Garcia-Tacuna v. Wilkinson

G
                                                                                 FILED
                                                                     United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                          Tenth Circuit

                           FOR THE TENTH CIRCUIT                          February 18, 2021
                       _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 ELFER YASSER GARCIA-TACUNA,

       Petitioner,

 v.                                                          No. 20-9518
                                                         (Petition for Review)
 ROBERT M. WILKINSON, Acting United
 States Attorney General,

       Respondent.
                       _________________________________

                           ORDER AND JUDGMENT**
                       _________________________________

Before MATHESON, BALDOCK, and CARSON, Circuit Judges.
                  _________________________________

      Elfer Yasser Garcia-Tacuna, a native and citizen of Peru, unlawfully entered the

United States in September 2016. Following his apprehension, he applied for asylum,

withholding of removal, and protection under the Convention Against Torture (CAT).

An immigration judge (IJ) denied his application, and the Board of Immigration Appeals


      
        On January 20, 2021, Robert M. Wilkinson 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 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
(BIA) dismissed his appeal. Mr. Garcia-Tacuna now petitions this court for review.

Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition.

                                    I. BACKGROUND

       Mr. Garcia-Tacuna served in the Peruvian military for two years, rising to the rank

of second sergeant. He returned to his remote indigenous village, where he worked on

his parents’ farm and led a community association that provided “security to the town.”

Admin. R. at 103. The Peruvian government supplied rifles to the association.

       One evening in May 2016, eight to ten armed members of the Tupac Amaru

Revolutionary Movement (MRTA) appeared at Mr. Garcia-Tacuna’s home and sought to

recruit him because he “was a leader” and had “served in the military.”

Id. at 107.

When

he refused, MRTA members “hit [him] with their weapons[ ] and . . . took [him and

another community leader] to the river area,”

id., where they “tied

[their] hands, dunked

[them] in the water, beat [them],” and threatened to kill them if they did not “work for

[MRTA],”

id. at 180.

MRTA released the two men and left when Mr. Garcia-Tacuna’s

family and other people from the village intervened.

Id. at 108;

see also

id. at 180.

This

encounter lasted between 30 and 60 minutes. Mr. Garcia-Tacuna suffered an unspecified

injury to his knees. He reported the incident to local authorities, but, he said, “[T]hey

cannot provide . . . any security.”

Id. at 110.

       Fearing he might be killed, Mr. Garcia-Tacuna left his village with his wife and

nine-year-old son. They moved to a town about “[f]our to five hours away,” where his

aunt lives.

Id. at 109.

There, he worked in different jobs and had no further encounters



                                              2
with MRTA. Nevertheless, he “always was fearful that [MRTA] could show up.”

Id. at 110.

So, after about four or five months, he left (alone) for the United States.

       At a hearing before an IJ, Mr. Garcia-Tacuna conceded his unlawful entry into the

United States and sought asylum, withholding of removal, and CAT relief based on his

fear of MRTA. He claimed that if he returned to Peru, MRTA would persecute him

based on his membership in two social groups: “Peruvian men with prior military

leadership who refuse to join ‘MRTA’”; and “Peruvian men who have held prior

municipal leadership roles in protecting indigenous communities.”

Id. at 129.

Mr. Garcia-Tacuna also claimed he feared being tortured by MRTA and that the police

would not protect him. The IJ denied relief and ordered Mr. Garcia-Tacuna removed.

       The BIA dismissed Mr. Garcia-Tacuna’s appeal. First, the BIA concluded that

Mr. Garcia-Tacuna was not entitled to asylum because he did not show past persecution

or a well-founded fear of future persecution. As to past persecution, the BIA determined

the harm he suffered was neither severe enough to constitute persecution nor was it on

account of a protected characteristic. As to future persecution, it observed that (a) the

Peruvian government had taken steps against MRTA by supplying weapons to

Mr. Garcia-Tacuna’s village and, through counterterrorism actions, had reduced MRTA’s

membership to roughly 100; (b) MRTA members sought to recruit, rather than persecute,

Mr. Garcia-Tacuna; and (c) Mr. Garcia-Tacuna could relocate within Peru to avoid

MRTA and it would be reasonable to expect him to do so. Second, the BIA determined

that because Mr. Garcia-Tacuna could not establish asylum, he could not meet the more

stringent burden for withholding of removal. And third, the BIA concluded CAT relief

                                              3
was unavailable because Mr. Garcia-Tacuna had not shown that his mistreatment

qualified as torture or that he likely would be tortured if removed to Peru.

                                    II. DISCUSSION

       “Because a single member of the BIA affirmed the IJ’s decision in a brief order,

we review the BIA’s opinion rather than the decision of the IJ.” Neri-Garcia v. Holder,

696 F.3d 1003

, 1008 (10th Cir. 2012) (citation omitted). “When reviewing BIA

decisions, an appellate court must look to the record for substantial evidence supporting

the agency’s decision: Our duty is to guarantee that factual determinations are supported

by reasonable, substantial and probative evidence considering the record as a whole.”

Sarr v. Gonzales, 

474 F.3d 783

, 788 (10th Cir. 2007) (brackets and internal quotation

marks omitted). “Agency findings of fact are conclusive unless the record demonstrates

that any reasonable adjudicator would be compelled to conclude to the contrary.”

Id. at 788-89

(internal quotation marks omitted).

                                        A. Asylum

       “To qualify for asylum, a noncitizen must demonstrate either past persecution or a

well-founded fear of future persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” Addo v. Barr, 

982 F.3d 1263

, 1269 (10th Cir. 2020) (internal quotation marks omitted). “In this circuit, the

ultimate determination 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

                                             4
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).

1. Past Persecution

       To establish past persecution, “a showing of three elements is required: (1) an

incident, or incidents, that rise to the level of persecution; (2) that is on account of one of

the statutorily-protected grounds; and (3) is committed by the government or forces the

government is either unable or unwilling to control.” Rivera-Barrientos v. Holder,

666 F.3d 641

, 646 (10th Cir. 2012) (internal quotation marks omitted).

       Mr. Garcia-Tacuna contends the harm inflicted by MRTA was persecution. But,

in immigration law, “[p]ersecution is 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). Our cases show the violence

necessary to establish persecution. Compare Witjaksono v. Holder, 

573 F.3d 968

, 977

(10th Cir. 2009) (no persecution where alien was not seriously injured during one

“violent episode” and another episode that caused physical injury did “not requir[e]

medical attention”); Sidabutar v. Gonzales, 

503 F.3d 1116

, 1124 (10th Cir. 2007) (no

persecution where alien was beaten repeatedly, claimed to have twice suffered serious

injuries, was repeatedly confronted, and was struck and his motorcycle was burned);

Kapcia v. INS, 

944 F.2d 702

, 704, 708 (10th Cir. 1991) (no persecution where alien was

detained twice for two-day periods “during which time he was interrogated and beaten[,]

. . . his parents’ home was searched, he was assigned poor work tasks and denied

bonuses, his locker was broken into many times, and he was conscripted into the . . .

                                               5
army where he was constantly harassed”), with Karki v. Holder, 

715 F.3d 792

, 804-05

(10th Cir. 2013) (persecution where alien “was rendered semi-unconscious” during a

beating and “was the intended target of [a] lethal car bombing”); 

Hayrapetyan, 534 F.3d at 1337-38

(persecution where alien was jailed on two occasions, “knocked to the ground

and kicked . . . on one occasion, and nearly run over by a vehicle on another,” “her

husband was beaten . . . so severely that he had to be hospitalized for fifteen days,” her

“daughter was almost abducted,” she “received telephone threats at home,” and “she was

fired from her job”).

       Without a stronger record, we cannot say a reasonable adjudicator would be

compelled to conclude MRTA’s actions qualify as persecution under our precedent or

that the IJ or BIA erred. Although his recounting of MRTA’s actions raise persecution

concerns, Mr. Garcia-Tacuna provided few details. His encounter with MRTA lasted no

more than an hour, and he identified no resulting injury that required medical attention.

2. Well-Founded Fear of Future Persecution

       Mr. Garcia-Tacuna could still qualify for asylum by demonstrating a well-founded

fear of future persecution. See Ritonga v. Holder, 

633 F.3d 971

, 976 (10th Cir. 2011).

But a “[f]ear of persecution is not well-founded if the applicant can avoid persecution by

relocating to another part of the country and it would be reasonable to expect [him] to do

so.”

Id. at 976-77.

“The question whether a noncitizen can avoid future persecution by

internally relocating is a factual determination.” 

Addo, 982 F.3d at 1268

.

       As the BIA noted, Mr. Garcia-Tacuna relocated to his aunt’s village after his

encounter with MRTA. He remained there for four to five months with his wife and son,

                                             6
worked various jobs, and experienced no further MRTA encounters. Although

Mr. Garcia-Tacuna argues “there is . . . no place where [he] could go in Peru to escape

the[ ] [MRTA],” Pet’r Br. at 29-30, he has offered no supporting evidence. He thus has

not shown that any reasonable adjudicator would be compelled to conclude he could not

internally relocate within Peru to avoid persecution.

                                B. Withholding of Removal

       “To be eligible for withholding of removal, an applicant must demonstrate that

there is a clear probability of persecution because of his race, religion, nationality,

membership in a particular social group, or political opinion.” Zhi Wei 

Pang, 665 F.3d at 1233

(internal quotation marks omitted). Because Mr. Garcia-Tacuna has not met the

requirements for asylum, he cannot “satisfy the higher standard of eligibility for

withholding of removal.”

Id. at 1234. C.

CAT Relief

       “Article 3 of the [CAT] 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.” Cruz-Funez v. Gonzales,

406 F.3d 1187

, 1192 (10th Cir. 2005) (brackets and internal quotation marks omitted).

“[W]illful blindness suffices to prove acquiescence.”

Id. (internal quotation marks

omitted). The BIA’s CAT “findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Nasrallah v. Barr,

140 S. Ct. 1683

, 1692 (2020) (internal quotation marks omitted).



                                               7
       Mr. Garcia-Tacuna argues “it is more likely than not that he would be tortured by

MRTA with the acquiescence of the Peruvian government if he returned to Peru.” Pet’r

Br. at 31. He claims that “the Peruvian government is aware of the torture being

committed against its citizens by MRTA in remote and isolated villages in Peru and yet it

refuses to intervene.” Pet’r Br. at 33. In rejecting this claim, the BIA referenced

evidence showing the government’s successful counterterrorism efforts. See, e.g.,

Admin. R. at 148-49 (Global Security Report, indicating that Peruvian police have

captured MRTA’s leaders and have “almost completely dismantled” their military

forces);

id. at 149

(same, estimating that MRTA has “roughly 100 remaining members”

and that “[m]ost members have been jailed”). Further, as Mr. Garcia-Tacuna testified,

the Peruvian government “ask[ed] . . . every town” to organize a security committee for

protection against “terrorist[s],”

id. at 103,

and it supplied rifles for that purpose

, id. at 105.

Mr. Garcia-Tacuna has not identified evidence that would compel a reasonable

adjudicator to conclude the Peruvian government would acquiesce in his torture by

MRTA. His CAT claim therefore fails.

                                     III. CONCLUSION

       We deny Mr. Garcia-Tacuna’s petition for review.


                                                 Entered for the Court


                                                 Scott M. Matheson, Jr.
                                                 Circuit Judge




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