                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                      November 5, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
JORGE MEDRANO-OLIVAS, a/k/a
Jorge Olivas, a/k/a Jorge Medrano
Olivas, a/k/a Jorge Medrano,

             Petitioner,
                                                            No. 14-9539
v.                                                      (Petition for Review)

ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.


      Jorge Medrano-Olivas, a native and citizen of Mexico, seeks review of the

decision by the Board of Immigration Appeals (BIA) upholding the denial of his

application for deferral of removal under the Convention Against Torture (CAT).




*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
We have jurisdiction under 8 U.S.C. § 1252(a)(1), as constrained by § 1252(a)(2)(C),

(D), and we deny the petition.

                                       BACKGROUND

      Mr. Medrano-Olivas was admitted to the United States as a lawful permanent

resident in 1985. He was later convicted of sexually assaulting a child in violation of

Colo. Rev. Stat. § 18-3-405(1) and (2)(d), and sentenced to ten years in prison.

      In 2013, the Department of Homeland Security charged Mr. Medrano-Olivas

with being removable based on his conviction. He appeared before an immigration

judge (IJ), conceded removability, and sought to defer removal under the CAT.

      In support of his CAT claim, Mr. Medrano-Olivas submitted the State

Department’s 2012 Report on Human Rights Practices for Mexico. Also, he testified

that he feared returning to Mexico “[b]ecause of all the crime that’s going on” and

because a drug cartel might target him as being wealthy due to his long residency in

the United States. R. at 60. He explained that he had friends who had disappeared in

Mexico and “their families don’t have any idea whether it was the government or

people from the cartels.” Id. at 62.

      An IJ found that Mr. Medrano-Olivas’s conviction qualified as a crime-of-

violence aggravated felony under 8 U.S.C. § 1101(a)(43)(F).1


1
       The IJ also found that Mr. Medrano-Olivas’s conviction was a particularly
serious crime, which made him ineligible for asylum or withholding of removal. See
8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Mr. Medrano-Olivas does not
contest this determination.


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Accordingly, the IJ ordered Mr. Medrano-Olivas removed to Mexico, concluding,

without mentioning the 2012 Country Report, that Mr. Medrano-Olivas had failed to

show a likelihood of torture.

      On appeal, the BIA issued a single-member brief order, determining that

Mr. Medrano-Olivas’s fear of torture by the government was speculative and that

there was no evidence the Mexican government would consent or acquiesce in his

torture by private individuals. In doing so, the BIA extensively referenced the 2012

Country Report and concluded that the IJ’s failure to mention that report did not

necessarily mean it was not considered with the rest of the evidence. The BIA then

dismissed the appeal.

                                     DISCUSSION

      “[O]ur jurisdiction to review an order of removal against an aggravated felon

is significantly limited: we may review the removal order only to the extent

petitioner raises constitutional or legal challenges to the order[.]” Waugh v. Holder,

642 F.3d 1279, 1281 (10th Cir. 2011). This limitation is applicable to requests for

CAT deferral relief. See Arce-Jimenez v. Holder, 513 F. App’x 800, 802 (10th Cir.

2013); see, e.g., Siwe v. Holder, 742 F.3d 603, 613 (5th Cir. 2014); Gallimore v.

Holder, 715 F.3d 687, 690 (8th Cir. 2013); Telyatitskiy v. Holder, 628 F.3d 628, 631

(1st Cir. 2011); Pieschacon-Villegas v. Att’y Gen. of U.S., 671 F.3d 303, 309-10

(3d Cir. 2011); Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1280 (11th Cir. 2009)

(per curiam); Saintha v. Mukasey, 516 F.3d 243, 248 (4th Cir. 2008). But see


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Wanjiru v. Holder, 705 F.3d 258, 264 (7th Cir. 2013) (declining to apply the

criminal-alien bar in the CAT deferral-of-removal context); Lemus-Galvan v.

Mukasey, 518 F.3d 1081, 1083 (9th Cir. 2008) (stating that criminal-alien bar does

not apply to “denials of deferral of removal under the CAT” because such denials

“are always decisions on the merits”).

      Mr. Medrano-Olivas’s only challenge to the denial of CAT relief is that “the

BIA and IJ failed to consider, or even discuss, the relevant country conditions as

noted in the [2012 Country Report].” Pet’r Br. at 3-4. In Alzainati v. Holder,

568 F.3d 844, 851 (10th Cir. 2009), this court observed that “an allegation of

wholesale failure to consider evidence” is reviewable as a constitutional due-process

argument. We proceed, then, to consider whether Mr. Medrano-Olivas was denied

due process.

      “To prevail on a due process claim, an alien must establish not only error, but

prejudice.” Id. When resolving an alien’s CAT claim, the IJ must consider “all

evidence relevant to the possibility of future torture.” 8 C.F.R. § 208.16(c)(3); see

also id. § 208.17(a). While the IJ did not mention the 2012 Country Report in his

decision, the IJ was aware of the Report, because he admitted it as an exhibit during

the hearing after the government announced it had no objection. See R. at 59-60.

Under these circumstances, we decline to equate a failure to discuss the Report with a

failure to consider the Report. Indeed, an IJ is not required to discuss every piece of

evidence. See Hadjimehdigholi v. INS, 49 F.3d 642, 648 n.2 (10th Cir. 1995); see


                                          -4-
also Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006) (“[W]e

presume that an IJ has taken into account all of the evidence before him, unless the

record compellingly suggests otherwise.”).

      Moreover, even assuming that the IJ failed to consider the Country Report,

Mr. Medrano-Olivas has not shown prejudice, given that the BIA extensively

discussed the Report in upholding the IJ’s decision. See Uanreroro v. Gonzales,

443 F.3d 1197, 1204 (10th Cir. 2006) (noting that where the BIA resolves an appeal

in a single-member brief order and provides it own “discernible substantive

discussion, . . . our review extends no further”); see, e.g., Ghaly v. INS, 58 F.3d 1425,

1430 (9th Cir. 1995) (concluding that “even if the IJ erred by refusing to consider

[alien’s] exhibits, this error was rendered harmless by the Board’s subsequent

consideration of the exhibits in conducting its de novo review”).

      In short, Mr. Medrano-Olivas has not shown he was denied due process.

                                     CONCLUSION

      The petition for review is denied.

                                                 Entered for the Court


                                                 Jerome A. Holmes
                                                 Circuit Judge




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