boss what happened and that you quit because you were too afraid to work there anymore,” and Perez

- Garcia said that he did not speak t o his boss, but his parents did. Id. at 261. Since his departure, Perez

- Garcia testified, Nectari and his

men ha d been threatening his parents and ha d come to his parents’ house five or six times looking for him

. And in May, the men killed Chavez

— “ they removed part of his face

. ” Id. at 253. Perez

Garcia testified that he would be unable to return to a ny other part of Honduras because his attackers had connections to other policemen and because violence was rampant in Honduras. Perez
- Garcia offered n o evidence to corroborate his testimony. The IJ denied Perez

- Garcia CAT relief. The IJ found Perez

Garcia not credible , reasoning that “the inaccuracies and inconsistencie s ” in his testimony “ and further the lack of any corroborating evidence or corrobora ting testimony weighed heavily on the

. . . decision that [Perez

- Garcia] was not credible. ” Id. at 192. In a summary of the evidence, the IJ noted some purported inconsistencies, including the length of time the assailants were at USCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 6 of 1818

- 14307 Opinion of the Court 7 the warehouse (15 minutes or 2 hours) and who filed the police report (Perez

- Garcia’s parents or the owner of the warehouse). 3 The IJ further found that in addition to his failure to testify credibly, Perez

- Garcia had failed to “provide[] any evidence that it is more likely tha n not that he would be tortured if returned to Honduras” because “the alleged harm he fears would be at the hands of private actors or actors not acting under color of law orwith the consent or acquiescence of a public official or other person acting in a n official capacity , ” as CAT requires. Id. at 194

– 95. Even if Nectari w ere , as Perez

- Garcia alleged, a police officer, the evidence showed that Nectari and his men’s “only purpose” was “to commit criminal acts and they were doing so solely in their individual capacit[ies] and not under color of law or under some sort of acquiescence from a government official.” Id. at 195. And Perez

- Garcia had “failed to show . . . that he is unable or unwilling to relocate within Honduras” as CAT requires. Id.
Perez

- Garcia, still represented by Levin, appealed to the BIA. Most of Perez

- Garcia’s three

- page argument section concerned a claim not relevant to this case

. As to his argument that

3 We note that Perez

- Garcia vigorously disputes whether these are in fact inconsistencies. For example, he argues that he consistently testified that 15 minutes passed between his assailants’ arrival and his escape but that the assailants were at the wareho use for two hours. And, he argues, although he initially testified that the warehouse’s owner filed the police report, he later clarified that it may have been both the owner and his parents. USCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 7 of 188 Opinion of the Court 18

- 14307 the IJ erred in denying him CAT relief, Perez

- Garcia argued only this: [Perez

- Garcia] has met the evidentiary burden of proof and persuasion to show that it is more likely than not that he would be tortured as defined in the regulation s . . . . Nectari was clearly shown to be a police officer. As such he was a public official acting under color of law. [Perez

- Garcia], in these circumstances is more likely than not to be tortured if returned to Honduras. He could not be expected to get a ny assistance from the police or other government official, no matter where he chose to live in Honduras.
AR at 161

– 62. Perez

- Garcia said

— in reference to a different claim not at issue here

— that he had provided “dates” and “specific details and locations.” Id. at 161. And, he said, “obtaining . . . the required documents to support his application . . . would have put him in extreme danger.” Id. The BIA affirmed the IJ’s decision. The BIA noted that Perez
- Garcia “d[id] not meaningfully challenge the [IJ’s] adverse credibility finding on appeal.” Id. at 151. Nonetheless, the BIA addressed and upheld the IJ’s adverse credibility determination. Specifically, the BIA said , the IJ, “when considering the totality of the USCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 8 of 1818

- 14307 Opinion of the Court 9 circumstances and all relevant factors, bas ed his adverse credibility finding on specific and cogent reasons, including inconsistencies between the applicant’s testimony and the reasonable fear interview.” Id. at 150. This included inconsistencies about the length of time the February 2012 incident lasted, who filed the police report, and whether he had any “communication with his supervisor following the incident.” Id. at 151. The BIA also concluded that the IJ correctly determined Perez

- Garcia’s claim for relief was due to be denied because he failed to provide “reasonably available corroborative evidence” that he would “be tortured in Honduras.” Id. at 151

– 52. Plus, the BIA found, there was “no clear error” in the IJ’s determination that Perez

- Garcia failed to show it was more likely than not thathe would “be tortured by, at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity.” Id. at 152. Nectari’s “private act of vengeance” as “a corrupt police officer” would n ot be “torture by a public official or other person acting in an official capacity.” Id. And there was no evidence “that Honduran government officials would acquiesce to this corrupt official’s actions.” Id. at 152

– 53. Perez

- Garcia petitioned this Court f or review of the BIA’s decision . While his petition for review was pending, he filed, through new counsel, a motion to reopen his proceedings with the BIA. In his motion to reopen, he argued that Levin had rendered ineffective assistance of counsel by fail ing to obtain and present corroborating evidence to the IJ, or to explain why such eviUSCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 9 of 1810 Opinion of the Court 18

- 14307 dence was unavailable, and that as a result the IJ found P erez
Garcia not credible. Perez

- Garcia argued that but for Levin’s deficient failure to obtain and present corro borating evidence, it was reasonably probable that he would have been found credible , and

so the outcome of his CAT claim would have been different. Relatedly, Perez

- Garcia argued that Levin had been deficient in failing to present evidence of Honduran cou ntry conditions, a failing that, he argued, compounded the effect of Levin’s deficient performance in failing to obtain and present corroborating evidence.
Perez

- Garcia further argued that Levin rendered ineffective assistance during proceedings before the BIA. He argued that Levin’s brief to the BIA did not sufficiently focus on the IJ’s adverse credibility finding as to his CAT claim and that as a result the BIA concluded that Perez

- Garcia had n ot meaningfully challenged that finding. And, he argued, because Levin had deficiently failed to submit to the IJ any country conditions evidence, the BIA relied on the absence of such evidence to affirm the IJ’s judgment. This, Perez

- Garcia contended, com pounded the errors Levin’s deficient performance caused before the IJ.
Perez

- Garcia attached several exhibits to his motion to reopen, including a sworn declaration in which he stated that Levin never told him he needed corroborating evidence and a 2016 Human Rights Report on Honduras, which detailed the country’s struggle with police corruption. USCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 10 of 1818

- 14307 Opinion of the Court 11
The BIA denied Perez

- Garcia’s motion to reopen. 4 The BIA found that Levin’s performance was deficient , noting that the “deficiencies [Perez

- Garcia identified] are evident in the record of proceedings.” Id. at 4. But, the BIA concluded, Perez

- Garcia had failed to demonstrate that Levin’s deficiencies prejudiced his case. Id. The BIA had sua sponte evaluated the IJ’s adverse credibility determination, and Perez

- G arcia had not identified “any arguments his prior counsel should have raised in challenging” that determination. Id. Moreover, although Perez

- Garcia claimed that Levin’s failure to submit corroborating evidence “was the primary reason for the [IJ’s] advers e credibility determination, the [BIA] analyzed credibility and corroboration separately.” Id. “Thus, the [ BIA ’s

] a nalysis of the [IJ’s] adverse credibility determination was unaffected by [Perez

- Garcia’s] prior counsel’s failure to submit corroborating ev idence.” Id. (emphasis added).In addition, because the BIA had affirmed the adverse credibility determination, Perez

- Garcia was not prejudiced by Levin’sfailure to submit country conditions documents. “Without credible testimony, this general country conditions evidence would be insuf ficient” to satisfy CAT’s requirements. Id.

4 Acknowledging that his motion was untimely, Perez

- Garcia sough t equitable tolling to file his motion to reopen. The BIA agreed that he was entitled to equitable tolling and treated his motion as timely. The timeliness of the motion to reopen is not at issue here. USCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 11 of 1812 Opinion of the Court 18

- 14307

Perez

- Garcia petitioned this Court for review of the BIA’s denial of his motion to reopen. We consolidated the two petitions for review and address them both here.
II. We review our own subject matter jurisdiction de novo

. Bing Quan Lin v. U.S. Att’y Gen. , 881 F.3d 860, 866 (11th Cir. 2018). Although we retain jurisdiction over final orders of removal, we may review a final order of removal only i f a noncitizen

“ has exha usted all administrative remedies available

. . . as of right.” 8 U.S.C. § 1252(d)(1). The exhaustion requirement is jurisdictional and precludes review of a claimant’s argument that was not presented to the BIA. Lin , 881 F.3d at 867

– 68. And t he exhaustion requirement applies even when the BIA addresses an issue sua sponte

. Amaya

- Artunduaga v. U.S. Att’y Gen. , 463 F.3d 1247, 1250

– 51 (11th Cir. 2006). We review the BIA’s denial of a motion to reopen removal proceedings for an abuse of discretion. Flores

- P

anameno v. U.S. Att’y Gen. , 913 F.3d 1036, 1040 (11th Cir. 2019). “Our review islimited to determining whether there has been an exercise of administrative discretion and whether the matter of exercise has been arbitrary or capricious.” Id

. ( internal quotation marks omitted). However, absent reasoned consideration and adequate findings, we must remand for further proceedings. Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1333 (11th Cir. 2019). Whether the BIA expressed reasoned consideration for its decision is reviewed de novo
. Lin , 881 F.3d at 872. USCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 12 of 1818

- 14307 Opinion of the Court 13
III. Perez

- Garcia has presented two petitions for review. The first, a petition for review of the BIA’s decision to affirm the IJ’s denial of his request for CAT relief, must be dismissed because he failed to exhaust the argument he advances before us. The second, a petition for review of the BIA’s denial of his motion to reopen, is due to be granted because the BIA failed to afford reasoned consideration to the central argument of his motion

. We analyze each p etition in turn. A. Request for CAT Relief In his first petition for review, Perez

- Garcia challenges the BIA’s denial of CAT relief. To be eligible for CAT relief, a noncitizen must show it is more likely than not that he will be tortured if removed to his country of removal. 8 C.F.R. § 208.16(c)(2). In this context, “torture” means “ any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ” for various purposes , including to i ntimidate, coerce, punish, or discriminate against him , “ when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official acting in an official capacity or other person acting in an official capa city. ” Id . § 208.18(a)(1).
Perez

- Garcia argues that the BIA’s upholding of the IJ’s adverse credibility determination was not supported by substantial evidence and must be reversed. See Lya shchynska v. U.S. Att’y Gen. , 676 F.3d 962, 967 (11th Cir. 2012) ( “ Factual determinations, USCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 13 of 1814 Opinion of the Court 18

- 14307including credibility determinations, are reviewed under a substantial evidence standard, which provides that the decision can be reversed only if evidence compels a reasonable factfinder to find otherwise .” (internal quotation mark s omitted) )

. He further argues that the BIA erred in ruling that he failed to explain why he lacked corroborating evidence. Finally, he argues that the BIA applied the wrong legal standard for analyzing the state action prong of CAT. Anticipating a challe nge to his exhaustion of these issues before the BIA, Perez

- Garcia argues that he sufficiently raised them. He asserts that by arguing to the BIA that he had provided “credible, specific and detailed ” testimony, including by providing “dates, specific deta ils and locations,” AR at 161, he sufficiently challenged the adverse credibility determination

. Further, Perez

Garcia contends, he argued before the BIA that obtaining corroborating evidence “would have put him in extreme dange r,” so the BIA erred in ruling that he failed to explain the lack of corroborating evidence. I d. And, he argues, he sufficiently raised a challenge to the BIA’s state action analysis by arguing that torture by Nectari, a “corrupt police official” whom the Honduran government “pro tects , ” would be with the acquiescence of the Honduran government

. I d. at 162.Although not stringent, exhaustion requires that the petitioner “previously argued the core issue now on appeal before the BIA.” Indrawati v. U.S. Att’y Gen. , 779 F.3d 1284, 129 7 (11th Cir. 2015) ( internal quotation marks omitted). “Unadorned, conclusoUSCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 14 of 1818

- 14307 Opinion of the Court 15 ry statements do not satisfy this requirement.” Id. “Though exhaustion does not require a petitioner to use precise legal terminology or provide a well

- developed argument” in suppor t of his claims, “it does require that [he] provide information sufficient to enable the BIA to review and correct any errors below.” Id. ( internal quotation marks omitted, first alteration adopted). Except for purely legal questions, “the BIA cannot revie w and correct errors without the petitioner first providing [his] argument’s relevant factual underpinnings.” Id. at 1298. Further, merely identifying an issue to the BIA is insufficient to exhaust a petitioner’s claims, as the petitioner must also “set ou t any discrete arguments [that] he relies on in support of” those claims. Jeune v. U.S. Att’y Gen. , 810 F.3d 792, 800 (11th Cir. 2016).

W e lack jurisdiction over Perez

- Garcia’s arguments regarding the denial of CAT relief because he failed to exhaust the m before the BIA

. Although his brief to the BIA cursorily referenced the issues that he now raises, it did so either in a conclusory manner without substantive argument or without any discussion of the material facts on which he now relies. Unlike his arguments before us, his brief to the BIA did not identify any factual support to explain any purported inconsiste ncies in his testimony or why he could not corroborate his story regarding the warehouse incident. Further, merely identifying the issue of whether the assailant acted under the color of law was insufficient to exhaust the specific arguments that he now pr esents in his brief. Thus, we USCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 15 of 1816 Opinion of the Court 18

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dismiss Perez

- Garcia’s petition for review of the merits of his CAT claim

. B. Motion to Reopen Perez

- Garcia also challenges the BIA’s denial of his motion to reopen. He asserts

— and the government does not dispute

— that the BIA cor rectly determined that Levin’s performance before the IJ and BIA was deficient. But, he says, the BIA wrongly concluded that Levin’s deficient performance had not prejudiced him. Perez

- Garcia asserts that the BIA “ ignore[ ed his ] central argument”

— that Levi n’s failure to produce any corroborating evidence (or explain the lack of such evidence) led to the IJ’s adverse credibility determination and, therefore, its merits denial. No. 20

- 11381 Petitioner Br. at 46. We agree. “[W]hen a decision of . . . the BIA i s so lacking in reasonedconsideration and explanation that meaningful review is impossible, we have granted petitions for review, vacated agency decisions, and remanded for further proceedings.” Jeune , 810 F.3d at 803 (citing Indrawati , 779 F.3d at 1302 ) ; see Lin , 881 F.3d at 87 5 (applying the “reasoned consideration” standard to arguments on a motion to reopen). “When assessing whether a decision displays reasoned consideration, we look only to ensure that . . . the BIA considered the issues raised and announced [its] decision[] in terms sufficient to enable review.” Indrawati , 779 F.3d at 1302. “[O]ur reasoned

- c onsideration examination does not amount to a review for whether sufficient evidence supports the decision of the BIA.” Id. (alteration adopted) (internal quotation marks omitUSCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 16 of 1818

- 14307 Opinion of the Court 17 ted). “That is to say, when we remand for lack of reasoned consideration, it is n ot because we have reviewed the BIA’s decision and disagreed with its legal conclusions and factual findings.” Id. “Rather, we have determined that, given the facts and claims in the specific case before the

. . . BIA, the agency decision is so fundamental ly incomplete that a review of legal and factual determinations would be quixotic.” Id. “Our inquiry concerns process, not substance; we look to see that the agency heard and thought and not merely reacted.” Id. (internal quotation marks omitted). Among ot her reasons, we will conclude that an agency decision lacks reasoned consideration when it “provides justifications forits decision . . .which do not respond to any arguments in the record.” Jeune , 810 F.3d at 803. In making its adverse credibility determ ination , the IJ identified inconsistencies in Perez

- Garcia’s accounts of the February 2012 incident (and its aftermath) and Perez

- Garcia’s failure to provide corroborating evidence, a fact that “weighed heavily” in the IJ’s consideration of his credibility

. AR at 192. The BIA concluded that Levin was deficient in failing to obtain and providesuch corroborating evidence. But the BIA failed entirely to consider Perez

- Garcia’s argument that, had Levin produced corroborating evidence (or adequately explained i ts unavailability), the IJ’s analysis would have been fundamentally altered . Because the IJ bundled the presence or absence of corroborating evidence with
t he consistencies and inconsistencies in Perez

- Garcia’s testimony, Perez

- Garcia argued in his motion to reopen, the production of USCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 17 of 1818 Opinion of the Court 18

- 14307 corroborating evidence likely would have resulted in a finding that Perez

- Garcia was credible. Given a positive credibility determination, Perez

- Garcia further argued, it is reasonably probable that either the result before the IJ or before the BIA would have been different. Instead of addressing this argument, the BIA focused on its own determination s on appeal from the IJ’s denial of relief. But the BIA failed to account for Perez

- Garcia’s argumen t that its analysis likely would have been very different if the IJ had concluded that Perez

- Garcia was credible. The BIA was not tasked with conducting de novo review of fact

- finding; rather, it w as to review for clear error the IJ’s factual finding regarding credibility. Be cause the BIA failed to consider these arguments

— arguments that were central to Perez

- Garcia’s motion to reopen

— we grant the petition, vacate the BIA’s decision, and remand for further proceedings. See Jeune , 810 F.3d at 803; Indrawati , 779 F.3d at 1302. I V.For the foregoing reasons, we dismiss the petition for review through which Perez

- Garcia challenges the BIA’s affirmance of the IJ’s denial of CAT relief. We grant the petition for review of the BIA’s denial of Perez

- Garcia’s motion to reopen and reman d for further proceedings consistent with this opinion. PETITION DISMISSED; PETITION GRANTED. USCA11 Case: 18-14307 Date Filed: 01/04/2022 Page: 18 of 18