Fuentes-Chavarria v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 15, 2014
Elisabeth A. Shumaker
Clerk of Court
MARIA HILDA
FUENTES-CHAVARRIA,
Petitioner,
v. No. 13-9503
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before HARTZ, McKAY, and BACHARACH, Circuit Judges.
Maria Hilda Fuentes-Chavarria, a native and citizen of Honduras, seeks review
of the denial of her applications for asylum, restriction on removal, and protection
under the Convention Against Torture (CAT). We deny the petition for review.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. Background
Ms. Fuentes-Chavarria entered the United States in 2005 and was promptly
charged with being removable as an alien present without being lawfully admitted or
paroled, see 8 U.S.C. § 1182(a)(6)(A)(i). She applied for asylum and restriction on
removal under the Immigration and Nationality Act (INA), see 8 U.S.C.
§§ 1158(a)(1), 1231(b)(3), and protection under the CAT, see 8 C.F.R. § 1208.16(c),
claiming she had been raped by a gang member in Honduras. In her application she
sought relief on account of her membership in a particular social group, which she
later described as “economically marginalized and socially vulnerable[] young
women living in homes without an adult male presence.” Admin. R. at 491.
At a hearing before an immigration judge (IJ), Ms. Fuentes-Chavarria testified
as follows: She was born in 1982 and is one of ten children, including a twin sister.
She has several family members living in the United States, and the rest remain in
Honduras. In 2001 she met an older man named Francisco at a restaurant. He asked
for her telephone number, and they later talked on the phone. After some time,
however, she realized that Francisco was a gang member, and he confirmed that he
belonged to “MS,” id. at 304. On one later occasion, Francisco told her he wanted to
see her and meet her at a hotel, which scared her, particularly since he started talking
“differently” to her, telling her that “if you don’t want it the right way then it will be
whichever way I want it to be,” id. at 303-04.
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In recounting her rape, Ms. Fuentes-Chavarria testified that she had been
walking on the street when Francisco got her into his car. He drove her to a deserted
location and raped her. He then abandoned her, leaving her to walk home.
Ms. Fuentes-Chavarria did not contact the police because he had threatened to kill
her if she did. She said, “[H]e told me that if I, if I told the police what had
happened, he would do things to me, even kill me, and he could also tell his friends
to do to me whatever he wanted.” Id. at 290.
In the years following the assault, Ms. Fuentes-Chavarria became depressed
and turned suicidal. She was hospitalized for her mental condition for 15 days and
then released to her aunt, who lived some two hours away from the family home. But
Francisco contacted her there, prompting her to return to her home and eventually
leave for the United States.
In addition to this testimony, Ms. Fuentes-Chavarria presented Dr. Thomas
Boerman “as an expert on gangs and the . . . sociopolitical context in Honduras that
relates to gangs.” Id. at 320. He explained the historical evolution of gangs in
Honduras, the underlying reasons they persist, and the government’s efforts to deal
with them. He said that gangs target vulnerable women and that women who have
been singled out by gangs can expect no protection from the state.
Based on this and other evidence, Ms. Fuentes-Chavarria argued that she had
been persecuted “on account of her membership in a social group of economically
marginalized, socially vulnerable young women living in homes without male
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presence.” Id. at 350. Citing Dr. Boerman’s testimony, she argued that Francisco
had targeted her as a way of expanding his gang’s power over its territory. And, she
claimed, because the government was unable or unwilling to protect her, she was
entitled to relief.
The IJ rejected this theory. Acknowledging that there were “issues regarding
gang violence in Honduras,” the IJ found that Ms. Fuentes-Chavarria was unable “to
differentiate her case from that related to criminal violence of the gangs.” Id. at 157.
Making an alternative finding, however, the IJ said that if her alleged social group
were cognizable under the INA, she would have established a nexus and would have
been entitled to relief. Also, in denying restriction on removal, the IJ ruled that “the
harm that she suffered was not on account of one of the five enumerated grounds [for
relief under the INA].” Id. at 158. And in denying CAT protection, the IJ ruled that
she had been subjected to general criminal behavior that did not establish a likelihood
of torture upon removal.
The Board of Immigration Appeals (BIA) affirmed, concluding that the IJ
“correctly determined that the respondent’s asylum and [restriction on] removal
claims lacked the required nexus between any feared harm in Honduras and one of
the grounds enumerated in the [INA].” Id. at 78. It reasoned that
Ms. Fuentes-Chavarria had failed to show that her “proposed social group has the
requisite social visibility, or is defined with sufficient particularity, to qualify as a
particular social group within the meaning of the [INA].” Id. The BIA also said that
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she failed to show “that, even if such group existed, her membership in the group
would be ‘at least one central reason’ for any harm she fears in Honduras . . . .” Id.
(quoting 8 U.S.C. § 1158(b)(1)(B)(i)). Finally, the BIA ruled that she was not
entitled to CAT protection because she did not establish a likelihood that she would
be tortured “at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” Id. at 79.
II. Discussion
We review the BIA’s legal conclusions de novo and the agency’s factual
findings for substantial evidence. Karki v. Holder, 715 F.3d 792, 800 (10th Cir.
2013). The BIA’s decision “must be upheld if supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992) (internal quotation marks omitted). Where, as here, “a
single member of the BIA issues a brief order affirming an IJ’s decision, this court
reviews both the decision of the BIA and any parts of the IJ’s decision relied on by
the BIA in reaching its conclusion.” Razkane v. Holder, 562 F.3d 1283, 1287
(10th Cir. 2009). But “in deference to the agency’s own procedures, we will not
affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in
its affirmance.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006).
To be eligible for asylum, Ms. Fuentes-Chavarria had to show she was unable
or unwilling to return to Honduras “‘because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
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social group, or political opinion.’” Dallakoti v. Holder, 619 F.3d 1264, 1267
(10th Cir. 2010) (quoting 8 U.S.C. § 1101(a)(42)). To obtain restriction on removal,
she had to show that her “life or freedom would be threatened in [Honduras] because
of [her] race, religion, nationality, membership in a particular social group, or
political opinion.” Id. at 1267-68 (internal quotation marks omitted). In establishing
a nexus between the harm suffered or feared and a protected ground for relief,
Ms. Fuentes-Chavarria had the burden of establishing that a protected ground “‘was
or will be at least one central reason for persecuting [her].’” Id. at 1268 (quoting
8 U.S.C. § 1158(b)(1)(B)(i)). Because Ms. Fuentes-Chavarria asserted that she was
targeted on account of her membership in a particular social group, she had to
establish that her alleged group was socially visible and defined with sufficient
particularity. See Rivera-Barrientos v. Holder, 666 F.3d 641, 648-50 (10th Cir.
2012). “What constitutes a particular social group is a pure question of law that we
review de novo.” Cruz-Funez v. Gonzales, 406 F.3d 1187, 1191 (10th Cir. 2005).
The gist of Ms. Fuentes-Chavarria’s argument on appeal is that (1) the IJ did
not make the findings necessary to determine whether she belonged to a social group
cognizable under the INA or whether there was a nexus between her persecution and
her membership in that group and (2) the BIA cannot make fact findings and did not
conduct an adequate legal analysis of whether her purported social group is a
cognizable one. We disagree. The BIA’s decision states, “We are not persuaded that
the respondent’s proposed social group has the requisite social visibility, or is
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defined with sufficient particularity, to qualify as a particular social group within the
meaning of the [INA].” Admin. R. at 78. We do not read this ruling as involving
any fact finding. As noted above, determining whether a group is a social group
within the meaning of the INA is a legal question. The BIA was determining that
based on Ms. Fuentes-Chavarria’s evidence, even accepting all her factual assertions
as true, her purported social group did not satisfy the INA’s requirements. Although
Ms. Fuentes-Chavarria asserts that the BIA’s statement is an inadequate explanation
of its decision, the agency’s decision need only enable us to conduct a review and
show that the agency has properly considered the issue, see Ritonga v. Holder,
633 F.3d 971, 975 (10th Cir. 2011) (“What is required is merely that the BIA
consider the issues raised, and announce its decision in terms sufficient to enable a
reviewing court to perceive that it has heard and thought and not merely reacted.”
(internal quotation marks and brackets omitted)); Jimenez-Guzman v. Holder,
642 F.3d 1294, 1299 n.2 (10th Cir. 2011) (applying same standard to reject alien’s
“formalistic notion” that agency “is required to make an explicit statement that its
review is for clear, unequivocal, and convincing evidence of removability”); see also
Witjaksono v. Holder, 573 F.3d 968, 978 (10th Cir. 2009) (applying same standard to
IJ’s decision and stating that “IJ has no duty to write an exegesis on every
contention” (internal quotation marks omitted)). The BIA satisfied that obligation
here.
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Thus, we could review the propriety of the BIA’s social-group ruling. But
Ms. Fuentes-Chavarria has failed to challenge the BIA’s conclusion that her alleged
social group was not cognizable under the INA. Her brief explicitly acknowledges
that she “has provided no argument on the cognizability of her defined particular
social group.” Pet’r Br. at 30. Accordingly, we need not consider the correctness of
the BIA’s conclusion and we can affirm on that ground. See Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007) (“[O]mission of an issue from an opening brief
generally forfeits appellate consideration of that issue.”); Murrell v. Shalala, 43 F.3d
1388, 1390 (10th Cir. 1994) (when an agency decision is based on two independent
grounds, one of which is unchallenged, a litigant’s success on appeal is foreclosed,
regardless of the merit of any other arguments pertaining to the alternative ground).
We affirm the denial of Ms. Fuentes-Chavarria’s requests for asylum and withholding
of removal under the INA. See Dallakoti, 619 F.3d at 1267-68 (failure to establish
grounds for asylum necessarily constituted failure to establish grounds for
withholding of removal).
Finally, “to receive the protections of the CAT, an alien must demonstrate that
it is more likely than not that [she] will be subject to torture by a public official, or at
the instigation or with the acquiescence of such an official.” Id. at 1268 (brackets
and internal quotation marks omitted). “‘Acquiescence of a public official requires
that the public official, prior to the activity constituting the torture, have awareness of
such activity and thereafter breach his or her legal responsibility to prevent such
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activity.’” Cruz-Funez, 406 F.3d at 1192 (quoting 8 C.F.R. § 1208.18(a)(7)). But
“actual knowledge, or willful acceptance, is not required for a government to
acquiesce to the torture of its citizens.” Id. (internal quotation marks omitted).
“Rather, willful blindness suffices to prove acquiescence.” Id. (internal quotation
marks omitted). The agency’s findings “are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B).
Ms. Fuentes-Chavarria presented evidence that the Honduran government fails
to protect women from gang violence, but she did not establish that “any reasonable
adjudicator,” id., would be compelled to conclude that Francisco would likely harm
her on behalf of the government or with the government’s willful blindness, see
Cruz-Funez, 406 F.3d at 1192 (where petitioners had been threatened by an
individual, evidence of corruption and lack of police funding did not compel
conclusion that petitioners faced likelihood of torture by the government or with the
government’s acquiescence). We note, for example, that Ms. Fuentes-Chavarria’s
sister and other family members remain in Honduras, apparently without harm, and
Francisco threatened retaliation if she told the police, an unnecessary threat if the
government would not take action anyway. This case is unlike the situation in Karki,
where the petitioner faced a threat of torture from a rival political party that had won
a plurality of seats in the Nepali government and installed a prime minister. See
715 F.3d at 806. In those circumstances the government’s failure to prevent or
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prosecute the party’s acts of torture was sufficient to show that the government
would likely acquiesce in his torture. See id. at 807. Additionally, although the rape
is a relevant consideration in assessing the likelihood of future torture, it does not
entitle Ms. Fuentes-Chavarria to a presumption of future torture. See 8 C.F.R.
§ 1208.16(c)(3) (“all evidence relevant to the possibility of future torture[, including
evidence of past torture of the applicant,] shall be considered”); Niang v. Gonzales,
422 F.3d 1187, 1202 (10th Cir. 2005).
III. Conclusion
The petition for review is denied. Ms. Fuentes-Chavarria’s application to
proceed on appeal in forma pauperis is granted.
Entered for the Court
Harris L Hartz
Circuit Judge
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