Torres-Rivera v. Sessions
706 F. App'x 482
| 10th Cir. | 2017Background
- Petitioner Antonio Torres-Rivera, a native of El Salvador, was detained after entering the U.S. without documents in March 2012 and conceded removability.
- He applied for asylum, withholding of removal, and Convention Against Torture (CAT) protection, claiming gang persecution tied to membership in several proposed "particular social groups."
- Before the IJ, Torres-Rivera proposed four social groups (small store owners; family who reported gang activity; family who failed to pay extortion; former government-contractor employees); IJ denied relief for lack of nexus to a protected ground and no CAT showing.
- The BIA affirmed: it found insufficient corroboration to show he was a store owner, and held the other proposed groups were not cognizable social groups under BIA/Tenth Circuit precedent; it also agreed there was no requisite nexus and denied CAT relief.
- On petition for review, Torres-Rivera advanced a new social-group theory (small business owners of the Torres family from Sonsonate), which he had not raised to the BIA.
- The Tenth Circuit dismissed for lack of jurisdiction as to unexhausted claims and denied the remainder of the petition, concluding substantial evidence supported the BIA’s determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Torres-Rivera’s newly defined social group (Torres family small-business owners) can be considered | Torres-Rivera: family small-business group is socially visible and qualifies as a particular social group | Government: claim was not raised before the BIA, so it is unexhausted | Dismissed for lack of jurisdiction as unexhausted |
| Whether testimony alone established membership as a small store owner without corroboration | Torres-Rivera: credible testimony may suffice under 8 C.F.R. § 208.16(b) | Government: IJ/BIA properly required corroboration under 8 U.S.C. § 1158(b)(1)(B)(ii) because evidence should be readily available | Denied; substantial evidence supports BIA’s view that corroboration was required and lacking |
| Whether petitioner established past persecution on account of a protected ground (nexus) | Torres-Rivera: threats and family murders demonstrate past persecution and warrant a presumption of future persecution | Government: even if persecuted, he failed to show it was because of membership in a cognizable social group | Denied; BIA correctly found failure to show nexus to a protected ground, dispositive |
| Whether petitioner is eligible for CAT protection | Torres-Rivera: likely to be tortured on return | Government: no evidence government would torture him or acquiesce to private actors | Denied; petitioner failed to show likelihood of torture by or with government acquiescence |
Key Cases Cited
- Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012) (analysis of cognizable particular social groups in El Salvador context)
- Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir. 2006) (standard for CAT protection and withholding of removal burdens)
- Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir. 2007) (exhaustion requirement for judicial review of BIA orders)