The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11060
Non-Argument Calendar
____________________
MIRTHA MARCHENA CHAVEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A205-753-336
____________________
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2 Opinion of the Court 21-11060
Before ROSENBAUM, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Mirtha Marchena Chavez (“Marchena”) petitions for review
of an order by the Board of Immigration Appeals (“BIA”), affirming
the decision of an immigration judge (“IJ”), which (a) denied a con-
tinuance after venue for the final removal hearing was changed
from New Jersey to Georgia without her input, (b) ruled her ineli-
gible for asylum and withholding of removal due to a prior convic-
tion for a “particularly serious crime,” and (c) denied relief under
the United Nations Convention Against Torture (“CAT”).
Marchena argues that the change in venue violated her due-process
rights, that the agency erred by skipping a step when analyzing
whether her conviction for conspiracy to commit aggravated as-
sault constituted a “particularly serious crime,” and that the agency
made legal and factual errors when evaluating her claim for CAT
relief. After careful review, we deny the petition in part and dismiss
it in part.
I.
Marchena, a native and citizen of Peru, entered the United
States in 1996. She moved to New Jersey, where she married and
raised three children. She also was arrested for and convicted of
several criminal offenses. As relevant here, in 2012, she was
charged with attempted murder and conspiracy to commit mur-
der, arising from an alleged plot to murder her husband, and she
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21-11060 Opinion of the Court 3
later pled guilty to the reduced charge of conspiracy to commit ag-
gravated assault. For that offense, she was sentenced to three years
in prison and three years of probation.
A.
In August 2015, Marchena was served with a notice to ap-
pear by the Department of Homeland Security (“DHS”). DHS al-
leged that she was removable for being present without authoriza-
tion and because her conviction for conspiracy to commit aggra-
vated assault was a crime involving moral turpitude. Through
counsel, Marchena admitted the factual allegations and conceded
the charged grounds for removal.
In June 2016, Marchena filed an application for asylum, with-
holding of removal, and protection under CAT. She updated her
application several times, with a final version submitted in August
2020. She indicated that she fled Peru after being beaten, raped,
and left for dead by members of the Communist Party of Peru, or
“Shining Path,” which she said was a large gang that had corrupted
the country. And she decried a culture of violence against women
in Peru, which included killings, disappearances, and sex traffick-
ing. In a brief submitted with the final application, Marchena also
described the physical and emotional abuse her husband inflicted
on her, which led to her run-ins with the law.
It appears that, after her 2015 sentencing, Marchena went
through periods of custody by state and immigration authorities.
The precise details are not important here. What matters is that
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4 Opinion of the Court 21-11060
her immigration case was delayed repeatedly, and the IJ did not
resolve her applications for relief until 2020, once she was released
from state custody after serving a probation-revocation sentence.
For most of that time, she was represented in the immigration case
by the attorney who appeared at the final removal hearing.
Upon her release from state custody in June 2020, Marchena
was transferred to federal immigration custody and moved to the
Irwin County Detention Center in Ocilla, Georgia. Because of that
transfer, DHS filed a motion to change venue to the Atlanta Immi-
gration Court on June 24, 2020. An immigration judge granted the
motion five days later, on June 29, 2020. Marchena’s attorney, who
was based in New Jersey, was permitted to appear by telephone for
the final removal hearing in September 2020 in Atlanta.
B.
At the removal hearing, Marchena’s attorney objected to the
order granting a change in venue, arguing that it prejudiced his
ability to prepare Marchena for the hearing, and he requested a
continuance of three weeks. The IJ denied a continuance for two
reasons: (1) any objection to the change in venue would have been
“meritless” because Marchena had been transferred to the Irwin
County Detention Center in Georgia; and (2) the attorney’s firm
had represented Marchena for nearly five years by the time of the
hearing.
The hearing went forward, and Marchena testified that a
group of men affiliated with the Shining Path grabbed her after
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21-11060 Opinion of the Court 5
work at gunpoint, “beat [her] up so hard that they broke [her] face,”
and raped her repeatedly. They also hit her head against the con-
crete and told her that if she informed her family about what hap-
pened they would kill her and her family. After these events, her
father decided that she needed to flee the country, and he helped
her do so. She believed that the men who attacked her wanted to
traffic her as a sex slave, and that if she returned to Peru, she would
be forced into sex trafficking or killed. Marchena also testified that
her brother was kidnapped by members of the Shining Path.
Regarding her conviction for conspiracy to commit aggra-
vated assault, Marchena testified that she had told a “guy who went
to [her] work,” who ultimately notified the police, to “hit” her
(now ex-) husband “so that he can feel what I was feeling.” She
explained that her ex-husband was physically and emotionally abu-
sive and had forced her into prostitution. She denied attempting
to hire a hitman to kill her husband.
DHS opposed granting relief from removal, arguing that
Marchena was barred from asylum or withholding because her
conspiracy conviction qualified as a “particularly serious crime.” It
asserted that her testimony about the offense was not credible and
that the IJ could look to newspaper articles about the crime, which
it had filed with the court, for context. It also argued that she failed
to establish a nexus to a protected ground. In response, Marchena’s
counsel did not suggest that the articles were inaccurate or unreli-
able, but rather emphasized the severe and abusive circumstances
which “drove her to . . . take such drastic steps.”
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6 Opinion of the Court 21-11060
C.
The IJ rendered an oral decision denying relief. As relevant
here, the IJ determined that Marchena was ineligible for asylum
and withholding because her conviction for conspiracy to commit
aggravated assault was a “particularly serious crime.” 1 In that sec-
tion of the decision, the IJ first concluded that her conviction con-
stituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) and
(U) as a conspiracy to commit a crime of violence. The IJ then went
on to analyze “the circumstances and the underlying facts of the
conviction.” The IJ cited newspaper articles submitted by DHS in-
dicating that Marchena had “attempted to hire an undercover of-
ficer to kill her husband,” paying a deposit and giving specific in-
structions. The IJ also noted that Marchena pled guilty to “conspir-
acy to commit aggravated assault by soliciting another to cause se-
rious bodily injury” and was sentenced to three years in prison.
“Notwithstanding her plea to the lesser included charge,” the IJ
stated, her conviction qualified as a “particularly serious crime.” As
a result, according to the IJ, Marchena was eligible for CAT relief
only.
1 In addition, the IJ found that Marchena’s asylum application was untimely
and that her claims for asylum and withholding failed on the merits. The BIA
agreed with the timeliness finding and did not address the IJ’s merits ruling.
Marchena has abandoned any challenge to the timeliness determination,
which alone warrants denial of her asylum claim, and we will not consider the
merits because those issues were not addressed by the BIA. See Gonzalez v.
U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016).
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21-11060 Opinion of the Court 7
But the IJ also denied Marchena’s request for CAT relief,
finding that it was not “more likely than not that she would be tor-
tured by the Peruvian government or that she would subjected to
torture with the acquiescence of the Peruvian government.” The
IJ noted that the Peruvian government had made efforts to combat
the terrorist groups, “although they may be imperfect,” which in-
dicated that it would not acquiesce to the harm Marchena feared.
D.
Marchena appealed to the BIA, presenting three main argu-
ments. First, she contended that the IJ erred in deciding that her
conviction for conspiracy to commit aggravated assault constituted
a “particularly serious crime” that barred both asylum and with-
holding. Although she asserted that the IJ “misappl[ied] the legal
standard of what amounts to a conviction for a ‘particularly serious
crime,’” her argument was primarily factual in nature. She claimed
that the IJ failed to “giv[e] enough weight” to her mitigating evi-
dence and should have accounted for “the longstanding history of
abuse against [her] by her partner” and her desire to protect herself
and her children.
Second, Marchena argued that, contrary to the findings of
the IJ, the evidence showed that she had experienced torture in
Peru and that the government acquiesced in such torture by
“turn[ing] a blind eye to the crimes committed by the group.” She
said that many Shining Path terrorists had been pardoned and rein-
troduced into society and still posed a threat to her and other
women.
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8 Opinion of the Court 21-11060
Finally, Marchena maintained that the change in venue,
which was granted without affording her an opportunity to object,
prejudiced her case. She asserted that she did not retain current
counsel until 2017 and that she did not have sufficient contact with
counsel to prepare for the hearing.
E.
The BIA affirmed the IJ’s decision. In relevant part, the BIA
agreed with the IJ that Marchena was ineligible for asylum and
withholding because she had been convicted of a “particularly seri-
ous crime.” Citing the New Jersey statutes of conviction, the BIA
first affirmed the IJ’s determination that the conviction for conspir-
acy to commit aggravated assault qualified as an aggravated felony
crime of violence under 8 U.S.C. § 1101(a)(43)(F), which rendered
her ineligible for asylum under 8 U.S.C. § 1158(b)(2)(A) and (B). As
for withholding, the BIA found that the IJ “properly considered the
nature of the conviction, the type of sentence imposed, and the cir-
cumstances and underlying facts of the conviction.” And in the
BIA’s view, the IJ’s assessment of the underlying circumstances was
not clearly erroneous.
Next, the BIA affirmed the denial of CAT protection. In the
BIA’s view, the IJ “did not clearly err in her prediction as to what
would likely happen to [Marchena] upon return to Peru and the
degree of government involvement.” It also stated that, given the
IJ’s factual findings, Marchena did not establish that she would be
subjected to treatment that rises to the level of “torture” as defined
in governing regulations and BIA precedent.
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21-11060 Opinion of the Court 9
Finally, the BIA upheld the IJ’s decision not to grant a con-
tinuance because of the change in venue. The BIA found that DHS
established good cause for the change in venue and that, given the
lengthy history of the case and counsel’s longstanding representa-
tion of Marchena, a further continuance was not warranted. It fur-
ther concluded that Marchena was not prejudiced because she was
represented by counsel at the hearing and had a reasonable oppor-
tunity to present testimony, documents, and arguments in support
of her applications for relief. Marchena now petitions this Court
for review.
II.
We review the decision of the BIA only, except to the extent
that the BIA expressly adopts or agrees with the IJ’s opinion or rea-
soning. Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir.
2011). “We therefore review the IJ’s opinion, to the extent that the
BIA found that the IJ’s reasons were supported by the record, and
we review the BIA’s decision, with regard to those matters on
which it rendered its own opinion and reasoning.” Id. (quotation
marks omitted).
We review the agency’s factual findings for substantial evi-
dence and its conclusions of law on constitutional or statutory mat-
ters de novo. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350
(11th Cir. 2009); Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir.
2006). Review for substantial evidence is deferential and is based
on a construction of the record evidence that is most favorable to
the agency’s decision. Kazemzadeh, 577 F.3d at 1350. Findings of
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10 Opinion of the Court 21-11060
fact may be reversed only if the record compels a different result.
Id. at 1351.
But “[a] petitioner contesting a final order of removal must
exhaust the administrative immigration process before [s]he may
be heard in federal court.” Bing Quan Lin v. U.S. Att’y Gen., 881
F.3d 860, 866 (11th Cir. 2018). A failure to raise an issue before the
BIA amounts to a failure to exhaust, which deprives us of jurisdic-
tion to review the issue on appeal. Id. at 867. To properly raise an
issue, the petitioner must do more than make a “passing reference
to the issue” and instead must “provide information sufficient to
enable the BIA to review and correct any errors below.” Jeune v.
U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016) (quotation marks
omitted)
A.
We start with Marchena’s argument that she was denied due
process when the immigration court granted DHS’s motion to
change venue without giving her sufficient time to respond or
granting a continuance of the final removal hearing.
It is well-established that noncitizens are entitled to due pro-
cess in removal proceedings, including notice of the hearing and a
meaningful opportunity to be heard. See Reno v. Flores, 507 U.S.
292, 309 (1993). But a procedural deprivation does not amount to
a constitutional violation unless the noncitizen has suffered sub-
stantial prejudice as a result. Garcia v. U.S. Att’y Gen., 329 F.3d
1217, 1222 (11th Cir. 2003). To show substantial prejudice, the
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21-11060 Opinion of the Court 11
noncitizen must demonstrate that, in the absence of the alleged vi-
olations, the outcome of the proceedings would have been differ-
ent. Ibrahim v. U.S. Immigr. & Naturalization Serv., 821 F.2d 1547,
1550 (11th Cir. 1987).
Here, Marchena has not shown that she was substantially
prejudiced by the change in venue from New Jersey to Georgia.
She argues that the change of venue limited her access to her cho-
sen counsel, but her argument primarily relates to the detention
itself and the challenges posed by the COVID-19 pandemic, not the
change in venue for the asylum hearing.
In any case, Marchena does not explain what evidence or ar-
gument she could have presented to change the outcome of the
proceeding had it remained in New Jersey. Counsel was familiar
with the details of her applications, having represented her for sev-
eral years; counsel was permitted to appear at the asylum hearing
by telephone, despite being based in New Jersey, and was able to
offer evidence and argument; and if Marchena wished to offer ad-
ditional testimony by other witnesses based in New Jersey—the
content of which she does not divulge in her briefing—she could
have submitted affidavits. Indeed, she previously had submitted
numerous statements from various individuals in support of her
applications for asylum and withholding. Accordingly, Marchena
has not shown she was prejudiced by the denial of an opportunity
to respond to the motion for a change of venue or by the change
of venue itself.
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12 Opinion of the Court 21-11060
B.
Next, we conclude that Marchena did not exhaust her claim
that the IJ and BIA failed to follow its precedent when determining
whether she was convicted of a “particularly serious crime.” Be-
fore explaining why, we begin with the relevant legal background.
A noncitizen is ineligible for asylum or withholding of re-
moval if she has been convicted of a “particularly serious crime.” 8
U.S.C. § 1158(b)(2)(A)(ii) (asylum); Id. § 1231(b)(3)(B)(ii) (withhold-
ing). What counts as a “particularly serious crime” depends, to
some degree, on the form of relief. For asylum, any “aggravated
felony” automatically counts as a “particularly serious crime.” Id.
§ 1158(b)(2)(B)(i). But for withholding, an “aggravated felony” is
not necessarily a “particularly serious crime” unless the noncitizen
received a sentence of “at least 5 years.” Id. § 1231(b)(3)(B). Nev-
ertheless, notwithstanding the length of the sentence, the Attorney
General may exercise his or her discretion to determine on a case-
by-case basis whether a noncitizen has been convicted of a “partic-
ularly serious crime.” Id.; Lapaix v. U.S. Att’y Gen., 605 F.3d 1138,
1143 (11th Cir. 2010). That authority has been delegated to immi-
gration judges. Lapaix, 605 F.3d at 1143.
BIA precedent requires a two-step approach to making this
case-by-case determination. In re N-A-M-, 24 I. & N. 336, 342 (BIA
2007). First, the agency looks to the elements of the offense to de-
termine if it is potentially within the ambit of a “particularly serious
crime.” Id. If not, “the individual facts and circumstances of the
offense are of no consequence.” Id. But if the elements bring the
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21-11060 Opinion of the Court 13
offense within the ambit of a “particularly serious crime,” “all reli-
able information” may be considered about the offense, focusing
on the nature of the crime as committed. See id.
The IJ and BIA determined that Marchena was ineligible for
asylum and withholding because her conviction for conspiracy to
commit aggravated assault qualified as a “particularly serious
crime.” Marchena does not dispute the agency’s determination as
it relates to asylum. But regarding withholding, she maintains that
the BIA erred by failing to conduct the “threshold elements inquiry
as required by BIA precedent,” by first determining whether the
conviction was within the ambit of a “particularly serious crime,”
before proceeding to analyze the underlying circumstances of the
offense.
But Marchena did not properly raise this argument to the
BIA. While her brief to the BIA referred to the two-step analysis
and asserted that the IJ misapplied the legal standard for what qual-
ified as a “particularly serious crime,” these passing references were
not sufficient to exhaust a claim that the IJ skipped the first step of
the analysis. See Jeune, 810 F.3d at 800. The actual substance of
Marchena’s argument related to the second step of the analysis,
specifically the IJ’s assessment of the underlying facts and circum-
stances of the offense and the IJ’s alleged failure to properly weigh
the years of horrific abuse from her husband that led to the offense.
But that argument did not “provide information sufficient to ena-
ble the BIA to review and correct any errors below” regarding the
first step. See id. We therefore must conclude that Marchena failed
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14 Opinion of the Court 21-11060
to exhaust her current claim and that we lack jurisdiction to review
it. See Bing Quan Lin, 881 F.3d at 866. For that reason, we dis-
miss this aspect of the petition.
C.
Finally, Marchena maintains that the agency made legal and
factual errors when determining that she was not entitled to CAT
relief. She asserts that the agency misconstrued the legal definition
of torture and failed to give appropriate weight to the past harm
she suffered in Peru.
We review factual challenges to CAT orders for substantial
evidence, and the findings of fact are conclusive unless the record
would compel us to conclude the contrary. Nasrallah v. Barr, 590
U.S. ___, 140 S. Ct. 1683, 1692 (2020). We review legal challenges
de novo. See Ali, 443 F.3d at 808.
An applicant seeking CAT relief must establish “that it is
more likely than not that . . . she would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). In as-
sessing the likelihood of future torture, the agency should consider
all relevant evidence, including “[e]vidence of past torture inflicted
upon the applicant.” Id. § 1208.16(c)(3).
The regulations define “torture” in part as the intentional in-
fliction of “severe pain or suffering,” with certain specified motiva-
tions, at the instigation or with the acquiescence of the govern-
ment. 8 C.F.R. § 1208.18(a)(1). “Acquiescence of a public official
requires that the public official, prior to the activity constituting
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21-11060 Opinion of the Court 15
torture, have awareness of such activity and thereafter breach his
or her legal responsibility to intervene to prevent such activity.” Id.
§ 1208.18(a)(7). Where a government actively combats a non-gov-
ernmental group, that the government is not entirely successful in
its efforts does not amount to acquiescence. Reyes-Sanchez v. U.S.
Att’y Gen., 369 F.3d 1239, 1243 (11th Cir. 2004).
Here, Marchena has not established reversible error in the
BIA’s denial of CAT relief. We assume without deciding that the
brutal and horrific attack she suffered in 1996 rises to the level of
“extreme . . . cruel and inhumane treatment” that could constitute
“torture.” See 8 C.F.R. § 1208.18(a)(2). But we must conclude that
substantial evidence supports the agency’s finding that the Peru-
vian government would not acquiesce in the harm Marchena fears
she would suffer if returned to Peru. See Reyes-Sanchez, 369 F.3d
at 1243; 8 C.F.R. § 1208.16(c)(2).
First, Marchena does not identify any evidence indicating
that the Peruvian government acquiesced in the harm Shining Path
members inflicted on her in Peru. While Marchena criticizes the IJ
for pointing out that she did not report the attack to police, it is
relevant insofar as it reflects the lack of government awareness of
or involvement in her particular circumstances.
Second, and more importantly, the record supports the IJ’s
finding, affirmed by the BIA, that the Peruvian government does
not presently acquiesce in the Shining Path’s activities. See id. The
IJ found that the Peruvian government had made “efforts to com-
bat the terrorist groups,” which Marchena does not dispute.
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16 Opinion of the Court 21-11060
Although country reports reflect that the government not been en-
tirely successful in its efforts against the Shining Path, they do not
suggest that the government would acquiesce in any torture that
the group might inflict on her. Moreover, the presence of corrup-
tion and violence against women in Peru, while certainly disturb-
ing, does not, standing alone, compel a conclusion that it would be
“more likely than not” that Marchena would suffer torture by or
with the acquiescence of the government or a public official. See 8
C.F.R. § 1208.16(c)(2); see id. § 1208.18(a)(1).
For these reasons, we deny in part and dismiss in part the
petition for review.
PETITION DENIED IN PART and DISMISSED IN PART.