Martinez-Mendoza v. Barr

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 28, 2020
• Docket: 19-9506
• Status: Unpublished

Opinion

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

FOR THE TENTH CIRCUIT January 28, 2020 _________________________________ Christopher M. Wolpert Clerk of Court DORIS ABIGAIL MARTINEZ- MENDOZA,

Petitioner,

v. No. 19-9506 (Petition for Review) WILLIAM P. BARR, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, McHUGH, and EID, Circuit Judges. _________________________________

Doris Abigail Martinez-Mendoza, a native of El Salvador, petitions for review

of an order by the Board of Immigration Appeals (BIA) affirming a decision by the

Immigration Judge (IJ) denying relief under the Convention Against Torture (CAT).

Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition and remand

the matter to the BIA for further proceedings consistent with this opinion.

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. BACKGROUND

In November 2012, ten-year-old Abigail left El Salvador with her

seventeen-year-old sister, Katherine, and traveled to the United States, seeking to

join their parents, who lived in Utah and had come to the United States illegally

several years beforehand. After being apprehended and placed in removal

proceedings, both sisters applied for asylum, withholding of removal, and relief

under the CAT.

Nearly five years later, on September 14, 2017, the sisters’ claims were heard

before an IJ. Although the cases initially were consolidated, the IJ administratively

closed Katherine’s case and severed it from Abigail’s after their counsel submitted

evidence that Katherine had married a United States citizen and had initiated

proceedings to obtain adjusted status based on the marriage. The hearing, therefore,

proceeded solely as to Abigail, though Katherine provided the majority of the

testimony.

Katherine testified that their mother left El Salvador for the United States in

2006 and that their father did the same in 2008. She and Abigail continued to live in

El Salvador, residing alone in their parents’ home. Several months later, however,

the girls returned home from school and found the residence ransacked and many of

their belongings stolen. The police responded but did not find the perpetrators.

Believing it was no longer safe to live alone, Katherine and Abigail moved in

with their aunt, who lived nearby. Shortly thereafter, their uncle, who lived next

door and was a father figure for the girls, was shot and killed outside his home. The

2 police, who did not have a station in that city, took about one hour to arrive, did not

question Katherine, and were unsuccessful in solving the murder. Katherine believed

gang members orchestrated the murder because their uncle had confronted a local

gang member several days beforehand and protested the gang’s extortionist practices.

After their uncle’s murder, Katherine and Abigail continued living with their

aunt for the next two years. During that time, Katherine believed people on the bus

were watching and following her. Additionally, an unidentified man stood at the site

of their uncle’s murder and asked Katherine for money on a nearly daily basis.

Katherine gave him money based on their aunt’s recommendation and her own belief

that she would be harmed otherwise. The aunt similarly paid protection money to the

gangs and warned Katherine she might get killed if she told the police. Katherine

believed that the police were powerless to stop the gangs and that the gangs could do

anything they wanted in El Salvador.

After the sisters left El Salvador, their aunt received a phone call demanding

payment but responded that she did not have any money and that the girls no longer

lived with her. Katherine believed Abigail would be in danger if sent back to El

Salvador because gang members would believe she has money.

Because of her young age and her family’s efforts to shield her, Abigail was

unaware while living in El Salvador of the extortion payments, the reason for their

uncle’s murder, or the family’s fear of the gangs. But she testified she is afraid to

return to El Salvador. Abigail also testified that she would live with her aunt again if

3 forced to return but that she does not believe her aunt could provide adequate

protection because of her age, health issues, and obligations to her own children.

The IJ found Katherine credible1 but denied Abigail’s requests for asylum,

withholding of removal, and relief under the CAT. Abigail appealed to the BIA, but

because her brief only contested the denial of relief under the CAT, the BIA

concluded she had waived her claims for asylum and withholding.2 After finding no

clear error in the IJ’s denial of relief under the CAT, the BIA dismissed the appeal.

DISCUSSION

On appeal, Abigail contends the BIA erred in denying relief under the CAT.

Because we are unable to perform a meaningful review, we remand to the BIA.

A. Standard of Review

When, as here, the BIA affirms the IJ in a brief order issued by a single judge,

“we review the BIA’s decision as the final agency determination and limit our review

to issues specifically addressed therein.” Diallo v. Gonzales, 447 F.3d 1274, 1279

1 The IJ did not make a credibility finding regarding Abigail. See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing, for asylum applications, that “if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal”); id. § 1229a(c)(4)(C) (providing same presumption for applications for relief from removal). 2 We note any claims of ineffective assistance of counsel should be raised in “a motion to reopen the case before the BIA.” Galvez Piñeda v. Gonzales, 427 F.3d 833, 837 (10th Cir. 2005). See generally Osei v. I.N.S., 305 F.3d 1205, 1209 n.2 (10th Cir. 2002) (discussing the preliminary requirements for such a claim under In re Lozada, 19 I. & N. Dec. 637 (BIA 1988), including: (1) providing a supporting affidavit; (2) allowing former counsel the opportunity to respond; and (3) indicating whether a disciplinary complaint has been filed). 4 (10th Cir. 2006). “However, when seeking to understand the grounds provided by

the BIA, we are not precluded from consulting the IJ’s more complete explanation of

those same grounds.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006).

“We review the BIA’s legal determinations de novo, and its findings of fact under a

substantial-evidence standard.” Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir.

2005); see also Htun v. Lynch, 818 F.3d 1111, 1118 (10th Cir. 2016) (“[A] request

for protection under the CAT involves factual determinations reviewed for

substantial evidence.”). Under the substantial-evidence standard, “[t]he BIA’s

findings of fact are conclusive unless the record demonstrates that any reasonable

adjudicator would be compelled to conclude to the contrary.” Niang, 422 F.3d at

1196 (internal quotation marks omitted).

B. Relief Under the CAT

To obtain relief from removal under the CAT, a petitioner must “prove it is

more likely than not that . . . she would be tortured if removed to a particular

country.” Hayrapetyan v. Mukasey, 534 F.3d 1330, 1336 (10th Cir. 2008) (internal

quotation marks omitted). The CAT defines “torture” as the “intentional[]

inflict[ion]” of “severe pain or suffering, whether physical or mental, . . . by or at the

instigation of or with the consent or acquiescence of a public official or other person

acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).

C. Meaningful Review

In order for this court to engage in “meaningful appellate review,” the BIA

must “consider the issues raised[] and announce its decision in terms sufficient to

5 enable a reviewing court to perceive that it has heard and thought and not merely

reacted.” Maatougui v. Holder, 738 F.3d 1230, 1243 (10th Cir. 2013) (internal

quotation marks omitted). “The BIA is not required to write an exegesis on every

contention,” id. at 1242-43 (internal quotation marks omitted), or “discuss every

piece of evidence,” Hadjimehdigholi v. I.N.S., 49 F.3d 642, 648 n.2 (10th Cir. 1995).

However, neither may it “ignore or misconstrue evidence.” Karki v. Holder,

715 F.3d 792, 800 (10th Cir. 2013) (internal quotation marks omitted).

Here, the BIA stated it was “sympathetic to [Abigail]” but found the IJ had not

clearly erred in determining Abigail was “ineligible for protection under the [CAT].”

R. at 3-4. The IJ similarly expressed sympathy, stating he “recognize[d] the

unfortunate consequence of removal on” Abigail, “a minor” with “limited support in

El Salvador.” Id. at 51. Notwithstanding these statements, the record does not show

the BIA and the IJ provided an individualized assessment of Abigail’s case.

First, the BIA seems to have confused the two sisters. For example, the BIA

noted that “[t]he respondent testified” about the burglary of her family home, her

uncle’s murder, and the demands for “money when she went to school.” Id. at 3. But

it was Katherine who provided such testimony, not Abigail, and indeed, the BIA

cited the transcript pages containing Katherine’s testimony. See id.3

3 This may be attributable to the brief her attorney filed. In addition to contending “Respondents should be granted withholding of removal,” R. at 17 (emphasis added), the brief repeatedly attributed Katherine’s testimony to Abigail, see, e.g., id. (stating “she detailed multiple occasions of being the victim of crimes such as robbery, stalking, and death threats”). See generally supra note 2. 6 We may look to the IJ’s decision for clarification. See Cruz-Funez v.

Gonzales, 406 F.3d 1187, 1191 (10th Cir. 2005). But that decision often referred to

“Respondents,” including stating “Respondents’ application for asylum, withholding

of removal, and relief under the [CAT] will be denied,” even though Katherine’s case

was closed and severed from Abigail’s. R. at 42 (emphasis added); see also id. at 51

(denying “Respondents’ application for asylum,” “Respondents’ application for

withholding of removal,” and “Respondents’ applications for withholding and

deferral of removal under the [CAT],” and ordering the removal of “Respondents”

(emphasis added)). The IJ’s decision also specified Katherine “was the only witness

to provide testimony.” Id. at 43 (emphasis added). Not so. Katherine provided the

bulk of the testimony, see id. at 136-67, but Abigail also testified, see id. at 169-74.

And in describing “Respondent’s testimony,” it is clear the IJ, like the BIA, was

referring to Katherine, not Abigail. Id. at 50 (noting “Respondent’s prior interactions

with the gang,” although only Katherine had any such interactions).

Ultimately, the record shows that Abigail’s sister and aunt were extorted by

gangs and that Abigail’s uncle was murdered after confronting a gang member about

the extortionist practices. The record further indicates that Abigail, now seventeen,

has not lived in El Salvador since she was ten and has virtually no connections there

or support awaiting her should she be deported. Indeed, Katherine testified Abigail

would be particularly vulnerable, noting that there was no one who could protect her

and that the gangs likely will believe she has money due to her being both new in

town and a teenager who just returned from the United States. See id. at 151-52.

7 Confusing or conflating the two sisters is problematic because of their

different experiences and different fears. Focusing, as the BIA did, on “past

mistreatment” and “past torture,” id. at 3, may make sense for Katherine, see Niang

v. Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005) (noting past torture is relevant,

although not dispositive, for future torture), but not for Abigail, who was largely

shielded from the dangers in El Salvador, see R. at 147. Abigail’s CAT claim

requires an assessment of whether “it is more likely than not . . . she would be

tortured if removed to [El Salvador].” 8 C.F.R. § 208.16(c)(2) (emphasis added).

And unlike past mistreatment, the BIA gave little attention to future mistreatment,

merely reciting the standard and not mentioning the evidence. See R. at 4.

The IJ and BIA erred in failing to distinguish Abigail from her sister, to

acknowledge Abigail testified at her own hearing, and to independently assess

Abigail’s request for relief. On remand, the BIA should clarify its ruling. We

express no opinion on the merits of Abigail’s CAT claim, only that she is entitled to a

fundamentally fair proceeding with “an individualized determination of [her]

interests.” de la Llana-Castellon v. I.N.S., 16 F.3d 1093, 1096 (10th Cir. 1994).

CONCLUSION

The petition for review is granted and the matter is remanded to the BIA for

further proceedings consistent herewith.

Entered for the Court

Gregory A. Phillips Circuit Judge