Appellate Case: 24-9503 Document: 010111092029 Date Filed: 08/08/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 8, 2024 _________________________________ Christopher M. Wolpert Clerk of Court FRANCISCO LOVOS-VASQUEZ; ROCICELA STEFANY MUNOZ-PEREZ; DIEGO LOVOS-MUNOZ,
Petitioners,
v. No. 24-9503 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, McHUGH, and FEDERICO, Circuit Judges. _________________________________
Petitioners Francisco Lovos-Vasquez, Rocicela Stefany Munoz-Perez, and
Diego Lovos-Munoz (collectively “Petitioners” or “the Family”) petition for review
of a decision by the Board of Immigration Appeals (“BIA”) affirming an order by an
Immigration Judge (“IJ”) denying their applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). Concluding
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 24-9503 Document: 010111092029 Date Filed: 08/08/2024 Page: 2
that the BIA committed no reversible error in denying the Petitioners’ applications
for relief, we deny their petition for review.
I. BACKGROUND
Mr. Lovos-Vasquez is a devout Evangelical Christian from El Salvador.
Before coming to the United States in 2021, he began receiving anonymous phone
calls from individuals he believed were gang members. He received these anonymous
phone calls approximately two-to-three times per week over approximately five
months. The phone callers asked Mr. Lovos-Vasquez to become involved in gang-
related activity, including selling drugs. Mr. Lovos-Vasquez refused, citing his
Christian beliefs. The phone callers threatened Mr. Lovos-Vasquez’s life and the life
of his family because of his refusal to comply with their demands. Mr. Lovos-
Vasquez changed his phone number yet continued to receive these phone calls.
Mr. Lovos-Vasquez was never threatened in person. No one in Mr. Lovos-Vasquez’s
family has been harmed by gang members.
The Petitioners are natives and citizens of El Salvador. The Petitioners entered
the United States without being admitted or paroled after inspection. The Department
of Homeland Security served each family member with a Notice to Appear charging
each with being a noncitizen present in the United States without being admitted or
paroled under 8 U.S.C. § 1182(a)(6)(A)(i). Mr. Lovos-Vasquez filed an application
for asylum, withholding of removal, and protection under the CAT and listed the
other members of the Family as rider applicants for derivative relief.
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Mr. Lovos-Vasquez argued before the IJ that he suffered past persecution and
has a well-founded fear of future persecution on account of his religion, his political
beliefs, and his membership in the proposed particular social group of “Salvadoran
families from gang-controlled areas resistant to gang rule,” by the MS-13 gang,
which the Salvadoran government is unwilling or unable to control. App. Vol. 1 at
272. Following a hearing before the IJ, in which Mr. Lovos-Vasquez and Ms. Munoz-
Perez testified, the IJ denied relief and ordered the Family to be removed to El
Salvador.
In a written decision, the IJ first concluded that Mr. Lovos-Vasquez could not
meet his burden to show that he suffered past persecution because, while he received
threatening phone calls over several months from unknown individuals whom he
believed to be gang members, there is no evidence that he was targeted because of his
Christian faith, and he was never threatened in person or physically harmed. Next,
the IJ rejected all three grounds upon which Mr. Lovos-Vasquez argued he could
show a well-founded fear of future persecution. The IJ concluded Mr. Lovos-Vasquez
could not show he suffered a well-founded fear of future persecution on account of
his membership in a particular social group because he did not proffer sufficient
evidence to show that his proposed particular social group, “Salvadoran families
from gang-controlled areas who are resistant to gang rule,” is particular or socially
distinct, and thus could not show that the particular social group is cognizable. Id. at
62. The IJ also concluded that Mr. Lovos-Vasquez could not show that he had a well-
founded fear of future persecution on account of his Evangelical Christian religious
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beliefs given El Salvador’s protections for religious freedom and his lack of evidence
showing that he would reasonably face harm beyond potential discrimination or
harassment on this basis. Lastly, the IJ concluded that Mr. Lovos-Vasquez could not
show that he had a well-founded fear of future persecution on account of his political
opinion because he made no showing of an actual or imputed political opinion that
would subject him to persecution. Next, the IJ concluded that, because Mr. Lovos-
Vasquez failed to show statutory eligibility for asylum, he could not show eligibility
for withholding of removal. Finally, the IJ concluded that, based on the totality of
circumstances, Mr. Lovos-Vasquez did not show it was more likely than not he
would be tortured in El Salvador.
The Petitioners appealed the IJ’s decision to the BIA. In a single-member
decision, the BIA affirmed the IJ. The BIA first concluded that the IJ did not err in
concluding that the anonymous threats Mr. Lovos-Vasquez received over the phone
did not amount to persecution. Next, the BIA affirmed the IJ’s determination that
Mr. Lovos-Vasquez’s proposed particular social group was neither particular nor
socially distinct within Salvadoran society, and thus could not serve as a nexus for a
well-founded fear of future persecution. The BIA reasoned his proposed particular
social group was not sufficiently particular because “‘Salvadoran families’ is of
indeterminate scope, potentially encompassing an excessively wide degree of familial
relationships, and family members of all ages and dissimilar backgrounds.” Id. at 4.
Additionally, the BIA held that the proposed particular social group “lacks
particularity because the concepts of being ‘from gang-controlled areas’ and
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‘resistant to gang rule’ are amorphous.” Id. The BIA said it would not disturb the IJ’s
findings that the proposed particular social group was not socially distinct.
The BIA further held that the IJ did not clearly err in concluding that
Mr. Lovos-Vasquez did not establish a well-founded fear of future persecution on
account of his religious beliefs because he “failed to show that his Christian religion
was what motivated the past threats he received, or that it will place him at greater
risk of harm than the rest of the Salvadoran population, given the specific facts of
this case.” Id. at 5. Next, the BIA held that the IJ “permissibly determined” that
Mr. Lovos-Vasquez “has never belonged to a political party and never expressed any
political opinion, either publicly or to the unknown callers who threatened him,” and
that the IJ “permissibly found” that the past callers did not threaten him in order to
suppress his political opinion, and thus the IJ did not clearly err in finding that
Mr. Lovos-Vasquez did not suffer a well-founded fear of future persecution on
account of political opinion. Id.
Because the BIA upheld the IJ’s denial of asylum, the BIA also upheld the IJ’s
denial of withholding of removal. Lastly, the BIA concluded that the IJ’s denial of
CAT protections was not preserved for appeal, noting that the Petitioners failed to
raise any arguments under the proper standard for CAT and failed to articulate the
error in the IJ’s conclusion. This petition for review followed.
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II. DISCUSSION
A. Standard of Review
Because a single board member issued the BIA decision, we review it “as the
final agency determination and limit our review to issues specifically addressed
therein.” Diallo v. Gonzales, 447 F.3d 1274, 1279 (10th Cir. 2006). Accordingly, “we
confine our review to the BIA’s decision . . . and will not address the IJ’s decision
except where the BIA has explicitly incorporated [her] reasoning.” Miguel-Pena v.
Garland, 94 F.4th 1145, 1153 (10th Cir. 2024) (internal quotation marks omitted),
petition for cert. filed (U.S. July 3, 2024) (No 24-12). “We consider any legal
questions de novo, and we review the agency’s findings of fact under the substantial
evidence standard. Under that test, our duty is to guarantee that factual
determinations are supported by reasonable, substantial and probative evidence
considering the record as a whole.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th
Cir. 2004). “To obtain reversal of factual findings, a petitioner must show the
evidence he presented was so compelling that no reasonable factfinder could find as
the BIA did.” Gutierrez-Orozco v. Lynch, 810 F.3d 1243, 1245 (10th Cir. 2016)
(internal quotation marks omitted).
B. Past Persecution
The Petitioners first claim that the BIA erred in affirming the IJ’s factual
finding that the death threats Mr. Lovos-Vasquez received over the phone did not
constitute persecution. To establish eligibility for asylum pursuant to 8 U.S.C.
§ 1158(b)(1)(B), an applicant bears the burden to show he has been “persecut[ed]” or
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has “a well-founded fear of persecution.” 8 U.S.C. § 1101(a)(42)(A). To establish
eligibility for asylum due to past persecution, “an applicant must show: (1) an
incident, or incidents, that rise to the level of persecution; (2) that is on account of
one of the statutorily-protected grounds; and (3) is committed by the government or
forces the government is either unable or unwilling to control.” Niang v. Gonzales,
422 F.3d 1187, 1194–95 (10th Cir. 2005) (quotation marks omitted). “In this circuit,
the ultimate determination whether [a noncitizen] has demonstrated persecution is a
question of fact, even if the underlying factual circumstances are not in dispute and
the only issue is whether those circumstances qualify as persecution.” Pang v.
Holder, 665 F.3d 1226, 1231 (10th Cir. 2012) (quotation marks omitted). “The BIA’s
determination must be upheld unless the record demonstrates that any reasonable
adjudicator would be compelled to conclude to the contrary.” Id. (internal quotation
marks omitted).
In their petition for review, the Petitioners merely assert that Mr. Lovos-
Vasquez received death threats over the phone and essentially claim that those threats
constituted harm rising to the level of persecution. But without more, that is
insufficient in this circuit to show that one has suffered past persecution, let alone to
show that the BIA erred in making such a finding. The Petitioners make no attempt to
show that the evidence they presented “was so compelling that no reasonable
factfinder could find as the BIA did.” Gutierrez-Orozco, 810 F.3d at 1245 (quotation
marks omitted). But even if they had made this attempt, “[t]hreats alone generally do
not constitute actual persecution; only rarely, when they are so immediate and
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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)
(concluding that an argument that a petitioner’s family received many threatening
phone calls failed to rise to the level of persecution when the petitioner “did not
provide details about the threats and never established a concrete connection between
these calls and any overt violence or mistreatment”). The Petitioners make no
showing that any threat received caused significant suffering or harm under this legal
standard, nor do they argue that the BIA unreasonably concluded otherwise and, thus,
they do not successfully challenge the BIA’s determination on this point.
C. Well-Founded Fear of Future Persecution
The Petitioners next raise three arguments challenging the BIA’s conclusion
that Mr. Lovos-Vasquez does not have a well-founded fear of future persecution on
account of a protected ground. “For a fear of future persecution to be well-founded, it
must be both subjectively genuine and objectively reasonable.” Ritonga v. Holder,
633 F.3d 971, 976 (10th Cir. 2011) (internal quotation marks omitted). Fear is
objectively well-founded when there is a finding that “(1) the petitioner may be
singled out for persecution upon returning to her country of origin or (2) there is a
pattern or practice in [that] country . . . of persecution of a group of persons similarly
situated to the applicant on account of a protected classification.” Id. (alteration in
original) (internal quotation marks omitted). Furthermore, to successfully show a
well-founded fear of persecution, “an asylum applicant must establish a ‘nexus’
between the alleged persecution and a protected ground.” Miguel-Pena, 94 F.4th at
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1159 (quoting Dallakoti v. Holder, 619 F.3d 1264, 1267 (10th Cir. 2010)). “[T]he
victim’s protected characteristic must be central to the persecutor’s decision to act
against the victim.” Rodas–Orellana v. Holder, 780 F.3d 982, 996 (10th Cir. 2015)
(alteration in original) (quotation marks omitted). Whether there is a nexus between
the feared persecution and the protected ground “is a question of fact that we review
for substantial evidence.” Miguel-Pena, 94 F.4th at 1159 (internal quotation marks
omitted).
First, the Petitioners claim that the BIA erred in affirming the IJ’s finding that
Mr. Lovos-Vasquez does not have a well-founded fear of future persecution on
account of religion, namely his membership in an Evangelical Christian church.
However, the Petitioners do not explain how they believe the BIA clearly erred by
affirming the IJ’s findings. The Petitioners cite to evidence in the record that
“Christians are seen as a threat to the ideologies of guerrilla and paramilitary groups
because of their faith.” Appellant Br. at 15. But the Petitioners never assert that the
BIA either overlooked or misconstrued this or other record evidence. In essence, they
are seeking de novo review of a factual determination. That we cannot do. See
Miguel-Pena, 94 F.4th at 1159.
Next, the Petitioners argue that the BIA erred in affirming the IJ’s finding that
Mr. Lovos-Vasquez does not have a well-founded fear of future persecution on
account of his political opinion, namely his objection to gang activities in El
Salvador. However, at no point do the Petitioners grapple with the BIA’s conclusion
on this point, nor do they argue that the BIA made clearly erroneous factual findings
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or legal error. Once again, we cannot undertake a de novo review of a factual
determination by the BIA. See id.
Lastly, the Petitioners challenge the BIA’s determination that they failed to
articulate a cognizable particular social group in proposing the group, “Salvadoran
Families From Gang-Controlled Areas Who Are Resistant To Gang Rule.” Appellant
Br. at 20. The Petitioners fail to show that the BIA erred. A particular social group is
“a group of persons all of whom share a common, immutable characteristic such as
sex, color, or kinship ties.” Miguel-Pena, 94 F.4th at 1159 (quotation marks omitted).
“Whether a group qualifies as a particular social group under [8 U.S.C.]
§ 1102(a)(42) is a question of law subject to de novo review.” Id. at 1160.
This court has adopted the BIA’s framework for establishing whether a group
qualifies as a particular social group: the group must “share a common, immutable
characteristic,” “have particular and well-defined boundaries,” and be perceived by
society as a social group. Rivera Barrientos v. Holder, 658 F.3d 1222, 1229, 1230,
1231–32 (10th Cir. 2011) (first quoting Matter of Acosta, 19 I. & N. Dec. 211, 233
(B.I.A. 1985); and then quoting Matter of S–E–G–, 24 I. & N. Dec. 579, 582 (B.I.A.
2008)). “If the description of the proposed group is ‘too amorphous,’ and ideas of
what the relevant terms mean are likely to vary, the applicant has failed to provide an
‘adequate benchmark for determining group membership.’” Id. at 1230 (quoting S–E–
G–, 24 I. & N. Dec. at 584). “[T]he particular social group analysis is necessarily
contextual, as the BIA gives the [ ] statutory term[ ] concrete meaning through a
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process of case-by-case adjudication.” Id. at 1230 (second and third alterations in
original) (internal quotation marks omitted).
This matter turns on whether Mr. Lovos-Vasquez’s proposed particular social
group is defined with particularity and socially distinct. Rodas–Orellana, 780 F.3d at
990–91. “‘Particularity’ means the group cannot be ‘indeterminate[,] too subjective,
inchoate, and variable.’” Id. at 990 (quoting Matter of A–M–E & J–G–U–, 24 I. & N.
Dec. 69, 76 (B.I.A. 2007)). “[S]ocial distinction” means the group is “perceived as a
group by society.” Id. at 991 (quoting Matter of W–G–R-, 26 I. & N. Dec. 208, 216
(B.I.A. 2014)). “In determining whether a group is socially [distinct], . . . the BIA
considers whether citizens of the applicant’s country would consider individuals with
the pertinent trait to constitute a distinct social group, and whether the applicant’s
community is capable of identifying an individual as belonging to the group.” Id.
The Petitioners’ proposed particular social group argument suffers from two
fatal flaws. First, the Petitioners make no effort to explain how the group is defined
with particularity. The Petitioners do not explain what it means to be resistant to gang
rule, or even what characterizes a gang-controlled area. Instead, the Petitioners
simply write, “the boundaries of Petitioners’ group may be easily defined, such that it
constitutes a ‘discrete class of persons.’ They are thus limited in number and
particular.” Appellant Br. at 22. This conclusory argument in no way explains why
this group is not “too subjective, inchoate, [or] variable.” Rodas–Orellana, 780 F.3d
at 990 (quoting A–M–E & J–G–U–, 24 I. & N. Dec. at 76).
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Second, and perhaps more critically, the Petitioners point this court to no
evidence even implying that their proposed particular social group is socially distinct.
For instance, the Petitioners point to country-conditions evidence showing that,
“[a]ccording to law enforcement representatives, gang members continued to extort
organizations with known funding streams, including religious groups.” Appellant
Br. at 24. But nothing about this evidence shows how anti-gang families are either
particular or socially distinct in Salvadoran society. In fact, all of the evidence cited
in their petition for review focuses on how Christian churches are targeted by gangs
in El Salvador. This evidence has no obvious connection to the Petitioners’ proposed
particular social group. And the Petitioners make no effort to establish that
connection. The Petitioners’ failure to cite to evidence showing how their proposed
particular social group “constitute[s] a distinct social group” in El Salvador requires
us to reject their proposed particular social group as a matter of law. Rodas–
Orellana, 780 F.3d at 991 (quotation marks omitted).
D. Withholding of Removal and CAT
Next, the Petitioners seek to challenge the BIA’s determination that they are
ineligible for withholding of removal. “To be eligible for withholding of removal, an
applicant must demonstrate that there is a clear probability of persecution because of
his race, religion, nationality, membership in a particular social group, or political
opinion.” Pang, 665 F.3d at 1233 (internal quotation marks omitted). “The showing
required for withholding of removal is more stringent tha[n] the showing required for
asylum.” Id. Because Mr. Lovos-Vasquez “fails to satisfy the lower burden of proof
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required for asylum, he also fails to satisfy the higher standard of eligibility for
withholding of removal.” Id. at 1234.
Finally, by only making a passing attempt to challenge the BIA’s denial of
relief under CAT, the Petitioners have waived their right to advance this challenge.
The only argument they make is that “[f]or applicant’s torture based on
discrimination claim, please see above Sections discussing Petitioner’s evidence
submission establishing persecution by presenting articles documenting the treatment
of those with close ties to religious institutions in El Salvador and their families.”
Appellant Br. at 26. This statement neither engages with the BIA’s reasoning nor
provides any ground upon which this court could consider their arguments. The
petitioners have accordingly waived this challenge. See Sawyers v. Norton, 962 F.3d
1270, 1286 (10th Cir. 2020) (“Issues not raised in the opening brief are deemed
abandoned or waived. This briefing-waiver rule applies equally to arguments that are
inadequately presented in an opening brief . . . [, such as those presented] only in a
perfunctory manner.” (alterations in original) (citation omitted) (internal quotation
marks omitted)).
III. CONCLUSION
The petition for review is DENIED.
Entered for the Court
Carolyn B. McHugh Circuit Judge