607 F. App'x 807
10th Cir.2015Background
- Rodriguez‑Leiva, a Guatemalan national, entered the U.S. in May 2004 without admission and was placed in removal proceedings in 2011.
- He conceded removability and applied for asylum, withholding of removal, and CAT protection, testifying that he witnessed a friend’s murder in Guatemala, reported it to authorities, then was threatened and shot at; several relatives were later attacked or killed.
- He proposed a particular social group: persons who directly witness murders and are threatened if they report them to authorities.
- The IJ found his asylum application untimely, denied the one‑year exception, found he suffered past persecution but concluded there was no nexus to a protected ground, and denied CAT relief for lack of likelihood of torture.
- The BIA affirmed the IJ on all grounds; Rodriguez‑Leiva petitioned for review challenging (1) asylum timeliness, (2) withholding-of‑removal social‑group/nexus, and (3) CAT denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Asylum timeliness | Rodriguez‑Leiva: late filing was reasonable because he did not know he could apply earlier | BIA: no extraordinary or changed circumstances excused the one‑year deadline | Dismissed for lack of jurisdiction — court cannot review BIA discretionary determination on extraordinary circumstances under §1158(a)(3) |
| Withholding of removal (particular social group / nexus) | Rodriguez‑Leiva: witnesses threatened after reporting murders form a cognizable social group and suffered persecution on that account | BIA: proposed group lacks particularity/social visibility; attacks motivated by criminals avoiding prosecution, not by victim’s protected status | Denied — group not cognizable and persecution lacked nexus to a protected ground; court defers to BIA/IJ findings |
| CAT protection | Rodriguez‑Leiva: police inability to protect him makes future torture likely | BIA: no evidence of past torture or that torture is more likely than not upon return | Denied — record lacks evidence showing likelihood of future torture |
Key Cases Cited
- Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir.) (BIA single‑member order is final order; court may consult IJ opinion when BIA adopts IJ reasoning)
- Rivera‑Barrientos v. Holder, 666 F.3d 641 (10th Cir.) (factual findings by BIA are conclusive unless compelled otherwise; particular social group analysis requires context, particularity, and social visibility)
- Zhi Wei Pang v. Holder, 665 F.3d 1226 (10th Cir.) (standard for withholding of removal and CAT likelihood)
- Ferry v. Gonzales, 457 F.3d 1117 (10th Cir.) (determinations that extraordinary circumstances excuse untimely asylum applications are discretionary and not reviewable)
- United States v. Pinson, 584 F.3d 972 (10th Cir.) (pro se submissions are construed liberally)
- Rodas‑Orellana v. Holder, 780 F.3d 982 (10th Cir.) (discusses BIA’s nomenclature and tests for social visibility/distinction)