Clarifying Review Standards in Tenth Circuit Immigration Appeals

Introduction

In Toj-Riz v. Garland, No. 24-9533 (10th Cir. Apr. 24, 2025), the United States Court of Appeals for the Tenth Circuit addressed multiple procedural and substantive issues arising in an immigration removal context. Petitioner Santiago Toj-Riz, an indigenous Guatemalan national, sought asylum, withholding of removal, and deferral under the Convention Against Torture (CAT) after entering the U.S. without authorization. Both the Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) denied relief, and Toj-Riz petitioned for judicial review. The Tenth Circuit’s decision clarifies: (1) that appellate review is of the BIA’s decision, not the IJ’s; (2) the proper assessment of past persecution, nexus to a protected ground, and the likelihood of torture; and (3) the jurisdictional limits imposed by 8 U.S.C. § 1252(g) on claims of selective enforcement or prosecutorial discretion.

Summary of the Judgment

The Court of Appeals dismissed Toj-Riz’s petition in part and denied it in the remainder. Key holdings:

• Review is confined to the BIA’s order, not the IJ’s decision. Challenges couched against the IJ were “misdirected.”
• The BIA reasonably concluded that Toj-Riz failed to demonstrate past persecution—his physical altercations, threats, and harassment did not rise to the level of “persecution” under Tenth Circuit precedent.
• He failed to establish a nexus between his mistreatment and a protected ground (his indigenous identity), even though his credibility was generally affirmed.
• Because the BIA based its CAT denial solely on the absence of a likelihood of torture, the Court did not address the IJ’s alternative finding that Guatemala’s protections were adequate.
• The Court lacked jurisdiction under 8 U.S.C. § 1252(g) to entertain his equal-protection/ selective-enforcement claim against the government’s discretion in commencing and litigating removal proceedings.

Analysis

Precedents Cited

1. Diallo v. Gonzales, 447 F.3d 1274 (10th Cir. 2006) – Held that an appellate court reviews the BIA’s decision, not the IJ’s, although the IJ’s opinion helps to discern the BIA’s rationale.

2. Iyamba v. INS, 244 F.3d 606 (8th Cir. 2001) – Emphasized misdirection when petitioners challenge the IJ instead of the BIA.

3. Escobar-Hernandez v. Barr, 940 F.3d 1358 (10th Cir. 2019) – Rebuttable presumption of future persecution upon a showing of past persecution.

4. Tulengkey v. Gonzales, 425 F.3d 1277 (10th Cir. 2005) – Requirement of an “objectively reasonable” fear of future persecution for asylum and withholding.

5. Miguel-Pena v. Garland, 94 F.4th 1145 (10th Cir. 2024) – Clarified nexus requirement: persecution must be “on account of” a protected characteristic.

6. Garland v. Ming Dai, 593 U.S. 357 (2021) – Credibility findings do not equate to acceptance of every factual assertion.

7. Lopez-Benitez v. Garland, 91 F.4th 763 (4th Cir. 2024) – An IJ may accept credibility while rejecting nexus.

8. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) – §1252(g) bars judicial review of prosecutorial discretion in removal proceedings.

9. Duron v. Johnson, 898 F.3d 644 (5th Cir. 2018); Butt ex rel. Q.T.R. v. Barr, 954 F.3d 901 (6th Cir. 2020) – Both reaffirm §1252(g)’s jurisdictional bar on selective enforcement claims.

10. Fort Bend County v. Davis, 587 U.S. 549 (2019) – Explains exhaustion as a non-jurisdictional but mandatory claim-processing rule once invoked by the government.

Legal Reasoning

• Scope of Review: The Tenth Circuit reiterated that it reviews only the BIA’s decision, citing Diallo. A challenge framed against the IJ is improper because the IJ’s decision is subsumed in the BIA’s.

• Past Persecution: Toj-Riz described multiple incidents (harassment, threats, physical altercations). The IJ and BIA found the threats lacked imminence and the harassment was not sufficiently severe, frequent, or pervasive to constitute persecution. Under Escobar-Hernandez, past persecution gives rise to a presumption of future risk, but only if the past events qualify as “persecution.”

• Nexus Requirement: To obtain asylum or withholding, claimants must link persecution to a protected ground (race, religion, nationality, political opinion). The IJ deemed Toj-Riz credible generally but rejected his contention that he was targeted because of his indigenous identity. The appellate court upheld that separation of credibility from the nexus determination (per Ming Dai).

• Convention Against Torture: Toj-Riz also sought CAT relief. The IJ found both a lack of likelihood of torture and adequate government protection. The BIA adopted only the first rationale; the Court of Appeals accepted it and declined to address the alternate basis.

• Jurisdictional Bar: Citing 8 U.S.C. §1252(g), the Court held it lacked authority to review Toj-Riz’s equal-protection/ selective-prosecution claim. This statute strips the courts of appeals of jurisdiction over challenges to the initiation or conduct of removal proceedings.

Impact

This decision reinforces several important procedural and substantive points in immigration law:

• Appellate courts must focus on the BIA’s articulated reasoning; petitioners should frame challenges accordingly.
• The threshold for “persecution” remains high: sporadic harassment and non-imminent threats typically do not qualify.
• Credibility findings do not automatically establish entitlement to relief; the nexus inquiry is distinct.
• The §1252(g) jurisdictional bar continues to block review of prosecutorial decisions, including alleged selective enforcement, emphasizing the broad deference given to immigration authorities.

Complex Concepts Simplified

1. Asylum vs. Withholding of Removal: Asylum grants discretionary protection and can lead to a green card. Withholding is mandatory relief but only prevents removal to a country where the applicant would face persecution.

2. Convention Against Torture (CAT): Independent from asylum/withholding. Claimants must show it is more likely than not they would be tortured if returned.

3. Nexus: A legal connection between the harm suffered and a protected trait (e.g., race, religion). Without this link, relief is unavailable even if persecution occurred.

4. 8 U.S.C. §1252(g): A statutory provision that says “no court shall have jurisdiction” to review decisions about “the commencement of removal proceedings, the adjudication of cases, or the execution of removal orders.” This precludes claims like selective enforcement in immigration contexts.

5. Exhaustion of Administrative Remedies: Before petitioning an appellate court, an applicant must raise issues in the BIA. Failure to do so usually forecloses review, unless jurisdictional rules provide otherwise.

Conclusion

Toj-Riz v. Garland clarifies critical boundaries in Tenth Circuit immigration review: appellate focus on the BIA’s decision, a stringent approach to defining persecution and nexus, and reaffirmation of the jurisdictional bar under §1252(g). Practitioners should carefully craft their arguments before the BIA, ensuring all claims are fully developed and tied to the Board’s stated rationale. The decision underscores the high evidentiary bar for asylum, withholding, and CAT relief, and maintains strong deference to prosecutorial discretion in removal proceedings.