Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS January 8, 2025 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court TEMURI GURCHIANI,
Petitioner,
v. No. 23-9588 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, Chief Judge, EBEL, and ROSSMAN, Circuit Judges. _________________________________
Petitioner Temuri Gurchiani seeks this court’s review of a September
29, 2023 order from the Board of Immigration Appeals (BIA). That order
affirmed an Immigration Judge’s (IJ’s) decision to deny Mr. Gurchiani’s
application for asylum and withholding of removal and to order his removal
from the United States. Exercising jurisdiction under 8 U.S.C. § 1252, we
deny Mr. Gurchiani’s petition for review.
* This order and judgment is not binding precedent, except under the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: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 2
I
A
Mr. Gurchiani is a citizen of both Georgia and Russia. For decades, he
split his time between the two countries. During much of 2022, he lived in
border towns in Georgia and Russia to find work to help support himself,
and his wife and two children, who live in Tblisi, Georgia.
The events underlying this petition occurred in March 2022, when Mr.
Gurchiani was working in Russia.1 Over the course of about six days,
Russian police and military officials visited his workplace, asking him to
join in the “‘special military operation’ in Ukraine.” RI.3. When Mr.
Gurchiani declined to join the military efforts, these officials threatened
him and used bats to beat him all over his body, causing extensive bruising
and pain.
About six months later, Mr. Gurchiani returned to Georgia. After a
few weeks, in October 2022, he came to the United States via Turkey,
entering this country without inspection. After being served with a notice
to appear, he applied for asylum and withholding of removal based on the
1 Shortly before then, Russia had invaded Ukraine.
2 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 3
threats and beatings he sustained in Russia for refusing to join in the
military efforts in Ukraine.2
B
Both asylum and withholding of removal require past or possible
future mistreatment in another country. See 8 U.S.C. § 1158(b)(1)(A) (for
asylum, requiring the applicant to be “a refugee”); id. § 1101(a)(42)(A)
(defining “refugee” to require “persecution or a well-founded fear of
persecution”); id. § 1231(b)(3)(A) (for withholding of removal, requiring
“that the alien’s life or freedom would be threatened”). On this point, Mr.
Gurchiani’s application focused on the threats and beatings he faced in
Russia for refusing to join in the invasion of Ukraine. Further, for both
forms of relief, the mistreatment must be “on account of” or “because of” the
applicant’s “race, religion, nationality, membership in a particular social
group, or political opinion.” Id. § 1101(a)(42)(A) (for asylum); id.
§ 1231(b)(3)(A) (for withholding of removal); see also id. § 1158(b)(1)(B)(i)
(for asylum, requiring one of these grounds “was or will be at least one
central reason for persecuting the applicant”). We refer to this requirement
2 Mr. Gurchiani initially also sought relief under the Convention Against Torture, see Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 113, but he no longer pursues that claim on appeal. We therefore do not address it further. 3 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 4
as “nexus.” See, e.g., Miguel-Peña v. Garland, 94 F.4th 1145, 1159 (10th Cir.
2024) (“To show persecution or fear of persecution ‘on account of’ a protected
ground, an asylum applicant must establish a ‘nexus’ between the alleged
persecution and a protected ground.” (first quoting 8 U.S.C. § 1101(a)(42);
and then quoting Dallakoti v. Holder, 619 F.3d 1264, 1267 (10th Cir.
2010))); Koffi v. Garland, No. 21-9535, 2021 WL 5710031, at *3 (10th Cir.
Dec. 2, 2021) (similarly using “nexus” to refer to the analogous requirement
for withholding of removal).3 On his application, Mr. Gurchiani alleged
mistreatment based on political opinion and nationality.4
In May 2023, an IJ conducted a hearing at which Mr. Gurchiani—then
appearing pro se—testified and provided evidence. That same day, the IJ
issued an oral decision denying the application and ordering Mr. Gurchiani
removed to either of his countries of citizenship—Russia or Georgia.
The IJ’s order denied the application on several grounds. Given how
we decide this case, one requires discussion: a lack of nexus.5 In addressing
3 Koffi is unpublished, but we rely on it for its illustrative use of the
term “nexus” to refer to this withholding-of-removal requirement. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”). 4 Nowhere does Mr. Gurchiani’s application mention harms he may
face if he were returned to Georgia. 5As to asylum and withholding of removal, the IJ also found Mr. Gurchiani “is not a credible witness and has not been able to provide 4 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 5
Mr. Gurchiani’s withholding-of-removal claim (though not his asylum
claim), the IJ analyzed whether “the harm that he suffered back in Russia
[wa]s on account of . . . a protected ground.” RI.105. The IJ found it was not.
She considered two possible protected grounds: political opinion and
membership in a particular social group (PSG).6 First, the IJ “f[ound] that
the harm that [Mr. Gurchiani] suffered in Russia was not on account of a
political opinion.” RI.105. Second, the IJ rejected the membership-in-a-PSG
theory because she found Mr. Gurchiani “was not even conscripted; he was
bullied,” meaning he could not be considered a member of a cognizable group
related to evading military service. RI.105–06. Separately, the IJ “f[ound]
that there is no evidence . . . that [Mr. Gurchiani] could be subject to harm
in Russia just [for] being Georgian”—a reference to a third possible
protected ground, nationality. RI.99.
Ultimately, the IJ determined Mr. Gurchiani did not show nexus—
meaning he “failed to meet his burden of showing that any harm that he
sufficient corroboration to corroborate his claims,” RI.101; his asylum claim fails because he must show harm in all countries of his nationality, and he focused only on Russia; he did not show past or likely future persecution; and he has not shown internal relocation within Russia would be infeasible.
6 Mr. Gurchiani’s application did not raise membership in a PSG. The
IJ appears to have raised this theory herself. 5 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 6
suffered in the past or will suffer in the future is on account of one of the
protected grounds.” RI.106.
C
Mr. Gurchiani—now represented by counsel—appealed the IJ’s
decision to the BIA. In a single-judge order, the BIA dismissed the appeal.
The BIA first found, “to establish eligibility for asylum,” Mr. Gurchiani had
“to demonstrate a well-founded fear of persecution in both Russia and
Georgia,” but Mr. Gurchiani had shown no such fear in Georgia. RI.4
(emphasis added); see also RI.102–03. The BIA therefore concluded Mr.
Gurchiani “is not []eligible for asylum.” RI.4.
The BIA then turned to Mr. Gurchiani’s application for withholding
of removal. It denied relief on several grounds. First, the BIA found “[t]he
[IJ] correctly concluded that several beatings resulting in bruises and pain,
but no serious injuries, and unspecified threats do not rise to the level of
persecution under applicable precedent.” RI.4. It continued, “[F]orced
conscription or punishment for evasion of military duty generally does not
constitute persecution,” given governments’ general “right to require
military service.” RI.4. Because Mr. Gurchiani had not established an
applicable exception to that general principle, the BIA affirmed Mr.
Gurchiani “did not establish past persecution on account of a protected
6 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 7
ground” and “is therefore not entitled to a presumption of a clear probability
of future persecution.” RI.5 (citing 8 C.F.R. § 1208.16(b)(1)(i) (2022)).
Second, the BIA agreed with the IJ that Mr. Gurchiani “did not
establish a clear probability of future persecution in Russia or Georgia.”
RI.5. In addition to finding insufficient evidence to establish that “clear
probability” in either country, the BIA endorsed the IJ’s conclusion that Mr.
Gurchiani “has not met his burden to show he could not reasonably relocate
to another part of Russia”—another basis for rejecting his claim. RI.5.
Third, and most centrally to our decision, the BIA addressed the IJ’s
no-nexus findings. As to political opinion, the BIA found Mr. Gurchiani
“ha[d] not challenged” the IJ’s findings on that ground “on appeal,” so it
“deem[ed] this issue waived.” RI.6 n.3. As to membership in a PSG, the BIA
found “the [IJ] did not clearly err in finding that the respondent was not
forced to become a member of the Russian military”—the IJ’s basis for
rejecting that claim. RI.5; see also RI.105–06. As to nationality, the BIA
explained, “as found by the [IJ], the respondent has not testified to or
provided any other evidence that he would be subjected to significant
physical harm on account of his Georgian nationality if he were to return to
7 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 8
Russia.” RI.5. Thus, the BIA concluded, Mr. Gurchiani “is not eligible for
withholding of removal.” RI.6.7
This timely petition for review followed.
II
On appeal, Mr. Gurchiani argues “[t]he BIA erred in three critical
ways.” Op. Br. at 7. The first of these arguments concerns asylum. The
second and third concern withholding of removal. We need not, however,
reach the merits of these arguments because waiver is dispositive as to both
forms of relief. First, we will explain the scope of our review. Second, we
will show why Mr. Gurchiani’s failure to challenge the BIA’s no-nexus
finding before this court is decisive as to withholding of removal. Third, we
will explain why that failure in this case is also decisive as to asylum.
We first outline the scope of our review. “We review the BIA’s legal
determinations de novo and its findings of fact for substantial evidence.
‘Under a substantial evidence standard, factual findings are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
7 The BIA also rejected Mr. Gurchiani’s argument that the IJ hearing
“lacked due process.” RI.6. Mr. Gurchiani’s opening brief does not raise that issue to this court, so we do not address it further. 8 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 9
contrary.’” Dallakoti, 619 F.3d 1264 at 1267 (citing and quoting Witjaksono
v. Holder, 573 F.3d 968, 977 (10th Cir. 2009)).
“Where, as here, a single BIA member issues a brief order affirming
the IJ’s decision, we review the order as the final agency determination and
limit our review to the grounds relied upon by the BIA.” Htun v. Lynch, 818
F.3d 1111, 1118 (10th Cir. 2016) (citing Uanreroro v. Gonzales, 443 F.3d
1197, 1203–04 (10th Cir. 2006)). But two exceptions bear mentioning. First,
while the focus is on the BIA’s analysis, this court is “not precluded from
consulting the IJ’s more complete explanation of those same grounds.”
Orellana-Recinos v. Garland, 993 F.3d 851, 855 (10th Cir. 2021) (quoting
Uanreroro, 443 F.3d at 1204). Second, “this limitation on the grounds upon
which we may rely to deny a petition for review is not applicable where, on
remand, governing law would ‘“require[]” [the agency] to reach a “necessary
result.”’” Zapata-Chacon v. Garland, 51 F.4th 1191, 1196 (10th Cir. 2022)
(alterations in original) (quoting Gutierrez-Zavala v. Garland, 32 F.4th 806,
810 (9th Cir. 2022)). “Put another way, we can avoid a remand if it would
be futile.” Id.
In addition to generally limiting our review to what the BIA decided,
we also generally limit appellate review to what the parties present to us.
“An appellant’s opening brief must identify ‘appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record
9 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 10
on which the appellant relies.’” Bronson v. Swensen, 500 F.3d 1099, 1104
(10th Cir. 2007) (quoting Fed. R. App. P. 28(a)(9)(a) (2006)8). This court
“routinely ha[s] declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.” Id. Litigants’
responsibilities to shoulder their burdens on appeal are no different in
immigration cases. See, e.g., Addo v. Barr, 982 F.3d 1263, 1266 n.2 (10th
Cir. 2020) (applying the same principle to find an immigration petitioner
“has waived [an] issue”). Similarly, when a litigant “doesn’t respond to” the
opposition’s “argument in his reply brief[,] . . . we treat any non-obvious
responses he could have made as waived and assume the [opposition’s]
analysis is correct.” Eaton v. Pacheco, 931 F.3d 1009, 1031 (10th Cir. 2019);
accord United States v. A.S., 939 F.3d 1063, 1076 (10th Cir. 2019) (finding
that “fail[ing] to interact with” a response brief’s arguments in both opening
and reply briefs leaves this court “free to conclude that [the appellant]
waived, at the very least, non-obvious arguments against the” response
brief’s positions).
With these principles in mind, we first turn to Mr. Gurchiani’s
arguments about the denial of his application for withholding of removal.
8 This rule’s text has not changed since Bronson, but it is now located
in a different subsection. See Fed. R. App. P. 28(a)(8)(A). 10 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 11
“[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 the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A).
Mr. Gurchiani urges the BIA erred because, in his view, “the BIA’s
understanding of a country’s right to conscript in relation to persecution is
erroneous.” Op. Br. at 17 (heading capitalization omitted). And he argues
“the BIA erred by applying an out-of-circuit standard to assess persecution.”
Op. Br. at 21 (heading capitalization omitted). Both withholding-of-removal
arguments thus concern the BIA’s conclusion that the beatings in Russia
did not constitute persecution under applicable BIA and Tenth Circuit
precedent.
The government urges this court to deny Mr. Gurchiani’s petition,
contending “the Board’s findings concerning no nexus” are decisive as to his
withholding-of-removal claim. Resp. Br. at 24–25. According to the
government, “[n]one of Gurchiani’s arguments . . . address the . . .
independent reasons for denying” that claim. Resp. Br. at 23. “His waiver,”
11 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 12
it argues, “fully disposes of his claim[] for withholding of removal.” Resp.
Br. at 24.9
We must agree with the government that waiver is decisive in this
case. Recall, the BIA found Mr. Gurchiani did not establish nexus for the
alleged persecution in Russia. If that finding stands, Mr. Gurchiani’s
petition cannot succeed, because a successful claim for withholding of
removal requires the petitioner to show nexus to a protected ground. See 8
U.S.C. § 1231(b)(3)(A). Because nexus is a factual question we typically
review under the deferential substantial-evidence standard, Dallakoti, 619
F.3d at 1267–68, we are especially disinclined to disturb those findings
absent any challenge whatsoever. To succeed on appeal, therefore, Mr.
Gurchiani needed—at least—to challenge the BIA’s no-nexus findings.10
9 The government argues Mr. Gurchiani waived arguments concerning several other BIA findings. See Resp. Br. at 23–26. Because, as we will explain, his nexus-related waiver is decisive, we need not consider whether he also waived any other arguments. 10 Unpublished cases in this circuit and published cases in other circuits—which we cite as persuasive authority—reinforce this conclusion. See Asif v. Barr, 833 F. App’x 204, 209 (10th Cir. 2020) (finding a failure to “address or challenge the BIA’s no-nexus finding” means the petitioner “has waived any argument of error in that finding”); Koffi v. Garland, No. 21- 9535, 2021 WL 5710031, at *2–3 (10th Cir. Dec. 2, 2021) (finding the petitioner’s “failure to challenge the IJ’s” finding that he “had not established . . . nexus” “forecloses success” on his asylum and withholding- of-removal claims); Paz-Zaldivar v. Garland, No. 21-9571, 2022 WL 3009925, at *3 (10th Cir. July 29, 2022) (finding, because the petitioner “does not challenge the agency’s finding that she failed to prove she was 12 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 13
He did not. Nowhere in Mr. Gurchiani’s opening brief do we find any
discussion of the BIA’s no-nexus findings. We “decline[] to consider
arguments” against these findings because any such arguments “[we]re not
raised . . . in [Mr. Gurchiani]’s opening brief.” Bronson, 500 F.3d at 1104.
Mr. Gurchiani’s reply brief does not engage with the government’s
allegations regarding waiver. See Eaton, 931 F.3d at 1031 (confirming when
a litigant fails to “respond to” the opposition’s “argument in his reply brief[,]
. . . we treat any non-obvious responses he could have made as waived and
assume the [opposition’s] analysis is correct”). Granted, this court’s
“preservation doctrines function not as absolute constraints on our power to
review but, rather, more like prudential norms. That is, ‘whether issues
should be deemed waived is a matter of discretion.’” In re Syngenta AG
MIR 162 Corn Litig., 61 F.4th 1126, 1182 (10th Cir. 2023) (quoting
United States v. Walker, 918 F.3d 1134, 1153 (10th Cir. 2019)). But we
see no principled reason to overlook waiver in this case, nor has Mr.
targeted because of her gender or single-mother status,” “we have no reason to reach any of her remaining arguments” on asylum, which has a similar nexus requirement as withholding of removal); Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016) (concluding, because the petitioner “has never identified, let alone argued, the ground on which he has been or would be persecuted[, t]his issue has been waived,” which “is dispositive of his asylum and withholding of removal claims”); Hernandez-Garcia v. Barr, 930 F.3d 915, 919 (7th Cir. 2019) (similar). 13 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 14
Gurchiani suggested one.11 “Since the unchallenged . . . finding is, by itself,
a sufficient basis for the denial of [relief], [Mr. Gurchiani’s] success on
appeal is foreclosed—regardless of the merit of his [other] arguments . . . .”
Murrell v. Shalala, 43 F.3d 1388, 1390 (10th Cir. 1994).
We therefore decline to reach the merits of Mr. Gurchiani’s arguments
regarding withholding of removal.
11 After the Supreme Court decided Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2273 (2024), this court ordered supplemental briefing because the government had argued for Chevron deference on one issue, see Resp. Br. at 34–51. It was only in his supplemental reply brief— that is, his reply to the government’s arguments regarding Loper Bright— that Mr. Gurchiani even acknowledged the government’s waiver-related arguments. See Supp. Reply Br. at 1–2. Given the importance of adversarial briefing and party presentation, that is too late for us to consider his waiver- related arguments.
Even if not too late, Mr. Gurchiani’s arguments are not persuasive. Mr. Gurchiani first observes “[t]he issues [he] raised in his opening brief are not waived.” Supp. Reply Br. at 1. Of course, the issues he actually raised are not subject to waiver, but he misses the central point: arguments concerning other issues—like nexus—are waived, and as we have discussed, that waiver is dispositive under the circumstances. See Resp. Br. at 21–26. Mr. Gurchiani then maintains he “has explained that applying an incorrect standard of law, as the BIA . . . did, warrants reversal.” Supp. Reply Br. at 1. Even assuming the BIA applied an incorrect standard, Mr. Gurchiani has not challenged BIA’s dispositive no-nexus findings, meaning those findings must stand and relief must be denied in this case. 14 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 15
We now turn to Mr. Gurchiani’s asylum claim. To qualify for asylum,
an applicant must show “persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (emphasis added).
This basis for relief, like withholding of removal, requires that any
persecution has a nexus to at least one of these five protected grounds.
While these two claims’ elements are similar, a critical difference is
the applicant’s burden. We have interpreted the withholding-of-removal
standard to require applicants to “prove a ‘clear probability of persecution’
on account of a protected ground.” Rodas-Orellana v. Holder, 780 F.3d 982,
987 (10th Cir. 2015) (quoting Karki v. Holder, 715 F.3d 792, 801 (10th Cir.
2013)). Under this standard, the applicant must show “either past
persecution in the proposed country of removal, or that ‘it is more likely
than not that he or she would be persecuted’ on one of the specified grounds
upon returning to the proposed country of removal.” Ritonga v. Holder, 633
F.3d 971, 978 (10th Cir. 2011) (emphasis added) (quoting 8 C.F.R.
§ 1208.16(b)(2) (2011)).
Asylum, in contrast, requires “persecution or a well-founded fear of
persecution on account of” a protected ground. 8 U.S.C. § 1101(a)(42)(A).
15 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 16
For that form of relief, “it need not be shown that the situation will probably
result in persecution, but it is enough that persecution is a reasonable
possibility.” Ritonga, 633 F.3d at 976 (quoting INS v. Cardoza-Fonseca, 480
U.S. 421, 440 (1987)). “The test for restriction on removal is ‘therefore more
demanding than the “well-founded fear” standard applicable to an asylum
claim.’”12 Id. at 978 (quoting Elzour v. Ashcroft, 378 F.3d 1143, 1149 (10th
Cir. 2004)). The Supreme Court has concluded one could have the “well-
founded fear” required for asylum with only “a 10% chance of being shot,
tortured, or otherwise persecuted,” Cardoza-Fonseca, 480 U.S. at 440—far
short of withholding of removal’s “more likely than not” standard.
Because of asylum’s generally lower bar, we have frequently held “the
‘failure to satisfy the burden of proof for asylum . . . necessarily constitutes
a failure to meet the more stringent burden of proof for restriction on
removal.’” Dallakoti, 619 F.3d at 1268 (quoting Ba v. Mukasey, 539 F.3d
1265, 1271 (10th Cir. 2008)). In Dallakoti, we relied on that principle to
reject a withholding-of-removal claim when an applicant failed to establish
nexus as to asylum. Id. Logically, however, the converse is not true: simply
12This court uses “withholding of removal” and “restriction on removal,” the more recent statutory term, interchangeably. See Addo v. Barr, 982 F.3d 1263, 1265 n.1 (10th Cir. 2020). 16 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 17
failing to meet the withholding-of-removal standard does not automatically
foreclose asylum relief.
We now show why, despite these different legal standards, Mr.
Gurchiani’s failure to challenge the BIA’s nexus findings in the context of
withholding of removal is also decisive as to his asylum claim.
Recall, the BIA rejected Mr. Gurchiani’s asylum claim on one ground:
he had not “demonstrate[d] a well-founded fear of persecution in both
Russia and Georgia”—instead focusing only on Russia. RI.4 (emphasis
added). On appeal, Mr. Gurchiani challenges that conclusion, arguing
asylum can be validly based on a well-founded fear in only one country of
one’s nationality. See Op. Br. at 8–17. In addition to responding to that
argument on the merits, the government contends Mr. Gurchiani’s above-
described waiver, including as to nexus, “resolve[s] his asylum claim.” Resp.
Br. at 25. In reply, as to asylum, Mr. Gurchiani raises only the same
argument raised in his opening brief, with no attention to waiver. See Reply
Br. at 5–6.
Because of Mr. Gurchiani’s failure even to discuss waiver, “we treat
any non-obvious responses he could have made as waived.” Eaton, 931 F.3d
at 1031. Unless some “[]obvious response[]” persuades us otherwise, we can
17 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 18
“assume” the government’s argument—that Mr. Gurchiani’s nexus-related
waiver also disposes of the asylum claim—“is correct.” Id.
No “[]obvious response[],” id., would likely succeed on this record. One
perhaps “[]obvious response[]”—raised by Mr. Gurchiani’s counsel during
oral argument, Oral Argument at 2:30–6:15—is that the BIA made its nexus
findings only as to withholding of removal, not as to asylum. Recall, the
withholding-of-removal bar is higher than the asylum bar. Concluding Mr.
Gurchiani failed to meet the higher bar, his argument goes, cannot be
dispositive as to whether he met the lower bar.
Even this possible counterargument, though, falls short on the record
before us. Mr. Gurchiani is correct that the BIA made no separate nexus
findings as to asylum. See RI.4. But even assuming, as Mr. Gurchiani does,
the difference in burden attends to the nexus requirement for each form of
relief, we cannot disturb the BIA’s findings. The BIA did not rely on the
higher withholding-of-removal standard to deny relief. Rather, its findings
regarding nexus were grounded in the evidentiary record. And the record
before the BIA, the agency found, could not support any nexus finding. RI.5,
6 n.3.
As to political opinion, the BIA “deem[ed] this issue waived” because
Mr. Gurchiani “ha[d] not challenged” the IJ’s “determination” on that issue.
RI.6 n.3. As to membership in a PSG, the BIA found no clear error in the
18 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 19
IJ’s finding “that the respondent was not forced to become a member of the
Russian military,” which is decisive, as he therefore cannot be considered a
member of any PSG related to evading military service.13 RI.5 (emphasis
added); see also RI.105. And as to the nationality ground, the BIA agreed
with the IJ that Mr. Gurchiani “has not testified to or provided any other
evidence that he would be subjected to significant physical harm on account
of his Georgian nationality if he were to return to Russia.” RI.5 (emphasis
added). Mr. Gurchiani challenges none of these rulings on appeal. And
importantly, these were absolute findings, meaning they do not depend on
any difference in burden between the withholding-of-removal and asylum
claims.14 Mr. Gurchiani’s standard-sensitive counterargument therefore
13 Mr. Gurchiani has raised no separate theory concerning nexus to
membership in a PSG for any feared future persecution. Recall, his application did not assert membership in a PSG as a ground for relief. His testimony during the IJ hearing described the basis of his feared persecution, but he raised no separate argument concerning nexus for any future persecution. And his appellate briefing raises no nexus-related arguments at all. 14 Had the BIA tethered each nexus finding to the higher withholding-
of-removal standard, then our conclusion may have been different. But it did not. Rather, the BIA’s ruling confirms Mr. Gurchiani could not have made a nexus showing on this record that would satisfy any standard, rendering the above-described difference between the asylum and withholding-of-removal standards immaterial for purposes of this case.
19 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 20
fails.15 Put differently, given the BIA’s absolute no-nexus findings,
“governing law would ‘“require[]” [the agency] to reach a “necessary result”’”
on this record: that Mr. Gurchiani’s asylum claim also fails for want of
nexus. Zapata-Chacon, 51 F.4th at 1196 (alterations in original) (quoting
Gutierrez-Zavala, 32 F.4th at 810).
Recall, Mr. Gurchiani raised no nexus-related arguments in any of his
appellate briefs. So if a better counterargument exists, it is “non-obvious.”
Eaton, 931 F.3d at 1031. We thus agree with the government that the BIA’s
no-nexus findings—unchallenged on appeal—are also decisive as to Mr.
Gurchiani’s asylum claim, even if he did or would face persecution in
Russia, Georgia, or both countries. For this reason, we decline to reach the
merits of Mr. Gurchiani’s arguments regarding asylum.
15 We must “limit our review to the grounds relied upon by the BIA.”
Htun v. Lynch, 818 F.3d 1111, 1118 (10th Cir. 2016) (citing Uanreroro, 443 F.3d at 1203–04). Because the BIA did not “explicitly incorporate[] or reference[] an expanded version of” its reasoning regarding nexus from the IJ’s order, “our review extends no further.” Uanreroro, 443 F.3d 1197 at 1204. We therefore do not consult the IJ’s nexus findings. But, even if we were to do so, we would reach the same conclusion. The IJ’s findings were similarly categorical. She found “the harm that he suffered in Russia was not on account of a political opinion.” RI.105 (emphasis added). She found Mr. Gurchiani “has failed to show that he was, in fact, even conscripted to the military service in Russia,” which is decisive as to membership in a PSG. RI.106 (emphasis added). And she found “there is no evidence, not even from the respondent’s own testimony, that he could be subject to harm in Russia just [for] being Georgian.” RI.99 (emphasis added). 20 Appellate Case: 23-9588 Document: 80-1 Date Filed: 01/08/2025 Page: 21
III
We DENY THE PETITION FOR REVIEW.
Entered for the Court
Veronica S. Rossman Circuit Judge