Recinos-Martinez v. Barr ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 28, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
MERCEDES ERCILIA RECINOS-
MARTINEZ; J.A.M., minor child,
Petitioners,
v. No. 19-9560
(Petition for Review)
WILLIAM P. BARR, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, MATHESON, and EID, Circuit Judges.
_________________________________
Mercedes Ercilia Recinos-Martinez, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’s (BIA) decision
dismissing her appeal from the Immigration Judge’s (IJ) denial of asylum,
withholding of removal, and protection under the Convention Against Torture (CAT).
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny the petition in part and
dismiss in part for lack of jurisdiction.
I. BACKGROUND
Petitioner arrived in the United States in February 2016, without valid
immigration documents. An asylum officer determined Petitioner had a credible fear
of returning to El Salvador and she was placed in removal proceedings, where she
conceded removability, and applied for asylum,1 withholding of removal, and CAT
protection.
In a pre-hearing brief, Petitioner explained that after she and a friend
witnessed a murder, they were both threatened, and her friend eventually
disappeared. Petitioner maintained the threats amounted to persecution, and
moreover, she feared future harm if she returned to El Salvador on account of her
membership in a particular social group of “Salvadoran witnesses to a crime by gang
members,” and on account of her anti-gang political opinion, as manifested by her
failure to “fully comply[] with the gang’s demands.” Admin. R. at 275.
At the merits hearing, Petitioner testified she left El Salvador in late January
2016, shortly after witnessing the murder. She recounted that while she, her son, and
her friend Carla were out shopping, they saw two young men on a motorcycle, one of
whom got off the motorcycle and shot a third young man. Petitioner believed the
assailants were members of the Mara Salvatrucha gang (MS-13) because they were
1
J.A.M. is Ms. Recinos-Martinez’s minor son. As such, he is a derivative
beneficiary of his mother’s application for asylum. See 8 U.S.C. § 1158(b)(3).
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wearing loose-fitting pants, long-sleeved shirts, and Adidas footwear. Petitioner, her
son, and Carla were still on the scene when the police arrived but denied having seen
anything. According to Petitioner, she was afraid to talk to the police because they
would not be able to protect her, “[a]nd besides, . . . then they would start asking
where and who and that would just cause more trouble.” Id. at 83. As to the MS-13
gang members, Petitioner testified she believed they would try to harm her
“[b]ecause we were the only key witnesses who would be able to get them
imprisoned because we were the ones who . . . witnessed what happened.” Id. at 84.
Two days following the incident, Petitioner said “some threats started going
directly to [Carla] through [telephone] messages and they were telling her that she
should tell me to be careful because we were going to pay.” Id. The threats
continued until Carla changed her telephone number. About five days later Carla
disappeared; however, before she disappeared, Carla told her parents to tell Petitioner
she needed to “do something or else they were going to kill [Petitioner] and [also]
kill [her] child.” Id. at 85-86.
Several days later, Petitioner was walking to the store when some individuals
in a car began to follow her. They waited outside while she shopped and then
resumed following her as she walked home. Petitioner believed one of the men in the
car was the murderer, and she ran to and hid in a neighbor’s house. A week later,
Petitioner and her minor son left El Salvador.2
2
Petitioner’s husband was already living in the United States, having entered
the country without inspection in December 2015.
3
The IJ found Petitioner’s testimony credible but concluded she had not carried
her burden of proving she was eligible for asylum, withholding, or protection under
the CAT. The BIA dismissed Petitioner’s appeal. This petition for review followed.
II. DISCUSSION
A. Scope and Standard of Review
A single-member BIA order “constitutes the final order of removal,” and “we
will not affirm on grounds raised in the IJ decision unless they are relied upon by the
BIA in its affirmance.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.
2006). “However, when seeking to understand the grounds provided by the BIA, we
are not precluded from consulting the IJ’s more complete explanation of those same
grounds.” Id. For example, we will consult the IJ’s decision “where the BIA
incorporates by reference the IJ’s rationale or repeats a condensed version of its
reasons while also relying on the IJ’s more complete discussion” or “where the BIA
reasoning is difficult to discern and the IJ’s analysis is all that can give substance to
the BIA’s reasoning in the order of affirmance.” Id.We review the BIA’s legal conclusions de novo and its factual findings for
substantial evidence. See Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir.
2012). Under the substantial-evidence standard, “the BIA’s findings of fact are
conclusive unless the record demonstrates that any reasonable adjudicator would be
compelled to conclude to the contrary.” Id. (brackets and internal quotation marks
omitted).
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B. Pereira Claim
Petitioner filed her appeal at the BIA in February 2018. While the appeal was
pending, and more than a year before the BIA issued its decision in July 2019, the
Supreme Court decided Pereira v. Sessions, ___ U.S. ___, 138 S. Ct. 2105 (2018),
which holds that a Notice to Appear (NTA) that fails to state the time and place of
removal proceedings is ineffective to trigger a statutory stop-time rule, id. at 2110.
According to Petitioner, Pereira also stands for the proposition that a defect in an
NTA is jurisdictional, that is, an NTA that fails to state the time and place of removal
proceedings is not only ineffective to trigger a stop-time rule, but also deprives the IJ
of jurisdiction over the removal proceedings. Petitioner never raised this argument at
the BIA.
Petitioner first raised her Pereira argument in this court in her opening brief,
filed ten days after we decided Lopez-Munoz v. Barr, 941 F.3d 1013, 1017-18
(10th Cir. 2019), which holds that a defect in an NTA is not jurisdictional. Petitioner
fails to mention Lopez-Munoz or explain why it is not dispositive; instead, despite
failing to raise a Pereira claim at the BIA, and contrary to our holding in
Lopez-Munoz, she argues because the initial NTA did not specify the date and time of
her removal hearing, the IJ lacked jurisdiction.
Petitioner’s claim likely fails under Lopez-Munoz; however, because she never
presented this argument to the BIA, it is administratively unexhausted, and we lack
jurisdiction to consider it in the first instance on appeal:
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In light of [our decision in Lopez-Munoz], if we had discretion, we might
decide that it would be most expedient for us to address [the] unexhausted
Pereira argument now. Nevertheless, our cases make clear that we cannot
[address the issue] because failure to exhaust an issue, as [8 U.S.C.] §
1252(d)(1) requires in the immigration removal context, deprives us of
jurisdiction to consider that issue.
Robles-Garcia v. Barr, 944 F.3d 1280, 1284 (10th Cir. 2019) (internal quotation
marks omitted).
C. Asylum and Withholding of Removal
i. Legal Framework
To succeed in her application for asylum and withholding of removal,
Petitioner must prove she is eligible for this relief. See Rodas-Orellana v. Holder,
780 F.3d 982, 986 (10th Cir. 2015). To be eligible for asylum, Petitioner must prove
she is a refugee, which requires her to establish she is unable or unwilling to return to
her country of nationality “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). For withholding, an
applicant must prove a “clear probability of persecution on account of” one of the
statutorily protected grounds. Rodas-Orellana, 780 F.3d at 987 (internal quotation
marks omitted). “The burden of proof for [withholding] is higher than for asylum.”
Dallakoti v. Holder, 619 F.3d 1264, 1267 (10th Cir. 2010). Therefore, “[f]ailure to
meet the burden of proof for an asylum claim necessarily forecloses meeting the
burden for a withholding claim.” Rodas-Orellana, 780 F.3d at 987.
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The protected ground must be “at least one central reason for persecuting the
applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see also Rivera-Barrientos, 666 F.3d at 646
(“For persecution to be ‘on account of’ a statutorily protected ground, the victim’s
protected characteristic must be central to the persecutor’s decision to act against the
victim” (internal quotation marks and brackets omitted)); Dallakoti, 619 F.3d at 1268(accepting the BIA’s interpretation of “one central reason” as meaning “the protected
ground cannot play a minor role in the alien’s past mistreatment or fears of future
mistreatment” and “cannot be incidental, tangential, superficial, or subordinate to
another reason for harm”) (quoting Matter of J-B-N- & S-M-, 24 I. & N. Dec. 208,
214 (BIA 2007)).
ii. Persecution
The IJ found, and the BIA agreed, that vague threats from members of MS-13
to a friend and following Petitioner home from the store did not amount to
persecution. But we do not address the issue because it does not affect the outcome.
See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a general rule
courts and agencies are not required to make findings on issues the decision of which
is unnecessary to the results they reach.”); Griffin v. Davies, 929 F.2d 550, 554
(10th Cir. 1991) (“We will not undertakes to decide issues that do not affect the
outcome of a dispute.”). Instead, we can resolve the case on the grounds that the
alleged past persecution and fear of future persecution were not “on account of”
Petitioner’s political opinion or membership in a particular social group.
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iii. Political Opinion
The government contends Petitioner has waived any argument that she
suffered past persecution or had a fear of future persecution on account of her
political opinion. In particular, the government notes the lack of any argument
setting forth Petitioner’s contentions and supporting authorities for this proposition in
her opening brief as required under Federal Rule of Appellate Procedure 28(a)(8)(A).
We agree the issue is waived. See Herrera-Castillo v. Holder, 573 F.3d 1004, 1010
(10th Cir. 2009) (citing Fed. R. App. P. 28(a) and explaining that an argument
insufficiently raised in the opening brief is waived).
iv. Particular Social Group
We further agree with the government that substantial evidence supports the
agency’s finding that Petitioner was neither harmed nor had a well-founded fear of
future harm on account of her membership in a particular social group, defined as
Salvadoran witnesses to gang crime.
In her opening brief, Petitioner makes several inaccurate statements about the
agency’s decision and the law. First, she maintains the BIA failed to consider she
was targeted by MS-13 because she witnessed the murder. This contention is
demonstrably incorrect, as discussed infra.
Second, Petitioner argues “if personal hostility precluded asylum eligibility, no
one in the world would qualify for asylum,” and therefore the BIA erred in its
observation that “acts of common criminality or personal hostility committed by gang
members in El Salvador . . . do not implicate asylum eligibility.” Pet’r Br. at 42-43
8
(internal quotation marks omitted). Petitioner is mistaken. For example, in Vatulev
v. Ashcroft, 354 F.3d 1207, 1209 (10th Cir. 2003), we upheld the agency’s denial of
asylum where the applicant failed to distinguish the harm about which she testified
“from acts of common criminality or personal hostility that do not implicate asylum
eligibility.”
Last, Petitioner maintains the BIA erred in failing to determine whether her
proposed social group is legally cognizable. There was no error. See Bagamasbad,
429 U.S. at 25 (“As a general rule courts and agencies are not required to make
findings on issues the decision of which is unnecessary to the results they reach.”);
Matter of A-B-, 27 I. & N. Dec. 316, 340 (A.G. 2018) (“Of course, if an alien’s
asylum application is fatally flawed in one respect . . . the [BIA] need not examine
the remaining elements of the asylum claim.”), abrogated on other grounds by Grace
v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). Further, because the BIA did not
address the issue, the IJ’s determination that Petitioner’s proposed group was not
cognizable is not before this court on the petition for review. See Sarr v. Gonzales,
474 F.3d 783, 790 (10th Cir. 2007) (explaining that this court does not affirm on
grounds raised by the IJ unless the BIA also relies on the same grounds in its
decision).
Relatedly, Petitioner has filed a “Motion For Judicial Notice Under Federal
Rule of Evidence 201 and Federal Rule of Civil Procedure 44.1” (Motion), in which
she asks this court to take judicial notice of (1) an excerpt from a Salvadoran witness
protection law and (2) the U.S. State Department’s 2018 report on human rights in El
9
Salvador. According to Petitioner, this court should take judicial notice of these
materials as relevant to whether her proposed social group is cognizable. But as we
explained, supra, our resolution does not turn on whether the proposed group is
cognizable, and therefore the materials are irrelevant. In any event, our review is
based “only on the administrative record on which the order of removal is based.”
8 U.S.C. § 1252(b)(4)(a).
Returning to the agency’s decision, the IJ found Petitioner’s particular social
group was not cognizable, but assuming it was, the evidence established the MS-13
gang members were motivated by their interests in avoiding detection: “[W]hat the
evidence in this case shows is that the gang members were . . . centrally motivated by
their criminal incentives—to make sure [Petitioner] did not interrupt their criminal
schemes, not because they perceived she belonged to a particular social group.”
Admin. R. at 38. This finding is supported by Petitioner’s testimony. See id. at 84.
The BIA affirmed, noting that “even if [Petitioner’s] proposed social group
[was cognizable] . . . the record does not indicate that [Petitioner’s] purported
persecutors targeted her to punish her because of such membership. Instead, the
record indicates that [Petitioner] fears being harmed by the gang members because
[she] saw [them] murder a person.” Id. at 4. Petitioner’s “fears [of] becoming the
victim of acts of common criminality or personal hostility committed by gang
members in El Salvador . . . do not implicate asylum eligibility.” Id.The agency’s factual findings are conclusive because no reasonable
adjudicator would be compelled to reach a contrary conclusion. See Rivera-
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Barrientos, 666 F.3d at 645. And because Petitioner failed to meet her burden of
proof for asylum, her claim for withholding necessarily fails. See Rodas-Orellana,
780 F.3d at 987.
D. CAT Protection
Unlike asylum or withholding of removal, CAT protection does not require
Petitioner to show that torture will occur on account of a statutorily protected ground.
Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005). Protection under the
CAT requires Petitioner to show “that it is more likely than not that . . . he would be
tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).
This torture must be “inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.”
8 C.F.R. § 1208.18(a)(1). Acquiescence requires that the public official have prior
awareness of the activity and “thereafter breach his or her legal responsibility to
intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7). Willful blindness is
the standard for acquiescence in this circuit. Karki v. Holder, 715 F.3d 792, 806
(10th Cir. 2013); Cruz-Funez, 406 F.3d at 1192.
But Petitioner cannot meet the willful-blindness standard with generalized
evidence of gang violence, government corruption, or unsuccessful policing efforts.
See Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006) (no acquiescence where
the government took steps—albeit less than entirely successful—to protect
individuals targeted by Northern Irish loyalist paramilitary groups); Cruz-Funez,
406 F.3d at 1192 (holding that evidence of government corruption and underfunding
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of police was insufficient to compel a conclusion of government acquiescence to
criminal activity by a private individual). To show acquiescence, Petitioner must
establish a “connection between [the men she fears] and the [Salvadoran]
government, or awareness by any public official that [the men she fears] has
threatened [her life.]” Cruz-Funez, 406 F.3d at 1192. “[S]tring[ing] [together a
series] of speculative events in a country with violent incidents but a non-complacent
government [is] insufficient.” Matter of J-F-F-, 23 I. & N. Dec. 912, 918 n.4 (A.G.
2006).
The IJ found Petitioner’s claim for CAT protection was speculative. As to
whether it was more likely than not that Petitioner would be tortured upon her return
to El Salvador, the IJ noted she: (1) “has not experienced past torture in her country”;
(2) “has only been indirectly threatened by persons she believes to be gang
affiliated;” and (3) has “not tr[ied] to relocate outside her neighborhood . . . where
she witnessed the crime and felt threatened by the local gang members.” Admin. R.
at 40-41.
The IJ also found “insufficient evidence . . . to show the Salvadoran
government would turn a blind eye to future torture inflicted by any criminal gang.”
Id. at 41. Here, the IJ noted Petitioner “never reported the murder she witnessed or
the threats she felt to the police, which makes it impossible to know if her
government would have intervened and investigated if she had reported any of the
events that caused her to fear threatened.” Id. “However, it seems likely her
government would have responded appropriately and provided her with protection
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since the police responded quickly to the scene of the murder and were investigating
the crime.” Id. Moreover, the IJ acknowledged
[al]though the State Department’s 2016 Human Rights Report for El
Salvador and other evidence of record describes government corruption and
other issues of concern, it also shows the law prohibits torture and
documents significant efforts the Salvadoran government has made to curb
the rates of criminal violence and to enhance enforcement of its laws
designed to protect the victims of crime.
Id.Citing “the lack of evidence showing that it is more likely than not that the
[Petitioner] will be tortured upon her return to El Salvador, by or with the
acquiescence (including willful blindness) of a government official or other person
acting in an official capacity,” id. at 5, the BIA affirmed the IJ’s denial of CAT relief.
The record does not demonstrate that any reasonable adjudicator would be compelled
to come to a different conclusion. See Rivera-Barrientos, 666 F.3d at 645.
III. CONCLUSION
The petition for review is denied, except for Petitioner’s Pereira claim which
is unexhausted and therefore dismissed for lack of appellate jurisdiction. We deny
Petitioner’s Motion.
Entered for the Court
Allison H. Eid
Circuit Judge
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