Amador-Lechuga v. Garland ( 2022 )

Appellate Case: 21-9555 Document: 010110688652 Date Filed: 05/25/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 25, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
ARTURO AMADOR-LECHUGA,
Petitioner,
v. No. 21-9555
(Petition for Review)
MERRICK B. GARLAND, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, BALDOCK, and EID, Circuit Judges.
_________________________________
Arturo Amador-Lechuga, a native and citizen of Mexico, petitions for review
of a decision of the Board of Immigration Appeals (BIA) upholding the denial of his
applications for withholding of removal and relief under the Convention Against
Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we deny the
petition for review.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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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BACKGROUND
Amador-Lechuga most recently entered the United States in March 2019. This
was his third recorded attempt to enter this country. He previously attempted an
entry in 2015 but was removed to Mexico pursuant to an expedited removal order. In
2018, after he again attempted to enter the United States, the Department of
Homeland Security reinstated his underlying removal order and again removed him
to Mexico. As a result of this second entry, he was convicted in federal court of
illegal reentry.
In the 2015 and 2018 removal proceedings and in his criminal proceeding,
Amador-Lechuga did not express a fear of returning to Mexico. But after the March
2019 entry an asylum officer interviewed him and found he had established a
reasonable fear of torture if removed to Mexico. As a result, he was placed in
withholding-only proceedings, see 8 C.F.R. § 1208.31(e), where he filed an
application for withholding of removal and CAT relief. An immigration judge (IJ)
held a hearing on his application.
Amador-Lechuga testified at the hearing that he grew up in Durango, Mexico.
He worked for 16 years as a policeman. His last position with the police, which he
held for more than four years, required him to guard a district attorney.
Problems developed for him in that position after the director of the judicial
police reassigned him to guard a drug cartel leader. Amador-Lechuga initially
refused, telling the director that he “wasn’t willing to participate in that and that I did
not want that assignment.” R., Vol. 1 at 98. The director became upset and insisted
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in a threatening manner that he would have to take the assignment or “face the
consequences.” Id. at 99. Amador-Lechuga complied and guarded the cartel boss for
over a year. During this time, he reported to the director once or twice a week.
When the director asked him how the job was going, he responded that “it was fine.”
Id. at 101.
Four months after the guard assignment began, Amador-Lechuga sought
medical disability for a knee issue. He hoped this would give him a reason to leave
his assignment. But when he submitted his disability paperwork to the director, the
director became upset, refused to release him from the assignment, and told him he
had to get back to work.
Around the same time, a fellow agent who was also assigned to guard the
cartel boss decided to flee. He left Amador-Lechuga his weapons and departed.
According to Amador-Lechuga, the agent fled “[b]ecause of fear” of “[t]he cartel and
the retaliation he could suffer from the director.” Id. at 103.
The assignment eventually ended when the Mexican navy captured the cartel
boss. Amador-Lechuga became afraid that the cartel would retaliate against him
because the man he had been assigned to guard had been captured. He hid in his
home for approximately 15 days. When he left his home to visit his mother, the
police caught him.
The police took him to the prosecutor’s office and turned him over to the
director. The director asked him what had happened. Amador-Lechuga explained
that the navy had captured the cartel boss and that he had had nothing to do with that.
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The director responded “[t]hat nobody needed to know about this and that [he] wasn’t
supposed to speak to anybody.” Id. at 107. Amador-Lechuga began to argue with
the director, telling him that “they were responsible for what was happening to me
because they had sent me to guard this person.” Id.The director got on the phone with someone who Amador-Lechuga believes
was a highly placed member of the cartel. He handed the phone to Amador-Lechuga.
The person on the phone told him they were going to get him and kill him by burning
him alive. When Amador-Lechuga asked the director why they were doing this, the
director responded that it was the cartel, not he, who gave the orders.
Amador-Lechuga tried to flee, but he was caught outside the director’s office
and taken to a cell. After he spent seven hours in the cell, he was taken to a
warehouse, seated in a chair, and handcuffed. The director told Amador-Lechuga
that Amador-Lechuga “couldn’t say anything” because “what [he] knew wasn’t
supposed to be known.” Id. at 111. He then placed another call to the cartel member
and held the phone up to Amador-Lechuga’s ear. The person on the phone again
threatened to burn him alive.
Despite the death threats, the director and the cartel member reached an
agreement with Amador-Lechuga that he would be permitted to leave his position
and “disappear.” Id. at 112. After fleeing, however, Amador-Lechuga continued to
fear for his life because he believed the agreement to let him go had only provided
him with a temporary reprieve.
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He went to hide at his sister’s house. For the next seven to nine months, he
only left the house once, to consult with a lawyer about filing a wrongful termination
suit. After the attorney filed a suit against the district attorney’s office, its acting
director sent Amador-Lechuga a message through his attorney “saying not to stir
anything with that matter because I already knew what was going to happen to me.”
Id. at 121. As a result, his attorney became afraid and abandoned the lawsuit, which
apparently was dismissed.
Amador-Lechuga began to feel unsafe at his sister’s house, so he went to hide
in the mountains for around six months, then moved to Ciudad Juarez near the border
with the United States. From Ciudad Juarez, he made his first attempt to enter the
United States. He was caught and removed. When asked during the removal process
if he was afraid to return to Mexico, he said he was not. He explained this response
by claiming that he did not understand the asylum process and thought if he
expressed such a fear he would be turned over to the Mexican government.
Amador-Lechuga was removed to Mexico City and returned voluntarily to
Durango to stay at his sister’s house. From there, he moved to a ranch for a few
months, then relocated to Reynosa, where he made another attempt to cross the
border but was caught again. He was removed to Mexico a second time and he again
returned to Durango. He then returned to Ciudad Juarez and made his current, third
attempt to enter the United States.
In his testimony, Amador-Lechuga also described an additional threat that
occurred after his March 2019 entry. A group of people dressed in military-style
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uniforms entered his brother-in-law’s house in Mazatlan, about three and a half hours
from Durango. They beat the brother-in-law and asked about Amador-Lechuga’s
whereabouts. They then kidnapped the brother-in-law and warned the family that if
they filed a police report they would return and kill them all. The family has not seen
the brother-in-law since. Amador-Lechuga believes he was killed.
Amador-Lechuga testified there was no place in Mexico where he could live
safely because “the cartel and the government are equals” and “[t]hey work
together.” Id. at 126. He alleges past and future persecution due to his anti-cartel or
anti-corruption political opinions, whether real or imputed, and because he belongs to
a social group of former Mexican law enforcement officers or former Mexican law
enforcement officers against corruption.
The IJ did not find Amador-Lechuga’s testimony credible. But she stated that
credibility aside, Amador-Lechuga’s “inconsistencies, vague testimony, and lack of
corroboration fail to persuade the Court that his fears of persecution or torture are
likely to be realized.” Id. at 65. She denied his withholding claim because he had
not established a nexus to a protected ground. The IJ further determined that
Amador-Lechuga had not established his eligibility for CAT protection because his
past harm did not rise to the level of torture; he had not filed a police report, even
when in other parts of Mexico than those where the harm occurred; he had not shown
why he would suffer torture in other parts of the country or could not reasonably
relocate to avoid future harm; he failed to provide corroboration for the events
involving his brother-in-law or to explain the kidnapping after a seven-year period
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during which his other relatives in or near Durango had not been harmed; and he
failed to show that he would be tortured by or with the acquiescence of the Mexican
government.
Amador-Lechuga appealed to the BIA. The BIA determined that even if he
had testified credibly, he failed to show that the IJ’s determination that he had failed
to establish a nexus between past or future harm and a protected ground was clearly
erroneous. Addressing his CAT claim, the BIA “discern[ed] no clear error in the
[IJ’s] determination that [he] did not establish that he will more likely than not be
tortured in Mexico by or with the consent or acquiescence of a public official.” Id. at
4.
DISCUSSION
On appeal of a BIA order, “[t]he scope of our review is governed by the form
of the BIA decision.” Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir. 2011).
Where, as here, a single Board member issues a brief order affirming the IJ’s
decision, we review the order as the final agency determination and limit our review
to the grounds relied upon by the BIA. Uanreroro v. Gonzales, 443 F.3d 1197,
1203-04 (10th Cir. 2006). But “when seeking to understand the grounds provided by
the BIA, we are not precluded from consulting the IJ’s more complete explanation of
those same grounds.” Id. at 1204.
“[W]e review the agency’s findings of fact under the substantial evidence
standard. Under that test, our duty is to guarantee that factual determinations are
supported by reasonable, substantial and probative evidence considering the record as
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a whole.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004). “To obtain
reversal of factual findings, a petitioner must show the evidence he presented was so
compelling that no reasonable factfinder could find as the BIA did.”
Gutierrez-Orozco v. Lynch, 810 F.3d 1243, 1245 (10th Cir. 2016) (internal quotation
marks omitted). We review the agency’s legal determinations de novo. See Elzour,
378 F.3d at 1150.
1. Withholding of Removal
To obtain withholding of removal, Amador-Lechuga needed to demonstrate
that his “life or freedom would be threatened in [Mexico] because of [his] race,
religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A); see also id. § 1229a(c)(4)(A) (stating non-citizen has
burden to establish entitlement to relief). The parties agree this required him to
establish a “nexus” between the harm asserted and one of the protected grounds by
showing that the protected ground “was or will be at least one central reason for
persecuting [him].” Id. § 1158(b)(1)(B)(i) (emphasis added).1
In establishing the required nexus, the motive of the alleged persecutors is
“critical.” Rodas-Orellana v. Holder, 780 F.3d 982, 996 (10th Cir. 2015) (internal
quotation marks omitted) (discussing similar nexus requirement for asylum claims).
“[T]he protected ground cannot play a minor role in the alien’s past mistreatment or
1
The “one central reason” standard is explicitly stated in the asylum statute.
See 8 U.S.C. § 1158(b)(1)(B)(i). Because Amador-Lechuga does not argue that a
different standard applies to the nexus requirement for his withholding claim, we
apply the “one central reason” standard to his claim.
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fears of future mistreatment. That is, it cannot 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).
Amador-Lechuga contends the BIA erred both legally and factually by finding
a lack of a sufficient nexus. He argues the BIA committed legal error by “simply
stat[ing] that the IJ did not err in finding [he] was targeted for personal retaliation,”
without considering the possibility that his persecutors acted from mixed motives and
that persecution for his anti-corruption beliefs was at least one central reason for their
actions. Pet’r Br. at 16. See Orellana-Recinos v. Garland, 993 F.3d 851, 855
(10th Cir. 2021) (acknowledging that an alleged “persecutor can have multiple
motives for targeting someone”).
But the BIA did not ignore mixed-motive evidence. Instead, after reciting the
“one central reason” standard, see Admin. R. at 4, it determined that
Amador-Lechuga’s “only testimony regarding motives of the corrupt police officers
and cartel members was that he feared personal retaliation for the cartel leader being
captured and he was threatened to not expose the relationship between the cartel and
corrupt police officers.” Id. (emphasis added). In other words, the BIA concluded
there was no evidence to support a finding that Amador-Lechuga’s anti-corruption
beliefs played any role in his past mistreatment or fear of future mistreatment that
could be factored into a mixed-motive analysis. We discern no error in failing to
perform a formal mixed-motive analysis where there was no evidence to suggest that
one central reason for the alleged persecution might have been a protected ground.
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But Amador-Lechuga also contends there was such evidence, and that the
BIA’s failure to consider it means its decision lacks substantial evidence. See Pet’r
Br. at 18 (“Every comment made and action taken by Mr. Amador Lechuga after he
was informed of the order to guard a cartel boss demonstrated his anti-corruption
beliefs. . . . [He] was never threatened until after he told [the director] he did not
want to be involved in the cartel and did not want the post.”).2
Evidence showing “corrupt officials who act solely out of personal revenge or
a desire to avoid the exposure of a lucrative scheme of corruption, without a
significant concern about the alien’s political beliefs, perceived or otherwise” does
not establish the requisite nexus. Matter of N-M-, 25 I. & N. Dec. 526, 531-32
(B.I.A. 2011). Nor is there evidence of concern or motivation for persecution
springing from Amador-Lechuga’s membership in a particular social group.3
Amador-Lechuga cites no evidence that he informed the director, or anyone else, that
he actively opposed their corruption. Nor did his persecutors mention his political
beliefs or his alleged anti-corruption stance. Instead, he infers that his persecutors
concluded from his complaints about, and attempts to avoid, his assignment that he
2
Amador-Lechuga does not point us to any testimony that he told the director
he “did not want to be involved in the cartel,” as opposed to merely stating he “did
not want the post,” Pet’r Br. at 18.
3
Amador-Lechuga focuses his analysis on the particular social group of
“Former Mexican law enforcement against corruption,” Pet’r Br. at 13 (emphasis
added, internal quotation marks omitted), thus tying his social group designation to
an anti-corruption stance. But for reasons the IJ gave, see R., Vol. 1 at 54, he also
failed to show a nexus to his alleged membership in the social group of “former
Mexican law enforcement,” generally.
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held anti-corruption beliefs. Even if one could plausibly draw such a proposed
inference from his testimony (which the BIA did not), to obtain a reversal of the
BIA’s factual findings Amador-Lechuga must show that no reasonable factfinder
would find as the BIA did. See Gutierrez-Orozco, 810 F.3d at 1245; see also
8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.”).
He has failed to satisfy that demanding standard concerning the BIA’s findings.4 We
therefore affirm the denial of withholding of removal relief.
2. CAT Relief
Unlike withholding of removal, CAT withholding does not require a nexus
between the asserted torture and a statutorily protected ground. See Ritonga,
4
Amador-Lechuga also argues that in reaching its determination concerning
nexus the BIA should have considered country conditions in Mexico, including the
“notorious[] corrupt[ion]” of the Mexican government, based on the voluminous
evidence he submitted. Pet’r Br. at 19. See Matter of N-M-, 25 I. & N. Dec. at 533
(in assessing nexus to a protected political belief, the agency “should also consider
evidence regarding the pervasiveness of government corruption, as well as whether
there are direct ties between the corrupt elements and higher level officials”). The IJ
stated she had “thoroughly considered all evidence submitted.” R., Vol. 1 at 64. The
BIA specifically addressed the evidence of “general country conditions documenting
corruption” in connection with the CAT claim. Id. at 4. “[T]he BIA has no duty to
write an exegesis on every contention.” Ritonga, 633 F.3d at 978 (internal quotation
marks omitted). Given Amador-Lechuga’s testimony concerning his alleged
persecutors’ motivations, the agency focused its nexus analysis on “personal
retaliation” from “corrupt police officers and cartel members.” See R., Vol. 1 at 4.
Amador-Lechuga fails to point to specific evidence that his reluctance to guard a
drug cartel boss or his persecutors’ fear that he might disclose their corrupt
arrangement implicated higher levels of the Mexican government or its political
system who might persecute him on political grounds, beyond the corrupt officials
and cartel members who threatened him. The agency adequately addressed the
relevant factors in connection with its nexus determination.
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633 F.3d at 978. “To be eligible for relief under the CAT, an individual must
establish that it is more likely than not that he or she would be tortured if returned to
the proposed country of removal.” Zhi Wei Pang v. Holder, 665 F.3d 1226, 1233-34
(10th Cir. 2012) (internal quotation marks omitted). Torture involves “severe pain or
suffering, whether physical or mental,” and must be “inflicted by, or at the instigation
of, or with the consent and acquiescence of, a public official acting in an official
capacity or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).
In assessing the likelihood of future torture, the agency should consider such
factors as (1) evidence of past torture inflicted upon the applicant; (2) evidence that
the applicant could relocate to a part of the country of removal where he is not likely
to be tortured; (3) evidence of mass violations of human rights within the country of
removal, where applicable; and (4) any other relevant information regarding
conditions in the country of removal. Id. § 1208.16(c)(3)(i)-(iv).
Here, the agency determined (1) Amador-Lechuga had not suffered harm
rising to the level of torture; (2) his threats of harm were localized to a limited area of
Mexico, namely, the state of Durango; (3) he never filed a police report about the
threats he received, even when he was in Ciudad Juarez, an area removed from the
alleged threats he faced; (4) the last alleged threat he received was in 2013, after he
filed a lawsuit for wrongful termination; and (5) his immediate family members and
siblings had remained in Durango without incident.
Amador-Lechuga argues he was previously tortured by Mexican governmental
officials. But torture “is an extreme form of cruel and inhuman treatment and does
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not include lesser forms of cruel, inhuman or degrading treatment or punishment that
do not amount to torture,” id. § 1208.18(a)(2) (emphasis added). The agency
reasonably determined that standard was not met here, based on the threats and brief
detention he endured. He also contends that country conditions in Mexico, when
considered along with his brother-in-law’s beating, kidnapping, and disappearance,
support his fear that he will more than likely be tortured if returned to Mexico. He
argues the BIA ignored evidence that the Mexican government fails to protect its
citizens from the drug cartels and participates in torture and human rights violations
on behalf of those cartels. But as the BIA noted, “the existence of a consistent
pattern of 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.” Matter of J-E-, 23 I. & N. Dec. 291, 303 (B.I.A. 2002), abrogated on other
grounds by Azanor v. Ashcroft, 364 F.3d 1013, 1019-20 (9th Cir. 2004). And the
agency found his unsupported and unexplained allegations about the brother-in-law’s
kidnapping unpersuasive. See R., Vol. 1 at 4-5, 69.
In sum, Amador-Lechuga’s arguments do not overcome the high bar necessary
to set aside the BIA’s factual findings in a petition for review. The BIA concluded
there was insufficient basis to conclude that he would likely face torture if he
returned to Mexico. We cannot conclude any reasonable factfinder would be
compelled to reach the opposite finding, Gutierrez-Orozco, 810 F.3d at 1245, and so
we cannot set aside the agency’s determination.
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3. Request for Three-Member Panel
Amador-Lechuga argues his administrative appeal should have been assigned
to a three-member panel, both because the BIA needed to review the IJ’s clearly
erroneous factual determination, see 8 C.F.R. § 1003.1(e)(6)(v); and because the BIA
needed to review the IJ’s decision which was not in conformity with the law or
applicable precedents, see id. § 1003.1(e)(6)(iii). The regulation he cites, however,
“does not mandate three-member panels,” but outlines the circumstances in which a
case may be assigned to a three-member panel. Maatougui v. Holder, 738 F.3d 1230,
1239 n.5 (10th Cir. 2013). The BIA will exercise review by a full three-member
panel and issue a full explanatory opinion only “in a particularly difficult or
important case.” Sarr v. Gonzales, 474 F.3d 783, 789 (10th Cir. 2007) (internal
quotation marks omitted). Amador-Lechuga fails to show that the BIA abused its
discretion in declining to refer his appeal to a three-member panel.
CONCLUSION
We deny the petition for review. We grant Amador-Lechuga’s motion for
leave to proceed on appeal without prepayment of costs or fees.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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