Orellana-Morales v. Holder, Jr. , 377 F. App'x 798 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
May 12, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
VIRGINIA ORELLANA-MORALES;
HENRY VLADIMIR
PONCE-ORELLANA,
Petitioners,
v. No. 09-9553
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before McKAY, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.
Petitioners, Virginia Orellana-Morales and her minor son Henry Vladimir
Ponce-Orellana, seek review of an order of the Board of Immigration Appeals
(BIA) insofar as it dismissed their appeal from the denial of relief under the
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
United Nations Convention Against Torture (CAT). Their CAT application was
based on the threat of violence from criminal gangs that the government of their
native El Salvador has allegedly been unable to control. The BIA agreed with the
immigration judge (IJ) that petitioners had failed to show “it is more likely than
not [they] will face torture by or with the acquiescence (to include the concept of
willful blindness) of a member of the government of El Salvador upon their return
to that country,” as required for CAT relief under 8 C.F.R. §§ 1208.16, 1208.18.
Admin. R. at 3. Exercising jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), (4), we
deny the petition for review for the reasons explained below. 1
1
The government insists we should dismiss the petition for review insofar as
it pertains to Ponce-Orellana, because he did not file a separate CAT application.
It cites case law holding that derivative applications for withholding of removal
and CAT relief are not permitted. We decline to dispose of Ponce-Orellana’s
petition for review on this basis. First of all, as the BIA did not reject his CAT
claim for this reason, to rely on it now would transgress basic limits on judicial
review of agency adjudication. See, e.g., Carpio v. Holder, 592 F.3d 1091, 1103
(10th Cir. 2010). Moreover, this case does not appear to involve a derivative
application, properly understood. The case law cited by the government does not
concern some formal requirement for separate applications (and the application
form itself specifically asks the parent whether “[her] child [is] to be included in
the application,” Admin. R. at 345), but rather the substantive principle that one
alien cannot seek relief based on a threat posed to another. Here, the BIA treated
petitioners’ CAT claim as based on the risk both of them faced upon removal.
Admin. R. at 3 (reviewing “respondents’ eligibility for CAT” by considering risk
“respondents will face torture . . . upon their return” to El Salvador (emphasis
added)); see also id. at 51-52 (IJ repeatedly referring to feared risk of torture
relating to both mother and son). The straightforward disposition of petitioners’
joint CAT application on the merits, with no indication of any formal deficiency
as to the son, certainly suggests that the BIA and IJ found nothing improper in his
inclusion on his mother’s application.
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Where, as here, “a single member of the BIA issues a brief order affirming
an IJ’s decision, this court reviews both the decision of the BIA and any parts of
the IJ’s decision relied on by the BIA in reaching its conclusion.” Razkane v.
Holder, 562 F.3d 1283, 1287 (10th Cir. 2009). We review the BIA’s legal
determinations de novo and its findings of fact under a substantial-evidence
standard. Id. The latter standard is very deferential: “factual findings are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.” Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009) (internal
quotation omitted). And this standard applies not only to historical facts, but to
ultimate factual determinations, such as the existence of persecution, upon which
an alien’s qualification for relief may directly rest. Id. (following Vicente-Elias
v. Mukasey, 532 F.3d 1086, 1091 (10th Cir. 2009), and Nazaraghaie v. INS,
102 F.3 460, 463 n.2 (10th Cir. 1996)). Thus, for petitioners to prevail, they must
show that the record contains evidence sufficient to compel a finding that they are
qualified for CAT relief, i.e., that it is more likely than not they will be subjected
to torture by, or with the acquiescence of, government officials if they are
returned to their home county. See, e.g., Cruz-Funez v. Gonzales, 406 F.3d 1187,
1192 (10th Cir. 2005); Matovu v. Holder, 577 F.3d 383, 387 (1st Cir. 2009);
Malonga v. Mukasey, 546 F.3d 546, 555 (8th Cir. 2008). The record here falls
well short of compelling such a finding with respect to the gang violence
petitioners cite as the basis for fearing their return to El Salvador.
-3-
In broadly agreeing with the IJ that petitioners failed to establish a risk of
torture sufficient to qualify for CAT relief, the BIA effectively recognized two
distinct deficiencies in petitioners’ showing noted by the IJ: (1) an insufficient
level of risk, see Admin. R. at 51; and (2) an inability to attribute the risk to
government acquiescence or willful blindness, id. at 52-53. A brief summary of
the record evidence will demonstrate why neither of these findings is vulnerable
to challenge under the substantial-evidence standard.
As a general matter, no one disputes that El Salvador has a very serious
problem with gangs and gang violence. Petitioner Orellana-Morales testified to
that fact, which is amply supported by country report findings recited by the IJ.
She also testified, again with corroboration in the country report, that government
efforts to address the problem have not been very successful in stemming the
growth of gangs. But neither petitioner’s testimony nor the country report lends
much support, let alone compelling support, for a claim that the government has
acquiesced in or turned a blind eye to gang violence, 2 see also Amilcar-Orellana
v. Mukasey, 551 F.3d 86, 92 (1st Cir. 2008); Solis v. Mukasey, 515 F.3d 832, 836
(8th Cir. 2008), or that it is more likely than not that any particular El Salvadoran
will be tortured at the hands of gang members.
2
The mere inability to prevent violence, which can support an asylum claim
under a standard that requires only that a government be unwilling or unable to
stop persecution, must be distinguished from the acquiescence required to support
a CAT claim, for which government ineffectuality alone will not suffice. See
Marroquin-Ochoma v. Holder, 574 F.3d 574, 579-80 (8th Cir. 2009).
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Rather, petitioners’ claim is more directly related to local circumstances,
specifically involving petitioner Orellana-Morales’ response to a hit-and-run
accident in her home town of Nueva Conception. She witnessed the accident, in
which a car ran over a child, and reported what she had seen, including the car’s
license plate number, to the police. Other witnesses did not come forward for
fear of retaliation, which is common in El Salvador. Based on her information,
the police arrested and jailed the young man who had been driving the car. The
next day, petitioner, who worked at the mayor’s office, spoke of the incident to
the assistant mayor, who warned her to be careful because the driver’s family was
involved in gangs and drugs. The child eventually died in the hospital. Some
time later, the driver’s sister informed the vital statistics department at the
mayor’s office that her brother had died of leukemia in jail. When petitioner
learned of this, she feared retaliation from the driver’s family.
Thereafter, petitioner was approached outside her home by three strangers
looking for ammunition and asking about a neighbor. She told them where the
neighbor lived but said she did not know whether he was involved in selling
ammunition. She thought the strangers were gang members, though there is no
evidence to confirm that. One of them told her to be careful about talking or the
ammunition could be aimed at her. She took this as a threat not about the sale of
ammunition but about the accident. After this incident she became very worried
for herself and her son. A few weeks later she left El Salvador. Her sister, who
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still lives there, has since told her that unidentified persons called petitioner’s
former workplace asking to speak with petitioner after she left the country.
We agree with the BIA that the more specific events recounted above also
do not make out a case for CAT relief. Basically, petitioner’s claim is (1) the
driver she identified belonged to a gang family, (2) the family has targeted her
and her son for torture in retaliation, (3) the risk and reach of that threat is so
great that they will more likely than not suffer torture whenever and wherever
they return to the country, and (4) knowing this, the authorities would make no
effort to protect them. To be entitled to relief here, petitioners must make a
compelling showing on every one of these factual premises, and they have not.
Only the first premise is at all substantiated on the record. The second is
merely an inference drawn on a very thin factual basis–an inference a reasonable
adjudicator would clearly not be compelled to adopt. The third premise is sheer
speculation on our record. The fourth potentially has general and local aspects,
neither of which compellingly supports petitioners’ case. Generally, as we have
already noted, country reports do not demonstrate government acquiescence in
gang violence. Locally, petitioners’ assertion that town authorities would turn a
blind eye to their situation is based on the fact that “neither the Mayor, nor the
Assistant Mayor took any action except to tell [petitioner Orellana-Morales] to be
very careful because she had essentially crossed a deadly gang family.” Aplt.
Opening Br. at 16. But there is no compelling reason to equate such a warning
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with an expression of official abandonment, particularly as petitioners had not
even been threatened by the family. 3 For all the record shows, the statement was
nothing more than an exhortation for prudence, with no implications about the
availability of official protection or assistance if and when prudence would
suggest it might be needed. Indeed, the expression of concern it embodied could
well have implied that petitioner should ask for assistance if that appeared
necessary. It is the province of the IJ and BIA, not the reviewing court, to choose
between such competing inferences. Siewe v. Gonzales, 480 F.3d 160, 167
(2d Cir. 2007). Finally, and perhaps most significantly, petitioner never testified
that she asked for and was denied any form of assistance or protection.
Under our deferential standard of review, we must uphold the BIA’s
determination that petitioners failed to qualify for relief under the CAT.
The Petition for Review is DENIED.
Entered for the Court
Monroe G. McKay
Circuit Judge
3
There is no evidence that petitioner told anyone at the mayor’s office about
the later ammunition incident, itself only speculatively tied to the driver’s family.
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