Lopez-Flores v. Garland ( 2023 )

Appellate Case: 22-9516 Document: 010110821068 Date Filed: 03/03/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 3, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
LUIS RODOLFO LOPEZ-FLORES,
Petitioner,
v. No. 22-9516
(Petition for Review)
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before MORITZ, EID, and ROSSMAN, Circuit Judges.
_________________________________
Petitioner Luis Rodolfo Lopez-Flores is a citizen of El Salvador. An
immigration judge denied his applications for asylum, restriction on removal, and
protection under the Convention Against Torture. The Board of Immigration
Appeals (Board) dismissed his appeal, and he now petitions for review of the Board’s
decision. Several parts of his petition present arguments that he did not exhaust
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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before the Board, and we dismiss those parts for lack of jurisdiction. We otherwise
deny the petition.
I. Background
Found credible by the immigration judge, Petitioner testified that he fears
persecution in El Salvador from two sources: a man named Roberto Castro and
members of the Mara Salvatrucha gang (MS-13). Petitioner’s family had problems
with Castro going back many years. Before Petitioner’s birth, Castro raped
Petitioner’s aunt. Castro also broke into Petitioner’s parents’ home to beat them up.
And Petitioner’s mother helped with a prosecution that landed Castro in prison.
Petitioner’s first run-in with Castro happened in 2015. By then, Petitioner was
an adult. Castro approached him and said he would “get revenge.” R. at 90. Later
that year, Petitioner was sitting on his motorcycle when Castro’s nephew attacked
him from behind. Petitioner defended himself, and eventually his friends intervened
to end the fight. During the fight, Castro’s nephew said that he would “get even or
get revenge.” R. at 94. Castro later threatened again to “get even” with Petitioner
for the fight with his nephew. R. at 96. And on another occasion, Castro claimed to
know what family Petitioner came from and threatened “to take care of some old
business.” R. at 97.
Petitioner’s first encounter with MS-13 members happened while he ate lunch
with friends. Gang members approached and asked him to join MS-13. He
responded that he did not want to join because the gang “took part in violent acts and
raped women.” R. at 103. The following year, gang members tried to extort him,
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asking him to pay them $400 per month. About a week later the gang members were
waiting for Petitioner when he left his university. They surrounded his car. One of
them reached into his pants, behavior Petitioner took to mean that the man had a
weapon. Petitioner sped away in his car. Petitioner had another encounter with gang
members when he visited his girlfriend. While he spoke with his girlfriend, three
gang members approached him from behind, threw him to the ground, and beat him
with their hands and feet until he escaped.
Petitioner suspected his problems with gang members and Castro were
connected because one of the gang members who had bothered him is friends with
Castro.
Fearing Castro and the gang members, Petitioner came to the United States.
The Department of Homeland Security began removal proceedings against him.
After conceding he was removable, Petitioner applied for asylum, restriction on
removal, and protection under the Convention Against Torture. The immigration
judge denied his applications, and the Board dismissed his appeal.
II. Discussion
A single Board member issued a brief order affirming the immigration judge’s
decision in this case, so we review the Board’s decision and any parts of the
immigration judge’s decision that it relies on. See Dallakoti v. Holder, 619 F.3d
1264, 1267 (10th Cir. 2010). We review the Board’s legal conclusions de novo. Id.And we review its factual findings for substantial evidence, meaning we will treat
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those findings as “conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” Id. (internal quotation marks omitted).
A. Asylum
To receive asylum, an applicant must be a “refugee.” 8 U.S.C.
§ 1158(b)(1)(A). A refugee is a person who is unable or unwilling to return to his or
her country because of persecution or a well-founded fear of persecution on account
of any of five protected grounds: race, religion, nationality, political opinion, or
membership in a particular social group. Id. § 1101(a)(42); Rodas-Orellana v.
Holder, 780 F.3d 982, 986 (10th Cir. 2015). An applicant can obtain refugee status
by showing past persecution on account of a protected ground, which creates a
rebuttable presumption of a well-founded fear of future persecution on account of
such a ground. Rodas-Orellana, 780 F.3d at 986.
The Board concluded that the harm Petitioner suffered in El Salvador did not
amount to persecution. “Persecution is an extreme concept that does not include
every sort of treatment our society regards as offensive.” Zhi Wei Pang v. Holder,
665 F.3d 1226, 1233 (10th Cir. 2012) (brackets and internal quotation marks
omitted). “Threats alone generally do not constitute actual persecution; only rarely,
when they are so immediate and menacing as to cause significant suffering or harm in
themselves, do threats per se qualify as persecution.” Vatulev v. Ashcroft, 354 F.3d
1207, 1210 (10th Cir. 2003). Whether an asylum applicant established past
persecution “is a question of fact, even if the underlying factual circumstances are
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not in dispute and the only issue is whether those circumstances qualify as
persecution.” Vicente-Elias v. Mukasey, 532 F.3d 1086, 1091 (10th Cir. 2008).
Substantial evidence supports the Board’s conclusion that Petitioner did not
show past persecution. Like the agency before us, we recognize that Petitioner
endured “painful experiences” in El Salvador. R. at 3. But the record does not
compel the conclusion that those experiences amounted to persecution. Cf. Sidabutar
v. Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007) (upholding a finding of no
persecution where the petitioner testified that he had been beaten repeatedly); Kapcia
v. INS, 944 F.2d 702, 704–05, 708 (10th Cir. 1991) (same where the petitioners
testified that they had been detained and beaten).
Petitioner argues that MS-13 members intended to shoot him when they
surrounded his car outside the university. And, as he says, “attempted murder is
persecution.” Karki v. Holder, 715 F.3d 792, 805 (10th Cir. 2013) (internal quotation
marks omitted). But although Petitioner characterizes this encounter as an attempted
murder, the evidence—testimony that one of the gang members reached into his
pants—does not compel that characterization.
Petitioner also highlights that MS-13 is “one of the most dangerous and
rapidly expanding criminal gangs in the world today.” 1 Pet’r’s Br. at 12 (internal
quotation marks omitted). “Larger cultural forces can imbue individualized conflicts
1
We deny Petitioner’s request that we take judicial notice of a statement from
the United States Department of the Treasury discussing MS-13. See 8 U.S.C.
§ 1252(b)(4)(A) (requiring us to decide a petition for review “only on the
administrative record”).
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or threats with more (or less) substance than they may suggest on their face.”
Vatulev, 354 F.3d at 1210. Although MS-13’s violence and influence may add
substance to Petitioner’s encounters with its members, we still cannot say that the
record compels the conclusion that he suffered past persecution in El Salvador.
Even without past persecution, however, an applicant can obtain refugee status
by showing a subjectively genuine and objectively reasonable fear of future
persecution on account of a protected ground. See Ritonga v. Holder, 633 F.3d 971,
976 (10th Cir. 2011). Such a fear is objectively reasonable if persecution is a
reasonable possibility. Uanreroro v. Gonzales, 443 F.3d 1197, 1202 (10th Cir.
2006). The Board concluded that Petitioner lacked an objectively reasonable fear of
future persecution, citing evidence that members of his family have lived in
El Salvador unharmed and that gang members stopped approaching him even before
he came to the United States.
Despite the Board’s conclusion, Petitioner marshals evidence suggesting that
his fear of future persecution is objectively reasonable. He points to evidence, for
example, that MS-13 has killed others who refused to join the gang and that he lived
in hiding before he fled. Although some evidence supports Petitioner’s view, we
cannot say that the record compels that view. And so we may not disturb the Board’s
conclusion that Petitioner does not have an objectively reasonable fear of future
persecution in El Salvador. 2
2
Petitioner argues that his fear of persecution is well founded because MS-13
has a pattern and practice of persecuting individuals who express negative opinions
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In sum, substantial evidence supports the Board’s findings that Petitioner did
not show past persecution or a well-founded fear of future persecution. Those
findings prevent Petitioner from obtaining asylum. So we need not consider his
challenges to the additional reasons the agency gave for denying his asylum claim.
B. Restriction on Removal
To qualify for restriction on removal, an applicant must show “a clear
probability of persecution on account of a protected ground.” Rodas-Orellana,
780 F.3d at 987 (internal quotation marks omitted). This burden is higher than the
burden for asylum. Id. at 986. For that reason, Petitioner’s inability to meet the
burden for asylum necessarily precludes him from meeting the burden for
restriction. 3 See id. at 987.
C. The Convention Against Torture
The Convention Against Torture “prohibits the return of an alien to a country
where it is more likely than not that he will be subject to torture by a public official,
or at the instigation or with the acquiescence of such an official.” Karki, 715 F.3d
at 806 (internal quotation marks omitted). “Acquiescence of a public official
about the gang or refuse its demands. See 8 C.F.R. § 1208.13(b)(2)(iii) (permitting
pattern-and-practice evidence to establish fear of future persecution). But he did
not present this theory to the Board, so we lack jurisdiction to consider it. See
Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237–38 (10th Cir. 2010).
3
Petitioner argues that the agency applied the wrong standard when it denied
his restriction-on-removal claim. Because he did not present this argument to
the Board, we lack jurisdiction to consider it. See Garcia-Carbajal, 625 F.3d at
1237–38.
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requires that the public official, prior to the activity constituting torture, have
awareness of such activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7). This standard does not
require the government’s actual knowledge or willful acceptance; willful blindness is
enough. Karki, 715 F.3d at 806.
The Board concluded that Petitioner failed to show he will more likely
than not suffer torture with the acquiescence of a public official if he returns to
El Salvador. Challenging this conclusion, Petitioner cites evidence of rampant gang
violence in El Salvador and officials’ inability to control it. At the same time,
though, the record contains evidence showing that the Salvadoran government is
trying to eliminate the gangs. Taken as a whole, the record does not compel the
conclusion that public officials would likely acquiesce in Petitioner’s torture in
El Salvador.
We are not persuaded otherwise by Petitioner’s reliance on Karki. In that case,
the foreign government regularly failed “to take steps to prevent or punish” acts of
torture. 715 F.3d at 807. In this case, by contrast, the record contains evidence that
Salvadoran officials are taking steps to prevent and punish gang violence.
D. Excluding Evidence
At his merits hearing, Petitioner tried to submit an affidavit from his mother.
The affidavit apparently contained information about the rape and home invasion
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committed many years ago against members of Petitioner’s family. 4 The
immigration judge excluded the affidavit out of concern for Petitioner’s mother’s
confidentiality because she had submitted it in support of her own asylum
application. The Board concluded that even if the immigration judge erred by
excluding the affidavit, the error did not prejudice Petitioner.
Petitioner argues that excluding his mother’s affidavit prejudiced him because
it deprived him of evidence that “established the factual background” for Castro’s
animus against his family and revealed Castro’s motive to persecute him. Pet’r’s Br.
at 47. 5 But Petitioner’s testimony sufficiently established that background. Besides,
the government expressly said it did not contest that the rape and home invasion
occurred. And, in her written order, the immigration judge noted Castro’s rape of
Petitioner’s aunt, the break-in at Petitioner’s parents’ home, and Petitioner’s mother’s
cooperation with the investigation that led to Castro’s imprisonment. Given those
circumstances, we agree with the Board that excluding the affidavit did not prejudice
Petitioner.
4
The affidavit itself is not part of the record.
5
Petitioner argues in passing that the Board should have concluded that
excluding the affidavit violated his due-process rights. Although he challenged the
exclusion of the affidavit before the Board, he did not do so under a due-process
theory. To the extent he intends to raise a due-process theory now, we lack
jurisdiction to consider that unexhausted theory. See Garcia-Carbajal, 625 F.3d
at 1237–38.
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III. Conclusion
We dismiss the petition for review in part for lack of jurisdiction. We
otherwise deny the petition.
Entered for the Court
Allison H. Eid
Circuit Judge
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