Vidana v. Garland
| Decision Date | 14 July 2022 |
| Docket Number | 20-9614 |
| Parties | MERCEDES VIDANA VIDANA, Petitioner, v. MERRICK B. GARLAND, United States Attorney General, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
(Petition for Review)
Before MATHESON, KELLY, and CARSON, Circuit Judges.
Petitioner Mercedes Vidana Vidana filed applications for asylum restriction on removal,[1] and protection under the Convention Against Torture (CAT). An Immigration Judge (IJ) denied relief, and the Board of Immigration Appeals (BIA) dismissed her appeal of the IJ's order. She now seeks review of the BIA's order. Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition for review.
Petitioner first entered the United States illegally in 1999, without inspection. About twenty years later, she returned to Mexico with her United States citizen husband for a consular interview based on a visa application he had filed on her behalf. At the interview, she admitted she and her husband had paid a smuggler for her and her son to cross into the United States. As a result, the officer told her she would need to obtain a waiver of inadmissibility. After the interview, Petitioner spoke to a person who said he was an attorney associated with the hotel in Juarez, Mexico, where she and her husband were staying. They gave him a $10,000 fee and documentation he said he needed to file the waiver application.
Petitioner's husband returned to the United States, and she went to Vera Cruz, Mexico to visit her mother. While there, cartel members who had previously threatened to kill her if she did not pay $50,000 ransom for her son saw her arrive and left a note demanding the money. She went back to the hotel in Juarez to wait for the waiver. The cartel returned to the mother's house twice to look for Petitioner. Petitioner did not report these events to Mexican law enforcement.
When Petitioner asked hotel representatives for a receipt for the waiver application, she learned that the hotel was associated with a cartel (a different cartel than the one that attempted to extort her in Vera Cruz), that no waiver application had been filed, and that she had to pay the cartel $1500 per month. Petitioner reported these incidents to police. An officer said he would prepare a line-up for her to identify the perpetrators, but questioned whether she wanted to make a report against the cartel, explaining that the police could "not guarantee[]" her safety because "these people are out of control." Admin. R., vol. I at 165. The officer advised her that "another option [was to] just flee" because "these people [are] going to end up killing you." Id. She "tore up the report." Id. at 166.
Petitioner returned to the hotel and worked to pay the $1500 monthly extortion. She complied with the cartel's demands because she was afraid that if she did not cooperate it would go after her family. After several months, the power went off in her room. She thought the cartel was looking for her, so she hid under the bed. Two men, one of whom she recognized as the man who took her $10,000 for the waiver application, came in the room but left after remarking that she was not there.
Petitioner fled to Tijuana, where her aunt lived. She could not remember her aunt's address, so she went to a hotel. A man at the hotel said he knew she was not from there and told her to leave because the hotel was run by the cartel. She went to a nearby restaurant where another man sat next to her and Id. at 171.
The man took her to a store where cartel members told her they were going to use her as a prostitute across the border. They took her picture and prepared documents for her to use to cross the border. One of them "took out a weapon," and they threatened to kill her if she resisted. Id. at 172. Two men eventually drove her to the border and directed her to a tunnel where they said she would find the immigration officials they had "paid off." Id. at 172-73. She ran and the men followed her. When she approached border officials and gave them the passport prepared by the cartel, they said she was not the person on the passport and handcuffed her. Once in another room, Petitioner gave the officers information about her true identity and told them she had been kidnapped. She recognized one of the United States Border Patrol agents in the room as "one of the kidnappers." Id. at 175. She told the officers the men who took her to the border were "trafficking people," "making women prostitute themselves," and "killing women." Id. The man she recognized as one of the kidnappers told her to "shut up" and accused her of being a criminal. Id. at 175-76.
Notwithstanding the kidnapper's accusation, an asylum officer interviewed her and found she had a credible fear of returning to Mexico. The Department of Homeland Security placed her in removal proceedings, charging her with removability as an individual not in possession of valid travel or entry documents and as an individual who falsely represented herself as a United States citizen for the purpose of obtaining an immigration benefit. After she admitted removability, the IJ sustained the first charge and held the second in abeyance. Petitioner then filed her applications for asylum, restriction on removal, and CAT protection. She alleged she was afraid that if she returns to Mexico, she will be targeted and eventually killed by the men who threatened her previously, and she asserted that Mexican police cannot protect her and are largely corrupt.
The IJ found Petitioner credible but concluded she did not qualify for asylum, restriction on removal, or CAT relief. The BIA affirmed the IJ's order and dismissed Petitioner's appeal.
When as here, a three-member panel reviews the IJ decision, "the BIA opinion completely super[s]edes the IJ decision for purposes of our review." Uanreroro v. Gonzales, 443 F.3d 1197, 1203 (10th Cir. 2006). We review the BIA's legal decisions de novo and its findings of fact under a substantial-evidence standard. Rodas-Orellana v. Holder, 780 F.3d 982, 990 (10th Cir. 2015). Under that standard, its "findings [are] conclusive unless any reasonable adjudicator would be compelled to reach a contrary conclusion." Aguilar v. Garland, 29 F.4th 1208, 1211 (10th Cir. 2022) (internal quotation marks omitted).
An applicant is eligible for asylum if she is a "refugee" within the meaning of the INA. See 8 U.S.C. § 1158(b)(1)(A). An applicant qualifies as a refugee if she is unable or unwilling to return to her country of nationality because of "persecution or a well-founded fear of persecution on account of" any of five protected grounds, including "membership in a particular social group." 8 U.S.C. § 1101(a)(42).
The applicant "bear[s] the burden of persuasion and must provide direct or circumstantial evidence of the persecutors' motives." Orellana-Recinos v. Garland, 993 F.3d 851, 855 (10th Cir. 2021) (internal citation omitted). Persecution is on account of a protected ground if the ground "was or will be at least one central reason for persecuting the applicant." 8 U.S.C. § 1158(b)(1)(B)(i). The Board has interpreted "'one central reason' to mean the protected ground cannot play a minor role in the alien's past mistreatment or fears of future mistreatment." Karki v. Holder, 715 F.3d 792, 800-01 (10th Cir. 2013) (internal quotation marks omitted). Thus, to satisfy the nexus requirement, the applicant must show that her past or feared future persecution is because of the protected status and that the protected ground is not "incidental, tangential, superficial, or subordinate to" some other, unprotected reason for harm. Orellana-Recinos, 993 F.3d at 855 (internal quotation marks omitted).
The BIA has emphasized that "it is important to distinguish between the inquiry into whether a group is" a cognizable particular social group (PSG) and the "question whether a person is persecuted 'on account of' membership in a [PSG]." Matter of M-E-V-G-, 26 I. &N. Dec. 227, 242 (B.I.A. 2014). In other words, the existence of a social group and a nexus between that group and the petitioner's claim of persecution are independent requirements that the BIA assesses separately. Id. And because an applicant must satisfy both requirements to make a cognizable claim for asylum, see 8 U.S.C. § 1101(a)(42), her failure to satisfy either is dispositive.
Here, Petitioner's asylum and restriction on removal applications alleged that she suffered past persecution in Mexico and is likely to suffer future persecution if she returns to Mexico based on her membership in one of three proposed PSGs that she defined as (1) Mexican women who are trafficked for prostitution; (2) Mexican women who are by themselves; and (3) returning Mexicans with relatives in the United States. The IJ denied her applications, concluding she did not establish past persecution and could not show a well-founded fear of future persecution on account of a protected ground both because her proposed PSGs were not cognizable and because she did not establish a nexus between the harm she suffered and her membership in those groups. In support of the latter conclusion, the IJ found that the people who victimized her were criminals motivated by greed, not by her gender, her aloneness, or the fact that she has American relatives.
The BIA agreed that Petitioner's proposed groups are not cognizable because they are impermissibly defined by the fact of persecution (the first group) or lack the requisite particularity and social distinction (the second and third groups). And it found no clear error in the IJ's finding...
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