FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 24, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
GEOVANNI RAMBERTO RAMIREZ-
TEJADA,
Petitioner,
v. No. 20-9576
(Petition for Review)
MERRICK GARLAND, Attorney General
of the United States,
Respondent.
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before MATHESON, BRISCOE, and CARSON, Circuit Judges.
_________________________________
Geovanni Ramberto Ramirez-Tejada (“Petitioner”) petitions for review from
the Board of Immigration Appeals’s (“BIA’s”) denial of asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). Petitioner is not
On March 11, 2021, Merrick Garland became 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 that oral argument would not materially assist in 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
entitled to asylum or withholding of removal because he has not shown a nexus
between his membership in a particular social group and his fear of persecution.
Further, the BIA’s denial of CAT relief is supported by substantial evidence.
Accordingly, exercising jurisdiction under 8 U.S.C. § 1252, we DENY the petition
for review.
I. Background
Petitioner is a native and citizen of El Salvador. In 2014, members of the
MS-13 gang kidnapped, assaulted, and ransomed Petitioner in El Salvador. After his
release, Petitioner spoke with a Salvadoran police officer. The Salvadoran police
organized a sting operation with Petitioner’s assistance. The sting operation led to
the arrest of one of the gang members, whom Petitioner identified as one of his
kidnappers. After the sting operation, MS-13 gang members sought out and
threatened Petitioner, calling him a “rat” and threatening to “torture and dismember
him.” AR at 57. Petitioner moved several times within El Salvador but continued to
receive threats from MS-13 gang members. Petitioner also informed the Salvadoran
police about these threats but was told that the police lacked the resources to follow
up on his case; the police also recommended that Petitioner leave El Salvador.
Petitioner fled El Salvador and entered the United States without valid entry
documents.
Petitioner received a Notice to Appear in removal proceedings. Petitioner
admitted the factual allegations and conceded the charge contained in the Notice to
Appear. He also applied for asylum, withholding of removal, and protection under
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CAT. Following a hearing, an Immigration Judge (“IJ”) denied Petitioner’s
application for relief and ordered Petitioner removed to El Salvador. Petitioner
timely appealed to the BIA. The BIA affirmed the IJ’s decision. Petitioner then filed
a timely petition for review in this court.
Petitioner presents three issues in his petition for review: (1) whether the BIA
erred in denying asylum and withholding of removal by finding that Petitioner’s
proposed particular social group lacked particularity and social visibility; (2) whether
the BIA erred in denying asylum and withholding of removal by finding that
Petitioner failed to establish a nexus between his membership in a particular social
group and his fear of persecution; and (3) whether the BIA erred in denying CAT
relief by finding that the Salvadoran government would not acquiesce to Petitioner’s
torture. See Pet’r’s Br. at 2–3.
II. Asylum and Withholding of Removal
“On an asylum claim, we review the BIA’s findings of fact under a
substantial-evidence standard.” Rodas-Orellana v. Holder, 780 F.3d 982, 990 (10th
Cir. 2015) (internal quotations and citations omitted). “We review the BIA’s legal
decisions de novo, but we defer to the BIA’s interpretation of ambiguous provisions
of the [Immigration and Naturalization Act], and must accept the BIA’s interpretation
if it is reasonable.” Id. (internal quotations and citations omitted).
An alien is eligible for asylum if he or she is a “refugee” within the meaning of
the Immigration and Naturalization Act. See 8 U.S.C. § 1158(b)(1)(A). An alien
may qualify as a “refugee” if he or she is unable or unwilling to return to the country
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of his or her nationality because of “persecution or a well-founded fear of persecution
on account of . . . membership in a particular social group.” 8 U.S.C. § 1101(a)(42).
A cognizable “particular social group” must have both “particularity” and “social
visibility,” also referred to as “social distinction.” See Rivera-Barrientos v. Holder,
666 F.3d 641, 648 (10th Cir. 2012). “[T]he victim’s protected characteristic must be
central to the persecutor’s decision to act against the victim.” Id. at 646.
Petitioner asserts that he belongs to a particular social group described as
“those who actively oppose gangs in El Salvador by agreeing to be participants in the
prosecution of gang members.” AR at 3. The BIA held that Petitioner’s proposed
particular social group “lack[ed] both particularity and social distinction.” AR at 4.
The BIA also held that Petitioner failed to establish “a nexus between any harm he
may face from gangs in El Salvador and membership in his proposed social group.”
Id.
We decline to decide whether Petitioner established a cognizable particular
social group. Even assuming the BIA erred in holding that Petitioner’s proposed
particular social group lacked particularity and social distinction, the BIA did not err
in holding that Petitioner failed to establish the requisite nexus between his
membership and fear of persecution. As the BIA concluded, Petitioner “has not
shown he was or would be harmed on account of his membership in a social group,
but rather that ‘he was targeted by criminals because he posed a threat to their
interest in avoiding prosecution.’” AR at 4 (quoting Rodriguez-Leiva v. Holder, 607
F. App’x 807, 810–11 (10th Cir. 2015) (unpublished)).
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Petitioner’s arguments to the contrary fall short. Petitioner asserts that he
“submitted clear evidence that, after he provided information to law enforcement
regarding the MS-13 gang member, he relocated out of fear for his life but was still
identified and threatened by the MS-13 gang . . . .” Pet’r’s Br. at 12. He also asserts
that MS-13 gang members called him a “rat,” and that he “knows that he is dealing
with the MS-13 gang.” Id. at 13. These facts do not establish the requisite nexus; to
the contrary, they support the BIA’s conclusion that Petitioner was singled out for
reprisal.
Our decision in Rivera-Barrientos illustrates the flaw in Petitioner’s argument.
As we explained in Rivera-Barrientos, “we must distinguish between persecution
based on social status, and an individualized reaction to the applicant based on [his
or] her threat to the gang’s interests.” 666 F.3d at 653. In that case, we relied upon
two contrasting examples provided by the BIA’s decision in Matter of C-A-, 23 I. &
N. Dec. 951 (BIA 2006):
Were a situation to develop in which former police officers
were targeted for persecution because of the fact of having
served as police officers, a former police officer could
conceivably demonstrate persecution based upon membership
in a particular social group of former police officers. On the
other hand, if a former police officer were singled out for
reprisal, not because of his status as a former police officer,
but because of his role in disrupting particular criminal
activity, he would not be considered, without more, to have
been targeted as a member of a particular social group.
Rivera-Barrientos, 666 F.3d at 653 (quoting Matter of C-A-, 23 I. & N. Dec. at
958–59).
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Here, the fact that Petitioner was threatened by the same gang that he helped
prosecute supports the BIA’s conclusion that Petitioner was targeted because of his
role in the sting operation, i.e., “because of his role in disrupting particular criminal
activity.” Id. The fact that Petitioner was called a “rat” also suggests that he was
targeted because of his involvement in the sting operation—and not some general
opposition to gang activity. Similarly, the fact that Petitioner identifies his
persecutors as MS-13—and not some other gang he has no particular history with—
indicates that the threats are retaliatory. In other words, Petitioner was not targeted
because of a general opposition to “gangs in El Salvador” or because he was
generally a “participant[] in the prosecution of gang members.” AR at 3. Rather,
Petitioner was singled out for reprisal by MS-13 because of specific actions he took
against MS-13, including his assistance in prosecuting one of MS-13’s members.1
Because Petitioner is not entitled to asylum, he is also not entitled to
withholding of removal. See Rodas-Orellana, 780 F.3d at 987 (“Failure to meet the
burden of proof for an asylum claim necessarily forecloses meeting the burden for a
withholding claim.”); 8 U.S.C. § 1231(b)(3)(A) (threat to an alien’s life or freedom
because of the alien’s “membership in a particular social group” may warrant
withholding of removal).
1
Petitioner also asserts that the Salvadoran police will not protect him from
MS-13. Pet’r’s Br. at 13. We do not doubt Petitioner’s fear of future persecution.
Petitioner has not, however, shown the requisite nexus between that fear and his
membership in a particular social group.
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III. CAT Relief
We review a CAT order for substantial evidence. Nasrallah v. Barr, 140 S.
Ct. 1683, 1688 (2020). Under the substantial evidence standard, “[t]he agency’s
findings of fact are conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” Id. at 1692 (internal quotations omitted). To warrant
relief under CAT, an applicant must show it is more likely than not he or she will be
subject to torture in his or her country by, at the instigation of, or with the
acquiescence of a public official or one acting in an official capacity. 8 C.F.R.
§§ 1208.16–18. Acquiescence does not require “actual knowledge, or willful
acceptance,” but rather may be proven by “willful blindness.” Karki v. Holder, 715
F.3d 792, 806 (10th Cir. 2013).
The BIA acknowledged that the Salvadoran police’s refusal to protect
Petitioner demonstrated the Salvadoran government’s “difficulty combatting gang
violence in [El Salvador].” AR at 5. The BIA concluded, however, that “the record
shows that the [Salvadoran] government nonetheless has attempted to assist and
protect the respondent with the resources available.” Id. The BIA’s conclusions are
supported by substantial evidence. Although the record supports a credible fear of
torture, the record does not show willful blindness by the Salvadoran government.
Indeed, the record shows that the Salvadoran police worked with Petitioner to arrest
one of his kidnappers. Cf. Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006)
(affirming BIA’s denial of CAT relief where the government provided “information
and financial assistance to prevent torture”). Thus, we affirm the BIA’s denial of
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CAT relief because a reasonable adjudicator would not “be compelled to conclude to
the contrary.” Nasrallah, 140 S. Ct. at 1692.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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