Vidana Vidana v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 14, 2022
• Docket: 20-9614
• Status: Unpublished

Opinion

Appellate Case: 20-9614 Document: 010110710905 Date Filed: 07/14/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 14, 2022 _________________________________ Christopher M. Wolpert Clerk of Court MERCEDES VIDANA VIDANA,

Petitioner,

v. No. 20-9614 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

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

Petitioner Mercedes Vidana Vidana filed applications for asylum, restriction

on removal,1 and protection under the Convention Against Torture (CAT). An

Immigration Judge (IJ) denied relief, and the Board of Immigration Appeals (BIA)

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Restriction on removal used to be called “withholding of removal.” Neri-Garcia v. Holder, 696 F.3d 1003, 1006 n.1 (10th Cir. 2012) (internal quotation marks omitted). Appellate Case: 20-9614 Document: 010110710905 Date Filed: 07/14/2022 Page: 2

dismissed her appeal of the IJ’s order. She now seeks review of the BIA’s order.

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

BACKGROUND

Petitioner first entered the United States illegally in 1999, without inspection.

About twenty years later, she returned to Mexico with her United States citizen

husband for a consular interview based on a visa application he had filed on her

behalf. At the interview, she admitted she and her husband had paid a smuggler for

her and her son to cross into the United States. As a result, the officer told her she

would need to obtain a waiver of inadmissibility. After the interview, Petitioner

spoke to a person who said he was an attorney associated with the hotel in Juarez,

Mexico, where she and her husband were staying. They gave him a $10,000 fee and

documentation he said he needed to file the waiver application.

Petitioner’s husband returned to the United States, and she went to Vera Cruz,

Mexico to visit her mother. While there, cartel members who had previously

threatened to kill her if she did not pay $50,000 ransom for her son saw her arrive

and left a note demanding the money. She went back to the hotel in Juarez to wait

for the waiver. The cartel returned to the mother’s house twice to look for Petitioner.

Petitioner did not report these events to Mexican law enforcement.

When Petitioner asked hotel representatives for a receipt for the waiver

application, she learned that the hotel was associated with a cartel (a different cartel

than the one that attempted to extort her in Vera Cruz), that no waiver application had

been filed, and that she had to pay the cartel $1500 per month. Petitioner reported

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these incidents to police. An officer said he would prepare a line-up for her to

identify the perpetrators, but questioned whether she wanted to make a report against

the cartel, explaining that the police could “not guarantee[]” her safety because

“these people are out of control.” Admin. R., vol. I at 165. The officer advised her

that “another option [was to] just flee” because “these people [are] going to end up

killing you.” Id. She “tore up the report.” Id. at 166.

Petitioner returned to the hotel and worked to pay the $1500 monthly

extortion. She complied with the cartel’s demands because she was afraid that if she

did not cooperate it would go after her family. After several months, the power went

off in her room. She thought the cartel was looking for her, so she hid under the bed.

Two men, one of whom she recognized as the man who took her $10,000 for the

waiver application, came in the room but left after remarking that she was not there.

Petitioner fled to Tijuana, where her aunt lived. She could not remember her

aunt’s address, so she went to a hotel. A man at the hotel said he knew she was not

from there and told her to leave because the hotel was run by the cartel. She went to

a nearby restaurant where another man sat next to her and “said, I need you to follow

me. It’s your choice. If you want to do it the hard way or the easy way.” Id. at 171.

The man took her to a store where cartel members told her they were going to

use her as a prostitute across the border. They took her picture and prepared

documents for her to use to cross the border. One of them “took out a weapon,” and

they threatened to kill her if she resisted. Id. at 172. Two men eventually drove her

to the border and directed her to a tunnel where they said she would find the

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immigration officials they had “paid off.” Id. at 172-73. She ran and the men

followed her. When she approached border officials and gave them the passport

prepared by the cartel, they said she was not the person on the passport and

handcuffed her. Once in another room, Petitioner gave the officers information about

her true identity and told them she had been kidnapped. She recognized one of the

United States Border Patrol agents in the room as “one of the kidnappers.” Id. at

175. She told the officers the men who took her to the border were “trafficking

people,” “making women prostitute themselves,” and “killing women.” Id. The man

she recognized as one of the kidnappers told her to “shut up” and accused her of

being a criminal. Id. at 175-76.

Notwithstanding the kidnapper’s accusation, an asylum officer interviewed her

and found she had a credible fear of returning to Mexico. The Department of

Homeland Security placed her in removal proceedings, charging her with

removability as an individual not in possession of valid travel or entry documents and

as an individual who falsely represented herself as a United States citizen for the

purpose of obtaining an immigration benefit. After she admitted removability, the IJ

sustained the first charge and held the second in abeyance. Petitioner then filed her

applications for asylum, restriction on removal, and CAT protection. She alleged she

was afraid that if she returns to Mexico, she will be targeted and eventually killed by

the men who threatened her previously, and she asserted that Mexican police cannot

protect her and are largely corrupt.

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The IJ found Petitioner credible but concluded she did not qualify for asylum,

restriction on removal, or CAT relief. The BIA affirmed the IJ’s order and dismissed

Petitioner’s appeal.

DISCUSSION

When, as here, a three-member panel reviews the IJ decision, “the BIA opinion

completely super[s]edes the IJ decision for purposes of our review.” Uanreroro v.

Gonzales, 443 F.3d 1197, 1203 (10th Cir. 2006). We review the BIA’s legal

decisions de novo and its findings of fact under a substantial-evidence standard.

Rodas-Orellana v. Holder, 780 F.3d 982, 990 (10th Cir. 2015). Under that standard,

its “findings [are] conclusive unless any reasonable adjudicator would be compelled

to reach a contrary conclusion.” Aguilar v. Garland, 29 F.4th 1208, 1211 (10th Cir.

2022) (internal quotation marks omitted).

A. Asylum

An applicant is eligible for asylum if she is a “refugee” within the meaning of

the INA. See 8 U.S.C. § 1158(b)(1)(A). An applicant qualifies as a refugee if she is

unable or unwilling to return to her country of nationality because of “persecution or

a well-founded fear of persecution on account of” any of five protected grounds,

including “membership in a particular social group.” 8 U.S.C. § 1101(a)(42).

The applicant “bear[s] the burden of persuasion and must provide direct or

circumstantial evidence of the persecutors’ motives.” Orellana-Recinos v. Garland,

993 F.3d 851, 855 (10th Cir. 2021) (internal citation omitted). Persecution is on

account of a protected ground if the ground “was or will be at least one central reason

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for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i). The Board has

interpreted “‘one central reason’ to mean the protected ground cannot play a minor

role in the alien’s past mistreatment or fears of future mistreatment.” Karki v.

Holder, 715 F.3d 792, 800-01 (10th Cir. 2013) (internal quotation marks omitted).

Thus, to satisfy the nexus requirement, the applicant must show that her past or

feared future persecution is because of the protected status and that the protected

ground is not “incidental, tangential, superficial, or subordinate to” some other,

unprotected reason for harm. Orellana-Recinos, 993 F.3d at 855 (internal quotation

marks omitted).

The BIA has emphasized that “it is important to distinguish between the

inquiry into whether a group is” a cognizable particular social group (PSG) and the

“question whether a person is persecuted ‘on account of’ membership in a [PSG].”

Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242 (B.I.A. 2014). In other words, the

existence of a social group and a nexus between that group and the petitioner’s claim

of persecution are independent requirements that the BIA assesses separately. Id.

And because an applicant must satisfy both requirements to make a cognizable claim

for asylum, see 8 U.S.C. § 1101(a)(42), her failure to satisfy either is dispositive.

Here, Petitioner’s asylum and restriction on removal applications alleged that

she suffered past persecution in Mexico and is likely to suffer future persecution if

she returns to Mexico based on her membership in one of three proposed PSGs that

she defined as (1) Mexican women who are trafficked for prostitution; (2) Mexican

women who are by themselves; and (3) returning Mexicans with relatives in the

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United States. The IJ denied her applications, concluding she did not establish past

persecution and could not show a well-founded fear of future persecution on account

of a protected ground both because her proposed PSGs were not cognizable and

because she did not establish a nexus between the harm she suffered and her

membership in those groups. In support of the latter conclusion, the IJ found that the

people who victimized her were criminals motivated by greed, not by her gender, her

aloneness, or the fact that she has American relatives.

The BIA agreed that Petitioner’s proposed groups are not cognizable because

they are impermissibly defined by the fact of persecution (the first group) or lack the

requisite particularity and social distinction (the second and third groups). And it

found no clear error in the IJ’s finding regarding the reason for the cartels’ harassment

of her, agreeing that she was “the victim of criminal extortion,” not persecution on

account of a protected ground. Admin. R., vol. I at 4; see Matter of N-M-, 25 I. & N.

Dec. 526, 532 (B.I.A. 2011) (explaining that an IJ’s finding regarding a persecutor’s

motivation is a finding of fact that the BIA reviews for clear error). The BIA thus

affirmed the IJ’s denial of Petitioner’s applications on two independent grounds: failure

to establish her membership in a cognizable PSG, and failure to show a nexus between

her membership in her proposed groups and the persecution she suffered.

When a tribunal rejects a claim on multiple independent grounds, the

petitioner must challenge each ground. Lebahn v. Nat’l Farmers Union Unif.

Pension Plan, 828 F.3d 1180, 1188 (10th Cir. 2016). The failure to challenge a

determination that is “by itself, a sufficient basis for” denying relief forecloses

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success on appeal. Murrell v. Shalala, 43 F.3d 1388, 1390 (10th Cir. 1994). Here,

Petitioner raises several challenges to the BIA’s social-group ruling, but she does not

separately challenge its determination that any harm she suffered or fears is due to

criminal victimization and not on account of a protected ground. Her mention of the

BIA’s nexus determination “in passing in [the] opening brief” is insufficient to

challenge that determination. Kabba v. Mukasey, 530 F.3d 1239, 1248 (10th Cir.

2008). She has thus waived any challenge to the BIA’s dispositive nexus ruling. See

Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002) (“Issues not raised on appeal

are deemed to be waived.”).

In any event, the record supports the BIA’s determination. It found no clear

error in the IJ’s finding that the gangs had ordinary criminal motives for harassing

Petitioner—they extorted her and attempted to force her into prostitution because

they wanted money. Petitioner points to no evidence that the gangs were motivated

by the fact that she is Mexican, a woman, alone, or has American family members.

And her evidence regarding sex trafficking of victims from different countries across

the United States border, background documents describing organized crime and

victims of cartel activity in Mexico, and a Department of State Human Rights Report

describing discrimination and abuse against women in general does not establish that

the gangs targeted her on account of a protected ground. See Orellana-Recinos,

993 F.3d at 856 (membership in a PSG “should not be considered a motive for

persecution if the persecutors are simply pursuing their distinct objectives and a

victim’s membership in the group is relevant only as a means to an end—that is, the

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membership enables the persecutors to effectuate their objectives”). We cannot say

that a reasonable adjudicator would be compelled to reject the BIA’s determination.

See Aguilar, 29 F.4th at 1211.

Because the record supports the BIA’s unchallenged dispositive determination

that Petitioner failed to establish a nexus between her persecution and her

membership in her proposed PSGs, we need not address her challenges to its

determination that those groups are not cognizable. See Lebahn, 828 F.3d at 1188

(stating that where a party argues one ground but gives the court “no basis to disturb”

another of the underlying rulings, “we must affirm”); see also INS v. Bagamasbad,

429 U.S. 24, 25 (1976) (per curiam) (“As a general rule courts and agencies are not

required to make findings on issues the decision of which is unnecessary to the

results they reach.”); Griffin v. Davies, 929 F.2d 550, 554 (10th Cir. 1991) (“We will

not undertake to decide issues that do not affect the outcome of a dispute.”).

B. Restriction on Removal

To qualify for restriction on removal, an applicant must show a “clear

probability” of persecution on account of one of the statutorily protected grounds.

Rodas-Orellana, 780 F.3d at 987 (internal quotation marks omitted). This is a higher

burden of proof than the standard for asylum, which requires the applicant to prove

only that such persecution is a “reasonable possibility.” Id. (internal quotation marks

omitted). Consequently, Petitioner’s inability to meet the asylum burden necessarily

forecloses meeting the greater restriction burden. See id. We thus deny her

challenge to the BIA’s finding that she is not eligible for restriction on removal.

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C. CAT Relief

The CAT “prohibits the return of an alien to a country where it is more likely

than not that he will be subject to torture by a public official, or at the instigation or

with the acquiescence of such an official.” Karki, 715 F.3d at 806 (internal quotation

marks omitted). The applicant has the burden to establish her eligibility for CAT

relief. 8 C.F.R. § 208.16(c)(2).

“Acquiescence of a public official requires that the public official, prior to the

activity constituting torture, have awareness of such activity and thereafter breach his

or her legal responsibility to intervene to prevent such activity.” 8 C.F.R.

§ 1208.18(a)(7). “[W]illful blindness suffices to prove acquiescence.” Karki,

715 F.3d at 806 (internal quotation marks omitted). A government’s inability to offer

complete protection does not demonstrate governmental acquiescence.

Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir. 2006). Nor does general

evidence of corruption and a lack of sufficient resources for law enforcement to

effectively combat crime. Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir.

2005). The BIA’s CAT “findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Nasrallah v. Barr,

140 S. Ct. 1683, 1692 (2020) (internal quotation marks omitted).

The IJ denied Petitioner’s request for CAT protection, finding that the harm

she suffered did not rise to the level of torture and that there was no evidence the

Mexican government was involved with her harmful experiences in Mexico or would

acquiesce in any future torture. On administrative appeal, she challenged both the

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torture and acquiescence determinations, but the BIA denied her request for CAT

relief solely on the ground that she failed to demonstrate the requisite state action.2

Petitioner maintains that the Mexican government “is unable to control

organized crime groups and their targeting of most vulnerable populations,” Pet’r’s

Br. at 21, and that the cartels victimized her “at the instigation of or with the

acquiescence of a public official or a person acting in an official capacity,” id. at

22-23 (footnote omitted). But she presented no evidence supporting her assertion

that the government participated in her victimization. And the record supports the

BIA’s conclusion that she failed to establish that the government acquiesced in it.

The police were willing to accept her report of threats and extortion and to engage in

an investigation, but she decided not to file a report because the police could not

guarantee her safety. The BIA concluded that the warning that police may not be

able to protect her if she opened an investigation did not constitute governmental

acquiescence. We find no error in that determination. See Ferry v. Gonzales,

457 F.3d 1117, 1131 (10th Cir. 2006) (upholding agency’s determination that the

government’s recognition of a threat and providing of a security grant used to

reinforce Ferry’s property demonstrated that the government was not acquiescing in

2 Our review is limited to grounds relied on by the BIA. See Uanreroro, 443 F.3d at 1204. Because the BIA did not address either whether Petitioner showed that her claims of past torture demonstrate a clear probability of future torture or whether it is more likely than not that she will suffer harm amounting to torture if she returns to Mexico, we do not consider her arguments that the harm she suffered in the past and will suffer if she returns constitutes torture.

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torture). And Petitioner has identified no evidence that would compel a reasonable

adjudicator to conclude that the Mexican government would acquiesce in her torture.

CONCLUSION

We deny the petition for review.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge