Vazquez v. Garland ( 2021 )

Appellate Case: 20-9641 Document: 010110616046 Date Filed: 12/08/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 8, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
IVIS N. VAZQUEZ; BLANCA
MARLENE GUTIERREZ-DE VASQUEZ;
H. VASQUEZ-GUTIERREZ; E.
VASQUEZ-GUTIERREZ,
Petitioners,
v. No. 20-9641
(Petition for Review)
MERRICK B. GARLAND, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, MORITZ, and ROSSMAN, Circuit Judges.
_________________________________
Ivis N. Vazquez, his wife, and his two children, are natives and citizens of El
Salvador who entered the United States without permission. An immigration judge
(IJ) found them removable and ineligible for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). The Board of Immigration
Appeals (BIA) affirmed in a single-member summary disposition. Vazquez and his
*
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 This order and judgment is not binding precedent,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.
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family now petition for review of that decision. We have jurisdiction under 8 U.S.C.
§ 1252(a), and we deny the petition.
I. STANDARD OF REVIEW
We review the BIA’s decision, but we may consult the IJ’s more-complete
discussion of the same grounds relied upon by the BIA. Uanreroro v. Gonzales,
443 F.3d 1197, 1204 (10th Cir. 2006). “[W]e will not affirm on grounds raised in the
IJ decision unless they are relied upon by the BIA in its affirmance.” Id.“[A]dministrative 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).
II. BACKGROUND & PROCEDURAL HISTORY
Vazquez and his family entered the United States in July 2016 by crossing the
Rio Grande near Hidalgo, Texas. They soon applied for asylum, withholding of
removal, and CAT protection. Vazquez’s wife and children applied as derivative
beneficiaries of Vazquez himself. We therefore do not separately discuss their
eligibility for relief.
As an asylum applicant, Vazquez must establish he suffered or reasonably
fears suffering persecution “on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). At his
asylum hearing, the IJ asked, “[W]hat are the particular social groups . . . in this
case?” R. at 129. Vazquez’s attorney responded by identifying a “political [sic]
social group” described as “victims of threats from . . . MS gang members in El
Salvador.” Id. Vazquez then testified that the MS gang took over his neighborhood
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in El Salvador, leading to three confrontations that motivated him to flee the country
and seek asylum in the United States.
The first encounter was in February 2016, when a gang member displayed a
firearm in his waistband and told Vazquez he must drive with his headlights off at
night, to distinguish him from non-residents of the neighborhood. Vazquez
responded that he “didn’t want to.” Id. at 135. Vazquez’s attorney asked, “Why did
you tell [the gang member] that?” Id. Vazquez answered, “Because I don’t agree
with regulations that aren’t normal in a society.” Id.The second encounter was in May 2016, when MS gang members stopped him
at night while he was driving with his headlights on, brandished firearms, and
threatened to kill Vazquez and his family if he did not follow their rule. Vazquez’s
wife reported this incident to a national police agency (not local police, fearing them
incompetent or corrupt).
The third and final encounter was in June 2016, while Vazquez was walking in
his neighborhood. An MS gang member approached him, accused him of not
following orders, and threatened that he or a family member would be killed if he
was seen in the area again. So he and his family fled to the United States.
Vazquez’s wife also testified at the hearing. Her testimony was consistent
with her husband’s, except she had no personal knowledge of the third encounter
because she had not been there.
At the conclusion of the hearing, the IJ found Vazquez and his wife credible.
The IJ ruled, however, that the threats and harassment to which they testified did not
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qualify as “persecution” under the statutes and regulations governing asylum.
Alternatively, the IJ found: (i) “victims of threats from MS gang members in El
Salvador,” id. at 3 (internal quotation marks omitted), is not a particular social group
because it is circular, and is otherwise not socially distinct; (ii) to the extent Vazquez
asserted persecution on account of political opinion (e.g., his opposition to
“regulations that aren’t normal in a society,” id. at 135), he had not established that
the MS gang was threatening him because of that opinion; and (iii) Vazquez had
failed to establish that the Salvadoran government is unable or unwilling to control
criminal gangs.
Recognizing that one can seek asylum “because of [past] persecution or a well-
founded fear of [future] persecution,” 8 U.S.C. § 1101(a)(42)(A), the IJ then
addressed the possibility of future persecution. On this question, the IJ found against
Vazquez for some of the same reasons already explained, namely, inability “to show
a viable particular social group” and inability “to show that they [i.e., Vazquez and
his wife] hold a political opinion or a political opinion [that] was imputed to them, or
that they . . . would be harmed in the future on account of an imputed political
opinion or a political opinion.” R. at 82–83.1
For all these reasons, the IJ denied asylum. And because withholding of
removal requires an even stricter standard of proof, the IJ likewise denied
withholding.
1
The IJ added that the claim of future persecution failed because Vazquez had
not shown that relocating within El Salvador was infeasible. But the BIA did not
mention this part of the IJ’s reasoning in its decision, so we do not consider it.
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Finally, the IJ denied CAT protection because “[t]here is simply insufficient
evidence in the record that the respondents will likely be tortured in their country by
or at the instigation of or with the consent or acquiescence of a public official or
person acting in an official capacity.” Id. at 83.
Vazquez appealed to the BIA, which adopted the IJ’s reasoning on all issues,
with one modification. Regarding the Salvadoran government’s ability or
willingness to control the MS gang, the BIA held that Vazquez had not
“meaningfully challenge[d]” the IJ’s disposition, so the BIA “deem[ed] the issue
waived.” Id. at 4. But the BIA further stated that it “would affirm” the IJ’s
disposition for the reasons stated by the IJ, if it were to reach the merits. Id.Vazquez then timely petitioned this court for review.
III. ANALYSIS
Vazquez argues that he qualifies for asylum under particular-social-group and
political-opinion theories, and that he otherwise qualifies for CAT protection. We
address these arguments in turn.2
A. Asylum
1. “Particular Social Group”
a. Vazquez’s Original PSG
We first examine the BIA’s conclusion that “victims of threats from MS gang
members in El Salvador” is not a valid particular social group (PSG). Id. at 3
2
Vazquez offers no argument specific to withholding of removal, so we
presume he concedes the BIA’s conclusion that failure to qualify for asylum means
he likewise fails to qualify for withholding.
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(internal quotation marks omitted). If this conclusion is supportable, we need not
examine the BIA’s other reasons for denying Vazquez’s PSG-based asylum claim.
See Zzyym v. Pompeo, 958 F.3d 1014, 1033–34 (10th Cir. 2020) (“[W]e can uphold
administrative action when an agency gives two independent reasons and only one of
them is valid.”).
The Immigration & Nationality Act (INA) does not define “particular social
group,” so the BIA has developed its meaning through case law. See, e.g., Matter of
Acosta, 19 I. & N. Dec. 211, 232–34 (BIA 1985). Especially relevant here, the BIA
says that “[p]ersecutory conduct aimed at a social group cannot alone define the
group, which must exist independently of the persecution.” Matter of W-G-R-,
26 I. & N. Dec. 208, 215 (BIA 2014). The BIA cited W-G-R- when upholding the
IJ’s conclusion that Vazquez’s proposed PSG is “impermissibly circularly defined by
the fact that its members have been subjected to harm.” R. at 3 (internal quotation
marks omitted).
Vazquez faults the BIA for also citing a different decision, Matter of A-B-,
27 I. & N. Dec. 316 (A.G. 2018). There, then-Attorney General Sessions held that
the BIA should not have endorsed “married women in Guatemala who are unable to
leave their relationship” as a cognizable PSG, id. at 319 (internal quotation marks
omitted), because “[g]enerally, claims by aliens pertaining to domestic violence or
gang violence perpetrated by non-governmental actors will not qualify for asylum,”
id. at 320. Vazquez says that A-B- is undeserving of deference and the BIA should
not have followed it.
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Shortly after briefing concluded in this appeal, current Attorney General
Garland vacated A-B- (which he denominated “A-B- I ”) in anticipation of formal
rulemaking to define “particular social group.” See Matter of A-B-, 28 I. & N. Dec.
307, 308 (A.G. 2021). He further instructed the immigration courts to “follow
pre-A-B- I precedent” until that rule is promulgated. Id. at 309.
A-B- I ’s vacatur does not affect the outcome here. “Pre-A-B- I precedent”
includes W-G-R-, and W-G-R- establishes that “[p]ersecutory conduct aimed at a
social group cannot alone define the group, which must exist independently of the
persecution.” 26 I. & N. Dec. at 215. The BIA clearly had this in mind—and not
A-B- I ’s general presumption against private-violence-based PSG claims—when it
ruled that Vazquez’s proposed PSG was “impermissibly circularly defined by the fact
that its members have been subjected to harm.” R. at 3.
Vazquez does not argue that W-G-R- was wrongly decided or undeserving of
deference. And we frankly cannot see how this part of W-G-R- could be incorrect.
The statute requires persecution “on account of” the protected characteristic, such as
“membership in a particular social group.” 8 U.S.C. § 1101(a)(42)(A). No one can
be a member of a persecution-defined PSG until they suffer persecution, yet they
cannot suffer persecution “on account of” their membership in that PSG until they
have been persecuted. So a persecution-defined PSG makes nonsense of the statute.3
3
In a similar vein, the IJ said, “Respondents also suffer a nexus problem,
which is essentially the issue with the circular definition. They cannot show that they
were threatened on account of being threatened, or are victims of threats on account
of being victims of threats.” R. at 94. Vazquez claims this “intentionally
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We therefore find Vazquez’s argument regarding A-B- I irrelevant.
Finally, Vazquez accuses the IJ of failing to “seek[] clarification [regarding his
PSG], as required by Matter of W-Y-C- & H-O-B-[, 27 I. & N. Dec. 189, 191 (BIA
2018)].” Pet’r Opening Br. at 34. W-Y-C- says, “If an applicant is not clear as to the
exact delineation of the proposed social group, the Immigration Judge should seek
clarification . . . .” 27 I. & N. Dec. at 191. Vazquez interprets this as a requirement
that the IJ prod the asylum applicant until he states a cognizable PSG, before taking
testimony.
We disagree with Vazquez’s interpretation of W-Y-C-. The applicant in that
case claimed “a social group comprised of ‘[s]ingle Honduran women age 14 to 30
who are victims of sexual abuse within the family and who cannot turn to the
government.’” Id. at 189. This was the PSG the applicant claimed after the IJ had
sought clarification. See id. at 191 (“If an applicant is not clear as to the exact
delineation of the proposed social group, the Immigration Judge should seek
clarification, as was done in this case.” (emphasis added)). The IJ went on to find
that this was not a cognizable PSG. Id. at 189–90. On appeal, the applicant
conceded she had not stated a valid PSG and asked the BIA to consider a new PSG,
“namely, ‘Honduran women and girls who cannot sever family ties.’” Id. at 190. So
the BIA asked whether it could consider a PSG articulated for the first time on
misconstrues [his] testimony” because he “never stated that he was threatened for
being threatened or feared threats because he had suffered threats.” Pet’r Opening
Br. at 27. But the IJ was not commenting on Vazquez’s testimony. He was merely
explaining from a different angle why the statute cannot embrace Vazquez’s
proposed PSG.
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appeal. The answer in that case was no because the new PSG was “substantially
different from the one delineated below,” meaning the IJ “did not have the
opportunity to make the underlying findings of fact that are necessary to [the BIA’s]
analysis of the [applicant’s] eligibility for asylum.” Id. at 192.
Given this context, we understand the BIA’s “seek clarification” instruction as
part of its emphasis on developing a factual record tied to a specific PSG, in turn
emphasizing why the BIA generally cannot consider new PSGs on appeal. See id.
at 191. Nothing in W-Y-C- suggests the IJ must ask clarifying questions until the
applicant states a cognizable PSG.
In short, we see no error in the BIA’s conclusion that the INA cannot
accommodate “victims of threats from MS gang members in El Salvador” as a PSG.
R. at 3 (internal quotation marks omitted). We also see no procedural error in the
agency’s handling of this claim. We affirm the BIA’s denial of asylum based on this
proposed PSG, and we need not reach any of the BIA’s alternative conclusions
leading to the same result.
b. Vazquez’s Alternate PSG on Appeal to the BIA
Vazquez says his “prior attorney articulated a new PSG [on appeal to the BIA],
based on the same set of facts established before the IJ: individuals in El Salvador
who report gang activities to the authorities. The [BIA] did not acknowledge this
PSG at any point in its decision.” Pet’r Opening Br. at 34 (citation omitted). We
presume Vazquez intends to sidestep W-Y-C- with the qualifier, “based on the same
set of facts.” Regardless, we disagree that Vazquez presented a new PSG to the BIA.
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The only PSG Vazquez explicitly identified in his BIA briefing is the same
one already addressed above. See R. at 17 (“Respondent is a member of the
particular social group comprised of ‘victims of threats from MS 18 Gang Members
in El Salvador’ . . . .”). In the middle of arguing for asylum under that proposed
PSG, Vazquez included several non sequitur assertions that seem copied from a
different brief, e.g., “Respondent’s social group is composed of members who share
the common immutable characteristic[s] of gender, nationality, and intimate
relationship.” Id. at 18. Some of those non sequitur assertions involve violence
against those who report gang activity, e.g., “There is substantial evidence that gangs
whom [sic] control the area were motivated to harm [Vazquez] because [he] reported
their activities to authorities.” Id. But we cannot fault the BIA for failing to interpret
this as a new proposed PSG. Vazquez never identified it as such and never asked the
BIA to consider it in the alternative to his existing theory. Nor did he cite evidence
supporting the claim that the MS gang knew he had reported anything to the
authorities.4
In this light, we need not examine whether the BIA could have entertained a
new PSG theory on appeal. We hold instead that Vazquez did not fairly present this
theory to the BIA. He therefore did not exhaust it, so we lack jurisdiction to consider
it. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if
. . . the alien has exhausted all administrative remedies available to the alien as of
4
Vazquez’s testimony was that he did not report anything to the authorities,
because he believed it would be futile. His wife made a report, but there is still no
evidence that the MS gang knew as much.
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right . . . .”); Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) (“To
satisfy § 1252(d)(1), an alien must present the same specific legal theory to the BIA
before he or she may advance it in court.”).
2. Political Opinion
Vazquez also challenges the agency’s conclusion that he does not qualify for
asylum based on political opinion. He claims the opinion in question is his
opposition to “regulations that aren’t normal in a society,” such as the gang’s
insistence that he drive with his lights off at night. R. at 135. He particularly focuses
on the IJ’s finding that “[t]he gang is targeting the respondents and their family
because they view them as a threat to their continued stranglehold on the
neighborhood and that they are opposing their authority. The Court cannot find that
this qualifies under a political opinion rubric . . . .” Id. at 81. Vazquez says “[i]t
defies any reasonable explanation why these facts do not establish a nexus between
the feared harm and [his] articulated political opinion.” Pet’r Opening Br. at 39.
An alleged persecutor’s motivation is “a classic factual question.” Crespin-
Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011). We cannot say that “any
reasonable adjudicator would be compelled to conclude to the contrary” on this issue.
8 U.S.C. § 1252(b)(4)(B). To begin, there is no evidence that Vazquez expressed his
political opinion to the gang members. Even if he did, the evidence does not compel
the conclusion that the gang continued to threaten him because it wanted to suppress
his general philosophical opposition to abnormal regulations. Rather, the last gang
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member to threaten him—the threat that motivated Vazquez to flee—said only that
Vazquez “didn’t follow [the gang’s] orders.” R. at 140–41.
We therefore reject Vazquez’s argument that the agency erred when analyzing
his asylum claim based on political opinion.
B. CAT Protection
Even if Vazquez does not qualify for asylum, he may still qualify for CAT
protection if he “is more likely than not to be tortured” upon return to El Salvador.
8 C.F.R. § 1208.17(a). But such torture must be “inflicted by, or at the instigation of,
or with the consent or acquiescence of, a public official acting in an official
capacity.” Id. § 1208.18(a)(1).
The IJ denied CAT protection because “[t]here is simply insufficient evidence
in the record that the respondents will likely be tortured in their country by or at the
instigation of or with the consent or acquiescence of a public official or person acting
in an official capacity.” R. at 83. This portion of the IJ’s decision contains no
discussion of the evidence and the BIA affirmed without elaboration. Vazquez
argues that the agency erred by merely announcing its conclusion, rather than
providing discussion.
“We may not supply a reasoned basis for the agency’s action that the agency
itself has not given. We will, however, uphold a decision of less than ideal clarity if
the agency’s path may reasonably be discerned.” Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation
marks and citation omitted). Here, we can reasonably discern that the IJ had in mind
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the asylum-related analysis he had just given when he ruled on the CAT question. In
particular, the immediately preceding pages of his opinion address whether the
Salvadoran government is unable or unwilling to control criminal gangs. See R.
at 81–82. This is functionally the same question as whether the Salvadoran
government consents to or acquiesces in torture committed by those gangs. See
Sidabutar v. Gonzales, 503 F.3d 1116, 1125–26 (10th Cir. 2007) (equating the two
inquiries). Vazquez understands as much because the portion of his brief regarding
consent and acquiescence refers us back to his discussion of inability or
unwillingness. Compare Pet’r Opening Br. at 42 (in the asylum context, asserting
that “[t]he IJ’s factual findings in this case clearly indicated that El Salvador is
wholly unable to protect its citizens from gang violence”), with id. at 44 (in the CAT
context, asserting that “he established the government of El Salvador turns a blind
eye to harm perpetrated by the MS gang against the citizens of El Salvador, as
discussed above”).
The BIA held that Vazquez waived his challenge to the IJ’s findings regarding
the Salvadoran government’s ability and willingness to control criminal gangs. From
our perspective, this is a question of administrative exhaustion. See Soberanes v.
Comfort, 388 F.3d 1305, 1308–09 (10th Cir. 2004) (“Neglecting to take an appeal to
the BIA constitutes a failure to exhaust administrative remedies as to any issue that
could have been raised, negating the jurisdiction necessary for subsequent judicial
review.”).
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We have reviewed Vazquez’s BIA appeal brief. The only passage approaching
the ability/willingness question is a single sentence, without accompanying citations,
in the section on withholding of removal (not CAT protection): “The MS [gang] is a
quasi-governmental group since they are operating unchecked in El Salvador by the
[Salvadoran] officials.” R. at 20. We concur with the BIA that this sentence does
not “meaningfully challenge” the IJ’s disposition of this issue. Id. at 4. Finally, we
note that the CAT section of Vazquez’s BIA appeal brief does not discuss consent or
acquiescence beyond quoting the regulatory definition of “acquiescence.” Id. at 20.
We therefore lack jurisdiction to review Vazquez’s claim that the agency should have
ruled in his favor on this issue.
IV. CONCLUSION
We deny the petition for review.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
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