Sandra Vail-Romero v. U.S. Attorney General

USCA11 Case: 23-13363 Document: 43-1 Date Filed: 08/15/2025 Page: 1 of 9

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-13363

Non-Argument Calendar

____________________

SANDRA VAIL-ROMERO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A209-243-360

____________________

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2 Opinion of the Court 23-13363

Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:

Sandra Vail-Romero, a native and citizen of Guatemala, pe-

titions this Court to review the Board of Immigration Appeals’

(“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of asy-

lum pursuant to Immigration and Nationality Act (“INA”) § 208(a),

8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3),

8 U.S.C. § 1231(b)(3), and relief under the United Nations Conven-

tion Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment (“CAT”), 8 C.F.R. § 1208.16(c), and

denying her motion to remand to the IJ to consider her eligibility

for voluntary departure.

In her petition for review, Vail-Romero makes three argu-

ments. First, she argues that the BIA erred in affirming the IJ’s de-

nial of her applications for asylum and withholding of removal be-

cause the BIA improperly determined that her particular social

group of “indigenous female within the ages of 15 to 30, victim of

domestic violence” was impermissibly circular and of “indigenous

female trying to leave a relationship” was not socially distinct. Sec-

ond, she argues that the BIA’s determination that she was ineligible

for CAT relief because she failed to present evidence demonstrat-

ing that the Guatemalan government would consent or acquiesce

to her torture was not supported by substantial evidence. Finally,

she argues that the BIA abused its discretion in denying her motion

to remand for consideration of her motion for voluntary departure.

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23-13363 Opinion of the Court 3

I. STANDARD OF REVIEW

We generally “review[] only the BIA’s decision, except to

the extent the BIA expressly adopted the IJ’s opinion or agreed with

the IJ’s reasoning.” Alvarado v. U.S. Att’y Gen., 984 F.3d 982, 988

(11th Cir. 2020). Thus, where the BIA agrees with the IJ’s reason-

ing, we review both the BIA’s and IJ’s decisions. Perez-Zenteno v.

U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). However, find-

ings of the IJ that the BIA did not reach are not properly before

us. Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007).

We review the BIA’s factual findings under the highly defer-

ential substantial evidence standard, which permits reversal only if

the record compels, and not merely supports, reversal. Edwards v.

U.S. Att’y Gen., 97 F.4th 725, 734 (11th Cir. 2024). Conversely, we

review legal conclusions de novo. Alvarado, 984 F.3d at 988.

Whether an asserted group qualifies as a particular social group un-

der the INA is a legal conclusion reviewed de novo. Perez-Zenteno,

913 F.3d at 1306.

II. ASYLUM

The Attorney General may grant asylum to a noncitizen

who meets the INA’s definition of a refugee. INA § 208(b)(1)(A), 8

U.S.C. § 1158(b)(1)(A). A refugee is a person who is (1) outside the

country of her nationality, (2) unwilling to return to that country,

and (3) unable to avail herself of its protection (4) because of perse-

cution or a well-founded fear of persecution on account of one of

the five statutorily protected grounds. INA § 101(a)(42)(A),

8 U.S.C. § 1101(a)(42)(A). The five protected grounds are race,

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4 Opinion of the Court 23-13363

religion, nationality, membership in a particular social group, and

political opinion. Id. The noncitizen bears the burden of proving

qualification as a refugee. INA § 208(b)(1)(B)(i), 8 U.S.C.

§ 1158(b)(1)(B)(i); Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1332 (11th

Cir. 2010).

To be eligible for asylum, the noncitizen must show that she

is unable to avail herself of her home country’s protection. Lopez,

504 F.3d at 1345. When a noncitizen’s alleged persecution oc-

curred from the hands of a private actor, the noncitizen must prove

she cannot avail herself of her home country’s protection “by pre-

senting evidence that [s]he reported the persecution to local gov-

ernment authorities or that it would have been useless to do so.”

Ayala v. U.S. Att’y Gen., 605 F.3d 941, 950 (11th Cir. 2010) (citing

Lopez, 504 F.3d at 1345).

Moreover, to meet the burden of establishing eligibility

for asylum, the noncitizen must, with specific and credible evi-

dence, establish (1) past persecution on account of a statutorily pro-

tected ground, or (2) a “well-founded fear” that they will be perse-

cuted on account of a protected ground, such as membership in a

particular social group. Diallo, 596 F.3d at 1332 (quotation marks

omitted); 8 C.F.R. § 208.13(a)-(b).

An appellant who fails to argue an issue in his initial appel-

late brief abandons it. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,

1228 n.2 (11th Cir. 2005). To preserve an argument, the party must

clearly and specifically identify the claim in its brief, such as by de-

voting a discrete section of its argument to that claim. Zhou Hua

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23-13363 Opinion of the Court 5

Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1316 n.3 (11th Cir. 2013); see

also Sapuppo v. Allstate Floridian Ins., 739 F.3d 678, 681 (11th Cir.

2014) (holding that a party abandons a claim on appeal when they

make passing references to it in their summary of the argument).

Even more, to obtain reversal of a judgment “based on multiple,

independent grounds,” a party must challenge “every stated

ground for the judgment against him.” Sapuppo, 739 F.3d at 680.

When a party fails to properly challenge on appeal one of the

grounds upon which the judgment against him was based, she has

abandoned any challenge of that ground, and the judgment is due

to be affirmed. Id.

Here, Vail-Romero has abandoned on appeal any arguments

related to the BIA’s determination that she failed to establish that

Guatemalan officials were unable or unwilling to protect her be-

cause she failed to sufficiently brief that issue on appeal. Accord-

ingly, because she failed to challenge one of the BIA’s independent

grounds for affirming the IJ’s denial of her applications for asylum

and withholding of removal, her petition is due to be denied. Even

if she had not abandoned the issue, the BIA’s determination that

Vail-Romero failed to demonstrate that the Guatemalan govern-

ment would not, or could not, protect her was supported by sub-

stantial evidence. As such, we deny her petition to review these

issues and need not address Vail-Romero’s arguments that the BIA

erred in determining that her particular social groups were not cog-

nizable.

III. CAT RELIEF

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6 Opinion of the Court 23-13363

To be eligible for CAT relief, a noncitizen applicant must

meet a higher burden of proof than for asylum eligibility and show

that she will more likely than not be tortured if returned to the des-

ignated country of removal. 8 C.F.R. § 1208.16(c)(2); Lingeswaran

v. U.S. Att’y Gen., 969 F.3d 1278, 1293 (11th Cir. 2020). Torture is

defined as an act which inflicts “severe pain or suffering, whether

physical or mental,” and must be “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.” 8

C.F.R. § 208.18(a)(1); Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239,

1242 (11th Cir. 2004). A government does not acquiesce to torture

by non-state actors so long as it combats the unlawful activity in

some way, even if the government is unsuccessful. Reyes-Sanchez,

369 F.3d at 1243.

Similar to her asylum and withholding of removal claims,

substantial evidence supports the BIA’s determination that Guate-

malan officials would not consent or acquiesce to Vail-Romero be-

ing tortured should she return to Guatemala because, by Vail-

Romero’s own evidence, specifically, the police report, the police

did take her claims of domestic violence seriously. Even more,

Vail-Romero testified that she witnessed police speaking with her

ex-boyfriend after she filed the report. Again, while she speculated

that her ex-boyfriend may have talked his way out of being in trou-

ble, the record does not support her theory, and instead makes it

seem as though the police took her complaints seriously. Moreo-

ver, the country conditions evidence that Vail-Romero presented

showed that Guatemala is taking steps to combat domestic

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23-13363 Opinion of the Court 7

violence and femicide by outlawing both. Simply because Guate-

malan officials may not be successful in combating these issues

does not mean they will consent or acquiesce to Vail-Romero’s po-

tential torture upon her return. Reyes-Sanchez, 369 F.3d at 1243. In

essence, the record simply does not compel reversal of the BIA’s

denial of CAT relief. See Edwards, 97 F.4th at 734. As such, we deny

her petition to review this issue.

IV. REMAND

“A motion to remand based on new evidence is treated as a

motion to reopen, the denial of which is reviewed for abuse of dis-

cretion.” Dos Santos v. U.S. Att’y Gen., 982 F.3d 1315, 1322 (11th Cir.

2020) (citing Sow v. U.S. Att’y Gen., 949 F.3d 1312, 1317 (11th Cir.

2020)). Under this standard, we consider whether the BIA exer-

cised its discretion arbitrarily or capriciously. Id. at 1323. The BIA

generally will not consider in the first instance issues not presented

to the IJ. In re J-Y-C-, 24 I. & N. Dec. 260, 261 n.1 (BIA 2007) (de-

clining to consider the respondent’s claim that she was eligible for

asylum based on her mother’s death from a forced sterilization pro-

cedure because that claim was never raised before the IJ).

An IJ may enter an order granting voluntary departure at the

conclusion of the immigration proceedings if the petitioner: (1) has

been present in the United States for at least one year; (2) had good

moral character for the preceding five years; (3) was not deportable

under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) or INA

§ 237(a)(4), 8 U.S.C. § 1227(a)(4); and (4) she has established by

clear and convincing evidence that she has the means to depart the

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8 Opinion of the Court 23-13363

United States and that she intends to do so. INA § 240B(b)(1), 8

U.S.C. § 1229c(b)(1). The one-year continuous presence require-

ment looks at whether the noncitizen “has been physically present

in the United States for period of at least one year preceding the

date the Notice to Appear was served under section 239(a) of the

Act.” 8 C.F.R. § 1240.26(c)(1)(i).

In the cancellation of removal context, any period of contin-

uous physical presence is deemed to end when the noncitizen is

served with a Notice to Appear (“NTA”). See INA § 240A(d)(1),

8 U.S.C. § 1229b(d)(1). In 2018, the Supreme Court in Pereira v. Ses-

sions, 585 U.S. 198 (2018), explained that the government could not

circumvent this “stop-time” rule by providing noncitizens NTAs

that lacked the statutorily required information, such as the time

and place of the noncitizen’s removal proceedings. 585 U.S. at 202.

In 2021, in Niz-Chavez v. Garland, 593 U.S. 155 (2021), the Supreme

Court expanded on its holding in Pereira. 593 U.S. at 159-60. There,

the Court ruled that the government could not provide piecemeal

NTAs to noncitizens when the original NTA did not provide all

statutorily required information. Id. at 171-72. Instead, to provide

a noncitizen with a compliant NTA that stops the clock on the

noncitizen’s continuous physical presence, the government must

provide all required information in a singular document. Id.

Here, the BIA did not abuse its discretion in denying Vail-

Romero’s request to remand her case to the IJ for the purpose of

determining her eligibility for and granting voluntary departure be-

cause she had an opportunity to request voluntary departure at

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23-13363 Opinion of the Court 9

many points throughout her immigration proceedings but failed to

do so. Specifically, after the IJ informed her that she would not be

granting her applications for asylum, withholding of removal, or

CAT relief, Vail-Romero never mentioned that she would like to

seek voluntary departure, nor did she attempt to move for volun-

tary departure between the oral pronouncement and the written

order. Vail-Romero’s reliance on Niz-Chavez as the reason why she

did not raise the issue is misplaced. While she argues that her claim

for voluntary departure was not clear until the Niz-Chavez decision,

Pereira, at the very least, gave her notice that her NTA was insuffi-

cient, as the Pereira decision was issued before her final immigra-

tion hearing. Pereira, 585 U.S. at 202. Moreover, at least twice, she

raised the issue about her clock being stopped at zero days, demon-

strating that the stop time issue was something being considered at

that time. While Niz-Chavez may have clarified Pereira, Pereira’s

holding did not limit her from validly moving for voluntary depar-

ture before the IJ. As such, she was not deprived of an opportunity

to request voluntary departure before the IJ, and the BIA did not

abuse its discretion in denying her request. Accordingly, we deny

her petition to review this issue.

PETITION DENIED.