United States Court of Appeals

for the Fifth Circuit

No. 19-60355

Leon Santos-Zacaria, also known as Leon SantosSacarias, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the 

Board of Immigration Appeals

BIA No. A098 372 949

Before Owen, Chief Judge, and Clement and Higginson, Circuit 

Judges.

Priscilla R. Owen, Chief Judge:

Leon Santos-Zacaria (Santos), a native and citizen of Guatemala,

petitions for review of the Board of Immigration Appeals’s (BIA’s) decision 

denying her application for withholding of removal and for relief under the 

Convention Against Torture (CAT). We deny in part and dismiss in part 

for lack of jurisdiction.

United States Court of Appeals

Fifth Circuit

FILED

January 10, 2022

Lyle W. Cayce

Clerk

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I

Santos, who is a transgender woman and is attracted to men, alleged 

that she was sexually assaulted by a neighbor in Guatemala at the age of 12 

for being gay and asserted that she was likely to face persecution if she 

returned to Guatemala due to her sexual orientation and gender identity. The 

immigration judge (IJ) denied her application for withholding of removal, 

concluding that Santos’s prior assault was insufficient to establish past 

persecution. The IJ also denied Santos’s claim for relief under the CAT. 

Santos appealed to the BIA.

The BIAdismissed her appeal. First, the BIA concluded that Santos’s 

allegation of sexual assault was sufficient to establish past persecution on 

account of membership in a particular social group. Consequently, Santos 

was entitled to a presumption of future persecution. However, the BIA ruled 

that the government had rebutted the presumption. The BIA also affirmed 

the IJ’s ruling that Santos had not established eligibility for relief under the 

CAT. Finally, the BIA rejected an argument that the IJ ignored or failed to 

consider relevant evidence. Santos filed a timely petition for review.

II

Santos contests the BIA’s decision that she is not eligible for 

withholding of removal. Whether an applicant is eligible for withholding of 

removal is a factual determination that this court reviews under the 

substantial evidence standard.1

 “The substantial evidence standard requires 

only that the BIA’s decision be supported by record evidence and be 

substantially reasonable.”2 “[R]eversal is improper unless we decide ‘not 

1 Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).

2 Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002).

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only that the evidence supports a contrary conclusion, but [also] that the 

evidence compels it.’”3

“To be eligible for withholding of removal, an applicant must 

demonstrate a ‘clear probability’ of persecution upon return.”4 “A clear 

probability means that it is more likely than not that the applicant’s life or 

freedom would be threatened by persecution on account of either h[er] race, 

religion, nationality, membership in a particular social group, or political 

opinion.”5

 If an applicant proves past persecution, she is entitled to a 

rebuttable presumption of future persecution.6

A

As an initial matter, Santos argues for the first time on appeal that the 

BIA engaged in impermissible factfinding. This court “may review a final 

order of removal only if . . . the alien has exhausted all administrative 

remedies available to the alien as of right.”7

 “[F]ailure to exhaust an issue 

deprives this court of jurisdiction over that issue.”8 “[A]llegations of 

impermissible factfinding by the BIA must first be brought before the BIA in 

a motion for reconsideration to satisfy exhaustion.”9 Accordingly, because 

3 Zhang, 432 F.3d at 344 (alteration in original) (quoting Zhao v. Gonzales, 404 F.3d 

295, 306 (5th Cir. 2005)).

4 Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (per curiam) (quoting Faddoul 

v. INS, 37 F.3d 185, 188 (5th Cir. 1994)).

5 Id.

6 8 C.F.R. § 1208.16(b)(1)(i).

7 8 U.S.C. § 1252(d)(1).

8 Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 2009).

9 Id. at 320.

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Santos did not present this argument before the BIA in a motion for 

reconsideration, it is unexhausted, and we lack jurisdiction to consider it.

Judge Higginson’s dissenting opinion contends that this court 

has jurisdiction because of a request for potential additional factfinding in 

Santos’s brief appealing the IJ’s decision.10 That request occurred before the 

BIA ruled on Santos’s claims. It is unrelated to the factfinding Santos asserts

the BIA made. The first objection she made to the BIA’s alleged factfinding 

was in her brief to this court. Because this objection was not made to the BIA, 

Santos has not met the exhaustion requirement.

B

Next, Santos asserts that the BIA’s determination that the 

government rebutted the presumption of future persecution is not supported 

by substantial evidence. “The government may rebut th[e] presumption [of 

future persecution] by demonstrating that there has been a fundamental 

change in the circumstances of the country of removal, or that the applicant 

could avoid a future threat to h[er] life or freedom by reasonably relocating 

to a different part of the country of removal.”11 Santos further argues that 

the BIA erred by “lumping together Ms. Santos’ claim as a homosexual 

Guatemalan and Ms. Santos’ claim as a transgender Guatemalan.”

The BIA accepted Santos’s “proposed particular social groups, 

described as ‘gay’ and ‘transgender,’” but nevertheless found that “the 

presumption of future persecution on account of [Santos’s] homosexuality 

or transgender identity has been rebutted in this case.” In reaching its 

conclusion, the BIA found that Santos acknowledged that she “would be able 

10 Post at 8 (citing ROA.29).

11 Arif v. Mukasey, 509 F.3d 677, 681 (5th Cir. 2007) (per curiam).

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to safely relocate within Guatemala.” Santos argues that the BIA 

mischaracterized her statements and that she never stated that she could 

safely relocate.

During cross-examination at a hearing before the IJ, the government

questioned Santos about cities in Guatemala that have pride parades and 

where people participate in “gay and lesbian lifestyles.” The government

then asked, “[b]ut if you know of cities that are open to gay and lesbian and 

transgender lifestyles you would rather move to those cities than the one you 

lived in correct?” Santos replied, “[y]es, probably there is another place 

where I can live down there but I don’t but I try to stay here to get this 

protection because besides that I have a brother living here so I’m trying to 

have him help me.” Because Santos agreed that there was probably a place 

where she could safely relocate within Guatemala, the BIA’s determination 

that the government rebutted the presumption of future persecution is 

supported by substantial evidence for both of Santos’s particular social 

groups.

Judge Higginson’s dissenting opinion views Santos’s statement 

as “vague and equivocal” because it was made in response to a hypothetical 

question and through an interpreter.12 We do not agree with the 

characterization of Santos’s statement as vague and equivocal. The BIA 

reasonably interpreted her statement to mean that she did in fact know of a 

city or cities in Guatemala where it was probably safe for gay and transgender 

people to live. As the Supreme Court has explained, “[t]he BIA's 

determination that [an alien] was not eligible for asylum must be upheld if 

‘supported by reasonable, substantial, and probative evidence on the record 

12 Post at 10.

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considered as a whole.’”13 Such a determination “can be reversed only if the 

evidence presented by [the alien] was such that a reasonable factfinder would 

have to conclude that the requisite fear of persecution existed.”14

“[A]n applicant cannot demonstrate that his or her life or freedom 

would be threatened if the asylum officer or immigration judge finds that the 

applicant could avoid a future threat to his or her life or freedom by relocating 

to another part of the proposed country of removal and, under all the 

circumstances, it would be reasonable to expect the applicant to do so.”15 

Because the BIA’s determination that Santos could reasonably relocate 

within Guatemala is supported by substantial evidence, the BIA did not err 

in concluding that Santos is ineligible for withholding of removal.

III

Santos also challenges the BIA’s determination that she is not eligible 

for relief under the CAT. To be eligible for relief under the CAT, an 

applicant bears the burden to “establish that it is more likely than not that he 

or she would be tortured if removed to the proposed country of removal.”16 

“Torture is defined as any act by which severe pain or suffering . . . is 

intentionally inflicted on a person . . . for any reason based on discrimination 

of any kind, 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 capacity.”17 Whether an 

13 I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (citing 8 U.S.C. § 1105a(a)(4))

(current version at 8 U.S.C. § 1252).

14 Id.

15 8 C.F.R. § 1208.16(b)(2).

16 Id. § 1208.16(c)(2).

17 Id. § 1208.18(a)(1).

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applicant is eligible for relief under the CAT is a factual determination that 

we review for substantial evidence.18

First, Santos asserts that neither the IJ nor the BIA adequately 

analyzed her CAT claim. We lack jurisdiction to review Santos’s challenge 

to the adequacy of the BIA’s analysis because Santos could have raised this 

argument in a motion for reconsideration before the BIA but failed to do so.19 

As to the IJ’s analysis, the IJ is merely required to show “that it consider[ed] 

the issues raised, and [to] announce its decision in terms sufficient to enable 

a reviewing court to perceive that it has heard and thought and not merely 

reacted.”20 The IJ’s decision, which set out the pertinent law and relevant 

facts surrounding Santos’s claim for relief under the CAT, adequately 

conveyed the reasoning behind denying the claim.

Second, Santos challenges the merits of her CAT claim, arguing that 

she faces a risk of torture from disparate groups in Guatemala, and that the 

probability of torture from these groups should have been aggregated. Even 

giving full weight to Santos’s evidence, the evidence does not compel a 

finding that she will be tortured with the consent or acquiescence of a public

official in Guatemala.

21

* * *

For these reasons, Santos’s petition for review is DENIED in part 

and DISMISSED in part for lack of jurisdiction.

18 Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).

19 See Omari v. Holder, 562 F.3d 314, 319-21 (5th Cir. 2009).

20 Efe v. Ashcroft, 293 F.3d 899, 908 (5th Cir. 2002) (quoting Becerra–Jimenez v. 

INS, 829 F.2d 996, 1000 (10th Cir. 1987)).

21 See 8 C.F.R. § 1208.18(a)(1).

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Stephen A. Higginson, Circuit Judge, dissenting:

The Board exceeded its scope of review by engaging in impermissible 

factfinding. The Immigration Judge concluded that Santos did not suffer past 

persecution on account of a protected ground, so it did not reach the question 

of whether DHS had rebutted the presumption of future persecution. When 

the Board, in a single-member decision, determined that “the presumption 

of future persecution . . . has been rebutted in this case,” it engaged in 

factfinding not permitted by the regulations.1

 8 C.F.R. § 1003.1(d)(3)(iv); see 

also Singh v. Barr, 920 F.3d 255, 259 (5th Cir. 2019) (BIA finding that DHS 

has rebutted the presumption of future persecution is a factual finding 

reviewed for substantial evidence). Santos adequately requested that the 

Board remand her case for additional factfinding,2 so we have jurisdiction to 

review this claim. See Omari v. Holder, 562 F.3d 314, 324 (5th Cir. 2009). I 

would remand.

Even if it were a valid exercise of its authority, the Board’s decision is 

not supported by substantial evidence. The Government may rebut a 

presumption of future persecution by “demonstrating that there has been a 

fundamental change in the circumstances of the country of removal, or that 

the applicant could avoid a future threat to his life or freedom by reasonably 

relocating to a different part of the country of removal.” Arif v. Mukasey, 509 

F.3d 677, 681 (5th Cir. 2007). The Government has not made either showing.

1 On appeal, the Government cites Enriquez-Gutierrez v. Holder, 612 F.3d 400, 

409–10 (5th Cir. 2010) to suggest that administratively noticeable factfinding by the Board 

is permissible. The decision in Enriquez-Gutierrez, however, is manifestly inapt, as it 

pertains to appropriate administrative notice of a stipulated prior conviction, id. at 411, not 

crediting a cross-examination remark over direct testimony the IJ found credible. 

2 ROA.29.

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Regarding country conditions, the Government’s evidence suggests 

that gay and transgender persons regularly face violence, harassment, and 

discrimination in Guatemala. The United States Department of State 2017 

Human Rights Report on Guatemala, submitted by the Government but not 

discussed by the Board, lists one of “[t]he most significant human rights 

issues” in Guatemala as “police violence against lesbian, gay, bisexual, 

transgender, and intersex individuals.” The report also notes that “[t]here 

was general societal discrimination against LGBTI persons in access to 

education, health care, employment, and housing” and that “[t]he 

government undertook minimal efforts to address this discrimination.” In 

addition, Santos’s two return trips to Guatemala are not probative of changed 

country conditions; she needed to conceal her transgender identity by 

wearing male clothing and cutting her hair, hire private transportation, and 

hide in her parents’ home for the duration of both visits. “The case law is 

clear that an alien cannot be forced to live in hiding in order to avoid 

persecution.” Singh v. Sessions, 898 F.3d 518, 522 (5th Cir. 2018).

Regarding the possibility of relocation within Guatemala, the 

Government makes much of Santos’s alleged “acknowledgement” that she 

could safely relocate. This is a gross mischaracterization of the record. On 

direct examination before the Immigration Judge, Santos categorically denied

that she could live safely anywhere within Guatemala:

[Santos’s Counsel]: And last question. Is there 

anywhere that you think that you could safely live in 

Guatemala?

[Santos]: No. That whole country Guatemala it’s going 

to be the same for me because there is no police in—anywhere 

that is going to protect me so I’m not going to get what I’m 

looking for so that’s why I want to stay in this country because 

I know I’m going to have that protection here.

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But the Government fixates instead on a fragment of a hypothetical 

considered by Santos during cross-examination:

[Government]: And did you ever try to move to a city 

that was more open and free than the one that you grew up in 

as a child?

[Santos]: But I don’t know where to go down there. I 

don’t know who would—kind—what kind of people I’m going 

to get there to live there.

[Government]: But if you know of cities that are open to 

gay and lesbian and transgender lifestyles you would rather 

move to those cities than the one you lived in correct?

[Santos]: Yes, probably there is another place where I 

can live down there but I don’t but I try to stay here to get this 

protection because besides that I have a brother living here so 

I’m trying to have him help me.3

Santos’s vague and equivocal statement in response to the Government’s 

hypothetical question4 does not constitute an admission that she could safely 

relocate within Guatemala, where she was twice raped.

I respectfully dissent.

3 Although it urged this court to rely on this hypothetical, the Government during 

oral argument before our court could not “recall[] that specific snippet of the record” in 

which Santos categorically denied being unable to relocate safely within Guatemala. U.S. 

Court of Appeals for the Fifth Circuit, 19-60355 Santos-Zacaria v. Garland, April 28, 2021, 

YouTube at 20:15 (May 18, 2021), https://youtu.be/zt3ssKgUtpQ?t=1215.

4 Throughout the exchange, Santos spoke in Kanjobal, a Mayan language spoken 

in parts of Guatemala, through an interpreter.

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