Erick Tucto-Sanchez, a citizen of Peru, petitioned the Ninth Circuit for review of a Board of Immigration Appeals decision that denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture. His claims were based on membership in a particular social group consisting of individuals who refuse to pay extortion fees to a criminal organization. Before the immigration judge, the court found this group was not cognizable. Tucto-Sanchez sought review in the Ninth Circuit, but the government argued he had not properly exhausted his challenges to the particular social group determination or his Convention Against Torture claim before the Board.
The panel unanimously concluded that the petition must be denied on procedural grounds. First, regarding the particular social group, the court found that Tucto-Sanchez failed to meaningfully challenge the immigration judge's determination that his proposed group was not cognizable before the Board. Because he did not exhaust this issue, the court lacked jurisdiction to review it. Second, the court noted that Tucto-Sanchez did not raise an alternative proposed group consisting of a family persecuted for refusing to pay fees, as he had not raised it before the immigration judge. Third, regarding the Convention Against Torture claim, the court found that Tucto-Sanchez did not challenge the denial of this claim in his brief before the Board. Since the government properly raised this failure to exhaust, the court could not review the claim. Finally, the court addressed a motion for a continuance, finding that the immigration judge did not abuse her discretion in denying it because Tucto-Sanchez failed to show the importance of the excluded evidence.
The petition for review is denied, and the Board of Immigration Appeals' order denying relief stands. The decision reinforces the strict requirement that immigration petitioners must raise all legal arguments before the Board to preserve them for appellate review. The court did not reach the merits of the asylum or torture claims, leaving the underlying legal questions regarding the particular social group definition unresolved in this specific context. The temporary stay of removal remains in place until the mandate issues.
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