UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ANTONIO TORRES-RIVERA, Petitioner,

v. JEFFERSON B. SESSIONS, III, United States Attorney General, Respondent. No. 17-9511 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , PHILLIPS , and McHUGH , Circuit Judges.

________________ _________________ Antonio Torres-Rivera petitions for re view of a decision by the Board of Immigration Appeals (BIA) denying his app lications for relief from removal and protection under the Convention Against To rture (CAT). Our jurisdiction arises under 8 U.S.C. § 1252(a). We dismiss the petition for review for lack of jurisdiction to the extent that Mr. Torre s-Rivera raises issues he did not exhaust in his BIA appeal. We deny the remainde r of the petition for review.

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 21, 2017 Elisabeth A. Shumaker Clerk of Court2 I. Background Mr. Torres-Rivera is a nativ e and citizen of El Salvad or. He was detained by immigration officials shortly after enteri ng the United States without valid entry documents in March 2012. In response to a Notice to Appear, Mr. Torres-Rivera conceded removability and applied for asylum, withholding of removal, and protection under the CAT. “To be eligible for asylum, an alien mu st establish by the preponderance of the evidence that he or she is a refugee,” defined as “an alien unable or unwilling to return to the country of or igin ‘because of persecution or a well-founded fear of persecution on account of race, religion, na tionality, membership in a particular social group, or political opinion.’” Rivera-Barrien tos v. Holder , 666 F.3d 641, 645-46 (10th Cir. 2012) (quoting 8 U.S.C. § 1101(a)(42)(A)) (italics omitted). Mr. Torres-Rivera claimed that he ha d been persecuted by gang members in El Salvador on account of his membersh ip in a particular social group. At his hearing before an immigration j udge (IJ), Mr. Torres-Rivera claimed to be a member of four social groups: (1) “[s]mall store owners in El Salvador”; (2) “member of a family who has reporte d gang activities includi ng serious criminal violations”; (3) “member of a family w ho has failed to pay extortion money”; and (4) “[f]ormer employee of a government cont ractor who is asked to submit period[ic] background checks.” Admin. R. at 128-29. The IJ denied his app lications for relief,3 finding that he failed to meet his burden to show that the allege d persecution was, or would be, on account of his membersh ip in a particular social group. 1 “To obtain relief under the Convention Agai nst Torture, aliens must prove it is more likely than not they w ill be tortured upon return, a lthough the torture need not be on account of a pr otected status.” Uanreroro v. Gonzales , 443 F.3d 1197, 1202 (10th Cir. 2006). The IJ denied Mr. Torres-Rivera’s request for CAT protection because there was no evidence that he would be tortured by or with the acquiescence of the Salvadoran government. The BIA dismissed Mr. Torres- Rivera’s appeal. It agr eed with the IJ that he failed to demonstrate that he was ta rgeted for persecution on account of his membership in a particular social group. The BIA first held that Mr. Torres-Rivera failed to establish that he is a member of a social group consisting of small store owners in El Salvador. Because corrobor ating evidence should have been readily available, the BIA agreed with the IJ th at Mr. Torres-Rivera presented insufficient evidence that he was, in fact, a store owner in El Salvador. The BIA also concurred with the IJ th at none of Mr. Torres-Rivera’s other proposed groups was a cognizable social group in El Salvador. 2 The BIA held that

1 Having failed to establish his cl aim for asylum, Mr. Torres-Rivera necessarily failed to meet the higher burde n of proof for withhol ding of removal. See Uanreroro v. Gonzales , 443 F.3d 1197, 1202 (10th Cir. 2006).

2 Mr. Torres-Rivera did not reassert in his BIA appeal his claim of persecution based on membership in the fourth propos ed social group cons isting of government contractors required to subm it to periodic background checks. The BIA therefore deemed that issue waived.4 his second proposed social group—member of a family who has failed to pay extortion money—was not cognizable under BIA case law rejecting a social group defined by its resistance to gangs. The BIA also cited our decision in Rivera-Barrientos , 666 F.3d at 653, in which we held there was “no evidence to suggest that Salvadoran society consid ers young women who have resisted gang recruitment to be a distinct social group. ” While acknowledging that a family can constitute a particular social group, the BIA found that Mr. To rres-Rivera presented no evidence that fami ly members who oppose gang exto rtion efforts are viewed as a distinct group in Salvadoran society. Addressing his final pr oposed social group— member of a family who has reported gang activities, including serious criminal violations—the BIA found that he failed to present evid ence that Salvadoran society considers informants who report on gang ac tivity to be a distinct social group. The BIA further held that Mr. Torres-Rivera failed to meet hi s burden to show that his membership in any particular so cial group was, or will be, a central reason for his persecution. Thus, even if he had demonstrated his membership in a cognizable social group, the BIA found no cl ear error in the IJ’s determination that Mr. Torres-Rivera did not esta blish that he was targeted for persecution on account of this protected ground. Finally , the BIA agreed with the IJ that Mr. Torres-Rivera had not met his burden to demonstrate elig ibility for protection under the CAT.5 II. Discussion We review the BIA’s full-panel decision in this case, whic h superseded the IJ’s decision. See Uanreroro , 443 F.3d at 1203. When reviewing a BIA decision, we search the record for substantial evidence supporting the agen cy’s decision. Our duty is to guarantee that factual determinations are supporte d by reasonable, substantial and probative evidence considerin g the record as a whole. Agency findings of fact are conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary. Sidabutar v. Gonzales , 503 F.3d 1116, 1122 (10th Cir. 2007) (citations, brackets, and internal quotation marks omitted). In his petition for review, Mr. Torres-Ri vera argues he was subjected to past persecution by gangs based on his membership in “a social group of small business owners of the Torres family originati ng from Sonsonate, El Salvador.” Aplt. Opening Br. at 12. He main tains that “as local business owners Mr. Torres, and other members of the Torres family , were social[ly] visible in their small town in El Salvador as merchants bel onging to the same family.” Id. at 11. He points to his own testimony as evidence of his me mbership in this social group. We cannot address this c ontention because Mr. Torres- Rivera did not raise it in his BIA appeal. “This Court may only retain jurisdiction ove r claims challenging a final order of removal ‘if the alien ha s exhausted all administrative remedies available . . . as of right.’” Sidabutar , 503 F.3d at 1118 (quoting 8 U.S.C. § 1252(d)(1)). “[W]e genera lly assert jurisdiction only over those arguments that a petitioner properly presen ts to the BIA.” Id. Here, Mr. Torres-Ri vera raises, for the6 first time on appeal, an argument based on a different “particular social group” than any of the proposed social groups that he identified and based hi s claims for relief upon before the IJ and in his BIA appeal . Because he failed to exhaust his administrative remedies with respect to this new social gr oup, we lack jurisdiction to consider it. See id. ; see also Rivera-Barrientos , 666 F.3d at 647 n.2 (declining to consider claim based on different social-group char acteristics than t hose raised before the BIA). We therefore dismis s the petition for review for lack of jurisdiction to the extent that Mr. Torres-Rivera raises unexhausted contentions related to a new particular social group. Mr. Torres-Rivera also fails to show any error in the BI A’s determinations regarding the particular social groups he re lied on in his BIA appeal. He argues that his credible testimony is su fficient to establish his burden of proof without corroboration, citing 8 C.F.R. § 208.16(b). To the extent this contention relates to the BIA’s holding that his testimony was insuffi cient to show that he was, in fact, a store owner in El Salvador, he fails to s how any error. Sec tion 208.16(b) provides only that an applicant’s testimony “may be sufficient” to sustai n his burden of proof to demonstrate eligibility for withholding of removal. Id. Here, the BIA cited 8 U.S.C. § 1158(b)(1)(B)(ii), wh ich provides, “Where the trie r of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the ev idence.” In light of Mr. Torres-Rivera’s failure to explain “the lack of what should be r eadily available eviden ce substantiating his7 claim that he was a store owner,” Admi n. R. at 4, the BIA upheld the IJ’s determination that he failed to establish he was a memb er of the claimed group. Mr. Torres-Rivera does not acknowledge or develop an argument of error in the BIA’s reasoning or its dete rmination of this issue. Mr. Torres-Rivera also maintains that he demonstrated past persecution based on evidence that gang memb ers threatened him and his family and murdered his father and brother. He argue s that, having established past persecution, he is entitled to a presumption of future persecution. Bu t the BIA held that he failed to show he was targeted for persecution based on a protected ground, specifically, his membership in the particular social groups that he identified. It noted that his “failure to demonstrate the requi site nexus [was] dispositive.” Id. at 7. Once again, Mr. Torres-Rivera fails to address the BI A’s determination or develop any argument of error. Finally, Mr. Torres-Rivera also advances no argument of error in the BIA’s denial of his application fo r protection under the CAT. III. Conclusion The petition for review is dismissed to th e extent this court lacks jurisdiction; the remainder of the petiti on for review is denied.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge