Yessenia Elizabeth Padilla-Banegas v. U.S. Attorney General

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-13923

Non-Argument Calendar

____________________

YESSENIA ELIZABETH PADILLA-BANEGAS,

AYSHA ELIZABETH ANDINO-PADILLA,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A220-385-065

____________________

Before LUCK, BRASHER, and ABUDU, Circuit Judges.

PER CURIAM:

Yessenia Padilla-Banegas seeks review of a Board of Immi-

gration Appeals’s decision affirming the denial of her petition for

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2 Opinion of the Court 23-13923

asylum, protection under the United Nations Convention Against

Torture, and withholding of removal. She contends that the board

violated her right to due process and erroneously determined that

she was not a refugee eligible for asylum. After careful considera-

tion, we deny Padilla-Banegas’s petition.

FACTUAL BACKGROUND

Padilla-Banegas and her minor daughter are citizens of Hon-

1

duras. Roughly twenty years ago, Padilla-Banegas married her

husband, Delvin Andino, in Honduras. Andino was a well-known

professional soccer player. He also ran a Christian sports program

with the goal of keeping youth out of the country’s street gangs.

Because of his work with the sports program, Andino received

threats from a Honduran gang known as the “Maras.” In 2010, An-

dino began driving a taxicab to earn additional income for his fam-

ily. The Maras demanded that he pay them a percentage of his

earnings or else they would kill him. Andino initially resisted but

ultimately paid the tax for about a year until he gave up driving.

In 2013, Padilla-Banegas came home and found that her fam-

ily’s apartment had been ransacked. That same year, another Hon-

duran gang, the “Barrio-18,” threatened to kidnap her young son.

The family tried to report the threat to the Honduran police, but

they were told that filing a report would only make things worse.

1

Padilla-Banegas’s daughter is a derivative beneficiary of her petition.

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23-13923 Opinion of the Court 3

Eventually, the family moved to a different neighborhood in their

city.

In 2017, Padilla-Banegas started studying to become a psy-

chologist. Around the same time, both she and Andino began re-

ceiving threatening text messages which they believed came from

the Maras. Worried, Andino installed security cameras around his

family’s home. But the Maras came and destroyed the cameras.

The Maras also warned Padilla-Banegas and Andino that if they

filed a complaint, they would face violent consequences. The Ma-

ras offered the couple an alternative: Andino could work for the

gang as a driver, and Padilla-Banegas as a psychologist. The couple

ignored the offer.

In 2021, Honduras held elections, and Andino publicly at-

tacked the incumbent party on social media. When the incumbent

party won re-election, two things happened. First, Andino took

the couple’s son and left for the United States. And second, Padilla-

Banegas’s boss fired her because of Andino’s social media posts. Af-

ter Padilla-Banegas lost her job, the Maras visited her home and

asked her to write psychological evaluations declaring two of their

incarcerated members mentally unstable. They hoped that these

evaluations would lead to reduced prison sentences for the mem-

bers. Padilla-Banegas refused because she had heard of two profes-

sionals who were killed after assisting the Maras. The Maras threat-

ened her, and Padilla-Banegas decided to leave Honduras for the

United States two months later. Padilla-Banegas and her daughter

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4 Opinion of the Court 23-13923

illegally crossed the southern border of the United States in late

2021.

PROCEDURAL HISTORY

Proceedings Before the Immigration Judge

The Department of Homeland Security commenced re-

moval proceedings against Padilla-Banegas for unlawfully entering

the United States in violation of 8 U.S.C. section 1182(a)(6)(A)(i).

In response, Padilla-Banegas conceded her removability, but filed a

petition for asylum, protection under the United Nations Conven-

tion Against Torture, and withholding of removal. She asserted

that she qualified as a refugee—and thus asylum—because she had

been persecuted on account of her religious beliefs, her political

opinion, and her membership in three particular social groups. She

defined these particular social groups as the: (1) “Immediate family

members of Delvin Andino”; (2) “Family members of those who

challenge the authority of the Barrio-18 gang in Honduras”; and

(3) “Honduran professionals subject to recruitment for forced labor

as collaborators by the organized criminal gangs in Honduras.”

The immigration judge held a hearing on Padilla-Banegas’s

petition. He accepted the factual allegations contained in her writ-

ten application as true and complete. But even crediting Padilla-

Banegas’s testimony, the immigration judge found that she had not

established eligibility for asylum, protection under the Convention

Against Torture, or withholding of removal.

The immigration judge determined that Padilla-Banegas

was ineligible for asylum because she had not established that she

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23-13923 Opinion of the Court 5

was a refugee. The immigration judge found that the problems

Padilla-Banegas had experienced in Honduras—which were sepa-

rated by a span of years—did not amount to religious or political

persecution, and that it was not clear she would be persecuted if

she returned home. Additionally, the immigration judge con-

cluded that none of Padilla-Banegas’s proposed particular social

groups were cognizable. Because the requirements for withhold-

ing of removal are stricter than those of asylum, the immigration

judge also rejected Padilla-Banegas’s petition for withholding of re-

moval. And the immigration judge found that the Convention

Against Torture was inapplicable because the harm Padilla-Bane-

gas suffered in Honduras did not amount to torture. Accordingly,

the immigration judge denied Padilla-Banegas’s petition and or-

dered that she and her daughter be removed from the United

States.

Board of Immigration Appeals

Padilla-Banegas filed an administrative appeal with the

Board of Immigration Appeals. She contended that the “immigra-

tion judge erred in denying [her] application for relief of asylum

and withholding of removal” because she was a persecuted mem-

ber of a particular social group identified as “Honduran profession-

als subject to recruitment as collaborators to provide services to

help corrupt state institutions for the benefit of the organized crim-

inal groups.” In her briefing, Padilla-Banegas attempted to make

this group “more definite” by defining it in three new ways:

(1) “Honduran college-educated professionals”; (2) “Honduran

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6 Opinion of the Court 23-13923

professionals with access to the criminal justice system”; and

(3) “Honduran professionals with access to the criminal justice sys-

tem, whom the criminal organizations want to coerce into forced

labor.” Finally, Padilla-Banegas argued that the immigration judge

violated her due process rights because it found that her testimony

was credible, but did not grant her petition—despite the absence of

contrary evidence.

The Board of Immigration Appeals agreed with the immi-

gration judge and dismissed Padilla-Banegas’s appeal. The board

determined that Padilla-Banegas had forfeited several issues by fail-

ing to meaningfully raise them on appeal. First, it found that she

had not challenged the immigration judge’s conclusion that she

was ineligible for relief under the Convention Against Torture.

Second, it ruled that she failed to contest the immigration judge’s

determination that she had not suffered political or religious perse-

cution. And third, the board explained that she failed to challenge

the immigration judge’s conclusion that “[i]mmediate family mem-

bers of Delvin Andino” and “[f]amily members of those who chal-

lenge the authority of the Barrio-18 gang in Honduras” were not

cognizable particular social groups. The board also refused to con-

sider Padilla-Banegas’s reformulations of her “Honduran profes-

sionals” particular social group because she did not articulate them

before the immigration judge.

Turning to the claims Padilla-Banegas did not forfeit, the

board found that the immigration judge properly rejected Padilla-

Banegas’s asylum petition because her proposed particular social

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23-13923 Opinion of the Court 7

group—“Honduran professionals subject to recruitment for forced

labor as collaborators by the organized criminal gangs in Hondu-

ras”—was impermissibly circular. In other words, the particular

social group did not exist independently of the alleged persecutory

harm. Because her asylum petition failed, the board agreed that

Padilla-Banegas could not meet the standard for withholding of re-

moval. Finally, the board rejected Padilla-Banegas’s due process

claim. It explained that accepting Padilla-Banega’s written state-

ment as credible did not mean that it was sufficient to carry her

burden of proof.

Padilla-Banegas timely filed this petition for review.

STANDARDS OF REVIEW

“We review the [Board of Immigration Appeals’s] decision

as the final judgment, unless [the board] expressly adopted the [im-

migration judge’s] decision.” Gonzalez v. U.S. Att’y Gen., 820 F.3d

399, 403 (11th Cir. 2016), abrogated in part on other grounds by Loper

Bright Enters. v. Raimondo, 603 U.S. 369, 412–13 (2024). When the

board agrees with the immigration judge’s reasoning, we will re-

view the immigration judge’s decision to the extent of the agree-

ment. Id.; Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th

Cir. 2009). Here, because the board “agreed with the findings of

the” immigration judge “and added its own observations, we re-

view both.” Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1306

(11th Cir. 2019).

We review legal conclusions de novo, including “whether a

group proffered by an asylum applicant constitutes a particular

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8 Opinion of the Court 23-13923

social group under the” Immigration and Nationality Act. Id. at

1306; 8 U.S.C. §§ 1158(b)(1)(A); 101(a)(42)(A). We review findings

of fact under the highly deferential substantial evidence standard.

Gonzalez, 820 F.3d at 403. When reviewing for substantial evi-

dence, we must “affirm the decision of the [i]mmigration [j]udge if

it is supported by reasonable, substantial, and probative evidence

on the record considered as a whole.” Silva v. U.S. Att’y Gen., 448

F.3d 1229, 1236 (11th Cir. 2006). “[I]f the evidence could support

multiple conclusions, we must affirm the agency’s decision unless

there is no reasonable basis for that decision.” Perez-Zenteno, 913

F.3d at 1306 (citation omitted). We “may not reweigh the evidence

from scratch,” and we may reverse “only when the record compels

a reversal.” Silva, 448 F.3d at 1236 (citation and internal quotation

marks omitted). “[W]e view the record evidence in the light most

favorable to the agency’s decision and draw all reasonable infer-

ences in favor of that decision.” Id. (citation omitted).

DISCUSSION

In her petition, Padilla-Banegas argues that the immigration

judge and the board erred by concluding that she was ineligible for

asylum because her “Honduran professionals” particular social

group was not cognizable. She also argues that they violated her

right to due process by failing to sufficiently credit her stipulated

2

factual assertions. We address each of her arguments in turn.

2

Padilla-Banegas does not challenge the board’s determinations concerning

her political and religious persecution claims, her petition under the Conven-

tion Against Torture, or her other two proposed particular social groups.

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23-13923 Opinion of the Court 9

Particular Social Group

To receive asylum, an applicant must show that she qualifies

as a “refugee” under the Immigration and Nationality Act. 8 U.S.C

§§ 1158(b)(1), 1101(a)(42); Diallo v. U.S. Atty. Gen., 596 F.3d 1329,

1332 (11th Cir. 2010) (“[T]he asylum applicant bears the burden of

proving refugee status.”). To prove refugee status, “the applicant

must establish that race, religion, nationality, membership in a par-

ticular social group, or political opinion was or will be at least one

central reason for persecuting the applicant.” 8 U.S.C.

§ 1158(b)(1)(B)(i). Padilla-Banegas argues that she is a persecuted

member of a particular social group, specifically: “Honduran pro-

fessionals subject to recruitment for forced labor as collaborators

by the organized criminal gangs in Honduras.” She contends that

the immigration judge and the Board of Immigration Appeals erred

by finding that this social group was incognizable. We disagree.

A particular social group must be “narrowly defined”; it can-

not be “a ‘catch all’ for all persons alleging persecution who do not

fit elsewhere.” Ponce v. U.S. Att’y Gen., 141 F.4th 1214, 1216 (11th

Cir. 2025) (quoting Perez-Zenteno, 913 F.3d at 1311). When evalu-

ating whether a proposed group qualifies under the statute, we

consider “such obvious, discrete and measurable factors as

Accordingly, she has forfeited those issues, and we will not address them fur-

ther. See Anthony v. Georgia, 69 F.4th 796, 807 (11th Cir. 2023) (“Issues not

raised in an initial brief are deemed forfeited and will not be addressed absent

extraordinary circumstances.”).

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immutability, identity, visibility, homogeneity, and cohesiveness in

order to give meaning to the term.” Id. at 1216–17 (citation omit-

ted).

Applying these factors, Padilla-Banegas’s proposed “Hondu-

ran professionals” particular social group is too broad to qualify.

First, the identity of the group is uncertain. The group’s members

are not “obvious, discrete,” or “measurable.” Ponce, 141 F.4th at

1216. The term “professionals” is vague and could cover a wide

swath of the Honduran population, ranging from lawyers to elec-

tricians. Because of this, it is unclear how the group could be con-

sidered “homogene[ous]” or “cohesive[].” Id. at 1216–17 (citation

omitted). Padilla-Banegas argues—without citation—that profes-

sionals only make up a “minority of the Honduran population,”

but even if true, the number of professionals would not render the

proposed social group “narrowly defined.” Id. (citation omitted).

Padilla-Banegas “has done nothing to limit or circumscribe [the]

large and diverse group” she proposes “in any [meaningful] way.”

Id. at 1217 (citation omitted). Her proposed particular social group

more closely resembles those which we have rejected for over-

breadth. See id. (rejecting proposed particular social group of

“Honduran business owners who are perceived as having wealth

and are targets of threats and extortion by criminal gangs” because

it was “too broad” (cleaned up)); Perez-Zenteno, 913 F.3d at 1304,

1311 (holding that “Mexican citizens targeted by criminal groups

because they have been in the United States and they have families

in the United States” was “drawn far too broadly to qualify” as a

particular social group because it was “not easily cabined by any

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23-13923 Opinion of the Court 11

obvious guidepost or limiting principle”). Because “Honduran pro-

fessionals subject to recruitment for forced labor as collaborators

by the organized criminal gangs in Honduras” is not a group “easily

cabined by any obvious guidepost or limiting principle,” it is not a

cognizable particular social group for the purpose of establishing

refugee status. Perez-Zenteno, 913 F.3d at 1311.

Additionally, even if it were not overbroad, Padilla-Bane-

gas’s proposed “Honduran professionals” particular social group

would be incognizable because it is circularly defined. The defining

characteristic of the group “Honduran professionals subject to re-

cruitment for forced labor as collaborators by the organized crimi-

nal gangs in Honduras” is its persecution by criminal gangs. But

the “risk of persecution alone does not create a particular social

group within the meaning of the [Immigration and Nationality

Act].” Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1198 (11th Cir.

2006); Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1310 (11th Cir.

2013) (holding that a proposed particular social group was incog-

nizable when “the defining attribute . . . [wa]s its persecution by

the drug-trafficking organization.” (quotation omitted)).

Finally, the board did not err by rejecting Padilla-Banegas’s

attempt to reformulate her proposed particular social group on ap-

peal. As an appellate body, the board “is not required to consider

a [particular social group] on appeal that was never presented to

the immigration judge.” Cantarero-Lagos v. Barr, 924 F.3d 145, 148

(5th Cir. 2019). Padilla-Banegas proffered her proposed particular

social group to the immigration judge as “Honduran professionals

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12 Opinion of the Court 23-13923

subject to recruitment for forced labor as collaborators by the or-

ganized criminal gangs in Honduras.” But she reformulated that

group into three new groups in her appeal to the board: (1) “Hon-

duran college-educated professionals”; (2) “Honduran profession-

als with access to the criminal justice system”; and (3) “Honduran

professionals with access to the criminal justice system, whom the

criminal organizations want to coerce into forced labor.” These

reformulated groups are materially different from her original

group, and the immigration judge never had the opportunity to

consider their distinctions. “Although the cognizability of a [par-

ticular social group] presents a legal question, its answer indisputa-

bly turns on findings of fact,” and “because factual findings are the

province of the [immigration judge], the [board] did not err by re-

fusing to find facts [regarding the reformulated groups] in the first

instance.” Id. at 150 (rejecting petitioners’ argument that the board

“reversibly erred by refusing to consider their reformulated [partic-

ular social group] on appeal”); see also 8 C.F.R. § 208.1 (“A failure

to define, or provide a basis for defining, a formulation of a partic-

ular social group before an immigration judge shall waive any such

claim for all purposes under the Act, including on appeal.”); Matter

of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189 (BIA 2018) (requiring an

“applicant seeking asylum . . . based on membership in a particular

social group” to “clearly indicate on the record before the [i]mmi-

gration [j]udge the exact delineation of any proposed particular so-

cial group” (emphasis added)).

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Due Process

Padilla-Banegas asserts that the board violated her right to

due process by “discounting” the evidence she offered in support

of her petition. She contends that the parties agreed to accept her

written statement in lieu of her oral testimony, and that the immi-

gration judge found her written narrative to be “true, correct, and

complete.” She argues that—because the government did not offer

any contrary evidence—her evidence was sufficient to carry her

burden to prove refugee status. Again, we disagree.

The Supreme Court rejected a similar argument in Garland

v. Ming Dai, 593 U.S. 357, 371 (2021). There, the petitioners as-

serted that their testimony before the immigration judge was due

a presumption of credibility and that they were “entitled to re-

lief . . . because no reasonable adjudicator obliged to presume their

credibility could have found against them.” Id. at 368. The Su-

preme Court held that “even if” the Board of Immigration Appeals

“treats an alien’s evidence as credible, the agency need not find his

evidence persuasive or sufficient to” establish refugee status. Id. at

371.

Here, the immigration judge accepted Padilla-Banegas’s tes-

timony as credible, but did not find it sufficient to show that she

was a refugee. The immigration judge explained that “[n]otwith-

standing the fact that [he] found [Padilla-Banegas] to be credible in

all respects, after considering the totality of the circumstances, [she]

failed to meet [her] burden of proof and persuasion to establish el-

igibility for asylum.” Before announcing his judgment, the

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14 Opinion of the Court 23-13923

immigration judge stated that he had considered “all evidence in

the record” in reaching this determination, “regardless of whether

3

[he] specifically mentioned” each piece of evidence in his decision.

And indeed, the immigration judge’s order reflects reasoned anal-

ysis of Padilla-Banegas’s testimony regarding the problems she

faced in Honduras. The board agreed with the immigration judge

and, citing Ming Dai, concluded that accepting Padilla-Banegas’s

statement as credible did not require a finding that she had met her

burden to establish refugee status. We agree with the board. It

was not a violation of due process for the immigration judge to

conclude that Padilla-Banegas’s evidence—while credible—was in-

sufficient to qualify for asylum.

CONCLUSION

For these reasons, Padilla-Banegas’s petition for review is de-

nied.

PETITION DENIED.

3

Padilla-Banegas argues that the immigration judge “omitted mention of the

most serious incident” from his order: the fact that the Maras threatened her

after she refused to write psychological evaluations for them. She contends

that it was this threat that led her to leave Honduras two months later. But

the immigration judge’s analysis reflects that he considered this fact. The im-

migration judge agreed that “the one central reason that [Padilla-Banegas] was

targeted with any harm . . . was due to the fact that the [Maras] or the Barrio-

18 gang . . . seemed to be attempting to forcibly recruit people throughout the

country into their ranks.” But the immigration judge explained that this harm

was not “covered under our immigration laws” because it did not have “a

nexus or connection to one of the five statutorily protected grounds.”