United States Court of Appeals For the First Circuit

No. 21-1922

BILIAN ARGELIO CANTE-LOPEZ,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

Randy Olen on brief for petitioner. Sherease Pratt, Senior Litigation Counsel, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, and Sheri R. Glaser, Senior Litigation Counsel, were on brief, for respondent.

October 5, 2022 BARRON, Chief Judge. Bilian Argelio Cante-Lopez, a

citizen of Guatemala, petitions for review of the denial by the

Board of Immigration Appeals ("BIA") of his application for

withholding of removal under

(b)(3). The BIA

affirmed the Immigration Judge ("IJ") without opinion. The

petition is dismissed due to Cante-Lopez's failure to exhaust an

issue on which his challenge to the BIA's ruling depends.

I.

Cante-Lopez entered the United States without inspection

on May 12, 2014 and was placed in removal proceedings on May 13,

2014. At his removal proceedings before the IJ in Boston,

Massachusetts on December 20, 2018, he sought asylum and

withholding of removal or, in the alternative, voluntary

departure. The IJ denied Cante-Lopez's asylum claim and

application for withholding of removal. The IJ then denied his

request for voluntary departure.

In denying Cante-Lopez's application for withholding of

removal, the IJ determined that Cante-Lopez had not suffered past

"harm rising to the level" of statutory persecution. Next, the IJ

determined that Cante-Lopez had failed to establish that the harm

he had suffered was on account of a statutorily protected ground.

Finally, the IJ determined that, "[f]or the reasons explained

above," Cante-Lopez had failed to establish that it was more likely

- 2 - than not that his "life or freedom would be threatened on account

of any such protected ground" in the future.

Following the IJ's ruling, Cante-Lopez filed a notice of

appeal with the BIA on Form EOIR-26.

(b). In

the space provided to "[s]tate in detail the reason(s) for this

appeal," Cante-Lopez stated:

The Immigration Judge did deny the Respondent's applications for asylum and withholding of removal. The Immigration Judge did err in her application of the facts (multiple murders, extortions, threats) to the particular social group of family. It is submitted that the facts of record, credible facts, demonstrate that the motivation for the past persecutions to the Respondent's family was causually [sic] linked and that the motivation was kinship.

Cante-Lopez then filed a two-page brief in support of

his appeal to the BIA. Cante-Lopez presented the issue as follows:

"Did the Immigration Judge err in failing to find that the

Respondent was entitled to a grant of withholding of removal based

upon his membership in a particular social group." His brief

relied on what he contended was BIA precedent "establish[ing] that

family may serve as a particular social group for purposes of

asylum/withholding analysis" and argued that Cante-Lopez was "the

latest in a long line of threatened individuals from the same

extended family of brothers and sisters and their offspring."

The BIA affirmed without opinion pursuant to

(e)(4). After securing new counsel, Cante-Lopez petitioned

this court for review of the BIA's decision.

- 3 - II.

Cante-Lopez petitions for review of only the BIA's

denial of the application for withholding of removal. Cante-Lopez

contends that the IJ -- and thus the BIA, by affirming the IJ

without opinion -- erred in denying his application for withholding

of removal because the IJ wrongly determined that Cante-Lopez had

not shown that the harm that he either had suffered or would suffer

constituted persecution "on account of" a statutorily protected

ground, given what he contends the record shows about the nexus

between his family status and the harm that he both had suffered

and would suffer. But, even if we were to assume that Cante-Lopez

is right on that score, we still must dismiss his petition. The

reason is that, as we will explain, the IJ denied Petitioner's

application for withholding of removal for failure to meet his

burden to show that either the harm that he had suffered or the

harm that he would suffer rises to the level of persecution.

(b)(1)-(2). Yet, Cante-Lopez did not challenge

that aspect of the IJ's ruling when he appealed that ruling to the

BIA. Thus, Cante-Lopez cannot bring that challenge to us for the

first time, given that the issue was not exhausted.

In contending otherwise, Cante-Lopez disputes that, with

respect to his claim that he would suffer future persecution on

account of his family status, the IJ made any determination as to

whether the future harm that Cante-Lopez claimed that he would

- 4 - suffer was severe enough to rise to the level of persecution.

Thus, Cante-Lopez contends, he was not required to raise that issue

before the BIA, as he contends that the IJ relied solely on the

lack of a nexus in rejecting Cante-Lopez's future-persecution-

based withholding of removal claim. But, we do not agree with

that understanding of the IJ's ruling.

As we have noted above, in rejecting Cante-Lopez's claim

for withholding of removal based on a showing of past persecution,

the IJ relied on two distinct conclusions. First, the IJ

determined that the record showed that Cante-Lopez's past harm did

not rise to the level of statutory persecution. In addition, the

IJ concluded that Cante-Lopez had failed to show that any harm he

suffered prior to leaving Guatemala was inflicted on account of a

statutorily protected ground because Cante-Lopez had failed to

demonstrate that his family membership was the motivation for the

harm. And, as we have also noted above, the IJ then rejected

Petitioner's withholding of removal application insofar as it was

based on a showing of future persecution "[f]or the reasons

explained above." Thus, in context, we understand the IJ to have

rejected Petitioner's future persecution claim on the same grounds

as his past persecution claim: Cante-Lopez failed to show that any

future harm would rise to the level of statutory persecution, and

he failed to show that the motivation of any such future harm would

be his family membership.

- 5 - We note that this reading draws support not merely from

the IJ's use of the phrase "[f]or the reasons explained above"

(emphasis added). It also draws support from the fact that Cante-

Lopez did not identify any evidence to support a finding of future

persecution independent of his past persecution claims.

We understand Cante-Lopez's remaining contention to be

that, even if the IJ did find that Cante-Lopez had failed to show

that the harm he contended he would suffer in the future was not

severe enough to constitute persecution, we may still address the

merits of that finding by the IJ despite the fact that Petitioner

did not challenge that finding before the BIA. Cante-Lopez

contends that is so because the BIA affirmed the IJ without

opinion.

Cante-Lopez is right that we have not squarely held that

a failure to raise an issue to the BIA constitutes a failure to

exhaust the issue that deprives us of jurisdiction when the BIA

affirms the IJ without opinion. But, we have held that a failure

to exhaust is fatal in cases where the BIA has affirmed the IJ

without opinion. See Aguirre v. Holder,

(1st Cir.

2013); Jupiter v. Ashcroft,

(1st Cir. 2005);

Un v. Gonzales,

(1st Cir. 2005); Kigozi v.

Gonzales, No. 04-2090,

, at *1 (1st Cir. Sept. 8,

2005); cf. Singh v. Gonzales,

, 160 n.3 (1st Cir. 2005)

(exercising jurisdiction over issues raised before the BIA and

- 6 - affirmed without opinion). And every other circuit to have

considered the issue has ruled similarly. See Zhong v. U.S. Dep't

of Just.,

(2d Cir. 2007); Joseph v. Att'y. Gen.,

(3d Cir. 2006); Alyas v. Gonzales,

(8th Cir. 2005); Zara v. Ashcroft,

(9th

Cir. 2004); Alim v. Gonzales,

(11th Cir. 2006);

cf. Atemnkeng v. Barr,

(4th Cir. 2020)

(exercising jurisdiction over claims "adequately" exhausted before

the BIA and affirmed without opinion); Lopez-Perez v. Garland,

(5th Cir. 2022) (same); Hassan v. Gonzales,

(6th Cir. 2005) (same); Pasha v. Gonzales,

(7th Cir. 2005) (similar). Nor do we see any reason to

conclude otherwise, given that the purpose of the exhaustion

requirement is to provide the agency with an opportunity to address

an issue in the first instance. Mazariegos-Paiz v. Holder,

(1st Cir. 2013). After all, the BIA's opportunity

to address an issue in the first instance is not a function of

whether it chooses to issue an opinion. It is a function of

whether the issue was presented to it for consideration.1 See

; Singh,

n.3.

1Petitioner contends that the IJ and BIA also erred by relying on Matter of A-B-,

(A.G. 2018), Matter of A- B-,

(A.G. 2021), and Matter of L-E-A-,

(A.G. 2019), three Attorney General decisions that were vacated while this matter was pending before this court. However, not one of these decisions is cited in the IJ's opinion.

- 7 - III.

For these reasons, the petition for review is dismissed.

Therefore, they do not form the basis of the IJ's ruling or the BIA's affirmance, and they have no bearing on this case.

- 8 -