                                                                                  FILED
                                                                      United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                           Tenth Circuit

                            FOR THE TENTH CIRCUIT                         November 21, 2017
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
ANTONIO TORRES-RIVERA,

      Petitioner,

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

      Respondent.
                        _________________________________

                            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 This order and judgment is not binding precedent,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.
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,




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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.
                                           3
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.




                                           4
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


                                           5
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

                                           6
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


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