Reaffirming Firm Resettlement for Third‑Country Permanent Residents and the “Threats Rarely Equal Persecution” Principle: Perez‑Mavarez v. Garland (10th Cir. 2025)

Introduction

This commentary analyzes the Tenth Circuit’s non‑precedential but persuasive Order and Judgment in Perez‑Mavarez v. Garland, No. 24‑9520 (10th Cir. Mar. 31, 2025), denying a petition for review of the Board of Immigration Appeals’ decision that affirmed an immigration judge’s denial of asylum and withholding of removal. The case concerns a Venezuelan national who obtained permanent residency in Ecuador and later entered the United States without admission or parole in 2021. He sought asylum and withholding based on threats and a beating in Venezuela and subsequent threats and political harassment in Ecuador. His minor daughter was a derivative beneficiary and raised no distinct arguments.

The central issues were (1) whether the “firm resettlement” bar rendered the petitioner ineligible for asylum from Venezuela due to his permanent residency and associated rights in Ecuador, (2) whether the harms suffered in Ecuador and Venezuela rose to the level of “persecution,” (3) whether he demonstrated a well‑founded fear of future persecution in Ecuador, (4) whether he met the higher burden for withholding of removal, and (5) whether certain arguments were barred for failure to exhaust before the BIA.

Summary of the Opinion

The Tenth Circuit denied the petition for review.
Asylum from Venezuela was barred by “firm resettlement” because the petitioner held renewable permanent residency in Ecuador, enjoyed employment and housing, traveled freely, and received police protection; he failed to show an exception to the bar based on government-imposed restrictions.
Asylum from Ecuador was denied because unfulfilled threats and disruptions of meetings did not cumulatively rise to “persecution,” and the petitioner failed to establish a well‑founded fear of future persecution, particularly given regime change and evidence that similarly situated individuals remained unharmed.
Withholding of removal failed as to both countries: for Venezuela, threats and a single beating did not compel a finding of past persecution; for Ecuador, failure to meet the asylum standard necessarily defeated withholding.
Issue exhaustion barred new arguments: the claim that the IJ applied the wrong version of 8 C.F.R. § 1208.15 (firm‑resettlement regulation) and a claim that Correa supporters impeded his residency process in Ecuador were not raised to the BIA and therefore were not considered.
The court applied de novo review to legal questions and substantial‑evidence review to factual findings, reiterating that the agency’s findings are conclusive unless any reasonable adjudicator would be compelled to conclude otherwise.

Analysis

Precedents Cited and Their Influence

Matumona v. Barr, 945 F.3d 1294 (10th Cir. 2019): Cited for both the firm‑resettlement framework and the notion that “only rarely do threats constitute actual persecution.” The court relied on Matumona to sustain the IJ’s finding that the petitioner’s Ecuadorian residency, travel freedom, and access to work and housing signaled firm resettlement, shifting the burden to the petitioner to show an exception—which he did not carry. Matumona also informed the persecution analysis by emphasizing the high threshold for threats to qualify as persecution.
Rodas-Orellana v. Holder, 780 F.3d 982 (10th Cir. 2015): Provided the general standards for asylum and withholding, including that withholding demands a “clear probability” of persecution, a higher burden than asylum. Rodas-Orellana also supports the proposition that failure to meet the asylum standard typically defeats withholding.
Ritonga v. Holder, 633 F.3d 971 (10th Cir. 2011): Quoted for the definition of persecution as infliction of suffering or harm amounting to more than mere restrictions or threats to life and liberty.
Zhi Wei Pang v. Holder, 665 F.3d 1226 (10th Cir. 2012): Reiterated that persecution is an “extreme concept,” reinforcing that the disruptions and unfulfilled threats in Ecuador fell short.
Tulengkey v. Gonzales, 425 F.3d 1277 (10th Cir. 2005): Upheld a no‑persecution finding despite robbery, sexual assault (fondling), minor head injury, and witnessing violence, underscoring that the petitioner’s experiences were not compelled to be deemed persecution.
Xue v. Lynch, 846 F.3d 1099 (10th Cir. 2017): Supported the conclusion that an assault and a short detention do not necessarily compel a finding of persecution—analogous to the single beating in Venezuela here.
Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir. 2007), abrogated on other grounds by Santos‑Zacaria v. Garland: Demonstrated that even multiple beatings and injuries may, in some circumstances, fail to compel a persecution finding under substantial‑evidence review.
Miguel‑Pena v. Garland, 94 F.4th 1145 (10th Cir.), cert. denied, 2024 WL 4743083 (U.S. Nov. 12, 2024): Framed issue exhaustion as a mandatory claim‑processing rule enforced when the government timely objects. The court applied Miguel‑Pena to reject unexhausted challenges to the version of § 1208.15 and to the asserted interference with the Ecuadorian residency process.
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): Cited for the principle that a noncitizen must present the same specific legal theory to the BIA before advancing it in court. The opinion reflects post‑Santos‑Zacaria treatment of exhaustion as non‑jurisdictional but mandatory upon timely government invocation.
Dallakoti v. Holder, 619 F.3d 1264 (10th Cir. 2010): Clarified the review of both the BIA’s order and adopted components of the IJ’s decision.

Legal Reasoning

1) Firm Resettlement Bar to Asylum from Venezuela

The court affirmed the agency’s conclusion that the petitioner was ineligible for asylum from Venezuela because he had “firmly resettled” in Ecuador before his U.S. entry. The IJ applied 8 C.F.R. § 1208.15 and assessed regulatory factors, including:

Renewable legal status conferring residence and work authorization in Ecuador (temporary residency in 2017 followed by permanent residency in 2020).
Ability to obtain employment and housing.
Freedom to travel to and from Ecuador, including permitted absences.
Enjoyment of rights and privileges associated with Ecuadorian residency.

To avoid the bar, the petitioner had to show, by a preponderance of the evidence, that his case fell within an exception—relevant here, that the “conditions of his residence” were “substantially and consciously restricted by the authority of the country of refuge.” The record showed the opposite: when political supporters disrupted meetings, Ecuadorian police responded to protect attendees. The lack of evidence of state-imposed restrictions—and the presence of state protection—defeated the exception. Substantial evidence supported the conclusion that harassment by private actors with no official complicity did not amount to “restrictions by the authority” of Ecuador.

The petitioner also argued on appeal that the IJ and BIA used the wrong (2020) version of § 1208.15 given an update on January 11, 2021. The court refused to reach that issue because it was not raised before the BIA, and the government invoked exhaustion. The panel thus enforced issue exhaustion as a mandatory claim‑processing rule.

2) Asylum from Ecuador: No Past Persecution; No Well‑Founded Fear

The IJ and BIA concluded that unfulfilled threats and disruptions of meetings—although offensive—did not amount to “persecution,” an “extreme concept” requiring more than harassment. The agency further found insufficient evidence that dissidents targeted the petitioner specifically, noting he was never physically harmed in Ecuador and did not even file a police report there. The court, applying substantial‑evidence review, held the record did not compel a contrary conclusion.

For future fear, the agency relied on two key points: (i) the political party the petitioner opposed (associated with then‑President Correa) was no longer in power, and (ii) similarly situated individuals remained in Ecuador unharmed. This comparative and changed‑conditions analysis undercut any “well‑founded fear” showing, and the court sustained it.

A related claim—that Correa supporters impeded the petitioner’s path to permanent residency—was deemed unexhausted because it was not presented to the BIA.

3) Withholding of Removal

As to Venezuela, the record did not compel a finding of persecution based on threats and a single beating, especially in light of Tenth Circuit precedents where more severe harms still supported no‑persecution findings under deferential review (Xue; Sidabutar; Tulengkey; Matumona). As to Ecuador, failure to meet the lower asylum burden necessarily foreclosed withholding (Rodas‑Orellana).

4) Standards of Review and Procedural Posture

Legal conclusions: reviewed de novo.
Factual findings: reviewed for substantial evidence; they are conclusive unless the record compels a contrary conclusion, 8 U.S.C. § 1252(b)(4)(B).
Scope of review: both the BIA’s order and portions of the IJ’s decision it adopted were reviewed (Dallakoti).
Exhaustion: treated as a mandatory claim‑processing rule enforced upon timely government objection (Miguel‑Pena), post‑Santos‑Zacaria.
CAT: claims were waived by failure to brief them in the opening brief.

Impact and Forward‑Looking Implications

Third‑Country Residency as Firm Resettlement: This decision underscores that permanent (or renewable long‑term) residence in a third country, accompanied by the ability to live, work, travel, and exercise ordinary civil privileges, is strong evidence of firm resettlement. Applicants must produce concrete evidence of state‑imposed restrictions to invoke § 1208.15(b)’s exception—private harassment alone does not suffice, particularly where police offer protection.
Non‑State Harassment vs. Persecution: The court reiterates that unfulfilled threats, sporadic disruptions, and even single incidents of harm or brief detentions do not necessarily compel a finding of persecution under the substantial‑evidence standard. Litigants must marshal evidence of sustained, severe harm or government complicity/unwillingness to protect.
Changed Country Conditions and Comparative Evidence: Regime change and the safety of similarly situated individuals remain powerful evidentiary tools for the government to defeat claims of a well‑founded fear. Applicants should address such evidence head‑on with individualized risk proof.
Issue Exhaustion After Santos‑Zacaria: Although exhaustion is no longer jurisdictional, the Tenth Circuit continues to enforce it as a mandatory claim‑processing rule when the government objects. Regulatory‑version challenges and new factual/legal theories must be raised to the BIA to preserve them for judicial review.
Practical Effects for Venezuelan Nationals in the Region: Many Venezuelans obtained status in countries like Ecuador, Peru, and Chile. This ruling signals that such status—especially with demonstrable rights and police protection—will likely trigger the firm‑resettlement bar absent proof of government‑imposed constraints on residence.
Practice Pointers:
- Build a robust record on the nature and scope of rights in the third country: work authorization, ability to own property, access to education and health care, travel documents, and renewal terms.
- To fit the § 1208.15(b) exception, document state action or deliberate inaction restricting residence (e.g., refusal to issue documents without legal basis, denial of services to residents, police complicity) rather than private threats alone.
- Preserve all regulatory and legal arguments before the BIA, including challenges to which version of a regulation applies.
- For persecution claims predicated on threats and isolated harms, provide evidence showing specificity, imminence, and severity, and explain why police response was inadequate or unavailable.
- For future fear, grapple with changed political landscapes and present individualized, current risk assessments.

Complex Concepts Simplified

Asylum vs. Withholding of Removal:
- Asylum requires showing past persecution or a “well‑founded fear” (a reasonable possibility) of persecution on account of a protected ground.
- Withholding requires a “clear probability” (more likely than not) of persecution—this is a higher standard. Failing asylum usually defeats withholding.
Persecution: A severe level of harm. Harassment, unfulfilled threats, and isolated incidents often are not enough, especially if the government responds to protect the victim.
Firm Resettlement: If, before coming to the United States, you settled in another country that offered permanent or renewable long‑term residency with typical rights and privileges, you’re usually ineligible for asylum from your home country. Exceptions exist, but they require proof that the host government itself substantially restricted your residence or that your stay was only a brief, necessary stopover with no meaningful ties.
Substantial‑Evidence Review: A very deferential standard. The appellate court will not disturb the agency’s factual findings unless the evidence compels a different result.
Issue Exhaustion: You generally must present your specific arguments to the BIA first. Courts will not consider new issues raised for the first time on appeal when the government invokes exhaustion.
Derivative Beneficiary: A family member (such as a minor child) who can receive the benefit of a principal applicant’s asylum application but typically does not have independent claims unless separately asserted.

Conclusion

Perez‑Mavarez reinforces three pillars of contemporary asylum jurisprudence in the Tenth Circuit: (1) permanent or renewable residence in a third country—with concrete rights, freedom of movement, and evidence of police protection—triggers the firm‑resettlement bar absent proof of state-imposed restrictions; (2) threats and episodic harassment rarely compel a finding of “persecution,” and changes in political power plus the safety of comparable individuals can defeat a well‑founded fear; and (3) issue exhaustion remains a robust, enforced prerequisite to judicial review of arguments not first presented to the BIA.

Although non‑precedential, the decision offers persuasive guidance to litigants and adjudicators handling firm‑resettlement disputes and evaluating the sufficiency of harm. For applicants who previously established residence in third countries, the opinion underscores the importance of developing a meticulous record on governmental restrictions and protection, preserving all regulatory arguments at the agency level, and substantiating both past harm and future risk with individualized, current evidence.