Ramirez-Tejada v. Barr

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 24, 2021
• Docket: 20-9576
• Status: Unpublished

Opinion

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

FOR THE TENTH CIRCUIT March 24, 2021 _________________________________ Christopher M. Wolpert Clerk of Court GEOVANNI RAMBERTO RAMIREZ- TEJADA,

Petitioner,

v. No. 20-9576 (Petition for Review) MERRICK GARLAND, Attorney General of the United States,

Respondent. _________________________________

ORDER AND JUDGMENT** _________________________________

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

Geovanni Ramberto Ramirez-Tejada (“Petitioner”) petitions for review from

the Board of Immigration Appeals’s (“BIA’s”) denial of asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). Petitioner is not

 On March 11, 2021, Merrick 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 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. entitled to asylum or withholding of removal because he has not shown a nexus

between his membership in a particular social group and his fear of persecution.

Further, the BIA’s denial of CAT relief is supported by substantial evidence.

Accordingly, exercising jurisdiction under 8 U.S.C. § 1252, we DENY the petition

for review.

I. Background

Petitioner is a native and citizen of El Salvador. In 2014, members of the

MS-13 gang kidnapped, assaulted, and ransomed Petitioner in El Salvador. After his

release, Petitioner spoke with a Salvadoran police officer. The Salvadoran police

organized a sting operation with Petitioner’s assistance. The sting operation led to

the arrest of one of the gang members, whom Petitioner identified as one of his

kidnappers. After the sting operation, MS-13 gang members sought out and

threatened Petitioner, calling him a “rat” and threatening to “torture and dismember

him.” AR at 57. Petitioner moved several times within El Salvador but continued to

receive threats from MS-13 gang members. Petitioner also informed the Salvadoran

police about these threats but was told that the police lacked the resources to follow

up on his case; the police also recommended that Petitioner leave El Salvador.

Petitioner fled El Salvador and entered the United States without valid entry

documents.

Petitioner received a Notice to Appear in removal proceedings. Petitioner

admitted the factual allegations and conceded the charge contained in the Notice to

Appear. He also applied for asylum, withholding of removal, and protection under

2 CAT. Following a hearing, an Immigration Judge (“IJ”) denied Petitioner’s

application for relief and ordered Petitioner removed to El Salvador. Petitioner

timely appealed to the BIA. The BIA affirmed the IJ’s decision. Petitioner then filed

a timely petition for review in this court.

Petitioner presents three issues in his petition for review: (1) whether the BIA

erred in denying asylum and withholding of removal by finding that Petitioner’s

proposed particular social group lacked particularity and social visibility; (2) whether

the BIA erred in denying asylum and withholding of removal by finding that

Petitioner failed to establish a nexus between his membership in a particular social

group and his fear of persecution; and (3) whether the BIA erred in denying CAT

relief by finding that the Salvadoran government would not acquiesce to Petitioner’s

torture. See Pet’r’s Br. at 2–3.

II. Asylum and Withholding of Removal

“On an asylum claim, we review the BIA’s findings of fact under a

substantial-evidence standard.” Rodas-Orellana v. Holder, 780 F.3d 982, 990 (10th

Cir. 2015) (internal quotations and citations omitted). “We review the BIA’s legal

decisions de novo, but we defer to the BIA’s interpretation of ambiguous provisions

of the [Immigration and Naturalization Act], and must accept the BIA’s interpretation

if it is reasonable.” Id. (internal quotations and citations omitted).

An alien is eligible for asylum if he or she is a “refugee” within the meaning of

the Immigration and Naturalization Act. See 8 U.S.C. § 1158(b)(1)(A). An alien

may qualify as a “refugee” if he or she is unable or unwilling to return to the country

3 of his or her nationality because of “persecution or a well-founded fear of persecution

on account of . . . membership in a particular social group.” 8 U.S.C. § 1101(a)(42).

A cognizable “particular social group” must have both “particularity” and “social

visibility,” also referred to as “social distinction.” See Rivera-Barrientos v. Holder,

666 F.3d 641, 648 (10th Cir. 2012). “[T]he victim’s protected characteristic must be

central to the persecutor’s decision to act against the victim.” Id. at 646.

Petitioner asserts that he belongs to a particular social group described as

“those who actively oppose gangs in El Salvador by agreeing to be participants in the

prosecution of gang members.” AR at 3. The BIA held that Petitioner’s proposed

particular social group “lack[ed] both particularity and social distinction.” AR at 4.

The BIA also held that Petitioner failed to establish “a nexus between any harm he

may face from gangs in El Salvador and membership in his proposed social group.”

Id.

We decline to decide whether Petitioner established a cognizable particular

social group. Even assuming the BIA erred in holding that Petitioner’s proposed

particular social group lacked particularity and social distinction, the BIA did not err

in holding that Petitioner failed to establish the requisite nexus between his

membership and fear of persecution. As the BIA concluded, Petitioner “has not

shown he was or would be harmed on account of his membership in a social group,

but rather that ‘he was targeted by criminals because he posed a threat to their

interest in avoiding prosecution.’” AR at 4 (quoting Rodriguez-Leiva v. Holder, 607

F. App’x 807, 810–11 (10th Cir. 2015) (unpublished)).

4 Petitioner’s arguments to the contrary fall short. Petitioner asserts that he

“submitted clear evidence that, after he provided information to law enforcement

regarding the MS-13 gang member, he relocated out of fear for his life but was still

identified and threatened by the MS-13 gang . . . .” Pet’r’s Br. at 12. He also asserts

that MS-13 gang members called him a “rat,” and that he “knows that he is dealing

with the MS-13 gang.” Id. at 13. These facts do not establish the requisite nexus; to

the contrary, they support the BIA’s conclusion that Petitioner was singled out for

reprisal.

Our decision in Rivera-Barrientos illustrates the flaw in Petitioner’s argument.

As we explained in Rivera-Barrientos, “we must distinguish between persecution

based on social status, and an individualized reaction to the applicant based on [his

or] her threat to the gang’s interests.” 666 F.3d at 653. In that case, we relied upon

two contrasting examples provided by the BIA’s decision in Matter of C-A-, 23 I. &

N. Dec. 951 (BIA 2006):

Were a situation to develop in which former police officers were targeted for persecution because of the fact of having served as police officers, a former police officer could conceivably demonstrate persecution based upon membership in a particular social group of former police officers. On the other hand, if a former police officer were singled out for reprisal, not because of his status as a former police officer, but because of his role in disrupting particular criminal activity, he would not be considered, without more, to have been targeted as a member of a particular social group.

Rivera-Barrientos, 666 F.3d at 653 (quoting Matter of C-A-, 23 I. & N. Dec. at

958–59).

5 Here, the fact that Petitioner was threatened by the same gang that he helped

prosecute supports the BIA’s conclusion that Petitioner was targeted because of his

role in the sting operation, i.e., “because of his role in disrupting particular criminal

activity.” Id. The fact that Petitioner was called a “rat” also suggests that he was

targeted because of his involvement in the sting operation—and not some general

opposition to gang activity. Similarly, the fact that Petitioner identifies his

persecutors as MS-13—and not some other gang he has no particular history with—

indicates that the threats are retaliatory. In other words, Petitioner was not targeted

because of a general opposition to “gangs in El Salvador” or because he was

generally a “participant[] in the prosecution of gang members.” AR at 3. Rather,

Petitioner was singled out for reprisal by MS-13 because of specific actions he took

against MS-13, including his assistance in prosecuting one of MS-13’s members.1

Because Petitioner is not entitled to asylum, he is also not entitled to

withholding of removal. See Rodas-Orellana, 780 F.3d at 987 (“Failure to meet the

burden of proof for an asylum claim necessarily forecloses meeting the burden for a

withholding claim.”); 8 U.S.C. § 1231(b)(3)(A) (threat to an alien’s life or freedom

because of the alien’s “membership in a particular social group” may warrant

withholding of removal).

1 Petitioner also asserts that the Salvadoran police will not protect him from MS-13. Pet’r’s Br. at 13. We do not doubt Petitioner’s fear of future persecution. Petitioner has not, however, shown the requisite nexus between that fear and his membership in a particular social group. 6 III. CAT Relief

We review a CAT order for substantial evidence. Nasrallah v. Barr, 140 S.

Ct. 1683, 1688 (2020). Under the substantial evidence standard, “[t]he agency’s

findings of fact are conclusive unless any reasonable adjudicator would be compelled

to conclude to the contrary.” Id. at 1692 (internal quotations omitted). To warrant

relief under CAT, an applicant must show it is more likely than not he or she will be

subject to torture in his or her country by, at the instigation of, or with the

acquiescence of a public official or one acting in an official capacity. 8 C.F.R.

§§ 1208.16–18. Acquiescence does not require “actual knowledge, or willful

acceptance,” but rather may be proven by “willful blindness.” Karki v. Holder, 715

F.3d 792, 806 (10th Cir. 2013).

The BIA acknowledged that the Salvadoran police’s refusal to protect

Petitioner demonstrated the Salvadoran government’s “difficulty combatting gang

violence in [El Salvador].” AR at 5. The BIA concluded, however, that “the record

shows that the [Salvadoran] government nonetheless has attempted to assist and

protect the respondent with the resources available.” Id. The BIA’s conclusions are

supported by substantial evidence. Although the record supports a credible fear of

torture, the record does not show willful blindness by the Salvadoran government.

Indeed, the record shows that the Salvadoran police worked with Petitioner to arrest

one of his kidnappers. Cf. Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006)

(affirming BIA’s denial of CAT relief where the government provided “information

and financial assistance to prevent torture”). Thus, we affirm the BIA’s denial of

7 CAT relief because a reasonable adjudicator would not “be compelled to conclude to

the contrary.” Nasrallah, 140 S. Ct. at 1692.

Entered for the Court

Mary Beck Briscoe Circuit Judge