Aguirre-Avendano v. Garland

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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 22, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
CARLOS ANTONIO AGUIRRE-
AVENDANO,
Petitioner,
v. No. 22-9501
(Petition for Review)
MERRICK B. GARLAND, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
_________________________________
Carlos Antonio Aguirre-Avendano is a native and citizen of El Salvador who
entered the United States without permission. An immigration judge (IJ) found him
removable and ineligible for asylum, withholding of removal, or protection under the
Convention Against Torture (CAT), and ordered that he be returned to his home
country. The Board of Immigration Appeals (BIA) dismissed his appeal in a single-
*
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 This order and judgment is not binding precedent,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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member order. Aguirre-Avendano now petitions for review of the BIA’s 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
Aguirre-Avendano entered the United States at an unknown location in 2006.
In November 2010, the government charged him with removability as a noncitizen
present in the United States without being admitted or paroled.1 Aguirre-Avendano
conceded the charge and applied for asylum, withholding of removal, and CAT
protection. He claimed he was being persecuted by the MS-13 gang because he
refused to join them.
Aguirre-Avendano and his sister (who came to the United States before him)
testified at his asylum hearing in 2011 about the violence they suffered at gang
members’ hands, and about their mother’s murder for resisting gang activity. The
IJ’s eventual decision credited that testimony but held that those who resist gang
1
The government charged a second basis for removability, arising from a
criminal conviction, but it has since abandoned that charge.
2
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activity or recruitment are not a social group entitled to asylum. The IJ also ruled
that the Salvadoran government was not acquiescent to gang violence, so CAT
protection was inapplicable.
Aguirre-Avendano appealed to the BIA, which affirmed, and he then
petitioned this court for review. After briefing, the government moved to remand the
case so the agency could re-examine Aguirre-Avendano’s asylum claim from a
different perspective, namely, whether he was being persecuted on account of
membership in a social group comprising his family. We granted that motion,
leading to further proceedings before the agency in which Aguirre-Avendano claimed
persecution based on membership in his nuclear family alone, or membership in a
nuclear family that had made police reports against MS-13 gang activities (as his
mother had).
An IJ convened a second evidentiary hearing in 2018. Aguirre-Avendano’s
sister testified again, and his younger brother (who had since come to the United
States) testified for the first time. The IJ eventually issued a written decision
holding:
 Aguirre-Avendano’s sister’s testimony was not credible, given
inconsistencies between her 2011 testimony and 2018 testimony;
 Aguirre-Avendano’s brother’s testimony was unreliable;
 Aguirre-Avendano’s proposed social groups based solely on
membership in his nuclear family are valid social groups for asylum
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purposes, but he failed to prove that he had been persecuted, or likely
would be persecuted, on account of family membership;
 Aguirre-Avendano’s proposed social groups based on his relationship to
nuclear family members who have filed police reports against the gang
are not cognizable because they are not socially distinct—and, in any
event, he failed to prove persecution, or likelihood of persecution,
motivated by that relationship; and
 Aguirre-Avendano failed to prove that the Salvadoran government was
unable or unwilling to oppose the MS-13 gang, or that it acquiesced in
the gang’s violence.
For all these reasons, the IJ denied asylum, withholding of removal, and CAT
protection.
Aguirre-Avendano appealed to the BIA, which held that substantial evidence
supported all the IJ’s factual findings, and that those findings justified denial of
relief. The BIA therefore dismissed the appeal.
This petition for review followed.
III. ANALYSIS
A. Asylum
An asylum applicant must prove that he or she is a “refugee.” 8 U.S.C.
§ 1158(b)(1). In this context, a “refugee” is a person unable or unwilling to return to
his or her country “because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or
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political opinion.” Id. § 1101(a)(42)(A). Aguirre-Avendano relied on the “particular
social group” prong. As noted, he asserted: (1) membership in his nuclear family,
and (2) membership in a nuclear family, one of whose members had filed police
reports against the MS-13 gang.2
1. Credibility
Aguirre-Avendano argues, in essence, that the IJ should have credited his
sister’s and younger brother’s testimony, and then the IJ would have been compelled
to conclude that the MS-13 gang persecuted Aguirre-Avendano on account of his
membership in one of his proposed social groups. Thus, we address the credibility
challenge first.
a. Aguirre-Avendano’s Sister
Aguirre-Avendano’s sister, Raina, testified at both the 2011 and 2018
hearings. She also submitted an affidavit ahead of the 2011 hearing.
The key points of Raina’s affidavit were:
 MS-13 gang members first attacked her in 2001 because they knew her
ex-husband was working in the United States and sending her money;
 in 2002–03, MS-13 gang members tried to recruit her brother Carlos
(the petitioner here), and beat him savagely for refusing to join;
2
Aguirre-Avendano broke each of these groups into two, with slight
differences between the definition of each, for a total of four proposed social groups.
Those differences are irrelevant for present purposes.
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 Raina’s and Carlos’s mother reported the beating to the police and then
started receiving threats and demands that they pay protection money of
$50 per week;
 Carlos was again savagely beaten in 2006, at which point his parents
sent him to the United States; and
 in 2008, MS-13 gang members murdered Raina’s and Carlos’s mother
because she had reported them to the police, stopped paying the
protection money, and refused to tell them where Carlos had gone.
Raina’s testimony at the 2011 hearing was somewhat consistent with her
affidavit, but three details changed:
 Carlos’s troubles with MS-13 began in the year 2000 (not 2002);
 she was attacked in the year 2000 (not 2001); and
 she was attacked on account of Carlos’s refusal to join the gang (not
because they knew she was receiving money from her ex-husband).
Finally, at the 2018 hearing, Raina returned to the allegation in her affidavit
that she had been attacked in 2001 (not 2000). But she added that her first attack had
actually been a series of three attacks in 1997, and she was raped each time. She
further testified that she had not provided that detail previously because she felt
ashamed and embarrassed.
The IJ found he could not accept Raina’s testimony due to its inconsistencies
about the timing and number of the attacks, and about the gang members’
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motivations. The BIA, in turn, held that the IJ had provided adequate reasons for this
credibility determination.
The statute governing asylum sets the following standard for judging
credibility:
Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or responsiveness
of the applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency between
the applicant’s or witness’s written and oral statements
(whenever made and whether or not under oath, and
considering the circumstances under which the statements
were made), the internal consistency of each such
statement, the consistency of such statements with other
evidence of record (including the reports of the
Department of State on country conditions), and any
inaccuracies or falsehoods in such statements, without
regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim, or any
other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii); see also id. § 1229a(c)(4)(C) (setting the same standard
for removal proceedings generally). The agency’s credibility findings, “like other
findings of fact, are subject to the substantial evidence test.” Elzour v. Ashcroft,
378 F.3d 1143, 1150 (10th Cir. 2004).
Aguirre-Avendano argues that the agency should have viewed his sister’s
testimony more sympathetically, but that is not enough to show “any reasonable
adjudicator would be compelled to conclude” that his sister was credible, 8 U.S.C.
§ 1252(b)(4)(B). Because the agency’s finding falls within the broad range of
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acceptable findings on the evidence before it, we must accept Raina’s lack of
credibility as “conclusive.” Id.b. Aguirre-Avendano’s Younger Brother
Aguirre-Avendano’s younger brother, Jose, testified only at the 2018 hearing.
He was sixteen years old at the time. He was young (four or five years old) when he
saw gang members murder his mother. They were then living in San Salvador. But
the gang began to demand money from his father, so he and his father moved around
the country to try and stay away from them. Eventually, the gang found him (Jose)
and attacked him, and then his father sent him to the United States.
The IJ found Jose’s testimony “unreliable” and “largely incoherent.” R. at 97.
As examples, the IJ noted that Jose said he lived in five different places while trying
to avoid the gangs, but could describe only three of them. The IJ also pointed out
that Jose first said he never returned to San Salvador after his mother’s murder, but
later said that the gang attacked him in a San Salvador alleyway when he was twelve
years old. The IJ acknowledged Jose’s age and the trauma he experienced, but his
testimony was nonetheless “unclear,” so the IJ chose to “afford it little, if any,
weight.” Id. The BIA upheld this determination for the reasons given by the IJ.
Aguirre-Avendano argues that Jose’s testimony was reliable, and any
inconsistencies were not material. But the agency must consider inconsistencies
“without regard to whether [they go] to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). In any event, the record does not compel a conclusion that
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Jose’s testimony was reliable. Thus, we may not overturn the agency’s decision to
ignore it.
2. Nexus Determination
As stated above, Aguirre-Avendano insists that if the agency had credited
Raina’s and Jose’s testimony, then the IJ would have been compelled to conclude that
MS-13 was persecuting him because of his membership in at least one of the family-
based social groups he proposed. Given the structure of this argument, we need not
reach the latter issue because Aguirre-Avendano has not shown that the agency erred
in its credibility decisions.
At the very end of this section of his brief, however, Aguirre-Avendano adds,
“Alternatively, Petitioner argues that even excluding his family members’ testimony,
substantial evidence in the record shows that he was targeted due to his family
membership, and that each member of his family was targeted for their family
membership.” Pet’r’s Opening Br. at 47. But he does not develop this argument
beyond that single sentence, so he waives the issue. See, e.g., Murrell v. Shalala,
43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (“[S]uch perfunctory complaints fail to
frame and develop an issue sufficient to invoke appellate review.”). We therefore
uphold the agency’s finding that Aguirre-Avendano did not prove he had been
persecuted, or would likely be persecuted, because of his membership in the social
groups he proposed.3
3
Given this disposition, we need not reach Aguirre-Avendano’s argument that
the agency erred when it found two of his proposed social groups (based on family
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B. Withholding of Removal
Aguirre-Avendano’s withholding-of-removal argument depends entirely on his
argument that the agency should have granted him asylum. Because we uphold the
agency’s asylum ruling, we likewise uphold its ruling that withholding of removal is
unavailable.
C. CAT Protection
Aguirre-Avendano 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).
Aguirre-Avendano claims that his own family’s experience of reporting gang
activity to the police and receiving no protection—indeed, those reports allegedly led
to his mother’s murder—provides substantial evidence that the Salvadoran
government would acquiesce in MS-13’s murderous intentions if he were sent back.
But other evidence cuts against his argument. The agency relied on State Department
evidence showing that “[t]he Salvadoran government has implemented structures to
combat gang violence and actively apprehend, prosecute, and incarcerate gang
membership plus a history of making reports to the police) lacked social distinction.
The agency stated that Aguirre-Avendano’s evidence failed to prove a connection
between the persecution he experienced and his membership in any social group he
proposed, including those social groups the agency rejected for lack of social
distinction. We also need not reach Aguirre-Avendano’s challenge to the agency’s
finding about the Salvadoran government’s willingness or ability to protect its
citizens from persecution. That issue is irrelevant if he cannot prove he was
persecuted on account of a protected ground.
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members who target members of the general population.” R. at 104–05. Aguirre-
Avendano offers no argument why, on this body of evidence, “any reasonable
adjudicator would be compelled” to find acquiescence, 8 U.S.C. § 1252(b)(4)(B).
Accordingly, we uphold the agency’s acquiescence finding and, in turn, its denial of
CAT protection.
IV. CONCLUSION
We deny the petition for review.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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