Vladimir Rivas Gochez v. Jeff B. Sessions
676 F. App'x 629
| 9th Cir. | 2017Background
- Petitioner Vladimir Antonio Rivas Gochez is an El Salvadoran who applied for asylum, withholding of removal, and CAT relief; the IJ denied relief and the BIA dismissed his appeal.
- Asylum application was filed more than two years after arrival; BIA found it untimely under the one-year rule.
- Rivas Gochez argued he missed the deadline because people told him asylum wasn’t being granted and he was unaware of the deadline.
- He alleges past attack(s) by gang members and claims a fear of future persecution by gangs.
- BIA concluded the record showed internal relocation within El Salvador was possible and reasonable; it also found no government involvement or acquiescence to gang torture for CAT purposes.
- The Ninth Circuit panel dismissed the petition in part (asylum) and denied it in part (withholding and CAT), resolving related procedural and evidentiary challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of asylum filing | Rivas Gochez argued he was unaware of the one-year deadline and had been told asylum wasn’t being granted, so delay should be excused | Government argued the filing was untimely and petitioner’s reasons do not constitute changed or extraordinary circumstances | BIA’s untimeliness finding affirmed; ignorance and hearsay advice not extraordinary circumstances; asylum claim dismissed for lack of jurisdiction to review minor-status factual finding |
| Due process/streamlined BIA decision | Rivas Gochez contended BIA improperly “streamlined” and denied him due process | Government maintained BIA did not affirm without opinion and followed procedure | Rejected; IJ decision was not affirmed without opinion and due process claim was frivolous |
| Withholding of removal (future persecution) | Rivas Gochez argued past persecution creates a presumption of future persecution | Government argued presumption was rebutted by evidence that internal relocation in El Salvador was possible and reasonable | Denied; substantial evidence supports BIA that relocation was reasonable and presumption rebutted |
| CAT relief (torture) | Rivas Gochez argued he faces torture by gangs if returned | Government argued torture was by non-state actors without government acquiescence or sanction | Denied; substantial evidence supports BIA that torture was not by or with government acquiescence and future government-sanctioned torture not shown |
Key Cases Cited
- Lanza v. Ashcroft, 389 F.3d 917 (9th Cir. 2004) (discusses BIA “streamlining” and due process challenges)
- Sumolang v. Holder, 723 F.3d 1080 (9th Cir. 2013) (ignorance of one-year asylum deadline is not an extraordinary circumstance)
- Su Hwa She v. Holder, 629 F.3d 958 (9th Cir. 2010) (limitations on judicial review of certain factual determinations related to asylum timeliness)
- Andrade-Garcia v. Lynch, 828 F.3d 829 (9th Cir. 2016) (general government ineffectiveness at preventing crime does not establish acquiescence for CAT purposes)