Unreported / Non-Citable
Background
Hector Mauricio Rivera-Carpio, a native and citizen of El Salvador, sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT) based on alleged gang persecution. An immigration judge denied all three forms of relief, and the Board of Immigration Appeals (BIA) affirmed. Rivera-Carpio petitioned the Fifth Circuit for review of the BIA’s decision.
Rivera-Carpio claimed to fear persecution by a gang in El Salvador. He reported crimes to Salvadoran authorities, but the police investigation did not result in any arrests. He also alleged prior harms that he characterized as torture. His family members, including his grandmother and aunt, remained in El Salvador after he fled to the United States.
The Court’s Holding
The Fifth Circuit affirmed the denial of asylum and withholding of removal. The court found that the BIA adequately determined that Rivera-Carpio failed to establish that the gang he feared possessed a current inclination to persecute him. This finding was supported by substantial evidence: none of his family members who continued to reside in El Salvador were threatened or harmed after his departure, and the gang ceased searching for him once they realized he had fled the country. Because Rivera-Carpio could not show the evidence compelled a contrary conclusion on the critical issue of current inclination to persecute, the court did not address his remaining arguments, including his challenge to the nexus requirement for particular social groups.
On the CAT claim, the court held that Rivera-Carpio was not entitled to relief. The harms he suffered did not rise to the level of persecution, and therefore could not constitute torture under the CAT standard. The court further found that Salvadoran authorities did investigate the reported crimes, and a government’s inability to protect its citizens does not demonstrate acquiescence or complicity sufficient for CAT relief. Generalized country conditions evidence proved insufficient to establish that it was more likely than not he would be tortured by or with the complicity of the Salvadoran government.
Key Takeaways
- Current inclination to persecute is a critical element for asylum relief; past persecution loses force when evidence shows the persecutor is no longer seeking out the applicant.
- Family members remaining safely in the country of feared persecution provides substantial evidence undermining claims of current threat.
- CAT relief requires more than generalized country conditions or past harms; the applicant must establish it is more likely than not that the government will torture him or her specifically.
- Government inability to protect citizens, standing alone, does not establish the government’s acquiescence or complicity in torture for CAT purposes.
Why It Matters
This decision reinforces Fifth Circuit precedent requiring asylum applicants to demonstrate not merely past persecution or objectively reasonable fear, but evidence that the persecutor harbors a current inclination to harm them. The evidence that a gang ceased its pursuit after learning an applicant had fled the country substantially undermines the claim of future persecution, even when family members remain in the country.
The court’s CAT analysis clarifies that generalized country conditions—even if they establish high crime rates or gang violence—cannot substitute for particularized evidence that a specific applicant faces torture at the hands of government actors. This distinction protects the CAT’s status as a narrow, demanding protection while maintaining meaningful asylum standards.