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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 4, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
LUIS ALFREDO BLANCAS-LOZANO,
Petitioner,
v. No. 21-9533
(Petition for Review)
MERRICK B. GARLAND, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before McHUGH, MORITZ, and ROSSMAN, Circuit Judges.
_________________________________
An Immigration Judge (IJ) denied Luis Alfredo Blancas-Lozano’s application
for protection under the United Nations Convention Against Torture (CAT) and
granted him voluntary departure to Mexico. The Board of Immigration Appeals
(BIA) upheld the IJ’s order. Mr. Blancas has filed a petition for review. Exercising
jurisdiction under 8 U.S.C. § 1252(a)(4), we deny the petition.
*
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 This order and judgment is not binding precedent,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.
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I. BACKGROUND
Mr. Blancas is a native and citizen of Mexico. In 2018, the Department of
Homeland Security served him with a Notice to Appear, charging him with
removability as a noncitizen present in the United States without having been
admitted or paroled, or for having arrived in this country at any time or place other
than as the Attorney General designated. See 8 U.S.C. § 1182(a)(6)(A)(i).
Mr. Blancas conceded the charge against him but applied for withholding of
removal under the CAT. His testimony consists of an affidavit he submitted to the IJ.
The IJ found Mr. Blancas credible and adopted his affidavit as the statement of facts.
In his affidavit, Mr. Blancas stated that in 2005, when he was fifteen, he was
standing outside a store with his brothers and some friends near where he lived in
Mexico. A group of people from across the street started yelling at them that they
were not welcome and had to leave. Five members of the group armed with
machetes, sticks, and rocks then attacked Mr. Blancas’s group. They punched
Mr. Blancas, kicked him, and beat him with rocks. He ran, but one of the people
caught him and threatened that if Mr. Blancas was seen in that area again, they would
beat or kill him. Because there was no hospital in the area where he lived, his mother
took care of him. For a long time after this incident, Mr. Blancas did not travel more
than a block from his house.
A few months later, four men from the earlier incident attacked Mr. Blancas
while he was running errands with his mother in a nearby town. They taunted
Mr. Blancas, punched him, and hit him on the arm with a crowbar. He was able to
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knock one of the men down and escape. He drove to a nearby hospital to get care for
his mother, who had lost consciousness.
Mr. Blancas did not report either attack to the police because he believes the
Mexican police are untrustworthy and generally unwilling to investigate crimes
unless the victim pays them. But when he returned home after the second attack, the
police were at his house asking questions about it. Mr. Blancas felt they were
accusing him of having started the fight, and an officer told him he could be jailed,
which caused him to think the police were working for the attackers. Afterwards,
Mr. Blancas decided not to leave his house unless he absolutely had to.
Based on these two attacks and associated threats he received at school,
Mr. Blancas came to the United States in November 2005.
In his affidavit, Mr. Blancas also asserted he fears returning to Mexico because
he will be tortured by the Huachicoleros, a gang or criminal organization in Mexico
that steals fuel. The Huachicoleros have been known to conscript people to work for
the gang. The group forced Mr. Blancas’s brother-in-law to work for it by
threatening his wife (Mr. Blancas’s sister) and their children. There is a real danger
he could be conscripted, Mr. Blancas asserted, because of the many fuel pipes in his
area. He also claimed he is at high risk of being injured or harmed by criminal
groups in Mexico who target Mexican citizens when they return after living in the
United States for a long time.
The IJ found Mr. Blancas had not demonstrated it was more likely than not he
would be tortured if he returns to Mexico. First, the IJ found the mistreatment
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Mr. Blancas received in the two attacks was not sufficiently severe to qualify as past
torture; although he was physically harmed, he did not go to the hospital. The IJ also
observed those events occurred in 2005, and there was no evidence whether or why
the attackers would still be interested in Mr. Blancas now, many years later. The IJ
also found no evidence Mr. Blancas had any history with the Huachicoleros or that
the Huachicoleros had targeted him in the past or would target him specifically if he
returns to Mexico. Further, the IJ found it “reasonable for [Mr. Blancas] to relocate
to another area of Mexico to avoid the harm in his hometown.” R. at 65. The IJ
explained Mr. Blancas could avoid the harm he feared by relocating, since both his
attackers and the Huachicoleros were operating in his hometown, Mr. Blancas is “of
working age,” and “Mexico is large and very populous.” Id.
The BIA “adopt[ed] and affirm[ed]” the IJ’s decision and concluded the IJ’s
“factual findings” were “not clearly erroneous.” R. at 3. The BIA reiterated some of
the IJ’s reasoning and added that Mr. Blancas’s “argument that his sister and
brother-in-law were targeted” by the Huachicoleros “does not show that he, in
particular, would be targeted.” Id. This petition for review followed.
II. DISCUSSION
Where, as here, a single BIA member issues a brief order deciding the merits
of an appeal, the BIA’s order is the final order we review. Uanreroro v. Gonzales,
443 F.3d 1197, 1204 (10th Cir. 2006). But we may consult the IJ’s decision if
necessary to understand the grounds for the BIA’s decision, especially where, as
here, the BIA adopts the IJ’s decision. See id. (noting it is “especially appropriate” to
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look to 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”). We review factual challenges to an order denying CAT relief
for substantial evidence. Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020). Under the
substantial-evidence standard, “administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B). We review legal determinations de novo. Igiebor v. Barr,
981 F.3d 1123, 1131 (10th Cir. 2020).
To be eligible for withholding of removal under the CAT, an applicant must
“establish that it is more likely than not that he or she would be tortured if removed
to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Mr. Blancas argues
the IJ and BIA erred in finding that he failed to meet this standard. He contends his
past treatment amounts to torture or at least supports a likelihood of future torture by
the same group, particularly when accounting for the mental suffering they caused
him. We identify no error. 1
“Torture is defined as any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person.” Id. § 1208.18(a)(1)
(emphasis added). It “is an extreme form of cruel and inhuman treatment and does
not include lesser forms of cruel, inhuman or degrading treatment or punishment that
do not amount to torture.” Id. § 1208.18(a)(2) (emphasis added). For “severe pain or
1
Although Mr. Blancas lists three issues in his brief, his arguments overlap in
certain respects. We therefore address the issues topically.
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suffering” to warrant CAT relief, it must be “inflicted by, or at the instigation of, or
with the consent or acquiescence of, a public official acting in an official capacity or
other person acting in an official capacity.” Id. § 1208.18(a)(1). In assessing the
likelihood of torture, a fact-finder must consider all relevant evidence, specifically
including “[e]vidence of past torture inflicted upon the applicant.” Id.
§ 1208.16(c)(3)(i).
Here, Mr. Blancas was beaten twice but did not suffer severe physical or
mental injuries. We have upheld agency findings that even more severe pain and
suffering did not amount to persecution, let alone fall within the more severe
category of torture. See, e.g., Xue v. Lynch, 846 F.3d 1099, 1101-02 (10th Cir.
2017); Sidabutar v. Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007). 2
Mr. Blancas also contends the BIA erred in upholding the IJ’s finding there
was no evidence that the individuals who attacked him in 2005 would be interested in
him thirteen years later. To support this contention, he offers his testimony that the
Mexican police acted in collusion with his attackers and, more generally, have a
custom of colluding with gangs. We do not see how those facts (assuming their
2
Mr. Blancas asserts the IJ only “questioned whether [he] was even tortured”
and the BIA “assumed [he] was harmed or tortured.” Pet’r’s Opening Br. at 17 n.6;
see also id. at 20-21 (arguing the BIA “did not affirm the IJ that Mr. Blancas was not
harmed or tortured”). This assertion rests on a misreading of the record. The IJ
found “the mistreatment [Mr. Blancas] received in the two attacks in Mexico was not
sufficiently severe to rise to the level of torture in the past.” R. at 64. And the BIA
determined the IJ had made no clear errors in his factual findings, affirming and
adopting the IJ’s decision. See R. at 3.
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truth) bear on the likelihood that Mr. Blancas’s attackers would harm or torture him
if he returns to Mexico now.
Mr. Blancas suggests documentary evidence of human rights violations in
Mexico—including torture, beatings, abuse, and mistreatment by security forces—
supports the likelihood he would be tortured if he returns and that the agency failed
to consider or mention such evidence. An IJ must consider country-conditions
evidence. See 8 C.F.R. § 1208.16(c)(3)(iii)-(iv) (requiring consideration of
country-conditions evidence, in particular any “gross, flagrant or mass violations of
human rights within the country of removal, where applicable”). Although the IJ did
not explicitly discuss the country-conditions evidence, he stated he had considered all
the evidence. Mr. Blancas points to no specific parts of the country-conditions
evidence suggesting it is more likely than not he would be tortured if he returns to
Mexico, nor have we uncovered any. Thus, we have no reason to believe the IJ did
not consider the documentary evidence. See Maatougui v. Holder, 738 F.3d 1230,
1242-43 (10th Cir. 2013) (“The [IJ] is not required to write an exegesis on every
contention. What is required is that [the IJ] consider the issues raised, and announce
[his or her] decision in terms sufficient to enable a reviewing court to perceive that
[he or she] has heard and thought and not merely reacted.” (brackets and internal
quotation marks omitted)); Hadjimehdigholi v. INS, 49 F.3d 642, 648 n.2 (10th Cir.
1995) (explaining that the agency is not required to discuss all the evidence).
Mr. Blancas further argues that in determining the Huachicoleros would be
unlikely to target him again, the BIA failed to seriously consider that the group had
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previously targeted his sister and brother-in-law. He contends that mistreatment a
family member receives is relevant to a CAT claim, particularly where the fear of
torture has the same basis. But the BIA expressly observed this fact did not
overcome the IJ’s finding that the Huachicoleros had not directly targeted
Mr. Blancas or shown any specific interest in him. See R. at 3. Mr. Blancas’s
argument effectively asks us to reweigh the evidence, which we may not do. See
Vladimirov v. Lynch, 805 F.3d 955, 960 (10th Cir. 2015) (explaining that when
evaluating whether substantial evidence supports an agency’s judgment, we do not
“reweigh the evidence”). Mr. Blancas also claims the agency overlooked an article
he submitted describing how the Huachicoleros torture and kill those who resist
recruitment. But nothing in that article shows it is more likely than not that the
Huachicoleros would torture or conscript Mr. Blancas if he were to return to Mexico.
We thus fail to see any legal or factual error casting doubt on whether substantial
evidence supports the denial of CAT relief.
Even if the evidence suggested Mr. Blancas’s 2005 attackers or the
Huachicoleros would be likely to target him if he returns to his home-town area, the
agency found he could avoid harm by relocating elsewhere in Mexico. That was a
proper consideration. Mr. Blancas bore the burden of establishing eligibility for CAT
withholding. See 8 C.F.R. § 1208.16(c)(2). And evaluating the likelihood a CAT
applicant would be tortured involves consideration of “[e]vidence that the applicant
could relocate to a part of the country of removal where he or she is not likely to be
tortured.” Id. § 1208.16(c)(3)(ii).
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Mr. Blancas contends the BIA’s relocation determination rests on an incorrect
legal standard—whether he failed to show it was impossible to relocate. But the IJ
did not apply this standard. The IJ found “it would be reasonable for [Mr. Blancas]
to relocate in another area of Mexico to avoid the harm in his hometown that he
fears.” R. at 65 (emphasis added). Mr. Blancas’s argument that the BIA applied an
impossibility standard apparently rests on the BIA’s use of the phrase “could not” in
its decision: “We also affirm the [IJ’s] conclusion that [Mr. Blancas] did not
demonstrate that he could not relocate to a part of Mexico where he would not face a
clear probability of torture from the individuals who harmed him in the past or the
Huachicoleros.” R. at 3 (emphasis added). Because the BIA affirmed the IJ’s
conclusion that relocation was reasonable, we consider the BIA’s use of the phrase
“could not” to be, at most, inartful drafting and not, as Mr. Blancas contends, the
application of an erroneous legal standard. 3
Finally, Mr. Blancas argues the BIA applied the wrong standard by failing to
consider evidence that the police colluded with his attackers. This argument is
misplaced. Under the CAT, Mr. Blancas must prove “it is more likely than not that
[he] would be tortured if removed to [Mexico].” 8 C.F.R. § 1208.16(c)(2). Torture,
3
Our resolution of this argument does not require addressing Mr. Blancas’s
assertion that § 1208(c)(3)(ii) requires only that relocation be reasonable. This
appears to be an open question in this circuit. Compare Maldonado v. Lynch,
786 F.3d 1155, 1163 (9th Cir. 2015) (en banc) (holding that § 1208.16(c)(3) does not
require a CAT applicant “to prove that internal relocation is ‘impossible’”), with
Hernandez-Torres v. Lynch, 642 F. App’x 814, 821 (10th Cir. 2016) (unpublished
decision relying on Ninth Circuit authority later overruled by Maldonado to suggest
impossibility standard applies in CAT context).
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by CAT definition, requires a showing of severe pain and suffering as well as
government acquiescence to this pain and suffering. See id. § 1208.18(a)(1). The IJ
denied Mr. Blancas’s application because he failed to prove the requisite likelihood
of severe pain and suffering. The BIA did not need to address government
acquiescence to affirm the IJ’s denial of Mr. Blancas’s application.
III. CONCLUSION
For the foregoing reasons, we conclude substantial evidence supports the
agency’s denial of Mr. Blancas’s application for CAT withholding and the agency
committed no legal error. We therefore deny the petition for review.
Entered for the Court
Veronica S. Rossman
Circuit Judge
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