Serious Nonpolitical Crime Bar: Substantial-Evidence Review, Probable-Cause “Serious Reasons to Believe,” and No Duress Exception (Tenth Circuit)

1. Introduction

Case: Turcios-Ortiz v. Blanche, No. 25-9536 (10th Cir. May 19, 2026) (nonprecedential “Order and Judgment”).
Parties: Dania Patricia Turcios-Ortiz and her minor son M.D.Z.T. (petitioners) vs. the U.S. Attorney General (respondent).
Background: Petitioners, Honduran nationals, entered the United States unlawfully in March 2021. DHS charged them as removable under 8 U.S.C. § 1182(a)(6)(A)(i). Ms. Turcios-Ortiz sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

Core factual narrative: After her partner (and father of her children) was shot and became addicted to drugs, gang members allegedly forced Ms. Turcios-Ortiz to deliver drugs—two to three times per week for at least six months—to repay his debt, threatening her children if she refused. She later stopped, fled to the U.S. with one child, and claims the gang later targeted family members in Honduras.

Key issues on review:

  • Whether the “serious nonpolitical crime” bar in 8 U.S.C. § 1231(b)(3)(B)(iii) rendered her statutorily ineligible for withholding of removal, despite claimed coercion/duress.
  • Whether substantial evidence supported the denial of CAT protection, including findings about internal relocation and the likelihood of torture.
  • Whether a new appellate argument—that the IJ failed to apply the correct regulatory definition of “torture” under 8 C.F.R. § 1208.18(a)(1)—was exhausted.

2. Summary of the Opinion

The Tenth Circuit denied the petition for review. It upheld:

  • The agency’s application of the serious nonpolitical crime bar based on Ms. Turcios-Ortiz’s admissions that she knowingly transported drugs for a criminal organization.
  • The agency’s denial of CAT relief because the record substantially supported the conclusion she failed to prove it was more likely than not she would be tortured if removed.
  • The court also refused to consider an argument about the IJ using the wrong torture standard because it was unexhausted under 8 U.S.C. § 1252(d)(1).

Although the IJ relied in part on a State Department “Honduras 2023 Human Rights Report” that was missing from the administrative record, the court held the existing record still provided substantial evidence supporting the CAT denial and that remand would be futile.

3. Analysis

3.1. Precedents Cited

A. Standards of review and the scope of judicial review

  • Garland v. Ming Dai, 593 U.S. 357 (2021): Cited for the proposition that Congress “carefully circumscribed judicial review” of BIA decisions—framing the court’s restrained posture.
  • Xue v. Lynch, 846 F.3d 1099 (10th Cir. 2017): Used to restate the court’s conventional bifurcation—de novo for legal determinations and substantial evidence for factfinding.
  • Nasrallah v. Barr, 590 U.S. 573 (2020): Anchors the meaning and force of substantial-evidence review under 8 U.S.C. § 1252(b)(4)(B), emphasizing it is “highly deferential,” and situates CAT review within that framework.
  • Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir. 2006): Provides the Tenth Circuit’s method for reviewing short single-member BIA decisions under 8 C.F.R. § 1003.1(e)(5): the court reviews the BIA’s stated grounds but may consult the IJ decision to understand condensed reasoning, and will not affirm on IJ grounds not relied on by the BIA.

B. “Serious nonpolitical crime” bar: standard of review and “serious reasons to believe” = probable cause

The opinion’s most consequential doctrinal move is its first-time, circuit-level selection of a review standard for § 1231(b)(3)(B)(iii): it adopts the consensus view that the determination is primarily factual and reviewed for substantial evidence.

  • INS v. Elias-Zacarias, 502 U.S. 478 (1992): Cited by the government and used by the court in support of treating certain immigration determinations as factual and therefore subject to deferential review.
  • Barahona v. Garland, 993 F.3d 1024 (8th Cir. 2021): Quoted for case-by-case evaluation of serious nonpolitical crimes and reliance on Matter of E-A-.
  • Matter of E-A-, 26 I. & N. Dec. 1 (BIA 2012): Central for two points: (1) the case-by-case, facts-and-circumstances approach; and (2) the interpretation of “serious reasons for believing” as equivalent to probable cause.
  • Villalobos Sura v. Garland, 8 F.4th 1161 (9th Cir. 2021); Herrera-Elias v. Garland, 96 F.4th 1040 (8th Cir. 2024); Morgan v. Garland, 120 F.4th 913 (1st Cir. 2024); Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010); Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir.), as amended (Apr. 12, 2004): Cited to show a broad circuit consensus that (a) the bar determination is factual/substantial-evidence reviewed and (b) “serious reasons to believe” may be implemented through a probable-cause lens.
  • Go v. Holder, 640 F.3d 1047 (9th Cir. 2011); Zheng v. Holder, 698 F.3d 710 (8th Cir. 2012): Used to illustrate that a petitioner’s own sworn admissions can satisfy the “serious reasons to believe” (probable cause) standard.
  • Kaley v. United States, 571 U.S. 320 (2014); United States v. Johnson, 43 F.4th 1100 (10th Cir. 2022); Wolford v. Lasater, 78 F.3d 484 (10th Cir. 1996): Provide the court’s articulation of probable cause as “not a high bar,” and as more than suspicion but less than a preponderance.

C. No duress exception: reliance on agency interpretation post-Loper Bright

  • Matter of D-G-B-L-, 29 I. & N. Dec. 392 (BIA 2026): Highly influential. Although addressing the asylum bar in 8 U.S.C. § 1158(b)(2)(A)(iii), the BIA held “the serious nonpolitical crime bar to asylum and withholding of removal does not include a duress exception.” The Tenth Circuit found this reasoning “instructive,” emphasizing the statutory text’s lack of a voluntariness requirement.
  • Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024): Cited to contextualize how courts treat agency statutory interpretations after the demise of Chevron-style deference—here, the court treats the BIA’s reading as persuasive because it aligns with the court’s own reading of the statute’s plain text.
  • United States v. Jurado-Lopez, 338 F. Supp. 2d 246 (D. Mass. 2004); Padilla v. Kentucky, 559 U.S. 356 (2010): The court distinguished criminal-law duress and sentencing mitigation from immigration statutory bars, rejecting the attempt to import a criminal-law duress framework into § 1231(b)(3)(B)(iii).
  • Harsco Corp. v. Renner, 475 F.3d 1179 (10th Cir. 2007); United States v. Munoz, 812 F.3d 809 (10th Cir. 2016): Used for waiver principles where arguments are inadequately developed.

D. CAT merits, administrative record limits, and remand doctrines

  • Matter of H-L-S-A-, 28 I. & N. Dec. 228 (BIA 2021): Cited for the “chain of events” approach to CAT—each link must be more likely than not.
  • Garcia-Botello v. Bondi, 168 F.4th 1245 (10th Cir. 2026): Cited for CAT relief being mandatory if likelihood is proven.
  • Igiebor v. Barr, 981 F.3d 1123 (10th Cir. 2020); Neri-Garcia v. Holder, 696 F.3d 1003 (10th Cir. 2012): Frame substantial-evidence review for CAT denials and the “record compels” threshold for reversal.
  • SEC v. Chenery Corp., 318 U.S. 80 (1943); Elzour v. Ashcroft, 378 F.3d 1143 (10th Cir. 2004): Applied to reject an argument that the court was supplying new grounds to affirm; the court said it relied on the agency’s stated reasoning rather than searching for alternative bases.
  • Zapata-Chacon v. Garland, 51 F.4th 1191 (10th Cir. 2022); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969): Used to justify declining remand where remand would be futile/idle.

E. Exhaustion of issues before the BIA

  • Garcia-Carbajal v. Holder, 625 F.3d 1233 (10th Cir. 2010), abrogated in part on other grounds by Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Cited for the principle that the agency must have the opportunity to pass on a challenger’s argument.
  • Miguel-Pena v. Garland, 94 F.4th 1145 (10th Cir. 2024): Reinforces issue exhaustion as both statutory and a fundamental administrative-law principle; the court declines to consider unexhausted issues.

3.2. Legal Reasoning

A. Withholding of removal barred by serious nonpolitical crime

The court’s reasoning proceeds in three steps:

  1. Standard of review (newly clarified in the Tenth Circuit): Whether there are “serious reasons to believe” an applicant “committed a serious nonpolitical crime” is treated as a primarily factual determination reviewed for substantial evidence.
  2. Applying “serious reasons to believe” as probable cause: Consistent with Matter of E-A- and multiple circuits, the IJ applied a probable-cause-equivalent threshold. The court emphasized probable cause is “not a high bar,” and that an applicant’s own admissions can satisfy it.
  3. Duress rejected as a statutory matter: The court found no textual basis for a duress exception in § 1231(b)(3)(B)(iii) and noted the BIA’s aligned view in Matter of D-G-B-L-. Because the bar is mandatory on its face, the court declined to create an equitable exception.

B. CAT denial affirmed despite missing country report

The court acknowledged the State Department “Honduras 2023 Human Rights Report” was missing from the administrative record, and reaffirmed that it must decide the petition “only on the administrative record” under 8 U.S.C. § 1252(b)(4)(A). Still, it held substantial evidence supported the denial because:

  • Ms. Turcios-Ortiz did not know which gang she worked for or the gang’s geographic reach—undercutting a relocation-impossible theory.
  • She remained in Honduras for approximately three months after refusing deliveries and was threatened but not physically harmed—supporting the agency’s view that the feared torture outcome was not shown as more likely than not.
  • The post-departure harm to relatives did not compel the conclusion that she would more likely than not be tortured upon return, especially given the deferential substantial-evidence standard.
  • She did not meaningfully develop, with record citations, her claim that gangs are so “widespread and interconnected” that relocation cannot mitigate risk—an omission the BIA had already flagged.

C. “Wrong legal standard for torture” argument rejected as unexhausted

Although Ms. Turcios-Ortiz cited 8 C.F.R. § 1208.18(a)(1) to the BIA, the court held she did not argue to the BIA that the IJ failed to apply that standard. Under 8 U.S.C. § 1252(d)(1) and Tenth Circuit exhaustion doctrine, the court declined review of that new legal-theory attack.

3.3. Impact

  • Tenth Circuit alignment on review standards: The decision expressly joins other circuits in treating the § 1231(b)(3)(B)(iii) serious-nonpolitical-crime determination as a factual finding reviewed for substantial evidence. Practically, this heightens the importance of developing record facts before the IJ/BIA and lowers the odds of appellate reversal absent a “record compels” showing.
  • Duress arguments face a structural barrier: By treating the bar as textually mandatory and endorsing Matter of D-G-B-L- as persuasive, the opinion signals that “coerced participation” in serious nonpolitical crimes (including drug trafficking) will rarely avoid the statutory bar—at least absent legislative change or a higher-court reinterpretation.
  • CAT litigation: record discipline and exhaustion are decisive: The opinion underscores that (a) courts are confined to the administrative record, (b) generalized country-conditions assertions without targeted record support are vulnerable, and (c) technical legal-standard critiques must be clearly raised to the BIA to preserve them.
  • Remand is not automatic for record irregularities: Even where evidence referenced by the IJ is missing on petition for review, the court may affirm if other record evidence substantially supports the denial and remand would be futile—limiting the remedial leverage of “missing exhibit” problems.

4. Complex Concepts Simplified

  • Withholding of removal: A mandatory form of protection if the applicant proves a protected-ground threat to life or freedom, but it is unavailable if certain statutory bars apply—including the “serious nonpolitical crime” bar.
  • Serious nonpolitical crime bar (8 U.S.C. § 1231(b)(3)(B)(iii)): If there are “serious reasons to believe” a person committed a serious nonpolitical crime before arriving in the U.S., the person cannot receive withholding—regardless of how strong their fear of persecution might be.
  • “Serious reasons to believe” = probable cause: This is a relatively low evidentiary threshold—more than a hunch, less than “more likely than not.” Admissions alone can satisfy it.
  • Substantial evidence review: The court does not decide what it thinks is most likely; it asks whether a reasonable adjudicator could reach the agency’s conclusion. Reversal happens only if the record compels the opposite conclusion.
  • CAT protection: Requires proving it is more likely than not the applicant will be tortured, and that torture would occur with government “consent or acquiescence” (including willful blindness) as defined in 8 C.F.R. § 1208.18(a)(1).
  • Internal relocation: If an applicant can avoid likely torture by living in another part of the country, that weighs against CAT relief.
  • Issue exhaustion (8 U.S.C. § 1252(d)(1)): To argue something in the court of appeals, the applicant must first present that issue with sufficient clarity to the BIA; merely citing a regulation is not the same as raising a specific legal-error claim.

5. Conclusion

Turcios-Ortiz v. Blanche is a tightly reasoned, deferential review decision with outsized practical significance in three areas: (1) it places the Tenth Circuit on record that § 1231(b)(3)(B)(iii) serious-nonpolitical-crime determinations are reviewed for substantial evidence; (2) it rejects a duress-based escape from that bar, aligning with the BIA’s recent position in Matter of D-G-B-L- and the statute’s plain text; and (3) it reinforces that CAT claims live or die on well-developed, record-cited proof and properly exhausted legal arguments.

Even as a nonprecedential disposition, the opinion consolidates persuasive authority that coerced drug-transport activity can still trigger mandatory statutory ineligibility for withholding, and that appellate courts will not rescue underdeveloped CAT and exhaustion deficiencies under the demanding substantial-evidence and record-only constraints of immigration judicial review.