Anaya Barraza v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 21, 2021
• Docket: 20-9529
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 21, 2021 _________________________________ Christopher M. Wolpert Clerk of Court NICOLASA ANAYA BARRAZA; D. A. MARQUEZ ANAYA; A. I. MARQUEZ ANAYA; P. S. MARQUEZ ANAYA; D. V. MARQUEZ ANAYA,

Petitioners,

v. No. 20-9529 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT** _________________________________

Before PHILLIPS, McHUGH, and CARSON, Circuit Judges. _________________________________

Petitioners Nicolasa Anaya Barraza and her daughter Angeles Marquez Anaya

filed applications for asylum, withholding of removal, and protection under the

 On March 10, 2021, Merrick B. Garland became Attorney General of the United States. Consequently, his name has been substituted for William P. Barr as Respondent, per Fed. R. App. P. 43(c)(2). ** 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Convention Against Torture (CAT) based on crimes committed against Angeles and

her father in Chihuahua, Mexico.1 An immigration judge denied their applications,

and the Board of Immigration Appeals (BIA) affirmed the decision on appeal. Anaya

and her children now petition this court for review. Exercising jurisdiction under

8 U.S.C. § 1252, we deny the petition.

I. BACKGROUND

Nicolasa Anaya Barraza is a native and citizen of Mexico. She and her

husband, Jose Marquez Avila, had five children together. Anaya identifies as a

member of the Tarahumara ethnic group. The family lived initially in Lajas,

Durango, where Anaya was born. But when Anaya’s brother-in-law was killed in

Lajas, the family moved to Guadalupe y Calvo, Chihuahua, about 10 hours northwest

of Lajas. There the family lived for several years in peace.

Eventually, however, the town’s security declined as armed men started

showing up and violence increased. Another of Anaya’s brothers-in-law and two of

Anaya’s nephews were killed in Guadalupe y Calvo. The town had no police or

military presence to protect against such attacks. The family nonetheless stayed

because Anaya’s husband had a job and the family owned a home there.

In the summer of 2012, a group of armed men Anaya believed were soldiers

came to her home and searched for weapons. They found none, but they took

Anaya’s husband outside for questioning and then let him go. No one was harmed.

1 Three of Anaya’s other children are derivative beneficiaries on her application and therefore also parties to this petition. 2 A few weeks later, another group of armed men appeared at Anaya’s house

and identified themselves as members of the Mexican army. They abducted Anaya’s

husband. When Anaya asked where they were taking him, the men responded that

her husband was “under investigation.” Because there were no police, Anaya called

relatives and others to inform them of what had happened. Anaya learned that the

armed men were not part of the military as they had claimed, and that they had

abducted other men as well.

The next morning, Anaya heard there were several dead bodies on the edge of

town. She investigated and found three beheaded corpses, including that of her

husband. It appeared that the three men had been tortured. Police arrived at the

scene and began an investigation, and eventually produced a report. But no motive

was discovered, and the killers were never identified. The other two victims had

different surnames and were not related to Anaya’s husband.

In June 2013, Anaya’s 15-year-old daughter Angeles walked with a 12-year-

old friend to a neighboring town to turn in some schoolwork. On their way back,

Angeles and her friend accepted a ride from two teenaged boys in a pickup truck.

Later, they were stopped by three men, two of whom were armed. The men made the

four youths get out of the truck and began beating the boys, demanding to know who

had sent them. Then two of the men took the girls into the hills in opposite

directions. Angeles’s assailant raped her, and her friend was molested. The men

returned the girls to the truck and one of the men warned Angeles’s friend not to say

anything because he knew her family.

3 The youths drove back to the neighboring town they had departed from. In the

meantime, Anaya had become concerned about Angeles’s whereabouts and asked

some soldiers to help search for her. When Angeles and her friend arrived back, the

soldiers stopped them and held the girls for 30 minutes until their mothers came to

get them.

The next day, Angeles told her mother what had happened, and Anaya took

Angeles to a police station several hours away to file a complaint. A medical

examination was conducted, and a police report produced.

A few months later, Anaya and her five children arrived at a port of entry near

El Paso, Texas, and asked to apply for asylum. Anaya and her four youngest children

were paroled into the United States.2 On December 12, 2013, an asylum officer

interviewed Anaya and found her to have a “credible fear of persecution,” see

8 U.S.C. § 1225(b)(1)(B)(v), and that therefore there was a “significant possibility”

of her and her four children proving eligibility for asylum.

Anaya and her daughter Angeles each filed asylum applications and a hearing

was held before an immigration judge on October 30, 2017. The evidence included

testimony by Anaya and Angeles, as well as the introduction of numerous documents,

including past statements and affidavits from Anaya and Angeles, police reports, and

the report of a therapist who had interviewed Anaya.

2 Anaya’s oldest child, Manuel, was an adult and therefore processed separately. He was eventually removed to Mexico. 4 On May 9, 2018, the immigration judge issued a decision denying the asylum

applications and ordering that Anaya and her family be removed to Mexico. The

immigration judge held, among other things, that the Petitioners had not proved the

necessary elements of an asylum claim. In particular, the immigration judge held

they had not established (1) that any persecution they suffered had been on account

of a statutorily protected ground, or (2) that the persecution was committed by the

government or by forces the government was unwilling or unable to control.

Anaya and Angeles appealed to the BIA. The BIA issued a decision affirming

the decision of the immigration judge. It held the Petitioners had failed to appeal the

immigration judge’s determination that the Petitioners had not shown the necessary

government involvement in their persecution. The BIA further agreed with the

immigration judge that Petitioners had not shown they had been persecuted on

account of a statutorily protected ground.

Anaya and her children Diana, Angeles, Paulo, and Deysi (collectively, “the

Petitioners”) then filed a timely petition for review with this court.

II. DISCUSSION

The BIA issued a reasoned opinion drafted by a single Board member. We

therefore “review the BIA’s decision as the final agency determination and limit our

review to issues specifically addressed therein.” Diallo v. Gonzales, 447 F.3d 1274, 1279

(10th Cir. 2006). But “when seeking to understand the grounds provided by the BIA, we

are not precluded from consulting the [immigration judge’s] more complete explanation

of those same grounds.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006).

5 “When reviewing BIA decisions, an appellate court must look to the record for

substantial evidence supporting the agency’s decision: Our duty is to guarantee that

factual determinations are supported by reasonable, substantial and probative evidence

considering the record as a whole.” Sarr v. Gonzales, 474 F.3d 783, 788 (10th Cir. 2007)

(brackets and internal quotation marks omitted). “Agency findings of fact are conclusive

unless the record demonstrates that any reasonable adjudicator would be compelled to

conclude to the contrary.” Id. at 788-89 (internal quotation marks omitted).

A. Asylum

Asylum applicants have the burden of demonstrating eligibility by proving they

are refugees. 8 U.S.C. § 1158(b)(1)(B)(i). To meet that burden, applicants must establish

(1) they suffered past persecution or have a well-founded fear of future persecution that is

(2) “on account of” a statutorily protected ground and (3) committed by the government

or by forces the government is either unable or unwilling to control. Rivera-Barrientos v.

Holder, 666 F.3d 641, 646 (10th Cir. 2012); see also 8 U.S.C. § 1101(a)(42)(A)

(providing definition of “refugee”).

The Petitioners argued they were persecuted on account of their membership in

three distinct social groups: the Anaya family; Tarahumara indigenous members; and

“indigenous women left vulnerable after adult men in their family are murdered.” R. at

975 (internal quotation marks omitted). We address each in turn.3

3 The government contends the Petitioners failed to make any argument before the BIA concerning the element of government involvement in their persecution. The government argues the Petitioners’ failure to exhaust that issue, which is a necessary element of an asylum claim, deprives this court of jurisdiction to review Petitioners’ 6 First, while membership in a particular family may qualify as a statutorily

protected ground, see In re L-E-A-, 27 I. & N. Dec. 40, 42-43 (B.I.A. 2017), the

Petitioners must show that such membership was “central to the persecutor’s decision to

act against the victim,” Niang v. Gonzales, 422 F.3d 1187, 1200 (10th Cir. 2005). “[T]he

protected ground cannot play a minor role in the alien’s past mistreatment or fears of

future mistreatment . . . [or] be incidental, tangential, superficial, or subordinate to

another reason for harm.” Dallakoti v. Holder, 619 F.3d 1264, 1268 (10th Cir. 2010)

(internal quotation marks omitted).

The BIA upheld the immigration judge’s determination that the Petitioners had not

established the required nexus between their membership in the Anaya family and the

persecution they suffered. As the immigration judge noted, two other men, both

unrelated to the Anayas, were kidnapped and murdered at the same time as Anaya’s

husband. And the men who sexually assaulted Angeles also assaulted her friend, who

was not a member of the Anaya family. We conclude that substantial evidence supported

the BIA’s determination that the Petitioners did not suffer persecution “on account of”

their membership in the Anaya family.

arguments on the merits. See 8 U.S.C. § 1252(d)(1) (limiting judicial review of removal orders for which “the alien has exhausted all administrative remedies available”). But the BIA nevertheless addressed the merits of the Petitioners’ remaining arguments even though it determined the Petitioners had not presented any “meaningful argument[]” on the government involvement issue. See R. at 974. We therefore deem it appropriate to address those arguments as well. See Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007). 7 Second, the Petitioners assert they were persecuted because of their status as

Tarahumara indigenous members forced from their land. The BIA correctly noted that a

proposed social group “cannot be defined exclusively by the fact that its members have

been subjected to harm.” Rivera-Barrientos, 666 F.3d at 650 (internal quotation marks

omitted). But even if the social group were defined only as members of the Tarahumara

ethnic minority, the immigration judge found no evidence that Petitioners’ ethnicity is

related to any persecution they have suffered. The immigration judge also found based

on the evidence presented that the harm the Petitioners fear in Mexico is widespread and

indiscriminate rather than aimed specifically at Tarahumara indigenous people. Being

subject to random criminality is not a protected status upon which to grant asylum. See

Vatulev v. Ashcroft, 354 F.3d 1207, 1209 (10th Cir. 2003). We hold these determinations

are also supported by substantial evidence.

Third, the Petitioners argue they were persecuted because of their status as

indigenous women left vulnerable when adult men in their family were murdered. To be

cognizable, however, a social group must be defined with particularity, “[t]he basic

premise” of which “is that the proposed group have particular and well-defined

boundaries.” Rivera-Barrientos, 666 F.3d at 648-49 (internal quotation marks omitted).

The BIA affirmed the immigration judge’s determination that this proposed social group

is too amorphous to satisfy this requirement. As the immigration judge held, this

proposed social group fails to provide a clear benchmark for determining who is

included. We agree the term “vulnerable” in this context is too vague to satisfy the

particularity requirement. See id. at 649 (“If the description of the proposed group is too

8 amorphous, and ideas of what the relevant terms mean are likely to vary, the applicant

has failed to provide an adequate benchmark for determining group membership.”

(internal quotation marks omitted)).

B. Withholding of Removal

“To be eligible for withholding of removal, an applicant must demonstrate that

there is a clear probability of persecution because of his race, religion, nationality,

membership in a particular social group, or political opinion.” Zhi Wei Pang v. Holder,

665 F.3d 1226, 1233 (10th Cir. 2012) (internal quotation marks omitted). Because the

Petitioners have not met the requirements for asylum, they cannot “satisfy the higher

standard of eligibility for withholding of removal.” Id. at 1234.

C. CAT Relief

“Article 3 of 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.”

Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005) (internal quotation

marks and brackets 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. § 1208.18(a)(7). This standard does not require “actual

knowledge, or willful acceptance” by the government. Cruz-Funez, 406 F.3d at 1192

(internal quotations marks omitted). Under the substantial-evidence standard, we

9 must deny the petition unless no reasonable adjudicator could reach the same finding

as the immigration judge and BIA.

The immigration judge found that the record as a whole did not support a

finding that if removed to Mexico, the Petitioners are more likely than not to be

tortured by a public official or with the consent or acquiescence of a public official.

We agree that although the Petitioners have expressed a fear of persecution from

unidentified armed men and are concerned about the lack of police resources to

control violence in their region, the evidence did not rise to the level of acquiescence.

Indeed, as the immigration judge noted, in each instance of violence perpetrated

against Anaya’s husband and Angeles, the government conducted an investigation.

And when Angeles did not return home when Anaya expected, she sought and

received help from soldiers in the area. We hold that the immigration judge’s

decision denying relief under CAT, and the BIA’s subsequent affirmance, are well

within the boundary of reasonableness.

III. CONCLUSION

We uphold the BIA’s affirmance of the immigration judge’s decision under the

substantial evidence standard. The petition for review is denied. The Petitioners’

“Motion for Leave to Proceed on Appeal Without Prepayment of Costs or Fees” is

granted.

Entered for the Court

Gregory A. Phillips Circuit Judge