UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ MARIA AVILES-GONZALEZ, Petitioner,

v. MERRICK B. GARLAND, United States Attorney General, Respondent. No. 23-9547 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , KELLY , and MORITZ , Circuit Judges.

________________ _________________ Petitioner Maria Aviles-Gonzalez seeks review of the Board of Immigration Appeals’s (BIA) decision affirming an Im migration Judge’s (IJ) denial of her applications for asylum, withholding of removal, and convention against torture protection. She argues that the BIA and the IJ erred in denying her claims on the grounds that she failed to sh ow the Mexican government was unabl e or unwilling to protect her. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition for review.

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 20, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-9547 Document: 010111067483 Date Filed: 06/20/2024 Page: 12 Background
A. Factual background Ms. Aviles, an alien and Mexican citizen, fled her home country due to familial violence. She testified that her brother, Fernando, sold drugs and was targeted by a criminal organization. R. 138–40. This gr oup barged into Ms. Aviles’s house, held the family at gunpoint, and repeatedly dema nded Fernando’s whereabouts — but he was absent. Before leaving, the group threatened to kill Ms. Aviles and her family if they failed to turn over Fernando. Fearing re taliation by the group, none of the family members contacted poli ce. Id. at 141. The family began receiving threat ening communications from the group demanding information about Fernando. The group watched and occasionally followed family members. One night, Fernando visited his family and informed them of his plans to leave town to evade the cr iminals. The next morning, police found Fernando and his girlfriend murdered. When the death threats continued, Ms. Aviles fled to the United States. She attempted to enter four times. Id. at 146. Officials from the De partment of Homeland Security (DHS) detained Ms. Aviles for trying to cross the border w ith false documents. Id. When asked by DHS whet her she feared returning to Mexico, Ms. Aviles repeatedly said “no” out of fear that DHS would inform corrupt Mexican officials. Id. at 146–47; Pet. Br. at 6. At the time, Ms. Aviles was unaware that the United States allowed aliens to apply for asylum protection. R. 147. Due to her use of false documentation on her fourth attempt to enter, Ms. Aviles pled guilty to one count of fraud under 18 U.S.C. Appellate Case: 23-9547 Document: 010111067483 Date Filed: 06/20/2024 Page: 23 § 1546 and served 60 days in prison. Id. at 503–06. Upon learning of the availability of asylum, Ms. Aviles told DHS offici als that she did, in fact, f ear returning to Mexico. Id. at 147–48. Since entering the United States, several of Ms. Aviles’s family members have been threatened, kidnapped, and even murdered because of their connection to Fernando. Id. at 148–52. In 2014, DHS commenced removal proceedi ngs against Ms. Aviles. In response, she timely filed an application for asylum.
B. Procedural history As a threshold matter, the IJ made an a dverse credibility determination against Ms. Aviles given her use of false documents when attempting to enter the United States and other misleading statements she made while bei ng processed. Id. at 75–77. Despite the adverse credibility finding, the IJ noted “t hat the factual circumstances regarding her departure from Mexico and the circumstan ces surrounding the harm that she and her family experienced were corroborated.” Id. at 76. The IJ denied asylum, in part, because Ms. Aviles failed to establish that the Mexi can government would be unable or unwilling to protect her, so she could not demonstrate pa st persecution. Id. at 80–81. The IJ emphasized that she failed to contact police on several occas ions given continuing threats and intimidation and that the Mexican governme nt continues to fight against drug cartels with varying efficacy. Id. Ms. Aviles’s inaction may have been motivated by concerns of futility and fear of retaliation, but it also suggested that the criminals were afraid of police action that might control the group’s activ ities. Id. at 81. The IJ also concluded Appellate Case: 23-9547 Document: 010111067483 Date Filed: 06/20/2024 Page: 34 that Ms. Aviles could not demonstrate a we ll-founded fear of future persecution necessary to qualify for asylum. Id. at 82. Assuming Ms. Aviles’s credib ility, the BIA affirmed the IJ’s decision, concluding that Ms. Aviles could not demons trate past persecution. The BIA noted the IJ’s finding that Ms. Aviles chose not to report her or deal to the police and emphasized the inconsistencies between Ms. Aviles’s statem ents that “she believed corrupt officers would pass along information to the gang members threateni ng her and her family,” but later “that gang members would re taliate against her for reportin g them to the police.” Id. at 4. The BIA concluded it was permissible fo r the IJ to find that the criminals feared authorities learning of their criminal activitie s, such that the police could protect and prevent further harm to Ms. Aviles. Id. Ultimately, the BIA concluded that “on this record, the balance of the evid ence is insufficient to satisfy the respondent’s burden of proof” that the Mexican government was un willing or unable to protect her. Id.

Discussion In this case, where a single BIA member issued a brief order affirming the IJ’s decision, our scope of review is limited to the grounds relied upon by the BIA. Htun v. Lynch, 818 F.3d 1111, 1118 (10th Cir. 2016) . The BIA concluded that Ms. Aviles had not demonstrated that the Me xican government was unwilling or unable to protect her. This was the dispositive issue, and the BIA did not consider the IJ’s alternative bases for Appellate Case: 23-9547 Document: 010111067483 Date Filed: 06/20/2024 Page: 45 denying asylum. R. 4. Thus, we consider only the BIA’s conclu sion that Ms. Aviles cannot demonstrate past persecution. 1 Generally, “we will not affirm on grounds ra ised in the IJ decision unless they are relied upon by the BIA in its affirmance.” Uanreroro v. Gonzales , 443 F.3d 1197, 1204 (10th Cir. 2006). But we may consult the IJ’s more complete explana tion of these issues to better understand the BIA’s discussion. See id. Because the BIA assumed Ms. Aviles’s credibility, we do not co nsider the IJ’s adverse cred ibility determination. See Maphilindo v. Holder, 323 F. App’x 659, 6 61 (10th Cir. 2009) (unp ublished) (declining to consider IJ’s credibility determination where BIA a ssumed witness’s credibility).

A. Standard of review We review legal questions de novo and the agency’s fact-finding determinations for substantial evidence. Ad do v. Barr, 982 F.3d 1263, 1268 (10th Cir. 2020). “Under the substantial-evidence standard, ‘the admini strative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclu de to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4 )(B)). “[O]ur duty is to guarantee that factual determinations are supported by reasonabl e, substantial and probative evidence considering the record as a whole.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004). Whether an alien has sufficiently dem onstrated persecution in their home country

1 Before the IJ, Ms. Aviles also argue d for withholding of removal under the Convention Against Torture, R. 10, but Ms. Aviles waived this cl aim before the BIA, see id. at 3 n.2. On appeal to this court, she concedes th at “this aspect of the case is no longer in issue” — so we do not consider it. Pet. Br. at 1 n.1. Appellate Case: 23-9547 Document: 010111067483 Date Filed: 06/20/2024 Page: 56 — the overarching issue here — is a question of fact. Vicente-Elias v. Mukasey, 532 F.3d 1086, 1091 (10th Cir. 2008).

B. Asylum To qualify for asylum under 8 U.S. C. § 1158(b)(1)(B), Ms . Aviles bears the burden of establishing that she is a refugee, which necessarily requires a showing that she has been “persecut[ed]” or has “a well-founded fear of persecution,” id. § 1101(a)(42)(A). “[T]o establish eligibility fo r asylum on the basis of past persecution, an applicant must show: (1) an incident, or incidents, that rise to the level of persecution; (2) that is on account of one of the statutorily -protected grounds; an d (3) is committed by the government or forces the government is e ither unable or unwilling to control.” Niang v. Gonzales, 422 F.3d 1187, 1194–95 (10th Cir. 2005) (citation omitted). As the IJ and BIA found, Ms. Aviles ne ver reported her ordeal to the police. Without such reporting, we have no way of knowing how polic e would respond and whether local police would be unable or unwi lling to protect Ms. Aviles. Ms. Aviles’s failure to report the ordeal is “not necessar ily fatal” to her clai m if she can otherwise demonstrate that filing a police report would have been futile ordangerous. See In re CG-T-, 28 I. & N. Dec. 740, 743–44 (B.I.A. 20 23) (quoting Rosales Justo v. Sessions, 895 F.3d 154, 165 (1st Cir. 2018)). But she has not made this s howing. When asked why the authorities would not protect her, Ms. Aviles responded that sh e knew others in her town who reported violence to the police “and the po lice did not do anything. On the contrary, these people were killed even faster after ha ving gone to the police.” R. 565. When Appellate Case: 23-9547 Document: 010111067483 Date Filed: 06/20/2024 Page: 67 asked further to give “an example of so meone that this happened to[,]” Ms. Aviles responded, “I don’t know their names or addr esse[s]. Just people I have heard about.” Id. Ms. Aviles’s subjective belief regarding po lice inaction is insufficient without more specific evidence. Ms. Aviles has provided no examples of futility or retaliation (by police or criminals) in response to po lice contact initiated by her family or another member of her community. Instead, the bulk of the record contains re ports of government corruption and violence in Mexico. Without more speci fic examples, these generalized incidents of violence are insufficient to demonstrate the government’s inability to protect her. See Ritonga v. Holder, 633 F.3d 971, 977–78 (1 0th Cir. 2011); Cisneros-Diaz v. Holder, 415 F. App’x 940, 943–44 (10th Cir. 2011) (unp ublished) (rejecting asylum claim where petitioner presented documents ad dressing general inadequacies of government’s efforts but failed to present any first-hand informa tion); Galloso v. Barr, 954 F.3d 1189, 1192– 93 (8th Cir. 2020) (reasoning that reports abou t violence against women in Mexico were too general for petitioner to show government was unable or unwilling to help after petitioner refused to contact police). We cannot say that that “any reasonable adjudicator would be compelled to conclude to th e contrary[.]” 8 U.S.C. § 1252(b)(4)(B). 2

2 We likewise conclude that the BIA co rrectly denied Ms. Aviles’s application for restriction on removal wh ich “requires a petitioner to meet a higher standard than that for asylum.” Batalova v. Ashcro ft, 355 F.3d 1246, 1255 (10th Cir. 2004); see also Wiransane v. Ashcroft, 366 F.3d 88 9, 894 (10th Cir. 2004) (“[W]hen an applicant fails to establish the objectiv e component of a we ll-founded fear of persecution, he necessarily fa ils to establish entitlement to restriction on removal.”). Appellate Case: 23-9547 Document: 010111067483 Date Filed: 06/20/2024 Page: 78 The IJ and BIA could also reasonably infer that Ms. Aviles’s fear of retaliation from the criminal group undercut the notion that police were una ble or unwilling to protect her. R. 4, 81. Government offici als and police came to the scene of Fernando’s murder, id. at 410, forensic medicine personne l performed a legally required autopsy, id., and government officials inves tigated the death of Ms. Aviles’s cousin, id. at 401. That the BIA chose not to reference this specific evidence is irrelevant. See Hadjimehdigholi v. I.N.S., 49 F.3d 642, 648 n.2 (10th Cir. 19 95) (“[T]he BIA is not required to discuss every piece of evidence when it renders a decision.”). The IJ and BIA considered the evidence in the record, see R. 4, 75, and “[ a]bsent any indication to the contrary, we presume BIA members do their job thoroughly.” Batalova v. Ashcroft, 355 F.3d 1246, 1252 (10th Cir. 2004). Accordingly, the petition for review is DENIED

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Entered for the Court
Paul J. Kelly, Jr. Circuit Judge Appellate Case: 23-9547 Document: 010111067483 Date Filed: 06/20/2024 Page: 8