Carcamo-Perez v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 11, 2024
• Docket: 24-9512
• Status: Unpublished

Opinion

Appellate Case: 24-9512 Document: 36-1 Date Filed: 12/11/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 11, 2024 _________________________________ Christopher M. Wolpert Clerk of Court KAREN PATRICIA CARCAMO-PEREZ; JOSUE AREVALO-CARCAMO; EMELY AREVALO-CARCAMO,

Petitioners,

v. No. 24-9512 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

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

Karen Patricia Carcamo-Perez1 petitions for review of the Board of

Immigration Appeals (BIA) decision affirming the denial of her applications for

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Ms. Carcamo-Perez’s minor children, Josue and Emely Arevalo-Carcamo, are derivative beneficiaries of her asylum application. They present no claims or arguments distinct from her arguments. Appellate Case: 24-9512 Document: 36-1 Date Filed: 12/11/2024 Page: 2

relief from removal. Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we deny

her petition for review.

I. BACKGROUND

A. Underlying Facts

Petitioner is a native and citizen of Honduras who entered the United States

without being admitted or paroled in July 2021. She was then placed in removal

proceedings, and the immigration judge (IJ) found her removable. Seeking relief

from removal, Petitioner applied for asylum, withholding of removal, and protection

under the Convention Against Torture (CAT).

Before the IJ, Petitioner testified that she and her children’s father, Josue

Arevalo, lived together in a small town in Yoro, Honduras. At the end of 2019,

Mr. Arevalo left Petitioner and their children alone in Honduras; he came to the

United States because the MS-13 and 18th Street gangs had threatened him.

Mr. Arevalo’s cousin, Carmelo Santa Maria, is a member of the MS-13 gang.

In February 2020, Carmelo began to demand that Petitioner let him hide out at her

house. He threatened to kill Petitioner and her children if she called the police or did

not comply. After Carmelo moved in, Petitioner noticed more foot and car traffic

around her home—she feared that people in Yoro knew Carmelo was staying with

her. Over the course of a year and some months, Carmelo came and went from her

home several times, threatening to harm Petitioner and her children if she refused to

grant him access to her home. At one point, police arrested Carmelo, but because the

MS-13 controlled the area, he was released a day later.

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In June 2021, three 18th Street gang members banged on Petitioner’s door.

They told her that they would kill her and her children if she did not turn Carmelo

over to them within a week. Fearing they would follow through on their threats,

Petitioner and her children left Honduras a few days later.

Petitioner never sought assistance from the police because she did not believe

they would protect her from the gangs. Her father and five siblings live in San Pedro

Sula, Honduras, about three hours away from Yoro. Petitioner did not seek refuge

with her family because the gangs are everywhere in Honduras, and she feared

Carmelo or the 18th Street gang members who threatened her could easily track her

down if she remained in the country.

B. Legal Standards

To receive asylum, an applicant must be a refugee. 8 U.S.C. § 1158(b)(1)(A).

A refugee is a person who is unable or unwilling to return to—and unable or

unwilling to avail herself of the protection of—her country because of past

persecution or a well-founded fear of persecution on account of any of five protected

grounds: race, religion, nationality, membership in a particular social group, or

political opinion. Id. § 1101(a)(42)(A); Rodas-Orellana v. Holder, 780 F.3d 982,

986 (10th Cir. 2015).

“Persecution is the infliction of suffering or harm upon those who differ [on

protected grounds] in a way regarded as offensive and must entail more than just

restrictions or threats to life and liberty.” Ritonga v. Holder, 633 F.3d 971, 975

(10th Cir. 2011) (internal quotation marks omitted). An applicant must establish a

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“nexus” between the past or feared persecution and a protected ground. Miguel-Pena

v. Garland, 94 F.4th 1145, 1159 (10th Cir.), cert. denied, ___ S. Ct. ___, 2024 WL

4743083 (U.S. Nov. 12, 2024) (No. 24-12). Where, as here, an applicant’s claim is

based on membership in a particular social group, she must show that the group

(1) shares “a common, immutable characteristic . . . beyond the power of an

individual to change,” (2) is defined with “particularity,” and (3) is socially distinct,

meaning it is “perceived as a group by society.” Rodas-Orellana, 780 F.3d 990–91

(internal quotation marks omitted).

To qualify for withholding of removal, an applicant must show “a clear

probability of persecution on account of a protected ground.” Id. at 987 (internal

quotation marks omitted). This burden of proof is higher than the burden for asylum.

Id. at 986.

To receive protection under the CAT, an applicant must establish that if she is

returned to her country, it is more likely than not that she would be tortured,

see 8 C.F.R. § 1208.16(c)(2), “by, or at the instigation of, or with the consent or

acquiescence of, a public official,” id. § 1208.18(a)(1). Unlike asylum or

withholding of removal, a CAT claim does not require the applicant to show a nexus

between the harm and a protected ground. Ritonga, 633 F.3d at 978.

C. Agency Proceedings

Petitioner rested her asylum and withholding of removal claims on

membership in two proposed social groups (1) family ties to Josue Arevalo in Yoro,

Honduras, and (2) single women who exhibit vulnerability due to familial gang

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membership that makes them and their family a target for similar future harm. The IJ

found the harm Petitioner endured in Honduras did not rise to the level of persecution

and that Petitioner’s proposed social groups were not cognizable because they were

not defined with particularity or socially distinct.

The IJ further found that even if Petitioner’s proposed groups were cognizable,

she failed to show that she was or would be harmed on account of her membership in

either group. The facts showed that Carmelo “was not attempting to overcome a

protected ground” but instead threatened her to secure refuge in her home because he

seemed to be “hiding from other gang members or possibly the police.” Id. at 55.

The IJ also said the facts did not show that the three rival gang members sought to

harm Petitioner based on a protected ground; their motivation was to find Carmelo.

Therefore, the IJ denied asylum and withholding of removal.

The IJ also denied Petitioner’s request for CAT protection, finding she failed

to show it was more likely than not that she would be tortured with the acquiescence

of government officials upon her removal to Honduras. The IJ reasoned that

Petitioner had not endured past torture, her fear of future harm was based on

speculation, her father and five siblings remained unharmed in Honduras and had not

encountered anyone seeking to find Petitioner, and she had not shown that relocation

within Honduras would be unreasonable. The IJ acknowledged country conditions

evidence in the record showing Honduras’s struggles with corruption and impunity

but noted that the evidence also showed the Honduran government was actively

working to address those issues.

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The BIA upheld the IJ’s decision. It affirmed the determination that Petitioner

was ineligible for asylum and withholding of removal because she failed to meet her

burden to establish a nexus between any past or feared future persecution in

Honduras and a protected ground. The BIA likewise affirmed the IJ’s finding that

Petitioner was ineligible for CAT protection because she did not demonstrate it was

more likely than not that she would be tortured with the acquiescence of government

officials upon her removal to Honduras. Accordingly, the BIA dismissed Petitioner’s

appeal. She timely petitioned this court for review.

II. DISCUSSION

A. Standards of Review

Where, as here, a single BIA member issues a brief order affirming an IJ’s

decision, we review both the BIA order and any parts of the IJ’s decision it relied on.

Dallakoti v. Holder, 619 F.3d 1264, 1267 (10th Cir. 2010). We review legal

conclusions de novo and findings of fact for substantial evidence. Id. Under the

substantial-evidence standard, “the 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).

B. Asylum

Petitioner raises two challenges to the agency’s asylum determination—both

pertain to the BIA’s conclusion that she failed to satisfy the nexus requirement.

To establish a nexus, an asylum applicant must demonstrate that her protected

ground “was or will be at least one central reason for” the persecution she suffered or

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fears. 8 U.S.C. § 1158(b)(1)(B)(i). The protected ground “cannot be incidental,

tangential, superficial, or subordinate to another reason for harm,” nor can it “play a

minor role in the [applicant’s] past mistreatment or fears of future mistreatment.”

Dallakoti, 619 F.3d at 1268 (internal quotation marks omitted). “Of course, a

persecutor can have multiple motives for targeting someone. . . . But even when the

protected ground is intertwined with unprotected reasons, the protected ground must

still be a central reason.” Orellana-Recinos v. Garland, 993 F.3d 851, 855 (10th Cir.

2021) (internal quotation marks omitted).

First, Petitioner argues the BIA “limited itself to the perceived most central

reason” and therefore applied a more stringent standard than the “one central reason”

standard. Opening Br. at 15. In support, she asserts the BIA prematurely ended its

nexus analysis when it found Carmelo and the gang members were motivated by

unprotected reasons and failed to consider whether her protected grounds also

motived them to target her. “Whether the BIA applied the correct legal framework is

a question of law, which we review de novo.” Miguel-Pena, 94 F.4th at 1159. Here,

the BIA considered the possibility that Carmelo and the gang members had mixed

motives but ultimately upheld the IJ’s conclusion that the evidence did not establish

that they sought to harm Petitioner on account of a protected ground at all. The BIA

applied the appropriate nexus standard.

Second, Petitioner argues that the record compels the conclusion that she was

persecuted on account of her proposed protected grounds. “Whether an applicant was

persecuted on account of a protected ground is a question of fact that we review for

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substantial evidence.” Miguel-Pena, 94 F.4th at 1159 (internal quotation marks

omitted).2 Thus, for us to reverse the BIA, the record must show that any reasonable

adjudicator would be compelled to conclude that one of the central reasons Carmelo

and the three 18th Street gang members targeted Petitioner was because of her family

ties to Josue Arevalo in Yoro, Honduras, or her membership in the group of single

women who exhibit vulnerability due to familial gang membership that makes them

and their family a target for similar future harm.

Even assuming, as the BIA did, that Petitioner’s proffered social groups are

cognizable, the record does not contain the compelling evidence required to overturn

the BIA’s nexus determination. As the BIA observed, Petitioner herself testified that

Carmelo threatened her “because he was attempting to hide from other gang members

and/or the police, and that when members of the 18th Street gang threatened her it

was because they were looking for [Carmelo] and believed that [Petitioner] knew his

whereabouts.” R. vol. I at 4. And nothing in the record compels the conclusion that

either of Petitioner’s protected grounds “was or will be at least one central reason

2 Petitioner argues that whether she satisfied the nexus requirement is a mixed question of law and fact, and under Guerrero-Lasprilla v. Barr, 589 U.S. 221, 225 (2020), such questions present “questions of law.” She therefore urges us to conduct a bifurcated review of the BIA’s nexus determination in which we would afford deference to the BIA’s factual findings and then review de novo whether the BIA correctly applied the law to the facts. But Guerrero-Lasprilla’s holding concerned review of mixed questions for purposes of 8 U.S.C. § 1252(a)(2)(D)’s jurisdictional bar, and the Court expressly declined to answer what its jurisdictional holding means for “the proper standard for appellate review of [an] . . . agency decision that applies a legal standard to underlying facts.” Guerrero-Lasprilla, 589 U.S. at 228. Given the uniquely jurisdictional concerns animating Guerrero-Lasprilla, we decline to treat its analysis as dispositive with respect to our standard of review here. 8 Appellate Case: 24-9512 Document: 36-1 Date Filed: 12/11/2024 Page: 9

for” Carmelo or the 18th Street gang members to persecute her. 8 U.S.C.

§ 1158(b)(1)(B)(i) (emphasis added); see Niang v. Gonzales, 422 F.3d 1187, 1200

(10th Cir. 2005) (concluding that an applicant’s protected ground “must be central to

the persecutor’s decision to act against” her).

C. Withholding of Removal

Petitioner’s failure to satisfy the burden of proof for asylum necessarily

precludes her from meeting the higher standard for withholding of removal.

Rodas-Orellana, 780 F.3d at 987.

D. The Convention Against Torture

Petitioner argues that the agency “failed to give considered review” to her

CAT claim. Opening Br. at 25. She asserts the agency’s CAT analysis did not

contextualize country conditions evidence with her credible testimony about her lived

experience in Honduras. We reject this argument. The IJ analyzed the evidence and

fully explained her reasons for denying Petitioner’s request for protection under the

CAT. The BIA agreed with and adopted the IJ’s analysis. Having carefully reviewed

Petitioner’s argument, we discern no reversible error.

III. CONCLUSION

We deny the petition for review.

Entered for the Court

Joel M. Carson III Circuit Judge