Picon-Diaz v. Bondi, No. 25-9530 (2026)

Case details
Full caption
Martha Liliana Picon-Diaz et al. v. Pamela J. Bondi
Country
United States
Jurisdiction
Federal
Decided
2026
Disposition
Petition Granted
Panel
Carson (Circuit Judge); Baldock (Circuit Judge); Kelly (Circuit Judge)
MARTHA LILIANA PICON-DIAZ; S.Y.A P.; D.S.A.P.;..., Not Reported in Fed.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 412348Only the Westlaw citation is currently available.United States Court of Appeals, Tenth Circuit.MARTHA LILIANA PICON-DIAZ; S.Y.AP.; D.S.A.P.; H.S.A.P.; HERNANDOJOSE ANAYA-CAUSIL, Petitioners,v.PAMELA J. BONDI, United StatesAttorney General, Respondent.No. 25-9530|February 13, 2026(Petition for Review)Before CARSON, BALDOCK, and KELLY, Circuit Judges.ORDER AND JUDGMENT*Paul J. Kelly, Jr. Circuit Judge*1 Petitioners seek review of a final removal order theBoard of Immigration Appeals (“BIA”) issued upholding animmigration judge's (“IJ”) denial of their applications forasylum and withholding of removal.1 Exercising jurisdictionunder 8 U.S.C. § 1252(a), we deny their petition for review.We also warn Petitioners’ counsel about his citation to andreliance on what appears to be a fabricated Tenth Circuit case.I. BACKGROUNDPetitioners are a family of five: Martha Picon-Diaz, herhusband Hernando Anaya-Causil, and their three minorchildren. Petitioners are citizens of Colombia who enteredthe United States in 2023. The Department of HomelandSecurity issued them notices to appear, charging them withbeing present in the United States without being admitted orparoled, or having arrived in the United States at any timeor place other than as designated by the Attorney General, inviolation of 8 U.S.C. § 1182(a)(6)(A)(i).An IJ sustained the charges, and Petitioners applied forasylum and withholding of removal. They appeared for ahearing before the IJ pro se. Martha and Hernando identifiedfour reasons they fear returning to Colombia. First, in 2020,Hernando's uncle, Jose, who owned a store, was shot bymembers of an illicit or illegal group because he stoppedpaying them extortion. Jose continues to receive threats thatif he does not pay the extortion, he and his family willsee consequences, so he continues to pay. Second, in early2022, a young man in Petitioners’ neighborhood named Titoand another young neighborhood kid, who were using drugsand stealing, threatened their oldest child, once with a knifeand several times verbally, because Tito did not want tosee the child out on the streets. Third, Martha's brother waskidnapped for one day and robbed of his money. He came tothe United States in 2024 because the kidnappers continuedto bother him. And fourth, guerrillas try to recruit childrenfor combat, illicit groups rob people, and a drug cartel triesto force children to sell drugs, making the entire country adangerous place for Petitioners to live. Hernando also testifiedthat he does not vote because he does not want problemswith groups against whom he might vote, and Martha testifiedabout the same fear but said she had voted against the currentpresident.The IJ found Petitioners’ testimony credible but denied relief.Regarding asylum, the IJ determined that Petitioners hadnot shown past persecution because the threats to the sonwere not severe enough to qualify as persecution, Marthaand Hernando had not been threatened, and none of thePetitioners had been harmed. The IJ also determined thatPetitioners failed to demonstrate a nexus between their fearof returning to Colombia and a statutorily protected ground—“race, religion, nationality, membership in a particularsocial group, or political opinion,” 8 U.S.C. § 1101(a)(42)).The IJ found that the threats to the son were because “thecriminal element in their neighborhood” wanted him to “stayout of the way,” and what had happened to the uncle was“based on failed extortion demands and not on account ofany identified group or protected ground that the [IJ could]decipher.” R. vol. 1 at 49. The IJ found that the testimonyabout voting did not amount to a political opinion, but evenif it did, there was no evidence “that anything would happenon account of” it. Id.*2 Because the requisite nexus was lacking, the IJ concludedthat Petitioners could not establish either past persecutionor a well-founded fear of future persecution. The IJ furtherconcluded that because Petitioners could not make theshowing required for asylum, they necessarily could not meetthe higher standard required for withholding of removal.
MARTHA LILIANA PICON-DIAZ; S.Y.A P.; D.S.A.P.;..., Not Reported in Fed.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.2Petitioners obtained counsel and appealed to the BIA. TheBIA upheld the IJ's lack-of-nexus finding because the IJhad permissibly found that the threats to the son were onaccount of a “criminal element” and the threats to the uncle“were based on failed extortion demands.” Id. at 4–5 (internalquotation marks omitted). The BIA rejected Petitioners’ claimthat they were “the ‘family of a primary target of a criminalorganization’ and this was ‘a characteristic that the criminalgroup was likely to use to [its] advantage to punish the uncleinto using his money to support the criminal group.’ ” Id.at 5 (emphasis added) (brackets omitted) (quoting R. vol. 2at 306). The BIA reasoned that “a ‘likely’ motivation” wasinsufficient to “establish [that] a protected ground was onecentral reason for future persecution, as opposed to criminalextortion efforts.” Id. Accordingly, the BIA dismissed theappeal.II. STANDARD OF REVIEWBecause a single BIA member upheld the IJ's decision ina brief order, we review the BIA's decision, but “whenseeking to understand the grounds provided by the BIA, weare not precluded from consulting the IJ's more completeexplanation of those same grounds.” Neri-Garcia v. Holder,696 F.3d 1003, 1008–09 (10th Cir. 2012) (internal quotationmarks omitted). We review the BIA's legal conclusions denovo. Miguel-Pena v. Garland, 94 F.4th 1145, 1153 (10thCir. 2024). We review factual findings, including whetherthe petitioner established the requisite nexus between theirfear of persecution and a protected ground, for substantialevidence. Id. at 1159. Under the substantial evidencestandard, “administrative findings of fact are conclusiveunless any reasonable adjudicator would be compelled toconclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).III. LEGAL STANDARDSTo qualify for asylum, an applicant must be a “refugee,” 8U.S.C. § 1158(b)(1)(B)(i)—“unable or unwilling to return”to the applicant's country of nationality or habitual residence“because of persecution or a well-founded fear of persecutionon account of race, religion, nationality, membership in aparticular social group, or political opinion,” id. § 1101(a)(42). “These five categories are called ‘protected grounds.’” Miguel-Pena, 94 F.4th at 1159 (internal quotation marksomitted).To show persecution or fear of persecution “on account of”a protected ground, § 1101(a)(42), an asylum applicant mustestablish a “nexus” between the alleged persecution and aprotected ground, Dallakoti v. Holder, 619 F.3d 1264, 1267(10th Cir. 2010). The protected ground must be “at least onecentral reason for persecuting the applicant.” § 1158(b)(1)(B)(i). “[I]t cannot be incidental, tangential, superficial, orsubordinate to another reason for harm.” Orellana-Recinosv. Garland, 993 F.3d 851, 855 (10th Cir. 2021) (internalquotation marks omitted). “[E]ven when the protected groundis intertwined with unprotected reasons, the protected groundmust still be a central reason.” Id. (internal quotation marksomitted). If “there [is] no evidence that the [persecutor]would be hostile toward the targeted [individuals] absent theirfinancial or recruitment motives,” then there is no nexus to aprotected ground. Id. at 858.*3 “The burden of proof for [withholding of] removal ishigher than for asylum.” Dallakoti, 619 F.3d at 1267. Itrequires a showing that the applicant's “life or freedom wouldbe threatened” in the proposed country of removal on accountof a protected ground. 8 U.S.C. § 1231(b)(3)(A).IV. MERITS DISCUSSIONPetitioners first argue that both the IJ and the BIA erred byfailing to recognize that they established a valid particularsocial group, which they define as “members of a familythat had already been targeted by criminal organizations inColombia,” Pet'rs’ Br. at 14, and “family relationship to anindividual who had resisted extortion,” id. at 16. They allegethat in a case they identify as Rodriguez-Romero v. Garland,60 F.4th 1283 (10th Cir. 2023), this court “rejected a similarconclusion where the agency ignored credible testimony thatthe petitioner was targeted due to his family's resistance tocartel extortion,” Pet'rs’ Br. at 14 (citing 60 F.4th at 1290),and “held that the agency must give ‘reasoned consideration’to facts in the record that support a viable legal theory, even ifnot perfectly framed,” id. at 23 (purportedly quoting 60 F.4that 1290–91), “especially when applicants are unrepresented,”id. at 12 (citing 60 F.4th at 1290).But as the government notes in its response brief, thereis no Tenth Circuit case captioned “Rodriguez-Romero v.Garland.” The Federal Reporter citation “60 F.4th 1283”leads to a page in United States v. Wesley, 60 F.4th 1277 (10thCir. 2023), a case involving whether a criminal defendant's
MARTHA LILIANA PICON-DIAZ; S.Y.A P.; D.S.A.P.;..., Not Reported in Fed.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.3motion for compassionate release was an unauthorizedsecond or successive motion to vacate his sentence, see id.at 1279–80. And the pincites to pages 1290 and 1291 of thissupposed decision lead to pages in United States v. Diaz-Menera, 60 F.4th 1289 (10th Cir. 2023), which involved acriminal defendant's challenge to his sentence, see id. at 1291.Petitioners’ counsel relies on or quotes from this apparentlyfictitious Rodriguez-Romero case multiple other times in hisbrief. See Pet'rs’ Br. at 8, 9, 11, 15, 18, 19, 22.Petitioners’ counsel did not file a reply brief, where he mighthave explained this fabricated citation. If counsel made acitation error, we have not been able to deduce what it mightbe. We have not uncovered any relevant federal case similarlycaptioned or containing any of the quotations that counselattributes to this apparently nonexistent case.2This case citation and the quotations and propositionsattributed to it appear fabricated. This is likely the result ofPetitioners’ counsel's use of a generative artificial intelligencetool as a research and drafting aid without adequate reviewof the results the tool generated. See Wadsworth v. WalmartInc., 348 F.R.D. 489, 497 (D. Wyo. 2025) (“It is ... well-known in the legal community that AI resources generatefake cases.”). Such fabrications are often referred to as“AI [h]allucinations,” which happen “when an AI [model]generates fake sources of information.” Id. at 493 (internalquotation marks omitted). We must, of course, disregardPetitioners’ reliance on this case.3*4 So doing, we disagree with Petitioners’ argumentregarding recognition of a particular social group. Althoughthe IJ said she could not “decipher” any particular socialgroup, R. vol. 1 at 49, the BIA considered Petitioners’ claim“that they were the ‘family of a primary target of a criminalorganization,’ and this was ‘a characteristic that the criminalgroup was likely to use to [its] advantage to punish the uncleinto using his money to support the criminal group,’ ” id.at 5 (brackets omitted) (quoting id. at 23). Thus, the BIAacknowledged the group Petitioners identified but, as weproceed to address, found there was no nexus between theirfeared harm and a protected ground.4Petitioners next argue that the BIA erred in determiningthat any harm they fear is due to criminal activity andnot on account of their membership in the particular socialgroup they had identified. They claim their “testimonyestablished a clear temporal and familial link between theuncle's targeting and the threats directed at Petitioners andtheir children.” Pet'rs’ Br. at 17. They also contend thatthe IJ and BIA disregarded testimony that, after the uncle'sshooting, “individuals linked to criminal groups began tothreaten [their] son directly.” Id. at 18. Petitioners add thatthey were targeted because of their familial relationship to“someone perceived as defiant to a criminal organization”because “the threats in this case followed [the] uncle'sresistance to extortion and his subsequent shooting.” Id. at19. Petitioners further argue that the BIA misapplied the “onecentral reason” standard because “[t]hat standard does notrequire a persecutor to expressly declare their motives butallows adjudicators to consider indirect evidence, includingthe sequence of events, patterns of threats, and the broadersocial and political context.” Id. at 23–24.This line of argument fails to persuade us that the BIA erred.First, Petitioners never testified that there was any linkbetween the uncle's shooting in 2020 and the threats to theirson in 2022, so there is no evidence that would support afinding that the threats to their son were on account of theirfamily membership to the uncle.Second, the IJ and the BIA considered the circumstantialevidence Petitioners claim is relevant to their application,so there was no misapplication of the “one central reason”standard.Third, Petitioners’ argument is contrary to our decision ina factually analogous case, Orellana-Recinos. There, gangmembers repeatedly threatened a mother that she and herson would “pay” if the son refused to join the gang and selldrugs. 993 F.3d at 853 (internal quotation marks omitted).We assumed the mother's membership in her son's immediatefamily qualified as a particular social group under theimmigration laws. But we concluded that membership in thatgroup was not one central reason for the mother's fear offuture persecution because the IJ and the BIA “could properlyinfer that the gang's ultimate motivation was to recruit [theson], not to attack his family,” and could reasonably “find thatthe gang members had no animus against [the] family per se.”Id. at 858. We further noted that if the son were to join thegang, there was no evidence the gang would still pursue themother or any other member of the son's immediate family. Id.*5 The same can be said here. As in Orellana-Recinos,there is no evidence that the extortionists would attemptto harm any of the Petitioners absent their motivation toobtain payment from the uncle. The extortionists threatened
MARTHA LILIANA PICON-DIAZ; S.Y.A P.; D.S.A.P.;..., Not Reported in Fed.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.4to harm the uncle's family if he did not pay, so any animusagainst Petitioners was contingent on nonpayment. Hernandotestified that the uncle continues to pay and that, otherthan Tito's unrelated threats to the son, Petitioners have notbeen harmed or directly threatened. We therefore concludethat the record evidence does not compel the conclusionthat Petitioners’ family membership was one central reasonfor their fear of future persecution rather than incidentalor tangential to the extortionists’ ultimate goal of generalcriminality and financial gain.Finally, Petitioners argue that the IJ failed to develop therecord by not trying “to elicit testimony or clarify whether[they] sought protection based on family membership,resistance to extortion, or imputed political opinion—legaltheories plainly suggested by their testimony.” Pet'rs’ Br. at20. The government argues that we should decline to considerthis argument because Petitioners did not present it to the BIA.We agree with the government.We “may review a final order of removal only if ... the alienhas exhausted all administrative remedies available to thealien as of right.” 8 U.S.C. § 1252(d)(1). Under § 1252(d)(1), “issue exhaustion is a mandatory [and non-jurisdictional]claim-processing rule that should be enforced where a partytimely and properly objects.” Miguel-Pena, 94 F.4th at 1155(brackets, ellipsis, and internal quotation marks omitted). “Weenforce the exhaustion requirement by declining to considerthe unexhausted issue.” Id.To administratively exhaust an issue, “an alien must presentthe same specific legal theory to the BIA.” Id. at 1154 (internalquotation marks omitted). Petitioners never presented theBIA with their theory that the IJ failed to develop therecord regarding the nature of the protected ground. Instead,they argued that the IJ should have deduced the relevantparticular social group from their testimony. See R. vol. 1at 25 (arguing that “the IJ committed legal error when shefailed to properly interpret [Petitioners’] particular socialgroups from the facts presented”); id. at 26 (admitting that“the IJ asked thorough questions regarding the events,” thenarguing that “by posing the particular social group question[5],the IJ had a responsibility to read between the lines basedon the information she was presented and determine if aparticular social group was proposed”). Thus, whether theIJ adequately developed the record is unexhausted, so wedecline to consider it.V. WARNING TO COUNSELAs discussed, Petitioners’ counsel relied multiple timesthroughout his brief on what clearly appears to be a casefabricated by the use of a generative artificial intelligencetool. There is nothing inherently problematic with the use ofartificial intelligence in the practice of law, but its carelessuse can waste both judicial resources and the opposing party'stime and money, and it can damage the credibility of thelegal system. See Mata v. Avianca, Inc., 678 F. Supp. 3d 443,448–49 (S.D.N.Y. 2023). Importantly here, “ ‘[a]n attemptto persuade a court or oppose an adversary by relying onfake opinions is an abuse of the adversary system.’ ” Parkv. Kim, 91 F.4th 610, 615 (2d Cir. 2024) (quoting Mata,678 F. Supp. 3d at 461). Such conduct is sanctionable. See,e.g., id. at 615–16; Grant v. City of Long Beach, 96 F.4th1255, 1257 (9th Cir. 2024); Fed. R. App. P. 38; 10th Cir. R.46.5(B), (C). However, we decline to sanction counsel in thiscase but warn him—and all attorneys practicing before thiscourt—of the responsibility to ensure that citations to legalauthority are not fabrications but instead point to real casesthat contain quotations attributed to them and arguably standfor the propositions for which they are cited.VI. CONCLUSION*6 We deny the petition for review. We grant Petitioners’counsel's motion to withdraw (Dkt. No. 25).Entered for the CourtAll CitationsNot Reported in Fed. Rptr., 2026 WL 412348Footnotes*After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request fora decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is thereforesubmitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law
MARTHA LILIANA PICON-DIAZ; S.Y.A P.; D.S.A.P.;..., Not Reported in Fed.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.5of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.R. App. P. 32.1 and 10th Cir. R. 32.1.1Petitioners also sought relief under the Convention Against Torture (“CAT”), which the IJ denied. The BIA found that theywaived arguments related to CAT protection, and Petitioners do not make any CAT arguments before this court. Wetherefore limit our discussion to the denial of asylum and withholding.2There is an unpublished Tenth Circuit case captioned Romero v. Garland, where the petitioner's full name is “MarcoTulio Rodriguez Romero.” See No. 21-9515, 2021 WL 6061846 (10th Cir. Dec. 20, 2021). That case, however, does notcontain any of the quotations Petitioners’ counsel attributes to the Rodriguez-Romero case he cites or have any otherrelevance to any of counsel's arguments in this case.3We reserve discussion of whether to sanction Petitioners’ counsel until Part V of our decision.4The government argues that the BIA did not make a finding that the group was cognizable as a particular social groupwithin the meaning of the immigration laws. We need not decide whether the government is correct because it appears theBIA assumed Petitioners’ proposed group was cognizable for purposes of concluding that there was no nexus betweentheir fear and the proposed group.5The IJ informed Hernando that to be eligible for asylum, Petitioners would have to show their fear of persecution was onaccount of a protected ground, one of which was membership in a particular social group.End of Document© 2026 Thomson Reuters. No claim to original U.S.Government Works.
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