                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 12, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                               FOR THE TENTH CIRCUIT




    VIRGINIA ORELLANA-MORALES;
    HENRY VLADIMIR
    PONCE-ORELLANA,

                Petitioners,

    v.                                                  No. 09-9553
                                                    (Petition for Review)
    ERIC H. HOLDER, JR.,
    United States Attorney General,

                Respondent.


                               ORDER AND JUDGMENT *


Before McKAY, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.



         Petitioners, Virginia Orellana-Morales and her minor son Henry Vladimir

Ponce-Orellana, seek review of an order of the Board of Immigration Appeals

(BIA) insofar as it dismissed their appeal from the denial of relief under the


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
United Nations Convention Against Torture (CAT). Their CAT application was

based on the threat of violence from criminal gangs that the government of their

native El Salvador has allegedly been unable to control. The BIA agreed with the

immigration judge (IJ) that petitioners had failed to show “it is more likely than

not [they] will face torture by or with the acquiescence (to include the concept of

willful blindness) of a member of the government of El Salvador upon their return

to that country,” as required for CAT relief under 8 C.F.R. §§ 1208.16, 1208.18.

Admin. R. at 3. Exercising jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), (4), we

deny the petition for review for the reasons explained below. 1



1
        The government insists we should dismiss the petition for review insofar as
it pertains to Ponce-Orellana, because he did not file a separate CAT application.
It cites case law holding that derivative applications for withholding of removal
and CAT relief are not permitted. We decline to dispose of Ponce-Orellana’s
petition for review on this basis. First of all, as the BIA did not reject his CAT
claim for this reason, to rely on it now would transgress basic limits on judicial
review of agency adjudication. See, e.g., Carpio v. Holder, 592 F.3d 1091, 1103
(10th Cir. 2010). Moreover, this case does not appear to involve a derivative
application, properly understood. The case law cited by the government does not
concern some formal requirement for separate applications (and the application
form itself specifically asks the parent whether “[her] child [is] to be included in
the application,” Admin. R. at 345), but rather the substantive principle that one
alien cannot seek relief based on a threat posed to another. Here, the BIA treated
petitioners’ CAT claim as based on the risk both of them faced upon removal.
Admin. R. at 3 (reviewing “respondents’ eligibility for CAT” by considering risk
“respondents will face torture . . . upon their return” to El Salvador (emphasis
added)); see also id. at 51-52 (IJ repeatedly referring to feared risk of torture
relating to both mother and son). The straightforward disposition of petitioners’
joint CAT application on the merits, with no indication of any formal deficiency
as to the son, certainly suggests that the BIA and IJ found nothing improper in his
inclusion on his mother’s application.

                                         -2-
      Where, as here, “a single member of the BIA issues a brief order affirming

an IJ’s decision, this court reviews both the decision of the BIA and any parts of

the IJ’s decision relied on by the BIA in reaching its conclusion.” Razkane v.

Holder, 562 F.3d 1283, 1287 (10th Cir. 2009). We review the BIA’s legal

determinations de novo and its findings of fact under a substantial-evidence

standard. Id. The latter standard is very deferential: “factual findings are

conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.” Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009) (internal

quotation omitted). And this standard applies not only to historical facts, but to

ultimate factual determinations, such as the existence of persecution, upon which

an alien’s qualification for relief may directly rest. Id. (following Vicente-Elias

v. Mukasey, 532 F.3d 1086, 1091 (10th Cir. 2009), and Nazaraghaie v. INS,

102 F.3 460, 463 n.2 (10th Cir. 1996)). Thus, for petitioners to prevail, they must

show that the record contains evidence sufficient to compel a finding that they are

qualified for CAT relief, i.e., that it is more likely than not they will be subjected

to torture by, or with the acquiescence of, government officials if they are

returned to their home county. See, e.g., Cruz-Funez v. Gonzales, 406 F.3d 1187,

1192 (10th Cir. 2005); Matovu v. Holder, 577 F.3d 383, 387 (1st Cir. 2009);

Malonga v. Mukasey, 546 F.3d 546, 555 (8th Cir. 2008). The record here falls

well short of compelling such a finding with respect to the gang violence

petitioners cite as the basis for fearing their return to El Salvador.

                                           -3-
      In broadly agreeing with the IJ that petitioners failed to establish a risk of

torture sufficient to qualify for CAT relief, the BIA effectively recognized two

distinct deficiencies in petitioners’ showing noted by the IJ: (1) an insufficient

level of risk, see Admin. R. at 51; and (2) an inability to attribute the risk to

government acquiescence or willful blindness, id. at 52-53. A brief summary of

the record evidence will demonstrate why neither of these findings is vulnerable

to challenge under the substantial-evidence standard.

      As a general matter, no one disputes that El Salvador has a very serious

problem with gangs and gang violence. Petitioner Orellana-Morales testified to

that fact, which is amply supported by country report findings recited by the IJ.

She also testified, again with corroboration in the country report, that government

efforts to address the problem have not been very successful in stemming the

growth of gangs. But neither petitioner’s testimony nor the country report lends

much support, let alone compelling support, for a claim that the government has

acquiesced in or turned a blind eye to gang violence, 2 see also Amilcar-Orellana

v. Mukasey, 551 F.3d 86, 92 (1st Cir. 2008); Solis v. Mukasey, 515 F.3d 832, 836

(8th Cir. 2008), or that it is more likely than not that any particular El Salvadoran

will be tortured at the hands of gang members.

2
      The mere inability to prevent violence, which can support an asylum claim
under a standard that requires only that a government be unwilling or unable to
stop persecution, must be distinguished from the acquiescence required to support
a CAT claim, for which government ineffectuality alone will not suffice. See
Marroquin-Ochoma v. Holder, 574 F.3d 574, 579-80 (8th Cir. 2009).

                                           -4-
      Rather, petitioners’ claim is more directly related to local circumstances,

specifically involving petitioner Orellana-Morales’ response to a hit-and-run

accident in her home town of Nueva Conception. She witnessed the accident, in

which a car ran over a child, and reported what she had seen, including the car’s

license plate number, to the police. Other witnesses did not come forward for

fear of retaliation, which is common in El Salvador. Based on her information,

the police arrested and jailed the young man who had been driving the car. The

next day, petitioner, who worked at the mayor’s office, spoke of the incident to

the assistant mayor, who warned her to be careful because the driver’s family was

involved in gangs and drugs. The child eventually died in the hospital. Some

time later, the driver’s sister informed the vital statistics department at the

mayor’s office that her brother had died of leukemia in jail. When petitioner

learned of this, she feared retaliation from the driver’s family.

      Thereafter, petitioner was approached outside her home by three strangers

looking for ammunition and asking about a neighbor. She told them where the

neighbor lived but said she did not know whether he was involved in selling

ammunition. She thought the strangers were gang members, though there is no

evidence to confirm that. One of them told her to be careful about talking or the

ammunition could be aimed at her. She took this as a threat not about the sale of

ammunition but about the accident. After this incident she became very worried

for herself and her son. A few weeks later she left El Salvador. Her sister, who

                                           -5-
still lives there, has since told her that unidentified persons called petitioner’s

former workplace asking to speak with petitioner after she left the country.

      We agree with the BIA that the more specific events recounted above also

do not make out a case for CAT relief. Basically, petitioner’s claim is (1) the

driver she identified belonged to a gang family, (2) the family has targeted her

and her son for torture in retaliation, (3) the risk and reach of that threat is so

great that they will more likely than not suffer torture whenever and wherever

they return to the country, and (4) knowing this, the authorities would make no

effort to protect them. To be entitled to relief here, petitioners must make a

compelling showing on every one of these factual premises, and they have not.

      Only the first premise is at all substantiated on the record. The second is

merely an inference drawn on a very thin factual basis–an inference a reasonable

adjudicator would clearly not be compelled to adopt. The third premise is sheer

speculation on our record. The fourth potentially has general and local aspects,

neither of which compellingly supports petitioners’ case. Generally, as we have

already noted, country reports do not demonstrate government acquiescence in

gang violence. Locally, petitioners’ assertion that town authorities would turn a

blind eye to their situation is based on the fact that “neither the Mayor, nor the

Assistant Mayor took any action except to tell [petitioner Orellana-Morales] to be

very careful because she had essentially crossed a deadly gang family.” Aplt.

Opening Br. at 16. But there is no compelling reason to equate such a warning

                                           -6-
with an expression of official abandonment, particularly as petitioners had not

even been threatened by the family. 3 For all the record shows, the statement was

nothing more than an exhortation for prudence, with no implications about the

availability of official protection or assistance if and when prudence would

suggest it might be needed. Indeed, the expression of concern it embodied could

well have implied that petitioner should ask for assistance if that appeared

necessary. It is the province of the IJ and BIA, not the reviewing court, to choose

between such competing inferences. Siewe v. Gonzales, 480 F.3d 160, 167

(2d Cir. 2007). Finally, and perhaps most significantly, petitioner never testified

that she asked for and was denied any form of assistance or protection.

      Under our deferential standard of review, we must uphold the BIA’s

determination that petitioners failed to qualify for relief under the CAT.

      The Petition for Review is DENIED.


                                                    Entered for the Court


                                                    Monroe G. McKay
                                                    Circuit Judge




3
       There is no evidence that petitioner told anyone at the mayor’s office about
the later ammunition incident, itself only speculatively tied to the driver’s family.

                                         -7-
