UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MERCEDES VIDANA VIDANA, 

 Petitioner, 

v. 

MERRICK B. GARLAND, 

United States Attorney General, 

 Respondent. 

No. 20-9614 

(Petition for Review) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, KELLY, and CARSON, Circuit Judges. 

_________________________________ 

Petitioner Mercedes Vidana Vidana filed applications for asylum, restriction 

on removal,1

 and protection under the Convention Against Torture (CAT). An 

Immigration Judge (IJ) denied relief, and the Board of Immigration Appeals (BIA) 

* 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 This order and judgment is not binding precedent, 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. 

1

 Restriction on removal used to be called “withholding of removal.” 

Neri-Garcia v. Holder, 696 F.3d 1003, 1006 n.1 (10th Cir. 2012) (internal quotation 

marks omitted). 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 14, 2022

Christopher M. Wolpert 

Clerk of Court

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dismissed her appeal of the IJ’s order. She now seeks review of the BIA’s order. 

Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition for review. 

BACKGROUND 

Petitioner first entered the United States illegally in 1999, without inspection. 

About twenty years later, she returned to Mexico with her United States citizen 

husband for a consular interview based on a visa application he had filed on her 

behalf. At the interview, she admitted she and her husband had paid a smuggler for 

her and her son to cross into the United States. As a result, the officer told her she 

would need to obtain a waiver of inadmissibility. After the interview, Petitioner 

spoke to a person who said he was an attorney associated with the hotel in Juarez, 

Mexico, where she and her husband were staying. They gave him a $10,000 fee and 

documentation he said he needed to file the waiver application. 

Petitioner’s husband returned to the United States, and she went to Vera Cruz, 

Mexico to visit her mother. While there, cartel members who had previously 

threatened to kill her if she did not pay $50,000 ransom for her son saw her arrive 

and left a note demanding the money. She went back to the hotel in Juarez to wait 

for the waiver. The cartel returned to the mother’s house twice to look for Petitioner. 

Petitioner did not report these events to Mexican law enforcement. 

When Petitioner asked hotel representatives for a receipt for the waiver 

application, she learned that the hotel was associated with a cartel (a different cartel 

than the one that attempted to extort her in Vera Cruz), that no waiver application had 

been filed, and that she had to pay the cartel $1500 per month. Petitioner reported 

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these incidents to police. An officer said he would prepare a line-up for her to 

identify the perpetrators, but questioned whether she wanted to make a report against 

the cartel, explaining that the police could “not guarantee[]” her safety because 

“these people are out of control.” Admin. R., vol. I at 165. The officer advised her 

that “another option [was to] just flee” because “these people [are] going to end up 

killing you.” Id. She “tore up the report.” Id. at 166. 

Petitioner returned to the hotel and worked to pay the $1500 monthly 

extortion. She complied with the cartel’s demands because she was afraid that if she 

did not cooperate it would go after her family. After several months, the power went 

off in her room. She thought the cartel was looking for her, so she hid under the bed. 

Two men, one of whom she recognized as the man who took her $10,000 for the 

waiver application, came in the room but left after remarking that she was not there. 

Petitioner fled to Tijuana, where her aunt lived. She could not remember her 

aunt’s address, so she went to a hotel. A man at the hotel said he knew she was not 

from there and told her to leave because the hotel was run by the cartel. She went to 

a nearby restaurant where another man sat next to her and “said, I need you to follow 

me. It’s your choice. If you want to do it the hard way or the easy way.” Id. at 171. 

The man took her to a store where cartel members told her they were going to 

use her as a prostitute across the border. They took her picture and prepared 

documents for her to use to cross the border. One of them “took out a weapon,” and 

they threatened to kill her if she resisted. Id. at 172. Two men eventually drove her 

to the border and directed her to a tunnel where they said she would find the 

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immigration officials they had “paid off.” Id. at 172-73. She ran and the men 

followed her. When she approached border officials and gave them the passport 

prepared by the cartel, they said she was not the person on the passport and 

handcuffed her. Once in another room, Petitioner gave the officers information about 

her true identity and told them she had been kidnapped. She recognized one of the 

United States Border Patrol agents in the room as “one of the kidnappers.” Id. at 

175. She told the officers the men who took her to the border were “trafficking 

people,” “making women prostitute themselves,” and “killing women.” Id. The man 

she recognized as one of the kidnappers told her to “shut up” and accused her of 

being a criminal. Id. at 175-76. 

Notwithstanding the kidnapper’s accusation, an asylum officer interviewed her 

and found she had a credible fear of returning to Mexico. The Department of 

Homeland Security placed her in removal proceedings, charging her with 

removability as an individual not in possession of valid travel or entry documents and 

as an individual who falsely represented herself as a United States citizen for the 

purpose of obtaining an immigration benefit. After she admitted removability, the IJ 

sustained the first charge and held the second in abeyance. Petitioner then filed her 

applications for asylum, restriction on removal, and CAT protection. She alleged she 

was afraid that if she returns to Mexico, she will be targeted and eventually killed by 

the men who threatened her previously, and she asserted that Mexican police cannot 

protect her and are largely corrupt. 

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The IJ found Petitioner credible but concluded she did not qualify for asylum, 

restriction on removal, or CAT relief. The BIA affirmed the IJ’s order and dismissed 

Petitioner’s appeal. 

DISCUSSION 

 When, as here, a three-member panel reviews the IJ decision, “the BIA opinion 

completely super[s]edes the IJ decision for purposes of our review.” Uanreroro v. 

Gonzales, 443 F.3d 1197, 1203 (10th Cir. 2006). We review the BIA’s legal 

decisions de novo and its findings of fact under a substantial-evidence standard. 

Rodas-Orellana v. Holder, 780 F.3d 982, 990 (10th Cir. 2015). Under that standard, 

its “findings [are] conclusive unless any reasonable adjudicator would be compelled 

to reach a contrary conclusion.” Aguilar v. Garland, 29 F.4th 1208, 1211 (10th Cir. 

2022) (internal quotation marks omitted). 

A. Asylum 

An applicant is eligible for asylum if she is a “refugee” within the meaning of 

the INA. See 8 U.S.C. § 1158(b)(1)(A). An applicant qualifies as a refugee if she is 

unable or unwilling to return to her country of nationality because of “persecution or 

a well-founded fear of persecution on account of” any of five protected grounds, 

including “membership in a particular social group.” 8 U.S.C. § 1101(a)(42). 

 The applicant “bear[s] the burden of persuasion and must provide direct or 

circumstantial evidence of the persecutors’ motives.” Orellana-Recinos v. Garland, 

993 F.3d 851, 855 (10th Cir. 2021) (internal citation omitted). Persecution is on 

account of a protected ground if the ground “was or will be at least one central reason 

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for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i). The Board has 

interpreted “‘one central reason’ to mean the protected ground cannot play a minor 

role in the alien’s past mistreatment or fears of future mistreatment.” Karki v. 

Holder, 715 F.3d 792, 800-01 (10th Cir. 2013) (internal quotation marks omitted). 

Thus, to satisfy the nexus requirement, the applicant must show that her past or 

feared future persecution is because of the protected status and that the protected 

ground is not “incidental, tangential, superficial, or subordinate to” some other, 

unprotected reason for harm. Orellana-Recinos, 993 F.3d at 855 (internal quotation 

marks omitted). 

The BIA has emphasized that “it is important to distinguish between the 

inquiry into whether a group is” a cognizable particular social group (PSG) and the 

“question whether a person is persecuted ‘on account of’ membership in a [PSG].” 

Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242 (B.I.A. 2014). In other words, the 

existence of a social group and a nexus between that group and the petitioner’s claim 

of persecution are independent requirements that the BIA assesses separately. Id. 

And because an applicant must satisfy both requirements to make a cognizable claim 

for asylum, see 8 U.S.C. § 1101(a)(42), her failure to satisfy either is dispositive. 

 Here, Petitioner’s asylum and restriction on removal applications alleged that 

she suffered past persecution in Mexico and is likely to suffer future persecution if 

she returns to Mexico based on her membership in one of three proposed PSGs that 

she defined as (1) Mexican women who are trafficked for prostitution; (2) Mexican 

women who are by themselves; and (3) returning Mexicans with relatives in the 

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United States. The IJ denied her applications, concluding she did not establish past 

persecution and could not show a well-founded fear of future persecution on account 

of a protected ground both because her proposed PSGs were not cognizable and 

because she did not establish a nexus between the harm she suffered and her 

membership in those groups. In support of the latter conclusion, the IJ found that the 

people who victimized her were criminals motivated by greed, not by her gender, her 

aloneness, or the fact that she has American relatives. 

 The BIA agreed that Petitioner’s proposed groups are not cognizable because 

they are impermissibly defined by the fact of persecution (the first group) or lack the 

requisite particularity and social distinction (the second and third groups). And it 

found no clear error in the IJ’s finding regarding the reason for the cartels’ harassment 

of her, agreeing that she was “the victim of criminal extortion,” not persecution on 

account of a protected ground. Admin. R., vol. I at 4; see Matter of N-M-, 25 I. & N. 

Dec. 526, 532 (B.I.A. 2011) (explaining that an IJ’s finding regarding a persecutor’s 

motivation is a finding of fact that the BIA reviews for clear error). The BIA thus 

affirmed the IJ’s denial of Petitioner’s applications on two independent grounds: failure 

to establish her membership in a cognizable PSG, and failure to show a nexus between 

her membership in her proposed groups and the persecution she suffered. 

 When a tribunal rejects a claim on multiple independent grounds, the 

petitioner must challenge each ground. Lebahn v. Nat’l Farmers Union Unif. 

Pension Plan, 828 F.3d 1180, 1188 (10th Cir. 2016). The failure to challenge a 

determination that is “by itself, a sufficient basis for” denying relief forecloses 

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success on appeal. Murrell v. Shalala, 43 F.3d 1388, 1390 (10th Cir. 1994). Here, 

Petitioner raises several challenges to the BIA’s social-group ruling, but she does not 

separately challenge its determination that any harm she suffered or fears is due to 

criminal victimization and not on account of a protected ground. Her mention of the 

BIA’s nexus determination “in passing in [the] opening brief” is insufficient to 

challenge that determination. Kabba v. Mukasey, 530 F.3d 1239, 1248 (10th Cir. 

2008). She has thus waived any challenge to the BIA’s dispositive nexus ruling. See 

Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002) (“Issues not raised on appeal 

are deemed to be waived.”). 

 In any event, the record supports the BIA’s determination. It found no clear 

error in the IJ’s finding that the gangs had ordinary criminal motives for harassing 

Petitioner—they extorted her and attempted to force her into prostitution because 

they wanted money. Petitioner points to no evidence that the gangs were motivated 

by the fact that she is Mexican, a woman, alone, or has American family members. 

And her evidence regarding sex trafficking of victims from different countries across 

the United States border, background documents describing organized crime and 

victims of cartel activity in Mexico, and a Department of State Human Rights Report 

describing discrimination and abuse against women in general does not establish that 

the gangs targeted her on account of a protected ground. See Orellana-Recinos, 

993 F.3d at 856 (membership in a PSG “should not be considered a motive for 

persecution if the persecutors are simply pursuing their distinct objectives and a 

victim’s membership in the group is relevant only as a means to an end—that is, the 

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membership enables the persecutors to effectuate their objectives”). We cannot say 

that a reasonable adjudicator would be compelled to reject the BIA’s determination. 

See Aguilar, 29 F.4th at 1211. 

 Because the record supports the BIA’s unchallenged dispositive determination 

that Petitioner failed to establish a nexus between her persecution and her 

membership in her proposed PSGs, we need not address her challenges to its 

determination that those groups are not cognizable. See Lebahn, 828 F.3d at 1188 

(stating that where a party argues one ground but gives the court “no basis to disturb” 

another of the underlying rulings, “we must affirm”); see also INS v. Bagamasbad, 

429 U.S. 24, 25 (1976) (per curiam) (“As a general rule courts and agencies are not 

required to make findings on issues the decision of which is unnecessary to the 

results they reach.”); Griffin v. Davies, 929 F.2d 550, 554 (10th Cir. 1991) (“We will 

not undertake to decide issues that do not affect the outcome of a dispute.”). 

B. Restriction on Removal

To qualify for restriction on removal, an applicant must show a “clear 

probability” of persecution on account of one of the statutorily protected grounds. 

Rodas-Orellana, 780 F.3d at 987 (internal quotation marks omitted). This is a higher 

burden of proof than the standard for asylum, which requires the applicant to prove 

only that such persecution is a “reasonable possibility.” Id. (internal quotation marks 

omitted). Consequently, Petitioner’s inability to meet the asylum burden necessarily 

forecloses meeting the greater restriction burden. See id. We thus deny her 

challenge to the BIA’s finding that she is not eligible for restriction on removal. 

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C. CAT Relief 

 The CAT “prohibits the return of an alien to a country where it is more likely 

than not that he will be subject to torture by a public official, or at the instigation or 

with the acquiescence of such an official.” Karki, 715 F.3d at 806 (internal quotation 

marks omitted). The applicant has the burden to establish her eligibility for CAT 

relief. 8 C.F.R. § 208.16(c)(2). 

 “Acquiescence of a public official requires that the public official, prior to the 

activity constituting torture, have awareness of such activity and thereafter breach his 

or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. 

§ 1208.18(a)(7). “[W]illful blindness suffices to prove acquiescence.” Karki, 

715 F.3d at 806 (internal quotation marks omitted). A government’s inability to offer 

complete protection does not demonstrate governmental acquiescence. 

Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir. 2006). Nor does general 

evidence of corruption and a lack of sufficient resources for law enforcement to 

effectively combat crime. Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 

2005). The BIA’s CAT “findings of fact are conclusive unless any reasonable 

adjudicator would be compelled to conclude to the contrary.” Nasrallah v. Barr, 

140 S. Ct. 1683, 1692 (2020) (internal quotation marks omitted). 

 The IJ denied Petitioner’s request for CAT protection, finding that the harm 

she suffered did not rise to the level of torture and that there was no evidence the 

Mexican government was involved with her harmful experiences in Mexico or would 

acquiesce in any future torture. On administrative appeal, she challenged both the 

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torture and acquiescence determinations, but the BIA denied her request for CAT 

relief solely on the ground that she failed to demonstrate the requisite state action.2

 

 Petitioner maintains that the Mexican government “is unable to control 

organized crime groups and their targeting of most vulnerable populations,” Pet’r’s 

Br. at 21, and that the cartels victimized her “at the instigation of or with the 

acquiescence of a public official or a person acting in an official capacity,” id. at 

22-23 (footnote omitted). But she presented no evidence supporting her assertion 

that the government participated in her victimization. And the record supports the 

BIA’s conclusion that she failed to establish that the government acquiesced in it. 

The police were willing to accept her report of threats and extortion and to engage in 

an investigation, but she decided not to file a report because the police could not 

guarantee her safety. The BIA concluded that the warning that police may not be 

able to protect her if she opened an investigation did not constitute governmental 

acquiescence. We find no error in that determination. See Ferry v. Gonzales, 

457 F.3d 1117, 1131 (10th Cir. 2006) (upholding agency’s determination that the 

government’s recognition of a threat and providing of a security grant used to 

reinforce Ferry’s property demonstrated that the government was not acquiescing in 

2

 Our review is limited to grounds relied on by the BIA. See Uanreroro, 

443 F.3d at 1204. Because the BIA did not address either whether Petitioner showed 

that her claims of past torture demonstrate a clear probability of future torture or 

whether it is more likely than not that she will suffer harm amounting to torture if she 

returns to Mexico, we do not consider her arguments that the harm she suffered in the 

past and will suffer if she returns constitutes torture. 

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torture). And Petitioner has identified no evidence that would compel a reasonable 

adjudicator to conclude that the Mexican government would acquiesce in her torture. 

CONCLUSION 

We deny the petition for review. 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge 

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