[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14054

____________________

SERGIO ELIAS LOPEZ MORALES, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A216-388-306

____________________

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2 Opinion of the Court 20-14054

Before WILSON, ROSENBAUM, Circuit Judges, and COVINGTON,∗District Judge.

WILSON, Circuit Judge:

Petitioner Sergio Lopez Morales, a Guatemalan national of 

indigenous Mayan heritage, seeks review of the Board of Immigration Appeals’ (BIA) final order affirming the Immigration Judge’s 

(IJ) denial of his application for asylum on account of racial persecution. Morales had applied for asylum under the Immigration and 

Nationality Act (INA) § 208(b)(1), 8 U.S.C. § 1158(b)(1), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and 

protection under the Convention Against Torture (CAT), 8 C.F.R. 

§ 208.16(c). On appeal, Morales argues that (1) the BIA failed to 

provide reasoned consideration on his request for asylum relief 

based on racial persecution (instead lumping his racial persecution 

claims with his claims based on his proposed social group), having 

adopted in large part the IJ’s determination making the same mistake, and (2) the IJ should have permitted him advance notice of 

the need for specific corroborating evidence to meet his burden of 

proof and an automatic continuance to provide that evidence after 

determining that his testimony was credible because 8 U.S.C. § 

1158(b)(1)(B)(ii) (2012) requires it. We deny Morales’s petition as 

to the first issue and dismiss Morales’s petition as to the second issue.

∗ Honorable Virginia M. Covington, United States District Judge for the Middle District of Florida, sitting by designation. 

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I.

Morales is a Guatemalan citizen who is ethnically and culturally Mam—an indigenous Mayan ethic group. When he applied 

for admission to the United States, Morales was seventeen years 

old and unaccompanied by his parents.

Morales left school at twelve, citing discriminatory bullying 

from his classmates and teachers. Subsequently, Morales looked for 

work, being repeatedly discriminated against before ultimately 

finding work at a farm near his home. Morales spent one year at 

the farm, owned by a man named Andres who repeatedly subjected him to verbal and physical abuse. Following one incident in 

which Morales collapsed and was beaten by Andres as a result, Morales decided to leave his job. However, Andres appeared at his 

home that evening, forced him to return, and confined him in a 

storage shed overnight as punishment. After releasing Morales 

from the shed the next day, Andres told Morales that if he tried to 

leave again, he would make him disappear and “[he] would only be 

another disappeared indigenous.” Morales reported the abuse to 

community leaders and police to no avail. Morales continued to 

work for Andres briefly until he could escape to the United States. 

Morales applied for admission to the United States on November 21, 2017, at the San Luis, Arizona Port of Entry. Pending 

the outcome of his removal proceedings, he was released on December 24, 2017, into the custody of his brother who lives in the 

United States. Morales applied for asylum and for withholding of 

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removal based on race, membership in a particular social group, 

and the torture convention. 

In his hearing before the IJ, Morales testified he is an indigenous Mayan and speaks Mam. He also testified that, because he believed that job discrimination would follow him throughout Guatemala and his former employer would not stop looking for him 

until he found and killed him, he and his mother decided he should 

relocate to the United States, rather than internally. On cross-examination, he explained that his mother had not submitted an affidavit because she only spoke and wrote in Mam. He did not know 

why he had not asked his siblings, two of which lived in the United 

States, to write affidavits for him. He clarified that he reported his 

former employer to community leaders and the police, but no written police report existed, and the police dismissed his complaint as 

“normal.” 

The IJ denied Morales’s claims for asylum, withholding of 

removal, and CAT relief. As relevant here, the IJ determined that 

Morales had failed to establish his burden of demonstrating a wellfounded fear of future persecution on account of a protected 

ground or any nexus to a basis for a finding of past persecution, for 

the purposes of asylum relief. The IJ labeled the conduct of Morales’s previous employer as merely a criminal act by a private actor. The IJ found Morales to be credible but that his testimony was 

“mostly conclusory and speculative and . . . lack[ed] any corroborating evidence that is required by the REAL ID Act of 2008 [sic]” 

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from any family, police, or local leaders.1 The IJ further stated that

his proposed social group of “Young Guatemalan and Mayan descendants who may be subject to discrimination, forced labor, and 

physical abuse” upon which he sought relief was overly broad, noting that a particular social group must exist independent of the 

harm. The IJ continued to find that internal relocation may be a 

reasonable alternative. 

Morales appealed to the BIA. In his brief, he argued that the 

IJ erred in denying his claims because the IJ failed to find a nexus 

between his persecution and his race and rejected his particular social group as overly broad. Morales noted that, in reaching a decision, the IJ had relied on the REAL ID Act of 20052, which placed 

the burden on the respondent to not only testify credibly but also 

to provide corroborating documentary evidence; but in any event, 

he argued that he had met this burden through credible testimony 

and supporting documents. Lastly, Morales argued that the IJ erred 

in finding that internal relocation was a reasonable alternative because he was persecuted on account of his race which was demonstrated to be ubiquitous in Guatemala.

1 The act to which the IJ referred is actually the REAL ID Act of 2005, which 

amended 8 U.S.C. 1158(b)(1)(B), the provision regarding the applicant’s burden of proof for demonstrating his or her eligibility for asylum and withholding of removal. See Pub.L. No. 109–13, 119 Stat. 302, § 101(h)(2).

2 Although Morales repeated the IJ’s error in referring to the Act as “the REAL

ID Act of 2008,” we substitute here the proper name of the act to which Morales intended to refer.

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On October 6, 2020, the BIA dismissed Morales’s appeal. It 

acknowledged that he sought relief on account of his Mayan race 

and membership in a particular social group of young Guatemalan 

and Mayan descendants subject to discrimination, forced labor, and 

physical abuse and that the IJ found him credible. However, the 

BIA rejected Morales’s particular social group as “impermissibly 

circular,” and therefore, not cognizable. Specifically, it noted that 

the social group was defined by the claimed persecution, namely

the harm he endured both in school and in seeking employment. It 

added that the additional characteristic of his race “d[id] not cure 

this fatal flaw.” The BIA also upheld the IJ’s finding that because 

Morales failed to satisfactorily corroborate the specific facts of his 

case, he failed to meet his burden of proof even though the IJ determined that his testimony was credible. It emphasized that his 

explanations concerning the absence of affidavits from his mother 

and siblings was insufficient to explain the lack of reasonably available corroborating evidence, noting that his mother was literate in 

Mam and he had offered no further explanations on appeal. He 

then timely filed this appeal.

II.

We review de novo our own jurisdiction. Jeune v. U.S. Att’y 

Gen., 810 F.3d 792, 799 (11th Cir. 2016). We review the BIA’s conclusions of law de novo and its factual findings under the “substantial evidence test.” Lopez v. U.S. Att’y Gen., 914 F.3d 1292, 1297 

(11th Cir. 2019). Claims that the BIA failed to give reasoned

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consideration to an issue or claims of legal error are questions of 

law. Jeune, 810 F.3d at 799. 

III.

First, we are “obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking.” Chacon-Botero v. 

U.S. Att’y Gen., 427 F.3d 954, 956 (11th Cir. 2005) (per curiam) (internal quotation marks omitted). We lack jurisdiction to consider a 

claim raised in a petition for review unless the petitioner has exhausted his administrative remedies with respect to those claims. 

See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); see also AmayaArtunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250–51 (11th Cir. 

2006) (per curiam) (holding that the exhaustion requirement was 

not satisfied, even after the BIA’s sua sponte exhaustion of the issue, where petitioner failed to challenge the determination in both 

his notice of appeal and brief before the BIA). Before we may review Morales’s appeal on the merits, we must be satisfied that his 

claims are exhausted, which is necessary for this court to have jurisdiction over his claims.

Section 1252(d)(1)3 provides that “[a] court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right.” The very aim

of the exhaustion doctrine is “that the petitioner provide[s] information sufficient to enable the BIA to review and correct any errors 

3 8 U.S.C. § 1252(d)(1).

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below.” Jeune, 810 F.3d at 800 (internal quotation marks omitted). 

Unadorned conclusory statements and passing references to an issue do not satisfy the exhaustion requirement. Id. Instead, the petitioner must raise both the core issue and set out any discrete arguments he relies on in support of that claim before the BIA. Id.; 

see, e.g., Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1048 n.4 (11th 

Cir. 2009) (per curiam) (dismissing as unexhausted petitioner’s specific argument that the IJ had engaged in speculation when discrediting his testimony, where the petitioner had contested only the 

broader adverse-credibility finding before the BIA).

Although the parties only brief exhaustion with respect to

Morales’s reasoned consideration claim, we raise sua sponte the additional issue of whether Morales exhausted his second claim about

whether he was entitled to advance notice of the IJ’s need for specific corroborating evidence. We provide analysis to each issue in 

turn.

A.

The first issue that Morales raises on appeal is that the BIA 

failed to provide reasoned consideration to his claim seeking asylum based on racial persecution, as distinct from his claim seeking 

the same based on his proposed social group. The government contends that Morales failed to exhaust this claim below. We find, 

however, that this claim has been sufficiently exhausted.

Morales’s BIA brief focuses on rebutting the IJ’s conclusion 

that Morales had not demonstrated the nexus between his 

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persecution and his membership in his particular social group. Instead, he argued that the IJ erred because he was entitled to asylum 

“on account of race and membership in a particular social group.” 

In ruling on Morales’s appeal, the BIA noted that his proposed social group was not cognizable because it was “impermissibly circular,” adding that the additional characteristic of race that he added 

“does not cure this fatal flaw.” The BIA’s reasoning here makes it 

clear that it understood Morales to be arguing race as a distinct basis for relief and was thus able to review the IJ’s decision for error—

this is all that the exhaustion doctrine requires. Jeune, 801 F.3d at 

800.

In its decision, the BIA relied on its own reasoning to deny 

Morales’s racial persecution claims and did not expressly adopt the 

IJ’s findings. Therefore, we review the BIA’s decision as the final 

judgment. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 

2016) (per curiam). And it is in fact the BIA’s alleged lack of reasoned consideration on his racial persecution claim that Morales 

appeals here. We thus maintain jurisdiction to review Morales’s argument that the BIA failed to give reasoned consideration because 

a petitioner logically cannot raise such an argument before the BIA 

has decided. See Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1299

(11th Cir. 2015).

B.

Because it is possible that we lack subject-matter jurisdiction 

over Morales’s second claim, we must sua sponte review whether 

we have jurisdiction over it. Chacon-Botero, 427 F.3d at 956. The 

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question here is whether Morales has exhausted his claim about

whether 8 U.S.C. § 1158(b)(1)(B)(ii) requires the IJ to identify the 

specific evidence necessary to meet the applicant's burden of proof 

and to provide an automatic continuance for the applicant to obtain that evidence. Upon our review, we find that he has not and 

thus we lack jurisdiction.

The asylum applicant must establish eligibility for asylum by 

offering “credible, direct, and specific evidence in the record.” 

Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (internal quotation marks omitted). An applicant’s testimony, if credible, may be found alone sufficient to meet his burden for asylum. 

8 U.S.C. § 1158(b)(1)(B)(ii). However, “[w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot 

reasonably obtain the evidence.” Id. An applicant’s failure to corroborate his testimony can be fatal to his asylum application. 

Forgue, 401 F.3d at 1287; see also Matter of J-Y-C-, 24 I. & N. Dec. 

260, 263 (BIA 2007) (noting that corroborating evidence is particularly important to support material facts central to an applicant’s 

claim, and the absence of such corroborating evidence can lead to 

a finding that an applicant has failed to meet his burden). “The 

weaker an applicant’s testimony, however, the greater the need for 

corroborative evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 

1201 (11th Cir. 2005).

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An examination of Morales’s BIA brief makes clear that he

did not raise his corroborating evidence claim at any point before 

the BIA. Although the exhaustion doctrine is intended to ensure 

“that the petitioner provide[s] information sufficient to enable the 

BIA to review and correct any errors below,” Jeune, 810 F.3d at 800 

(internal quotation marks omitted), Morales clearly did not do so. 

This is partially evidenced by the BIA not addressing the issue at 

all. His sole reference to corroborating evidence in his BIA brief is 

his statement, without further argument, that the IJ relied on the 

REAL ID Act of 2008, which placed the burden on the respondent 

to not only testify credibly but also to provide corroborating documentary evidence. But Morales did not address the implications of 

the IJ relying on the REAL ID Act of 2005, not even to argue that 

the IJ erred in doing so. But even if Morales had adequately raised 

the issue, the exhaustion doctrine requires something more. Morales must not just merely raise the issue; he must argue it. 

Shkambi, 584 F.3d at 1048 n.4. And because he did not do that before the BIA, he has not exhausted the second claim.

It is important to note that § 1252(d)(1) provides that exhaustion applies only to those remedies “available to the alien as of 

right.” As such, we have indicated that the exhaustion doctrine may 

not apply to claims which the agency lacks the power to adjudicate. 

See, e.g., Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 868 (11th

Cir. 2018) (holding that the plaintiff was required to exhaust his 

claims before raising them before our court because “[e]ach of his 

claims could have been addressed by the BIA” and “none . . . 

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raise[d] a larger challenge to the immigration process beyond the 

power of the BIA to address”). In Booth v. Churner, when deciding 

the meaning of “administrative remedies . . . available,” the Supreme Court acknowledged that an exhaustion requirement would 

necessitate at least that “the administrative process has authority to 

take some action in response to a complaint.” 532 U.S. 731, 736 

(2001). After all, “[w]ithout the possibility of some relief, the administrative officers would presumably have no authority to act on 

the subject of the complaint, leaving the [complainant] with nothing to exhaust.” Id. at 736 n.4.

But there is no indication that the BIA lacks the power to 

adjudicate Morales’s claim. In fact, the BIA has held on-point that 

all that 8 U.S.C. § 1158(b)(1)(B)(ii) entitles an applicant to, after the 

IJ finds that certain evidence should have been submitted, is an opportunity to explain why he could not reasonably obtain the evidence. Matter of L-A-C-, 26 I. & N. Dec. 516, 522 (BIA 2015). That

the BIA issued a decision directly adverse to Morales’s preferred 

reading of the provision demonstrates the BIA’s power to adjudicate such claims.

Although some other courts have accepted the argument 

that a remedy is not “available to the alien as of right” where the 

BIA’s precedent precludes relief for an applicant’s substantive 

claim, see, e.g., Sun v. Ashcroft, 370 F.3d 932, 941–42 (9th Cir.

2004), we have explicitly rejected this notion. In Sundar v. INS, 328 

F.3d 1320, 1325 (11th Cir. 2003), we found that the applicant “may 

not bypass the BIA simply because he thinks it will be 

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unsympathetic to his claim,” but “the BIA could have accepted [his] 

interpretation and reversed its [prior] decision . . . . ” So, because 

the applicant did not appeal the IJ’s decision to the BIA on those 

grounds, we found that he thus “deprived [the BIA] of the opportunity to discover and correct its own error.” Id. (internal quotation 

marks omitted) (alterations adopted). 

We have held before that, when we are dealing with § 

1252(d)(1)’s exhaustion requirement, “we are dealing with a statutory exhaustion requirement, and we will not read futility or other 

exceptions into [them] where Congress has provided otherwise.” 

Id. at 1326 (internal quotation marks omitted). And we have held § 

1252(d)(1)’s statutory exhaustion requirement to be jurisdictional, 

thus “we lack jurisdiction to consider claims that have not been 

raised before the BIA.” Id. at 1323. 

In sum, because Morales had the opportunity to exhaust his 

claim before the BIA but did not, we lack jurisdiction to address his 

claim on the merits.4

4 But we note that the substance of Morales’s claim remains an open question 

in the Eleventh Circuit upon which other circuits split. Compare Ren v. 

Holder, 648 F.3d 1079, 1091–92 (9th Cir. 2011) (holding that the plain language 

of the statute shows that the applicant was entitled to notice and an opportunity to corroborate), and Saravia v. U.S. Att’y Gen., 905 F.3d 729, 737–38 (3d 

Cir. 2018) (finding that applicant was so entitled because, logically, “we cannot 

have meaningful judicial review without giving the applicant notice and opportunity to corroborate”), with Rapheal v. Mukasey, 533 F.3d 521, 530 (7th 

Cir. 2008) (finding that applicant was not entitled under the statute because to 

find otherwise “would add to the already overburdened resources of the DHS, 

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IV.

Because Morales adequately exhausted his reasoned-consideration claim, we review the claim on the merits. The BIA relied 

on its own reasoning to deny the claim; therefore, we review the 

BIA’s decision as the final judgment. Gonzalez, 820 F.3d at 403. In 

a reasoned-consideration analysis, we ask whether the BIA “consider[ed] the issues raised and announce[ed] [sic] its decision in 

terms sufficient to enable a reviewing court to perceive that it has 

heard and thought and not merely reacted.” Jeune, 801 F.3d at 803

(internal quotation marks omitted). We do not require that the BIA 

specifically address each of the applicant’s claims. Shkambi, 584 

F.3d at 1048. “Ultimately, [the BIA] does not give reasoned consideration to a claim when it misstates the contents of the record, fails 

to adequately explain its rejection of logical conclusions, or provides justifications for its decision which are unreasonable and 

which do not respond to any arguments in the record.” Jeune, 810 

F.3d at 803.

Morales’s argument proceeds as follows. Morales stated 

clearly both before the IJ and the BIA that he seeks asylum relief 

and such an approach would seem imprudent where the law clearly notifies 

aliens of the importance of corroborative evidence.”), and Wei Sun v. Sessions,

883 F.3d 23, 29–30 (2d Cir. 2018) (finding that the applicant was not so entitled 

because the BIA’s contrary construction of the statute in Matter of L-A-C- was

owed deference under Chevron U.S.A. Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984), given that the court found the statute to be

ambiguous and the BIA’s interpretation to be reasonable).

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based on persecution due to his race and his social group, given 

that he is a “[y]oung Guatemalan and Mayan descendant[] who 

may be subject to discrimination, forced labor, and physical abuse.”

However, so his argument goes, the BIA recognized his claim only 

insofar as he invoked his social group as a basis for asylum—it rejected the social group as “impermissibly circular” in its decision. 

But Morales argues that his race is an independent basis for his application and that the BIA repeatedly acknowledged that he seeks 

asylum also for racial persecution yet it failed to reach a decision 

on that ground. Further, on Morales’s view, these facts show that 

the IJ did not “misstate[] the contents of the record” but rather entirely forgot to treat his race claim as distinct from his social group 

claim. Jeune, 810 F.3d at 803. Then, he maintains, the BIA, guided 

by the IJ’s error, compounded the issue. Thus, Morales asserts that 

the BIA’s failure to determine whether he was entitled to asylum 

on account of his race overlooked an entire facet of his claim, which 

is a lack of reasoned consideration warranting remand. Tan v. U.S. 

Atty. Gen., 446 F.3d 1369, 1375–76 (11th Cir. 2006). In effect, Morales argues that the BIA erroneously condensed its analysis and 

considered only the social group claim when he also made a distinct racial claim.

We find that the BIA provided reasoned consideration to 

Morales’s asylum claim based on racial persecution when it agreed 

with and expanded on the IJ’s findings. This is true for two reasons. 

First, a review of the decision shows that the BIA did not 

misstate the contents of the record, fail to adequately explain its 

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rejection of logical conclusions, or provide an unreasonable justification for its decision, which, when present, would tend to suggest

a failure to provide reasoned consideration. Jeune, 810 F.3d at 803.

And Morales does not even argue that the BIA here demonstrated 

any of those factors but insisted that the BIA “forgot” to make a 

separate ruling on his racial discrimination claim. But the BIA did 

not forget the racial persecution claim because although brief, the 

BIA clearly acknowledged and adjudicated the claim. 

Second, the BIA, in upholding and discussing the IJ’s findings, addressed Morales’s claim to the extent argued, though it was 

not even required to address it specifically. Shkambi, 584 F.3d at 

1048. After all, the BIA specifically found that the “addition of the 

characteristic of the respondent’s race does not cure” the “impermissibl[e] circular[ity]” of Morales’s proposed social group. Because Morales did not distinguish his arguments about his race and 

social group, the BIA addressed Morales’s claim to the extent it

could in stating that his race could not cure the impermissible circularity of his proposed social group. Although Morales argues that 

the decision concerning his racial group as a basis for asylum is 

“something we cannot tell was decided . . . [and thus] this must be 

re-decided by the IJ,” we find that this decision was sufficient to

show that the BIA considered this claim and did so in a way allowing for effective review. Jeune, 801 F.3d at 803.

Observing no indication that the BIA failed to provide reasoned consideration or make adequate findings, we find that the 

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BIA gave reasoned consideration to Morales’s racial persecution 

claim.

V.

Because our review of the BIA’s decision makes clear that it 

provided reasoned consideration to Morales’s racial persecution 

claim for asylum, we deny the petition for review as to Morales’s 

first claim. We dismiss the rest of the petition because Morales 

failed to exhaust his second claim that he was entitled under 8 

U.S.C. § 1158(b)(1)(B)(ii) to advance notice of the need for specific 

corroborating evidence to meet his burden of proof and an automatic continuance to provide that evidence.

 DENIED IN PART and DISMISSED IN PART. 

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