Sandra Pena De Rivas v. Jefferson B. Sessions, III
899 F.3d 537
| 8th Cir. | 2018Background
- Rivas (mother) and her two minor daughters, Brittany and Maria, are Salvadoran nationals who entered the U.S. in December 2014 and applied for asylum, withholding of removal, and CAT relief.
- In Sept. 2013 Rivas witnessed an M-18 gang member shoot her brother Carlos; she assisted him to the hospital and later Carlos went into hiding.
- After gang members sought Carlos, they questioned and threatened Rivas and her partner; Rivas was beaten when she refused to disclose Carlos’s location and later pressured to have sexual contact with a gang leader in exchange for protection.
- Rivas testified and was found credible by the immigration judge, but her asylum, withholding, and CAT claims were denied; the IJ also concluded the children’s claims were derivative only.
- The BIA affirmed Rivas’s denial and treated the children’s independent applications as derivative of the mother’s, dismissing their appeals.
- On review, the Eighth Circuit denied Rivas’s petition (finding no legal error and substantial-evidence support) but granted the children’s petitions and remanded because the BIA failed to adjudicate their independent claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rivas’s proposed particular social groups qualify for asylum ("targeted gang girlfriends", witnesses who report crimes, family membership) | Rivas: groups are immutable, particular, and socially distinct; persecution was on account of family/witness status and being targeted | Gov: groups lack particularity and social distinction; persecution was not on account of family membership | Court: Affirmed BIA—first two groups lack particularity/social distinctness; family membership lacked required nexus to persecution, so asylum denied |
| Whether substantial evidence supports denial of withholding of removal | Rivas: same grounds support withholding | Gov: higher standard unmet because asylum failed | Court: Denied withholding—applicant cannot meet higher standard where asylum fails |
| Whether Rivas is eligible for CAT relief based on police acquiescence | Rivas: police corruption and failures amount to acquiescence to gang torture | Gov: El Salvador has taken measures; record does not show official acquiescence | Court: Denied CAT—evidence insufficient to show state acquiescence more likely than not |
| Whether the BIA erred by failing to adjudicate the children’s independent asylum claims | Children: they filed independent applications and raised distinct family-based fear; requested individualized review and remand | Gov: children relied on same facts as mother; no distinct claim; IJ counsel focused on mother | Court: Granted children’s petitions and remanded—the BIA overlooked/failed to resolve independent claims and must address them in first instance |
Key Cases Cited
- INS v. Aguirre-Aguirre, 526 U.S. 415 (deference to agency factual findings)
- Ngugi v. Lynch, 826 F.3d 1132 (8th Cir. 2016) (particular social group analysis)
- Gonzalez Cano v. Lynch, 809 F.3d 1056 (8th Cir. 2016) (societal recognition/social distinctness)
- Martinez-Galarza v. Holder, 782 F.3d 990 (8th Cir. 2015) (nexus requirement for family-based group)
- Aguinada-Lopez v. Lynch, 825 F.3d 407 (8th Cir. 2016) (state acquiescence/CAT and evidence of non-acquiescence)
- SEC v. Chenery Corp., 318 U.S. 80 (agency must provide reasoning; court will not supply it)
- Alemu v. Mukasey, 509 F.3d 907 (8th Cir. 2007) (remand when BIA overlooks properly presented claims)