* On February 4, 2005, Alberto R. Gonzales became the United States

Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Mr. Gonzales is substituted fo r John Ashcroft as the Respondent in this action. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 2 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CARLOS CRUZ-FUNEZ and JOSEENRIQUE VALLADARESCASTELLANOS,

Petitioners,

v. ALBERTO R. GONZALES, Attorney General, * Respondent. No. 03-9619

PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS

(Nos. A 78-046-589 & A 78-046-591)

Submitted on the briefs: Shelley Wittevrongel, Boulder, Colorado, for Petiti oners. Peter D. Keisler, Assistant Attorney General, Mark Walters, Assistant Director, Anh-Thu P. Mai, Attorney, Office of Immigration Lit igation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respon dent.* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.

1 Analogous to 10th Cir. R. 28.2(A), a petitioner in an immigration case should attach both the Board’s decision and the IJ’ s decision to his opening brief. -2- Before TACHA , Chief Judge, HENRY , and O’BRIEN , Circuit Judges.

HENRY, Circuit Judge.

Petitioners Carlos Cruz-Funez and Jose Enrique Vall adares-Castellanos petition for review of a decision of the Board of I mmigration Appeals (BIA or Board) denying their claims for asylum and for with holding of removal under both the Immigration and Nationality Act (INA) and the United Nations Convention Against Torture (CAT). We have jurisdic tion to review the agency’s decision under 8 U.S.C. § 1252(a)(1), and we deny the petition for review. *

I. Procedural History and Issues on Appeal The immigration judge (IJ) consolidated petitioners ’ cases. According to the IJ’s decision, 1 petitioners are natives and citizens of Honduras w ho were and are business partners. They entered the United States illegally on or about June 28, 2000. They were noticed to appear on June 28, 2000, and were charged2 Although the Board actually issued separate decisio ns for

Mr. Valladares-Castellanos and Mr. Cruz-Funez, the administrative record contains the Board’s decision for only Mr. Valladar es-Castellanos. Admin. R. at 2. In the Board’s transmittal letter, however, Mr. Cruz-Funez is identified by his “A number” as a “rider” to Mr. Valladares-Caste llanos’s claim. Id. at 1. We take judicial notice that the Board’s decision for Mr. Cruz-Funez, which appears on the website of the Executive Office of Immigrati on Review under Mr. Valladares-Castellanos’ “A number,” is identica l in all respects pertinent to this appeal, and we therefore refer to the Board’s decision as singular in this decision. -3- with entering the United States without inspection under § 212(a)(6)(A)(i) of the INA, 8 U.S.C. § 1182(a)(6)(A)(i). Petitioners appl ied for asylum and withholding of removal, asserting that they fear persecution ortorture if they return to Honduras. They claimed that their business debt to an unscrupulous creditor, Pedro Trejo, put them in the particular social group of small businessmen ruined in 1998 by Hurricane Mitch who are indebted to priv ate creditors connected to the corrupt Honduran business and political system. Th e IJ analyzed their claims and denied them both asylum and withholding of removal. Petitioners appealed to the Board, which issued a d ecision through a single Board member. See Admin. R. at 1. 2 That decision, in pertinent part, states: The respondent has appealed from the Immigration Ju dge’s decision dated January 08, 2002. We have reviewed the recor d and we agree that the respondent failed to meet his burden of es tablishing past persecution or a well-founded fear of persecution o n account of one of the statutorily protected grounds, or that it is more likely than not that he will be persecuted or subjected to torture upon his return to Honduras. See section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A); INS v. Elias-Zacarias,-4-

502 U.S. 478 (1992); INS v. Cardoza-Fonseca, 480 U. S. 421 (1987); INS v. Stevic, 467 U.S. 407 (1984); 8 C.F.R. § 1208 .16(c)(2); Matter of Y-L-, A-G-, & R-S-R, 23 I&N Dec. 270 (A.G. 2002) ; Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000). The respondent has presented no arguments on appeal which persuade us that this decision should be disturbed. Accordingly, the appeal is dismissed

. Admin. R. at 2. The Board member’s cited authoriti es are different, except for one case, from those the IJ relied on. And that one case, INS v. Stevic , 467 U.S. 407 (1984), was cited by the IJ only for a general standard of asylum law. See Admin. R. at 142. The Board member did not mentionany of the other authorities the IJ relied on, including the five cases the IJ c ited in his discussion about what constitutes a particular social group for purposes of asylum and withholding of removal. See id. at 148-50. The Board member’s citation of differe nt authorities suggests that he analyzed this case differently than the IJ did. Petitioners contend that: (1) the Board’s decisionis neither a summary affirmance nor a reasoned decision, and it therefor e violates administrative law and their due process rights; (2) they were eligibl e for asylum because of their status as persecuted members of the refugee category, “particular social group,”

see 8 U.S.C. § 1101(a)(42)(A); and (3) they proved the Honduran government’s acquiescence in torture and are therefore entitled to relief under the CAT.-5- II. The Board’s Streamlining Procedures The first question before us is whether we should r eview the Board’s decision or the IJ’s decision in this case. “[T]he INA grants us general jurisdiction to review a ‘final order of removal.’” Tsegay v. Ashcroft , 386 F.3d 1347, 1353 (10th Cir. 2004) (citing 8 U.S.C. § 1252 (a)(1)). Because an alien facing removal may appeal to the Board as of right, see 8 C.F.R. §§ 1003.1(b)(3), 1003.38(a), 1240.15, and because the Board has the power to review the IJ’s legal conclusions de novo and his factual findings for clear error, see id. § 1003.1(d)(3), there is no “final order” until the Board acts. In light of the Board’s “streamlining” procedures under 8 C.F.R. § 1003.1, however, the Board’s decision denying an alien relief from removal may c onstitute the final order of removal, or the Board’s decision may be “the agencyaction that makes the IJ’s decision the final order of removal,” Tsegay , 386 F.3d at 1353; see also 8 C.F.R. § 1003.1(e)(4)(ii). Although the IJ’s decision in this case was issued before the expanded streamlining procedures were enacted on Au gust 26, 2002, the 2002 amendment was expressly made applicable to pending cases. 67 Fed. Reg. at 54898-54899. As a result, the amended streamlin ing regulation governs the Board’s December 10, 2003 decision.-6- III. The Board’s Decision The Board’s streamlining procedure was expanded in 2002 to allow an individual Board member to issue a brief written opinion in certain cases, see 8 C.F.R. § 1003.1(e)(5), as an option to affirming without opinion, see id. § 1003.1(e)(4), or referring the case to a three-member panel, see id. § 1003.1(e)(6). It is clear that the Board member who issued the decision before us did not affirm without opinion under § 1003.1(e) (4)(i)–he did not use the language mandated by § 1003.1(e)(4)(ii) or include the mandatory reference to the regulation. As a result, the IJ’s decision does no t constitute the final agency determination under § 1003.1(e)(4)(ii). It is apparent from the Board member’s decision, rather, that he acted under § 1003.1(e)(5). As the Third Circuit has pointed o ut: “If the case is more significant than an (e)(4) case and less significant than an (e)(6) case, the single BIA member will decide the merits of the appeal by himself and issue ‘a brief order, affirming, modifying or remanding’ under § 1003.1(e)(5).” Smriko v. Ashcroft , 387 F.3d 279, 293 (3d Cir. 2004) (quoting § 1003. 1(e)(5)). In Gjyzi v. Ashcroft , 386 F.3d 710, 715-16 (6th Cir. 2004), the Sixth Circuit considered both the BIA’s and the IJ’s deci sions. There, the BIA repudiated the IJ’s credibility findings, yet affirmed the IJ’s conclusions under § 1003.1(e)(5). See id. at 715. The court attempted a meaningful review o f the-7-

IJ’s decision, but was thwarted because the IJ prov ided no underlying determination regarding whether there was past persecution. See id. at 715-16. Thus, the Sixth Circuit remanded, stating: “Althou gh the BIA need not write extensively on every issue–indeed, we have joined o ur sister circuits in holding that ‘the BIA’s streamlining procedures,’ such as s ummary affirmances of IJ decisions, ‘do not themselves alone violate an alien’s right to due process,’ Denko
v. I.N.S. , 351 F.3d 717, 730 (6th Cir. 2003)–the failure of the BIA to explain its decision in this case unnecessarily frustrates our review.” Id. at 716. Here, we face similar problems, in that the Board c learly affirmed the IJ’s decision under § 1003.1(e)(5), but did not follow i ts own procedures pursuant to that section. Rather, its citation of cases is som ewhat mystifying and does not allow us to provide a meaningful review of the Boar d’s judgment. Given this situation, we may remand for clarification or for t he Board to follow its own procedures, or we may consider the IJ’s report, as did the Sixth Circuit in Gjyzi , to determine whether the IJ has provided an adequat e basis for meaningful review. Cf. Fisher v. Bowen , 869 F.2d 1055, 1057 (7th Cir. 1989) (Posner, J.) (“No principle of administrative law or common sens e requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result.”); Illinois v. ICC , 722 F.2d 1341, 1348 (7th Cir. 1983) (Posner, J.) (“ Chenery [SEC v. Chenery Corp. , 332 U.S. 194 (1947)] does-8-

not require futile gestures.”). In this case, we f ind that the IJ’s report provides an adequate basis for our review.

IV. The IJ’s Decision The IJ reviewed several cases and decided that peti tioners had not defined a “particular social group” for purposes of asylum an d withholding of removal under the INA. See Admin. R. at 148-51; see also 8 U.S.C. § 1101(a)(42)(A); §§ 1208.13(b)(1), 1208.16(b). What constitutes a p articular social group is a pure question of law that we review de novo. Elien v. Ashcroft , 364 F.3d 392, 396 (1st Cir. 2004); Hernandez-Montiel v. INS , 225 F.3d 1084, 1091 (9th Cir. 2000). The INA does not define the phrase “particular soci al group.” Hernandez-Montiel , 225 F.3d at 1091. The term “comes directly from the United Nations Protocol Relating to the Status of Refugees . . . [but] [w]hen Congress ratified the Protocol on October 4, 1968, it did no t shed any further light on the definition.” Id. The Board has decided that a “particular social g roup” is “a group of persons all of whom share a common, immutable characteristic . . . that the members of the group either cannot change, or s hould not be required to change because it is fundamental to their individua l identities or consciences.”
In re Acosta , 19 I. & N. Dec. 211, 233-34 (BIA 1985). The agen cy’s reasonable interpretation of a statute it administers is entitled to deference. See Tapia Garcia
v. INS , 237 F.3d 1216, 1220 (10th Cir. 2001) (discussing Chevron U.S.A., Inc. v.-9-

Natural Resources Defense Council, Inc. , 467 U.S. 837, 842-43 (1984)). But the Board left it to be decided on a case-by-case basis what “particular kind of group characteristic . . . will qualify under this construction.” Acosta , 19 I. & N. Dec.
at 233. The courts are struggling to set the parameters forthe definition of a “particular social group” in light of Acosta . The circuit courts are not in agreement on a test. See Castellano-Chacon v. INS , 341 F.3d 533, 546-48 (6th Cir. 2003) (joining the First, Third, and Seve nth Circuits in adopting the Board’s immutability analysis, but noting that the Ninth and Second Circuits have settled on a different test from the Board and from each other) . This court has not yet addressed the question of wh at group characteristics qualify to define a particular social group. In th is case, however, we can confidently state that petitioners cannot prevail u nder any of the circuit courts’ tests. Being indebted to the same creditor (unscrupulous or not) is not the kind of group characteristic that a person either cannot ch ange or should not be required to change. Indeed, petitioners’ debt was settled b y a court, which ordered them to pay their creditor back. Admin. R. at 146. As suc h, we need not adopt a particular test in this case, and we need not reman d for the Board to clarify its reasoning.-10-

V. Petitioners’ Claim for Relief Under the Convention Again st Torture “Article 3 of the Convention Against Torture prohib its the [return] of an alien to a country where it is more likely than notthat he will be subject to torture by a public official, or at the instigation or with the acquiescence of such an official.” Matter of G-A- , 23 I. & N. Dec. 366, 367 (BIA 2002) (en banc) (citations omitted). A claim under the CAT differs from a claim for asylum or withholding of removal under the INA because there is no requirement that the petitioners show that torture will occur on accountof a statutorily protected ground. The Board said nothing about petitioners’ CAT claimexcept to advert to petitioners’ failure to meet the standard for that relief. The IJ, on the other hand, explicitly found petitioners credible when they tes tified that their lives have been threatened by Mr. Trejo and men who work for him. Admin. R. at 147-48, 151. But the IJ concluded that the threats were part of Mr. Trejo’s private vendetta and were not made with the “acquiescence of any public official or person acting in a governmental position.” Id. at 153. “Acquiescence of a public official requir es that the public official, prior to the activity con stituting the torture, have awareness of such activity and thereafter breach hi s or her legal responsibility to prevent such activity.” 8 C.F.R. § 1208.18(a)(7). However, “Congress made its intent clear that actual knowledge, or willful acce ptance, is not required for a-11-

government to ‘acquiesce’ to the torture of its citizens.” Zheng v. Ashcroft , 332 F.3d 1186, 1193 (9th Cir. 2003). Rather, “[w]i llful blindness suffices to prove acquiescence.” Ontunez-Tursios v. Ashcroft , 303 F.3d 341, 354 (5th Cir. 2002) (quotations omitted). Petitioners argue that the IJ erred by concluding that they failed to show government acquiescence in the torture they expect from Mr. Trejo if they return to Honduras. 8 U.S.C. § 1252(b)(4)(B) prescribes adeferential standard for judicial review of administrative findings, which “ are conclusive unless any reasonable adjudicator would be compelled to conclu de to the contrary.” We have reviewed petitioners’ brief on the CAT issu e and their cursory references to the administrative record. Petitione rs produced evidence of corruption in the Honduran government and underfund ing of police. They failed, however, to show that “any reasonable adjudicator,” 8 U.S.C. § 1252(b)(4)(B), would be compelled to find a connection between Mr. Trejo and the Honduran government, or awareness by any public official that Mr. Trejo has threatened petitioners’ lives. Therefore, we are not compelle d to conclude that any actions that Mr. Trejo might take against petitioners will be with the acquiescence of the Honduran government. The petition for review is denied.