[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-11504

Non-Argument Calendar

________________________

Agency No. A205-415-314

JUANA YESSENIA JUAN FRANCISCO, 

 Petitioner,

 versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(March 28, 2019)

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Before TJOFLAT, WILLIAM PRYOR and GRANT, Circuit Judges.

PER CURIAM: 

Juana Yessenia Juan Francisco seeks review of the Board of Immigration 

Appeal’s (“BIA”) order reversing the Immigration Judge’s (“IJ”) decision granting 

her application for asylum and withholding of removal. She now petitions this 

Court for review, and we affirm the BIA’s reversal of the IJ’s decision.

Juan Francisco makes two arguments on appeal. First, she argues that the 

BIA “abused its authority by reviewing de novo the IJ’s factual findings . . . instead 

of applying the proper clear error standard.” Second, she argues that the harm she 

suffered in Guatemala was on account of her membership in a particular social 

group.1

 We address these arguments in turn. 

I.

The BIA must review the factual findings of the IJ for clear error. 8 C.F.R. 

§ 1003.1(d)(3); Zhou Hua Zhu v. U.S. Attorney Gen., 703 F.3d 1303, 1314 (11th 

Cir. 2013). Under clear error review, the “BIA must find that, on balance, the 

weight of the evidence so strongly militates against the IJ’s finding that the BIA ‘is 

left with the definite and firm conviction that a mistake has been committed.’” 

 1 The government argues that Juan Francisco has waived this argument by not making it 

in her initial brief. While it is true that Juan Francisco did not make this argument separately 

from her argument that the BIA applied the wrong standard of review, the relief she requested—

reinstatement of the IJ’s decision—was based on it. In any event, this argument fails for the 

reasons explained below. 

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Zhou Hua Zhu, 703 F.3d at 1315 (citation omitted). “A factfinding may not be 

overturned simply because the Board would have weighed the evidence differently 

or decided the facts differently had it been the factfinder.” Id. (citation omitted). 

Juan Francisco argues that the BIA failed to “articulate a factual basis that 

could support [its] conclusion,” and instead “focused the basis for its reversal on 

the IJ’s supposed reliance on Matter of A-R-C-G-.” It’s true that the BIA criticized 

the IJ’s supposed reliance on Matter of A-R-C-G-.

2 It is also true, as Juan 

Francisco argues, that the IJ did not in fact rely on Matter of A-R-C-G-. That said, 

it’s unclear why the IJ brought up Matter of A-R-C-G- in the first place.3

 Whatever 

the reason, the BIA’s reversal of the IJ wasn’t based on the IJ’s supposed reliance 

on Matter of A-R-C-G-. Rather, the BIA concluded that there was no record 

evidence to support the IJ’s finding of a nexus between Juan Francisco’s harm and 

a protected ground. Whether that conclusion was correct is a question we answer 

below. But as for the standard, the BIA reviewed for clear error. 

 2 26 I. & N. Dec. 388 (B.I.A. 2014). 

3 The IJ’s analysis and application of Matter of A-R-C-G-, such as it was, went like this: 

While the facts differ from Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 

2014), which has to do with a female not being able to leave a relationship in 

Guatemala, the violence that was described in A-R-C-G is very similar to that 

referred to in Matter of R-A-, 22 I&N Dec. 906 (A.G. 2001). Going through he 

various remands, concluding in 24 I&N Dec. 629 (A.G. 2008). [sic] The Court 

finds that the respondent has suffered from this persecution in the past, and finds 

that past persecution has occurred. 

While it appears inaccurate to say that the IJ relied on Matter of A-R-C-G-, we don’t fault the 

BIA for thinking as much. 

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II.

The Attorney General or the Secretary of the Department of Homeland 

Security has discretion to grant asylum to an alien who meets the Immigration and 

Nationality Act’s definition of “refugee.” 8 U.S.C. § 1158(b)(1)(A). A “refugee” 

is

any person who is outside any country of such person’s nationality or, 

in the case of a person having no nationality, is outside any country in 

which such person last habitually resided, and who is unable or 

unwilling to return to, and is unable or unwilling to avail himself or 

herself of the protection of, that country because of persecution or a 

well-founded fear of persecution on account of race, religion, 

nationality, membership in a particular social group, or political 

opinion.

Id. § 1101(a)(42)(A). The asylum applicant has the burden of proving “refugee” 

status. Id. § 1158(b)(1)(B)(i). To satisfy this burden, the alien must show (1) past 

persecution on account of a statutorily protected ground or (2) a well-founded fear 

that the statutorily protected ground will cause future persecution. 8 C.F.R.

§ 208.13(b).

To show a nexus between the persecution and a protected ground, the 

applicant must prove that one of the protected grounds “was or will be at least one 

central reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i). The nexus 

requirement is not satisfied when the applicant merely shows that he or she was 

subjected to acts of private violence or criminal activity. See Ruiz v. U.S. Attorney

Gen., 440 F.3d 1247, 1258 (11th Cir. 2006) (per curiam) (citation omitted).

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The BIA reversed the IJ’s finding that Juan Francisco demonstrated a nexus 

between her alleged persecution and her membership in “one of the enumerated 

bases.”4

 Reviewing for clear error, the BIA concluded that there was no record 

evidence supporting the IJ’s conclusion. Our independent review of the record 

yields the same conclusion: though the harm Juan Francisco suffered was

admittedly awful, it does not appear that she suffered it on account of her race or 

membership in a social group. The IJ’s conclusion to the contrary was clearly 

erroneous. 

Juan Francisco testified at the IJ hearing that she was raped by a bus driver. 

When asked by the IJ whether she knew why the bus driver raped her, she said “I 

don’t know now. What happened was I was the last person to stay on the bus.” 

When asked by government counsel why the bus driver raped her, Juan Francisco 

answered again, “I don’t know. I don’t know the reason why he harmed me that 

way.” Later in the hearing, Juan Francisco’s counsel even admitted that “the [bus 

driver’s] crime does not fall under one of the five enumerated grounds of asylum.” 

Far from “overrid[ing] or disregard[ing] evidence in the record” or relying “simply

on its own interpretation of the facts,” Matter of A-B-, 27 I. & N. Dec. 316, 341

 4 The IJ was not specific about which of the protected grounds—or “enumerated 

bases”—supported his decision. But he did mention that “racial intolerance remains rampant in 

Guatemala, particularly in [Juan Francisco’s] area” and that her physical appearance “puts her in 

a categorization that she could be socially distinct,” so we assume the IJ concluded that she was 

persecuted on account of her race or membership in a particular social group. 

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(A.G. 2018) (citation omitted), the BIA carefully reviewed the record and found 

that no evidence supported the IJ’s decision.

III.

The BIA reviewed the IJ’s decision for clear error. It concluded that the IJ 

erred by finding that Juan Francisco was persecuted based on her race or 

membership in a specific social group. The BIA was correct, so we accordingly 

affirm its decision and deny Juan Francisco’s asylum petition.5

PETITION DENIED.

 5 Juan Francisco also petitioned for withholding of removal under 8 C.F.R. § 208.16(b). 

However, because she failed to satisfy the evidentiary standard for asylum, her withholding-ofremoval claim necessarily fails. D-Muhumed v. U.S. Attorney Gen., 388 F.3d 814, 819 (11th Cir. 

2004) (noting that the standard for withholding of removal is “more stringent than the ‘wellfounded fear’ standard for asylum”) (citation omitted). 

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