Cabrera v. Bondi: Tenth Circuit Confirms “More Than Incidental” Nexus for Withholding and Reiterates CAT’s Intent Requirement; Timeliness Objection Forfeitable Under Riley

Introduction

In Cabrera v. Bondi, No. 25-9503 (10th Cir. Oct. 23, 2025), the United States Court of Appeals for the Tenth Circuit denied a petition for review challenging the Board of Immigration Appeals’ (BIA) affirmance of an Immigration Judge’s (IJ) denial of withholding of removal and protection under the Convention Against Torture (CAT). The petitioner, Jorge Luis Cortez-Cabrera, a Mexican national, alleged that municipal police in Mexico extorted and detained him and that his risk of persecution or torture was tied to his membership in a particular social group (PSG): children of former Mexican police officers.

The case clarifies three important points in the Tenth Circuit:

For withholding of removal, a protected ground need only be “a reason” for harm, but it still must be more than an incidental, tangential, or superficial reason.
Under CAT, allegations of harm must demonstrate the intentional infliction of severe pain or suffering, and generalized country conditions are insufficient without individualized proof; brief non-violent detentions do not constitute torture.
Following the Supreme Court’s decision in Riley v. Bondi, the 30-day petition-for-review deadline is a claim-processing rule, not jurisdictional, and may be forfeited when the government does not press it; in reinstatement contexts, the “final order” is the reinstatement order.

Although issued as a nonprecedential order and judgment, the decision offers persuasive guidance on nexus under withholding, the evidentiary standard for CAT, and the practical implications of timeliness after Riley.

Summary of the Opinion

The court reviewed the BIA’s decision (consulting the IJ’s reasoning for completeness) and applied de novo review to legal questions and substantial evidence review to factual findings. It denied the petition on both withholding and CAT grounds.

Withholding of removal (nexus): The court rejected the claim that the IJ/BIA applied the wrong standard by requiring a “one central reason” showing. The BIA properly applied the less demanding “a reason” standard for withholding but emphasized that a protected ground cannot be merely incidental, tangential, or superficial. The record did not establish that police targeted the petitioner because he is the child of a former Mexican police officer; the police did not mention his father, and the father’s service ended decades earlier with threats ceasing by 2004. The agencies permissibly declined to accept the petitioner’s inferences where other reasonable interpretations existed.
CAT protection: The court held there was no past torture: repeated short detentions without physical harm are not torture, and the single river-bridge incident lacked evidence of intentional, severe harm by police, particularly because petitioner admitted he had no memory after he fell into the river. For future torture, generalized reports of torture in Mexico did not compel the conclusion that petitioner is more likely than not to be tortured by or with the acquiescence of a public official. The BIA did not rely on internal relocation, so the court did not address it. The court assumed arguendo that police acted under color of law but found the evidence insufficient anyway.
Timeliness note: Although the petition likely was untimely because the 30-day clock ran from the December 2023 reinstatement order—not from the later CAT/withholding decision—the deadline is nonjurisdictional under Riley v. Bondi. Because the government did not press timeliness, the court reached the merits.

Detailed Analysis

Precedents Cited and Their Influence

Singh v. Bondi, No. 23-9598, 2025 WL 2046047 (10th Cir. July 22, 2025): The panel reiterated the review framework: review the BIA’s opinion while consulting the IJ’s reasoning for context when a single BIA member affirms. This guided the court’s approach to both nexus and CAT analyses.
Aguayo v. Garland, 78 F.4th 1210 (10th Cir. 2023): Reaffirmed standards of review—de novo for legal issues and substantial evidence for factual findings—framed how the court evaluated nexus, past harm, and future risk determinations.
Dallakoti v. Holder, 619 F.3d 1264 (10th Cir. 2010): Critical to the nexus holding. Even under the withholding “a reason” standard, the protected ground must be more than “incidental, tangential, or superficial.” The BIA invoked this limitation, and the panel endorsed it, rejecting any suggestion that withholding has no qualitative threshold on the causal link.
Matter of D-R-, 25 I&N Dec. 445 (BIA 2011): The BIA may reject even plausible assertions if the record supports other permissible views. The panel confirmed that this principle applies even when only the applicant has submitted evidence. This undermined petitioner’s argument that the IJ had to accept his inference that police were targeting him because of his father.
Garland v. Ming Dai, 593 U.S. 357 (2021): Even credited testimony need not be deemed persuasive or sufficient; the agency can find the evidence inadequate given the record as a whole. The panel leveraged Ming Dai to support the BIA’s rejection of petitioner’s inferences absent corroboration.
Gutierrez-Orozco v. Lynch, 810 F.3d 1243 (10th Cir. 2016): Echoed Ming Dai’s principle: credible testimony may still fall short. The court used this to reinforce that the agency did not err by finding the petitioner’s account insufficient despite no contradictory government evidence.
Ismaiel v. Mukasey, 516 F.3d 1198 (10th Cir. 2008): Neither the IJ nor the BIA must “write an exegesis on every contention.” It sufficed that the decisions showed reasoned consideration. This defeated the petitioner’s claim that the agencies ignored parts of the record.
CAT caselaw and standards: - Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330 (3d Cir. 2008) and Kushakov v. Ashcroft, 97 F. App’x 863 (10th Cir. 2004): brief detentions with little or no harm generally do not rise to persecution, much less torture.
- Hernandez v. Garland, 52 F.4th 757 (9th Cir. 2022): torture requires a greater showing of harm than persecution.
- Escobar-Hernandez v. Barr, 940 F.3d 1358 (10th Cir. 2019): pervasive violence in a country seldom suffices to show a particularized likelihood of torture upon return.
- 8 C.F.R. § 1208.18(a): defines torture as intentional infliction of severe pain or suffering by or with the acquiescence of a public official; emphasizes torture as an “extreme form” of cruelty.
Uanrero v. Gonzales, 443 F.3d 1197 (10th Cir. 2006): When the BIA issues a brief order, a reviewing court does not affirm on IJ grounds the BIA did not adopt. The panel declined to address internal relocation for CAT because the BIA did not rely on it.
Riley v. Bondi, 145 S. Ct. 2190 (2025): Pivotal procedural backdrop. The Supreme Court held the § 1252(b)(1) 30-day deadline is a claim-processing rule (not jurisdictional) and that, in reinstatement cases, the “final order of removal” is the reinstatement order, not subsequent withholding/CAT rulings. The Tenth Circuit flagged likely untimeliness but proceeded because the government did not press the objection, consistent with Riley’s forfeitability principle.

Legal Reasoning

1) Withholding of Removal: Nexus

Petitioner argued the agency applied the asylum “one central reason” test to his withholding claim. The Tenth Circuit disagreed. It accepted the withholding “mixed-motive” standard—that a protected ground need only be “a reason”—but underscored the binding gloss that the reason cannot be incidental, tangential, or superficial. The BIA expressly invoked that standard, and the panel approved.

Applying that rule, the court found substantial evidence supported the agency’s conclusion that the alleged PSG—children of former Mexican police officers—did not meaningfully motivate the police conduct. Key points:

Officers never referenced petitioner’s father or his father’s prior police service during the encounters, which centered on alleged petty offenses and demands for money.
The father’s police service was brief and remote in time (1983–84), his threats ceased by 2004, and there was no evidentiary bridge showing that municipal police in 2020–2021 even knew of, or cared about, this history.
Petitioner’s inference—that drugs were a pretext and the real motive was familial ties—was not compelled by the record. The IJ and BIA could permissibly view the interactions as opportunistic local corruption rather than PSG-based harm.

The court also rejected the claim that the IJ/BIA ignored record evidence. Citing Ismaiel, it explained that reasoned decisions need not address every detail as long as they show engagement with the issues—which both decisions did.

Finally, the court upheld the BIA’s reliance on Matter of D-R-, as fortified by Ming Dai: even when only the applicant submits evidence, the agency need not accept plausible assertions if other reasonable interpretations exist. Here, the agencies reasonably found the evidence insufficient to tie the harm to the PSG.

2) CAT: Past Torture and Likelihood of Future Torture

The court emphasized the regulatory definition: torture is an extreme form of cruel treatment involving the intentional infliction of severe pain or suffering by or with government involvement or acquiescence.

Past torture: Petitioner’s multiple short detentions involved no physical harm; by prevailing standards, they do not reach even persecution, much less torture. The bridge incident did not establish intent by police to inflict severe pain; petitioner conceded a memory gap after his fall, rendering his claim of a beating speculative. Absent evidence that officers intentionally caused his injuries, the torture threshold was unmet.
Future torture: Country reports indicating generalized torture practices by local police did not compel a finding of individualized risk “more likely than not.” The same reports noted government investigatory and accountability efforts, undercutting acquiescence. And pervasive violence alone does not satisfy CAT’s individualized risk requirement.
Under color of law: The court assumed the officers acted under color of law but still held the evidence insufficient—an implicit reminder that official status alone does not establish torture absent the intentional-severe-harm component.
Internal relocation: Not reached because the BIA did not rely on it.

3) Timeliness After Riley

The court acknowledged that, under Riley, the operative “final order” in reinstatement contexts is the reinstatement order, starting the 30-day clock then—not at the later CAT/withholding decision. Nonetheless, because Riley makes the deadline nonjurisdictional, and the government did not raise timeliness, the court decided the case on the merits. This reinforces that practitioners must be vigilant about the correct trigger date but also that the government can forfeit timeliness objections.

Impact and Practice Implications

Nexus in withholding remains meaningfully demanding: Even though withholding employs a “mixed motive” framework, the Tenth Circuit reiterated that the protected ground must be more than incidental, tangential, or superficial. Practitioners should marshal direct or strong circumstantial evidence that the persecutor knew of and acted because of the protected characteristic.
Family-based PSGs tied to past law enforcement: Where the familial link is remote in time or unreferenced by alleged persecutors, claims are vulnerable. Evidence that officers made statements about the relative, that different jurisdictions coordinated targeting, or that community members or authorities openly identify the applicant with the relative’s past service can be pivotal.
CAT proof must show intentional severe harm by, or with acquiescence of, officials: Brief detentions without violence and speculative accounts of abuse will not suffice. Medical records, witness statements, and corroboration of official involvement or willful blindness may be outcome-determinative.
Country conditions are not enough on their own: Generalized evidence of torture practices must be tied to the applicant’s particularized risk profile. Reports of government investigations and prosecutions can undermine claims of official acquiescence.
Procedural vigilance after Riley: In reinstatement cases, the petition-for-review clock runs from the reinstatement order; counsel should file within 30 days to avoid reliance on government forfeiture. Agencies and courts may increasingly flag this issue sua sponte, even while acknowledging its nonjurisdictional status.
Record-building matters: Where memory lapses or gaps exist, corroboration becomes crucial. Absent corroboration, an IJ may permissibly find that a critical element (e.g., an alleged police beating) is speculative.

Complex Concepts Simplified

Withholding of removal vs. asylum: Withholding requires showing it is more likely than not that the applicant’s life or freedom would be threatened based on a protected ground; asylum requires a well-founded fear and, by statute, a “one central reason” nexus. Withholding’s nexus is “a reason,” but it must be more than incidental.
Particular Social Group (PSG): A PSG is a group defined by immutable or fundamental characteristics that is socially distinct and particular. The court did not decide whether “children of former Mexican police officers” is a cognizable PSG; it assumed arguendo and found nexus lacking.
Nexus: The causal link between persecution and a protected ground. Under withholding, the protected ground must be one of the reasons, but it cannot be merely incidental or tangential to the harm.
CAT “torture” definition: Requires intentional infliction of severe pain or suffering by, at the instigation of, or with the consent or acquiescence of a public official. Torture is an extreme category; not all cruel or unlawful treatment qualifies.
Acquiescence: Officials need not personally inflict harm; willful blindness or consent can suffice. But active government efforts to investigate and punish torture can counter a claim of likely acquiescence.
Under color of law: Refers to acts performed by officials in their official capacity. Even if an act is “under color of law,” CAT still requires proof of intentional infliction of severe pain.
Substantial evidence review: A deferential standard; the court upholds agency factual findings if supported by reasonable, substantial, and probative evidence. The question is not whether a different view is possible, but whether the agency’s view is supported.
Reinstatement of removal and withholding-only proceedings: When a prior removal order is reinstated, the noncitizen is generally ineligible for most relief except withholding/CAT; the IJ adjudicates only those protections, not broader relief like asylum. The “final order” for petition-for-review timing is the reinstatement order.
Nonjurisdictional deadline: A claim-processing rule that can be forfeited or waived by the government, as opposed to a jurisdictional bar that courts must enforce sua sponte.

Conclusion

Cabrera v. Bondi provides a clear, persuasive restatement of two bedrock principles in Tenth Circuit immigration jurisprudence. First, for withholding of removal, even under a mixed-motive approach, the protected ground must be more than incidental, tangential, or superficial; mere speculation cannot fill evidentiary gaps. Second, CAT protection demands proof of intentionally inflicted severe pain or suffering tied to government actors or acquiescence; short non-violent detentions and generalized country conditions do not suffice without individualized evidence of risk and official involvement.

Procedurally, the court’s treatment of timeliness under Riley underscores a significant practical shift: the 30-day petition-for-review deadline is not jurisdictional and may be forfeited if unasserted, and in reinstatement contexts the clock runs from the reinstatement order. While Cabrera is nonprecedential, it offers meaningful guidance on how to frame nexus arguments, marshal corroboration for CAT claims, and navigate petition-for-review timing after Riley. The decision’s careful application of established standards signals that future claims premised on remote familial status, uncorroborated inferences, or generalized country risk will face substantial headwinds in the Tenth Circuit.