# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 60767

**Bertha Maria Maradiaga**

**- Sandeal; Erick Daniel**  **Ramires**

**- Maradiaga; Yeri Josue Ramires** 

**- Maradiaga;**  **Edwin Sady Ramirez** 

**- Maradiaga; Johan Danilo Ramirez** 

**** **Maradiaga,**

Petitioners **,**

versus
**Merrick Garland, U.S. Attorney General,**
Respondent

**.**

Petition for Review from the Board of Immigration Appeals Agency No. A206 783 021 Agency No. A206 783 022 Agency No. A206 783 023 Agency No. A206 783 024 Agency No. A206 783 025

Before **Richman,** Chief Judge **,** and **Wiener** and **Willett,** Circuit Judges

**.** United States Court of Appeals Fifth Circuit 

### FILED July 27, 2022 Lyle W. Cayce Clerk Case: 20-60767 Document: 00516408912 Page: 1 Date Filed: 07/27/2022No. 20

- 60767

2 **Per Curiam :**  * Bertha Maria Maradiaga

- Sandeal and her four children arrived in the United States without documentation. They applied for asylum, withholding of removal, and protection under the Convention Against Torture ( **CAT** ). The Immigration Judge ( **IJ** ) denied the ir a pplication and the Board of Immigration Appeals ( **BIA** ) dismissed the appeal. Maradiaga

- Sandeal did not contest several dispositive findings of the **IJ** at the **BIA**

. W e lack jurisdiction to review those findings and deny her petition.

I

The facts of this petition are generally not in dispute. Maradiaga

Sandeal and her four children fled Honduras after being kidnapped and extorted by gang members because the family had failed to pay a “war tax” demanded by the gang. One of her children had previously been kidnapped by gang members. The gang had cut off the child’s pinky finger and mailed it to the family with a note demanding payment of the war tax. The family was also threatened with death on several occasions when they failed to pay the gang

. Maradiaga

- Sandeal and her children

— as riders on her application

— arrived in the United States without documentation

. They claimed to have been persecuted because of their political opinion and membership in a particular social group , which, on appeal, they identify as family members of their father . The **IJ** determined that the gang’s various death threats, when combined with the kidnappings and mutilation of the child’s finger, amounted to persecution. The **IJ** denied relief, however, for several reasons.
F irst, the **IJ** determined th at the proposed particular social groups were not cognizable. Next, the **IJ** found that Maradiaga

- Sandeal had failed to

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. Case: 20-60767 Document: 00516408912 Page: 2 Date Filed: 07/27/2022No. 20

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3 demonstrate a nexus between her harm and a protected ground; rather, the **IJ** found, she was harmed as a result o f simple criminal extortion. The **IJ** also denied relief because Maradiaga

- Sandeal had failed to establish that the Honduran government was unwilling or unable to assist her with the gang

. Additionally, t he **IJ** denied relief because Maradiaga

- Sandeal had fa iled to establish that she was unable to relocate internally within Honduras . Finally, the **IJ** determined that Maradiaga

- Sandeal was ineligible for relief under withholding of removal or **CAT**

. Maradiaga

- Sandeal appealed to the **BIA**

. She challenged only the **IJ** ’s determination regarding her claim to be a member of a particular social group based on her kinship to a particular individual

. She did not reference her other proposed particular social groups or the claimed political opinion. She made a single reference to the **IJ** ’s findings regarding internal relocation and the Honduran government’s ability to assist her , but she did not cite caselaw or make any argument from the record as to why the **IJ** ’s fin dings or conclusions were err oneous . The **BIA** dismissed Maradiaga

- Sandeal’s appeal. The Board determined that her particular social group based on kinship was not cognizable under this court’s jurisprudence. Further, it determined that the harms she suff ered were simple criminal extortion untethered to any protected ground. It also concluded that Maradiaga

Sandeal had waived any argument concerning internal relocation or the ability of the Honduran government to assist her because she had not appealed on either of those grounds

. T he **BIA** determined that she had forfeit ed any arguments for relief under **CAT** for the same reason

. 1

1 The **BIA** also addressed Maradiaga

- Sandeal’s request for voluntary departure, stating that she had not appealed the **IJ** ’s denial of that request. Nor does she challenge that denial in her petition for review. It is not before this court. Case: 20-60767 Document: 00516408912 Page: 3 Date Filed: 07/27/2022No. 20

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4 Before this court, Maradiaga

- Sandeal repeated her challenge to the **IJ** and **BIA** ’s determination regarding the cognizability of her argument that she is a member of a particular social group based on kinship. She makes a single passing reference to the **IJ** ’s determinations regarding internal relocation and the Honduran government’s ability to assist her . She d id not make any argument concerning her eligibility for **CAT** relief

. II We must first consider our jurisdiction. Generally, we do not have jurisdiction to review claims that petitioners have not first raised to the BIA. 2 The **BIA** held that Maradiaga

- Sandeal had not appealed the **IJ** ’s determinations regarding the possibility of internal relocation or the Honduran government’s willingness or ability to help her as they relate to her claim for asylum . It deemed those arguments forfeited

. We therefore lack jurisdiction to review the **BIA** ’s determinations regarding internal relocation or the Honduran gov ernment’s ability to assist Maradiaga

- Sandeal ; f or the same reason, we lack jurisdiction to review any arguments concerning relief under **CAT** and claims regarding other particular social groups and an alleged political opinion, which were not pursued before the **BIA**

. Even i f we had jurisdiction to review these claims, Maradiaga

- Sandeal has failed to brief them adequately before our court. W e would therefore deem them forfeited 3 had she not abandoned them.

2 See, e.g. , Ramos

- Torres v. Holder , 637 F.3d 544, 547 (5th Cir. 2011) (“Failure to exhaust is a jurisdictional bar.” ( quoting Claudio v. Holder , 601 F.3d 316, 317 (5th Cir. 2010 ) ) ) ; see also, e.g. , Mirza v. Garland , 996 F.3d 747, 753 (5th Cir. 2021) (observing that “petitioners ‘fail to exhaust their administrative remedies as to an issue if they do not first raise the issue before the **BIA** , either on direct appeal or in a motion to reopen’” ( quoting Omari v. Holder , 562 F.3d 314, 318 (5th Cir. 2009 ) ) ).

3 See Rollins v. Home Depot USA , 8 F.4th 393, 397 & n.1 (5th Cir. 2021). Case: 20-60767 Document: 00516408912 Page: 4 Date Filed: 07/27/2022No. 20

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5 III To be eligible for asylum, an applicant must prove that s he is unwilling or unable to return to her home country “because of persecution or a well

founded fear of persecution on account of race, religion, nationality, membership in a particular social grou p , or political opinion.” 4 An alien seeking withholding of removal must demonstrate a “clear probability of persecution ” on one of the aforementioned grounds, which is a higher standard than the “well

- founded fear of persecution” required for asylum. 5

“ An applicant does not have a well

- founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant’s country

. . . .” 6 Moreover, “in cases in which the persecutor

. . . is a private actor, there shall be a presumption that internal relocation would be reasonable.” 7 Additionally, i f the persecutors are not government actors, the applicant “ must also establish that the authorities were ‘unable or unwilling to control’ [the persecutors].” 8 Maradiaga

- Sandeal does not contest that her persecutors were not government actors. She was required to prove that she could not relocate

4 Sharma v. Holder , 729 F.3d 407, 4 11 (5th Cir. 2013) (quoting 8 U.S.C. § 1101(a)(42)(A)); accord 8 U.S.C. § 1158(b)(1).

5 Revencu v. Sessions , 895 F.3d 396 , 402 (5th Cir. 2018) (internal quotation marks and citations omitted).

6 8 C.F.R. § 1208.13(b)(2) (ii); see also 8 C.F.R . § 1208.13(b)(3)(i) (“In cases in which the applicant has not established past persecution, the applicant shall bear the burden of establishing that it would not be reasonable for him or her to relocate

. . . .”); Zhang v. Gonzales , 432 F.3d 339, 344 (5th Cir. 2005) (“To establish a well

- founded fear of future persecution, an alien must demonstrate a subjective fear of persecution, and that fear must be objectively reasonable. ” ( quoting Zhao v. Gonzales , 404 F.3d 295, 307 (5th Cir. 2005) ) ).

7 8 C.F.R. § 12 08.13(b)(3)(iii).

8 Sanchez

- Amador v. Garland , 30 F.4th 529, 533 (5th Cir. 2022) (quoting Tesfamichael v. Gonzales , 469 F.3d 109, 113 (5th Cir. 2006)). Case: 20-60767 Document: 00516408912 Page: 5 Date Filed: 07/27/2022No. 20

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6 within Honduras, and she also had to prove that the Honduran government was unwilling or unable to control the persec utors

. 9 The **IJ** made clear in her decision that she would have denied relief on those alternative grounds. Maradiaga

- Sandea l failed to address these dispositive holdings before the
**BIA** (or this court) , so we lack jurisdiction to review them. T he fact that we cannot review those elements of the **IJ** ’s decision is dispositive of her appeal.

We do not reach Maradiaga

- Sandeal ’s claim for withholding of removal

. 10 She did not raise a **CAT** claim before this court, but we would lack jurisdiction to revi ew it if she had.

* * *

W e lack jurisdiction to review dispositive portions of the **IJ** ’s decision

. W e **DENY** the petition for review.

9 See 8 C.F.R. §§ 1208.13(b)(2), (3); Sanchez

- Amador , 30 F.4th at 533.

10 See Sanchez

- Amador , 30 F.4th at 531 n.1 (“[B]ecause [the petitioner] has not carried her burden as to asylum, she cannot be entitled to relief on withholding of removal grounds either.”). Case: 20-60767 Document: 00516408912 Page: 6 Date Filed: 07/27/2022