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-Mendo za, a native of El Salvad or, petitions for review of an order by the Board of Immigration Appeals (BIA) affirming a decision by the Immigration Judge (IJ) denying relief under th e 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 consis tent with this opinion.

* After examining the briefs and appellate record, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 Court2 BACKGROUND In November 2012, ten-year-old Abig ail left El Salvador with her seventeen-year-old sister, Kath erine, and traveled to th e United States, seeking to join their parents, who lived in Utah a nd had come to the Un ited States illegally several years beforehand. After bei ng apprehended and placed in removal proceedings, both sisters app lied 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 consolid ated, the IJ administratively closed Katherine’s case a nd severed it from Abigail’s after their counsel submitted evidence that Katherine had married a Un ited 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 th e majority of the testimony. Katherine testified that thei r 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. Seve ral months later, however, the girls returned home fro m school and found the resi dence ransacked and many of their belongings stolen. The police res ponded 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 out side his home. The3 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 beca use their uncle had confronted a local gang member several days be forehand and protested the ga ng’s extortionist practices. After their uncle’s murder, Katherine a nd Abigail continued living with their aunt for the next two years. During that time, Katherine believed people on the bus were watching and following he r. Additionally, an uniden tified man stood at the site of their uncle’s murder and asked Kather ine for money on a nearly daily basis. Katherine gave him money based on their aunt’s reco mmendation and her own belief that she would be harmed otherwise. The aunt similarly paid protection money to the gangs and warned Katherine sh e might get killed if she to ld 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 sh e did not have any money a nd that the girls no longer lived with her. Katherine be lieved 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 th e 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 testifie d that she would live with her aunt again if4 forced to return but that she does not believe her aunt could provide adequate protection because of her age, health issues, and obligati ons to her own children. The IJ found Katherine credible 1 but denied Abigail’s requests for asylum, withholding of removal, and relief under the CAT. Abiga il appealed to the BIA, but because her brief only contested the deni al of relief under the CAT, the BIA concluded she had waived her clai ms for asylum and withholding. 2 After finding no clear error in the IJ’s deni al of relief under the CAT, th e 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 mean ingful review, we remand to the BIA. A. Standard of Review When, as here, the BIA affi rms the IJ in a brief orde r 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 credib ility finding regarding Abigail. See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing, for asyl um applications, that “if no adverse credibility determination is explicitly made, the applican t or witness shall have a rebuttable presumption of credibility on appeal”); id. § 1229a(c)(4)(C) (providing same presumption for applicati ons for relief from removal).

2 We note any claims of ineffective assi stance 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 requirement s 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 comp laint has been filed).5 (10th Cir. 2006). “However, when seek ing to understand the grounds provided by the BIA, we are not precluded from consulti ng the IJ’s more comp lete 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 findi ngs 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 f actual determinations reviewed for substantial evidence.”). Under the subs tantial-evidence sta ndard, “[t]he BIA’s findings of fact are conclusi ve unless the record demons trates that any reasonable adjudicator would be compelled to conclude to the contrary.” Niang , 422 F.3d at 1196 (internal quotati on 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 (10t h Cir. 2008) (internal quotation marks omitted). The CAT de fines “torture” as the “intentional[] inflict[ion]” of “severe pain or suffering, wh ether physical or mental , . . . by or at the instigation of or with the consent or acqui escence of a public offi cial 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 ra ised[] and announce its decisi on in terms sufficient to6 enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Maatougui v. Holder , 738 F.3d 1230, 1243 (10t h Cir. 2013) (internal quotation marks omitted). “T he BIA is not required to write an exegesis on every contention,” id. at 1242-43 (internal quotation mark s 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, 80 0 (10th Cir. 2013) (internal quotation ma rks omitted). Here, the BIA stated it was “sympathetic to [Abigail]” but found the IJ had not clearly erred in determining Abigail was “ineligible for pr otection under the [CAT].” R. at 3-4. The IJ simi larly expressed sympathy, st ating he “recognize[d] the unfortunate consequence of removal on” Abig ail, “a minor” with “limited support in El Salvador.” Id. at 51. Notwithstanding these stat ements, the record does not show the BIA and the IJ provided an individu alized 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 brie f her attorney filed. In addition to contending “ Respondents should be granted withholdi ng of removal,” R. at 17 (emphasis added), the brief re peatedly attributed Kather ine’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 de cision for clarification. See Cruz-Funez v. Gonzales , 406 F.3d 1187, 1191 (10th Cir. 2005). But that d ecision often referred to “Respondents,” including stating “ Respondents’ application for as ylum, 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 decisi on also specified Ka therine “was the only witness to provide testimony.” Id. at 43 (emphasis added). No t so. Katherine provided the bulk of the testimony, see id. at 136-67, but Abig ail 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 Katherin e had any such interactions). Ultimately, the record shows that Abiga il’s sister and aunt were extorted by gangs and that Abigail’s uncle was murder ed 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 th at 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 re turned from the United States. See id. at 151-52.8 Confusing or conflating the two sister s is problematic because of their different experiences and different fears. Focusing, as th e 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 tort ure is relevant, although not dispositive, for fu ture torture), but not for Abigail, who was largely shielded from the dange rs 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 fu ture mistreatment, merely reciting the standard and not mentioning the evidence. See R. at 4. The IJ and BIA erred in failing to di stinguish Abigail fro m her sister, to acknowledge Abigail testifie d at her own hearing, and to independently assess Abigail’s request for relief. On remand, the BIA should clarif y its ruling. We express no opinion on the merits of Abigail’s CAT claim, onl y 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 th e matter is remanded to the BIA for further proceedings consistent herewith.

Entered for the Court Gregory A. Phillips Circuit Judge