Anaya Barraza v. Garland ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 21, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
NICOLASA ANAYA BARRAZA; D. A.
MARQUEZ ANAYA; A. I. MARQUEZ
ANAYA; P. S. MARQUEZ ANAYA; D.
V. MARQUEZ ANAYA,
Petitioners,
v. No. 20-9529
(Petition for Review)
MERRICK B. GARLAND, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before PHILLIPS, McHUGH, and CARSON, Circuit Judges.
_________________________________
Petitioners Nicolasa Anaya Barraza and her daughter Angeles Marquez Anaya
filed applications for asylum, withholding of removal, and protection under the

On March 10, 2021, Merrick B. 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 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 This order and judgment is not binding precedent,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.
Convention Against Torture (CAT) based on crimes committed against Angeles and
her father in Chihuahua, Mexico.1 An immigration judge denied their applications,
and the Board of Immigration Appeals (BIA) affirmed the decision on appeal. Anaya
and her children now petition this court for review. Exercising jurisdiction under
8 U.S.C. § 1252, we deny the petition.
I. BACKGROUND
Nicolasa Anaya Barraza is a native and citizen of Mexico. She and her
husband, Jose Marquez Avila, had five children together. Anaya identifies as a
member of the Tarahumara ethnic group. The family lived initially in Lajas,
Durango, where Anaya was born. But when Anaya’s brother-in-law was killed in
Lajas, the family moved to Guadalupe y Calvo, Chihuahua, about 10 hours northwest
of Lajas. There the family lived for several years in peace.
Eventually, however, the town’s security declined as armed men started
showing up and violence increased. Another of Anaya’s brothers-in-law and two of
Anaya’s nephews were killed in Guadalupe y Calvo. The town had no police or
military presence to protect against such attacks. The family nonetheless stayed
because Anaya’s husband had a job and the family owned a home there.
In the summer of 2012, a group of armed men Anaya believed were soldiers
came to her home and searched for weapons. They found none, but they took
Anaya’s husband outside for questioning and then let him go. No one was harmed.
1
Three of Anaya’s other children are derivative beneficiaries on her
application and therefore also parties to this petition.
2
A few weeks later, another group of armed men appeared at Anaya’s house
and identified themselves as members of the Mexican army. They abducted Anaya’s
husband. When Anaya asked where they were taking him, the men responded that
her husband was “under investigation.” Because there were no police, Anaya called
relatives and others to inform them of what had happened. Anaya learned that the
armed men were not part of the military as they had claimed, and that they had
abducted other men as well.
The next morning, Anaya heard there were several dead bodies on the edge of
town. She investigated and found three beheaded corpses, including that of her
husband. It appeared that the three men had been tortured. Police arrived at the
scene and began an investigation, and eventually produced a report. But no motive
was discovered, and the killers were never identified. The other two victims had
different surnames and were not related to Anaya’s husband.
In June 2013, Anaya’s 15-year-old daughter Angeles walked with a 12-year-
old friend to a neighboring town to turn in some schoolwork. On their way back,
Angeles and her friend accepted a ride from two teenaged boys in a pickup truck.
Later, they were stopped by three men, two of whom were armed. The men made the
four youths get out of the truck and began beating the boys, demanding to know who
had sent them. Then two of the men took the girls into the hills in opposite
directions. Angeles’s assailant raped her, and her friend was molested. The men
returned the girls to the truck and one of the men warned Angeles’s friend not to say
anything because he knew her family.
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The youths drove back to the neighboring town they had departed from. In the
meantime, Anaya had become concerned about Angeles’s whereabouts and asked
some soldiers to help search for her. When Angeles and her friend arrived back, the
soldiers stopped them and held the girls for 30 minutes until their mothers came to
get them.
The next day, Angeles told her mother what had happened, and Anaya took
Angeles to a police station several hours away to file a complaint. A medical
examination was conducted, and a police report produced.
A few months later, Anaya and her five children arrived at a port of entry near
El Paso, Texas, and asked to apply for asylum. Anaya and her four youngest children
were paroled into the United States.2 On December 12, 2013, an asylum officer
interviewed Anaya and found her to have a “credible fear of persecution,” see
8 U.S.C. § 1225(b)(1)(B)(v), and that therefore there was a “significant possibility”
of her and her four children proving eligibility for asylum.
Anaya and her daughter Angeles each filed asylum applications and a hearing
was held before an immigration judge on October 30, 2017. The evidence included
testimony by Anaya and Angeles, as well as the introduction of numerous documents,
including past statements and affidavits from Anaya and Angeles, police reports, and
the report of a therapist who had interviewed Anaya.
2
Anaya’s oldest child, Manuel, was an adult and therefore processed
separately. He was eventually removed to Mexico.
4
On May 9, 2018, the immigration judge issued a decision denying the asylum
applications and ordering that Anaya and her family be removed to Mexico. The
immigration judge held, among other things, that the Petitioners had not proved the
necessary elements of an asylum claim. In particular, the immigration judge held
they had not established (1) that any persecution they suffered had been on account
of a statutorily protected ground, or (2) that the persecution was committed by the
government or by forces the government was unwilling or unable to control.
Anaya and Angeles appealed to the BIA. The BIA issued a decision affirming
the decision of the immigration judge. It held the Petitioners had failed to appeal the
immigration judge’s determination that the Petitioners had not shown the necessary
government involvement in their persecution. The BIA further agreed with the
immigration judge that Petitioners had not shown they had been persecuted on
account of a statutorily protected ground.
Anaya and her children Diana, Angeles, Paulo, and Deysi (collectively, “the
Petitioners”) then filed a timely petition for review with this court.
II. DISCUSSION
The BIA issued a reasoned opinion drafted by a single Board member. We
therefore “review the BIA’s decision as the final agency determination and limit our
review to issues specifically addressed therein.” Diallo v. Gonzales, 447 F.3d 1274, 1279
(10th Cir. 2006). But “when seeking to understand the grounds provided by the BIA, we
are not precluded from consulting the [immigration judge’s] more complete explanation
of those same grounds.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006).
5
“When reviewing BIA decisions, an appellate court must look to the record for
substantial evidence supporting the agency’s decision: Our duty is to guarantee that
factual determinations are supported by reasonable, substantial and probative evidence
considering the record as a whole.” Sarr v. Gonzales, 474 F.3d 783, 788 (10th Cir. 2007)
(brackets and internal quotation marks omitted). “Agency findings of fact are conclusive
unless the record demonstrates that any reasonable adjudicator would be compelled to
conclude to the contrary.” Id. at 788-89 (internal quotation marks omitted).
A. Asylum
Asylum applicants have the burden of demonstrating eligibility by proving they
are refugees. 8 U.S.C. § 1158(b)(1)(B)(i). To meet that burden, applicants must establish
(1) they suffered past persecution or have a well-founded fear of future persecution that is
(2) “on account of” a statutorily protected ground and (3) committed by the government
or by forces the government is either unable or unwilling to control. Rivera-Barrientos v.
Holder, 666 F.3d 641, 646 (10th Cir. 2012); see also 8 U.S.C. § 1101(a)(42)(A)
(providing definition of “refugee”).
The Petitioners argued they were persecuted on account of their membership in
three distinct social groups: the Anaya family; Tarahumara indigenous members; and
“indigenous women left vulnerable after adult men in their family are murdered.” R. at
975 (internal quotation marks omitted). We address each in turn.3
3
The government contends the Petitioners failed to make any argument before the
BIA concerning the element of government involvement in their persecution. The
government argues the Petitioners’ failure to exhaust that issue, which is a necessary
element of an asylum claim, deprives this court of jurisdiction to review Petitioners’
6
First, while membership in a particular family may qualify as a statutorily
protected ground, see In re L-E-A-, 27 I. & N. Dec. 40, 42-43 (B.I.A. 2017), the
Petitioners must show that such membership was “central to the persecutor’s decision to
act against the victim,” Niang v. Gonzales, 422 F.3d 1187, 1200 (10th Cir. 2005). “[T]he
protected ground cannot play a minor role in the alien’s past mistreatment or fears of
future mistreatment . . . [or] be incidental, tangential, superficial, or subordinate to
another reason for harm.” Dallakoti v. Holder, 619 F.3d 1264, 1268 (10th Cir. 2010)
(internal quotation marks omitted).
The BIA upheld the immigration judge’s determination that the Petitioners had not
established the required nexus between their membership in the Anaya family and the
persecution they suffered. As the immigration judge noted, two other men, both
unrelated to the Anayas, were kidnapped and murdered at the same time as Anaya’s
husband. And the men who sexually assaulted Angeles also assaulted her friend, who
was not a member of the Anaya family. We conclude that substantial evidence supported
the BIA’s determination that the Petitioners did not suffer persecution “on account of”
their membership in the Anaya family.
arguments on the merits. See 8 U.S.C. § 1252(d)(1) (limiting judicial review of removal
orders for which “the alien has exhausted all administrative remedies available”). But the
BIA nevertheless addressed the merits of the Petitioners’ remaining arguments even
though it determined the Petitioners had not presented any “meaningful argument[]” on
the government involvement issue. See R. at 974. We therefore deem it appropriate to
address those arguments as well. See Sidabutar v. Gonzales, 503 F.3d 1116, 1122
(10th Cir. 2007).
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Second, the Petitioners assert they were persecuted because of their status as
Tarahumara indigenous members forced from their land. The BIA correctly noted that a
proposed social group “cannot be defined exclusively by the fact that its members have
been subjected to harm.” Rivera-Barrientos, 666 F.3d at 650 (internal quotation marks
omitted). But even if the social group were defined only as members of the Tarahumara
ethnic minority, the immigration judge found no evidence that Petitioners’ ethnicity is
related to any persecution they have suffered. The immigration judge also found based
on the evidence presented that the harm the Petitioners fear in Mexico is widespread and
indiscriminate rather than aimed specifically at Tarahumara indigenous people. Being
subject to random criminality is not a protected status upon which to grant asylum. See
Vatulev v. Ashcroft, 354 F.3d 1207, 1209 (10th Cir. 2003). We hold these determinations
are also supported by substantial evidence.
Third, the Petitioners argue they were persecuted because of their status as
indigenous women left vulnerable when adult men in their family were murdered. To be
cognizable, however, a social group must be defined with particularity, “[t]he basic
premise” of which “is that the proposed group have particular and well-defined
boundaries.” Rivera-Barrientos, 666 F.3d at 648-49 (internal quotation marks omitted).
The BIA affirmed the immigration judge’s determination that this proposed social group
is too amorphous to satisfy this requirement. As the immigration judge held, this
proposed social group fails to provide a clear benchmark for determining who is
included. We agree the term “vulnerable” in this context is too vague to satisfy the
particularity requirement. See id. at 649 (“If the description of the proposed group is too
8
amorphous, and ideas of what the relevant terms mean are likely to vary, the applicant
has failed to provide an adequate benchmark for determining group membership.”
(internal quotation marks omitted)).
B. Withholding of Removal
“To be eligible for withholding of removal, an applicant must demonstrate that
there is a clear probability of persecution because of his race, religion, nationality,
membership in a particular social group, or political opinion.” Zhi Wei Pang v. Holder,
665 F.3d 1226, 1233 (10th Cir. 2012) (internal quotation marks omitted). Because the
Petitioners have not met the requirements for asylum, they cannot “satisfy the higher
standard of eligibility for withholding of removal.” Id. at 1234.
C. CAT Relief
“Article 3 of the Convention Against Torture 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.”
Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005) (internal quotation
marks and brackets omitted). “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). This standard does not require “actual
knowledge, or willful acceptance” by the government. Cruz-Funez, 406 F.3d at 1192(internal quotations marks omitted). Under the substantial-evidence standard, we
9
must deny the petition unless no reasonable adjudicator could reach the same finding
as the immigration judge and BIA.
The immigration judge found that the record as a whole did not support a
finding that if removed to Mexico, the Petitioners are more likely than not to be
tortured by a public official or with the consent or acquiescence of a public official.
We agree that although the Petitioners have expressed a fear of persecution from
unidentified armed men and are concerned about the lack of police resources to
control violence in their region, the evidence did not rise to the level of acquiescence.
Indeed, as the immigration judge noted, in each instance of violence perpetrated
against Anaya’s husband and Angeles, the government conducted an investigation.
And when Angeles did not return home when Anaya expected, she sought and
received help from soldiers in the area. We hold that the immigration judge’s
decision denying relief under CAT, and the BIA’s subsequent affirmance, are well
within the boundary of reasonableness.
III. CONCLUSION
We uphold the BIA’s affirmance of the immigration judge’s decision under the
substantial evidence standard. The petition for review is denied. The Petitioners’
“Motion for Leave to Proceed on Appeal Without Prepayment of Costs or Fees” is
granted.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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