Aguirre-Avendano v. Garland

Appellate Case: 22-9501 Document: 010110772875 Date Filed: 11/22/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT November 22, 2022 _________________________________ Christopher M. Wolpert Clerk of Court CARLOS ANTONIO AGUIRRE- AVENDANO, Petitioner, v. No. 22-9501 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before HARTZ, PHILLIPS, and EID, Circuit Judges. _________________________________ Carlos Antonio Aguirre-Avendano is a native and citizen of El Salvador who entered the United States without permission. An immigration judge (IJ) found him removable and ineligible for asylum, withholding of removal, or protection under the Convention Against Torture (CAT), and ordered that he be returned to his home country. The Board of Immigration Appeals (BIA) dismissed his appeal in a single- * 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-9501 Document: 010110772875 Date Filed: 11/22/2022 Page: 2 member order. Aguirre-Avendano now petitions for review of the BIA’s decision. We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition. I. STANDARD OF REVIEW We review the BIA’s decision, but we may consult the IJ’s more-complete discussion of the same grounds relied upon by the BIA. Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). “[W]e will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in its affirmance.” Id. “[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). II. BACKGROUND & PROCEDURAL HISTORY Aguirre-Avendano entered the United States at an unknown location in 2006. In November 2010, the government charged him with removability as a noncitizen present in the United States without being admitted or paroled.1 Aguirre-Avendano conceded the charge and applied for asylum, withholding of removal, and CAT protection. He claimed he was being persecuted by the MS-13 gang because he refused to join them. Aguirre-Avendano and his sister (who came to the United States before him) testified at his asylum hearing in 2011 about the violence they suffered at gang members’ hands, and about their mother’s murder for resisting gang activity. The IJ’s eventual decision credited that testimony but held that those who resist gang 1 The government charged a second basis for removability, arising from a criminal conviction, but it has since abandoned that charge. 2 Appellate Case: 22-9501 Document: 010110772875 Date Filed: 11/22/2022 Page: 3 activity or recruitment are not a social group entitled to asylum. The IJ also ruled …

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