Gonzalez-Dominguez v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 30, 2024
• Docket: 23-9518
• Status: Unpublished

Opinion

Appellate Case: 23-9518 Document: 010110991936 Date Filed: 01/30/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 30, 2024 _________________________________ Christopher M. Wolpert Clerk of Court RENE ROBERTO GONZALEZ- DOMINGUEZ,

Petitioner,

v. No. 23-9518 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before EID, CARSON, and ROSSMAN, Circuit Judges. _________________________________

Rene Roberto Gonzalez-Dominguez is a native and citizen of El Salvador who

entered the United States without permission. An immigration judge (IJ) found him

removable and ineligible for withholding of removal or protection under the

Convention Against Torture (CAT), and ordered that he be returned to his home

country. The Board of Immigration Appeals (BIA) dismissed his appeal in a

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-9518 Document: 010110991936 Date Filed: 01/30/2024 Page: 2

single-member summary order. Mr. Gonzalez-Dominguez now petitions for review

of the BIA’s decision. We have jurisdiction under 8 U.S.C. § 1252(a), and we deny

the petition.

I. STANDARD OF REVIEW

We review the BIA’s decision, but we may consult the IJ’s more-complete

discussion of the same grounds relied upon by the BIA. Uanreroro v. Gonzales,

443 F.3d 1197, 1204 (10th Cir. 2006). We review the agency’s “legal determinations

de novo, and its findings of fact under a substantial-evidence standard.” Niang v.

Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005). “[A]dministrative 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).

II. BACKGROUND & PROCEDURAL HISTORY

Mr. Gonzalez-Dominguez entered the United States in April 2005. In May

2011, the government served him with a notice to appear (NTA), charging him with

removability as a noncitizen present in the United States without being admitted or

paroled. At a hearing before an IJ in August 2012, he conceded proper service of the

NTA and removability as charged. He then applied for withholding of removal and

CAT protection,1 claiming he would likely be killed by Salvadoran gangs upon return

to his country because he used to belong to the Salvadoran national police force.

1 He has not pursued an asylum claim. 2 Appellate Case: 23-9518 Document: 010110991936 Date Filed: 01/30/2024 Page: 3

A. Mr. Gonzalez-Dominguez’s Hearing Testimony

At a hearing in support of withholding and CAT protection, Mr. Gonzalez-

Dominguez testified he became a Salvadoran national police officer in 1995. In

August 2004, three Mara 18 gang members told him he needed to leave the police

force or there might be attempts on the life of his wife and son. He reported that

threat to his superiors and was told “to be careful and keep an eye on the people that

were around [him].” R. at 174. His superiors did not begin an investigation,

however, because, according to Mr. Gonzalez-Dominguez, “in my country there

aren’t the resources in order to be able to do that.” Id.

Continuing his testimony, Mr. Gonzalez-Dominguez said five or six armed

gang members came to his home the following month and asked why he had not left

the police force, again threatening his wife and son. He again reported the incident to

his superiors, but “[t]his time they just didn’t say anything,” and they didn’t

investigate because, “like I said before, they can’t—they can’t do anything, can’t do

much, nothing.” R. at 176.

Mr. Gonzalez-Dominguez then testified that two or three gang members came

to his house a month later (October 2004) and repeated their threat that he needed to

quit the police force. In December 2004, he received a similar threat while he was

with his son at a nearby park. He received five more threats in January and February

2005. Finally, in March 2005, two people whom Mr. Gonzalez-Dominguez believed

to be leaders of the Mara 18 gang came to his house and more forcefully threatened

3 Appellate Case: 23-9518 Document: 010110991936 Date Filed: 01/30/2024 Page: 4

the lives of his wife and son if he did not leave the police force. This threat struck

him as more serious, and that is when he fled El Salvador for the United States.

Mr. Gonzalez-Dominguez has not since been threatened. In either 2008 or

2009, a Salvadoran police chief texted him a copy of a letter confirming his official

termination from the national police force.

B. The IJ’s Decision

The IJ’s decision began by addressing a procedural issue sua sponte.

Specifically, the IJ noted that, “[i]n retrospect, the [NTA] was defective” because it

did not include “the date and time of the first hearing.” R. at 99; cf. Pereira v.

Sessions, 138 S. Ct. 2105, 2109–10 (2018) (holding that an NTA without time or

place information fails to trigger the “stop-time rule,” meaning the noncitizen

continues to accrue continuous physical presence for purposes of cancellation of

removal). The IJ relied on agency precedent, however, holding that such an NTA can

be cured by later service of a hearing notice containing the date and time. Because

Mr. Gonzalez-Dominguez received such a notice, and because he conceded proper

service of the NTA, the IJ found that removal proceedings had been proper.

As to the substantive claims at issue, the IJ found that Mr. Gonzalez-

Dominguez failed to show:

 the threats he received in 2004 and 2005 amounted to persecution; and

 a likelihood of persecution upon return to El Salvador, because his

evidence did not show that gang members target former police officers.

The IJ therefore denied withholding of removal.

4 Appellate Case: 23-9518 Document: 010110991936 Date Filed: 01/30/2024 Page: 5

As for CAT protection, the IJ held that Mr. Gonzalez-Dominguez failed to

show the Salvadoran government would acquiesce in torture committed by gang

members, should he return to El Salvador. The IJ therefore denied CAT protection

and ordered Mr. Gonzalez-Dominguez returned to his home country.

C. The BIA’s Decision

On appeal to the BIA, Mr. Gonzalez-Dominguez argued that the NTA defect

deprived the immigration court of jurisdiction, so the IJ should have dismissed his

removal proceedings. He also challenged the IJ’s denial of his withholding and CAT

claims.

The BIA summarily affirmed, adopting the IJ’s reasoning on all contested

issues. This petition for review timely followed.

III. ANALYSIS

A. The Agency’s Jurisdiction

Mr. Gonzalez-Dominguez renews his argument that his defective NTA

failed to confer jurisdiction on the agency to order his removal. This court held

after Pereira, however, “that the requirements relating to notices to appear are

non-jurisdictional, claim-processing rules.” Martinez-Perez v. Barr, 947 F.3d 1273,

1278 (10th Cir. 2020). “We are bound by the precedent of prior panels absent

en banc reconsideration or a superseding contrary decision by the Supreme Court.”

In re Smith, 10 F.3d 723, 724 (10th Cir. 1993).

Mr. Gonzalez-Dominguez does not specifically argue that the Supreme Court

has since handed down a superseding contrary decision, but he frequently cites

5 Appellate Case: 23-9518 Document: 010110991936 Date Filed: 01/30/2024 Page: 6

Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). Niz-Chavez was “the next chapter in

the [Pereira] story.” Id. at 1479. It examined whether the government could avoid

the stop-time problem highlighted in Pereira by later serving a document containing

the time and place of the hearing. See id. Its answer was “no.” See id. at 1486.

By relying on Niz-Chavez, Mr. Gonzalez-Dominguez may mean to say that,

just as a defective NTA plus a later curative document does not trigger the stop-time

rule, a defective NTA plus a later curative document does not confer jurisdiction on

the immigration courts. If this is his argument, we disagree. Nothing in Pereira or

Niz-Chavez suggests the agency’s jurisdiction—its “power or authority to hear and

decide,” Atlas Life Ins. Co. v. W. I. S., Inc., 306 U.S. 563, 568 (1939)—turns on

the technical perfection of the original NTA. Thus, we follow our holding in

Martinez-Perez, 947 F.3d at 1278, that the date and time requirements are not

jurisdictional, and we conclude the agency retained jurisdiction to order

Mr. Gonzalez-Dominguez’s removal.

B. Claim-Processing Objection to the Defective NTA

Mr. Gonzalez-Dominguez argues, at a minimum, the technical NTA

requirements are at least claim-processing rules, and the agency should have

dismissed the proceeding because the government failed to follow those rules.

We agree they are claim-processing rules, as we held in Martinez-Perez. But

the government objects that Mr. Gonzalez-Dominguez did not raise this argument

before the agency. We likewise cannot find any place in the record where

Mr. Gonzalez-Dominguez raised the claim-processing issue. Rather, he argued to the

6 Appellate Case: 23-9518 Document: 010110991936 Date Filed: 01/30/2024 Page: 7

BIA (although not to the IJ) that the defective NTA stripped the agency of

jurisdiction.2

This court “may review a final order of removal only if . . . the alien has

exhausted all administrative remedies available to the alien as of right.” 8 U.S.C.

§ 1252(d)(1). Mr. Gonzalez-Dominguez did not exhaust his claim-processing

argument before the agency. And, to be clear, exhausting a jurisdictional argument is

not the same as exhausting a claim-processing argument. For example, in contrast to

jurisdictional rules, claim-processing rules “must be timely raised to come into play.”

Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1846, 1849 (2019). Thus, Mr. Gonzalez-

Dominguez did not give the agency an opportunity to adjudicate at least one

important question, specifically, the timeliness of his claim-processing objection in

his circumstances (i.e., he was served with the NTA in 2011, conceded proper service

in 2012, and never raised any objection to the NTA, jurisdictional or otherwise, until

his BIA brief, which he filed in August 2020). See Schreiber v. Cuccinelli, 981 F.3d

766, 787 (10th Cir. 2020) (discussing “the fundamental principle of administrative

law that instructs courts not to usurp the agency’s function by setting aside the

administrative determination upon a ground not theretofore presented and depriving

the agency of an opportunity to consider the matter, make its ruling, and state the

reasons for its action” (internal quotation marks and brackets omitted)); Vicente-Elias

2 He also argued that the defective NTA violated his due process rights, but he has not reasserted that argument here. 7 Appellate Case: 23-9518 Document: 010110991936 Date Filed: 01/30/2024 Page: 8

v. Mukasey, 532 F.3d 1086, 1094 (10th Cir. 2008) (“[O]bjections to procedural errors

or defects that the BIA could have remedied must be exhausted . . . .”).

For these reasons, we are precluded from reaching his claim-processing

argument.

C. Withholding of Removal

“[T]he Attorney General may not remove an alien to a country if the Attorney

General decides that the alien’s life or freedom would be threatened in that country

because of,” among other things, “membership in a particular social group.”

8 U.S.C. § 1231(b)(3)(A). A withholding applicant has the burden of proving a

threat to life or freedom in the country of removal, either by proving past threats (in

which case the burden shifts to the government to show no current likelihood of

threats, or an ability to avoid them through relocation), or by proving a likelihood of

future threats. See 8 C.F.R. § 1208.16(b)(1)–(2).

Mr. Gonzalez-Dominguez claimed he would be threatened because he is a

member of a particular social group comprising former Salvadoran national police

officers. So defined, he could not carry his burden with the threats he received in

2004 and 2005 because the gangs were threatening him based on his status as a

current police officer.3 Instead, his case necessarily turned on proving a likelihood

of future threats based on his previous police service. The IJ found Mr. Gonzalez-

3 The IJ nonetheless ruled the threats did not qualify as the kind that could support withholding of removal. Mr. Gonzalez-Dominguez’s petition for review does not challenge this finding. 8 Appellate Case: 23-9518 Document: 010110991936 Date Filed: 01/30/2024 Page: 9

Dominguez had not carried this burden because his evidence almost entirely showed

that Salvadoran gangs target current police officers, not former ones.

Mr. Gonzalez-Dominguez claims this was error, but we see no basis to

overturn the agency’s conclusion.4 Rather, the IJ was correct that almost all of the

evidence points to threats against, and murders of, current police officers.

Mr. Gonzalez-Dominguez says he “submitted significant country conditions evidence

that speaks to the gangs’ targeting of current and former police officers,” and he

follows that assertion with a string cite to numerous documents in the record. Pet’r

Opening Br. at 37–38. We have reviewed each of the cited documents and not one of

them discusses threats against former police officers. His characterization to the

contrary is simply incorrect.

We have found only four items of evidence supporting Mr. Gonzalez-

Dominguez’s claim:

 At the withholding/CAT hearing, Mr. Gonzalez-Dominguez was asked,

“So, 13 years have passed since you left El Salvador. Why would these

people continue to be a threat to you?” R. at 182. He answered,

“[B]ecause I think[,] because what they wanted to do was kill me and

my family and I never said okay, I’ll quit the police.” Id.

4 The government argues Mr. Gonzalez-Dominguez waived this issue because his opening brief fails to specifically and adequately challenge the agency’s finding. The government is mistaken. Mr. Gonzalez-Dominguez devoted four pages to this argument. See Pet’r Opening Br. at 36–39. 9 Appellate Case: 23-9518 Document: 010110991936 Date Filed: 01/30/2024 Page: 10

 A Salvadoran attorney who knew Mr. Gonzalez-Dominguez when he

was a police officer submitted an affidavit. The attorney stated

(according to the official translation), “[R]eturning to [E]l Salvador

would be of great risk to him and his family since the [gang activity]

has rise[n] and for the conditions for which he had to leave the country

it is a major risk for him to return to the country.” R. at 285.

 A second Salvadoran attorney who knew Mr. Gonzalez-Dominguez

submitted an affidavit. He asserted, “[R]eturning to [E]l Salvador

would be of great risk to [Mr. Gonzalez-Dominguez] and his family.”

R. at 301.

 A Salvadoran police officer who worked with Mr. Gonzalez-Dominguez

submitted an affidavit. He stated, “[I]f [Mr. Gonzalez-Dominguez]

were to return to the country it would put him and his family in great

denager [sic].” R. at 294.

“Under the substantial-evidence standard our duty is to guarantee that factual

determinations are supported by reasonable, substantial and probative evidence

considering the record as a whole.” Niang, 422 F.3d at 1196 (internal quotation

marks omitted). The agency had substantial evidence to conclude that, despite these

assertions, the record did not support Mr. Gonzalez-Dominguez’s claim that his

former-officer status puts him at risk if he returns to his country. As the IJ pointed

out: (i) Mr. Gonzalez-Dominguez took the step the gangs wanted him to take,

namely, he left the police force; (ii) thirteen years had passed (as of the IJ’s decision) 10 Appellate Case: 23-9518 Document: 010110991936 Date Filed: 01/30/2024 Page: 11

since his last threat; and (iii) his documentary evidence about threats to police

officers relates to current officers, not former ones. See R. at 108–10. We therefore

cannot say the evidence “compel[s]” any “reasonable adjudicator . . . to conclude”

that Salvadoran gangs target former police officers. 8 U.S.C. § 1252(b)(4)(B). In

consequence, we will not disturb the agency’s denial of withholding of removal.

D. CAT Protection

Mr. Gonzalez-Dominguez’s CAT claim is based on the same premise as his

withholding claim. Thus, his failure to show a likelihood of being targeted as a

former police officer would seem to doom his CAT claim also. But the agency never

said as much, and we “may not uphold an agency action on grounds not relied on by

the agency,” Mickeviciute v. INS, 327 F.3d 1159, 1163 (10th Cir. 2003) (internal

quotation marks omitted). We therefore focus on the reasoning actually given.

The parties’ CAT dispute centers around the concept of government

acquiescence to torture. See 8 C.F.R. § 1208.18(a)(1) (requiring the torture in

question to 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”). Mr. Gonzalez-Dominguez argued before the agency, and

continues to argue here, that his supervisors’ failure to take action after he reported

the gang’s threats, combined with the reason they failed to act (lack of resources), is

enough to show willful blindness (which is a form of acquiescence, see Karki v.

Holder, 715 F.3d 792, 806 (10th Cir. 2013)). The IJ interpreted the evidence to show

11 Appellate Case: 23-9518 Document: 010110991936 Date Filed: 01/30/2024 Page: 12

that Mr. Gonzalez-Dominguez’s superiors told him they could do nothing due to lack

of resources, but the IJ found this was not enough to establish willful blindness.5

Mr. Gonzalez-Dominguez asks us to overturn that finding, but our limited

standard of review does not permit us to do so. As the BIA recognized, the

Salvadoran government’s general inability to control the gangs is not the same as a

likelihood of acquiescing to torture of Mr. Gonzalez-Dominguez, should he return.

See R. at 4 (“We do not disturb the Immigration Judge’s determination that police

were frustrated by a lack of resources to fully combat El Salvador’s gang problem,

but would not acquiesce to any future torture.” (citation omitted)). From our

perspective, we cannot say Mr. Gonzalez-Dominguez’s evidence about the

government’s lack of resources to investigate gang threats compels a conclusion that

the Salvadoran government would acquiesce to whatever the gangs might do to him

upon his return. See 8 U.S.C. § 1252(b)(4)(B). We accordingly reject his CAT

5 The IJ appears to have misremembered Mr. Gonzalez-Dominguez’s testimony about his reports to his superiors. Mr. Gonzalez-Dominguez did not say his superiors told him they could do nothing due to lack of resources. He said his superiors told him to be careful, and they otherwise did nothing. He then offered his own opinion that his country lacks the resources to investigate gang threats. The IJ, however, described the testimony as follows: “[W]hen he reported the first threat he received he was told by his commanding officers that they were unable to do anything in response to such a threat based on resource issues.” R. at 129. Mr. Gonzalez-Dominguez and the government have both accepted this characterization of the testimony in their subsequent briefing. Thus, because no one challenges it, we treat it as a settled factual finding.

12 Appellate Case: 23-9518 Document: 010110991936 Date Filed: 01/30/2024 Page: 13

IV. CONCLUSION

We deny the petition for review.

Entered for the Court

Veronica S. Rossman Circuit Judge