UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

______________________ ___________________MARCELO BERNARDO AVILESRAMOS, Petitioner,

v. MERRICK B. GARLAND, United States Attorney General, Respondent. No. 22-9569 Petition for Review

______________________ _________________ ORDER AND JUDGMENT *

______________________ _________________ Before BACHARACH , PHILLIPS , and EID , Circuit Judges.

________________ _________________ This petition for judi cial review involves a noncitizen’s application for asylum based on persecution from a criminal gang. To get asylum, the noncitizen needed to pr ove a nexus between his persecution and his membership in a partic ularized social group. Rodas-Orellana v. Holder , 780 F.3d 982, 996 (1 0th Cir. 2015); Dallakoti v. Holder , 619 F.3d 1264, 1267 (10th Cir. 2010).

* This order and judgment does not co nstitute binding pr ecedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgmen t may be cited for its persuasi ve value if otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### November 28, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-9569 Document: 010110959400 Date Filed: 11/28/2023 Page: 12 For this nexus, the noncitizen alleged persecution based on his ownership of a business and past de fiance of the gang. The immigration judge rejected this alle gation, reasoning in part that the gang wasn’t targeting the noncitizen because he owned a business . The Board of Immigration Appeals dismissed the appeal. The noncitizen petitions us for re view, and we address two issues:
1. Did the Board err by focusing on the gang’s motive? We answer no . To determine why the gang targeted the noncitizen, the Board acted reasonably in focusing on the gang’s motive.
2. Can we grant relief ba sed on the immigrati on judge’s use of an alleged tautology when the nonci tizen failed to alert the Board to the tautology? We answer no . Because the noncitizen violated a claim-processing rule by failing to ra ise this issue with the Board, we need not address the merits.
1. Mr. Aviles-Ra mos seeks asylum. The two issues arose from proc eedings involving Mr. Marcelo Bernardo Aviles-Ramos, a citizen of El Salvador. El Salvador is plagued with gang violence, and Mr. Aviles-Ramos requested asylum in the United States. He based this request on his ownership of a business and his membership in a social group defined as “Salvadorian business owners who defy criminal organizations.” R. at 183, 356–69. The immigration judge found no nexus betw een membership in this social group and the Appellate Case: 22-9569 Document: 010110959400 Date Filed: 11/28/2023 Page: 23 threat of persecution, and the Board of Immigration Appeals dismissed an appellate challenge to this finding. 1 2. The Board didn’t err in its ap proach to the nexus inquiry. Mr. Aviles-Ramos argues that the Board improperly focused on the gang’s motive and failed to correct the immigration judge’s use of a tautology.
A. Gang’s Motive In part, Mr. Aviles-Ramos argues th at the immigration judge erred by focusing on the gang’s motive . The governmen t questions the need to address this argument, a lleging noncompliance with our claim-processing rules. Under these rules, we can review Mr. Avile s-Ramos’s argument only if he exhausted available administrative remedies when he appealed to the Board. Santos-Zacaria v. Garland , 598 U.S. 411, 416–23 (2023). The government points out that Mr. Aviles-Ramos omitted this argument when appealing to the Board, arguing that this omission creates a claim-processing defect . Despite the gov ernment’s reliance on a claimprocessing defect, Mr. Aviles-Ramos’s reply brief omits any discussion of the government’s argument. Given this omission , Mr. Aviles-Ramos has

1 The immigration judg e and Board also found th at the proposed social group lacked particularization. We n eed not address that finding because Mr. Aviles-Ramos failed to show a nexus between his proposed social group and the persecution. Appellate Case: 22-9569 Document: 010110959400 Date Filed: 11/28/2023 Page: 34 waived any non-obvious flaws in the government’s argument. Hasan v. AIG Prop. Cas. Co. , 935 F.3d 1092, 1099 (1 0th Cir. 2019). The government’s argument doesn’ t contain any obvious flaws: Mr. Aviles-Ramos needed to present th e same legal theory to the Board, and he failed to mention the alleged error when appeali ng to the Board. See Garcia-Carbajal v. Holder , 625 F.3d 1233, 1237 (10th Cir. 2010); see also 8 U.S.C. § 1252(d)(1) (“A court may review a fi nal order of removal only if . . . the alien has exha usted all administrative re medies available to the alien as of right.”). He nonetheless argues that the Board shou ld have caught the immigration judge’s erro r. The Board had no oblig ation to conduct a sua sponte search for error, so this part of Mr. Aviles-Ramos’s argument creates a claim-processing defect. See Barrados-Zarate v. Barr , 981 F.3d 603, 605 (7th Cir. 2020) (d eclining to address an unexhausted challengebecause the Board of Immigration Appeals adheres to the same partypresentation rule that the courts of appeals follow). But Mr. Aviles-Ramos a ppears to go further, suggesting that the Board itself erred by fo cusing on the ga ng’s motive. In light of this suggestion, the gover nment contends that Mr. Av iles-Ramos has also failed to exhaust a challenge involving the Board’s ow n error. But Mr. AvilesRamos arguably couldn’t have learned of the Board’s focus on motive before the Board issued its decision . In similar circumstances, some Appellate Case: 22-9569 Document: 010110959400 Date Filed: 11/28/2023 Page: 45 circuits have held that noncitizens don’t ne ed to appeal to the Board when they’re challenging errors that appear ed for the first ti me in the Board’s own decision. See Olivas-Motta v. Whitaker , 910 F.3d 1271, 1280 (9th Cir. 2018); Indrawati v. Att’y Gen. , 779 F.3d 1284, 1299 (11th Cir. 2015). 2
We need not decide wh ether to take this approach here because a challenge involving the Bo ard’s own decision would fail on the merits. See Donnelly v. Controlled Applic ation Rev. & Res. Prog. Unit , 37 F.4th 44, 56 (2d Cir. 2022) (“[B]ecause mandator y claim-processing rules are not jurisdictional, we may assume that su ch rules are satisfi ed to resolve the case on other grounds.”); see also Ponce v. Garland , 70 F.4th 296, 300–01 (5th Cir. 2023) (rejectin g an asylum claim on th e merits because the petitioner’s failure to exhaust his claim was not a jurisdictional defect). To assess a nexus be tween the persecution and membership in a social group, the Boar d needed to consider the gang’s motive. See Aguilar v. Garland , 29 F.4th 1208, 1211–12 (10th Cir. 2022); Orellana-Recinos v. Garland , 993 F.3d 851, 856, 858 (10th Ci r. 2021). For ex ample, a nexus wouldn’t exist if Mr. Aviles-Ramos’s ownership of a business hadn’t

2 Mr. Aviles-Ramos might have been able to seek reconsideration or reopening. But our claim- processing rules didn’ t require a motion to reconsider or reopen. See Santos-Zacaria v. Garland , 598 U.S. 411, 424–25 (2023). Appellate Case: 22-9569 Document: 010110959400 Date Filed: 11/28/2023 Page: 56 constituted a central reason for the gang’s persecution. Orellana-Recinos , 993 F.3d at 856. Mr. Aviles-Ramos argues that the Board needed to focus on the characteristics of his soci al group rather than th e gang’s moti ve. But he doesn’t say how the Board could evalua te the nexus wit hout focusing on the gang’s motive. To the contrary, Mr. Aviles-Ramos stre sses that the key question was why the gang had targeted him. The Board couldn’t answer that question without de termining the gang’s moti ve for targeting certain
groups. See Hamill v. Md. Cas. Co. , 209 F.2d 338, 341 (10th Cir. 1954) (“Motive is the reason wh ich leads the mind to desi re that result.” (quoting
James Stewart & Co. v. Law , 233 S.W. 2d 558, 561 (Tex. 1950))). 3 Sidestepping an explanation for the difference between his why question and an i nquiry involving motive , Mr. Aviles-Ramos cites a snippet from INS v. Elias-Zacarias , 502 U.S. 478 (1992 ). There a noncitizen

3 A leading legal dictionary defines motive : A reason, interest, or cause to do something. Motive is the purpose, reason, interest, condition, or belief that does or might be a cause for a person or entity to commit some act. In its most general sense, motive is some times used as a synonym for purpose, as in a legislature’s motive in enacting a statute. 2 Bouvier’s Law Dict. 1788 (Sheppard gen. ed.); see also Webster’s Third New Int’l Dict. 1475 (Gove ed.- in-chief) (stating that the first definition of motive is “something within a person (as need, idea, organic state, or emotion) that incites him to action”). Appellate Case: 22-9569 Document: 010110959400 Date Filed: 11/28/2023 Page: 67 sought asylum based on persecution for a political opinio n after a guerilla organization had tried to conscript him. Id. at 479–80; see 8 U.S.C. § 1101(a)(42). The Su preme Court explained that the statute protected the noncitizen’s political opinio n, not the persecutor’s. Id. at 482. As a result, the noncitizen need ed to show that he had been targeted based on his political opinion, not the guerilla organization’s. Id. From this discussi on, Mr. Aviles-Ramos suggests that the EliasZacarias Court was disregarding the guerrilla organi zation’s motive. This suggestion reflects a misinterpretat ion of the opinion. The Court was simply interpreting the st atute to require a threat of persecution based on the noncitizen’s political opinion (ra ther than the persecutor’s). Id. The Court couldn’t—and didn’ t—suggest that the persecutor’s motive was unimportant. To the contrary, the Co urt explained that the persecutor’s motive was “critical”: [The noncitizen] objects that he cannot be e xpected to provide direct proof of his persecutor’s motives. We do no t require that. But since the statute makes motive critical, he must provide some evidence of it, direct or circumstantial. Id. at 483 (emphasis in original). Elias-Zacarias thus shows the critical role of motive in the inquiry on nexus. See Parsussimova v. Mukasey , 555 F.3d 734, 739 (9 th Cir. 2009); 4 see also Tamas-Mercea v. Reno , 222 F.3d

4 In Parussimova , the court explained: Appellate Case: 22-9569 Document: 010110959400 Date Filed: 11/28/2023 Page: 78 417, 425–26 (7th Cir. 2000) (“The Supreme Court has made clear that the motive of those engaging in oppressive actions is a ‘critical’ element of the Immigration and Nationa lity Act.” (quoting Elias-Zacarias , 502 U.S. at 483)). In criticizing the agency’s focu s on motive, Mr. Aviles-Ramos asserts that the immigration judge erred because a gr oup’s decision to persecute “a variety of individuals for a variety of different reasons does not function, in fact or law, to automatically transmogrify all the persecutory harm into random human suffering.” Petitioner’s Opening Br. at 21–22. The agency treat s this assertion as a suggestion that the persecutor’s motives are irrelevant. Respondent’s Br . at 43. If this were Mr. Aviles-Ramos’s point, he didn’t raise it with the Board, which would prevent consideration. See pp. 3–4, above.

As the Supreme Court held in Elias-Zacarias , the term “on account of” in [8 U.S. C.] § 1101(a)(42)(A) re quires an asylum applicant to prove that she was persecuted “ because of ” a protected ground. This necess itates an assessment of the persecutor’s motives. Indeed, the [Immigration and Nationality Act] “makes motive critical” an d, while it does not require the applicant to provide “direct proof of his persecutors’ motives,” it does demand “ some evidence of [motive], direct or circumstantial.” 555 F.3d at 739 (quoting INS v. Elias-Zacarias , 502 U.S. 478, 483 (1992); emphasis in original). Appellate Case: 22-9569 Document: 010110959400 Date Filed: 11/28/2023 Page: 89 But we interpret Mr. Aviles-Ramo s’s statement differently. His statement suggests that the immigration judge re garded the gang ’s violence as random. 5 This suggestion is misguided because th e immigration judge never characterized the gang’s violen ce as random. To the contrary, the immigration judge found that

 the gang had chosen to persecute Salvadorians for various reasons and

 these reasons hadn’t included ownership of a business.
R. at 73. 6 We thus reject Mr. Aviles- Ramos’s sugges tion that the immigration judge attributed the ga ng’s violence to random criminality.
B. Tautology Mr. Aviles-Ramos also argues that the immigration judge engaged in a tautology, rejecting th e existence of a nexus because the group itself wasn’t cognizable. Because we review the Board’s d ecision, rather than the immigration judge’s, we w ould ordinarily need to consider whether the

5 Mr. Aviles-Ramos’s br ief to the Board also om itted this suggestion, but the respondent doesn’ t address this suggesti on. As a result, the government has arguab ly forfeited a chal lenge to this s uggestion based on a claim-processing defect. See Santos-Zaca ria v. Garland , 598 U.S. 411, 423 (2023). Regardless of a possible forfeiture , however, Mr. AvilesRamos’s suggestion would fail on the merits. See p. 5, above.

6 In his reply brief, Mr. Aviles-R amos appears to agree, acknowledging that the immigration judge found that “Salva dorian criminals target lots of people for all kinds of different r easons.” Petitioner’s Reply Br. at 14. Appellate Case: 22-9569 Document: 010110959400 Date Filed: 11/28/2023 Page: 910 Board correctly ap plied the appropriate standard. Kabba v. Mukasey , 530 F.3d 1239, 1245 (10th Cir. 2008). The Board didn’t address this issue because Mr. Aviles-Ramos hadn’t raised it with the Board. He had an obligati on to present the Board with the same legal theory that he is raising here. See p. 4, above. But when Mr. Aviles-Ramos appealed to the Board, he didn’t mention the immigration judge’s alleged tautology. The government argues that Mr. Av iles-Ramos didn’t appeal this issue to the Board, and he doesn’t respond to this argum ent. That omission results in waiver of any non-obvious flaws in the governme nt’s reliance on a claim-processing defect. See p. 3–4, above. In our view, the government’s argum ent involving a claim-pr ocessing defect doesn’t contain any obvious flaws; so we do not reach th e merits of Mr. AvilesRamos’s allegation of a tautology.
* * * We deny the petition for judicial re view because the Board didn’t errin rejecting a nexus between the alleged persecution and Mr. AvilesRamos’s ownership of a business. Entered for the Court

Robert E. Bacharach Circuit Judge Appellate Case: 22-9569 Document: 010110959400 Date Filed: 11/28/2023 Page: 10