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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11631
                        Non-Argument Calendar
                      ________________________

                       Agency No. A206-622-169



BRENDY ASCENCIO-CORADO,

                                                                      Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                      ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                       ________________________

                            (December 27, 2019)

Before MARTIN, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM:
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      Brendy Ascencio-Corado, a citizen of Guatemala, seeks review of the Board

of Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”)

denial of her application for asylum, withholding of removal, and Convention

Against Torture (“CAT”) protection. Ascencio-Corado argues that the BIA erred

when it retroactively applied Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018),

because agency rules should apply only prospectively given their close tie to

legislation.

                                         I.
A.    FACTUAL BACKGROUND

      Ascencio-Corado is a native and citizen of Guatemala, born July 16, 1982, in

Jalpatagua, Guatemala. In 2010, she met her husband, Josue Gilberto Pacheco

Lopez. They dated for three years before she and her two children from a previous

relationship moved in with Pacheco Lopez in July of 2013. One month later,

Pacheco Lopez began to abuse her and control her life. He dictated how Ascencio-

Corado could dress and whether she could wear makeup at her job. He physically

and verbally abused her in both private and public. For example, Pacheco Lopez

(1) once hit Ascencio-Corado in the face with an umbrella at a bus stop; (2) put her

in a headlock upon picking her up from work; and (3) hit her in front of his mother

and grandfather. In private, Pacheco Lopez would rape her daily, and if she

attempted to refuse him, he would hit her and she believed he would kill her.


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During this time, Ascencio-Corado continued to work, even though Pacheco Lopez

did not want her to. However, she eventually quit her job because Pacheco Lopez

continuously pursued her while she was at work and would abuse her physically

when he came to her workplace. Ascencio-Corado also sent her children to live

with another family member because she did not want them to see Pacheco Lopez

abuse her.

      After five or six months of living together, Pacheco Lopez confessed to

Ascencio-Corado that he was a “gang member” and “a murderer.” He admitted

that he had killed his former girlfriend because of her affiliation with another gang,

and, when a potential gang member refused to join, Pacheco Lopez threw him

down a ravine. Around the time of this confession, Ascencio-Corado tried to leave

Pacheco Lopez for the first of many times. She was largely unsuccessful because

each time she voiced her intention to leave, he would threaten to kill her and her

children. Ascencio-Corado was also afraid of Pacheco Lopez’s connections,

through his gang, to the police.

      She tried to leave him five times in total. The first time, in November 2013,

she told Pacheco Lopez she could not take it anymore because he was going to kill

her. He responded by saying she did not know who she was messing with.

Ascencio-Corado did not physically leave the house that first time because she was

scared. The other four times she tried to leave him, she told him—when he was


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calm—that it was best if they separated, but he replied with verbal threats. She

finally separated from him on January 5, 2015, because she “made a decision either

to live or to die.” While Ascencio-Corado was waiting at a bus stop, Pacheco

Lopez arrived—very drunk—grabbed her by the head, and beat her. While he was

beating her, a motorcycle drove by. The biker saw what was happening, stopped,

and told Pacheco Lopez to stop or he would call the police. Pacheco Lopez

released Ascencio-Corado and she left, bleeding. She then went to a friend’s house

to live for about a month.

       However, Pacheco Lopez found her at the friend’s house, forced her to let

him inside, and beat her. She left and relocated eight hours away to her mother’s

home. Pacheco Lopez searched for Ascencio-Corado, but never found her at this

location. She never reported the abuse she suffered to the Guatemalan police

because, if she had, Pacheco Lopez would “immediately” find out.

       Ascencio-Corado then left for the United States, where she entered near

Hidalgo, Texas, around February 28, 2014, and was detained by the Department of

Homeland Security (“DHS”). Pacheco Lopez does not know Ascencio-Corado is

in the United States, and she fears returning to Guatemala because she believes he

will kill her.




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B.    PROCEDURAL HISTORY

      DHS commenced removal proceedings on March 21, 2014, when it served

Ascencio-Corado with a Notice to Appear (“NTA”), charging her as removable

from the United States for being present without having been admitted or paroled.

Ascencio-Corado appeared pro se before the San Antonio Immigration Court on

May 12, 2014, and admitted the factual allegations in the NTA. She timely filed

her Form I-589 Application for Asylum under Section 208 of the Immigration and

Nationality Act (“INA”), and timely filed her applications for withholding of

removal and CAT protection.

      On December 11, 2017, the IJ issued a decision denying her application for

asylum, withholding of removal and relief under the CAT, and ordered her

removed to Guatemala. In explaining its decision, the IJ found that Ascencio-

Corado was not credible. The IJ also found that her proposed “particular social

group” (“PSG”) of “women of Guatemala who are unable to leave their

relationship” was a cognizable PSG, but the IJ held that she did not establish her

membership within that PSG nor that her fear of future harm was caused by her

membership within the PSG. The IJ also held that her fear of returning to

Guatemala was not objectively reasonable.

      On December 26, 2017, Ascencio-Corado timely appealed the IJ’s decision

to the BIA. The BIA issued a decision on March 13, 2019, affirming the IJ’s


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determination that Ascencio-Corado did not meet her burden of proof to qualify for

asylum. Applying Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), the BIA

reversed the IJ’s determination that Ascencio-Corado’s PSG was cognizable. It

then upheld the IJ’s decision that Ascencio-Corado did not prove her fear of future

harm was caused by her membership in the PSG she proposed. Finally, the BIA

declined to terminate Ascencio-Corado’s proceedings based on her argument that

the NTA issued in her case did not list the time and place of her initial removal

hearing.

       Ascencio-Corado timely appealed the BIA’s determination to this Court.

See INA § 242(b)(1), 8 U.S.C. § 1252(b)(1).


                                               II.
       Ascencio-Corado’s only argument on appeal is that the BIA erred in

retroactively applying Matter of A-B- to her appeal to hold that her proposed PSG

of “women of Guatemala who are unable to leave their relationship” was not

cognizable. 1 She requests that her petition be remanded to the BIA for further

consideration “without the impermissible retroactive reliance on Matter of A-B-.”

The Government argues that Ascencio-Corado waived this argument by failing to


       1
          We need not address the government’s argument that we do not have jurisdiction to
review the denial of Ascencio-Corado’s application for CAT protection because she has not
raised this issue. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014)
(“Abandonment of an issue can also occur when passing references appear . . . [as] mere
‘background’ to the appellant’s main arguments.”).
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argue that Matter of A-B- should not be applied retroactively before the BIA, and,

in the alternative, that the BIA properly applied Matter of A-B- because it did not

announce a new agency rule and simply reiterated BIA precedent.

      Before addressing Ascencio-Corado’s arguments on the merits, we must

review our subject matter jurisdiction de novo. Indrawati v. U.S. Att’y Gen., 779

F.3d 1284, 1297 (11th Cir. 2015). We conclude that we need not address whether

the BIA properly applied Matter of A-B- retroactively because we lack jurisdiction

to hear Ascencio-Corado’s claim. We lack jurisdiction to consider a claim raised

in a petition for review unless the petitioner has exhausted her administrative

remedies. See 8 U.S.C. § 1252(d)(1). In other words, we “lack jurisdiction to

consider claims that have not been raised before the BIA.” Sundar v. INS, 328

F.3d 1320, 1323 (11th Cir. 2003).

      Matter of A-B- was issued approximately two months before Ascencio-

Corado submitted her brief appealing the IJ’s decision to the BIA. In that brief,

Ascencio-Corado argued that “her proposed group is still cognizable, even after the

ghastly decision rendered by the Attorney General in Matter of A-B-, 27 I&N Dec.

316 (A.G. 2018).” She failed to address whether Matter of A-B- applied

retroactively, therefore depriving the BIA of the opportunity to fully consider her

claims. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250–51 (11th

Cir. 2006) (per curiam).


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      We have previously rejected a failure-to-exhaust argument when the

underlying claim is based on the text of the BIA’s decision, but Ascencio-Corado’s

claim is different from the “reasoned consideration” claims we addressed in

Indrawati. See 779 F.3d at 1299. There, we held it was “facially nonsensical” to

fault the petitioner for not raising an argument about the lack of reasoned

consideration displayed by a decision that was not yet in existence. Id. As

described above, Ascencio-Corado’s decision to handle Matter of A-B- by arguing

her PSG was still cognizable “does not constitute grounds for reversal or remand

that arose only after the issuance of the BIA’s decision.” See Munguia-Mejia v.

U.S. Att’y Gen., 781 F. App’x 857, 860 (11th Cir. 2019) (unpublished) (per

curiam). Rather, she chose to make one argument regarding Matter of A-B- and

chose to forego the argument she raises now. This means the BIA did not have an

opportunity to fully consider the “core issue now on appeal,” and we do not have

jurisdiction to hear her claim. Indrawati, 779 F.3d at 1297; cf. Guzman-Garcia v.

U.S. Att’y Gen., 760 F. App’x 896, 898 (11th Cir. 2019) (unpublished) (per

curiam) (holding petitioner did not satisfy “core issue” exhaustion requirement

when he generally raised an issue before the BIA but “failed to exhaust the more

specific argument” he raised before this Court). Accordingly, we must deny

Ascencio-Corado’s petition for review.

      PETITION DENIED.


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