                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0078n.06

                                           No. 18-3564

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                Feb 15, 2019
ROSA CHIROY-MELCHOR,                                   )                    DEBORAH S. HUNT, Clerk
                                                       )
       Petitioner,                                     )
                                                       )    ON PETITION FOR REVIEW
v.                                                     )    FROM THE UNITED STATES
                                                       )    BOARD OF IMMIGRATION
WILLIAM P. BARR, Attorney General,                     )    APPEALS
                                                       )
       Respondent.                                     )



       BEFORE: McKEAGUE, GRIFFIN, and NALBANDIAN, Circuit Judges.

       PER CURIAM. Rosa Chiroy-Melchor, a native and citizen of Guatemala, petitions this

court for review of an order of the Board of Immigration Appeals (BIA) dismissing her appeal

from the denial of her asylum application. We DENY the petition for review.

                                                I.

       Chiroy-Melchor entered the United States without inspection in January 2014, when she

was twenty-three years old. Upon her apprehension in Arizona, the Department of Homeland

Security served Chiroy-Melchor with a notice to appear in removal proceedings, charging her with

removability as an alien lacking a valid entry document when she sought admission to the United

States. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Chiroy-Melchor appeared before an immigration judge

(IJ), admitted the factual allegations set forth in the notice to appear, and conceded removability

as charged.
No. 18-3564, Chiroy-Melchor v. Barr

       Chiroy-Melchor filed an application for asylum, withholding of removal, and protection

under the Convention Against Torture (CAT), seeking relief based on her race and membership in

a particular social group. Chiroy-Melchor alleged in her application that her brothers-in-law

harassed and attempted to rape her and that they will rape and kill her and her daughter if she

returns to Guatemala. At the merits hearing before the IJ, Chiroy-Melchor testified that she came

to the United States because her brothers-in-law were threatening her. According to Chiroy-

Melchor, her brother-in-law, Hermenegildo, tried to rape her when she was eight years old and

continued to harass her after that. Chiroy-Melchor testified that Hermenegildo left her alone after

she got married in 2005, but resumed harassing her when her husband left for the United States in

2010. Another brother-in-law, Francisco, also harassed Chiroy-Melchor beginning in 2013. At

the conclusion of the hearing, Chiroy-Melchor claimed persecution based on her membership in

two particular social groups: (1) the Chiroy-Melchor family and (2) Guatemalan women who lack

effective familial protection.

       The IJ subsequently denied Chiroy-Melchor’s application for asylum, withholding of

removal, and CAT protection and ordered her removal to Guatemala. The IJ found Chiroy-

Melchor to be credible but found, despite discrepancies between her testimony and her written

submissions, that the sexual advances of her brothers-in-law did not constitute persecution. The

IJ rejected Chiroy-Melchor’s particular social groups because she had failed to show that the

Chiroy-Melchor family was socially distinct within Guatemalan society or that the lack of effective

familial protection was an immutable characteristic. The IJ further noted that Chiroy-Melchor had

failed to explain why she could not relocate within Guatemala and that her daughter remained in

Guatemala unharmed. Because Chiroy-Melchor had not demonstrated a well-founded fear of

persecution to support her asylum claim, the IJ determined, she could not show a clear probability

of persecution to qualify for withholding of removal. As for her claim for CAT protection, the IJ

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concluded that Chiroy-Melchor had failed to prove a clear probability of torture if she returned to

Guatemala.

       On appeal to the BIA, Chiroy-Melchor argued that the IJ failed to consider her “gender,

her status as an indigenous Achi Mayan in Guatemala, and her membership in a particular social

group” in denying her application. Chiroy-Melchor asserted that she was entitled to asylum and

withholding of removal because she “suffered past persecution due to her sex and ethnicity and

has a presumption of . . . a well-founded fear of future persecution.” The BIA dismissed Chiroy-

Melchor’s appeal. The BIA pointed out that Chiroy-Melchor asserted two particular social groups

before the IJ: (1) the Chiroy-Melchor family and (2) Guatemalan women who lack effective

familial protection. Because Chiroy-Melchor did “not meaningfully contest the Immigration

Judge’s conclusion that neither of these proffered particular social groups is cognizable,” the BIA

deemed the issue abandoned. The BIA refused to address the particular social groups asserted by

Chiroy-Melchor for the first time on appeal. The BIA went on to conclude that, without a nexus

to a protected ground, Chiroy-Melchor could not demonstrate past persecution or a well-founded

fear of persecution on account of a protected ground and therefore could not satisfy her burden of

proof for asylum or the more stringent standard for withholding of removal. Finally, the BIA

declined to disturb the IJ’s determination that Chiroy-Melchor had failed to meet her burden of

proof for CAT protection.

       This timely petition for review followed. Chiroy-Melchor’s brief in support of her petition

does not address her claims for withholding of removal and CAT protection. Chiroy-Melchor has

therefore forfeited any challenge to the agency’s denial of those claims by failing to raise them

before this court. See Shkabari v. Gonzales, 427 F.3d 324, 327 n.1 (6th Cir. 2005).

                                                II.



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No. 18-3564, Chiroy-Melchor v. Barr

       “Where, as here, the BIA issues its own decision rather than summarily affirming the IJ,

the BIA decision is reviewed as the final agency decision, but the IJ’s decision is also reviewed to

the extent that the BIA adopted it.” Harmon v. Holder, 758 F.3d 728, 732 (6th Cir. 2014). We

review the agency’s factual findings, including the determination that the alien failed to establish

eligibility for asylum, for substantial evidence, Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir.

2006), reversing only if “any reasonable adjudicator would be compelled to conclude to the

contrary,” 8 U.S.C. § 1252(b)(4)(B). “An alien who seeks asylum must establish that she meets

the definition of a ‘refugee,’ which means a person who is unable or unwilling to return to her

home country because of past persecution or a ‘well-founded fear’ of future persecution ‘on

account of race, religion, nationality, membership in a particular social group, or political

opinion.’” Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010) (quoting 8 U.S.C.

§ 1101(a)(42)).

       The BIA affirmed the IJ’s denial of asylum on the basis that, in the absence of a nexus

between her alleged persecution and a statutorily protected ground, Chiroy-Melchor could not

demonstrate past persecution or a well-founded fear of persecution on account of such a protected

ground. Pointing out that the nexus issue was dispositive, the BIA expressly declined to address

Chiroy-Melchor’s other arguments in support of her asylum claim. Because our review is limited

to the issues decided by the BIA, see INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002) (per

curiam), Chiroy-Melchor’s arguments about issues other than the dispositive nexus issue are

misplaced.

       In support of her petition for review, Chiroy-Melchor contends that she established an

adequate nexus between the harm suffered by her and her membership in the proposed particular

social group of Guatemalan women without effective familial protection. But Chiroy-Melchor

failed to assert this particular social group in her appeal to the BIA. We lack jurisdiction to review

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No. 18-3564, Chiroy-Melchor v. Barr

issues that were not exhausted before the BIA. See 8 U.S.C. § 1252(d)(1); Lin v. Holder, 565 F.3d

971, 978 (6th Cir. 2009). Because Chiroy-Melchor’s appeal did “not meaningfully contest” the

IJ’s conclusion that her proposed particular social group of Guatemalan women who lack effective

familial protection was not cognizable, the BIA deemed the issue abandoned. Chiroy-Melchor has

forfeited any challenge to the BIA’s forfeiture ruling by failing to raise the issue before this court.

See Shkabari, 427 F.3d at 327 n.1. Chiroy-Melchor’s brief in support of her petition for review

also fails to address the other particular social groups that she proposed before the IJ and the BIA,

thereby forfeiting review of those issues as well.

                                                 III.

          Given that Chiroy-Melchor failed to exhaust her administrative remedies and also forfeited

arguments with respect to defining a particular social group and establishing a nexus between the

alleged persecution and her membership in a cognizable group, the record does not compel the

conclusion that she is eligible for asylum. Accordingly, we DENY Chiroy-Melchor’s petition for

review.




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