F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 2 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
CARLOS CRUZ-FUNEZ and JOSE
ENRIQUE VALLADARES-
CASTELLANOS,
Petitioners, No. 03-9619
v.
ALBERTO R. GONZALES, Attorney
General, *
Respondent.
PETITION FOR REVIEW
FROM THE BOARD OF IMMIGRATION APPEALS
(Nos. A 78-046-589 & A 78-046-591)
Submitted on the briefs:
Shelley Wittevrongel, Boulder, Colorado, for Petitioners.
Peter D. Keisler, Assistant Attorney General, Mark Walters, Assistant Director,
Anh-Thu P. Mai, Attorney, Office of Immigration Litigation, Civil Division, U.S.
Department of Justice, Washington, D.C., for Respondent.
*
On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
Respondent in this action.
Before TACHA, Chief Judge, HENRY, and O’BRIEN, Circuit Judges.
HENRY, Circuit Judge.
Petitioners Carlos Cruz-Funez and Jose Enrique Valladares-Castellanos
petition for review of a decision of the Board of Immigration Appeals (BIA or
Board) denying their claims for asylum and for withholding of removal under
both the Immigration and Nationality Act (INA) and the United Nations
Convention Against Torture (CAT). We have jurisdiction to review the agency’s
decision under 8 U.S.C. § 1252(a)(1), and we deny the petition for review. *
I. Procedural History and Issues on Appeal
The immigration judge (IJ) consolidated petitioners’ cases. According to
the IJ’s decision, 1
petitioners are natives and citizens of Honduras who were and
are business partners. They entered the United States illegally on or about
June 28, 2000. They were noticed to appear on June 28, 2000, and were charged
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
1
Analogous to 10th Cir. R. 28.2(A), a petitioner in an immigration case
should attach both the Board’s decision and the IJ’s decision to his opening brief.
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with entering the United States without inspection under § 212(a)(6)(A)(i) of the
INA, 8 U.S.C. § 1182(a)(6)(A)(i). Petitioners applied for asylum and withholding
of removal, asserting that they fear persecution or torture if they return to
Honduras. They claimed that their business debt to an unscrupulous creditor,
Pedro Trejo, put them in the particular social group of small businessmen ruined
in 1998 by Hurricane Mitch who are indebted to private creditors connected to the
corrupt Honduran business and political system. The IJ analyzed their claims and
denied them both asylum and withholding of removal.
Petitioners appealed to the Board, which issued a decision through a single
Board member. See Admin. R. at 1. 2
That decision, in pertinent part, states:
The respondent has appealed from the Immigration Judge’s decision
dated January 08, 2002. We have reviewed the record and we agree
that the respondent failed to meet his burden of establishing past
persecution or a well-founded fear of persecution on account of one
of the statutorily protected grounds, or that it is more likely than not
that he will be persecuted or subjected to torture upon his return to
Honduras. See section 101(a)(42)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(42)(A); INS v. Elias-Zacarias,
2
Although the Board actually issued separate decisions for
Mr. Valladares-Castellanos and Mr. Cruz-Funez, the administrative record
contains the Board’s decision for only Mr. Valladares-Castellanos. Admin. R.
at 2. In the Board’s transmittal letter, however, Mr. Cruz-Funez is identified by
his “A number” as a “rider” to Mr. Valladares-Castellanos’s claim. Id. at 1. We
take judicial notice that the Board’s decision for Mr. Cruz-Funez, which appears
on the website of the Executive Office of Immigration Review under
Mr. Valladares-Castellanos’ “A number,” is identical in all respects pertinent to
this appeal, and we therefore refer to the Board’s decision as singular in this
decision.
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502 U.S. 478 (1992); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987);
INS v. Stevic, 467 U.S. 407 (1984); 8 C.F.R. § 1208.16(c)(2); Matter
of Y-L-, A-G-, & R-S-R, 23 I&N Dec. 270 (A.G. 2002); Matter of
S-V-, 22 I&N Dec. 1306 (BIA 2000). The respondent has presented
no arguments on appeal which persuade us that this decision should
be disturbed. Accordingly, the appeal is dismissed.
Admin. R. at 2. The Board member’s cited authorities are different, except for
one case, from those the IJ relied on. And that one case, INS v. Stevic , 467 U.S.
407 (1984), was cited by the IJ only for a general standard of asylum law. See
Admin. R. at 142. The Board member did not mention any of the other authorities
the IJ relied on, including the five cases the IJ cited in his discussion about what
constitutes a particular social group for purposes of asylum and withholding of
removal. See id. at 148-50. The Board member’s citation of different authorities
suggests that he analyzed this case differently than the IJ did.
Petitioners contend that: (1) the Board’s decision is neither a summary
affirmance nor a reasoned decision, and it therefore violates administrative law
and their due process rights; (2) they were eligible for asylum because of their
status as persecuted members of the refugee category, “particular social group,”
see 8 U.S.C. § 1101(a)(42)(A); and (3) they proved the Honduran government’s
acquiescence in torture and are therefore entitled to relief under the CAT.
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II. The Board’s Streamlining Procedures
The first question before us is whether we should review the Board’s
decision or the IJ’s decision in this case. “[T]he INA grants us general
jurisdiction to review a ‘final order of removal.’” Tsegay v. Ashcroft , 386 F.3d
1347, 1353 (10th Cir. 2004) (citing 8 U.S.C. § 1252(a)(1)). Because an alien
facing removal may appeal to the Board as of right, see 8 C.F.R. §§ 1003.1(b)(3),
1003.38(a), 1240.15, and because the Board has the power to review the IJ’s legal
conclusions de novo and his factual findings for clear error, see id.
§ 1003.1(d)(3), there is no “final order” until the Board acts. In light of the
Board’s “streamlining” procedures under 8 C.F.R. § 1003.1, however, the Board’s
decision denying an alien relief from removal may constitute the final order of
removal, or the Board’s decision may be “the agency action that makes the IJ’s
decision the final order of removal,” Tsegay , 386 F.3d at 1353; see also 8 C.F.R.
§ 1003.1(e)(4)(ii). Although the IJ’s decision in this case was issued before the
expanded streamlining procedures were enacted on August 26, 2002, the 2002
amendment was expressly made applicable to pending cases. 67 Fed. Reg.
at 54898-54899. As a result, the amended streamlining regulation governs the
Board’s December 10, 2003 decision.
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III. The Board’s Decision
The Board’s streamlining procedure was expanded in 2002 to allow an
individual Board member to issue a brief written opinion in certain cases, see
8 C.F.R. § 1003.1(e)(5), as an option to affirming without opinion, see id.
§ 1003.1(e)(4), or referring the case to a three-member panel, see id.
§ 1003.1(e)(6). It is clear that the Board member who issued the decision before
us did not affirm without opinion under § 1003.1(e)(4)(i)–he did not use the
language mandated by § 1003.1(e)(4)(ii) or include the mandatory reference to the
regulation. As a result, the IJ’s decision does not constitute the final agency
determination under § 1003.1(e)(4)(ii).
It is apparent from the Board member’s decision, rather, that he acted under
§ 1003.1(e)(5). As the Third Circuit has pointed out: “If the case is more
significant than an (e)(4) case and less significant than an (e)(6) case, the single
BIA member will decide the merits of the appeal by himself and issue ‘a brief
order, affirming, modifying or remanding’ under § 1003.1(e)(5).” Smriko v.
Ashcroft , 387 F.3d 279, 293 (3d Cir. 2004) (quoting § 1003.1(e)(5)).
In Gjyzi v. Ashcroft , 386 F.3d 710, 715-16 (6th Cir. 2004), the Sixth
Circuit considered both the BIA’s and the IJ’s decisions. There, the BIA
repudiated the IJ’s credibility findings, yet affirmed the IJ’s conclusions under
§ 1003.1(e)(5). See id. at 715. The court attempted a meaningful review of the
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IJ’s decision, but was thwarted because the IJ provided no underlying
determination regarding whether there was past persecution. See id. at 715-16.
Thus, the Sixth Circuit remanded, stating: “Although the BIA need not write
extensively on every issue–indeed, we have joined our sister circuits in holding
that ‘the BIA’s streamlining procedures,’ such as summary affirmances of IJ
decisions, ‘do not themselves alone violate an alien’s right to due process,’ Denko
v. I.N.S. , 351 F.3d 717, 730 (6th Cir. 2003)–the failure of the BIA to explain its
decision in this case unnecessarily frustrates our review.” Id. at 716.
Here, we face similar problems, in that the Board clearly affirmed the IJ’s
decision under § 1003.1(e)(5), but did not follow its own procedures pursuant to
that section. Rather, its citation of cases is somewhat mystifying and does not
allow us to provide a meaningful review of the Board’s judgment. Given this
situation, we may remand for clarification or for the Board to follow its own
procedures, or we may consider the IJ’s report, as did the Sixth Circuit in Gjyzi ,
to determine whether the IJ has provided an adequate basis for meaningful
review. Cf. Fisher v. Bowen , 869 F.2d 1055, 1057 (7th Cir. 1989) (Posner, J.)
(“No principle of administrative law or common sense requires us to remand a
case in quest of a perfect opinion unless there is reason to believe that the remand
might lead to a different result.”); Illinois v. ICC , 722 F.2d 1341, 1348 (7th Cir.
1983) (Posner, J.) (“ Chenery [SEC v. Chenery Corp. , 332 U.S. 194 (1947)] does
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not require futile gestures.”). In this case, we find that the IJ’s report provides an
adequate basis for our review.
IV. The IJ’s Decision
The IJ reviewed several cases and decided that petitioners had not defined a
“particular social group” for purposes of asylum and withholding of removal
under the INA. See Admin. R. at 148-51; see also 8 U.S.C. § 1101(a)(42)(A);
§§ 1208.13(b)(1), 1208.16(b). What constitutes a particular social group is a pure
question of law that we review de novo. Elien v. Ashcroft , 364 F.3d 392, 396
(1st Cir. 2004); Hernandez-Montiel v. INS , 225 F.3d 1084, 1091 (9th Cir. 2000).
The INA does not define the phrase “particular social group.”
Hernandez-Montiel , 225 F.3d at 1091. The term “comes directly from the United
Nations Protocol Relating to the Status of Refugees . . . [but] [w]hen Congress
ratified the Protocol on October 4, 1968, it did not shed any further light on the
definition.” Id. The Board has decided that a “particular social group” is “a
group of persons all of whom share a common, immutable characteristic . . . that
the members of the group either cannot change, or should not be required to
change because it is fundamental to their individual identities or consciences.”
In re Acosta , 19 I. & N. Dec. 211, 233-34 (BIA 1985). The agency’s reasonable
interpretation of a statute it administers is entitled to deference. See Tapia Garcia
v. INS , 237 F.3d 1216, 1220 (10th Cir. 2001) (discussing Chevron U.S.A., Inc. v.
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Natural Resources Defense Council, Inc. , 467 U.S. 837, 842-43 (1984)). But the
Board left it to be decided on a case-by-case basis what “particular kind of group
characteristic . . . will qualify under this construction.” Acosta , 19 I. & N. Dec.
at 233.
The courts are struggling to set the parameters for the definition of a
“particular social group” in light of Acosta . The circuit courts are not in
agreement on a test. See Castellano-Chacon v. INS , 341 F.3d 533, 546-48
(6th Cir. 2003) (joining the First, Third, and Seventh Circuits in adopting the
Board’s immutability analysis, but noting that the Ninth and Second Circuits have
settled on a different test from the Board and from each other) .
This court has not yet addressed the question of what group characteristics
qualify to define a particular social group. In this case, however, we can
confidently state that petitioners cannot prevail under any of the circuit courts’
tests. Being indebted to the same creditor (unscrupulous or not) is not the kind of
group characteristic that a person either cannot change or should not be required
to change. Indeed, petitioners’ debt was settled by a court, which ordered them to
pay their creditor back. Admin. R. at 146. As such, we need not adopt a
particular test in this case, and we need not remand for the Board to clarify its
reasoning.
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V. Petitioners’ Claim for Relief Under the Convention Against Torture
“Article 3 of the Convention Against Torture prohibits the [return] of an
alien to a country where it is more likely than not that he will be subject to torture
by a public official, or at the instigation or with the acquiescence of such an
official.” Matter of G-A- , 23 I. & N. Dec. 366, 367 (BIA 2002) (en banc)
(citations omitted). A claim under the CAT differs from a claim for asylum or
withholding of removal under the INA because there is no requirement that the
petitioners show that torture will occur on account of a statutorily protected
ground.
The Board said nothing about petitioners’ CAT claim except to advert to
petitioners’ failure to meet the standard for that relief. The IJ, on the other hand,
explicitly found petitioners credible when they testified that their lives have been
threatened by Mr. Trejo and men who work for him. Admin. R. at 147-48, 151.
But the IJ concluded that the threats were part of Mr. Trejo’s private vendetta and
were not made with the “acquiescence of any public official or person acting in a
governmental position.” Id. at 153. “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 activity.” 8 C.F.R. § 1208.18(a)(7). However, “Congress made its
intent clear that actual knowledge, or willful acceptance, is not required for a
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government to ‘acquiesce’ to the torture of its citizens.” Zheng v. Ashcroft ,
332 F.3d 1186, 1193 (9th Cir. 2003). Rather, “[w]illful blindness suffices to
prove acquiescence.” Ontunez-Tursios v. Ashcroft , 303 F.3d 341, 354 (5th Cir.
2002) (quotations omitted).
Petitioners argue that the IJ erred by concluding that they failed to show
government acquiescence in the torture they expect from Mr. Trejo if they return
to Honduras. 8 U.S.C. § 1252(b)(4)(B) prescribes a deferential standard for
judicial review of administrative findings, which “are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.”
We have reviewed petitioners’ brief on the CAT issue and their cursory
references to the administrative record. Petitioners produced evidence of
corruption in the Honduran government and underfunding of police. They failed,
however, to show that “any reasonable adjudicator,” 8 U.S.C. § 1252(b)(4)(B),
would be compelled to find a connection between Mr. Trejo and the Honduran
government, or awareness by any public official that Mr. Trejo has threatened
petitioners’ lives. Therefore, we are not compelled to conclude that any actions
that Mr. Trejo might take against petitioners will be with the acquiescence of the
Honduran government.
The petition for review is denied.
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