Aguilar-Perez v. Sessions

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 13, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JUAN LUIS AGUILAR-PEREZ,
Petitioner,
v. No. 18-9513
(Petition for Review)
MATTHEW G. WHITAKER, Acting
United States Attorney General, 
Respondent.
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ORDER AND JUDGMENT * *
_________________________________
Before BACHARACH, PHILLIPS, and EID, Circuit Judges.
_________________________________
This appeal involves a petition for review of a decision by the Board
of Immigration Appeals. The petitioner (Mr. Aguilar-Perez) is a Mexican
citizen who overstayed his visa in the United States. He would ordinarily
be considered removable, but he sought asylum and withholding of
removal. The Board rejected both requests, and Mr. Aguilar-Perez
petitioned for review. We deny the petition.

We substitute Mr. Matthew G. Whitaker as the respondent. See Fed.
R. App. P. 43(c)(2).
**
The parties do not request oral argument, and it would not materially
aid our consideration of the appeal. So we have decided the appeal based
on the briefs. See Fed. R. App. P. 34(a)(2); Tenth Cir. R. 34.1(G).
The petition rests on facts that are largely undisputed. Before
entering the United States, Mr. Aguilar-Perez worked in Chihuahua,
Mexico, as a police officer. According to Mr. Aguilar-Perez, he and his
partner faced threats from a criminal group involved in killing, extortion,
kidnaping, and drug trafficking.
These threats led Mr. Aguilar-Perez to quit the police force. For
roughly two years, he continued to live in Mexico. But his fears resurfaced
when someone killed his former partner and tried to kill Mr. Aguilar-
Perez’s brother-in-law (who was also a Mexican police officer). Mr.
Aguilar-Perez entered the United States on a temporary visitor’s visa and
later sought asylum and withholding of removal. 1 The Immigration Judge
denied both forms of relief, and the Board of Immigration Appeals
affirmed. 2
Standard of Review
We review the Board’s decision, which consisted of a single Board
member’s summary decision. In reviewing the Board’s decision, we may
consult the Immigration Judge’s explanation. Neri-Garcia v. Holder, 696
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Mr. Aguilar-Perez also sought protection under the Convention
Against Torture. This request was denied, but Mr. Aguilar-Perez does not
seek review of this part of the Board’s decision.
2
The Immigration Judge rejected the asylum claim in part because it
was untimely. But the Board assumed timeliness, so we need not decide
whether the asylum claim was timely.
2
F.3d 1003, 1008–09 (10th Cir. 2012). Regardless of whether we consult the
Immigration Judge’s explanation, however, we engage in de novo review of
the Board’s decision. Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir.
2004).
Mr. Aguilar-Perez contends that the Board lacked substantial
evidence for the decision. To assess this contention, we regard the Board’s
factual findings as conclusive unless all reasonable decision-makers would
have disagreed. 8 U.S.C. § 1252(b)(4)(B); River-Barrientos v. Holder, 666
F.3d 641, 645 (10th Cir. 2012).
Asylum
Mr. Aguilar-Perez would be eligible for asylum only if he established
status as a refugee. 8 C.F.R. § 1208.13. He would be considered a refugee
if he experienced or would experience persecution in Mexico at least in
part because of his membership in a particular social group. 8 U.S.C.
§ 1101(a)(42)(A); Karki v. Holder, 715 F.3d 792, 800 (10th Cir. 2013). Mr.
Aguilar-Perez requested asylum based on both past persecution and fear of
future persecution.
He based both requests on his membership in a particular social
group consisting of incorruptible former police officers. The Board
assumed that this group could qualify as a particular social group. But
membership of that group is not enough; Mr. Aguilar-Perez also needed to
tie his persecution to his status as a former police officer.
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For the sake of argument, we assume that the Board could have found
a connection between the past persecution and Mr. Aguilar-Perez’s status
as an incorruptible former police officer. But the Board found no
connection, so we ask only whether the Board’s finding was reasonable.
We believe that it was. Mr. Aguilar-Perez did face threats and intimidation
while working as a police officer. But he had quit the police force roughly
two years before immigrating to the United States, and he has not alleged
exposure to persecution after quitting the police force. Thus, a reasonable
decision-maker could reject a connection between the threats to Mr.
Aguilar-Perez as an active police officer and his current status as an
incorruptible former police officer.
Mr. Aguilar-Perez also insists that he fears future persecution if he
returned to Mexico. For this claim, he needed to show that he reasonably
feared persecution based on evidence that was both credible and direct.
Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004). We can again
assume for the sake of argument that a reasonable decision-maker could
have credited Mr. Aguilar-Perez’s allegation. But the Board didn’t credit
this allegation, and the Board’s factual determination was reasonable.
Mr. Aguilar-Perez testified that he had information that a criminal
group in Mexico had been killing former police officers. He also presented
an article stating that a Mexican police chief had been targeted even after
leaving the police force. According to the article, the former police chief
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had obtained recognition for cutting crime in both Tijuana and Ciudad
Juarez.
But the Board could legitimately conclude that Mr. Aguilar-Perez had
not genuinely or reasonably feared persecution as a former police officer.
The article referred only to a single report of violence against a former
police chief. And all of the other documentary evidence related only to
violence against active Mexican police officers and other public officials.
So the Board’s factual finding was supported by substantial evidence. See
Estrada-Escobar v. Ashcroft, 376 F.3d 1042, 1047–48 (10th Cir. 2004)
(upholding the denial of a former Peruvian police officer’s asylum claim
based on a fear of future persecution despite evidence that a high-profile
activist had been assassinated after leaving and returning to Peru); see also
Ahmed v. Ashcraft, 348 F.3d 611, 617–19 (7th Cir. 2003) (holding that the
Board had substantial evidence to reject a former Algerian police officer’s
claim for asylum based on a fear of future persecution).
We therefore conclude that the Board had substantial evidence to
reject the asylum claim.
Withholding of Removal
Mr. Aguilar-Perez bore an even greater burden to justify withholding
of removal. Zhi Wei Pang v. Holder, 665 F.3d 1226, 1233 (10th Cir. 2012).
Because he failed to show eligibility for asylum, the Board could
reasonably conclude that he would also fail to justify withholding of
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removal. See Rodas-Orelanna v. Holder, 780 F.3d 982, 987 (10th Cir.
2015) (“Failure to meet the burden of proof for an asylum claim
necessarily forecloses meeting the burden for a withholding claim.”).
* * * *
We conclude that substantial evidence existed for the denial of both
asylum and withholding of removal. Given these conclusions, we deny the
petition for review.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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