Hidalgo-Nunez v. Garland

1

ALAN JOVANY HIDALGO-NUNEZ, Petitioner, v. MERRICK B. GARLAND, United States Attorney General, Respondent.

No. 22-9518

United States Court of Appeals, Tenth Circuit

October 12, 2022

(Petition for Review)

Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Bobby R. Baldock, Circuit Judge

Petitioner Alan Jovany Hidalgo-Nunez's case appears before us on a petition for review from the Board of Immigration Appeals (BIA). The BIA affirmed the immigration judge's decision to deny Petitioner withholding of removal and protection under the United Nations Convention Against Torture (CAT). Petitioner asks us to review the BIA's disposition of his case. Exercising jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), we deny the petition.

I.

The facts of this case are reflected in Petitioner's written statements and oral testimony, both of which the immigration judge found credible. Petitioner is a Mexican citizen from the town of Neuva Italia in Michoacan. Petitioner's extended family have been subject to several violent incidents at the hands of drug cartels in Neuva Italia. In November 2006, the Los Zetas drug cartel extorted members of Petitioner's family and threatened to kidnap one of his cousins if they refused the cartel's demands for money. The family, however, was unable to pay. The cartel kidnapped Petitioner's cousin and he was never seen again. Years after the first incident, in 2015, Petitioner's cousin was kidnapped and murdered by another drug cartel operating in Neuva Italia, the Knights Templar, after Petitioner's uncle refused to pay them protection money. About 5 months after his cousin's murder, the Knights Templar murdered Petitioner's uncle as well.

Meanwhile in 2006, Petitioner's immediate family decided to leave Neuva Italia. In December 2006, Petitioner, who was 14 years-old at the time, unlawfully entered the United States with his parents and siblings. Petitioner then lived an unobtrusive life in the United States for over a decade-until a September 2017 arrest for driving under the influence attracted the attention of the Department of Homeland Security (DHS). DHS filed a Notice to Appear (NTA) and initiated the present removal proceedings. Thereafter Petitioner appeared before an immigration judge with counsel and admitted the factual allegations articulated in the NTA and conceded its charges. Petitioner then applied for relief in the form of withholding of removal and protection under the CAT. Through written submissions and oral testimony, Petitioner sought to establish his eligibility for withholding of removal on the basis of his membership in a particular social group (PSG)-"the Hidalgo-Nunez family." Petitioner argued his familial ties qualified as a PSG because of kidnapping and disappearance of his cousin at the hands of the Zetas and because his uncle and other cousin had been murdered by the Knights Templar.

The immigration judge considered Petitioner's submissions and testimony and rejected his application. The immigration judge explained in an oral decision that Petitioner "ha[d] not shown that it is more likely than not that he would be persecuted on account of a protected ground." The immigration judge noted that Petitioner had numerous relatives still living in Neuva Italia "and there has been no evidence that they have been harmed because of the family relationship since the uncle and the cousin were killed." The immigration judge also emphasized Petitioner's testimony that he feared being targeted because he had returned from the United States and might be perceived as having money. The immigration judge explained that "[f]ear of being kidnapped or robbed by gang members for monetary gain is not connected to a protected ground." The immigration judge therefore concluded that Petitioner had failed to demonstrate a history of past persecution or a likelihood of future persecution.

As for relief under the CAT, the immigration judge concluded that no evidence in the record supported the conclusion that Petitioner "would be singled out for torture." Because there was no evidence that Petitioner had ever been tortured in Mexico, the immigration judge considered the circumstances of Petitioner's similarly situated relatives and the Mexican government's efforts to combat the drug cartels. Petitioner appealed the immigration judge's decision to the BIA. In a decision rendered by a single judge, the BIA affirmed the immigration judge's decision "for the reasons articulated in the Oral Decision of the Immigration Judge." This petition for review followed. Petitioner challenges the BIA's denial of both his application for withholding of removal and relief under the CAT.

II.

When, as here, the BIA affirmed the immigration judge's decision in an order issued by a single judge, "we review the BIA's decision as the final agency determination and limit our review to issues specifically addressed therein." Diallo v. Gonzales, 447 F.3d 1274, 1279 (10th Cir. 2006). We are not, however, "precluded from consulting the IJ's more complete explanation of those same grounds" in order "to understand the grounds provided by the BIA." Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). "[R]esort to the IJ's decision is appropriate in situations where the BIA incorporates the IJ's rationale or a summary of its reasoning." Diallo, 447 F.3d at 1279 (citing Uanreroro, 443 F.3d at 1204).

"We review the BIA's legal determinations de novo, and its findings of fact under a substantial-evidence standard." Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005) (citing Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2003)). "Under that test, our duty is to guarantee that factual determinations are supported by reasonable, substantial and probative evidence considering the record as a whole." Elzour, 378 F.3d at 1150 (citation omitted). "The BIA's findings of fact are conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary." Niang, 422 F.3d at 1196 (quoting Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir. 2004)).

III.

Petitioner first challenges the BIA's resolution of his application for withholding of removal. Withholding of removal is a form of relief from deportation that prevents the Government from removing "an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A).

To be eligible for withholding of removal, Petitioner "must 'establish a clear probability of persecution in that country on the basis of race, religion, nationality, membership in a particular social group, or political opinion.'" Matumona v. Barr, 945 F.3d 1294, 1304 (10th Cir. 2019) (quoting Elzour, 378 F.3d at 1149). As relevant here, a family can qualify as a PSG-so long as an applicant can demonstrate the necessary "nexus" between the familial tie and the persecution. See Hueso-Choto v. Garland, No. 21-9542, 2022 WL 128573, at *2 (10th Cir. Jan. 14, 2022); Matter of L-E-A-, 27 I. &N. Dec. 40 (BIA 2017). The Code of Federal Regulations presumes an applicant will suffer future persecution if they are found to have suffered past persecution, subject to certain exceptions. 8 C.F.R. § 1208.16(b)(1)(i). Even in the absence of the presumption, however, an applicant can still establish his eligibility for withholding of removal "by a showing that 'it is more likely than not that the alien would be subject to persecution on one of the specified grounds' upon returning to [his] country of origin." Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) (quoting INS v. Stevic, 467 U.S. 407, 429-30 (1984)). We define persecution as "requiring] the 'infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive' and requiring] 'more than just restrictions or threats to life and liberty.'" Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir. 2001) (quoting Baka v. INS, 963 F.2d 1376, 1379 (10th Cir. 1992)).

Petitioner challenges the BIA's conclusion that he is ineligible for withholding of removal. Because the BIA concluded Petitioner had not shown a history of past persecution, Petitioner did not benefit from the regulatory presumption in favor of future persecution. Petitioner does not contest that determination and instead focuses his arguments on whether he can establish a likelihood of future persecution. To that effect, Petitioner argues the BIA erred by failing to take Petitioner's fear of harm from the Knights Templar, as well as the immediacy of that threat, into account. According to Petitioner, the timing of his cousin's and uncle's murder demonstrates the immediacy of the threat he would face if he returned to Neuva Italia. But substantial evidence supports the BIA's decision. The record shows that although Petitioner's family received threats before his uncle and cousin were murdered by the Knights Templar, there was a significant delay between the threats and the first murder, as well as between the two murders themselves. Petitioner acknowledges this, admitting that "Petitioner's uncle, who failed to pay the Knights Templar protection money, was eventually killed by that same organization." Br. of Pet'r 7 (emphasis added). Further even though Petitioner also testified that his family members have continued to receive threats from the Knights Templar, nothing in the record shows that "they are so immediate and menacing as to cause significant suffering or harm in themselves." Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003) (citing Mendez-Gutirrez v....