Aguilar-Hernandez v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 6, 2024
• Docket: 23-9600
• Status: Unpublished

Opinion

Appellate Case: 23-9600 Document: 010111090688 Date Filed: 08/06/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 6, 2024 _________________________________ Christopher M. Wolpert Clerk of Court SABINO AGUILAR-HERNANDEZ,

Petitioner,

v. No. 23-9600 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HOLMES, Chief Judge, HARTZ, and ROSSMAN, Circuit Judges. _________________________________

Petitioner Sabino Aguilar-Hernandez is a citizen of Mexico. In removal

proceedings, an immigration judge denied his applications for asylum, restriction on

removal, and protection under the Convention Against Torture. The Board of

Immigration Appeals dismissed his appeal. He now petitions for review of the

Board’s decision. We deny his petition.

* After examining the briefs and appellate record, this panel has determined unanimously to honor 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 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-9600 Document: 010111090688 Date Filed: 08/06/2024 Page: 2

I. Background

Born in Xalapa, Mexico, Petitioner entered the United States in 2001. In

removal proceedings, he conceded his removability and applied for asylum,

restriction on removal, and protection under the Convention Against Torture.

To receive asylum, an applicant must show that he or she is a “refugee.”

8 U.S.C. § 1158(b)(1)(B)(i). A refugee 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). The protected ground must “be at least

one central reason for persecuting the applicant.” § 1158(b)(1)(B)(i). To qualify for

restriction on removal, an applicant must show a clear probability of persecution

because of one of those same five protected grounds. See Rodas-Orellana, 780 F.3d

at 987.

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 v. Holder,

715 F.3d 792, 806 (10th Cir. 2013) (internal quotation marks omitted).

“Acquiescence of a public official 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.

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§ 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.

Petitioner feared returning to Mexico because of a gang called the Zetas. The

gang extorted Petitioner’s sisters, who own businesses in his hometown. The gang

also robbed one of the sisters. During the robbery, the sister was hit with a gun, and

she still experiences a “nervous tick” from the incident. R. at 140. The gang tried to

extort a business where Petitioner’s nephew worked. The business then closed, and

the family had not heard from the nephew in several months at the time of

Petitioner’s testimony in immigration court. The family had not reported the

nephew’s disappearance out of fear that the Zetas would retaliate. Citing that same

fear, Petitioner’s sisters refused to write letters for him to use in his removal

proceedings.

Petitioner feared the Zetas would target him because they believe people

returning to Mexico from the United States have a lot of money. He testified that the

Zetas target people if they believe they can get money from them. And he agreed

that his sisters were targeted because they are a source of money to the gang.

To support his asylum and restriction-on-removal applications, Petitioner

claimed to fear persecution on account of his membership in three particular social

groups: (1) members of the Aguilar-Hernandez family, (2) members of the

Aguilar-Hernandez family who are known business owners, and (3) members of

families that own businesses in Xalapa, Mexico. The immigration judge concluded

that these were not cognizable particular social groups and that, in any event,

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Petitioner had not shown he would be targeted based on his membership in any of

them. In other words, the immigration judge concluded, Petitioner’s membership in

those groups would not “be at least one central reason for” any persecution he fears.

§ 1158(b)(1)(B)(i). That conclusion stemmed from the finding that the Zetas had

targeted Petitioner’s sisters because they believed the sisters had access to cash and

the ability to comply with extortion demands. For those reasons, the immigration

judge denied Petitioner’s asylum application. The immigration judge then concluded

that the asylum analysis necessarily foreclosed restriction on removal because

restriction requires an even greater likelihood than asylum of persecution because of

a protected ground. See Rodas-Orellana, 780 F.3d at 986–87.

In evaluating the application for protection under the Convention Against

Torture, the immigration judge recognized the “rampant gang activity” in Petitioner’s

hometown. R. at 72. But the immigration judge denied relief, based in part on his

conclusion that the record did not support a finding that a public official had engaged

in the criminal activity, consented to it, instigated it, or acquiesced in it. In doing so,

the immigration judge noted the absence of evidence that police knew about the

things that had happened to Petitioner’s sisters and nephew.

The Board dismissed Petitioner’s appeal. It upheld the immigration judge’s

finding that the gang members who had harmed Petitioner’s family in Mexico “did so

due to general criminal behavior, including a criminal desire to enrich themselves,

rather than on account of a protected ground.” R. at 4. Moreover, it concluded that

the immigration judge did not need to treat this as a mixed-motive case because

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Petitioner presented insufficient evidence that his family membership was “one

central reason” for his claimed fear. Id. (internal quotation marks omitted). The

Board also upheld the immigration judge’s decision that Petitioner “failed to

demonstrate a likelihood of future torture in Mexico.” Id. The Board rejected

Petitioner’s argument that the immigration judge had denied protection under the

Convention Against Torture based on the false legal premise that his family’s failure

to report the Zetas’ crimes prevented a showing that Mexican authorities would

acquiesce in his torture. Although the Board acknowledged evidence of corruption

and crime in Mexico, it determined that the “government’s alleged ineffectiveness in

controlling corruption and crime, without more, is insufficient to establish that the

government would acquiesce in” Petitioner’s torture. Id.

II. Discussion

A single Board member issued a brief order affirming the immigration judge’s

decision. So the Board’s affirmance is the final agency decision, and we limit our

review to the grounds appearing in the Board’s decision. Escobar-Hernandez v.

Barr, 940 F.3d 1358, 1360 (10th Cir. 2019). We may, however, consult the

immigration judge’s fuller explanation of those grounds. Id.

We review the Board’s legal conclusions de novo. Dallakoti v. Holder,

619 F.3d 1264, 1267 (10th Cir. 2010). We review its factual findings for substantial

evidence, meaning we will treat those findings as “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Id. (internal quotation

marks omitted).

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A. Asylum

The Board saw “no clear error in the Immigration Judge’s finding that the

gang members who robbed and extorted [Petitioner’s] sisters and caused the

disappearance of his nephew did so due to general criminal behavior, including a

criminal desire to enrich themselves, rather than on account of a protected ground.”

R. at 4. Petitioner argues that the Board erred by reviewing the immigration judge’s

finding for clear error rather than de novo. We review de novo whether the Board

applied the correct standard. See Xue v. Lynch, 846 F.3d 1099, 1106 (10th Cir.

2017).

“The Board will not engage in de novo review of findings of fact determined

by an immigration judge.” 8 C.F.R. § 1003.1(d)(3)(i). It will review factual findings

only for clear error. Id. But it “may review questions of law, discretion, and

judgment and all other issues” de novo. § 1003.1(d)(3)(ii).

We conclude the Board applied the correct standard. “A persecutor’s actual

motive is a matter of fact,” and the Board reviews an immigration judge’s finding on

that score for clear error. Matter of N-M-, 25 I. & N. Dec. 526, 532 (B.I.A. 2011).

The Board’s decision here did exactly that.

Petitioner’s reliance on Matter of S-E-G- reveals no error in the Board’s

analysis. In Matter of S-E-G-, the Board characterized as a legal issue “whether the

respondents were persecuted ‘on account of’ a protected ground.” 24 I. & N. Dec.

579, 588 n.5 (B.I.A. 2008). But the context surrounding that characterization makes

clear that the relevant facts before the Board in Matter of S-E-G- were “not in

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dispute.” Id. In other words, in that case, the Board treated as a legal question

whether a set of undisputed facts met a legal standard (the requirement that

persecution be on account of a protected ground). That is not the question the Board

reviewed for clear error in this case. Here, the Board reviewed for clear error the

immigration judge’s finding about the Zetas’ actual motives. That is apparent from

both the language the Board used and its citation to Matter of N-M- for the

proposition that it reviews findings about a persecutor’s actual motive for clear error.

R. at 4. In reviewing the Zetas’ actual motive, the Board appropriately used the

clear-error standard.

Petitioner next argues that the Board erred when it concluded that insufficient

evidence supported treating this as a mixed-motives case. We have recognized that

“a persecutor can have multiple motives for targeting someone.” Orellana-Recinos v.

Garland, 993 F.3d 851, 855 (10th Cir. 2021). If a “protected ground is intertwined

with unprotected reasons,” then an applicant can obtain asylum only if the protected

ground is a central reason for the feared harm. Id. (internal quotation marks omitted).

Petitioner fails to identify evidence compelling the conclusion that his membership in

a particular social group would be one central reason for his persecution by the Zetas.

True enough, Petitioner testified that the gang threatened to kill members of his

sister’s family (her children). But Petitioner points to “no evidence that the gang

would be hostile toward” his family “absent their financial” motive. Id. at 858.

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B. Restriction on Removal

Petitioner asserts that the Board erred in reviewing his restriction-on-removal

application for the same reasons it erred in reviewing his asylum application. As we

have explained, however, those reasons reveal no error in the Board’s decision.

C. Convention Against Torture

Petitioner argues the record shows that the Mexican government would be

willfully blind to the torture he fears from the Zetas. In addition to disputing the

merits of this argument, the government urges us not to consider it because Petitioner

failed to exhaust it before the Board. We conclude that Petitioner exhausted his

argument, but it fails on the merits.

“It is a fundamental principle of administrative law that an agency must have

the opportunity to rule on a challenger’s arguments before the challenger may bring

those arguments to court.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237

(10th Cir. 2010), abrogated in part on other grounds by Santos-Zacaria v. Garland,

598 U.S. 411 (2023). Indeed, we “may review a final order of removal only if” the

noncitizen has exhausted all administrative remedies available “as of right.” 8 U.S.C.

§ 1252(d)(1). This statute requires a noncitizen to do more than “level broad

assertions in a filing before the Board.” Garcia-Carbajal, 625 F.3d at 1237 (internal

quotation marks omitted). We consider an argument exhausted only if the noncitizen

presented “the same specific legal theory to the” Board that he or she presents in

court. Id.

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Petitioner exhausted his willful-blindness argument. Granted, willful

blindness emerged as the centerpiece of his Convention Against Torture claim only in

his brief to us. Before the Board, Petitioner focused on whether his family’s failure

to report the Zetas’ crimes foreclosed a finding of government acquiescence. But he

also argued that the Mexican government would indeed acquiesce in his torture. And

he correctly noted that willful blindness is a form of acquiescence. More than that,

though, he explicitly asserted that the immigration judge erred in determining he

“failed to show that the police or authorities were willfully blind to the situation.”

R. at 38 (internal quotation marks omitted).

The flipside of the government’s claim that Petitioner failed to exhaust the

willful-blindness issue is Petitioner’s own claim that he raised it but received no

ruling from the Board. In fact, Petitioner says, neither the immigration judge nor the

Board considered willful blindness. Not so. The immigration judge explicitly

considered whether “the police or authorities were willfully blind to the situation.”

R. at 72. And the Board found no error in the immigration judge’s decision that

Petitioner “failed to demonstrate a likelihood of future torture in Mexico.” R. at 4.

The Board followed this statement with a citation to the pages of the immigration

judge’s decision containing his entire Convention Against Torture discussion. The

Board’s decision therefore reflects its agreement with the entirety of the immigration

judge’s Convention Against Torture analysis. Moreover, the Board’s decision

explicitly addressed acquiescence, a concept that includes willful blindness. See

Maatougui v. Holder, 738 F.3d 1230, 1242–43 (10th Cir. 2013) (recognizing that the

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Board need only “announce its decision in terms sufficient to enable a reviewing

court to perceive that it has heard and thought and not merely reacted” (internal

quotation marks omitted)).

Turning to the merits, we cannot disturb the Board’s finding that the record

contains insufficient evidence to establish that the Mexican government would

acquiesce in Petitioner’s torture. Petitioner highlights country-conditions evidence

reporting that state officials had colluded in violent acts and had even committed

such acts themselves. At the same time, however, the record contains evidence that

the Mexican government has committed to fight corruption and violence. On

balance, the record does not compel the conclusion that the Mexican government

would acquiesce—through willful blindness or otherwise—in Petitioner’s torture.

III. Disposition

The petition for review is denied.

Entered for the Court

Jerome A. Holmes Chief Judge