UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DORIS ABIGAIL MARTINEZMENDOZA, 

 Petitioner, 

v. 

WILLIAM P. BARR, United States 

Attorney General, 

 Respondent. 

No. 19-9506 

(Petition for Review) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before PHILLIPS, McHUGH, and EID, Circuit Judges. 

_________________________________ 

Doris Abigail Martinez-Mendoza, a native of El Salvador, petitions for review 

of an order by the Board of Immigration Appeals (BIA) affirming a decision by the 

Immigration Judge (IJ) denying relief under the Convention Against Torture (CAT). 

Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition and remand 

the matter to the BIA for further proceedings consistent with this opinion. 

 * After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

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 This order and judgment is not binding precedent, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 28, 2020

Christopher M. Wolpert 

Clerk of Court
2 

BACKGROUND 

In November 2012, ten-year-old Abigail left El Salvador with her 

seventeen-year-old sister, Katherine, and traveled to the United States, seeking to 

join their parents, who lived in Utah and had come to the United States illegally 

several years beforehand. After being apprehended and placed in removal 

proceedings, both sisters applied for asylum, withholding of removal, and relief 

under the CAT. 

Nearly five years later, on September 14, 2017, the sisters’ claims were heard 

before an IJ. Although the cases initially were consolidated, the IJ administratively 

closed Katherine’s case and severed it from Abigail’s after their counsel submitted 

evidence that Katherine had married a United States citizen and had initiated 

proceedings to obtain adjusted status based on the marriage. The hearing, therefore, 

proceeded solely as to Abigail, though Katherine provided the majority of the 

testimony. 

Katherine testified that their mother left El Salvador for the United States in 

2006 and that their father did the same in 2008. She and Abigail continued to live in 

El Salvador, residing alone in their parents’ home. Several months later, however, 

the girls returned home from school and found the residence ransacked and many of 

their belongings stolen. The police responded but did not find the perpetrators. 

Believing it was no longer safe to live alone, Katherine and Abigail moved in 

with their aunt, who lived nearby. Shortly thereafter, their uncle, who lived next 

door and was a father figure for the girls, was shot and killed outside his home. The 
3 

police, who did not have a station in that city, took about one hour to arrive, did not 

question Katherine, and were unsuccessful in solving the murder. Katherine believed 

gang members orchestrated the murder because their uncle had confronted a local 

gang member several days beforehand and protested the gang’s extortionist practices. 

After their uncle’s murder, Katherine and Abigail continued living with their 

aunt for the next two years. During that time, Katherine believed people on the bus 

were watching and following her. Additionally, an unidentified man stood at the site 

of their uncle’s murder and asked Katherine for money on a nearly daily basis. 

Katherine gave him money based on their aunt’s recommendation and her own belief 

that she would be harmed otherwise. The aunt similarly paid protection money to the 

gangs and warned Katherine she might get killed if she told the police. Katherine 

believed that the police were powerless to stop the gangs and that the gangs could do 

anything they wanted in El Salvador. 

After the sisters left El Salvador, their aunt received a phone call demanding 

payment but responded that she did not have any money and that the girls no longer 

lived with her. Katherine believed Abigail would be in danger if sent back to El 

Salvador because gang members would believe she has money. 

Because of her young age and her family’s efforts to shield her, Abigail was 

unaware while living in El Salvador of the extortion payments, the reason for their 

uncle’s murder, or the family’s fear of the gangs. But she testified she is afraid to 

return to El Salvador. Abigail also testified that she would live with her aunt again if 
4 

forced to return but that she does not believe her aunt could provide adequate 

protection because of her age, health issues, and obligations to her own children. 

The IJ found Katherine credible1

 but denied Abigail’s requests for asylum, 

withholding of removal, and relief under the CAT. Abigail appealed to the BIA, but 

because her brief only contested the denial of relief under the CAT, the BIA 

concluded she had waived her claims for asylum and withholding.2

 After finding no 

clear error in the IJ’s denial of relief under the CAT, the BIA dismissed the appeal. 

DISCUSSION 

On appeal, Abigail contends the BIA erred in denying relief under the CAT. 

Because we are unable to perform a meaningful review, we remand to the BIA. 

A. Standard of Review 

When, as here, the BIA affirms the IJ in a brief order issued by a single judge, 

“we review the BIA’s decision as the final agency determination and limit our review 

to issues specifically addressed therein.” Diallo v. Gonzales, 447 F.3d 1274, 1279 

 1

 The IJ did not make a credibility finding regarding Abigail. See 8 U.S.C. 

§ 1158(b)(1)(B)(iii) (providing, for asylum applications, that “if no adverse 

credibility determination is explicitly made, the applicant or witness shall have a 

rebuttable presumption of credibility on appeal”); id. § 1229a(c)(4)(C) (providing 

same presumption for applications for relief from removal). 

2

 We note any claims of ineffective assistance of counsel should be raised in “a 

motion to reopen the case before the BIA.” Galvez Piñeda v. Gonzales, 427 F.3d 

833, 837 (10th Cir. 2005). See generally Osei v. I.N.S., 305 F.3d 1205, 1209 n.2 

(10th Cir. 2002) (discussing the preliminary requirements for such a claim under In 

re Lozada, 19 I. & N. Dec. 637 (BIA 1988), including: (1) providing a supporting 

affidavit; (2) allowing former counsel the opportunity to respond; and (3) indicating 

whether a disciplinary complaint has been filed). 
5 

(10th Cir. 2006). “However, when seeking to understand the grounds provided by 

the BIA, we are not precluded from consulting the IJ’s more complete explanation of 

those same grounds.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). 

“We review the BIA’s legal determinations de novo, and its findings of fact under a 

substantial-evidence standard.” Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir. 

2005); see also Htun v. Lynch, 818 F.3d 1111, 1118 (10th Cir. 2016) (“[A] request 

for protection under the CAT involves factual determinations reviewed for 

substantial evidence.”). Under the substantial-evidence standard, “[t]he BIA’s 

findings of fact are conclusive unless the record demonstrates that any reasonable 

adjudicator would be compelled to conclude to the contrary.” Niang, 422 F.3d at 

1196 (internal quotation marks omitted). 

B. Relief Under the CAT 

To obtain relief from removal under the CAT, a petitioner must “prove it is 

more likely than not that . . . she would be tortured if removed to a particular 

country.” Hayrapetyan v. Mukasey, 534 F.3d 1330, 1336 (10th Cir. 2008) (internal 

quotation marks omitted). The CAT defines “torture” as the “intentional[] 

inflict[ion]” of “severe pain or suffering, whether physical or mental, . . . by or at the 

instigation of or with the consent or acquiescence of a public official or other person 

acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). 

C. Meaningful Review 

In order for this court to engage in “meaningful appellate review,” the BIA 

must “consider the issues raised[] and announce its decision in terms sufficient to 
6 

enable a reviewing court to perceive that it has heard and thought and not merely 

reacted.” Maatougui v. Holder, 738 F.3d 1230, 1243 (10th Cir. 2013) (internal 

quotation marks omitted). “The BIA is not required to write an exegesis on every 

contention,” id. at 1242-43 (internal quotation marks omitted), or “discuss every 

piece of evidence,” Hadjimehdigholi v. I.N.S., 49 F.3d 642, 648 n.2 (10th Cir. 1995). 

However, neither may it “ignore or misconstrue evidence.” Karki v. Holder, 

715 F.3d 792, 800 (10th Cir. 2013) (internal quotation marks omitted). 

Here, the BIA stated it was “sympathetic to [Abigail]” but found the IJ had not 

clearly erred in determining Abigail was “ineligible for protection under the [CAT].” 

R. at 3-4. The IJ similarly expressed sympathy, stating he “recognize[d] the 

unfortunate consequence of removal on” Abigail, “a minor” with “limited support in 

El Salvador.” Id. at 51. Notwithstanding these statements, the record does not show 

the BIA and the IJ provided an individualized assessment of Abigail’s case. 

First, the BIA seems to have confused the two sisters. For example, the BIA 

noted that “[t]he respondent testified” about the burglary of her family home, her 

uncle’s murder, and the demands for “money when she went to school.” Id. at 3. But 

it was Katherine who provided such testimony, not Abigail, and indeed, the BIA 

cited the transcript pages containing Katherine’s testimony. See id.3

 

 3

 This may be attributable to the brief her attorney filed. In addition to 

contending “Respondents should be granted withholding of removal,” R. at 17 

(emphasis added), the brief repeatedly attributed Katherine’s testimony to Abigail, 

see, e.g., id. (stating “she detailed multiple occasions of being the victim of crimes 

such as robbery, stalking, and death threats”). See generally supra note 2. 
7 

We may look to the IJ’s decision for clarification. See Cruz-Funez v. 

Gonzales, 406 F.3d 1187, 1191 (10th Cir. 2005). But that decision often referred to 

“Respondents,” including stating “Respondents’ application for asylum, withholding 

of removal, and relief under the [CAT] will be denied,” even though Katherine’s case 

was closed and severed from Abigail’s. R. at 42 (emphasis added); see also id. at 51 

(denying “Respondents’ application for asylum,” “Respondents’ application for 

withholding of removal,” and “Respondents’ applications for withholding and 

deferral of removal under the [CAT],” and ordering the removal of “Respondents” 

(emphasis added)). The IJ’s decision also specified Katherine “was the only witness 

to provide testimony.” Id. at 43 (emphasis added). Not so. Katherine provided the 

bulk of the testimony, see id. at 136-67, but Abigail also testified, see id. at 169-74. 

And in describing “Respondent’s testimony,” it is clear the IJ, like the BIA, was 

referring to Katherine, not Abigail. Id. at 50 (noting “Respondent’s prior interactions 

with the gang,” although only Katherine had any such interactions). 

Ultimately, the record shows that Abigail’s sister and aunt were extorted by 

gangs and that Abigail’s uncle was murdered after confronting a gang member about 

the extortionist practices. The record further indicates that Abigail, now seventeen, 

has not lived in El Salvador since she was ten and has virtually no connections there 

or support awaiting her should she be deported. Indeed, Katherine testified Abigail 

would be particularly vulnerable, noting that there was no one who could protect her 

and that the gangs likely will believe she has money due to her being both new in 

town and a teenager who just returned from the United States. See id. at 151-52. 
8 

Confusing or conflating the two sisters is problematic because of their 

different experiences and different fears. Focusing, as the BIA did, on “past 

mistreatment” and “past torture,” id. at 3, may make sense for Katherine, see Niang 

v. Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005) (noting past torture is relevant, 

although not dispositive, for future torture), but not for Abigail, who was largely 

shielded from the dangers in El Salvador, see R. at 147. Abigail’s CAT claim 

requires an assessment of whether “it is more likely than not . . . she would be

tortured if removed to [El Salvador].” 8 C.F.R. § 208.16(c)(2) (emphasis added). 

And unlike past mistreatment, the BIA gave little attention to future mistreatment, 

merely reciting the standard and not mentioning the evidence. See R. at 4. 

The IJ and BIA erred in failing to distinguish Abigail from her sister, to 

acknowledge Abigail testified at her own hearing, and to independently assess 

Abigail’s request for relief. On remand, the BIA should clarify its ruling. We 

express no opinion on the merits of Abigail’s CAT claim, only that she is entitled to a 

fundamentally fair proceeding with “an individualized determination of [her] 

interests.” de la Llana-Castellon v. I.N.S., 16 F.3d 1093, 1096 (10th Cir. 1994). 

CONCLUSION 

The petition for review is granted and the matter is remanded to the BIA for 

further proceedings consistent herewith. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge