Hernandez-Romero v. Garland
24-9535
10th Cir.Apr 14, 2025Background
- Jose Daniel Hernandez-Romero, a native and citizen of Guatemala, entered the U.S. illegally and was later removed, ultimately re-entering without inspection in 2013.
- He applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), alleging persecution and harm by the MS gang in Guatemala due to his status as an indigenous Mayan man and as a returnee from the U.S.
- The Immigration Judge (IJ) denied all applications, citing untimeliness for asylum, lack of a nexus for withholding, and insufficient evidence for CAT relief.
- The Board of Immigration Appeals (BIA) affirmed the IJ’s decisions on appeal.
- Hernandez-Romero petitioned for judicial review, challenging only the withholding of removal and CAT denial.
Issues
| Issue | Hernandez-Romero’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Nexus between harm and indigenous status for withholding | Harm was due to indigenous (Mayan) status | Harm was due to general criminal motives, not race/social group | No nexus established; denial upheld |
| BIA’s fact-finding on nexus | BIA improperly made new factual findings | BIA simply affirmed IJ’s findings | BIA did not engage in impermissible fact-finding |
| Distinction between race and social group in claim | Race (Mayan) is a separate protected ground | Race and indigenous social group are equivalent here | No material difference for analysis |
| CAT standard (likelihood of torture with official acquiescence) | Generalized evidence shows likely torture by/with government acquiescence | Evidence is speculative and insufficiently specific | No sufficient likelihood shown; denial upheld |
Key Cases Cited
- Xue v. Lynch, 846 F.3d 1099 (10th Cir. 2017) (standard of review for BIA’s factual and legal determinations)
- Garland v. Ming Dai, 593 U.S. 357 (2021) (deferential standard to agency factual findings)
- Htun v. Lynch, 818 F.3d 1111 (10th Cir. 2016) (review of agency findings and CAT standard)
- Zhi Wei Pang v. Holder, 665 F.3d 1226 (10th Cir. 2012) (withholding of removal requires clear probability of threat on protected ground)
- Escobar-Hernandez v. Barr, 940 F.3d 1358 (10th Cir. 2019) (generalized country conditions are not sufficient for CAT relief)