Unreported / Non-Citable
Background
Alexis Rodriguez-Sorto petitioned the Ninth Circuit to review a Board of Immigration Appeals decision that dismissed his appeal from an immigration judge's order denying asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The panel's unpublished memorandum analyzes the withholding and CAT claims and does not separately discuss asylum.
As the panel described the record, Rodriguez-Sorto was kidnapped by a gang and later shot. The gang's statements to him were made in the context of efforts to recruit him and extort his family members. The agency found he was persecuted for resisting recruitment and failing to pay money. He also testified that before the kidnapping he saw police in his town meeting with gang members, and that police would pass the gang notes about who had reported on them. At local soccer tournaments the two groups conducted their dealings in front of everyone, and the gang then beat people who had reported to police, in some cases to the point of death. Because of what he saw, he avoided reporting gang encounters to police, even when officers sought him out in the hospital after he was shot.
The BIA assumed his testimony was credible. It appears to have implicitly accepted that the harm was severe enough to be torture. It characterized his concerns about police as generalized fears about corruption and concluded he had not shown that police were or would be willfully blind to his torture.
The Court’s Holding
The court denied the petition on withholding of removal. Under substantial-evidence review, it held that the record supported the BIA's conclusion that Rodriguez-Sorto was persecuted for resisting recruitment and not paying the gang, rather than because of an anti-gang political opinion. Opposition to gang recruitment, standing alone, is not a protected political opinion. The statements exchanged during the kidnapping occurred in the course of recruitment and extortion, so they did not compel a finding that the gang believed he held a political opinion about gangs.
The court did not reach his challenge to the immigration judge's finding that Salvadoran males who challenge the gang's exercise of control are not a cognizable particular social group. He did not challenge that finding before the BIA, and the BIA did not address it on the merits. The claim was therefore unexhausted and not properly before the court.
The court granted the petition as to CAT relief. Neither the BIA nor the immigration judge mentioned his eyewitness testimony of police cooperation with the gang. That testimony shows much more than generalized fear of corruption and is highly probative of acquiescence. Even if it was considered, it appears to have been discounted because the agency seemingly required him to show that police knew of or took part in his own kidnapping. Acquiescence requires only that officials be aware that torture of the sort feared occurs and remain willfully blind to it. The court remanded the CAT claim to the BIA for further proceedings consistent with the disposition. A footnote added that changed country conditions are only one factor and are not an independent basis for denying CAT relief. The motion to stay removal was denied as moot.
Key Takeaways
- Opposition to gang recruitment, by itself, is not a protected political opinion, and statements made during recruitment and extortion did not compel a finding that the gang attributed one to the petitioner.
- A particular social group theory must be raised before the BIA; the court may review it only if the BIA addressed it on the merits, which did not happen here.
- Acquiescence under the Convention Against Torture does not require proof that officials knew of the specific incident; awareness of the type of torture feared, combined with willful blindness, is enough.
- Specific eyewitness testimony that police cooperate with a gang is highly probative evidence that the BIA must address, not a generalized fear of corruption it may pass over.
- The remand is limited to the CAT claim; the withholding denial stands, and the court did not decide whether Rodriguez-Sorto will ultimately qualify for CAT protection.
Why It Matters
This is a not-for-publication memorandum, so it is not precedent except as provided by Ninth Circuit Rule 36-3. Its value is as an application of settled law. The Board cannot rest a CAT denial on calling the evidence generalized when specific, credited testimony points the other way, and it cannot import a requirement that officials knew of the petitioner's own incident.
The decision leaves much open. The BIA must reconsider the CAT claim in light of the omitted testimony and the correct acquiescence standard, and the panel did not decide whether Rodriguez-Sorto is more likely than not to be tortured if removed to El Salvador. The withholding and particular social group questions are resolved against him in this petition.