Perez-Mavarez v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 31, 2025
• Docket: 24-9520
• Status: Unpublished

Opinion

Appellate Case: 24-9520 Document: 37-1 Date Filed: 03/31/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 31, 2025 _________________________________ Christopher M. Wolpert Clerk of Court RAFAEL JOSE PEREZ-MAVAREZ; ISABELA SARAY PEREZ-PEREZ,

Petitioners,

v. No. 24-9520 (Petition for Review) PAMELA J. BONDI, United States Attorney General,*

Respondent. _________________________________

ORDER AND JUDGMENT** _________________________________

Before HARTZ, KELLY, and BACHARACH, Circuit Judges. _________________________________

* On February 5, 2025, Pamela J. Bondi became Acting Attorney General of the United States. Consequently, her name has been substituted for James R. McHenry, III 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-9520 Document: 37-1 Date Filed: 03/31/2025 Page: 2

Rafael Jose Perez-Mavarez1 petitions for review of the Board of Immigration

Appeals (BIA) decision affirming immigration judge’s (IJ) denial of his applications

for relief from removal. Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we

deny his petition for review.

I. BACKGROUND

A. Underlying Facts

Petitioner is a native and citizen of Venezuela who entered the United States

without being admitted or paroled in June 2021. He was then placed in removal

proceedings, and the IJ found him removable. Seeking relief from removal,

Petitioner applied for asylum and withholding of removal.2

Before the IJ, Petitioner testified that he worked for the National Anti-Drug

Office in Venezuela between 2005 and 2007. He resigned due to pressure from the

government to politically indoctrinate local communities. After that, members of a

gang known as los Gatos de los Barrosa threatened to beat and kidnap Petitioner

numerous times because they believed he was sabotaging the government and

1 Mr. Perez-Mavarez’s minor daughter, Isabela Saray Perez-Perez, is a derivative beneficiary of his asylum application. She presents no claims or arguments distinct from his. 2 Petitioner also applied for protection under the Convention Against Torture (CAT) and the agency denied relief. His opening brief lacks arguments challenging the agency’s denial of his requests for CAT protection. Petitioner has therefore waived any argument regarding the agency’s analysis of his CAT claims. See United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011) (“It is well-settled that arguments inadequately briefed in the opening brief are waived.”) (brackets and internal quotation marks omitted). 2 Appellate Case: 24-9520 Document: 37-1 Date Filed: 03/31/2025 Page: 3

damaging the gang’s image. Los Gatos is associated with Tupamaro, a paramilitary

group with ties to the Venezuelan government. Petitioner did not report the threats to

police and fled to Ecuador.

He lived in Ecuador without incident until 2016. While living in Ecuador,

Petitioner worked for an organization doing social work in local communities. He

was asked to speak out in support of Ecuador’s president at the time, Rafael Correa.

When he declined, the organization he worked for allowed him to distance himself

from its work with the Correa government.

In July 2016, Petitioner returned to Venezuela to gather documents for his

application for permanent residency in Ecuador. Members of los Gatos beat him with

a pistol and threatened him. He sought medical treatment for his injuries and

reported the incident to police. The police provided him with some protection,

sending patrol cars by his house at night, but Petitioner does not think they

investigated the incident.

After Petitioner returned to Ecuador in August 2016, he was again asked to

speak out in support of the Correa government, and he again declined. Then, some

Correa supporters who were associated with Tupamaro threatened to kidnap and beat

Petitioner if he did not support their causes. Correa supporters also disrupted some

of the meetings Petitioner helped lead by showing up on motorcycles and throwing

rocks and tear gas. Police responded to protect Petitioner and the other meeting

attendees, but Petitioner never filed a police report in Ecuador. He received

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additional threats in 2017 and 2020 related to his perceived opposition to the Correa

government.

In 2017, Ecuador granted Petitioner temporary residency, and in November

2020, Petitioner received permanent residency in Ecuador. He could renew his status

after ten years and was free to live, work, and drive there. He was also permitted to

travel outside the country for up to three months at a time.

B. Legal Standards

To receive asylum, an applicant must be a refugee. 8 U.S.C. § 1158(b)(1)(A).

A refugee is a person who is unable or unwilling to return to—and unable or

unwilling to avail himself of the protection of—his country because of past

persecution or a well-founded fear of persecution on account of any of five protected

grounds: race, religion, nationality, membership in a particular social group, or

political opinion. Id. § 1101(a)(42)(A); Rodas-Orellana v. Holder, 780 F.3d 982,

986 (10th Cir. 2015).

“Persecution is the infliction of suffering or harm upon those who differ [on

protected grounds] in a way regarded as offensive and must entail more than just

restrictions or threats to life and liberty.” Ritonga v. Holder, 633 F.3d 971, 975

(10th Cir. 2011) (internal quotation marks omitted).

To qualify for withholding of removal, an applicant must show “a clear

probability of persecution on account of a protected ground.” Rodas-Orellana,

780 F.3d at 987 (internal quotation marks omitted). This burden of proof is higher

than the burden for asylum. Id. at 986.

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C. Agency Proceedings

The IJ denied relief for the claims based on Petitioner’s ties to Venezuela. The

IJ found that Petitioner could not receive asylum from Venezuela because he had

firmly resettled in Ecuador. In support, the IJ noted that Ecuador granted Petitioner

temporary residency in 2017 and permanent residency in 2020. The IJ determined

Petitioner had not demonstrated an exception to the firm-resettlement bar. As for

Petitioner’s withholding claim, the IJ found the harm he endured in Venezuela did

not rise to the level of persecution.

The IJ further denied relief on the claims related to Ecuador. For the asylum

claim, the IJ determined the harm Petitioner endured in Ecuador did not rise to the

level of persecution and he failed to demonstrate a well-founded fear of future

persecution because the political party he opposed was no longer in power and

because individuals similarly situated to Petitioner remained in Ecuador unharmed.

Having found Petitioner had failed to meet his burden for asylum, the IJ concluded

that he necessarily failed to meet the higher burden for withholding of removal.

The BIA upheld the IJ’s decision. He timely petitioned this court for review.

II. DISCUSSION

A. Standards of Review

Where, as here, a single BIA member issues a brief order affirming an IJ’s

decision, we review both the BIA order and any parts of the IJ’s decision it relied on.

Dallakoti v. Holder, 619 F.3d 1264, 1267 (10th Cir. 2010). We review legal

conclusions de novo and findings of fact for substantial evidence. Id. Under the

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substantial-evidence standard, “the administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B).

B. Asylum

1. Venezuela

Regarding his application for asylum from Venezuela, Petitioner argues the IJ

and the BIA erred by applying the 2020 version of 8 C.F.R. § 1208.15 (the

firm-resettlement regulation) because the regulation was updated on

January 11, 2021. However, the government correctly objects that Petitioner’s claim

has not been exhausted because he did not raise it before the BIA. See Miguel-Pena

v. Garland, 94 F.4th 1145, 1155 (10th Cir.), cert. denied, ___ S. Ct. ___, 2024 WL

4743083 (U.S. Nov. 12, 2024) (No. 24-12) (explaining “that issue exhaustion is a

mandatory claim-processing rule that should be enforced where a party timely and

properly objects.”) (brackets, ellipsis, and internal quotation marks omitted).

Petitioner also argues the agency erred in finding him subject to the

firm-resettlement bar. An applicant is ineligible for asylum “if he was firmly

resettled in another country prior to arriving in the United States.” Matumona

v. Barr, 945 F.3d 1294, 1300–01 (10th Cir. 2019) (internal quotation marks omitted).

Firm resettlement means that the applicant lived in another country that offered him

“permanent resident status, citizenship, or some other type of permanent

resettlement.” Id. at 1301 (internal quotation marks omitted). If the government

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presents evidence that the applicant firmly resettled, he bears the burden to show by a

preponderance of the evidence that he did not. Id.

An applicant is not considered firmly resettled if, as relevant here, he

establishes “[t]hat the conditions of his or her residence in that country were so

substantially and consciously restricted by the authority of the country of refuge that

he or she was not in fact resettled.” 8 C.F.R. § 1208.15(b). In determining whether

an applicant firmly resettled, the IJ:

shall consider the conditions under which other residents of the country live; the type of housing, whether permanent or temporary, made available to the refugee; the types and extent of employment available to the refugee; and the extent to which the refugee received permission to hold property and to enjoy other rights and privileges, such as travel documentation that includes a right of entry or reentry, education, public relief, or naturalization, ordinarily available to others resident in the country.

Id.

Here, the IJ reasoned that Petitioner: (1) was granted a renewable legal status

that permitted him to reside and work in Ecuador, (2) found work and housing in

Ecuador, (3) was able to travel freely to and from Ecuador, and (4) “confirmed that

he held all the rights and privileges associated with being an Ecuadorian resident.”

R. vol. I at 190. The IJ found that although Petitioner was threatened, he did not

demonstrate that his residence in Ecuador was substantially and consciously

restricted by authorities because his own testimony showed that when Correa

supporters disrupted his work meetings, Ecuadorian police came to protect Petitioner

and other meeting attendees. The BIA agreed with the IJ’s reasoning and upheld the

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determination that the problems Petitioner faced in Ecuador did not exempt him from

the firm-resettlement bar. Substantial evidence supports the agency’s determination.

2. Ecuador

The IJ denied asylum, reasoning that the unfulfilled threats and sabotaged

meetings in Ecuador did not cumulatively rise to the level of persecution; the BIA

agreed. On appeal, Petitioner argues Correa supporters acted upon the threats he

received by sabotaging the meetings he helped lead.3 However, the agency

determined there was insufficient evidence that the dissidents had targeted Petitioner

specifically because he was never harmed.

“Persecution is an extreme concept that does not include every sort of

treatment our society regards as offensive.” Zhi Wei Pang v. Holder, 665 F.3d 1226,

1233 (10th Cir. 2012) (brackets and internal quotation marks omitted). After

carefully examining the record, we cannot say that it compels the conclusion that

Petitioner was persecuted in Ecuador. See Matumona, 945 F.3d at 1305 (reiterating

that “only rarely do threats constitute actual persecution”) (internal quotation marks

omitted); Tulengkey v. Gonzales, 425 F.3d 1277, 1280–81 (10th Cir. 2005)

(upholding no-persecution finding where noncitizen was robbed, fondled, suffered a

3 Petitioner also asserts that between 2016 and 2020, Correa supporters impeded the process for him to obtain permanent residency in Ecuador. The government argues Petitioner failed to exhaust this claim because he did not raise it before the BIA. We agree with the government and therefore decline to consider this unexhausted issue. See Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) (holding that a noncitizen “must present the same specific legal theory to the BIA before he or she may advance it in court”), abrogated on other grounds by Santos-Zacaria v. Garland, 598 U.S. 411 (2023). 8 Appellate Case: 24-9520 Document: 37-1 Date Filed: 03/31/2025 Page: 9

minor head injury, and later witnessed a mob beat up other guests at a relative’s

wedding).

C. Withholding of Removal

In denying withholding of removal, the IJ reasoned that the threats and single

beating Petitioner received in Venezuela did not rise to the level of persecution. The

BIA agreed and cited cases from this court upholding a finding of no persecution in

circumstances similar to this case. See Matumona, 945 F.3d at 1305; Tulengkey, 425

F.3d at 1280–81. The evidence here does not compel a finding of persecution.

See Xue v. Lynch, 846 F.3d 1099, 1106–07 (10th Cir. 2017) (upholding finding that

noncitizen’s assault and four-day detention did not constitute persecution); Sidabutar

v. Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007) (upholding no-persecution finding

where noncitizen underwent extortion and multiple beatings resulting in injuries),

abrogated on other grounds by Santos-Zacaria, 598 U.S. at 413.

Petitioner’s failure to satisfy the burden of proof for asylum necessarily

precludes him from meeting the higher standard for withholding of removal.

Rodas-Orellana, 780 F.3d at 987.

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III. CONCLUSION

We deny the petition for review.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge