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 review of a decision by the Board of 

Immigration Appeals (BIA) denying his applications for relief from removal and 

protection under the Convention Against Torture (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. Torres-Rivera raises issues he did not exhaust in his BIA 

appeal. We deny the remainder of the petition for review. 

 *

 After examining the briefs and appellate record, this 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 This order and judgment is not binding precedent, 

except under the doctrines of law 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 Court
2 

I. Background 

Mr. Torres-Rivera is a native and citizen of El Salvador. He was detained by 

immigration officials shortly after entering 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 must 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 origin ‘because of persecution or a well-founded fear of 

persecution on account of race, religion, nationality, membership in a particular 

social group, or political opinion.’” Rivera-Barrientos 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 had been persecuted by gang members in 

El Salvador on account of his membership in a particular social group. 

At his hearing before an immigration judge (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 reported gang activities including serious criminal 

violations”; (3) “member of a family who has failed to pay extortion money”; and 

(4) “[f]ormer employee of a government contractor who is asked to submit period[ic] 

background checks.” Admin. R. at 128-29. The IJ denied his applications for relief, 
3 

finding that he failed to meet his burden to show that the alleged persecution was, or 

would be, on account of his membership in a particular social group.1

“To obtain relief under the Convention Against Torture, aliens must prove it is 

more likely than not they will be tortured upon return, although the torture need not 

be on account of a protected 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 agreed with the IJ that he 

failed to demonstrate that he was targeted 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 corroborating evidence should have been readily 

available, the BIA agreed with the IJ that Mr. Torres-Rivera presented insufficient 

evidence that he was, in fact, a store owner in El Salvador. 

The BIA also concurred with the IJ that 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 claim for asylum, Mr. Torres-Rivera 

necessarily failed to meet the higher burden of proof for withholding 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 proposed social group consisting of government 

contractors required to submit 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 considers 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. Torres-Rivera presented 

no evidence that family members who oppose gang extortion efforts are viewed as a 

distinct group in Salvadoran society. Addressing his final proposed social group—

member of a family who has reported gang activities, including serious criminal 

violations—the BIA found that he failed to present evidence that Salvadoran society 

considers informants who report on gang activity to be a distinct social group. 

The BIA further held that Mr. Torres-Rivera failed to meet his burden to show 

that his membership in any particular social 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 clear error in the IJ’s determination that 

Mr. Torres-Rivera did not establish 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 eligibility for protection under the CAT. 
5 

II. Discussion 

We review the BIA’s full-panel decision in this case, which 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 agency’s decision. Our duty is to guarantee that 

factual determinations are supported by reasonable, substantial and 

probative evidence considering 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-Rivera 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 originating from Sonsonate, El Salvador.” Aplt. 

Opening Br. at 12. He maintains 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 belonging to the same family.” Id. at 11. He points to his 

own testimony as evidence of his membership in this social group. 

We cannot address this contention because Mr. Torres-Rivera did not raise it 

in his BIA appeal. “This Court may only retain jurisdiction over claims challenging 

a final order of removal ‘if the alien has exhausted all administrative remedies 

available . . . as of right.’” Sidabutar, 503 F.3d at 1118 (quoting 8 U.S.C. 

§ 1252(d)(1)). “[W]e generally assert jurisdiction only over those arguments that a 

petitioner properly presents to the BIA.” Id. Here, Mr. Torres-Rivera raises, for the 
6 

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 his 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 group, 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 characteristics than those raised before 

the BIA). We therefore dismiss 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 BIA’s determinations 

regarding the particular social groups he relied on in his BIA appeal. He argues that 

his credible testimony is sufficient 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 insufficient to show that he was, in fact, a 

store owner in El Salvador, he fails to show any error. Section 208.16(b) provides 

only that an applicant’s testimony “may be sufficient” to sustain 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), which provides, “Where the trier 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 evidence.” In light of Mr. Torres-Rivera’s failure to 

explain “the lack of what should be readily available evidence substantiating his 
7 

claim that he was a store owner,” Admin. R. at 4, the BIA upheld the IJ’s 

determination that he failed to establish he was a member of the claimed group. 

Mr. Torres-Rivera does not acknowledge or develop an argument of error in the 

BIA’s reasoning or its determination of this issue. 

 Mr. Torres-Rivera also maintains that he demonstrated past persecution based 

on evidence that gang members threatened him and his family and murdered his 

father and brother. He argues that, having established past persecution, he is entitled 

to a presumption of future persecution. But 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 requisite nexus [was] dispositive.” Id. at 7. Once again, 

Mr. Torres-Rivera fails to address the BIA’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 for protection under the CAT. 

III. Conclusion 

 The petition for review is dismissed to the extent this court lacks jurisdiction; 

the remainder of the petition for review is denied. 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge