Filed: Dec. 28, 2020
Latest Update: Dec. 29, 2020
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 28, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
CRISTINA MARIA MENDOZA
MENDOZA; VA and RA, minors,
Petitioner,
v. No. 20-9505
(Petition for Review)
JEFFREY ROSEN, Acting United States
Attorney General,*
Respondent.
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ and CARSON, Circuit Judges.
_________________________________
Cristina Maria Mendoza Mendoza and her two minor children are natives and
citizens of Guatemala. An immigration judge (IJ) found them removable and
ineligible for asylum, withholding of removal, or protection under the Convention
*
On December 23, 2020, Jeffrey Rosen became Acting Attorney General of
the United States. Consequently, his name has been substituted for William P. Barr
as Respondent, per Fed. R. App. P. 43(c)(2).
**
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 This order and judgment is not binding precedent,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.
Against Torture (CAT), and ordered that they be returned to Guatemala. The Board
of Immigration Appeals (BIA) dismissed their appeal from the IJ’s order. They now
petition for review of the BIA’s decision. We have jurisdiction under 8 U.S.C.
§ 1252(a), and we deny the petition.
I. BACKGROUND & PROCEDURAL HISTORY
Mendoza and her children entered the United States in May 2016 without
being admitted or paroled after inspection. The next day, the government served
them with notices to appear, charging them as removable. Mendoza and the children
conceded inadmissibility but applied for asylum, withholding of removal, and CAT
protection. At a hearing on those applications, Mendoza testified substantially as
follows.
From birth until leaving for the United States, Mendoza lived in Aguacatán,
Guatemala. Mendoza is a Jehovah’s Witness and, consistent with her faith, spent
significant time preaching in the Aguacatán region. As she preached, intolerant
community members would sometimes mock and throw rocks at her and her children.
Once, in 2014, Mendoza heard people outside her home who tried
(unsuccessfully) to force their way inside. After they left, Mendoza found human
waste in her well. She felt threatened and perceived this as harassment based on her
religious beliefs. She did not report this incident to the police because she believed
the police would not care.
About six months later, Mendoza saw a suspicious man outside her home. He
did not speak to her, but she believed he was searching for a way to enter. After he
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left, others came and threw rocks at her house, damaging the roof. She believed this
happened for one or both of two reasons. First, it may have been additional religious
discrimination. Second, it may have been because members of the community
assumed her husband (then in the United States) was sending her money. She
reported this incident to the police, but they did not respond. She believes they
ignored her because of her indigenous status.
Sometime in 2015, a group of people was mocking and throwing rocks at
Mendoza and her children, and one man in the crowd unleashed his dog on them.
The dog bit Mendoza’s son.
Feeling ostracized in her community, and with no family left in Guatemala,
Mendoza left with her children for the United States in May 2016.
The IJ found that Mendoza testified credibly, but that Mendoza had not carried
her burden to establish that the two incidents of harassment at her home in 2014 were
on account of her religious beliefs. Thus, the IJ limited her analysis to the mocking
and rock-throwing while preaching, and the dog-bite incident. The IJ concluded that
those events were not enough to satisfy Mendoza’s burden to prove eligibility for
asylum, withholding of removal, or CAT protection. The IJ found likewise for the
children, whose applications were entirely derivative of their mother’s. Mendoza
and her children appealed to the BIA, which dismissed the appeal through a
single-member summary order. Mendoza and the children then timely filed their
petition for review with this court.
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II. ANALYSIS
A single-member BIA order “constitutes the final order of removal” and “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). “However, 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. For example, we will consult the IJ’s decision “where the BIA
incorporates by reference the IJ’s rationale or repeats a condensed version of its
reasons while also relying on the IJ’s more complete discussion,” or “where the BIA
reasoning is difficult to discern and the IJ’s analysis is all that can give substance to
the BIA’s reasoning in the order of affirmance.”
Id.
“[W]here the BIA determines a petitioner is not eligible for relief, we review
the decision to determine whether the record on the whole provides substantial
support for that determination.”
Id. In so doing, we must treat “administrative
findings of fact [as] conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
A. Asylum
An asylum applicant must prove that he or she is a “refugee.” 8 U.S.C.
§ 1158(b)(1)(A). 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
political opinion.” Id. § 1101(a)(42)(A). “In this circuit, the ultimate determination
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whether an alien has demonstrated persecution is a question of fact, even if the
underlying factual circumstances are not in dispute and the only issue is whether
those circumstances qualify as persecution.” Hayrapetyan v. Mukasey, 534 F.3d
1330, 1335 (10th Cir. 2008) (internal quotation marks omitted). Thus, we may not
reverse unless “any reasonable adjudicator would be compelled to conclude to the
contrary” on the issue of persecution. 8 U.S.C. § 1252(b)(4)(B).
Mendoza has not met that standard. As the BIA stated, Mendoza and her
children received “odious” treatment in their community, Admin. R. at 4, but the
evidence does not compel a finding of persecution—“an extreme concept that does
not include every sort of treatment our society regards as offensive,” Zhi Wei Pang v.
Holder, 665 F.3d 1226, 1233 (10th Cir. 2012) (internal quotation marks omitted).
Cf. Sidabutar v. Gonzales,
503 F.3d 1116, 1124 (10th Cir. 2007) (upholding BIA’s
finding of no past persecution where applicant “was beaten repeatedly by Muslim
classmates . . . on account of his Christian religion,” and “was repeatedly confronted
by people who demanded money from him,” including an occasion “when he did not
have money to give, [so] he was struck and his motorcycle was burnt” (internal
quotation marks omitted)); Kapcia v. INS,
944 F.2d 702, 704–05, 708 (10th Cir.
1991) (upholding BIA’s conclusion that three police detentions and beatings, search
of parents’ home, assignment of poor work tasks, denial of bonuses, having locker
broken into multiple times, conscription into the army leading to constant
harassment, and being fired from a job, all on account of political activism, did not
amount to persecution).
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Mendoza encourages us to follow extra-circuit authority focusing on the
cumulative significance of the events underlying the applicant’s persecution claim.
See, e.g., Fei Mei Cheng v. Att’y Gen. of U.S., 623 F.3d 175, 193 (3d Cir. 2010)
(“Even if one incident of mistreatment is not, in and of itself, severe enough to
constitute persecution, a series of incidents of physical or economic mistreatment
could, taken together, be sufficiently abusive to amount to persecution.”);
Kholyavskiy v. Mukasey,
540 F.3d 555, 571 (7th Cir. 2008) (“A review of the BIA’s
decision leaves us with the conviction that the Board did not consider the cumulative
significance of the events recounted by Mr. Kholyavskiy and his mother.” (internal
quotation marks omitted)). She particularly asks us to focus on whether her
experiences were “continuing and escalating,” Pet. Opening Br. at 23, apparently
inspired by a Third Circuit decision which described “harassment [that] continued
and escalated” on the way to concluding that the applicant established persecution,
Toure v. Att’y Gen. of U.S.,
443 F.3d 310, 318 (3d Cir. 2006). In this vein, she
asserts that the “harassment, discrimination, mocking, and rock throwing . . .
continued over a period of several years and eventually it began to escalate,” Pet.
Opening Br. at 25, as allegedly evidenced by the specific incidents she recounted in
her testimony.
Even if we agree with Mendoza’s application of this extra-circuit authority
(and we express no opinion on that), we are not persuaded that it reveals any flaw in
the BIA’s decision. The notion that the harassment was “escalating” is Mendoza’s
argumentative characterization of the evidence, not a conclusion compelled by it, nor
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even a characterization that Mendoza herself used in her testimony before the IJ.
Thus, we affirm the BIA’s finding that Mendoza and her children suffered no
“persecution” within the meaning of the immigration laws.
Although Mendoza might merit asylum if she has a well-founded fear of future
persecution upon return to Guatemala, her only argument in that regard relies on
presumptions that arise from proving past persecution. Because we affirm the BIA’s
finding of no past persecution, we do not reach this argument.
B. Withholding of Removal
Withholding of removal requires the applicant to show that his or her “life or
freedom would be threatened in [the] country [to which the applicant will be
removed] 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). “The showing
required for withholding of removal is more stringent tha[n] the showing required for
asylum. To be eligible for withholding of removal, an applicant must demonstrate
that there is a clear probability of persecution because of [her] race, religion,
nationality, membership in a particular social group, or political opinion.” Zhi Wei
Pang, 665 F.3d at 1233 (internal quotation marks omitted). If an applicant “fails to
satisfy the lower burden of proof required for asylum, [then she] also fails to satisfy
the higher standard of eligibility for withholding of removal.”
Id. at 1234.
This case law appears to foreclose Mendoza’s claim for withholding of
removal. Mendoza, however, points us to Barajas-Romero v. Lynch, 846 F.3d 351
(9th Cir. 2017). The applicant in Barajas-Romero was tortured by police in Mexico
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because they thought they could extort money from him or his family. See id. at 354.
During the torture, the applicant expressed defiance toward corrupt police officers,
and the torture continued.
Id. at 354–55. When the applicant later entered the United
States illegally and was placed in removal proceedings, he argued for withholding of
removal based on his political opinion, i.e., a likely threat to his life or freedom based
on his opposition to official corruption.
Id. at 355–56. The immigration judge and
BIA—apparently evaluating the likelihood of future harm based on the harm he had
already experienced—found that his evidence showed a threat on account of the
police officers’ desire to extort money, not on account of political opinion.
Id. at
356. The Ninth Circuit vacated and remanded for further proceedings, reasoning that
an applicant may deserve withholding of removal if he or she can establish that a
protected characteristic (like political opinion) is among the reasons for the expected
threat to life or liberty, not “at least one central reason” as the asylum statute
requires.
Id. at 356–60 (quoting 8 U.S.C. § 1158(b)(1)(B)(i)).
Citing Barajas-Romero, Mendoza argues that she “was not required to show
that the princip[al] reason why she suffered harm was on account of her religious
beliefs.” Pet. Opening Br. at 26. She seems to be saying that when the IJ and BIA
reached the withholding-of-removal question, they should have looked at all
mistreatment she experienced—both mistreatment motivated by religious animosity
(such as the rock-throwing while preaching) and mistreatment not so motivated (such
as the threatening visits to her house in 2014)—and then decided, based on that
universe of evidence, whether Mendoza’s “life or freedom would be threatened” in
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Guatemala. 8 U.S.C. § 1231(b)(3)(A). Mendoza appears to argue that if the agency
had proceeded in this fashion, it would inevitably have found the required threat to
life or freedom, and withholding of removal would have naturally followed because
the agency had already concluded (in the asylum context) that some of her
mistreatment was motivated by religious animosity.
Mendoza does not sufficiently develop this argument for our consideration.
See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments
inadequately briefed in the opening brief are waived . . . .”). Her argument may
fairly be summarized as, “Please read and follow this extra-circuit decision.” See
Pet. Opening Br. at 17–18. Perhaps in some contexts, such a cursory argument would
be enough. Whether to adopt Barajas-Romero, however, raises complicated
questions in this case. For example, unlike the petitioner in Barajas-Romero,
Mendoza faced mistreatment from varying groups of people, many of whom she did
not know, acting at different times and places over the course of at least two years.
Mendoza offers us no guidance on how we or the agency should decide whose
motives count in a complicated mixed-motive scenario such as this.
Even if Mendoza had adequately preserved this issue, it is settled in our circuit
that withholding of removal requires a stronger showing than asylum, see Zhi Wei
Pang, 665 F.3d at 1234, and we have never adopted the reasoning the Ninth Circuit
applied in Barajas-Romero. Moreover, applying Barajas-Romero would not help
Mendoza in this case regardless. The BIA rejected Mendoza’s Barajas-Romero
argument because (1) it is not a decision from this court, and (2) it does not
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“materially advance [her] position as the Immigration Judge concluded that the
majority of her past harm was on account of a protected ground—namely her
Jehovah’s Witness beliefs and activities.” Admin. R. at 5. We interpret this second
reason to include a factual finding that adding the few instances of non-religiously-
motivated mistreatment into the weight of the evidence would still not be enough to
satisfy the withholding-of-removal standard. Mendoza presents no argument that
“any reasonable adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B). Accordingly, even if we were to adopt Barajas-Romero,
Mendoza fails to establish a basis for reversal or vacatur.
For these reasons, we affirm the finding that Mendoza does not merit
withholding of removal.
C. CAT
Mendoza makes no argument against the BIA’s or IJ’s CAT analysis.
Accordingly, she has abandoned her claim for CAT relief and we do not reach it. See
Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (“[S]ome issues raised
below are not mentioned in the opening brief, much less argued, and are therefore
abandoned.”).
III. CONCLUSION
We deny the petition for review.
Entered for the Court
Joel M. Carson III
Circuit Judge
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