Marquez-Cortez v. Bondi: Sua Sponte Issue-Exhaustion and Tightened Proof of “Social Distinction,” Nexus, and CAT Acquiescence in Gang-Violence Claims

1. Introduction

In Marquez-Cortez v. Bondi (10th Cir. Aug. 12, 2026) (Order and Judgment), the Tenth Circuit denied a petition for review filed by Elzi Noemi Marquez-Cortez and her minor daughter A.V.M., natives and citizens of Honduras, challenging a Board of Immigration Appeals (“BIA”) decision that upheld an immigration judge (“IJ”) denial of asylum, withholding of removal, and Convention Against Torture (“CAT”) protection.

The petitioners’ claims arose from a home invasion and subsequent threats in Honduras. They contended they faced persecution based on (i) imputed anti-gang political opinion and (ii) membership in proposed particular social groups, including variants of “Honduran witnesses of gang crimes who reported the crimes to police” and “Honduran women.” They also argued they qualified for CAT protection because Honduran authorities allegedly failed to protect them from gang violence and may have leaked their police report.

The key issues before the court were:

  • Exhaustion: whether the court would consider a statutory/agency-deference argument not raised to the BIA.
  • Particular social group (“PSG”): whether “witnesses to crime who report to police” groups were socially distinct.
  • Nexus: whether harm was “on account of” sex (“Honduran women”) or imputed political opinion rather than ordinary criminal motives and retaliation.
  • CAT acquiescence: whether generalized country conditions and speculation about police leaks showed government acquiescence.

2. Summary of the Opinion

Reviewing only the BIA’s explanatory decision, the Tenth Circuit:

  • Declined to reach an unexhausted argument challenging the BIA’s application of In re C-T-L-, 25 I. & N. Dec. 341, 343-48 (BIA 2010), exercising discretion to enforce exhaustion sua sponte.
  • Affirmed the BIA’s conclusion that the “witnesses to crime” PSGs lacked social distinction, emphasizing that gang awareness of a report does not equate to societal recognition of a discrete group.
  • Upheld the BIA’s nexus finding: substantial evidence supported that the attackers’ motives were money and personal retaliation for the police report—not a central reason tied to sex or political opinion.
  • Denied CAT relief because the record did not establish government acquiescence; suspicion of police collaboration and general evidence of violence/corruption were insufficient.

3. Analysis

A. Precedents Cited

1) Scope and standard of review

  • O.C.V. v. Bondi, 153 F.4th 974, 981-82 (10th Cir. 2025): The court applied O.C.V. to (i) review only the BIA decision when a three-member panel issues a full explanatory opinion and (ii) apply de novo review to legal determinations and substantial evidence review to factual findings. This framework shaped the opinion’s posture: the panel asked only whether the evidence “compelled” a contrary factual conclusion.

2) Exhaustion and the court’s discretion

  • Miguel-Pena v. Garland, 94 F.4th 1145, 1157-58 (10th Cir. 2024): Cited for the proposition that even if the government does not invoke 8 U.S.C. § 1252(d)(1), the court may enforce exhaustion on its own because forfeiture binds parties but not the court. The panel relied on Miguel-Pena to refuse consideration of petitioners’ new argument attacking the BIA’s approach under In re C-T-L-, 25 I. & N. Dec. 341, 343-48 (BIA 2010).

3) Particular social group requirements

  • Rodas-Orellana v. Holder, 780 F.3d 982, 990-92 (10th Cir. 2015): The court used Rodas-Orellana to restate the BIA’s three-part PSG test—immutability, particularity, and social distinction—and to emphasize that social distinction turns on whether the group is perceived as a group by society. The panel also drew from Rodas-Orellana to reject the notion that persecutor perception alone establishes social distinction.

4) Asylum/withholding burden relationship

  • Escobar-Hernandez v. Barr, 940 F.3d 1358, 1362 (10th Cir. 2019): Cited for two key propositions: (i) withholding carries a higher burden than asylum, so failing asylum generally forecloses withholding on the same facts, and (ii) pervasive violence in a country is generally insufficient for CAT (invoked later in the CAT discussion).

5) Nexus (“one central reason”) principles

  • Dallakoti v. Holder, 619 F.3d 1264, 1268 (10th Cir. 2010): Provided the limiting language that a protected ground cannot be “incidental, tangential, superficial, or subordinate,” and must play more than a minor role.
  • Orellana-Recinos v. Garland, 993 F.3d 851, 855 (10th Cir. 2021): Used to clarify mixed-motive analysis: even if motives are intertwined, the protected ground must still be a central reason.
  • Miguel-Pena v. Garland, 94 F.4th 1145, 1159-60 (10th Cir. 2024): Applied to reinforce that where the evidence shows gangs are driven by financial/recruitment motives, there is no nexus absent evidence of hostility independent of those motives; the court analogized petitioners’ evidence to a retaliation/financial motive rather than protected-ground persecution.
  • Vatulev v. Ashcroft, 354 F.3d 1207, 1209 (10th Cir. 2003): Cited for the baseline distinction between asylum-qualifying persecution and “acts of common criminality or personal hostility.” The panel invoked this to classify the initial attack (money demand) and the subsequent threat (personal retribution) as non-protected motives on this record.

6) CAT torture and acquiescence

  • Garcia-Botello v. Bondi, 168 F.4th 1245, 1257 (10th Cir. 2026): Provided the governing CAT standard (more likely than not to be tortured) and the acquiescence definition: prior awareness plus breach of legal duty to intervene, with awareness shown by actual knowledge or willful blindness. The panel used this to conclude that speculative police leak theories and general conditions evidence did not satisfy acquiescence.
  • Escobar-Hernandez v. Barr, 940 F.3d 1358, 1362 (10th Cir. 2019): Reinforced that generalized violence evidence rarely suffices to show an individualized likelihood of torture.

B. Legal Reasoning

1) Exhaustion enforced even without a government objection

Petitioners attempted to challenge the BIA’s interpretation of the withholding statute and its reliance on In re C-T-L-, 25 I. & N. Dec. 341, 343-48 (BIA 2010), but conceded they did not present the argument to the BIA. Although the government did not invoke 8 U.S.C. § 1252(d)(1), the court—citing Miguel-Pena v. Garland—exercised discretion to enforce exhaustion, declining to consider the argument “in the first instance.”

The practical rule emerging from this portion of the decision is procedural but consequential: in the Tenth Circuit, petitioners cannot rely on the government’s silence to preserve unexhausted issues; the court may police issue exhaustion sua sponte.

2) “Witnesses to crime who reported to police” lacked social distinction

Petitioners argued the BIA improperly required “ocular visibility” to satisfy social distinction. The panel rejected that characterization. It emphasized that the BIA focused on societal perception—whether Honduran society recognizes such report-filers as a distinct group—not whether the group is literally visible.

Two factual points carried the analysis:

  • Petitioners did not publicly assist law enforcement (e.g., testifying), and the record did not show that the public knew of, or had access to, their police report.
  • The existence of a witness protection program did not, on this record, establish that “people who file a police report” are socially recognized and specially protected as a group.

Importantly, the panel distinguished persecutor awareness from societal recognition: even if the gang inferred or knew a report was made, that does not establish social distinction under Rodas-Orellana v. Holder.

3) Nexus failed for “Honduran women” and imputed anti-gang political opinion

Applying the “one central reason” standard and mixed-motive principles, the court held substantial evidence supported the BIA’s conclusion that the attackers were motivated by money and retaliation for reporting—not by sex or political opinion as a central reason.

  • Sex (“Honduran women”): Petitioners’ testimony supported vulnerability and targeting as “women who lived alone,” but the court treated the record as supporting a criminal motive (money) rather than persecution “on account of” gender as a central reason, especially given the demand for money and threat contingent on not getting it.
  • Imputed political opinion: The court reasoned that filing a police report, by itself, did not show a political opinion was imputed beyond “opposition to being victims” of the crime; retaliation for reporting was characterized as personal retribution, not political persecution.

The panel relied on Vatulev v. Ashcroft to frame the underlying events as “common criminality or personal hostility,” and on Miguel-Pena v. Garland to emphasize the absence of evidence that the gang would target petitioners absent the financial/retaliatory motive.

4) CAT acquiescence was not shown

For CAT relief, the court held the record did not establish government acquiescence under Garcia-Botello v. Bondi. The key deficiency was evidentiary: Marquez-Cortez “speculated” police leaked the report, but there was no corroboration linking police to the threatening call. The court also endorsed the BIA’s view that lack of police resources does not itself equal acquiescence.

General evidence of violence against women and corruption in Honduras was treated as insufficiently particularized to petitioners’ likelihood of torture with state acquiescence, consistent with Escobar-Hernandez v. Barr.

C. Impact

  • Procedural impact (exhaustion): The decision underscores that issue exhaustion in immigration petitions is not merely a waivable defense; the Tenth Circuit may enforce exhaustion sua sponte. Practitioners should brief to the BIA any statutory-interpretation and deference challenges they might later raise in court, including challenges to specific BIA precedents like In re C-T-L-, 25 I. & N. Dec. 341, 343-48 (BIA 2010).
  • PSG litigation impact: The opinion reinforces a demanding evidentiary approach to “witness/reporting” PSGs: evidence that criminals found out about a report is not enough; applicants should expect to prove broader societal recognition (public knowledge, social labeling, legal or institutional recognition tied to the group, or other indicia of social perception).
  • Nexus framing in gang cases: The decision continues a line of Tenth Circuit authority treating extortion/robbery and retaliation as paradigmatic non-protected motives absent strong evidence that gender or political opinion is a central reason. Future applicants will likely need clearer proof (direct statements, pattern evidence, expert testimony tying the motive to the protected ground) to move beyond a “common criminality” characterization.
  • CAT evidentiary burden: The opinion signals that country reports describing widespread corruption and violence will not substitute for proof connecting officials to the applicant’s anticipated harm through knowledge/willful blindness plus breach of duty. Where leakage or collusion is alleged, corroboration becomes pivotal.

4. Complex Concepts Simplified

  • Particular Social Group (PSG): A protected “group” for asylum/withholding purposes. Under Tenth Circuit/BIA doctrine (as summarized via Rodas-Orellana v. Holder), the group must share an immutable trait, be clearly defined (particularity), and be recognized by society (social distinction).
  • Social distinction: Not literal visibility. The question is whether the society in question generally perceives the proposed group as a distinct class. The persecutor’s awareness alone does not necessarily show society-wide recognition.
  • Nexus / “one central reason”: The protected ground must be an important reason the persecutor targeted the applicant—not merely incidental. Mixed motives are allowed, but the protected ground cannot be minor or subordinate (see Dallakoti v. Holder and Orellana-Recinos v. Garland).
  • Imputed political opinion: A claim that the persecutor attributes a political belief to the applicant (even if the applicant does not hold it). Here, the court agreed with the BIA that reporting a crime did not, by itself, show the gang imputed a political stance beyond resistance to victimization.
  • CAT acquiescence: For CAT relief, it is not enough that a government is ineffective. The applicant must show officials would know (or be willfully blind) to the torture and fail to intervene—i.e., acquiesce (see Garcia-Botello v. Bondi).
  • Substantial evidence: A highly deferential appellate standard for facts: the court upholds the agency unless the record compels the opposite conclusion.
  • Issue exhaustion: Generally, you must raise arguments to the BIA before a court will review them. This case emphasizes the court may enforce that rule even if the government does not press it (citing Miguel-Pena v. Garland).

5. Conclusion

Marquez-Cortez v. Bondi affirms the denial of asylum, withholding, and CAT protection arising from gang-related threats in Honduras, primarily on evidentiary and doctrinal grounds: (i) the Tenth Circuit may enforce issue exhaustion sua sponte; (ii) “reporting to police” PSGs require proof of societal recognition, not merely persecutor awareness; (iii) nexus fails where the record supports financial motive and retaliation rather than protected-ground persecution as a central reason; and (iv) CAT requires more than generalized country violence and uncorroborated suspicions of police complicity—acquiescence must be shown under the knowledge/willful-blindness framework.

While labeled nonprecedential, the decision functions as a clear signal of how the Tenth Circuit expects applicants to build records in gang-violence cases: with careful issue preservation before the BIA and concrete, particularized evidence on social distinction, motive, and official acquiescence.