Navarro Hercules v. Garland ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 10, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
JOSE NELSON NAVARRO HERCULES,
Petitioner,
v. No. 20-9604
(Petition for Review)
MERRICK B. GARLAND, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
_________________________________
Petitioner, Jose Nelson Navarro Hercules, a Salvadoran citizen, fled gang
violence in his home country and arrived in the United States in 2006. A few years
later, the Department of Homeland Security began removal proceedings against him.

Merrick B. Garland has been substituted for Robert M. Wilkinson as
Respondent. See 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 This order and judgment is not binding precedent,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.
He conceded the charge of inadmissibility and applied for asylum, restriction on
removal,1 and protection under the United Nations Convention Against Torture. An
immigration judge denied his applications, and the Board of Immigration Appeals
(“Board”) affirmed. Mr. Navarro Hercules now seeks review of the Board’s decision.
We deny his petition in part and dismiss it in part.
I. AGENCY PROCEEDINGS
In his testimony to the immigration judge, Mr. Navarro Hercules explained
why he fears returning to his home country. Starting in 2002, he worked on a bus in
El Salvador, collecting fares while his brother-in-law drove. Two years later, armed
gang members entered the bus and robbed those on board. They forced Mr. Navarro
Hercules off the bus, beat him up, and demanded more money. They threatened to
kill anyone who said anything about the attack. Mr. Navarro Hercules later heard
from a police officer that the people who might have committed the bus robbery had
been caught robbing a jewelry store. ROA, Vol. 1 at 139.
About seven months after the bus robbery, gang members attacked the bus
again when the bus stopped for a break en route. Mr. Navarro Hercules was resting
in the bus while his brother-in-law went into a nearby town. Gang members attacked
the brother-in-law and eventually surrounded the bus, accusing Mr. Navarro Hercules
of causing some of their fellow gang members to be jailed. They vandalized the bus
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) (quotations
omitted).
2
and threatened to decapitate Mr. Navarro Hercules. The attack ended when a local
business owner convinced the gang members to leave. When police arrived at the
scene, they initially blamed Mr. Navarro Hercules and his brother-in-law for the
disturbance. Eventually, though, the police told Mr. Navarro Hercules that he “ha[d]
to go” and that they could not protect him. Id. at 144.2
Mr. Navarro Hercules never worked on a bus again. He fled to a different
town in El Salvador where he worked on a banana orchard. Although there were
gangs in this town, too, he avoided problems by remaining on the orchard and not
going out. He stayed there for about a year and a half before traveling to the United
States, where he found work with a farmer.
Mr. Navarro Hercules’s job took him to various places in the Midwest. One
night in Indiana he ran into someone who had grown up with him in El Salvador.
This man had joined a gang and unsuccessfully tried to recruit Mr. Navarro Hercules
when they were young. He threatened to make Mr. Navarro Hercules “pay” if he
returned to El Salvador, accusing him of causing his brothers (who are also gang
members) to be jailed. Id. at 151.
The immigration judge found Mr. Navarro Hercules’s testimony credible. But
the judge further found that Mr. Navarro Hercules did not timely apply for asylum
2
Mr. Navarro Hercules testified that the police said they could not “really care
for” him. ROA, Vol. 1 at 144. In his brief, he asserts the police told him that “they
could not protect him.” Pet’r’s Br. at 39. In our view, he fairly characterizes his
testimony.
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and otherwise did not qualify for asylum, restriction on removal, or protection under
the Convention Against Torture. The Board adopted and affirmed the immigration
judge’s decision.
II. DISCUSSION
We have jurisdiction to review a final order of removal. 8 U.S.C.
§ 1252(a)(1). But our jurisdiction extends only to claims that were exhausted before
the agency. See Torres de la Cruz v. Maurer, 483 F.3d 1013, 1017 (10th Cir. 2007).
A noncitizen must “present the same specific legal theory to the [Board] before he or
she may advance it in court.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th
Cir. 2010).
When, as here, a single Board member issued a brief order affirming the
immigration judge’s decision, we generally confine our review to the Board’s
decision so long as it “contains a discernible substantive discussion.” Uanreroro v.
Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). But because the Board explicitly
adopted the immigration judge’s decision, we may consult that decision as well. See
Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007).
We review the Board’s legal conclusions de novo. Dallakoti v. Holder,
619 F.3d 1264, 1267 (10th Cir. 2010). And we review its factual findings for
substantial evidence, treating those findings as “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Id. (quotations
omitted).
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A. Asylum
To receive asylum, an applicant must show he or she is a “refugee,” 8 U.S.C.
§ 1158(b)(1)(B)(i). A refugee is someone who is unable or unwilling to return to
their country because of persecution or a well-founded fear of persecution on account
of any of five protected grounds: race, religion, nationality, political opinion, or
membership in a particular social group.3 Id. § 1101(a)(42); Rodas-Orellana v.
Holder, 780 F.3d 982, 986 (10th Cir. 2015). One way to obtain refugee status is to
show past persecution on account of a protected ground, which creates a rebuttable
presumption of a well-founded fear of future persecution on account of such a
ground. Rodas-Orellana, 780 F.3d at 986. Another way to obtain refugee status,
even without proving past persecution, is to show a subjectively genuine and
objectively reasonable fear of future persecution on account of a protected ground.
See Ritonga v. Holder, 633 F.3d 971, 976 (10th Cir. 2011).
Mr. Navarro Hercules claimed a well-founded fear of persecution on account
of his membership in two particular social groups—former bus employees and the
working poor. The Board found the gangs that Mr. Navarro Hercules fears “were
3
An applicant who lacks a well-founded fear of persecution can still obtain
refugee status by showing “a reasonable possibility that he or she may suffer other
serious harm upon removal to that country.” 8 C.F.R. § 208.13(b)(1)(iii)(B); see also
Krastev v. I.N.S., 292 F.3d 1268, 1271 (10th Cir. 2002). Mr. Navarro Hercules
argues the Board erred by failing to recognize that more factual findings were
necessary to determine if he could qualify for asylum based on “other serious harm”
that he might suffer in El Salvador. Pet’r’s Br. at 43 (quotations omitted). But he did
not exhaust his claim for relief under this theory. We therefore lack jurisdiction to
consider the claim and dismiss the part of his petition raising it.
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motivated by ordinary criminal motives” and that they were not “motivated to harm
him on account of his membership in a particular social group.” ROA, Vol. 1 at 3.
The government argues that he has abandoned any objection to this finding by failing
to adequately challenge it in his brief.
We choose instead to uphold the Board’s finding on the merits. Persecution is
on account of a protected ground if the ground “was or will be at least one central
reason for persecuting the applicant.” § 1158(b)(1)(B)(i). The record does not
compel the conclusion that gang members were or would be motivated to harm Mr.
Navarro Hercules on account of his membership in a particular social group. Instead,
he testified that the second bus attack occurred because the gang members blamed
him and his brother-in-law for the jailing of other gang members. And the
Salvadoran who threatened him in Indiana expressed the same motivation. This
evidence supports the immigration judge’s finding that any danger Mr. Navarro
Hercules would face in El Salvador would result from the perception that he
disrupted and resisted “the gang’s criminal operations.” ROA, Vol. 1 at 59. That
same evidence supports the Board’s finding that the gangs robbed, threatened, and
tried to kill Mr. Navarro Hercules based on “ordinary criminal motives.” Id. at 3.
Because substantial evidence supports the Board’s finding about the gang
members’ motives, we need not consider whether Mr. Navarro Hercules’s proposed
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particular social groups are cognizable.4 Even if they were, he would remain
ineligible for asylum because of the Board’s finding that he did not show a nexus
between the harm he fears and a protected ground.
We lack jurisdiction over Mr. Navarro Hercules’s remaining challenge to the
Board’s asylum decision—that the Board erred by failing to consider whether the
threat he received in Indiana should excuse the tardiness of his application.5 See
§ 1158(a)(2)(D) (excusing late asylum applications in cases involving changed or
extraordinary circumstances). He did not present this theory to the immigration
judge or the Board, so he did not exhaust the argument. We therefore dismiss the
part of his petition raising it.
B. Restriction on Removal
To qualify for restriction on removal, an applicant must show a clear
probability of persecution on account of a protected ground. See Rodas-Orellana,
780 F.3d at 987. This burden is greater than the burden for an asylum claim:
“Asylum requires proof of a well-founded fear of persecution whereas restriction
4
The government argues that we lack jurisdiction to decide whether the
proposed social groups are cognizable because the Board did not address that
question. But although the Board did not expressly address the validity of the
proposed groups, it adopted the immigrations judge’s decision without qualification.
And the immigration judge’s decision addressed the validity of the groups, at least to
some extent. For that reason, we have jurisdiction to decide whether Mr. Navarro
Hercules’s proposed social groups are valid, but our analysis makes deciding that
question unnecessary.
5
Mr. Navarro Hercules’s brief describes the threat as having occurred in
Chicago, but he testified that it occurred in Indiana.
7
requires proof that persecution is more likely than not.” Chaib v. Ashcroft, 397 F.3d
1273, 1277 (10th Cir. 2005) (quotations omitted). So Mr. Navarro Hercules’s
inability to meet the asylum burden necessarily precluded him from meeting the
greater restriction burden. See Rodas-Orellana, 780 F.3d at 987. We thus deny his
challenge to the Board’s finding that he is not eligible for restriction on removal.
C. The Convention Against Torture
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.” Karki v. Holder,
715 F.3d 792, 806 (10th Cir. 2013) (quotations 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 the government’s actual knowledge or willful acceptance; willful blindness is
enough. Karki, 715 F.3d at 806.
We cannot disturb the Board’s finding that Mr. Navarro Hercules did not show
that, if he returns to El Salvador, “it is more likely than not he will be tortured . . .
with the consent or acquiescence (including willful blindness) of a public official.”
ROA, Vol. 1 at 4. The record shows that gangs pose a danger in El Salvador,
including evidence that gangs control and restrict people’s movement in certain
8
territory.6 Also, Mr. Navarro Hercules testified that, following the second bus attack,
an officer told him that police could not protect him. But the record also shows that
the Salvadoran government has made efforts to arrest and imprison gang members.
This evidence undermines Mr. Navarro Hercules’s reliance on Karki, in which the
evidence showed that the government in the country of removal “regularly fail[ed] to
take action to prevent or punish . . . acts of torture.” 715 F.3d at 807. By contrast,
the record here supports the Board’s finding.
Mr. Navarro Hercules’s challenges to the agency’s treatment of the evidence
are unavailing. We see no support for his assertion that the Board failed to consider
certain evidence. That the Board did not mention particular evidence does not mean
it did not consider it. The Board does not need “to discuss every piece of evidence.”
Hadjimehdigholi v. I.N.S., 49 F.3d 642, 648 n.2 (10th Cir. 1995). Mr. Navarro
Hercules also argues that the Board relied on the immigration judge’s
mischaracterization of his testimony about law enforcement’s role in investigating
the bus robbery and in protecting him when the gang later attacked the bus again.
But the question for us is not whether the immigration judge mischaracterized parts
of the testimony. Rather, the question is whether substantial evidence supports the
Board’s finding that Mr. Navarro Hercules would not likely be tortured in El
Salvador with the acquiescence of a public official. It does.
6
Mr. Navarro Hercules contends that the gangs’ control of territory renders
them “quasi-governmental groups.” Pet’r’s Br. at 42. He did not present this theory
to the Board, so we lack jurisdiction to consider it.
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D. Requests for Remand
Throughout his brief, Mr. Navarro Hercules argues the Board did not
adequately explain its decision and asks us to remand the case for the Board to
provide additional reasoning. We decline to do so. The Board adopted the
immigration judge’s more detailed decision. The Board’s decision permits
“meaningful appellate review.” See Maatougui v. Holder, 738 F.3d 1230, 1243
(10th Cir. 2013).
To the extent Mr. Navarro Hercules asks us to remand the case for the agency
to consider claims that he failed to raise in his removal proceedings, we deny that
request. He offers no authority suggesting that a remand is appropriate for that
purpose.
III. CONCLUSION
We deny the petition in part and dismiss it in part.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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