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 Immigration 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 show the Mexican government was unable 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* This order and judgment is not binding precedent, except under the doctrines 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 20, 2024

Christopher M. Wolpert 

Clerk of Court

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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 group barged into Ms. Aviles’s house, held the 

family at gunpoint, and repeatedly demanded 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 retaliation by the group, none of the family 

members contacted police. Id. at 141. 

 The family began receiving threatening 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 criminals. 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 Department of Homeland 

Security (DHS) detained Ms. Aviles for trying to cross the border with false documents. 

Id. When asked by DHS whether 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. 

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§ 1546 and served 60 days in prison. Id. at 503–06. Upon learning of the availability of 

asylum, Ms. Aviles told DHS officials that she did, in fact, fear 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 proceedings against Ms. Aviles. In response, 

she timely filed an application for asylum. 

B. Procedural history

As a threshold matter, the IJ made an adverse 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 being processed. Id. at 75–77. Despite the 

adverse credibility finding, the IJ noted “that the factual circumstances regarding her 

departure from Mexico and the circumstances 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 Mexican government would be unable or unwilling 

to protect her, so she could not demonstrate past persecution. Id. at 80–81. The IJ 

emphasized that she failed to contact police on several occasions given continuing threats 

and intimidation and that the Mexican government 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 activities. Id. at 81. The IJ also concluded 

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that Ms. Aviles could not demonstrate a well-founded fear of future persecution 

necessary to qualify for asylum. Id. at 82. 

 Assuming Ms. Aviles’s credibility, the BIA affirmed the IJ’s decision, concluding 

that Ms. Aviles could not demonstrate past persecution. The BIA noted the IJ’s finding 

that Ms. Aviles chose not to report her ordeal to the police and emphasized the 

inconsistencies between Ms. Aviles’s statements that “she believed corrupt officers 

would pass along information to the gang members threatening her and her family,” but 

later “that gang members would retaliate against her for reporting them to the police.” Id. 

at 4. The BIA concluded it was permissible for the IJ to find that the criminals feared 

authorities learning of their criminal activities, 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 evidence is insufficient to satisfy the respondent’s burden of 

proof” that the Mexican government was unwilling 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 Mexican 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 

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denying asylum. R. 4. Thus, we consider only the BIA’s conclusion that Ms. Aviles 

cannot demonstrate past persecution.1

 Generally, “we will not affirm on grounds raised 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 explanation of these issues 

to better understand the BIA’s discussion. See id. Because the BIA assumed Ms. 

Aviles’s credibility, we do not consider the IJ’s adverse credibility determination. See 

Maphilindo v. Holder, 323 F. App’x 659, 661 (10th Cir. 2009) (unpublished) (declining 

to consider IJ’s credibility determination where BIA assumed witness’s credibility). 

A. Standard of review

We review legal questions de novo and the agency’s fact-finding determinations 

for substantial evidence. Addo v. Barr, 982 F.3d 1263, 1268 (10th Cir. 2020). “Under 

the substantial-evidence standard, ‘the administrative findings of fact are conclusive 

unless any reasonable adjudicator would be compelled to conclude 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 reasonable, 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 demonstrated persecution in their home country 

1

 Before the IJ, Ms. Aviles also argued for withholding of removal under the 

Convention Against Torture, R. 10, but Ms. Aviles waived this claim before the BIA, 

see id. at 3 n.2. On appeal to this court, she concedes that “this aspect of the case is 

no longer in issue” — so we do not consider it. Pet. Br. at 1 n.1. 

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— 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 for 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; and (3) is committed by 

the government or forces the government is either 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 never reported her ordeal to the police. 

Without such reporting, we have no way of knowing how police would respond and 

whether local police would be unable or unwilling to protect Ms. Aviles. Ms. Aviles’s 

failure to report the ordeal is “not necessarily fatal” to her claim if she can otherwise 

demonstrate that filing a police report would have been futile or dangerous. See In re CG-T-, 28 I. & N. Dec. 740, 743–44 (B.I.A. 2023) (quoting Rosales Justo v. Sessions, 895 

F.3d 154, 165 (1st Cir. 2018)). But she has not made this showing. When asked why the 

authorities would not protect her, Ms. Aviles responded that she knew others in her town 

who reported violence to the police “and the police did not do anything. On the contrary, 

these people were killed even faster after having gone to the police.” R. 565. When 

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asked further to give “an example of someone that this happened to[,]” Ms. Aviles 

responded, “I don’t know their names or addresse[s]. Just people I have heard about.” 

Id. Ms. Aviles’s subjective belief regarding police inaction is insufficient without more 

specific evidence. 

 Ms. Aviles has provided no examples of futility or retaliation (by police or 

criminals) in response to police contact initiated by her family or another member of her 

community. Instead, the bulk of the record contains reports of government corruption 

and violence in Mexico. Without more specific 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 (10th Cir. 2011); Cisneros-Diaz v. Holder, 415 

F. App’x 940, 943–44 (10th Cir. 2011) (unpublished) (rejecting asylum claim where 

petitioner presented documents addressing general inadequacies of government’s efforts 

but failed to present any first-hand information); Galloso v. Barr, 954 F.3d 1189, 1192–

93 (8th Cir. 2020) (reasoning that reports about 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 the contrary[.]” 8 U.S.C. § 1252(b)(4)(B).2

2

 We likewise conclude that the BIA correctly denied Ms. Aviles’s application 

for restriction on removal which “requires a petitioner to meet a higher standard than 

that for asylum.” Batalova v. Ashcroft, 355 F.3d 1246, 1255 (10th Cir. 2004); see 

also Wiransane v. Ashcroft, 366 F.3d 889, 894 (10th Cir. 2004) (“[W]hen an 

applicant fails to establish the objective component of a well-founded fear of 

persecution, he necessarily fails to establish entitlement to restriction on removal.”). 

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 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 unable or unwilling to 

protect her. R. 4, 81. Government officials and police came to the scene of Fernando’s 

murder, id. at 410, forensic medicine personnel performed a legally required autopsy, id., 

and government officials investigated 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. 1995) (“[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. 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge 

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