Ortiz v. Blanche: Reaffirming the “Futile or Dangerous to Report” Requirement for Unreported Private-Actor Persecution in Asylum Cases

1. Introduction

In Ortiz v. Blanche (10th Cir. Sept. 16, 2026), Alix Simbaqueba Ortiz, a Colombian national and former public health worker, petitioned for review of the Board of Immigration Appeals’ (BIA) affirmance of an immigration judge’s (IJ) denial of asylum, withholding of removal, and Convention Against Torture (CAT) protection. Her husband and two minor daughters were derivative beneficiaries of her asylum application.

Ortiz alleged harm by FARC dissidents across three incidents (2014 and two in May 2022) connected to her work administering vaccines. The central issues were whether her experiences rose to persecution, whether any persecution was attributable to the Colombian government’s inability or unwillingness to control private persecutors, and whether she exhausted certain arguments before the agency.

2. Summary of the Opinion

The Tenth Circuit denied the petition for review, holding that substantial evidence supported the agency’s determination that Ortiz failed to establish that the Colombian government was unable or unwilling to protect her from private persecution by FARC dissidents. Because that finding was dispositive of asylum, the court did not require the BIA to address other elements (the proposed particular social groups, nexus, or internal relocation).

The court also rejected (or declined to reach) several appellate arguments: it concluded the BIA applied the correct cumulative-harm framework for persecution; it declined to consider unexhausted claims regarding a presumption of future persecution and an asserted CAT legal-standard error; and it affirmed that failure to meet the asylum burden necessarily defeated withholding of removal on the same facts.

3. Analysis

3.1. Precedents Cited

  • Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012): Cited for the baseline asylum framework—an applicant must prove refugee status by a preponderance of the evidence. The court used it as part of the standard “elements” backdrop rather than as a dispute-specific comparator.
  • Rodas-Orellana v. Holder, 780 F.3d 982 (10th Cir. 2015): Provided key definitional and burden contrasts: the “refugee” definition and the higher “clear probability” standard for withholding of removal. The panel relied on it to dispose of withholding once asylum failed.
  • Ritonga v. Holder, 633 F.3d 971 (10th Cir. 2011): Central to two doctrinal points. First, persecution must entail more than threats/restrictions and may be inflicted by non-governmental actors the government cannot or will not control. Second, the court reiterated Ritonga’s instruction that incidents must be assessed collectively (cumulative-harm analysis). Ortiz’s challenge on this point failed because the BIA expressly aggregated the incidents.
  • Singh v. Bondi, 130 F.4th 848 (10th Cir. 2025): The most practically important citation in this case. The panel drew from Singh the modern Tenth Circuit articulation of private persecution and, crucially, the evidentiary rule that when an applicant did not report private persecution, she must show reporting would have been “futile or dangerous.” This controlled the outcome because Ortiz reported only the 2014 event (to which police responded) and did not report the 2022 incidents.
  • Miguel-Pena v. Garland, 94 F.4th 1145 (10th Cir. 2024): Used for multiple review principles: de novo review of whether the BIA applied the correct legal framework, the nexus concept, and the court’s refusal to decide unexhausted issues “in the first instance.”
  • Dallakoti v. Holder, 619 F.3d 1264 (10th Cir. 2010): Supplied standards for reviewing a brief single-member BIA order and the bifurcated review regime (legal questions de novo; factual findings for substantial evidence).
  • INS v. Bagamasbad, 429 U.S. 24 (1976) (per curiam): Supported the proposition that agencies are not required to decide issues unnecessary to the result—here, the BIA could stop at the “unable or unwilling” element without reaching PSG viability, nexus, or relocation.
  • Berdiev v. Garland, 13 F.4th 1125 (10th Cir. 2021), and SEC v. Chenery Corp., 332 U.S. 194 (1947): Reinforced the Chenery principle: appellate courts review agency decisions on the grounds the agency invoked and should not search for alternative affirmance rationales not relied upon by the BIA.
  • Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir. 2006): Cited via Berdiev to underscore limits on appellate courts supplying their own grounds to affirm.
  • Garcia-Carbajal v. Holder, 625 F.3d 1233 (10th Cir. 2010), abrogated on other grounds by Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Provided the Tenth Circuit’s exhaustion specificity requirement—an argument is exhausted only if the petitioner presented the same specific legal theory to the BIA. The panel applied that framework to reject unexhausted arguments.
  • Garcia-Botello v. Bondi, 168 F.4th 1245 (10th Cir. 2026): Cited for an additional, recent Tenth Circuit statement on exhaustion (notably in a footnote), supporting the court’s refusal to reach arguments not presented to the BIA.
  • Htun v. Lynch, 818 F.3d 1111 (10th Cir. 2016): Used to confirm CAT determinations involve factual findings reviewed for substantial evidence.

3.2. Legal Reasoning

A. Cumulative-harm assessment of “persecution”

Ortiz argued the IJ and BIA used the wrong legal standard by not considering her harms cumulatively. The court treated this as a legal-framework question (reviewed de novo) and held the BIA applied the correct rule: it acknowledged the IJ did not “explicitly” state cumulative consideration but then evaluated the three incidents “in the aggregate” and concluded they did not rise to persecution. The panel further noted the IJ in fact cited the aggregate-incidents rule and discussed all three events, undermining the claimed error.

B. Private persecution and the “unable or unwilling” requirement

The dispositive reasoning concerned state responsibility for harm committed by private actors (FARC dissidents). Even accepting serious harm and credible testimony, asylum requires showing persecution by the government or by non-government actors the government is unwilling or unable to control.

The court focused on two evidentiary anchors:

  • Specific responsiveness to a report: When Ortiz reported the 2014 incident, police “responded immediately and investigated,” though the perpetrators had left. She then worked for roughly eight years without further harm. This supported an inference that state protection mechanisms could be engaged.
  • Non-reporting of later incidents: Ortiz did not report the May 2022 assaults and threats. Under Singh v. Bondi, when an applicant relies on how authorities would respond to unreported persecution, she must show that reporting would have been “futile or dangerous.” The panel held Ortiz did not point to evidence that police failed to investigate reported FARC activity or otherwise justify non-reporting under the futility/danger standard.

Applying substantial-evidence review, the question was not whether another factfinder could find inability/unwillingness, but whether the record compelled that conclusion. The court held it did not.

C. Agency issue-selection and Chenery limits

Ortiz criticized the BIA for declining to address PSG viability, nexus, and relocation. The panel held the BIA’s “unable or unwilling” finding was dispositive and cited INS v. Bagamasbad for the proposition that agencies need not decide unnecessary issues. The court also cited Berdiev v. Garland and SEC v. Chenery Corp. to emphasize that judicial review is limited to the grounds the agency actually invoked; the court would not rummage for alternative bases to affirm or to require the BIA to address issues the BIA reasonably found unnecessary.

D. Exhaustion as a gatekeeper

Two arguments failed on exhaustion:

  • Presumption of future persecution: The court agreed with the government that Ortiz did not raise this before the BIA. Under Garcia-Carbajal v. Holder (as informed by Santos-Zacaria v. Garland) and Garcia-Botello v. Bondi, exhaustion requires presenting the same specific legal theory to the BIA.
  • CAT legal-standard challenge: The court again held the argument was not raised to the BIA and declined to review it.

E. Withholding and CAT

For withholding, the court applied Rodas-Orellana v. Holder: because withholding requires a higher burden than asylum, failing asylum on the same factual predicate foreclosed withholding.

For CAT, the panel stated that—even aside from exhaustion—the record did not compel a finding of likely torture with official acquiescence. The court cited Htun v. Lynch to situate CAT determinations as fact-intensive and reviewed for substantial evidence.

3.3. Impact

Although designated a nonprecedential “Order and Judgment,” the decision is significant as a practical reaffirmation of several recurring, outcome-determinative doctrines in the Tenth Circuit:

  • Non-reporting is not neutral evidence: Where persecution is by private actors, failing to report key incidents will often be fatal unless the applicant develops record evidence that reporting would have been “futile or dangerous” (the rule drawn from Singh v. Bondi and applied here).
  • Country conditions evidence must connect to the applicant’s proof burden: General evidence of insurgent presence and state struggle did not suffice where the record also supported findings that the government investigates and prosecutes reported FARC activity.
  • Issue triage at the agency level is permissible: The BIA can deny relief on a dispositive element without opining on PSG/nexus/relocation (INS v. Bagamasbad), which may narrow what petitioners can challenge on review.
  • Exhaustion remains a strict filter: Petitioners must present the same specific legal theories to the BIA or risk forfeiture on petition for review (as applied via Garcia-Carbajal v. Holder and Garcia-Botello v. Bondi).

4. Complex Concepts Simplified

  • Asylum vs. withholding of removal: Asylum is discretionary and requires showing refugee status (including a well-founded fear). Withholding is mandatory if proved but requires a higher likelihood (“clear probability”) of persecution.
  • Persecution (vs. harm): Not every assault, threat, or crime is “persecution” in the legal sense. Courts assess severity, pattern, and consequences, and must consider incidents together (cumulative harm).
  • Private persecution and state protection: If a gang or militia harms the applicant, the applicant must show the government cannot or will not control that group. Evidence often includes police reports, responses, and credible reasons why reporting would not help or would endanger the victim.
  • “Futile or dangerous to report”: If the applicant never asked authorities for help, she must generally prove that asking would have been pointless or would have created additional danger—typically through country reports, expert testimony, prior experiences of similarly situated victims, or evidence of corruption/collusion.
  • Nexus: Even if persecution occurred, asylum usually requires proof it happened “on account of” a protected ground (e.g., political opinion or membership in a particular social group).
  • CAT “acquiescence”: CAT relief requires likely torture with government involvement or consent/turning-a-blind-eye by officials; it does not require a protected-ground motive.
  • Substantial evidence review: The court does not reweigh facts; it asks whether the record compels the opposite conclusion.
  • Exhaustion: Arguments generally must be raised to the BIA first; courts usually will not consider new theories on appeal.

5. Conclusion

Ortiz v. Blanche denied relief primarily because substantial evidence supported the agency’s determination that Colombia was not shown to be unable or unwilling to protect Ortiz from private FARC dissidents—especially where police investigated the one incident she reported and she did not demonstrate that reporting later incidents would have been futile or dangerous under Singh v. Bondi. The decision also underscores two procedural realities: the BIA may resolve cases on a single dispositive element under INS v. Bagamasbad, and petitioners must exhaust specific legal theories before the BIA or risk forfeiture on review under Garcia-Carbajal v. Holder (as informed by Santos-Zacaria v. Garland) and Garcia-Botello v. Bondi.