Appellate Case: 22-9514 Document: 010110811206 Date Filed: 02/10/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 10, 2023 _________________________________ Christopher M. Wolpert Clerk of Court RAFAEL ADEMIR MARTINS,
Petitioner,
v. No. 22-9514 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges. _________________________________
Rafael Martins petitions for review of a reinstated order of removal by an
immigration judge (IJ). Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we deny
the petition.
BACKGROUND
Mr. Martins is a native and citizen of Brazil. In April 2021, the Department of
Homeland Security (DHS) removed him to Brazil for seeking admission to the United
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-9514 Document: 010110811206 Date Filed: 02/10/2023 Page: 2
States without a valid entry document. In January 2022, Mr. Martins illegally
reentered the United States. A Border Patrol agent issued Mr. Martins a copy of
DHS Form I-871 “Notice of Intent/Decision to Reinstate Prior Order.” R. at 17. The
Border Patrol Agent signed the portion of the form indicating “the existence of a
right to make a written or oral statement contesting this determination[] were
communicated to the alien.” Id. Another section of the form titled
“Acknowledgement and Response” included check boxes for Mr. Martins to indicate
whether he did or did not wish to make a statement contesting the reinstatement
determination and a space for him to sign. Id. Neither box is checked, and the
signature block is stamped with the notation: “REFUSED TO SIGN.” Id.
DHS reinstated its prior order of removal. Sometime later, Mr. Martins told
officials he feared persecution or torture if he returned to Brazil. So, an asylum
officer interviewed him. During the interview, Mr. Martins stated he was afraid
because he had helped U.S. law enforcement against an American member of the
Sinaloa drug cartel in Mexico. Mr. Martins stated he had never been threatened or
harmed in Brazil but he was afraid the cartel had members in Brazil. The asylum
officer found Mr. Martins credible but concluded he did not have a reasonable fear of
persecution or torture in Brazil.
Mr. Martins requested review by an IJ. The IJ reviewed the credible fear
interview and related documents and took testimony from Mr. Martins. During his
testimony before the IJ, Mr. Martins again stated cartel members threatened him
twice when he was in Mexico. The IJ also concluded Mr. Martins did not have a
2 Appellate Case: 22-9514 Document: 010110811206 Date Filed: 02/10/2023 Page: 3
reasonable fear of the possibility of torture or persecution in Brazil. The IJ wrote:
“No harm or threats in Brazil. Threats stem from Mexico. Feared harm is not on
account of a protected ground. No grounds to fear torture or persecution in Brazil.”
R. at 2. Mr. Martins then petitioned for this court to review the IJ’s determination.
DISCUSSION
Mr. Martins makes two arguments in his petition for review. First, he argues
DHS violated his due process rights by not providing him with the opportunity to
make a statement contesting the reinstatement of his 2021 removal order. Second, he
argues substantial evidence does not support the asylum officer and IJ’s negative
reasonable fear determination.
In connection with the first argument, we review legal issues de novo. See
Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005). The Immigration and
Nationality Act empowers the Attorney General to summarily reinstate orders of
removal against aliens who illegally reenter the United States:
If the Attorney General finds that an alien has reentered the United States illegally after having been removed . . . under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
8 U.S.C. § 1231(a)(5). Regulations require DHS to give an alien subject to
reinstatement of a prior removal order the opportunity to make a statement before the
agency proceeds with removal. See 8 C.F.R. § 241.8(b).
3 Appellate Case: 22-9514 Document: 010110811206 Date Filed: 02/10/2023 Page: 4
Here, the record belies Mr. Martins’s assertion DHS did not give him an
opportunity to make such a statement: the Border Patrol agent affirmatively averred
that he advised Mr. Martins of this right, but that Mr. Martins refused to sign a form
indicating his election. Mr. Martins argues the failure to check either box next to the
signature line (that he refused to sign) indicates the Border Patrol agent did not
inform him of his rights, but this inference is faulty. If Mr. Martins refused to sign
the “Acknowledgement and Response” portion of the form, it is reasonable for the
Border Patrol agent not to check a box indicating a choice Mr. Martins refused to
make. The agent nonetheless reasonably treated Mr. Martins’s refusal to decide
whether to make a statement (and concomitant refusal to sign a form memorializing
that choice) as a refusal to make a statement.
As to the second argument, this court has not determined the applicable
standard of review of a negative reasonable fear determination. But we need not
resolve the issue here because both Mr. Martins and the government contend that the
substantial-evidence standard applies.1 Under that standard, “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). To proceed beyond a reasonable fear interview, an alien must
“establish[] a reasonable possibility that he or she would be persecuted on account of
1 We also note that at least two other circuits have concluded that negative reasonable fear determinations should be reviewed for substantial evidence. See Romero v. Att’y Gen., 972 F.3d 334, 337, 340 (3d Cir. 2020); Andrade-Garcia v.
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Appellate Case: 22-9514 Document: 010110811206 Date Filed: 02/10/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 10, 2023 _________________________________ Christopher M. Wolpert Clerk of Court RAFAEL ADEMIR MARTINS,
Petitioner,
v. No. 22-9514 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges. _________________________________
Rafael Martins petitions for review of a reinstated order of removal by an
immigration judge (IJ). Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we deny
the petition.
BACKGROUND
Mr. Martins is a native and citizen of Brazil. In April 2021, the Department of
Homeland Security (DHS) removed him to Brazil for seeking admission to the United
* 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: 22-9514 Document: 010110811206 Date Filed: 02/10/2023 Page: 2
States without a valid entry document. In January 2022, Mr. Martins illegally
reentered the United States. A Border Patrol agent issued Mr. Martins a copy of
DHS Form I-871 “Notice of Intent/Decision to Reinstate Prior Order.” R. at 17. The
Border Patrol Agent signed the portion of the form indicating “the existence of a
right to make a written or oral statement contesting this determination[] were
communicated to the alien.” Id. Another section of the form titled
“Acknowledgement and Response” included check boxes for Mr. Martins to indicate
whether he did or did not wish to make a statement contesting the reinstatement
determination and a space for him to sign. Id. Neither box is checked, and the
signature block is stamped with the notation: “REFUSED TO SIGN.” Id.
DHS reinstated its prior order of removal. Sometime later, Mr. Martins told
officials he feared persecution or torture if he returned to Brazil. So, an asylum
officer interviewed him. During the interview, Mr. Martins stated he was afraid
because he had helped U.S. law enforcement against an American member of the
Sinaloa drug cartel in Mexico. Mr. Martins stated he had never been threatened or
harmed in Brazil but he was afraid the cartel had members in Brazil. The asylum
officer found Mr. Martins credible but concluded he did not have a reasonable fear of
persecution or torture in Brazil.
Mr. Martins requested review by an IJ. The IJ reviewed the credible fear
interview and related documents and took testimony from Mr. Martins. During his
testimony before the IJ, Mr. Martins again stated cartel members threatened him
twice when he was in Mexico. The IJ also concluded Mr. Martins did not have a
2 Appellate Case: 22-9514 Document: 010110811206 Date Filed: 02/10/2023 Page: 3
reasonable fear of the possibility of torture or persecution in Brazil. The IJ wrote:
“No harm or threats in Brazil. Threats stem from Mexico. Feared harm is not on
account of a protected ground. No grounds to fear torture or persecution in Brazil.”
R. at 2. Mr. Martins then petitioned for this court to review the IJ’s determination.
DISCUSSION
Mr. Martins makes two arguments in his petition for review. First, he argues
DHS violated his due process rights by not providing him with the opportunity to
make a statement contesting the reinstatement of his 2021 removal order. Second, he
argues substantial evidence does not support the asylum officer and IJ’s negative
reasonable fear determination.
In connection with the first argument, we review legal issues de novo. See
Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005). The Immigration and
Nationality Act empowers the Attorney General to summarily reinstate orders of
removal against aliens who illegally reenter the United States:
If the Attorney General finds that an alien has reentered the United States illegally after having been removed . . . under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
8 U.S.C. § 1231(a)(5). Regulations require DHS to give an alien subject to
reinstatement of a prior removal order the opportunity to make a statement before the
agency proceeds with removal. See 8 C.F.R. § 241.8(b).
3 Appellate Case: 22-9514 Document: 010110811206 Date Filed: 02/10/2023 Page: 4
Here, the record belies Mr. Martins’s assertion DHS did not give him an
opportunity to make such a statement: the Border Patrol agent affirmatively averred
that he advised Mr. Martins of this right, but that Mr. Martins refused to sign a form
indicating his election. Mr. Martins argues the failure to check either box next to the
signature line (that he refused to sign) indicates the Border Patrol agent did not
inform him of his rights, but this inference is faulty. If Mr. Martins refused to sign
the “Acknowledgement and Response” portion of the form, it is reasonable for the
Border Patrol agent not to check a box indicating a choice Mr. Martins refused to
make. The agent nonetheless reasonably treated Mr. Martins’s refusal to decide
whether to make a statement (and concomitant refusal to sign a form memorializing
that choice) as a refusal to make a statement.
As to the second argument, this court has not determined the applicable
standard of review of a negative reasonable fear determination. But we need not
resolve the issue here because both Mr. Martins and the government contend that the
substantial-evidence standard applies.1 Under that standard, “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). To proceed beyond a reasonable fear interview, an alien must
“establish[] a reasonable possibility that he or she would be persecuted on account of
1 We also note that at least two other circuits have concluded that negative reasonable fear determinations should be reviewed for substantial evidence. See Romero v. Att’y Gen., 972 F.3d 334, 337, 340 (3d Cir. 2020); Andrade-Garcia v. Lynch, 828 F.3d 829, 833–36 (9th Cir. 2016).
4 Appellate Case: 22-9514 Document: 010110811206 Date Filed: 02/10/2023 Page: 5
his or her race, religion, nationality, membership in a particular social group or
political opinion, or a reasonable possibility that he or she would be tortured in the
country of removal.” 8 C.F.R. § 208.31(c).
The asylum officer’s finding that Mr. Martins did not make this showing, and
the IJ’s affirmance of this finding, is consistent with Mr. Martins’s testimony and
statements in the credible fear interview in which he admitted he had never suffered
harm or threats in Brazil, and that the only threats he received came when he was in
Mexico. Mr. Martins also testified he had family in Brazil—both parents and two
siblings—but he did not testify cartel members had harmed them, threatened them, or
even approached them asking for Mr. Martins’s whereabouts. Even if a reasonable
adjudicator could have found Mr. Martins’s testimony sufficient to establish a
reasonable possibility of persecution or torture in Brazil, the record does not
demonstrate “that any reasonable adjudicator would be compelled” to so find. Niang,
422 F.3d at 1196.
We also reject Mr. Martins’s argument that the no-credible-fear conclusion
was inconsistent with the asylum officer and IJ’s finding that Mr. Martins was
credible. “[E]ven if the [agency] treats an alien’s evidence as credible, the agency
need not find his evidence persuasive or sufficient to meet the burden of proof.”
Garland v. Ming Dai, 141 S. Ct. 1669, 1680 (2021). Substantial evidence supports
the conclusion that Mr. Martins’s testimony, although credible, was insufficient to
further delay the reinstatement of his prior removal order.
5 Appellate Case: 22-9514 Document: 010110811206 Date Filed: 02/10/2023 Page: 6
CONCLUSION
We deny the petition for review.
Entered for the Court
Carolyn B. McHugh Circuit Judge