Blancas-Lozano v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 4, 2022
• Docket: 21-9533
• Status: Unpublished

Opinion

Appellate Case: 21-9533 Document: 010110641260 Date Filed: 02/04/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 4, 2022 _________________________________ Christopher M. Wolpert Clerk of Court LUIS ALFREDO BLANCAS-LOZANO,

Petitioner,

v. No. 21-9533 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT * _________________________________

Before McHUGH, MORITZ, and ROSSMAN, Circuit Judges. _________________________________

An Immigration Judge (IJ) denied Luis Alfredo Blancas-Lozano’s application

for protection under the United Nations Convention Against Torture (CAT) and

granted him voluntary departure to Mexico. The Board of Immigration Appeals

(BIA) upheld the IJ’s order. Mr. Blancas has filed a petition for review. Exercising

jurisdiction under 8 U.S.C. § 1252(a)(4), we deny the 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-9533 Document: 010110641260 Date Filed: 02/04/2022 Page: 2

I. BACKGROUND

Mr. Blancas is a native and citizen of Mexico. In 2018, the Department of

Homeland Security served him with a Notice to Appear, charging him with

removability as a noncitizen present in the United States without having been

admitted or paroled, or for having arrived in this country at any time or place other

than as the Attorney General designated. See 8 U.S.C. § 1182(a)(6)(A)(i).

Mr. Blancas conceded the charge against him but applied for withholding of

removal under the CAT. His testimony consists of an affidavit he submitted to the IJ.

The IJ found Mr. Blancas credible and adopted his affidavit as the statement of facts.

In his affidavit, Mr. Blancas stated that in 2005, when he was fifteen, he was

standing outside a store with his brothers and some friends near where he lived in

Mexico. A group of people from across the street started yelling at them that they

were not welcome and had to leave. Five members of the group armed with

machetes, sticks, and rocks then attacked Mr. Blancas’s group. They punched

Mr. Blancas, kicked him, and beat him with rocks. He ran, but one of the people

caught him and threatened that if Mr. Blancas was seen in that area again, they would

beat or kill him. Because there was no hospital in the area where he lived, his mother

took care of him. For a long time after this incident, Mr. Blancas did not travel more

than a block from his house.

A few months later, four men from the earlier incident attacked Mr. Blancas

while he was running errands with his mother in a nearby town. They taunted

Mr. Blancas, punched him, and hit him on the arm with a crowbar. He was able to

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knock one of the men down and escape. He drove to a nearby hospital to get care for

his mother, who had lost consciousness.

Mr. Blancas did not report either attack to the police because he believes the

Mexican police are untrustworthy and generally unwilling to investigate crimes

unless the victim pays them. But when he returned home after the second attack, the

police were at his house asking questions about it. Mr. Blancas felt they were

accusing him of having started the fight, and an officer told him he could be jailed,

which caused him to think the police were working for the attackers. Afterwards,

Mr. Blancas decided not to leave his house unless he absolutely had to.

Based on these two attacks and associated threats he received at school,

Mr. Blancas came to the United States in November 2005.

In his affidavit, Mr. Blancas also asserted he fears returning to Mexico because

he will be tortured by the Huachicoleros, a gang or criminal organization in Mexico

that steals fuel. The Huachicoleros have been known to conscript people to work for

the gang. The group forced Mr. Blancas’s brother-in-law to work for it by

threatening his wife (Mr. Blancas’s sister) and their children. There is a real danger

he could be conscripted, Mr. Blancas asserted, because of the many fuel pipes in his

area. He also claimed he is at high risk of being injured or harmed by criminal

groups in Mexico who target Mexican citizens when they return after living in the

United States for a long time.

The IJ found Mr. Blancas had not demonstrated it was more likely than not he

would be tortured if he returns to Mexico. First, the IJ found the mistreatment

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Mr. Blancas received in the two attacks was not sufficiently severe to qualify as past

torture; although he was physically harmed, he did not go to the hospital. The IJ also

observed those events occurred in 2005, and there was no evidence whether or why

the attackers would still be interested in Mr. Blancas now, many years later. The IJ

also found no evidence Mr. Blancas had any history with the Huachicoleros or that

the Huachicoleros had targeted him in the past or would target him specifically if he

returns to Mexico. Further, the IJ found it “reasonable for [Mr. Blancas] to relocate

to another area of Mexico to avoid the harm in his hometown.” R. at 65. The IJ

explained Mr. Blancas could avoid the harm he feared by relocating, since both his

attackers and the Huachicoleros were operating in his hometown, Mr. Blancas is “of

working age,” and “Mexico is large and very populous.” Id.

The BIA “adopt[ed] and affirm[ed]” the IJ’s decision and concluded the IJ’s

“factual findings” were “not clearly erroneous.” R. at 3. The BIA reiterated some of

the IJ’s reasoning and added that Mr. Blancas’s “argument that his sister and

brother-in-law were targeted” by the Huachicoleros “does not show that he, in

particular, would be targeted.” Id. This petition for review followed.

II. DISCUSSION

Where, as here, a single BIA member issues a brief order deciding the merits

of an appeal, the BIA’s order is the final order we review. Uanreroro v. Gonzales,

443 F.3d 1197, 1204 (10th Cir. 2006). But we may consult the IJ’s decision if

necessary to understand the grounds for the BIA’s decision, especially where, as

here, the BIA adopts the IJ’s decision. See id. (noting it is “especially appropriate” to

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look to 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”). We review factual challenges to an order denying CAT relief

for substantial evidence. Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020). Under the

substantial-evidence standard, “administrative findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B). We review legal determinations de novo. Igiebor v. Barr,

981 F.3d 1123, 1131 (10th Cir. 2020).

To be eligible for withholding of removal under the CAT, an applicant must

“establish that it is more likely than not that he or she would be tortured if removed

to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Mr. Blancas argues

the IJ and BIA erred in finding that he failed to meet this standard. He contends his

past treatment amounts to torture or at least supports a likelihood of future torture by

the same group, particularly when accounting for the mental suffering they caused

him. We identify no error. 1

“Torture is defined as any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a person.” Id. § 1208.18(a)(1)

(emphasis added). It “is an extreme form of cruel and inhuman treatment and does

not include lesser forms of cruel, inhuman or degrading treatment or punishment that

do not amount to torture.” Id. § 1208.18(a)(2) (emphasis added). For “severe pain or

1 Although Mr. Blancas lists three issues in his brief, his arguments overlap in certain respects. We therefore address the issues topically. 5 Appellate Case: 21-9533 Document: 010110641260 Date Filed: 02/04/2022 Page: 6

suffering” to warrant CAT relief, it must be “inflicted by, or at the instigation of, or

with the consent or acquiescence of, a public official acting in an official capacity or

other person acting in an official capacity.” Id. § 1208.18(a)(1). In assessing the

likelihood of torture, a fact-finder must consider all relevant evidence, specifically

including “[e]vidence of past torture inflicted upon the applicant.” Id.

§ 1208.16(c)(3)(i).

Here, Mr. Blancas was beaten twice but did not suffer severe physical or

mental injuries. We have upheld agency findings that even more severe pain and

suffering did not amount to persecution, let alone fall within the more severe

category of torture. See, e.g., Xue v. Lynch, 846 F.3d 1099, 1101-02 (10th Cir.

2017); Sidabutar v. Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007). 2

Mr. Blancas also contends the BIA erred in upholding the IJ’s finding there

was no evidence that the individuals who attacked him in 2005 would be interested in

him thirteen years later. To support this contention, he offers his testimony that the

Mexican police acted in collusion with his attackers and, more generally, have a

custom of colluding with gangs. We do not see how those facts (assuming their

2 Mr. Blancas asserts the IJ only “questioned whether [he] was even tortured” and the BIA “assumed [he] was harmed or tortured.” Pet’r’s Opening Br. at 17 n.6; see also id. at 20-21 (arguing the BIA “did not affirm the IJ that Mr. Blancas was not harmed or tortured”). This assertion rests on a misreading of the record. The IJ found “the mistreatment [Mr. Blancas] received in the two attacks in Mexico was not sufficiently severe to rise to the level of torture in the past.” R. at 64. And the BIA determined the IJ had made no clear errors in his factual findings, affirming and adopting the IJ’s decision. See R. at 3. 6 Appellate Case: 21-9533 Document: 010110641260 Date Filed: 02/04/2022 Page: 7

truth) bear on the likelihood that Mr. Blancas’s attackers would harm or torture him

if he returns to Mexico now.

Mr. Blancas suggests documentary evidence of human rights violations in

Mexico—including torture, beatings, abuse, and mistreatment by security forces—

supports the likelihood he would be tortured if he returns and that the agency failed

to consider or mention such evidence. An IJ must consider country-conditions

evidence. See 8 C.F.R. § 1208.16(c)(3)(iii)-(iv) (requiring consideration of

country-conditions evidence, in particular any “gross, flagrant or mass violations of

human rights within the country of removal, where applicable”). Although the IJ did

not explicitly discuss the country-conditions evidence, he stated he had considered all

the evidence. Mr. Blancas points to no specific parts of the country-conditions

evidence suggesting it is more likely than not he would be tortured if he returns to

Mexico, nor have we uncovered any. Thus, we have no reason to believe the IJ did

not consider the documentary evidence. See Maatougui v. Holder, 738 F.3d 1230,

1242-43 (10th Cir. 2013) (“The [IJ] is not required to write an exegesis on every

contention. What is required is that [the IJ] consider the issues raised, and announce

[his or her] decision in terms sufficient to enable a reviewing court to perceive that

[he or she] has heard and thought and not merely reacted.” (brackets and internal

quotation marks omitted)); Hadjimehdigholi v. INS, 49 F.3d 642, 648 n.2 (10th Cir.

1995) (explaining that the agency is not required to discuss all the evidence).

Mr. Blancas further argues that in determining the Huachicoleros would be

unlikely to target him again, the BIA failed to seriously consider that the group had

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previously targeted his sister and brother-in-law. He contends that mistreatment a

family member receives is relevant to a CAT claim, particularly where the fear of

torture has the same basis. But the BIA expressly observed this fact did not

overcome the IJ’s finding that the Huachicoleros had not directly targeted

Mr. Blancas or shown any specific interest in him. See R. at 3. Mr. Blancas’s

argument effectively asks us to reweigh the evidence, which we may not do. See

Vladimirov v. Lynch, 805 F.3d 955, 960 (10th Cir. 2015) (explaining that when

evaluating whether substantial evidence supports an agency’s judgment, we do not

“reweigh the evidence”). Mr. Blancas also claims the agency overlooked an article

he submitted describing how the Huachicoleros torture and kill those who resist

recruitment. But nothing in that article shows it is more likely than not that the

Huachicoleros would torture or conscript Mr. Blancas if he were to return to Mexico.

We thus fail to see any legal or factual error casting doubt on whether substantial

evidence supports the denial of CAT relief.

Even if the evidence suggested Mr. Blancas’s 2005 attackers or the

Huachicoleros would be likely to target him if he returns to his home-town area, the

agency found he could avoid harm by relocating elsewhere in Mexico. That was a

proper consideration. Mr. Blancas bore the burden of establishing eligibility for CAT

withholding. See 8 C.F.R. § 1208.16(c)(2). And evaluating the likelihood a CAT

applicant would be tortured involves consideration of “[e]vidence that the applicant

could relocate to a part of the country of removal where he or she is not likely to be

tortured.” Id. § 1208.16(c)(3)(ii).

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Mr. Blancas contends the BIA’s relocation determination rests on an incorrect

legal standard—whether he failed to show it was impossible to relocate. But the IJ

did not apply this standard. The IJ found “it would be reasonable for [Mr. Blancas]

to relocate in another area of Mexico to avoid the harm in his hometown that he

fears.” R. at 65 (emphasis added). Mr. Blancas’s argument that the BIA applied an

impossibility standard apparently rests on the BIA’s use of the phrase “could not” in

its decision: “We also affirm the [IJ’s] conclusion that [Mr. Blancas] did not

demonstrate that he could not relocate to a part of Mexico where he would not face a

clear probability of torture from the individuals who harmed him in the past or the

Huachicoleros.” R. at 3 (emphasis added). Because the BIA affirmed the IJ’s

conclusion that relocation was reasonable, we consider the BIA’s use of the phrase

“could not” to be, at most, inartful drafting and not, as Mr. Blancas contends, the

application of an erroneous legal standard. 3

Finally, Mr. Blancas argues the BIA applied the wrong standard by failing to

consider evidence that the police colluded with his attackers. This argument is

misplaced. Under the CAT, Mr. Blancas must prove “it is more likely than not that

[he] would be tortured if removed to [Mexico].” 8 C.F.R. § 1208.16(c)(2). Torture,

3 Our resolution of this argument does not require addressing Mr. Blancas’s assertion that § 1208(c)(3)(ii) requires only that relocation be reasonable. This appears to be an open question in this circuit. Compare Maldonado v. Lynch, 786 F.3d 1155, 1163 (9th Cir. 2015) (en banc) (holding that § 1208.16(c)(3) does not require a CAT applicant “to prove that internal relocation is ‘impossible’”), with Hernandez-Torres v. Lynch, 642 F. App’x 814, 821 (10th Cir. 2016) (unpublished decision relying on Ninth Circuit authority later overruled by Maldonado to suggest impossibility standard applies in CAT context). 9 Appellate Case: 21-9533 Document: 010110641260 Date Filed: 02/04/2022 Page: 10

by CAT definition, requires a showing of severe pain and suffering as well as

government acquiescence to this pain and suffering. See id. § 1208.18(a)(1). The IJ

denied Mr. Blancas’s application because he failed to prove the requisite likelihood

of severe pain and suffering. The BIA did not need to address government

acquiescence to affirm the IJ’s denial of Mr. Blancas’s application.

III. CONCLUSION

For the foregoing reasons, we conclude substantial evidence supports the

agency’s denial of Mr. Blancas’s application for CAT withholding and the agency

committed no legal error. We therefore deny the petition for review.

Entered for the Court

Veronica S. Rossman Circuit Judge