Maldonado-Magno v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 6, 2024
• Docket: 23-9604
• Status: Unpublished

Opinion

Appellate Case: 23-9604 Document: 48-1 Date Filed: 11/06/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 6, 2024 _________________________________ Christopher M. Wolpert Clerk of Court WALTER MALDONADO-MAGNO; ANDREA UCHUYPOMA-PALOMINO; LOAN MALDONADO-UCHUYPOMA,

Petitioners,

v. No. 23-9604 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HOLMES, Chief Judge, HARTZ, and ROSSMAN, Circuit Judges. _________________________________

Petitioners, Walter Maldonado-Magno, Andrea Uchuypoma-Palomino, and

their minor son, seek judicial review of the denial of their applications for asylum by

the Board of Immigration Appeals (BIA or Board). Exercising jurisdiction under

8 U.S.C. § 1252, we deny the petition for review.

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-9604 Document: 48-1 Date Filed: 11/06/2024 Page: 2

I.

Petitioners are natives and citizens of Peru. The family entered the United

States without authorization in 2022. The Department of Homeland Security (DHS)

charged them with removability, and they applied for asylum and withholding of

removal.1

As reflected in the Board’s findings, beginning in early 2021, criminals

extorted money from Petitioners at the restaurant they operated outside their home in

the El Agustino district of Lima, Peru. The extortionists threatened to physically

harm them if they did not pay. In January 2022, after Petitioners could no longer pay

the amounts demanded, valuables were stolen from their home while they slept. A

caller took credit for the robbery and again threatened harm if they did not pay the

extortion. Petitioners went to the police with a video of the robbery, but the robber

had worn a mask, and no arrest was made. They closed their restaurant for about a

month, but after they reopened the extortion continued; the extortionists also harassed

and robbed the Petitioners’ customers. Petitioners closed the restaurant permanently

in April 2022 and left Peru the following month, after briefly moving in with

Ms. Uchuypoma’s mother in another part of metropolitan Lima.

Following an April 2023 hearing, an immigration judge (IJ) denied Petitioners’

applications for asylum and ordered their removal. The IJ found petitioners had not

shown their alleged persecution was based on a protected ground. He noted they

1 Petitioners also applied for protection under the Convention Against Torture but have not appealed the denial of that relief. 2 Appellate Case: 23-9604 Document: 48-1 Date Filed: 11/06/2024 Page: 3

were never physically harmed and found they had not shown they were unable to

earn a living in Peru, given Mr. Maldonado’s successful work in construction and the

viability of small businesses and restaurants in Peru, even if El Agustino was a

“particularly difficult” district. R. Vol. 1 at 56. He also found they had not shown

they were unable to safely return to Peru, including by moving to another location.

He therefore found they had not shown past persecution or a credible fear of future

persecution to be eligible for asylum.

Petitioners appealed to the BIA, which affirmed the IJ’s decision. The BIA

rejected Petitioners’ contention that the IJ had not sufficiently developed the record,

affirmed the IJ’s findings, and concluded Petitioners had not established eligibility

for asylum. Petitioners now petition for review under 8 U.S.C. § 1252.

II.

A single member of the BIA affirmed the IJ’s decision. We review that BIA

decision, “but we are not precluded from consulting the IJ’s more complete

explanation of [the] same grounds” provided by the BIA. Aguayo v. Garland, 78

F.4th 1210, 1216 (10th Cir. 2023) (internal quotation marks omitted). We review

legal determinations de novo and factual determinations using the substantial-

evidence standard. Id. “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.” Id. (internal quotation marks

omitted). The Board’s “administrative findings of fact are conclusive unless any

3 Appellate Case: 23-9604 Document: 48-1 Date Filed: 11/06/2024 Page: 4

reasonable adjudicator would be compelled to conclude to the contrary.’” 8 U.S.C.

§ 1252(b)(4)(B).

III.

A.

Petitioners first argue the IJ denied them due process by not sufficiently

developing the factual record related to Ms. Uchuypoma’s political opinions.

Though Petitioners are represented by counsel on appeal, they appeared pro se before

the IJ. “[W]e have never ‘explicitly recognized’ that an ‘IJ has an affirmative duty to

develop the record when the applicant is not represented.’” Arostegui-Maldonado v.

Garland, 75 F.4th 1132, 1147 (10th Cir. 2023) (quoting Matumona v. Barr, 945 F.3d

1294, 1304 (10th Cir. 2019)). But even assuming such a duty exists, Petitioners’

argument is unavailing on this record. To show a denial of due process, Petitioners

must show the record was “prejudicially inadequate.” Id. (emphasis added).

Here, Ms. Uchuypoma testified she had “previously belonged to a political

party,” but then “stayed away from” politics to “focu[s] more on [her] job.”

R. Vol. 1 at 133. After she described the extortion Petitioners experienced without

mentioning politics, the IJ asked her follow-up questions about her political

involvement. Id. at 160–62. She testified that she had supported a particular

candidate elected to the congress from El Agustino. The IJ asked if she had “any

problems” because of her political involvement. Id. at 162. Petitioners emphasize

that she was interrupted before finishing her answer to that question, however the IJ

4 Appellate Case: 23-9604 Document: 48-1 Date Filed: 11/06/2024 Page: 5

next asked her if there was “anything else you’d like to tell me that we have not

already covered?” Id. at 163.

The BIA described the IJ’s examination as “very careful and thorough” and

found he had “made sure that the evidentiary record was as complete as possible.”

Id. at 4. But even if we assume the IJ’s colloquy was deficient, Petitioners have not

shown they were prejudiced. Petitioners have identified no additional testimony or

evidence related to Ms. Uchuypoma’s political opinions or involvement that support

their asylum claim. The only additional evidence they have identified is general

news reports related to protests that followed Peruvian President Pedro Castillo’s

removal from office in December 2022. See Reply Br. at 7 (citing R. Vol. 1 at 213,

221, 223). Petitioners argue this shows a generally “volatile political climate.”

Opening Br. at 22. But even if so, these general reports do not show the extortion

Petitioners specifically experienced more than a year earlier was on account of their

political opinions. Petitioners therefore have not shown they were prejudiced by the

IJ’s allegedly deficient development of the record. See Arostegui-Maldonado,

75 F.4th at 1147 (rejecting claim the IJ inadequately developed record where

petitioner did not identify additional evidence that would support his claim).

B.

Petitioners also ask us to overturn the Board’s determination that they were

ineligible for asylum. To be eligible for asylum, petitioners must show they are

refugees within the meaning of the Immigration and Naturalization Act. See 8 U.S.C.

§§ 1101(a)(42) & 1158(b)(1)(A). This requires them to “demonstrate either past

5 Appellate Case: 23-9604 Document: 48-1 Date Filed: 11/06/2024 Page: 6

persecution or a well-founded fear of future persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.”

Matumona, 954 F.3d at 1300 (emphasis added; internal quotation marks and brackets

omitted). “We have characterized the issue of whether an alien has established

persecution as a question of fact.” Id. (citing Vicente-Elias v. Mukasey, 532 F.3d

1086, 1091 (10th Cir. 2008)).2

To be eligible for asylum, Petitioners “must establish a ‘nexus’ between the

alleged persecution and a protected ground.” Miguel-Peña v. Garland, 94 F.4th

1145, 1159 (10th Cir. 2024), petition for cert. filed (U.S. July 9, 2024) (No. 24-12).

“The protected ground must be at least one central reason for persecuting the

applicant,” and “cannot be incidental, tangential, superficial, or subordinate to

another reason for harm.” Id. (internal quotation marks omitted).

The Board here found Petitioners had not shown they were harmed on account

of any protected ground, including political opinion. The Board reasoned that,

although Ms. Uchuypoma had supported a local politician, “she did not testify to any

problems that occurred, or harm that was suffered, due to her support of this political

figure.” R. Vol. 1 at 5. Here, Petitioners “were targeted for harm because they

operated a small business that criminals perceived to be successful.” Id. And “acts of

common criminality or personal hostility,” the Board explained, “do not implicate

2 “Although the circuits are split on the standard of review applicable to the issue, the Supreme Court has yet to resolve it. Until it does, we are bound by our decision in Vicente-Elias.” Matumona, 945 F.3d at 133 n.5 (citation omitted). 6 Appellate Case: 23-9604 Document: 48-1 Date Filed: 11/06/2024 Page: 7

asylum eligibility.” Id. (quoting Vatulev v. Ashcroft, 354 F.3d 1207, 1209 (10th Cir.

2003)).

We see no basis to overturn these findings. In support of their “nexus”

argument, Petitioners reiterate that the IJ should have elicited further evidence and

request remand to provide additional testimony regarding the extortionists’ motives.

Opening Br. at 26–27. But as we explained, Petitioners have not identified any

additional testimony or evidence showing they were targeted for extortion because of

their political opinions, so we cannot agree remand is warranted.

Beyond that, Petitioners argue the politician Ms. Uchuypoma supported was

“progressive” and “campaigned on the promise of ‘cleaning up’ the gangs.” Id. at 26.

As Petitioners acknowledge, this is at most circumstantial, showing she supported an

anti-gang politician and was thereafter victimized by a gang. But they also

emphasize that many businesses in El Agustino suffer extortion. Ms. Uchuypoma

described limited political involvement, at an uncertain time before she focused on

running the restaurant. She did not testify that she was targeted for her political

opinions or that the extortionists had a political motivation. Nothing in the record

compelled the Board to find the extortionists targeted Petitioners on account of

political opinions. Rather, the Board’s finding that the extortionists were motivated

by financial gain is supported by substantial evidence. Accord Miguel-Peña, 94 F.4th

at 1160 (rejecting claim of nexus between extortion and alleged anti-gang political

opinion; stating “[T]here is no nexus when there is no evidence that the gang would

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be hostile toward the targeted individuals absent their financial or recruitment

motives.” (internal quotation marks omitted)).

While we are sympathetic to the Petitioners’ circumstances, the legal standards

we must apply compel affirmance on the record before us. Substantial evidence

supports the BIA’s finding of no nexus between the alleged persecution and a

protected ground. Petitioners cannot establish eligibility for asylum without showing

a nexus to a protected ground, so this issue is dispositive of their petitions, and we

need not reach the other independent grounds also addressed by the Board. And,

because Petitioners did not establish their eligibility for asylum, they also could not

carry the higher burden required for withholding of removal. See Escobar-Hernandez

v. Barr, 940 F.3d 1358, 1362 (10th Cir. 2019) (stating that because the burden of

proof for withholding of removal is higher than for asylum, the “failure to meet the

standard of proof for [an] asylum application forecloses [a] withholding-of-removal

claim premised on the same facts”).

IV.

The petition for review is denied.

Entered for the Court

Veronica S. Rossman Circuit Judge