Firm Resettlement Requires State-Imposed Restrictions to Avoid the Bar; Private Threats and Meeting Disruptions in Third Countries Are Insufficient — Perez‑Mavarez v. Garland (10th Cir. 2025)

Court: U.S. Court of Appeals for the Tenth Circuit
Date: March 31, 2025
Panel: Circuit Judges Hartz, Kelly, and Bacharach (Order and Judgment by Judge Kelly)
Docket No.: 24-9520
Disposition: Petition for review denied
Note: Nonprecedential order and judgment; citable for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Parties: Petitioners — Rafael Jose Perez‑Mavarez and his minor daughter (derivative), Isabela Saray Perez‑Perez. Respondent — Attorney General (captioned as Garland; substituted to Acting Attorney General Pamela J. Bondi under Fed. R. App. P. 43(c)(2)).

Introduction

Perez‑Mavarez v. Garland addresses when an asylum applicant’s prior residence in a third country constitutes “firm resettlement” that statutorily bars asylum, and what degree of harm suffices to establish past persecution or a well‑founded fear of future persecution. The case arises from a Venezuelan national who lived in Ecuador from 2016 onward, eventually securing permanent residency there in 2020. He sought asylum and withholding of removal in the United States based on harms he attributed to Venezuelan actors (a gang linked to a pro‑government paramilitary) and to Ecuadorian political supporters aligned with former President Rafael Correa. An immigration judge (IJ) denied asylum and withholding; the Board of Immigration Appeals (BIA) affirmed; and the Tenth Circuit denied the petition for review.

The key issues include:

Whether the firm‑resettlement bar applies where the applicant had renewable permanent residency and enjoyed the typical rights of residents in a third country (Ecuador), despite some threats and disruptions by private actors.
Whether unfulfilled threats and meeting disruptions, coupled with police protection, amount to past persecution or establish a well‑founded fear of future persecution.
How the doctrines of issue exhaustion and waiver constrain appellate review of unpreserved arguments (including which version of the firm‑resettlement regulation applies, and CAT claims not briefed on appeal).

Summary of the Opinion

The Tenth Circuit denied the petition for review, holding:

Firm resettlement in Ecuador bars asylum as to Venezuela. Substantial evidence supports the agency’s finding that Perez‑Mavarez firmly resettled in Ecuador. He held temporary residency (2017) followed by permanent residency (2020), with the ability to live, work, drive, travel outside Ecuador for up to three months at a time, and renew his status. The record did not show that Ecuadorian authorities “substantially and consciously restricted” his rights in a manner that would trigger the exception in 8 C.F.R. § 1208.15(b). Police actually protected him when meetings were disrupted.
Unexhausted regulatory argument rejected. Petitioner’s challenge to the agency’s use of the 2020 firm‑resettlement regulation rather than the January 11, 2021 update was unexhausted because it was not presented to the BIA; the court enforced the government’s exhaustion objection.
No persecution established in Ecuador. Unfulfilled threats and disruptions of community meetings (motorcycle arrivals, rocks, tear gas) did not compel a finding of past persecution. The agency also found insufficient evidence that petitioner was targeted specifically, and noted that the political party he opposed was no longer in power and similarly situated individuals remained unharmed, undermining any well‑founded fear.
No persecution established in Venezuela for withholding. The threats and a single beating in Venezuela, while serious, did not compel the conclusion that petitioner suffered past persecution under Tenth Circuit precedent. Because he did not meet the asylum standard for Ecuador, he necessarily failed to meet the higher standard for withholding as to Ecuador.
CAT claims waived on appeal. Petitioner did not challenge the denial of CAT protection in his opening brief; those claims were deemed waived.

Analysis

1) Precedents Cited and Their Influence

Dallakoti v. Holder, 619 F.3d 1264 (10th Cir. 2010): Sets the framework for reviewing both the BIA’s order and those portions of the IJ’s decision on which the BIA relied. The court applied that dual‑layer review here.
8 U.S.C. § 1252(b)(4)(B): Establishes the substantial‑evidence standard — agency fact findings are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. The court repeatedly invoked this deferential standard when affirming the BIA’s firm‑resettlement findings and no‑persecution determinations.
Miguel‑Pena v. Garland, 94 F.4th 1145 (10th Cir.), cert. denied, 2024 WL 4743083 (U.S. Nov. 12, 2024): Clarifies that issue exhaustion is a mandatory claim‑processing rule enforced when properly invoked. Relying on Miguel‑Pena, the court refused to consider the unexhausted challenge to which version of the firm‑resettlement regulation applied.
Matumona v. Barr, 945 F.3d 1294 (10th Cir. 2019): Supplies two important principles: (i) the firm‑resettlement bar applies where an applicant has been offered “permanent resident status, citizenship, or some other type of permanent resettlement,” and (ii) “only rarely do threats constitute actual persecution.” The court relied on Matumona for both the firm‑resettlement definition and the threshold for persecution.
Rodas‑Orellana v. Holder, 780 F.3d 982 (10th Cir. 2015): Distinguishes the burdens of proof: asylum requires a “well‑founded fear” while withholding requires a “clear probability” of persecution, a higher standard. The court used this to conclude that failing the asylum standard for Ecuador necessarily defeats withholding as to Ecuador.
Ritonga v. Holder, 633 F.3d 971 (10th Cir. 2011): Defines persecution as more than restrictions or threats — it must involve the infliction of suffering or harm for protected reasons. The court applied this definition in evaluating the Venezuela and Ecuador records.
Zhi Wei Pang v. Holder, 665 F.3d 1226 (10th Cir. 2012): Reiterates that “Persecution is an extreme concept,” not every offensive treatment qualifies. This undergirded the conclusion that meeting disruptions and unfulfilled threats in Ecuador did not compel a finding of persecution.
Tulengkey v. Gonzales, 425 F.3d 1277 (10th Cir. 2005): Upholds a no‑persecution finding despite robbery, fondling, a minor head injury, and witnessing a mob beating. The court used Tulengkey to analogize that the harms here likewise fell short of persecution.
Xue v. Lynch, 846 F.3d 1099 (10th Cir. 2017): Holds that an assault and four‑day detention did not constitute persecution. This supported the no‑persecution analysis for Venezuela.
Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir. 2007), abrogated on other grounds by Santos‑Zacaria v. Garland, 598 U.S. 411 (2023): Even multiple beatings and extortion did not compel a persecution finding. Cited to underscore the rigorous threshold for persecution findings under the substantial‑evidence standard.
Garcia‑Carbajal v. Holder, 625 F.3d 1233 (10th Cir. 2010), abrogated on other grounds by Santos‑Zacaria: Requires that the same specific legal theory be presented to the BIA before being advanced in court. The court used this to deem unexhausted petitioner’s argument that Correa supporters impeded his Ecuador permanent residency process.
Santos‑Zacaria v. Garland, 598 U.S. 411 (2023): Recognizes that 8 U.S.C. § 1252(d)(1)’s exhaustion requirement is non‑jurisdictional. The Tenth Circuit nevertheless enforces issue‑exhaustion as a claim‑processing rule when the government invokes it, consistent with Miguel‑Pena.

2) The Court’s Legal Reasoning

a) Firm Resettlement in Ecuador Forecloses Asylum from Venezuela

Under Matumona and 8 C.F.R. § 1208.15, an applicant is ineligible for asylum if he was firmly resettled in another country prior to arriving in the United States. The regulation instructs adjudicators to consider the conditions of residence in the third country, including housing, employment, property rights, travel documentation (entry/reentry), and other rights “ordinarily available to others resident in the country.”

The IJ and BIA found that Ecuador granted petitioner temporary residency in 2017 and permanent residency in 2020, with the ability to renew after ten years, live and work, drive, and travel abroad for up to three months. The IJ further found that petitioner “held all the rights and privileges associated with being an Ecuadorian resident,” and that despite threats and disruptions from private actors, Ecuadorian police protected him when meetings were disrupted.

To avoid the firm‑resettlement bar, petitioner invoked the exception in § 1208.15(b), which applies if the “conditions of his or her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled.” The agency rejected this exception because the restrictions alleged were not imposed “by the authority” of Ecuador; rather, they were threats and disruptions by private actors. Indeed, the record showed protective—not restrictive—state conduct: police responded to protect him and meeting attendees. Substantial evidence therefore supports that Ecuador did not substantially and consciously restrict his rights.

On appeal, petitioner argued the agency applied the wrong version of § 1208.15 (the 2020 regulation rather than the January 11, 2021 update). The court did not reach the merits because that claim was unexhausted; it was not raised to the BIA. Under Miguel‑Pena, issue exhaustion is a mandatory claim‑processing rule that the court enforces when the government timely invokes it, as happened here.

b) No Past Persecution or Well‑Founded Fear in Ecuador

The IJ and BIA held that unfulfilled threats, plus disruptions of meetings by Correa supporters (arriving on motorcycles, throwing rocks and tear gas), did not compel a finding of past persecution. The court reiterated several bedrock principles:

“Persecution is an extreme concept” and requires more than offensive or harassing conduct (Zhi Wei Pang; Ritonga).
“Only rarely do threats constitute actual persecution” (Matumona).

The agency also found insufficient evidence that the dissidents targeted petitioner specifically, noting he “was never harmed.” For the future‑fear prong, the agency relied on two objective considerations: (1) the Correa party was no longer in power, diminishing the likelihood of state‑connected harm; and (2) similarly situated individuals in Ecuador remained unharmed. On the totality, substantial evidence supported the denial of asylum on the Ecuador ground.

c) No Persecution in Venezuela; Withholding Fails

For withholding related to Venezuela, the agency determined the threats and a single beating did not compel a finding of persecution, and the court cited Tenth Circuit cases where comparable or greater harms still fell short (Matumona; Tulengkey; Xue; Sidabutar). Given that the withholding standard (“clear probability”) is higher than the asylum standard, the failure to establish asylum eligibility with respect to Ecuador necessarily precluded withholding for Ecuador (Rodas‑Orellana).

d) Waiver of CAT and Other Unpreserved Arguments

Petitioner did not brief any challenge to the agency’s denial of Convention Against Torture protection in his opening brief; the court deemed CAT arguments waived (United States v. Cooper). Likewise, the argument that Correa supporters impeded his Ecuador permanent residency process was unexhausted because not presented to the BIA (Garcia‑Carbajal; Santos‑Zacaria’s non‑jurisdictional clarification notwithstanding).

3) Impact and Practical Significance

This decision, though nonprecedential, has persuasive force and crystallizes several important points for asylum and withholding practice in the Tenth Circuit:

Firm resettlement is robust when durable third‑country status and ordinary civil rights exist. Renewable permanent residency, the ability to work, access housing, travel, and hold property—combined with evidence of police protection—strongly supports a firm‑resettlement finding. Applicants should expect the firm‑resettlement bar to apply in similar fact patterns.
Exceptions require state‑imposed restrictions, not private misconduct. To avoid the bar under § 1208.15(b), the restrictions must be “substantially and consciously” imposed “by the authority” of the third country. Private threats, even by groups sympathetic to or aligned with political movements, will not suffice absent a showing that the state itself restricted rights or effectively imposed legal disabilities.
Unfulfilled threats and sporadic disruptions rarely meet the persecution threshold. Tenth Circuit precedent repeatedly emphasizes that threats alone seldom constitute persecution. Evidence of injury, detention, or severe, targeted harm is typically required; police intervention in the applicant’s favor further undermines any persecution claim.
Objective fear is sensitive to political change and comparator evidence. A change in the ruling party, coupled with evidence that similarly situated persons remain unharmed, can defeat the objective reasonableness of a claimed fear.
Preservation matters. Arguments about which regulatory version applies, and theories about how third‑country political actors allegedly impeded immigration status, must be presented to the BIA to satisfy issue‑exhaustion. Separately, all forms of relief (e.g., CAT) must be briefed in the opening brief to avoid waiver in the court of appeals.
Asylum versus withholding: understand the hierarchy. Because withholding requires a higher likelihood of persecution than asylum, losing on asylum grounds generally forecloses withholding on the same facts, absent additional evidence.

Complex Concepts Simplified

Firm Resettlement: If, before coming to the United States, you received a stable, long‑term status in another country (like permanent residency) with ordinary rights to live, work, and travel, U.S. law generally treats you as having “firmly resettled” there. That makes you ineligible for asylum here, unless you can prove that the third country’s government itself heavily restricted your rights.
Persecution (versus harassment): Persecution means serious harm or suffering because of a protected ground (e.g., political opinion), not mere threats, harassment, or sporadic disturbances. The Tenth Circuit calls persecution “an extreme concept.”
Well‑Founded Fear: To win asylum without past persecution, an applicant must show both a genuine subjective fear and that the fear is objectively reasonable—often assessed through country conditions, political changes, and the experience of similarly situated people.
Withholding of Removal: A separate protection with a higher burden (“clear probability” of persecution). If you cannot meet the lower asylum standard on the same facts, you ordinarily cannot meet the withholding standard.
Issue Exhaustion: You must raise your specific legal arguments to the BIA first; otherwise, the court of appeals will refuse to consider them if the government objects.
Substantial‑Evidence Review: Courts defer to the agency’s factual findings unless the evidence compels the opposite conclusion. Close cases typically go to the agency, not the petitioner.

Conclusion

Perez‑Mavarez v. Garland reinforces three enduring features of asylum and withholding adjudication in the Tenth Circuit. First, the firm‑resettlement bar is potent where an applicant secured durable third‑country residency with ordinary civil rights and even some state protection; to escape the bar, an applicant must show restrictions imposed by the third country’s authorities themselves. Second, “persecution” remains a high threshold—unfulfilled threats and episodic disruptions by private actors, particularly where police protect the applicant, rarely suffice. Third, procedural rules matter: unexhausted issues and unbriefed claims will not be considered.

Although issued as a nonprecedential order, the decision is a clear and practical guide for litigants: assemble evidence of state‑imposed restrictions if contesting firm resettlement, develop concrete proof of severe and targeted harms to meet the persecution standard, and preserve every legal theory before the BIA and in the opening brief. On these facts and under the deferential substantial‑evidence standard, the Tenth Circuit’s denial of relief was a predictable application of its established doctrine.