Torres-Rivera v. Sessions

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 21, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ANTONIO TORRES-RIVERA,
Petitioner,
v. No. 17-9511
(Petition for Review)
JEFFERSON B. SESSIONS, III, United
States Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
Antonio Torres-Rivera petitions for review of a decision by the Board of
Immigration Appeals (BIA) denying his applications for relief from removal and
protection under the Convention Against Torture (CAT). Our jurisdiction arises
under 8 U.S.C. § 1252(a). We dismiss the petition for review for lack of jurisdiction
to the extent that Mr. Torres-Rivera raises issues he did not exhaust in his BIA
appeal. We deny the remainder of the petition for review.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of 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.
I. Background
Mr. Torres-Rivera is a native and citizen of El Salvador. He was detained by
immigration officials shortly after entering the United States without valid entry
documents in March 2012. In response to a Notice to Appear, Mr. Torres-Rivera
conceded removability and applied for asylum, withholding of removal, and
protection under the CAT.
“To be eligible for asylum, an alien must establish by the preponderance of the
evidence that he or she is a refugee,” defined as “an alien unable or unwilling to
return to the country of origin ‘because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.’” Rivera-Barrientos v. Holder, 666 F.3d 641,
645-46 (10th Cir. 2012) (quoting 8 U.S.C. § 1101(a)(42)(A)) (italics omitted).
Mr. Torres-Rivera claimed that he had been persecuted by gang members in
El Salvador on account of his membership in a particular social group.
At his hearing before an immigration judge (IJ), Mr. Torres-Rivera claimed to
be a member of four social groups: (1) “[s]mall store owners in El Salvador”;
(2) “member of a family who has reported gang activities including serious criminal
violations”; (3) “member of a family who has failed to pay extortion money”; and
(4) “[f]ormer employee of a government contractor who is asked to submit period[ic]
background checks.” Admin. R. at 128-29. The IJ denied his applications for relief,
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finding that he failed to meet his burden to show that the alleged persecution was, or
would be, on account of his membership in a particular social group.1
“To obtain relief under the Convention Against Torture, aliens must prove it is
more likely than not they will be tortured upon return, although the torture need not
be on account of a protected status.” Uanreroro v. Gonzales, 443 F.3d 1197, 1202
(10th Cir. 2006). The IJ denied Mr. Torres-Rivera’s request for CAT protection
because there was no evidence that he would be tortured by or with the acquiescence
of the Salvadoran government.
The BIA dismissed Mr. Torres-Rivera’s appeal. It agreed with the IJ that he
failed to demonstrate that he was targeted for persecution on account of his
membership in a particular social group. The BIA first held that Mr. Torres-Rivera
failed to establish that he is a member of a social group consisting of small store
owners in El Salvador. Because corroborating evidence should have been readily
available, the BIA agreed with the IJ that Mr. Torres-Rivera presented insufficient
evidence that he was, in fact, a store owner in El Salvador.
The BIA also concurred with the IJ that none of Mr. Torres-Rivera’s other
proposed groups was a cognizable social group in El Salvador.2 The BIA held that
1
Having failed to establish his claim for asylum, Mr. Torres-Rivera
necessarily failed to meet the higher burden of proof for withholding of removal. See
Uanreroro v. Gonzales, 443 F.3d 1197, 1202 (10th Cir. 2006).
2
Mr. Torres-Rivera did not reassert in his BIA appeal his claim of persecution
based on membership in the fourth proposed social group consisting of government
contractors required to submit to periodic background checks. The BIA therefore
deemed that issue waived.
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his second proposed social group—member of a family who has failed to pay
extortion money—was not cognizable under BIA case law rejecting a social group
defined by its resistance to gangs. The BIA also cited our decision in
Rivera-Barrientos, 666 F.3d at 653, in which we held there was “no evidence to
suggest that Salvadoran society considers young women who have resisted gang
recruitment to be a distinct social group.” While acknowledging that a family can
constitute a particular social group, the BIA found that Mr. Torres-Rivera presented
no evidence that family members who oppose gang extortion efforts are viewed as a
distinct group in Salvadoran society. Addressing his final proposed social group—
member of a family who has reported gang activities, including serious criminal
violations—the BIA found that he failed to present evidence that Salvadoran society
considers informants who report on gang activity to be a distinct social group.
The BIA further held that Mr. Torres-Rivera failed to meet his burden to show
that his membership in any particular social group was, or will be, a central reason
for his persecution. Thus, even if he had demonstrated his membership in a
cognizable social group, the BIA found no clear error in the IJ’s determination that
Mr. Torres-Rivera did not establish that he was targeted for persecution on account of
this protected ground. Finally, the BIA agreed with the IJ that Mr. Torres-Rivera had
not met his burden to demonstrate eligibility for protection under the CAT.
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II. Discussion
We review the BIA’s full-panel decision in this case, which superseded the
IJ’s decision. See Uanreroro, 443 F.3d at 1203.
When reviewing a BIA decision, we search the record for substantial
evidence supporting the agency’s decision. Our duty is to guarantee that
factual determinations are supported by reasonable, substantial and
probative evidence considering the record as a whole. Agency findings of
fact are conclusive unless the record demonstrates that any reasonable
adjudicator would be compelled to conclude to the contrary.
Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007) (citations, brackets, and
internal quotation marks omitted).
In his petition for review, Mr. Torres-Rivera argues he was subjected to past
persecution by gangs based on his membership in “a social group of small business
owners of the Torres family originating from Sonsonate, El Salvador.” Aplt.
Opening Br. at 12. He maintains that “as local business owners Mr. Torres, and other
members of the Torres family, were social[ly] visible in their small town in
El Salvador as merchants belonging to the same family.” Id. at 11. He points to his
own testimony as evidence of his membership in this social group.
We cannot address this contention because Mr. Torres-Rivera did not raise it
in his BIA appeal. “This Court may only retain jurisdiction over claims challenging
a final order of removal ‘if the alien has exhausted all administrative remedies
available . . . as of right.’” Sidabutar, 503 F.3d at 1118 (quoting 8 U.S.C.
§ 1252(d)(1)). “[W]e generally assert jurisdiction only over those arguments that a
petitioner properly presents to the BIA.” Id. Here, Mr. Torres-Rivera raises, for the
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first time on appeal, an argument based on a different “particular social group” than
any of the proposed social groups that he identified and based his claims for relief
upon before the IJ and in his BIA appeal. Because he failed to exhaust his
administrative remedies with respect to this new social group, we lack jurisdiction to
consider it. See id.; see also Rivera-Barrientos, 666 F.3d at 647 n.2 (declining to
consider claim based on different social-group characteristics than those raised before
the BIA). We therefore dismiss the petition for review for lack of jurisdiction to the
extent that Mr. Torres-Rivera raises unexhausted contentions related to a new
particular social group.
Mr. Torres-Rivera also fails to show any error in the BIA’s determinations
regarding the particular social groups he relied on in his BIA appeal. He argues that
his credible testimony is sufficient to establish his burden of proof without
corroboration, citing 8 C.F.R. § 208.16(b). To the extent this contention relates to
the BIA’s holding that his testimony was insufficient to show that he was, in fact, a
store owner in El Salvador, he fails to show any error. Section 208.16(b) provides
only that an applicant’s testimony “may be sufficient” to sustain his burden of proof
to demonstrate eligibility for withholding of removal. Id. Here, the BIA cited
8 U.S.C. § 1158(b)(1)(B)(ii), which provides, “Where the trier of fact determines that
the applicant should provide evidence that corroborates otherwise credible testimony,
such evidence must be provided unless the applicant does not have the evidence and
cannot reasonably obtain the evidence.” In light of Mr. Torres-Rivera’s failure to
explain “the lack of what should be readily available evidence substantiating his
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claim that he was a store owner,” Admin. R. at 4, the BIA upheld the IJ’s
determination that he failed to establish he was a member of the claimed group.
Mr. Torres-Rivera does not acknowledge or develop an argument of error in the
BIA’s reasoning or its determination of this issue.
Mr. Torres-Rivera also maintains that he demonstrated past persecution based
on evidence that gang members threatened him and his family and murdered his
father and brother. He argues that, having established past persecution, he is entitled
to a presumption of future persecution. But the BIA held that he failed to show he
was targeted for persecution based on a protected ground, specifically, his
membership in the particular social groups that he identified. It noted that his
“failure to demonstrate the requisite nexus [was] dispositive.” Id. at 7. Once again,
Mr. Torres-Rivera fails to address the BIA’s determination or develop any argument
of error.
Finally, Mr. Torres-Rivera also advances no argument of error in the BIA’s
denial of his application for protection under the CAT.
III. Conclusion
The petition for review is dismissed to the extent this court lacks jurisdiction;
the remainder of the petition for review is denied.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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