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

                            FOR THE TENTH CIRCUIT                         July 14, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
ROSANA VIGIL-LAZO,

             Petitioner,

v.                                                          No. 13-9594
                                                        (Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before MATHESON, PORFILIO, and PHILLIPS, Circuit Judges.


      Rosana Vigil-Lazo, a native and citizen of El Salvador, petitions for review of

an order by the Board of Immigration Appeals (BIA) affirming a decision by the

Immigration Judge (IJ) denying her applications for asylum, restriction on removal,

and protection under the Convention Against Torture (CAT). Exercising jurisdiction

pursuant to 8 U.S.C. § 1252, we dismiss the petition in part and deny it in part.


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      I. Background

      Ms. Vigil-Lazo entered the United States illegally in March 2007. She was

charged with being subject to removal under 8 U.S.C. § 1182(a)(7)(A)(i), as an alien

who did not possess a valid entry document at the time of application for admission.

Ms. Vigil-Lazo conceded removability as charged, but requested asylum, restriction

on removal, and protection under the CAT. She alleged that she had been, and would

continue to be, persecuted in El Salvador by members of the Mara gang.

      Ms. Vigil-Lazo had a hearing on her applications for relief before an IJ. She

testified that she met and began dating David Molina when she was thirteen years

old, but did not know at the time that he was a gang member. When she was

eighteen, she moved in with him. She testified that Mr. Molina was abusive and beat

her because he was jealous, distrustful, and often drunk or high on drugs. On one

occasion his beating caused her to miscarry a pregnancy, and another time, he cut her

hand with a knife. She ultimately decided to leave Mr. Molina because of the abuse

and moved in with her uncle.

      After she moved away from Mr. Molina, she testified that three letters were

placed at her uncle’s doorstep in January and February 2007. The first one demanded

rent money of $50 and was signed by the “Mara.” She did not pay the money. The

second letter asked for $100 in rent money for the Mara gang, and again she did not

pay the money. The third letter stated that because Ms. Vigil-Lazo did not pay the

money, she was required to join the Mara gang and as a member, she would be


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sexually abused by other gang members. She did not join the gang. After receiving

the letters, Ms. Vigil-Lazo decided to leave El Salvador, and she came to the United

States in March 2007.

      Ms. Vigil-Lazo testified that the gang asks anyone who has money to pay rent

and if people pay the money, they are protected and nothing happens to them as long

as they keep paying the rent. She testified that she did not report any of the letters to

the police because she believed the police would not help her, and she thought

reporting the incidents would only cause more problems. On cross-examination,

Ms. Vigil-Lazo was asked whether the police would protect a woman if they were

notified about a domestic abuse situation. She testified that she thought they would,

but she did not know “how sure it would be.” Admin. R. at 264.

      In his decision denying relief, the IJ determined that Ms. Vigil-Lazo had not

shown she had been or would be persecuted in El Salvador on account of a protected

ground, and therefore she was not eligible for asylum or restriction on removal. The

IJ also denied Ms. Vigil-Lazo’s CAT claim, finding that although “the government of

El Salvador is less than completely effective in protecting against domestic abuse,”

there was no evidence showing the government acquiesces in the torture of its

citizens or would acquiesce in her torture. Id. at 175.

      In her appeal to the BIA, Ms. Vigil-Lazo retained new counsel, and she argued

that her former counsel provided ineffective representation. In dismissing the appeal,

the BIA agreed with the IJ that Ms. Vigil-Lazo failed to meet her burden of proof for


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asylum, restriction on removal or CAT relief. The BIA further determined that

Ms. Vigil-Lazo had not established ineffective assistance of counsel and resulting

prejudice. Ms. Vigil-Lazo now petitions for review of the BIA’s decision.1

      II. Discussion

      “We review the BIA’s legal determinations de novo and its findings of fact for

substantial evidence.” Dallakoti v. Holder, 619 F.3d 1264, 1267 (10th Cir. 2010).

We are limited to reviewing issues related to Ms. Vigil-Lazo’s order of removal that

have been administratively exhausted. See 8 U.S.C. § 1252(d)(1) (“A court may

review a final order of removal only if . . . the alien has exhausted all administrative

remedies available . . . as of right”); see also Garcia-Carbajal v. Holder, 625 F.3d

1233, 1237 (10th Cir. 2010) (“To satisfy § 1252(d)(1), an alien must present the same

specific legal theory to the BIA before he or she may advance it in court.”).

      Ms. Vigil-Lazo begins by asserting that she is a “‘Following to Join’” child,

who is trying to reach her father, who enjoys Temporary Protected Status (TPS) in

the United States. Pet’r Br. at 20. She contends that “the IJ should have considered

the totality of [her] circumstances including family unity in the Asylum

adjudication.” Id. She further argues that the principles of family unity should apply

to her case, and that the IJ should have considered the possibility of humanitarian


1
        In her appellate brief, Ms. Vigil-Lazo does not challenge the BIA’s denial of
restriction on removal under 8 U.S.C. § 1231(b)(3). Consequently, she has waived
that issue. See Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002) (“Issues not
raised on appeal are deemed to be waived.”).


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relief. But Ms. Vigil-Lazo did not raise any of these arguments before the IJ

or the BIA. She has therefore failed to exhaust her administrative remedies, and

we lack jurisdiction to consider these arguments. See 8 U.S.C. § 1252(d)(1);

Garcia-Carbajal, 625 F.3d at 1237.

      Ms. Vigil-Lazo also argues that she is entitled to relief under the CAT because

it is more likely than not she will be tortured upon removal.2 In order to establish

eligibility for relief under the CAT, the torture must be “inflicted by or at the

instigation of or with the consent or acquiescence of a public official or other person

acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). The BIA affirmed the IJ’s

determination that the record did not contain any evidence that the government of

El Salvador acquiesces in the torture of individuals or would acquiesce in

Ms. Vigil-Lazo’s torture if she were returned to El Salvador. Ms. Vigil-Lazo cites no

record evidence to demonstrate that the BIA erred.




2
       Although Ms. Vigil-Lazo mentions her asylum claim in her appellate brief and
makes the conclusory assertion that she is part of a group that should be protected
through asylum, namely former spouses of gang members, see Pet’r Br. at 16, 20, she
does not offer any substantive argument as to how the BIA erred in denying her
asylum claim. Instead, she focuses her argument on the denial of her CAT claim.
See id. at 22-26. She does contend that “the IJ summarized the established record to
avoid ‘protected class’ status,” id. at 23, which might be considered a challenge to
the denial of her asylum claim. But this argument is not adequately developed and is
not supported by any citations to legal authority or the record. See id. Under these
circumstances, we conclude that Ms. Vigil-Lazo has waived any challenge to the
denial of her asylum claim because it has been inadequately briefed. See Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998).


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      Next, Ms. Vigil-Lazo contends that her due process rights were violated

because she was not advised she would be subject to the ten-year bar on re-entry if

she departs the United States or is removed. In her brief to the BIA, Ms. Vigil-Lazo

argued that the failure of her former counsel and the IJ to advise her about the

ten-year re-entry bar constituted both ineffective assistance of counsel and a violation

of due process. The BIA determined that Ms. Vigil-Lazo did not present “sufficient

argument or evidence” to establish ineffective assistance of counsel and a denial of

due process. Admin. R. at 4-5. In her brief, Ms. Vigil-Lazo no longer contends that

her former counsel was ineffective, but casts this issue only as a due process

violation.

      “[A]liens do not have a constitutional right to enter or remain in the United

States . . . .” Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009).

“[A]n alien in removal proceedings is entitled only to the Fifth Amendment guarantee

of fundamental fairness, or in other words, only to procedural due process, which

provides the opportunity to be heard at a meaningful time and in a meaningful

manner.” Alzainati v. Holder, 568 F.3d 844, 851 (10th Cir. 2009) (internal quotation

marks omitted). “To prevail on a due process claim, an alien must establish not only

error, but prejudice.” Id.

      Even assuming that the IJ had a duty to advise her of the re-entry bar and that

the failure to do so rises to the level of a due process violation, Ms. Vigil-Lazo has

failed to identify any resulting prejudice. Although she argues that her removal will


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separate her from her parents for ten years or more, she has not argued, much less

demonstrated, that knowing about the re-entry bar would have made any difference in

her removal proceedings. Ms. Vigil-Lazo fought her removal by requesting the only

relief and protection for which she was eligible, and she does not explain how

awareness of the consequences of her unlawful presence in the United States would

have had an effect on her removal proceeding. Cf. United States v. Aguirre-Tello,

353 F.3d 1199, 1208-09 (10th Cir. 2004) (holding that in order to prevail on a due

process claim, an alien must show that there is a reasonable likelihood he would have

obtained the requested relief had the IJ specifically advised him about that relief).

      Ms. Vigil-Lazo had a full and fair opportunity to be heard before the agency,

and she has not identified or explained how prior notice of the ten-year re-entry bar

would have changed the outcome of her case. We therefore agree with the BIA that

she has failed to establish a due process violation.

      Finally, Ms. Vigil-Lazo argues that her removal will violate the Eighth

Amendment, but she did not raise that argument before the BIA and therefore we

lack jurisdiction to review it. See 8 U.S.C. § 1252(d)(1); Garcia-Carbajal, 625 F.3d

at 1237.

      III. Conclusion

      For the foregoing reasons, we dismiss for lack of jurisdiction the arguments

that Ms. Vigil-Lazo failed to exhaust with the administrative agency. We deny the




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remainder of the petition for review. We grant Ms. Vigil-Lazo’s motion for leave to

proceed without prepayment of costs or fees.


                                               Entered for the Court


                                               Gregory A. Phillips
                                               Circuit Judge




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