Manchame-Morales v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 30, 2021
• Docket: 20-9599
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 30, 2021 _________________________________ Christopher M. Wolpert Clerk of Court ELIDA NOEMI MANCHAME- MORALES; VICTOR ALBERTO OLIVA-MANCHAME,

Petitioners,

v. No. 20-9599 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, *

Respondent. _________________________________

ORDER AND JUDGMENT ** _________________________________

Before MATHESON, BRISCOE, and CARSON, Circuit Judges. _________________________________

* On March 11, 2021, Merrick B. Garland became Attorney General of the United States. Consequently, his name has been substituted for William P. Barr as Respondent, per Fed. R. App. P. 43(c)(2). ** 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Elida Noemi Manchame-Morales, the lead petitioner, filed applications for

asylum, restriction on removal, 1 and protection under the Convention Against Torture

(“CAT”), on behalf of herself and her minor child and co-petitioner, Victor Alberto

Oliva-Manchame. Both are natives and citizens of Guatemala. An immigration

judge (“IJ”) denied the applications. The Board of Immigration Appeals dismissed

Petitioners’ appeal of the IJ’s order and entered a final order of removal. They now

appeal the Board’s order. 2 Exercising jurisdiction under 8 U.S.C. § 1252, we deny

the petition for review.

I. BACKGROUND

In her testimony and the affidavits she submitted in support of her

applications, Ms. Manchame-Morales explained why she fears returning to

Guatemala. Her father started sexually assaulting her when she was seven. He also

assaulted her sisters. They did not report him to the police because their mother had

left the family and he was their only caretaker. Ms. Manchame-Morales ultimately

left the father’s home and moved in with a sister. When she was 14 and the sister

could no longer support her, she found a job and started supporting herself.

1 Restriction on removal used to be called “withholding of removal.” Neri-Garcia v. Holder, 696 F.3d 1003, 1006 n.1 (10th Cir. 2012) (quotations omitted). 2 Petitioners also sought termination of their removal proceedings in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018). The IJ denied the motion and the Board upheld that ruling. Petitioners do not challenge that aspect of the Board’s decision in their petition for review, so we do not address it.

2 At age 17, Ms. Manchame-Morales met and started living with her partner,

Luis Alberto Oliva Arrivillaga (Luis), who is Victor’s father. Luis was a machine

operator and made a good salary. Gang members began to harass him and take his

money. He told her that if he refused to give them money, they would threaten to kill

him, her, or Victor. Once, when Luis said he would call the police, the gang

members severely beat him. He told her he feared for the family’s safety. He

disappeared soon thereafter. Ms. Manchame-Morales feared the gang members had

killed him. About three months later, Luis called to tell her he had fled to the United

States.

After Luis left, the gang members started harassing Ms. Manchame-Morales

for money. When they went to her house and pounded on the door demanding

money, she threatened to call the police. Undaunted, they stayed outside her home

for several hours. The harassment continued after they learned Luis was sending her

money. They followed her when she went to the bank to collect the money he sent.

Ms. Manchame-Morales described the gang members as “extortionists,” ROA, Vol. 2

at 160, and said they persecuted her because they knew she was “his wife,” id. at

161. 3 She testified that she did not have trouble with the gangs until she started

living with Luis. She was “afraid of them because [she] heard that they enter[ed] . . .

Ms. Manchame-Morales explained that she and Luis are not legally married 3

but consider themselves husband and wife.

3 homes to steal, to extort, and to beat people.” Id. at 159. She did not tell the police

because she feared retribution and believed the police were working with the gangs.

Ms. Manchame-Morales and Victor came to the United States in 2016. While

here, she had a baby girl. She testified that she feared returning to Guatemala with

her children because the “gang members would assume [she] had money and

would . . . kidnap [her U.S. citizen] daughter for extortion.” Id. at 262. She was

afraid the same gang members would recognize her. When asked whether she could

relocate to another part of Guatemala, she said doing so was not an option because

she had no contact with her birth family and was afraid to reconnect with them.

Because her father was still alive, she was afraid he would “repeat the history” and

harm her daughter. Id. at 164.

The IJ found Ms. Manchame-Morales credible but concluded Petitioners did

not qualify for asylum, restriction on removal, or CAT relief. The Board affirmed

the IJ’s order and dismissed Petitioners’ appeal.

II. DISCUSSION

When, as here, a single Board member affirmed the IJ’s decision in a brief

order, we review the Board’s decision, but we may consult the IJ’s “more complete

explanation” of the grounds for the Board’s decision. Neri-Garcia v. Holder, 696

F.3d 1003, 1008-09 (10th Cir. 2012).

We review the Board’s legal conclusions de novo and its factual findings for

substantial evidence. Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004).

Under that standard, “our duty is to guarantee that factual determinations are

4 supported by reasonable, substantial and probative evidence considering the record as

a whole.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006) (quotations

and brackets omitted). The agency’s findings of fact “are conclusive” unless the

record as a whole “demonstrates that any reasonable adjudicator would be compelled

to conclude to the contrary.” Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th

Cir. 2012) (quotations omitted).

A. Asylum

To qualify for asylum, an applicant must establish that she is a refugee.

8 U.S.C. § 1158(b)(1)(A). A refugee is someone who is unable or unwilling to return

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

account of” any of five protected grounds, including “membership in a particular

social group.” Id. § 1101(a)(42)(A). An applicant can make that showing through

evidence of “past persecution on account of a protected ground, which gives rise to a

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

account of a protected ground.” Rodas-Orellana v. Holder, 780 F.3d 982, 986

(10th Cir. 2015) (quotations omitted). An applicant may also obtain refugee status,

even without proving past persecution, by showing she has 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).

Persecution is on account of a protected ground if the ground “was or

will be at least one central reason for persecuting the applicant.” 8 U.S.C.

§ 1158(b)(1)(B)(i). The Board has interpreted “‘one central reason’ to mean the

5 protected ground cannot play a minor role in the alien’s past mistreatment or fears of

future mistreatment. That is, it cannot be incidental, tangential, superficial, or

subordinate to another reason for harm.” Karki v. Holder, 715 F.3d 792, 800-01

(10th Cir. 2013) (quotations and brackets omitted); see also Rivera-Barrientos, 666

F.3d at 647 (explaining that the persecution must be because of the protected status

instead of for some other, unprotected reason). An IJ’s finding regarding a

persecutor’s motivation is a finding of fact that the BIA reviews for clear error. See

Matter of N-M-, 25 I. & N. Dec. 526, 532 (BIA 2011); see also 8 C.F.R.

§ 1003.1(d)(3)(i) (establishing clear error standard of review).

Petitioners’ applications for asylum and restriction alleged that

Ms. Manchame-Morales had suffered past persecution in Guatemala and is likely to

suffer future persecution based on her membership in a particular social group that

she defined as her partner’s family. 4 But the IJ found that the gang members targeted

her because of their “criminal motive to obtain money unlawfully,” not because of

“an animus against [Luis’s] family.” ROA, Vol. 2 at 95. The IJ thus concluded she

failed to establish the required nexus between her membership in his family and any

4 Ms. Manchame-Morales also sought asylum and restriction on removal based on her membership in the particular social group of her female gender. But she did not ask the Board to review the IJ’s denial of relief based on her claim of persecution at the hands of her father, and she does not pursue that issue in her petition for review. Thus, we limit our discussion of the factual and procedural background of her asylum and restriction applications to information relevant to her claim that she was and will be persecuted based on her membership in the proposed particular social group of her partner’s family.

6 persecution she suffered in the past and that she feared she and Victor would suffer if

they returned to Guatemala. The Board found no clear error in the IJ’s finding

regarding the reason for the gang members’ harassment of Ms. Manchame-Morales,

agreeing that they “were motivated by money” and that her relationship to Luis “was

a tangential rather than a central reason for the gang’s interest in her.” Id. at 4. The

Board thus upheld the IJ’s nexus determination, and because that determination was

dispositive of Petitioners’ asylum claim, the Board affirmed the IJ’s denial of their

asylum application.

Petitioners take issue with the Board’s nexus determination, arguing that the

Board erred by refusing to follow Salgado-Sosa v. Sessions, 882 F.3d 451 (4th Cir.

2018), in which the Fourth Circuit found that gang violence directed at a particular

social group of family membership for financial purposes was a clear reason for their

persecution and so provided a primary, not just a tangential nexus. See id. at 457-59

(holding that the Board “erred by focusing narrowly on the immediate trigger for

[gang] assaults—greed or revenge—at the expense of” the petitioner’s relationship to

his stepfather, who refused to meet the gang’s demands that he pay a “war tax”

(quotations omitted)). But the Board is not required to follow an out-of-circuit

decision. See Matter of Anselmo, 20 I. & N. Dec. 25, 31 (BIA 1989). Instead, its

established practice is to follow “a court’s precedent in cases arising in that circuit.”

Id. We have neither adopted nor rejected the Fourth Circuit’s test, and Petitioners do

not argue that the Board failed to apply Tenth Circuit precedent.

7 The law in this circuit is that the persecution must be “because of” the

protected status, Rivera-Barrientos, 666 F.3d at 647, and “cannot be . . .

tangential . . . or subordinate to another reason,” Karki, 715 F.3d at 800-01

(quotations omitted). The record supports the Board’s findings that the gangs’

primary motivation for harassing Ms. Manchame-Morales was to steal her money and

that the fact that she got her money from Luis was tangential.

In their brief to this court, Petitioners point to Ms. Manchame-Morales’s

testimony that gang members harassed and attempted to steal from her because they

knew Luis was sending her money, and that police did nothing about the fact that

gangs terrorized and controlled the city. Petitioners contend this testimony

establishes that gangs harassed and will continue to harass Ms. Manchame-Morales

“simply because she was Luis’s wife.” Aplt. Br. at 13. We disagree. The evidence

supports the Board’s finding that the gangs harassed her and others to steal money.

The Board reasonably concluded that Petitioners failed to establish the

required nexus between their membership in Luis’s family and their claims of past

and fear of future gang persecution in Guatemala. Their argument that substantial

evidence does not support the Board’s decision invites us to reweigh the evidence.

We may not do so. See Sidabutar v. Gonzales, 503 F.3d 1116, 1125 (10th Cir. 2007).

Also, we cannot say that a reasonable adjudicator would be compelled to reject the

Board’s conclusion. See Rivera-Barrientos v. Holder, 666 F.3d at 645. Finally,

8 Petitioners have not shown the Board misapplied our precedent. We thus affirm the

Board’s denial of Petitioners’ asylum application. See Sidabutar, 503 F.3d at 1125. 5

B. Restriction on Removal

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

probability” of persecution on account of one of the statutorily protected grounds.

Rodas-Orellana, 780 F.3d at 987 (quotations omitted). This is a higher burden of

proof than the standard for asylum, which requires the applicant to prove only that

such persecution is a “reasonable possibility.” Id. (quotations omitted). Petitioners’

inability to meet the asylum burden necessarily forecloses meeting the greater

restriction burden. See id. We thus deny their challenge to the Board’s finding that

they are not eligible for restriction on removal.

C. CAT Relief

The CAT “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 (quotations

omitted). The applicant has the burden to establish her eligibility for CAT relief.

8 C.F.R. § 208.16(c)(2). In determining whether an applicant has met her burden, the

agency should consider “[e]vidence that the applicant could relocate to a part of the

5 The Board assumed without deciding that Ms. Manchame-Morales partner’s family is a cognizable particular social group. Because substantial evidence supports the Board’s finding about the gang members’ motives, we need not consider whether her proposed particular social group is cognizable.

9 country of removal where he or she is not likely to be tortured.”

Id. § 208.16(c)(3)(ii).

The IJ denied Petitioners’ application for CAT relief for two independent

reasons. First, the IJ found Ms. Manchame-Morales had not shown the Guatemalan

government “would acquiesce in her torture were she to return,” ROA, Vol. 2 at 97,

explaining that her belief that “there was a relationship between the police and the

gang members” was insufficient to establish that the police “would acquiesce in her

being tortured,” id. at 98. Second, finding that she is “able-bodied” and noting that

she had lived in two other areas of Guatemala, including when she struck out on her

own, the IJ found “it would be reasonable for her to relocate from the area where she

had been threatened by the gangs” to another part of Guatemala “different from

where her father lives.” Id. The IJ also noted that Luis “had been sending her money

when she was in Guatemala” after he left the country, and found that he could

continue to support her if she moved to another area of Guatemala. Id.

On appeal to the Board, Ms. Manchame-Morales took issue with the IJ’s

acquiescence determination, but she did not challenge the IJ’s finding that she could

avoid future persecution by relocating within Guatemala. Because she did not claim,

much less establish, that the IJ’s relocation finding was clearly erroneous, the Board

agreed with the IJ’s legal determination that, in light of her ability to relocate

internally, she did not show it is more likely than not that she will face torture in

Guatemala. Id. at 5. The Board thus upheld the IJ’s denial of relief under the CAT

10 without addressing Petitioners’ arguments challenging the IJ’s acquiescence

determination.

Now Petitioners challenge both the relocation and acquiescence

determinations, arguing that neither is supported by substantial evidence. But we do

not have jurisdiction to review her arguments. Petitioners’ failure to raise the

relocation issue in her appeal to the Board constitutes a failure to exhaust

administrative remedies that deprives us of jurisdiction over that issue. See

Soberanes v. Comfort, 388 F.3d 1305, 1308-09 (10th Cir. 2004). And we cannot

review the IJ’s acquiescence determination because it was not the basis for the

Board’s denial of Petitioners’ application for CAT relief. See Uanreroro, 443 F.3d

at 1204 (explaining that “we will not affirm on grounds raised in the IJ decision

unless they are relied upon by the BIA in its affirmance”).

III. CONCLUSION

We deny the petition for review. We grant Petitioners’ motion for leave to

proceed without prepayment of fees and costs.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge