Lopez-Flores v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 3, 2023
• Docket: 22-9516
• Status: Unpublished

Opinion

Appellate Case: 22-9516 Document: 010110821068 Date Filed: 03/03/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 3, 2023 _________________________________ Christopher M. Wolpert Clerk of Court LUIS RODOLFO LOPEZ-FLORES,

Petitioner,

v. No. 22-9516 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT * _________________________________

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

Petitioner Luis Rodolfo Lopez-Flores is a citizen of El Salvador. An

immigration judge denied his applications for asylum, restriction on removal, and

protection under the Convention Against Torture. The Board of Immigration

Appeals (Board) dismissed his appeal, and he now petitions for review of the Board’s

decision. Several parts of his petition present arguments that he did not exhaust

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-9516 Document: 010110821068 Date Filed: 03/03/2023 Page: 2

before the Board, and we dismiss those parts for lack of jurisdiction. We otherwise

deny the petition.

I. Background

Found credible by the immigration judge, Petitioner testified that he fears

persecution in El Salvador from two sources: a man named Roberto Castro and

members of the Mara Salvatrucha gang (MS-13). Petitioner’s family had problems

with Castro going back many years. Before Petitioner’s birth, Castro raped

Petitioner’s aunt. Castro also broke into Petitioner’s parents’ home to beat them up.

And Petitioner’s mother helped with a prosecution that landed Castro in prison.

Petitioner’s first run-in with Castro happened in 2015. By then, Petitioner was

an adult. Castro approached him and said he would “get revenge.” R. at 90. Later

that year, Petitioner was sitting on his motorcycle when Castro’s nephew attacked

him from behind. Petitioner defended himself, and eventually his friends intervened

to end the fight. During the fight, Castro’s nephew said that he would “get even or

get revenge.” R. at 94. Castro later threatened again to “get even” with Petitioner

for the fight with his nephew. R. at 96. And on another occasion, Castro claimed to

know what family Petitioner came from and threatened “to take care of some old

business.” R. at 97.

Petitioner’s first encounter with MS-13 members happened while he ate lunch

with friends. Gang members approached and asked him to join MS-13. He

responded that he did not want to join because the gang “took part in violent acts and

raped women.” R. at 103. The following year, gang members tried to extort him,

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asking him to pay them $400 per month. About a week later the gang members were

waiting for Petitioner when he left his university. They surrounded his car. One of

them reached into his pants, behavior Petitioner took to mean that the man had a

weapon. Petitioner sped away in his car. Petitioner had another encounter with gang

members when he visited his girlfriend. While he spoke with his girlfriend, three

gang members approached him from behind, threw him to the ground, and beat him

with their hands and feet until he escaped.

Petitioner suspected his problems with gang members and Castro were

connected because one of the gang members who had bothered him is friends with

Castro.

Fearing Castro and the gang members, Petitioner came to the United States.

The Department of Homeland Security began removal proceedings against him.

After conceding he was removable, Petitioner applied for asylum, restriction on

removal, and protection under the Convention Against Torture. The immigration

judge denied his applications, and the Board dismissed his appeal.

II. Discussion

A single Board member issued a brief order affirming the immigration judge’s

decision in this case, so we review the Board’s decision and any parts of the

immigration judge’s decision that it relies on. See Dallakoti v. Holder, 619 F.3d

1264, 1267 (10th Cir. 2010). We review the Board’s legal conclusions de novo. Id.

And we review its factual findings for substantial evidence, meaning we will treat

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those findings as “conclusive unless any reasonable adjudicator would be compelled

to conclude to the contrary.” Id. (internal quotation marks omitted).

A. Asylum

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 his or

her country because of persecution or a well-founded fear of persecution on account

of any of five protected grounds: race, religion, nationality, political opinion, or

membership in a particular social group. Id. § 1101(a)(42); Rodas-Orellana v.

Holder, 780 F.3d 982, 986 (10th Cir. 2015). An applicant can obtain refugee status

by showing past persecution on account of a protected ground, which creates a

rebuttable presumption of a well-founded fear of future persecution on account of

such a ground. Rodas-Orellana, 780 F.3d at 986.

The Board concluded that the harm Petitioner suffered in El Salvador did not

amount to persecution. “Persecution is an extreme concept that does not include

every sort of treatment our society regards as offensive.” Zhi Wei Pang v. Holder,

665 F.3d 1226, 1233 (10th Cir. 2012) (brackets and internal quotation marks

omitted). “Threats alone generally do not constitute actual persecution; only rarely,

when they are so immediate and menacing as to cause significant suffering or harm in

themselves, do threats per se qualify as persecution.” Vatulev v. Ashcroft, 354 F.3d

1207, 1210 (10th Cir. 2003). Whether an asylum applicant established past

persecution “is a question of fact, even if the underlying factual circumstances are

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not in dispute and the only issue is whether those circumstances qualify as

persecution.” Vicente-Elias v. Mukasey, 532 F.3d 1086, 1091 (10th Cir. 2008).

Substantial evidence supports the Board’s conclusion that Petitioner did not

show past persecution. Like the agency before us, we recognize that Petitioner

endured “painful experiences” in El Salvador. R. at 3. But the record does not

compel the conclusion that those experiences amounted to persecution. Cf. Sidabutar

v. Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007) (upholding a finding of no

persecution where the petitioner testified that he had been beaten repeatedly); Kapcia

v. INS, 944 F.2d 702, 704–05, 708 (10th Cir. 1991) (same where the petitioners

testified that they had been detained and beaten).

Petitioner argues that MS-13 members intended to shoot him when they

surrounded his car outside the university. And, as he says, “attempted murder is

persecution.” Karki v. Holder, 715 F.3d 792, 805 (10th Cir. 2013) (internal quotation

marks omitted). But although Petitioner characterizes this encounter as an attempted

murder, the evidence—testimony that one of the gang members reached into his

pants—does not compel that characterization.

Petitioner also highlights that MS-13 is “one of the most dangerous and

rapidly expanding criminal gangs in the world today.” 1 Pet’r’s Br. at 12 (internal

quotation marks omitted). “Larger cultural forces can imbue individualized conflicts

1 We deny Petitioner’s request that we take judicial notice of a statement from the United States Department of the Treasury discussing MS-13. See 8 U.S.C. § 1252(b)(4)(A) (requiring us to decide a petition for review “only on the administrative record”). 5 Appellate Case: 22-9516 Document: 010110821068 Date Filed: 03/03/2023 Page: 6

or threats with more (or less) substance than they may suggest on their face.”

Vatulev, 354 F.3d at 1210. Although MS-13’s violence and influence may add

substance to Petitioner’s encounters with its members, we still cannot say that the

record compels the conclusion that he suffered past persecution in El Salvador.

Even without past persecution, however, an applicant can obtain refugee status

by showing a subjectively genuine and objectively reasonable fear of future

persecution on account of a protected ground. See Ritonga v. Holder, 633 F.3d 971,

976 (10th Cir. 2011). Such a fear is objectively reasonable if persecution is a

reasonable possibility. Uanreroro v. Gonzales, 443 F.3d 1197, 1202 (10th Cir.

2006). The Board concluded that Petitioner lacked an objectively reasonable fear of

future persecution, citing evidence that members of his family have lived in

El Salvador unharmed and that gang members stopped approaching him even before

he came to the United States.

Despite the Board’s conclusion, Petitioner marshals evidence suggesting that

his fear of future persecution is objectively reasonable. He points to evidence, for

example, that MS-13 has killed others who refused to join the gang and that he lived

in hiding before he fled. Although some evidence supports Petitioner’s view, we

cannot say that the record compels that view. And so we may not disturb the Board’s

conclusion that Petitioner does not have an objectively reasonable fear of future

persecution in El Salvador. 2

2 Petitioner argues that his fear of persecution is well founded because MS-13 has a pattern and practice of persecuting individuals who express negative opinions 6 Appellate Case: 22-9516 Document: 010110821068 Date Filed: 03/03/2023 Page: 7

In sum, substantial evidence supports the Board’s findings that Petitioner did

not show past persecution or a well-founded fear of future persecution. Those

findings prevent Petitioner from obtaining asylum. So we need not consider his

challenges to the additional reasons the agency gave for denying his asylum claim.

B. Restriction on Removal

To qualify for restriction on removal, an applicant must show “a clear

probability of persecution on account of a protected ground.” Rodas-Orellana,

780 F.3d at 987 (internal quotation marks omitted). This burden is higher than the

burden for asylum. Id. at 986. For that reason, Petitioner’s inability to meet the

burden for asylum necessarily precludes him from meeting the burden for

restriction. 3 See id. at 987.

C. The Convention Against Torture

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.” Karki, 715 F.3d

at 806 (internal quotation marks omitted). “Acquiescence of a public official

about the gang or refuse its demands. See 8 C.F.R. § 1208.13(b)(2)(iii) (permitting pattern-and-practice evidence to establish fear of future persecution). But he did not present this theory to the Board, so we lack jurisdiction to consider it. See Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237–38 (10th Cir. 2010). 3 Petitioner argues that the agency applied the wrong standard when it denied his restriction-on-removal claim. Because he did not present this argument to the Board, we lack jurisdiction to consider it. See Garcia-Carbajal, 625 F.3d at 1237–38. 7 Appellate Case: 22-9516 Document: 010110821068 Date Filed: 03/03/2023 Page: 8

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 the government’s actual knowledge or willful acceptance; willful blindness is

enough. Karki, 715 F.3d at 806.

The Board concluded that Petitioner failed to show he will more likely

than not suffer torture with the acquiescence of a public official if he returns to

El Salvador. Challenging this conclusion, Petitioner cites evidence of rampant gang

violence in El Salvador and officials’ inability to control it. At the same time,

though, the record contains evidence showing that the Salvadoran government is

trying to eliminate the gangs. Taken as a whole, the record does not compel the

conclusion that public officials would likely acquiesce in Petitioner’s torture in

El Salvador.

We are not persuaded otherwise by Petitioner’s reliance on Karki. In that case,

the foreign government regularly failed “to take steps to prevent or punish” acts of

torture. 715 F.3d at 807. In this case, by contrast, the record contains evidence that

Salvadoran officials are taking steps to prevent and punish gang violence.

D. Excluding Evidence

At his merits hearing, Petitioner tried to submit an affidavit from his mother.

The affidavit apparently contained information about the rape and home invasion

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committed many years ago against members of Petitioner’s family. 4 The

immigration judge excluded the affidavit out of concern for Petitioner’s mother’s

confidentiality because she had submitted it in support of her own asylum

application. The Board concluded that even if the immigration judge erred by

excluding the affidavit, the error did not prejudice Petitioner.

Petitioner argues that excluding his mother’s affidavit prejudiced him because

it deprived him of evidence that “established the factual background” for Castro’s

animus against his family and revealed Castro’s motive to persecute him. Pet’r’s Br.

at 47. 5 But Petitioner’s testimony sufficiently established that background. Besides,

the government expressly said it did not contest that the rape and home invasion

occurred. And, in her written order, the immigration judge noted Castro’s rape of

Petitioner’s aunt, the break-in at Petitioner’s parents’ home, and Petitioner’s mother’s

cooperation with the investigation that led to Castro’s imprisonment. Given those

circumstances, we agree with the Board that excluding the affidavit did not prejudice

Petitioner.

4 The affidavit itself is not part of the record. 5 Petitioner argues in passing that the Board should have concluded that excluding the affidavit violated his due-process rights. Although he challenged the exclusion of the affidavit before the Board, he did not do so under a due-process theory. To the extent he intends to raise a due-process theory now, we lack jurisdiction to consider that unexhausted theory. See Garcia-Carbajal, 625 F.3d at 1237–38.

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III. Conclusion

We dismiss the petition for review in part for lack of jurisdiction. We

otherwise deny the petition.

Entered for the Court

Allison H. Eid Circuit Judge