Rosas-Garcia v. Bondi

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 6, 2025
• Docket: 24-9567
• Status: Unpublished

Opinion

Appellate Case: 24-9567 Document: 25-1 Date Filed: 10/06/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 6, 2025 _________________________________ Christopher M. Wolpert Clerk of Court DEISY ERNESTINA ROSAS-GARCIA; RAFAEL PICO-GARCIA; JOHN DOE, a minor,

Petitioners,

v. No. 24-9567 (Petition for Review) PAMELA J. BONDI, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, MORITZ, and ROSSMAN, Circuit Judges. _________________________________

Deisy Ernestina Rosas-Garcia, along with her husband Rafael Pico-Garcia and

their minor child, seeks review of a Board of Immigration Appeals (BIA) decision

affirming an Immigration Judge’s (IJ) order denying asylum and ordering removal. 1

Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition.

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 The BIA also affirmed the IJ’s denial of Ms. Rosas-Garcia’s applications for restriction on removal and relief under the United Nations Convention Against Appellate Case: 24-9567 Document: 25-1 Date Filed: 10/06/2025 Page: 2

I.

A.

Petitioners entered the United States without inspection in November 2022.

They conceded removability in the ensuing removal proceeding and sought asylum

under the Immigration and Nationality Act (INA) based on persecution in their native

Colombia. On April 24, 2024, Mr. Pico-Garcia, appearing pro se, testified on behalf

of the petitioners at a hearing before the IJ. According to his testimony, the family

fled Colombia because of extortionist threats by the BACRIM, which is a Spanish

acronym for “bandas criminales”—which, in English, means criminal gangs.

Mr. Pico-Garcia told the IJ that their problems began when they were living

with his mother-in-law above a restaurant they owned in Lebrija in northeastern

Colombia. The restaurant was doing well when, in 2020, the local BACRIM started

demanding “vaccines” or payments in exchange for the gang’s protection of the

restaurant. R. vol. 1 at 100. Mr. Pico-Garcia explained the restaurant was vulnerable

due to general lawlessness in the area. Initially, the family made the weekly

payments demanded by the BACRIM. These payments started at between 200,000

and 250,000 pesos but increased over time. By November 2021, the BACRIM was

demanding one million pesos per week. Mr. Pico-Garcia’s mother-in-law refused to

pay.

Torture, which carry no derivative beneficiaries. She does not seek review of those determinations. 2 Appellate Case: 24-9567 Document: 25-1 Date Filed: 10/06/2025 Page: 3

At first, the BACRIM responded by withdrawing their protection, saying they

“would not be responsible for any damages” to the restaurant. Id. at 107. The family

closed the restaurant for a few days, hoping the gang would forget about them. But

when the restaurant reopened, the BACRIM returned. They threatened Mr. Pico-

Garcia’s son and nephew: “they said that if we did not cooperate with what they

were doing that the ones to pay would be the children and that would be my son and

my sister-in-law’s son.” Id. at 108. This threat prompted Mr. Pico-Garcia to move

with his wife and son to Bucaramanga, a town about 45 minutes away. He testified

that the BACRIM did not contact him or his immediate family after they moved to

Bucaramanga. Nonetheless, because the BACRIM continued to threaten them

indirectly through his mother-in-law, the family fled to the United States.

When Mr. Pico-Garcia moved with his family to Bucaramanga, his

mother-in-law stayed behind and continued to operate the restaurant a few days a

week. Due to construction in the area, business at the restaurant steadily declined,

but the BACRIM continued their demands and threats. BACRIM members told

Mr. Pico-Garcia’s mother-in-law they would harm her children and grandchildren if

anyone reported their activities to the police. Eventually, the mother-in-law closed

the restaurant and moved to Medellin where she had been living for a few months at

the time of the April 2024 hearing. Mr. Pico-Garcia testified that she had not been

bothered by the BACRIM since moving to Medellin.

3 Appellate Case: 24-9567 Document: 25-1 Date Filed: 10/06/2025 Page: 4

B.

On April 29, 2024, the IJ issued a decision denying asylum and ordering

petitioners’ deportation to Colombia. The IJ found Mr. Pico-Garcia to be a credible

witness but concluded the threats made against the family, “[w]hile no doubt

frightening, . . . [fell] below the level of persecution.” Id. at 42 (citing Vatulev v.

Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003)). The IJ also considered whether the

petitioners could nonetheless establish a well-founded fear of future persecution but

found the nexus requirement to be lacking: 2 “The harm that the respondents fear in

Colombia is violence related to general criminal activity, not violence that would be

perpetrated against them on account of a protected ground.” Id. And “generalized

criminal violence is not alone a basis for asylum.” Id. at 43. The IJ went on to

conclude that petitioners, having failed to report the threats to local police, could not

show the Colombian government was unable or unwilling to protect them, as required

by the INA for an asylum claim. Finally, the IJ concluded asylum was unavailable

because the record established the petitioners could safely relocate within Colombia.

C.

In a single-member decision issued under 8 C.F.R. § 1003.1(e)(5), the BIA

affirmed the IJ’s asylum decision on three grounds. First, it agreed the threats made

2 An asylum applicant must establish a “nexus” between the alleged persecution and one of the following protected grounds: race, religion, nationality, membership in a particular social group, or political opinion. Miguel-Pena v. Garland, 94 F.4th 1145, 1159 (10th Cir. 2024), cert. denied, 145 S. Ct. 545 (2024); see 8 U.S.C. § 1101(a)(42) (defining “refugee”).

4 Appellate Case: 24-9567 Document: 25-1 Date Filed: 10/06/2025 Page: 5

against the petitioners did not rise to the level of persecution under this court’s

caselaw. Second, it upheld the IJ’s finding that petitioners failed to show the

government was unable or unwilling to control the BACRIM members who

threatened them. The BIA “acknowledge[d] that the respondent’s failure to report is

not necessarily fatal to her claim if she can otherwise demonstrate that filing a police

report would have been futile or dangerous.” Id. at 5 (internal quotation marks

omitted). But it concluded Mr. Pico-Garcia’s “generalized testimony concerning [the

BACRIM’s] involvement with the Colombian government and police complicity with

the group, without more, [was] insufficient” to make that showing. Id. (citing Aviles-

Gonzalez v. Garland, No. 23-9547, 2024 WL 3066987, at *2-3 (10th Cir.

June 20, 2024)). Finally, the BIA upheld the IJ’s finding that the petitioners could

safely relocate within Colombia: “As the Immigration Judge found, the respondent

was able to relocate to Bucaramanga and live there for 1 year without being harmed.”

Id. Because these issues were dispositive to the asylum claim, the BIA did not

consider petitioner’s challenge to the IJ’s nexus determination.

This timely petition followed.

II.

Whether a noncitizen has demonstrated persecution in her home country–the

overarching issue here—is a question of fact that we review for substantial evidence.

Vicente-Elias v. Mukasey, 532 F.3d 1086, 1091 (10th Cir. 2008). Under this highly

deferential standard, “administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.” Singh v.

5 Appellate Case: 24-9567 Document: 25-1 Date Filed: 10/06/2025 Page: 6

Bondi, 130 F.4th 848, 860 (10th Cir. 2025) (internal quotation marks omitted). The

scope of our review is “limited to ‘the administrative record on which the order of

removal is based.’” Singh, 130 F.4th at 859 (quoting 8 U.S.C. § 1252(b)(4)(A)).

“Our duty is to guarantee that factual determinations are supported by reasonable,

substantial and probative evidence considering the record as a whole.” Id. at 860

(internal quotation marks and brackets omitted). “We review the BIA’s legal

determinations de novo.” Dallakoti v. Holder, 619 F.3d 1264, 1267 (10th Cir. 2010).

Where, as here, a single BIA member provides a reasoned decision in a brief

order under 8 C.F.R. § 1003.1(e)(5), we limit the scope of our review to the grounds

cited therein. Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). Generally, “we

will not affirm on grounds raised in the IJ decision unless they are relied upon by the

BIA in its affirmance.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.

2006). But we may consult the IJ’s more complete explanation of these issues to

better understand the BIA’s discussion. See id.

To qualify for asylum, petitioners bear the burden of establishing they are

refugees under the INA. Matumona v. Barr, 945 F.3d 1294, 1300 (10th Cir. 2019).

“A refugee is a person who is unable or unwilling to return to his country of

nationality, and unable or unwilling to avail himself of that country’s protection,

because of persecution or a well-founded fear of persecution on account of any of

five protected grounds.” Singh, 130 F.4th at 857-58 (internal quotation marks

omitted); see 8 U.S.C. § 1101(a)(42). An asylum applicant who establishes past

6 Appellate Case: 24-9567 Document: 25-1 Date Filed: 10/06/2025 Page: 7

persecution is entitled to a “rebuttable presumption of a well-founded fear of future

persecution.” Singh, 130 F.4th at 858. An applicant who fails to show past

persecution may still qualify for asylum based on a well-founded fear of future

persecution if certain conditions are met. Tulengkey v. Gonzales, 425 F.3d 1277,

1281 (10th Cir. 2005).

Petitioners raise three arguments on appeal. First, they contend the BIA erred

in holding the threats by the BACRIM did not rise to level of persecution. Second,

they challenge the agency’s evidentiary finding regarding their claim that the

Colombian government was unable or unwilling to protect them. Third, they argue

the BIA erred in concluding they could safely relocate within Colombia. Our

determination regarding any one of these issues is dispositive, so we need not address

all three.

1. Substantial evidence supports the BIA’s determination that petitioners failed to establish the Colombian government was unable or unwilling to protect them.

Petitioner’s claim is based on alleged “private persecution,” that is persecution

not by the government but a nongovernmental group, in this case the BACRIM. See

Singh, 130 F.4th at 858 (defining private persecution). Accordingly, petitioners had

to show the Colombian government was “unable or unwilling to control” the

BACRIM. Id. at 859 (internal quotation marks omitted); see also Niang v. Gonzales,

422 F.3d 1187, 1194 (10th Cir. 2005) (“The persecution must have been imposed by

the government or by groups which the government is unwilling or unable to

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control.” (internal quotation marks omitted)). Whether the government failed an

asylum applicant in this regard is a “‘fact-specific inquiry based on consideration of

all evidence.’” Singh, 130 F.4th at 860 (quoting In re C-G-T-, 28 I. & N. Dec. 740,

740 (BIA 2023)). Typically, such evidence falls into two categories—country

conditions reports and/or evidence of the government’s specific response to the

alleged persecution. See id. at 860. The record in this case contains neither.

Petitioners submitted no documentary evidence describing country conditions in

Colombia. And Mr. Pico-Garcia testified they did not report their ordeal to the police

out of fear of retaliation and a belief that doing so would have been futile. 3

Failure to report persecution to the authorities is not necessarily fatal to an

asylum claim. Singh, 130 F.4th at 862. But under those circumstances, the petitioner

must show that reporting the persecution to authorities “would have been futile or

3 JUDGE TO MR. PICO-GARCIA: And I understand that these criminals were threatening consequences if you reported to the police but did you ever report to the police or your partner, your wife, ever report to the police?

MR. PICO-GARCIA TO JUDGE: No, no. Honestly, no, ma’am. We were afraid.

JUDGE TO MR. PICO-GARCIA: What did you think would happen if you reported to the police?

MR. PICO-GARCIA TO JUDGE: That is, as I’ve said, unfortunately, in my country we see this a lot. There is too much corruption. These people work for the government. They ask for vaccines but then they also pay vaccines to the police so they let them work. So obviously, any information about a report against them, they know.

R. vol. 1 at 114. 8 Appellate Case: 24-9567 Document: 25-1 Date Filed: 10/06/2025 Page: 9

dangerous.” Id. Petitioners argue that Mr. Pico-Garcia’s testimony was enough to

make such a showing and that the agency erred in concluding otherwise. “To prevail

on [this] factual challenge to the Board’s unable-or-unwilling ruling, [petitioners]

must convince us that the administrative record compels any reasonable adjudicator

to find that [the Colombian government] was either unable or unwilling to protect”

them. Id. at 863 (internal quotation marks omitted). We are not so convinced. The

BIA has long acknowledged there are circumstances in which it can be futile

or dangerous for someone being persecuted to seek police protection. See In re

C-G-T-, 28 I. & N. Dec. at 743 (collecting cases). It did not ignore that line of cases

here but concluded Mr. Pico-Garcia’s “generalized testimony” about alleged police

corruption was not enough to demonstrate that it would have been futile or dangerous

to go to the police in this case. R. vol. 1 at 5. Based on the record before us, we

cannot say any reasonable adjudicator would be compelled to conclude the contrary.

“[A] failure to report mistreatment—even if based on the petitioner’s

subjective belief that authorities are corrupt—is not, without more, sufficient to

show” the government is unable or unwilling to control the alleged persecutors.

Morales-Morales v. Sessions, 857 F.3d 130, 135 (1st Cir. 2017); see also Singh,

130 F.4th at 864, n.16 (rejecting petitioner’s police-complicity argument because it

was based solely on his “subjective belief” that the police would not protect him);

In re C-G-T-, 28 I. & N. Dec. at 744 (“A mere ‘subjective belief’ that reporting

would be futile is not sufficient to establish that a government is unable or unwilling

to provide protection.”). To prevail on such a claim, petitioners generally must

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provide specific examples of police misconduct or failures, justifying their subjective

belief that making a report would have been futile or dangerous. See, e.g., Rosales

Justo v. Sessions, 895 F.3d 154, 165 (1st Cir. 2018) (overruling BIA’s reversal of IJ’s

grant of asylum in failure-to-report case where IJ’s decision was supported by first-

hand testimony of petitioner and his wife, as well as “significant documentary

evidence . . . showing police corruption and police complicity in organized crime”);

Pan v. Holder, 777 F.3d 540, 544-45 (2d Cir. 2015) (granting petition for review in

failure-to-report case where IJ ignored corroborating witness testimony and State

Department reports showing police corruption).

The only evidence of police corruption here was Mr. Pico-Garcia’s testimony

asserting his belief that the BACRIM bribe the police. See supra. n.2. But he gave

no specific examples of such misconduct. Nor did he describe any instance in which

the police failed to investigate reports or take necessary action against the BACRIM.

Recall, the record contains no independent reports describing law enforcement

conditions in Colombia. In sum, this is not a record that would compel any

reasonable adjudicator to conclude the Colombian government was unable or

unwilling to protect petitioners, as required to reverse the BIA on this issue. Singh,

130 F.4th at 863.

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2. Petitioners do not adequately challenge the BIA’s determination about future persecution.

Failure to establish past persecution does not necessarily mean petitioners

cannot show a well-founded fear of future persecution. Tulengkey, 425 F.3d at 1281.

In addition to being subjectively genuine, such a fear must be “objectively

reasonable.” Id. And the regulations prohibit a finding of reasonableness “if the

applicant can avoid persecution by relocating to another part of the country and

it would be reasonable to expect her to do so.” Ritonga v. Holder, 633 F.3d 971,

976-77 (10th Cir. 2011) (citing 8 C.F.R. § 1208.13(b)(2)(ii), (b)(3)). The BIA relied

on this provision in rejecting petitioners’ future-persecution claim, observing

petitioners lived safely in Bucaramanga for a year before leaving Colombia, and the

grandmother and sister-in-law were still living safely in Colombia.

Petitioners argue this finding was based on the BIA’s erroneous conclusion

that they failed to establish past persecution. They contend that if we overturn the

BIA’s past persecution finding, then we “must also find that the persecution

continued when they relocated internally . . . because BACRIM continued to

threaten” them. Op. Br. at 10. Beyond this, petitioners do not challenge the

BIA’s finding that they could safely relocate, including its observation that the

mother-in-law, who was the direct recipient of the BACRIM’s threats, continues to

reside safely in Colombia. We have affirmed the BIA’s past persecution

determination for the reasons explained above. Accordingly, petitioners’ argument

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regarding future persecution, which depends entirely on their claim that the past

persecution finding was erroneous, also fails. Morales-Morales, 857 F.3d at 136.

III.

Because petitioners have provided no basis for reversing the BIA’s denial of

asylum, the petition for review is denied.

Entered for the Court

Veronica S. Rossman Circuit Judge