Victor Revencu v. Jefferson Sessions, III
895 F.3d 396
| 5th Cir. | 2018Background
- Revencu, a Moldovan national, was previously removed in 2010 and re-entered the U.S. illegally in 2015; DHS reinstated his removal order and referred him to withholding-of-removal and CAT proceedings after he expressed fear of return.
- At hearing, IJ found Revencu’s fear based on four incidents; two involved his (Roma) wife, two (Dec. 2014) involved him: police questioned him about transporting supporters of opposition leader Renato Usatî, later arrested him, planted evidence, beat him, and pressured him to act as an informant.
- Revencu agreed to be an informant to avoid prosecution and later fled the country to avoid cooperating when Usatî was returning.
- IJ concluded the harm would be persecution if motivated by political opinion or membership in a particular social group, but found Revencu failed to show: (1) harm was on account of his actual or imputed political opinion (police sought recruitment, not punishment for belief), (2) membership in a cognizable particular social group (family member of Roma) was the reason he was targeted, and (3) CAT protection was not shown. BIA affirmed.
- Revencu petitioned for review; Fifth Circuit dismissed for lack of jurisdiction as to two unexhausted claims (CAT and derivative asylum) and reviewed on the two exhausted claims (political opinion nexus and particular social group) under substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether police mistreatment was on account of an actual or imputed political opinion | Revencu: police imputed political opinion (supporter/insider of Usatî) and persecuted him for that opinion | DHS/IJ/BIA: police sought to recruit an informant; mistreatment was to secure cooperation, not to punish political belief | Held: Not political-opinion-based; nexus not established—mistreatment motivated by recruitment/refusal, political opinion incidental |
| Whether membership in "family members of Roma" is a particular social group producing persecution | Revencu: as husband of a Roma woman persecuted for ethnicity, he faces persecution as family member | DHS/IJ/BIA: record shows wife was attacked when Revencu was absent; no evidence persecution was directed at him as family member | Held: Not established; no evidence that his wife’s persecution was directed at him; social-group nexus fails |
| Whether harm amounted to torture under CAT | Revencu: challenged IJ’s CAT denial on appeal | DHS/IJ/BIA: IJ found non-torture; BIA not asked to review on this point | Held: Court lacks jurisdiction—claim not exhausted before BIA, dismissed on that ground |
| Whether court should remand for BIA consideration of derivative asylum from wife’s later asylum grant | Revencu: requests remand so BIA can consider derivative asylum claim | DHS/IJ/BIA: claim was not raised to BIA | Held: Court lacks jurisdiction—failure to exhaust administrative remedies; dismissed |
Key Cases Cited
- I.N.S. v. Elias-Zacarias, 502 U.S. 478 (1992) (political-opinion nexus requires persecution because of petitioner’s political belief, not merely for recruitment or refusal)
- Shaikh v. Holder, 588 F.3d 861 (5th Cir. 2009) (standards for withholding review and REAL ID Act nexus requirement)
- Sharma v. Holder, 729 F.3d 407 (5th Cir. 2013) (analysis of nexus when persecutors escalated abuse because of petitioner’s political opposition)
- Omari v. Holder, 562 F.3d 314 (5th Cir. 2009) (exhaustion of administrative remedies is jurisdictional)