Opinion
22-9585
10-30-2023
MARIO ALBERTO GONZALEZ GOMEZ, Petitioner, v. MERRICK B. GARLAND, United States Attorney General, Respondent.
(Petition for Review)
Before HOLMES, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.
ORDER AND JUDGMENT [*]
JEROME A. HOLMES, CHIEF JUDGE
Petitioner Mario Alberto Gonzalez Gomez, a native and citizen of Mexico, petitions for review of the Immigration Judge's (IJ) decision denying his applications for cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture (CAT). He also appeals the IJ's denial of a motion to consolidate his case with his wife's removal proceedings. We dismiss the challenges involving cancellation of removal and asylum for lack of jurisdiction and deny the remainder of the petition.
The Board of Immigration Appeals affirmed, without opinion, the IJ's decision, making the IJ's decision the final agency decision. See 8 C.F.R. § 1003.1(e)(4).
I
Petitioner illegally entered the United States in 2002 with his wife, who is also a Mexican national. He and his wife have seven children-five of whom are United States citizens because they were born in this country after Petitioner and his wife arrived in 2002. Several years later, Petitioner was placed in removal proceedings in which he requested cancellation of removal based on exceptional and extremely unusual hardship to his United States citizen children, asylum and withholding of removal based on his membership in a purported particular social group-namely, "Mexican men who oppose the gangs and cartels who control and bring crime upon Mexico," R., Vol. II at 432 (capitalization omitted), and protection under the CAT.
On October 8, 2019-slightly more than two weeks before the merits hearing scheduled for October 28-Petitioner filed a motion to consolidate his case with his wife's removal proceedings. As grounds for the motion he argued that his wife had a "Master hearing before [the same IJ] on [the following day], October 29, 2019," and [i]t would be a more effective use of judicial resources to have all matters for [Petitioner and his wife] heard on the same date at the same time," because "[t]he facts and circumstances that form the basis of [their] cases are substantially the same." Id. at 535-36. The IJ denied the motion, stating, "Failure to show good cause-when motion is filed on eve of individual hearing that has been scheduled for six months-both [Petitioner and his wife] will be allowed to present their cases." Id. at 533 (capitalization omitted).
Petitioner was the only witness at the merits hearing. He testified that he was 25 years old when he and his wife entered the United States. At the time of the hearing in 2019, his United States citizen children ranged from ages 15 to 8; they were all in good health and doing well in school. He said that none of the children had ever been to Mexico but would most likely accompany their parents if they were removed. He also told the IJ he and his wife communicate with their children in Spanish; however, the children cannot read and write in Spanish. Petitioner also testified about crime, the economy, and lack of educational opportunities in Mexico.
As to asylum and withholding of removal, Petitioner testified that when he was 16 years old, he was assaulted by a group of people who hit him in the head with a bat and stole his watch and some money. According to Petitioner, the attackers told him not to report the incident to the police. Although he did not testify to any further incidents, he said that he "still felt threatened because of the assault" when he decided to come to the United States nearly ten years later. R., Vol. I at 107.
On the day of the merits hearing-October 28, 2019-Petitioner submitted a sworn statement that nearly eight months earlier in February 2019, his nephew had been kidnapped in Mexico. He stated "[o]ur family knows very little about what happened to him and why he was a target, but we believe he was taken by cartel members." Id. at 163. According to Petitioner, the incident "was reported to the police, but they have been unable to locate him." Id. At the hearing, he added that "the way the situation is in Mexico, they just go and . . . kidnap you and . . . try to put you into things that they shouldn't like drugs." Id. at 102.
In closing argument, Petitioner's counsel argued for cancellation of removal on the grounds that his "five children who are [United States] citizens . . . would suffer exceptional and extremely unusual hardship if they were to have to go to Mexico." Id. at 110. In particular, he cited their inability to read or write in Spanish, inferior educational opportunities, "the medical" in Mexico, and "the economy." Id. As to the application for asylum, withholding of removal, and CAT protection, counsel cited the fact that Petitioner was the "victim [of] one incident of crime before he came to the United States and his nephew [was] kidnapped earlier this year." Id. Although "[b]oth of those incidents . . . were reported to the police, nothing ever came of it. So, [Petitioner] believes that the police in Mexico will not be able to protect him from any future violence," and "there's nowhere in Mexico where he would be able to live safely." Id.
At the conclusion of the hearing, the IJ made several factual findings, told the parties what her decision would be and why, and then issued a more detailed oral decision denying Petitioner's claims. As to cancellation of removal, the IJ found that "the hardship is based primarily on . . . adjustment to a new culture, the difference in educational and work opportunities . . . and the general violence and cost of living in Mexico." Id. at 40-41. "[W]hile the Court does not wish to diminish the hardship the children will face . . . [it] does not rise to the very high standard of exceptional and extremely unusual hardship. Rather, the hardships that the children are likely to face . . . [are] typical for any family who has to relocate in these circumstances." Id. at 41.
With regard to asylum, the IJ found that Petitioner
does not belong to a [particular social group] that is sufficiently particular and socially distinct; rather, [Petitioner] fears general crime and violence as well as an incident that happened to him when he was approximately 15 or 16 years old[,] [which] was on account of financial gain . . . and not on account of any protected ground or [particular social group.]Id. at 38. Further, the IJ found "that this level of harm does not rise to the level of persecution." Id. As to a well-founded fear of future persecution, the IJ found that Petitioner's fear "is not as much a fear of gangs and criminals as it is the cartels who have taken control of parts of the country. However, this is a fear of general violence and not a fear of persecution on account of [a particular social group] or any other protected ground." Id.
In any event, the IJ determined that Petitioner was "barred from asylum due to the one-year filing deadline." Id. In her oral decision, the IJ found that Petitioner entered the United States in 2002; however, he waited to file his application for asylum until "approximately 10 years after his entry." Id. at 39. Petitioner based his fear of persecution on two incidents-the assault that occurred several years before he came to the United States and the February 2019 kidnapping of his nephew. As to the first incident, the IJ found that "[b]ecause this happened prior to his entry into the United States, it cannot show any changed country conditions or provide a reason he did not seek asylum shortly after arriving." Id. The IJ further found that the kidnapping of Petitioner's nephew, which "occurred approximately seven years after he filed the [asylum] application," did not explain why "he waited almost 10 years to file an application." Id.
Next, the IJ found that because Petitioner "failed to satisfy the lower burden of proof required for asylum," he necessarily "failed to satisfy the clear probability standard for withholding of removal." Id. Last, the IJ denied CAT protection. The IJ found that incident when he was 16 years old and the recent kidnapping of his nephew "appear to be general acts of criminals, which is indicative of the generally violent conditions in Mexico." Id. at 40. "However, there is no evidence to convince the Court that [Petitioner] would be specifically targeted for torture" or "that the government would acquiesce" to it. Id.
II
Petitioner appealed to the Board of Immigration Appeals (BIA). In the notice of appeal, counsel stated his intention to brief the issues mentioned in the notice. See id. at 33 ("[Petitioner] respectfully requests an opportunity to fully brief the matters [identified in] this Notice of Appeal"). But no brief was filed.
Although the BIA could have summarily dismissed the appeal for failure to file a brief, see 8 C.F.R. § 1003.1(d)(2)(i)(E), it affirmed the IJ's decision without opinion, see id. § 1003.1(e)(4). When the BIA affirms without opinion, the decision below is "the final agency determination," id. § 1003.1(e)(4)(ii)-in this case, the final order of removal.
The BIA may affirm without opinion when (1) "the result reached in the decision under review was correct"; (2) "any errors in the decision under review were harmless or nonmaterial"; and (3) "[t]he issues on appeal are squarely controlled by existing [BIA] or federal court precedent and do not involve the application of precedent to a novel factual situation," or "[t]he factual and legal issues raised on appeal are not so substantial that the case warrants the issuance of a written opinion." 8 U.S.C. § 1003.1(e)(4).
III
Cancellation of removal is a form of discretionary relief that requires a noncitizen to show, among other things, that his "removal would result in exceptional and extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of the United States." 8 U.S.C. § 1229b(b)(1)(D). However, we lack "jurisdiction to review . . . any judgment regarding the granting of relief under section . . . 1229b." 8 U.S.C. § 1252(a)(2)(B)(i).
"We have construed the term 'judgment' . . . as referring to the discretionary aspects of a decision concerning cancellation of removal," which "includes any underlying factual determinations, as well as the determination of whether the petitioner's removal . . . would result in exceptional and extremely unusual hardship to a qualifying relative." Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009) (citation and internal quotation marks omitted); see also Alzainati v. Holder, 568 F.3d 844, 850 (10th Cir. 2009) ("If the [IJ] decides in an exercise of agency discretion, [that] an alien has not produced sufficient evidence to warrant a finding of exceptional and extremely unusual hardship, we cannot review that decision.").
Petitioner seeks to avoid the jurisdictional bar by arguing that his petition for review raises constitutional claims and questions of law, which we have jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D). In particular, he argues that the IJ ignored evidence of country conditions showing that his children would be unsafe in Mexico. However, "[r]ecasting challenges to factual determinations as due process or other constitutional claims . . . is clearly insufficient to give this Court jurisdiction under § 1252(a)(2)(D)." Arambula-Medina, 572 F.3d at 828 (ellipsis and internal quotation marks omitted); see also Galeano-Romero v. Barr, 968 F.3d 1176, 1182 n.8 (10th Cir. 2020) (holding petitioner's argument that agency "improperly discount[ed] the hardship [noncitizen's] wife would suffer upon his removal . . . boils down to a contention that the [agency] improperly weighed [the evidence]"). Petitioner further maintains that the IJ ignored the fact that his wife was also in removal proceedings and how that would create additional hardship to the children if she was also removed to Mexico. But we lack jurisdiction to consider this argument because it concerns how the agency weighed the evidence. This part of the petition is dismissed for lack of jurisdiction.
IV
The Attorney General has discretion to grant asylum to an applicant who proves that he is a "refugee." 8 U.S.C. § 1158(b)(1)(A). To establish refugee status, a noncitizen must demonstrate that he suffered persecution or has "a well-founded fear of [future] persecution on account of [a protected ground]." 8 U.S.C. § 1101(a)(42)(A). Also, an applicant must "demonstrate[] by clear and convincing evidence that the [asylum] application has been filed within 1 year after the date of the alien's arrival in the United States." § 1158(a)(2)(B). We lack jurisdiction to review the agency's discretionary determination that an alien failed to show changed circumstances justifying an untimely filing. See § 1158(a)(3).
Petitioner admits that his asylum application was filed long after the one-year deadline. Nonetheless, he argues that his untimely filing should be excused by his nephew's kidnapping in February 2019. See 8 U.S.C. § 1158(a)(2)(D) (providing that an untimely application may be excused "if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the [one-year deadline]"). Petitioner seeks to circumvent the jurisdictional bar by arguing that the IJ misconstrued § 1158(a)(2)(D) when she determined that events that occurred after Petitioner filed his untimely application "cannot be considered in evaluating the reasons he waited almost 10 years to file an application in 2012." R., Vol. I at 39. See 8 U.S.C. § 1252(a)(2)(D) (providing jurisdiction to consider "questions of law"); see also Diallo v. Gonzales, 447 F.3d 1274, 1282 (10th Cir. 2006) (interpreting "questions of law" in § 1252(a)(D)(2) to include "a narrow category of issues regarding statutory construction") (internal quotation marks omitted)).
We need not resolve the statutory construction issue, however, because the IJ found that the kidnapping did not materially affect Petitioner's eligibility for asylum. In his sworn statement submitted on the day of the hearing, Petitioner stated that his "family knows very little about what happened to [his nephew] and why he was a target," other than they believe "he was taken by cartel members." R., Vol. I at 163. At the conclusion of the hearing and before she entered her oral decision, the IJ found, that "[t]he fact that your nephew was kidnapped, tells me that he was also the victim of a crime....But again, we don't know that that had anything to do with the particular characteristics of your nephew and more importantly, we don't know how that puts you in danger." Id. at 114. "I agree that Mexico can be a very dangerous place . . . but that doesn't make it a claim for asylum." Id. (emphasis added). In other words, to the extent that the kidnapping could be considered a changed circumstance, it did not materially affect Petitioner's eligibility for asylum. Because we lack jurisdiction to review the agency's discretionary determination that an alien failed to show changed circumstances justifying an untimely filing, see § 1158(a)(3), we dismiss this part of the petition for lack of jurisdiction.
Because both parties rely on findings made by the IJ at the conclusion of the hearing, but not repeated in the oral decision, we do the same. For example, Petitioner relies on several of the IJ's findings that were not included in the oral decision to argue his case. See Pet'r Opening Br. at 7.
V
Petitioner also challenges the IJ's denial of his request for withholding of removal. The Attorney General may not remove an applicant to a country if he determines that the applicant's "life or freedom would be threatened" on account of a protected ground, such as "membership in a particular social group." 8 U.S.C. § 1231(b)(3)(A). "The burden of proof for withholding of removal is higher than asylum. For asylum, a noncitizen must prove he or she is a refugee, which requires a showing of past persecution or a well-founded fear of persecution on account a protected ground." Rodas-Orellana v. Holder, 780 F.3d. 982, 986 (10th Cir. 2015) (citation omitted). "To show a well-founded fear, an applicant must at least show that persecution is a reasonable possibility." Id. at 986-87 (internal quotation marks omitted). By comparison, "[f]or withholding, an applicant must prove a clear probability of persecution on account of a protected ground." Id. at 987 (internal quotation marks omitted). Therefore, "[f]ailure to meet the burden of proof for an asylum claim necessarily forecloses meeting the burden for a withholding claim." Id.
Both asylum and withholding claims require the applicant to establish a nexus between the alleged persecution and the protected ground. See Dallakoti v. Holder, 619 F.3d 1264, 1267-68 (10th Cir. 2010). The Ninth Circuit has determined that a petitioner seeking withholding relief need only show the protected ground was "a reason" for the persecution, which is a less demanding standard than the "one central reason" nexus standard applicable for asylum. See Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (internal quotation marks omitted). We have not decided the issue.
Relevant here, Petitioner argues that the agency should have employed the less demanding "mixed motive" nexus standard (i.e., "a reason") nexus standard in evaluating the withholding claim. See Pet'r Opening Br. at 21. Setting aside whether the nexus standards are different, Petitioner never argued a "mixed motive" nexus theory to the agency. To the contrary, he argued only that his life and freedom would be threatened in Mexico based on his membership in the proposed particular social group defined as "Mexican men who oppose the gangs and cartels who control and bring crime upon Mexico." R., Vol. II at 432 (capitalization omitted). In other words, he failed to exhaust the issue.
"A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). Although the Supreme Court recently held that § 1252(d)(1) is a non-jurisdictional claim-processing rule, see Santos-Zacaria v. Garland, 598 U.S. 411, 416-19 (2023), it remains "a fundamental principle of administrative law that an agency must have the opportunity to rule on a challenger's arguments before the challenger may bring those arguments to court." Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010), abrogated on other grounds by Santos-Zacaria, 598 U.S. at 413-14.
In the immigration context, "[i]t is not enough to go through the procedural motions of a BIA appeal, or to make general statements in the notice of appeal to the BIA, or to level broad assertions in a filing before the Board." Id. (internal quotation marks omitted). Rather, "[t]o satisfy § 1252(d)(1), an alien must present the same specific legal theory to the [agency] before he or she may advance it in court." Id. As a mandatory claim-processing rule, see Santos-Zacaria, 598 U.S. at 421, § 1252(d)(1) should be enforced where, as here, a party timely and properly objects.
In sum, because Petitioner never argued a "mixed motive" nexus theory to the agency the issue is unexhausted, and we deny the petition as to the withholding claim. See Garcia-Carbajal, 625 F.3d at 1237.
VI
We have jurisdiction to review both factual and legal challenges to the BIA's denial of relief under the CAT. Nasrallah v. Barr, 140 S.Ct. 1683, 1690-91 (2020) (holding that the prohibition on reviewing factual challenges to final orders of removal under 8 U.S.C. § 1252(a)(2)(c) does not apply to CAT orders). We review legal determinations do novo, see Igiebor v. Barr, 981 F.3d 1123, 1131 (10th Cir. 2020), and the BIA's factual findings under the deferential substantial-evidence standard, see Nasrallah, 140 S.Ct. at 1692 ("Although a noncitizen may obtain judicial review of factual challenges to CAT orders, that review is highly deferential."). Under the substantial-evidence standard, the agency's "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). We must affirm the agency's decision if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir. 2004) (internal quotation marks omitted); see also Htun v. Lynch, 818 F.3d 1111, 1119 (10th Cir. 2016) ("[E]ven if we disagree with the BIA's [findings], we will not reverse if they are supported by substantial evidence and are substantially reasonable." (internal quotation marks omitted)).
An applicant seeking CAT protection must prove "that it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2). "Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." 8 C.F.R. § 1208.18(a)(1). In assessing the likelihood of torture, the factfinder must consider "all evidence relevant to the possibility of future torture . . . including, but not limited to . . . evidence of past torture"; the applicant's ability to relocate "to a part of the country of removal where he or she is not likely to be tortured"; "[e]vidence of gross, flagrant or mass violations of human rights within the country of removal"; and "[o]ther relevant information regarding conditions in the country of removal." § 1208.16(c)(3)(i)-(iv).
Further, to meet the burden of proof, an applicant must demonstrate that he is personally at risk of torture. See In re J-E-, 23 I. & N. Dec. 291, 303 (B.I.A. 2002) (en banc) ("The United Nations Committee Against Torture has consistently held that the existence of a consistent pattern or gross, flagrant, or mass violations of human rights in a particular country does not, as such, constitute sufficient grounds for determining that a particular person would be in danger of being subjected to torture upon his return to that country." Instead, "[s]pecific grounds must exist that indicate the individual would be personally at risk." (footnote omitted)), overruled on other grounds by Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004); see also Escobar-Hernandez v. Barr, 940 F.3d 1358, 1362 (10th Cir. 2019) ("[B]y itself, pervasive violence in an applicant's country generally is insufficient to demonstrate the applicant is more likely than not to be tortured upon returning there.").
Additionally, for torture to warrant deferral of removal under the CAT, it must be "inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official acting in an official capacity or other person action in an official capacity." 8 C.F.R. § 1208.18(a)(1). "This standard does not require actual knowledge or willful acceptance by the government. Rather, willful blindness suffices to prove acquiescence." Karki v. Holder, 715 F.3d 792, 806 (10th Cir. 2013) (citation and internal quotation marks omitted). However, evidence of law enforcement's inability to prevent torture does not compel a finding of acquiescence. See, e.g., Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006) (petitioner failed to show acquiescence where the record showed the government had made efforts to prevent potential torture); see also Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005) (evidence of government corruption did not compel a conclusion of government acquiescence).
Petitioner's argument is two-fold. First, he argues that the IJ failed to discuss each of the factors listed in 8 C.F.R. § 1208.16(c)(3)(i)-(iv) to determine the likelihood of torture. This argument is without merit. As to the first factor, there was no evidence of past torture and nothing for the IJ to consider. The second factor concerns whether the applicant can relocate to a part of the country where he would not be tortured; however, because there was no evidence of torture (past, present or future), there was no need to discuss relocation. The third factor looks at evidence of gross, flagrant, or mass violations of human rights; however, Petitioner fails to point to any such evidence in the record. Last, the agency should consider other relevant evidence regarding country conditions. This is precisely what the IJ did when she found that the two incidents (the attack with a bat and kidnapping) "appear to be general acts of criminals, which is indicative of the generally violent conditions in Mexico." R., Vol. I at 40. In sum, to the extent the factors were relevant, the IJ considered them. There is nothing in the record that compels reversal of the IJ's finding.
We also reject any argument that the IJ's analysis was too cursory. The IJ incorporated an addendum to her oral decision that fully set forth the relevant CAT standards, see R., Vol. I at 40, 58-59, and she discussed those factors in her oral decision. Petitioner does not cite any authority to show that any more analysis was necessary. The agency is "not required to write an exegesis on every contention. What is required is that it consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted." Maatougui v. Holder, 738 F.3d 1230, 1242-43 (10th Cir. 2013) (alteration and internal quotation marks omitted). The IJ's decision meets this standard.
Second, as to acquiescence, Petitioner argues that the IJ required him to prove police "refusal" to investigate, which he says is a higher standard than showing police were "unwilling" to investigate. Pet'r Opening Br. at 23. But he fails to direct us to where in the record the IJ supposedly imposed this heightened requirement. More to the point, failure to solve a crime is not acquiescence or willful blindness. See Ferry, 457 F.3d at 1131; Cruz-Funez, 406 F.3d at 1192.
Relatedly, Petitioner suggests that the police were willfully blind because they made no effort to apprehend the kidnappers. This misstates the evidence; instead, the police "have been unable to locate him," which is not refusal to investigate. R., Vol. I at 163. Indeed, there were apparently no leads for law enforcement to follow because no one knows why his nephew was kidnapped or who might have done it, other than the family's belief that the cartels were somehow involved. The agency's finding that Petitioner failed to establish acquiescence is supported by substantial evidence and must be affirmed.
VII
Last, Petitioner argues that the IJ erred in denying his motion to consolidate his removal proceeding with his wife's case. Recall that slightly more than two weeks before his merits hearing, he filed a motion to consolidate, which was denied by the IJ. When he raised the issue again at the merits hearing, the IJ newly assigned to the case said that she would "not . . . second-guess another Judge." R., Vol. 1 at 96. Petitioner appealed, but the motion to consolidate was not among the issues listed in the notice of appeal. And because he did not file a brief, the issue was never exhausted at the BIA.
"In the immigration context, "[i]t is not enough to go through the procedural motions of a BIA appeal." Garcia-Carbajal, 625 F.3d at 1237. Rather, "[t]o satisfy § 1252(d)(1), an alien must present the same specific legal theory to the [agency] before he or she may advance it in court." Id. As a mandatory claim-processing rule, see Santos-Zacaria, 598 U.S. at 421, § 1252(d)(1) should be enforced when, as here, the government timely and properly objects. We therefore deny the petition with respect to the motion to consolidate. See Garcia-Carbajal, 625 F.3d at 1237.
VIII
We dismiss the petition for review to the extent that it concerns cancellation of removal and asylum and deny all remaining claims.
[*] 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.