Julio Martinez v. Eric Holder, Jr.

REVISED OPINION

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-2424

JULIO ERNESTO MARTINEZ, a/k/a Julio Martinez,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

-------------------------

AMERICAN IMMIGRATION LAWYERS ASSOCIATION,

Amicus Supporting Petitioner.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Argued: October 31, 2013 Decided: January 23, 2014

Revised Opinion Filed: January 27, 2014

Before NIEMEYER and WYNN, Circuit Judges, and Louise W.
FLANAGAN, United States District Judge for the Eastern District
of North Carolina, sitting by designation.

Petition granted in part and denied in part and case remanded
for further proceedings by published opinion. Judge Niemeyer
wrote the opinion, in which Judge Wynn and Judge Flanagan
joined.
ARGUED: Maureen A. Sweeney, UNIVERSITY OF MARYLAND CAREY LAW
SCHOOL, Baltimore, Maryland, for Petitioner. Oluremi da Rocha-
Afodu, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent. Benjamin Richard Casper, UNIVERSITY OF
MINNESOTA SCHOOL OF LAW, Minneapolis, Minnesota, for Amicus
Supporting Petitioner. ON BRIEF: Alison D. Yoder, Student
Attorney, UNIVERSITY OF MARYLAND CAREY SCHOOL OF LAW, Baltimore,
Maryland, for Petitioner. Stuart F. Delery, Acting Assistant
Attorney General, Civil Division, Blair T. O'Connor, Assistant
Director, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Andres
C. Benach, BENACH RAGLAND L.L.P., Washington, D.C.; Katherine
Evans, CASPER & EVANS, P.A., Minneapolis, Minnesota; Samuel
Johnson, Student Attorney, Holden Turner, Student Attorney,
Interprofessional Center For Counseling & Legal Services,
UNIVERSITY OF ST. THOMAS, Minneapolis, Minnesota, for Amicus
Supporting Petitioner.

2
NIEMEYER, Circuit Judge:

Julio Ernesto Martinez, a citizen of El Salvador, who is

subject to removal from the United States because he entered

without authorization and, while in the United States, was given

a judgment of probation before verdict for marijuana possession,

requests that the Attorney General withhold removal under 8

U.S.C. § 1231(b)(3), which places restrictions on removal to

countries where the alien’s life or freedom would be threatened.

He claims that as a former member of the violent Mara

Salvatrucha gang (“MS-13”), he is a member of a “particular

social group,” as would qualify for withholding of removal under

§ 1231(b)(3), and that he would be killed if sent back to El

Salvador because he renounced his membership in MS-13. Based on

these circumstances, he also requests relief under the

Convention Against Torture (“CAT”), contending that the

government of El Salvador would acquiesce in his torture at the

hands of MS-13.

The immigration judge (“IJ”) and the Board of Immigration

Appeals (“BIA”) rejected Martinez’s arguments, concluding that

being a “former member[] of a gang in El Salvador” is not an

“immutable characteristic” of a particular social group that

could qualify for withholding of removal, since the

characteristic “result[ed] from the voluntary association with a

criminal gang.” The IJ and the BIA also found that Martinez’s

3
claim for relief under the CAT was not supported by sufficient

evidence.

We conclude that Martinez’s proposed particular social

group of former MS-13 members from El Salvador is immutable for

withholding of removal purposes in that the only way that

Martinez could change his membership in the group would be to

rejoin MS-13. We hold therefore that the BIA erred in its

ruling declining -- on immutability grounds -- to recognize the

particular social group of former members of MS-13 who have

renounced their membership in the gang. Accordingly, we reverse

that ruling on immutability and remand Martinez’s application

for withholding of removal to permit the BIA to consider whether

Martinez’s proposed social group satisfies the other

requirements for withholding of removal. On Martinez’s

application for protection under the CAT, we affirm. Despite

Martinez’s claim to the contrary, we conclude that the IJ and

the BIA sufficiently considered the relevant evidence.

I

Martinez was born in San Miguel, El Salvador, in 1980 and

lived there until he entered the United States unlawfully in

2000.

In March 2006, when Martinez was stopped while driving his

friend’s car with a malfunctioning brake light, the police found

4
a marijuana blunt in a dashboard compartment of the car.

Although Martinez denied any connection with the marijuana, he

pleaded to probation before judgment in December 2007.

Even before Martinez’s marijuana charge was resolved, the

Department of Homeland Security had initiated removal

proceedings against him based on his illegal entry. It

subsequently closed the proceedings because Martinez agreed to

serve as a confidential informant, assisting the FBI in making

controlled purchases of drugs and fake green cards. When

Martinez was stopped again in May 2011 for a traffic offense,

the Department of Homeland Security recalendared the removal

proceedings, concluding that Martinez was “no longer useful as a

confidential informant.” In the reopened proceedings, the

government added a charge that Martinez was subject to removal

as an alien convicted of a controlled substance offense.

Martinez conceded that he was subject to removal, but he sought

relief from removal on the ground that his life would be

endangered should he be returned to El Salvador.

At the hearing before the IJ, Martinez testified that his

stepfather died when he was 12 years old and that, at the age of

14, he befriended a group of older boys who had also lost family

members. The group went to parties, drank, and smoked marijuana

together. Martinez later learned, however, that some of the

boys who had recruited him into this group were also associated

5
with MS-13, although the group itself had no association with

that gang. This status changed, however, when several members

of MS-13 were deported from the United States and arrived in

Martinez’s neighborhood. Martinez’s group was then

“incorporated” into the larger MS-13 gang structure, which, to

some extent, was involuntary. Martinez testified that the new

MS-13 arrivals informed him and his friends that they were

“already . . . part of MS-13” and that they had no option but to

join the gang. Martinez, who was now 15, agreed to undergo MS-

13’s initiation rite of a beating that lasts 13 seconds.

Soon after Martinez’s induction into MS-13, the deportees

killed the original leaders of Martinez’s group of friends and

became the gang’s new leaders. They ordered Martinez to get

tattoos signifying his allegiance to MS-13, which he did. They

also ordered him to extort money from members of the community,

which he refused to do. Because of his disobedience, the

leaders of the gang beat Martinez on a weekly basis. Martinez

testified that he never “committed any crimes for the gang,”

although he conceded that he did participate once in the beating

of a fellow gang member for failing to follow orders.

Thereafter, however, he also refused to join in those

disciplinary beatings, which consequently subjected him to

further beatings.

6
 MS-13 held weekly meetings for members in the local

community and monthly general meetings, which were attended by

thousands of members from across El Salvador. Martinez attended

most of these meetings, and he was beaten when he did not

attend. At the meetings, the leaders would discuss who was part

of the gang and who was not. They also informed the membership

as to who had the “green light,” which indicated that the member

was to be executed. A principal reason for receiving the green

light was attempting to leave MS-13. Indeed, two of Martinez’s

friends who attempted to leave the gang were killed.

By the time Martinez reached the age of 16, he became

“tired of [the] beatings” that he had been receiving for

refusing to obey the leaders, and he decided to leave MS-13.

Accordingly, he stopped attending its meetings. Several weeks

later, he encountered his local group leader, “Psycho,” who

asked him where he had been. When Martinez told Psycho that he

wanted to leave the gang, Psycho responded that there was “only

one way to get out,” implying by death. When Martinez

nonetheless insisted that he was quitting, gang members beat him

and stabbed him, leaving him for dead. Martinez survived,

however, and, after leaving the hospital, went to live with a

cousin in Intipucá, which is about an hour’s drive south of San

Miguel.

7
 In Intipucá, Martinez covered his tattoos and left his

house only to go to work. Two months later, however, MS-13

members found him and shot at him from a car. Multiple bullet

fragments struck Martinez, and he was again hospitalized for

several weeks. After recovering, Martinez went into hiding with

friends and family members.

MS-13 members once again found Martinez and once again shot

at him. This time he managed to escape without injury.

Martinez left El Salvador to come to the United States in 2000,

entering without permission. He believes that if he were to

return to El Salvador, MS-13 members would kill him. Indeed, he

claims that while he has been in the United States, he has

refrained from going places where he might meet an MS-13 member,

such as Spanish nightclubs.

Based on his fear of bodily harm at the hands of MS-13,

Martinez sought several forms of relief from removal. He argued

that under 8 U.S.C. § 1231(b)(3), he was eligible for

withholding of removal because his life was threatened on

account of his membership in the particular social group of

former gang members from El Salvador. He also argued that he

qualified for protection under the CAT because the Salvadoran

government would acquiesce in his torture should he be removed.

In addition, he applied for temporary protected status.

Finally, as an alternative, he requested voluntary departure.

8
 Following a hearing, the IJ found Martinez credible but

nonetheless denied him all relief except for his application for

voluntary departure. On appeal, the BIA, in a single-member

opinion, also rejected Martinez’s request for relief. With

respect to his § 1231(b)(3) claim, the BIA defined Martinez’s

proposed social group as “former members of a gang in El

Salvador” and concluded that Martinez had not shown that this

group had a “common, immutable characteristic” because the

“characteristic result[ed] from the voluntary association with a

criminal gang.” The BIA also affirmed the IJ’s conclusion that

Martinez had not demonstrated that the Salvadoran government

would acquiesce in his torture.

From the BIA’s final order of removal dated October 24,

2012, Martinez filed this petition for review.

II

“The courts of appeals are granted jurisdiction to review

final orders of removal, 8 U.S.C. § 1252(a)(1), and final orders

in cases such as the one before us are generally made by the BIA

following appeal from the decision of the IJ.” Camara v.

Ashcroft, 378 F.3d 361, 366 (4th Cir. 2004); accord Huaman-

Cornelio v. BIA, 979 F.2d 995, 999 (4th Cir. 1992). Situations

may arise when it is appropriate for this Court to review an

IJ’s opinion, such as when the BIA adopts the IJ’s decision

9
without an opinion of its own, see Camara, 378 F.3d at 366, or

when the BIA adopts the IJ’s opinion and supplements it with

additional reasoning, see Barahona v. Holder, 691 F.3d 349, 353

(4th Cir. 2012). In both such cases, the BIA has determined

that the IJ’s opinion will become -- in whole or in part -- the

final order of removal subject to review.

In this case, however, the BIA issued its own opinion

without adopting the IJ’s opinion. The BIA’s decision,

therefore, constitutes the final order of removal, and

accordingly we review that opinion and not the opinion of the

IJ. 1

1
This Court has recently purported to review the decisions
of both the IJ and the BIA whenever they both issue opinions.
See, e.g., Singh v. Holder, 699 F.3d 321, 327 (4th Cir. 2012)
(“When, as here, the Board and an IJ issue decisions in a case,
we review both on appeal”); Kourouma v. Holder, 588 F.3d 234,
239-40 (4th Cir. 2009) (“When the BIA and the immigration judge
both issue decisions in a case, we review both decisions upon
appeal”). We take those cases, however, to involve BIA
decisions that incorporated some part of the IJ’s opinion as
part of the BIA’s final order. See Camara, 378 F.3d at 366;
Huaman-Cornelio, 979 F.2d at 999 (“As a court of appeals, we
review only the findings and order of the BIA, not those of the
IJ. Section 106(a) of the Immigration and Nationality Act vests
us only with the jurisdiction to review ‘final orders of
deportation.’ Final orders are entered only after all
administrative remedies have been exhausted; thus final orders
in deportation proceedings come from the BIA, the highest
administrative tribunal” (citation omitted)). Otherwise, they
would conflict with 8 U.S.C. § 1252(a)(1), which provides that
we may only review a “final order of removal.” An alien facing
removal may appeal to the BIA as of right. 8 C.F.R. §§
1003.1(b)(3), 1003.38(a), 1240.15. The BIA reviews the IJ’s
legal conclusions de novo and its factual conclusions for clear

10
 Martinez’s particular challenge to the BIA’s opinion in

this case is directed against the BIA’s determination that, for

purposes of § 1231(b)(3), “former members of a gang in El

Salvador” are not a “particular social group” as that term is

used in the statute, because members of the group do not have “a

common, immutable characteristic where that characteristic

results from voluntary association with a criminal gang.” The

parties agree that this presents us with a question of law.

We review the BIA’s legal determinations, including its

interpretation of the INA and any attendant regulations, de

novo. See Li Fang Lin v. Mukasey, 517 F.3d 685, 691-92 (4th

Cir. 2008). But in conducting our review, we generally give

Chevron deference to the BIA’s statutory interpretations,

recognizing that Congress conferred on the BIA decisionmaking

error. Id. § 1003.1(d)(3). As such, “there is no ‘final order’
until the Board acts.” Cruz-Funez v. Gonzales, 406 F.3d 1187,
1190 (10th Cir. 2005). Thus, where the BIA issues an opinion
without adopting the IJ’s opinion in whole or in part, this
Court can only review the BIA’s opinion. Every other circuit
has come to the same conclusion. Romilus v. Ashcroft, 385 F.3d
1, 5 (1st Cir. 2004); Yan Chen v. Gonzales, 417 F.3d 268, 271
(2d Cir. 2005); Brandao v. Att’y Gen., 654 F.3d 427, 429 n.4 (3d
Cir. 2011); Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997);
Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007);
Begzatowski v. INS, 278 F.3d 665, 669 n.5 (7th Cir. 2002); Aung
Si Thu v. Holder, 596 F.3d 994, 998 (8th Cir. 2010); Hosseini v.
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006); Uanreroro v.
Gonzales, 443 F.3d 1197, 1203-04 (10th Cir. 2006); Rodriguez v.
U.S. Att’y Gen., 735 F.3d 1302 (11th Cir. 2013) (per curiam);
Gutierrez-Rogue v. INS, 954 F.2d 769, 772 (D.C. Cir. 1992).

11
power to decide such questions of law. See INS v. Aguirre-

Aguirre, 526 U.S. 415, 424 (1999); Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

This is true even when the BIA “gives ambiguous statutory terms

‘concrete meaning through a process of case-by-case

adjudication.’” Aguirre-Aguirre, 526 U.S. at 425 (quoting INS

v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987)). Chevron

deference, however, is accorded only when an “agency’s

interpretation is rendered in the exercise of [its] authority

[to make rules carrying the force of law].” A.T. Massey Coal

Co. v. Barnhart, 472 F.3d 148, 166 (4th Cir. 2006) (citing

United States v. Mead Corp., 533 U.S. 218, 226-27 (2001)). If

not, then the interpretation is “beyond the Chevron pale.”

Mead, 533 U.S. at 234.

Because the decision in this case was issued by a single

BIA member, it does not constitute a precedential opinion, as a

precedential opinion may only be issued by a three-member panel.

See 8 C.F.R. § 1003.1(g) (“By majority vote of the permanent

Board members, selected decisions of the Board rendered by a

three-member panel or by the Board en banc may be designated to

serve as precedents in all proceedings involving the same issue

or issues” (emphasis added)); see also id. § 1003.1(e)(6)

(“Cases may only be assigned for review by a three-member panel

if the case presents one of these circumstances . . . (ii) the

12
need to establish precedent construing the meaning of laws,

regulations, or procedures . . .”). When issuing a single-

member, nonprecedential opinion, the BIA is not exercising its

authority to make a rule carrying the force of law, and thus the

opinion is not entitled to Chevron deference. Accord Arobelidze

v. Holder, 653 F.3d 513, 520 (7th Cir. 2011); Carpio v. Holder,

592 F.3d 1091, 1097 (10th Cir. 2010); Quinchia v. U.S. Att’y

Gen., 552 F.3d 1255, 1258 (11th Cir. 2008); Rotimi v. Gonzales,

473 F.3d 55, 57 (2d Cir. 2007); Garcia–Quintero v. Gonzales, 455

F.3d 1006, 1012 (9th Cir. 2006); see also De Leon-Ochoa v. Att’y

Gen., 622 F.3d 341, 350 (3d Cir. 2010) (agreeing with the Ninth

Circuit that precedential value is the key determinant in

whether an agency decision is accorded Chevron deference).

Therefore, the BIA’s interpretation of § 1231(b)(3) in the case

before us is not entitled to Chevron deference.

That is not to say that we will not accord the BIA’s

opinion any consideration. Even in the absence of Chevron

deference, we have concluded that we can rely on the agency’s

opinions as a “body of experience and informed judgment” to

which we may “properly resort for guidance.” A.T. Massey Coal,

472 F.3d at 168 (quoting Skidmore v. Swift & Co., 323 U.S. 134,

140 (1944)). But even that modest deference depends upon “the

thoroughness evident in [the BIA’s] consideration, the validity

of its reasoning, its consistency with earlier and later

13
pronouncements, and all those factors which give it power to

persuade.” Id. (quoting Skidmore, 323 U.S. at 140).

III

While Martinez agrees that his circumstances subject him to

an order of removal, he claims that the BIA erred in denying him

relief under § 1231(b)(3)(A), which provides in relevant part

that the Attorney General may not remove an alien, even though

otherwise removable, “if the Attorney General decides that the

alien’s life or freedom would be threatened in [the country of

removal] because of the alien’s race, religion, nationality,

membership in a particular social group, or political opinion.”

8 U.S.C. § 1231(b)(3)(A) (emphasis added); see also Camara, 378

F.3d at 367. 2 The statute does not define “particular social

group,” and there is little legislative history on the matter.

See Fatin v. INS, 12 F.3d 1233, 1239 (3d Cir. 1993). The BIA

has, however, defined “particular social group” as a group

meeting three criteria: “(1) its members share common,

2
This exception to removal is limited, however, and the
alien may nonetheless be removed if (1) he engaged in
persecution on account of an individual’s “race, religion,
nationality, membership in a particular social group, or
political opinion”; (2) he has been convicted of a “particularly
serious crime” in the United States and is a “danger to the
community”; (3) “there are serious reasons to believe [he]
committed a serious nonpolitical crime outside the United
States”; or (4) “there are reasonable grounds to believe that
[he] is a danger to the security of the United States.” 8
U.S.C. § 1231(b)(3)(B).

14
immutable characteristics, (2) the common characteristics give

its members social visibility, and (3) the group is defined with

sufficient particularity to delimit its membership.” Lizama v.

Holder, 629 F.3d 440, 447 (4th Cir. 2011) (emphasis added).

While we have endorsed both the immutability and particularity

criteria, see id. (affirming under both of these criteria), we

have explicitly declined to determine whether the social

visibility criterion is a reasonable interpretation of the INA,

see Zelaya v. Holder, 668 F.3d 159, 165 n.4 (4th Cir. 2012),

although we have reviewed the BIA’s application of this

criterion, see Temu v. Holder, __ F.3d __, No. 13-1192, 2014 WL

169932 (4th Cir. Jan. 16, 2014).

To meet the “immutability” criterion -- the only one at

issue in this petition for review -- members of a particular

social group must share a characteristic that they “either

cannot change, or should not be required to change because it is

fundamental to their individual identities or consciences.”

Zelaya, 668 F.3d at 165 (quoting In re Acosta, 19 I. & N. Dec.

211, 233 (B.I.A. 1985), overruled in part on other grounds by In

re Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987)) (internal

quotation mark omitted). The BIA has explained that “[t]he

shared characteristic might be an innate one such as sex, color,

or kinship ties, or in some circumstances it might be a shared

15
past experience such as former military leadership or land

ownership.” Acosta, 19 I. & N. Dec. at 233 (emphasis added).

Martinez contends that his proposed group of “former

members of a gang in El Salvador” meets the immutability

requirement because he cannot change his status as a former gang

member except by rejoining MS-13, which he claims would violate

fundamental precepts of his conscience.

Neither the BIA nor the government seriously contests

Martinez’s argument that he cannot change his status as a former

gang member. Rather, the BIA held that Martinez failed to show

that he was “a member of a group with a common, immutable

characteristic where that characteristic results from the

voluntary association with a criminal gang.” (Emphasis added).

And the government amplifies this position, asserting that “past

‘antisocial’ behavior is not an attribute or shared experience

that warrants protection under this country’s refugee laws.”

At the outset, we agree that Martinez’s membership in a

group that constitutes former MS-13 members is immutable. See

Acosta, 19 I. & N. Dec. at 233 (listing “former military

leadership” as a prototypical particular social group); Gatimi

v. Holder, 578 F.3d 611, 615 (7th Cir. 2009) (former member of a

violent political group); Lukwago v. Ashcroft, 329 F.3d 157, 178

(3d Cir. 2003) (former child soldier). Martinez has presented

extensive evidence that violence and criminality pervade MS-13,

16
and we conclude, as has the Seventh Circuit, that it would be

“perverse” to interpret the INA to force individuals to rejoin

such gangs to avoid persecution. See Ramos v. Holder, 589 F.3d

426, 430 (7th Cir. 2009); see also Urbina-Mejia v. Holder, 597

F.3d 360, 366 (6th Cir. 2010) (holding that former gang

membership is an immutable characteristic). 3

The government argues that the INA disqualifies groups

whose members had formerly participated in antisocial or

criminal conduct. Attaching this condition to qualification as

3
While the First Circuit has recently held that former gang
members are not a cognizable particular social group under
§ 1231(b)(3), see Cantarero v. Holder, 734 F.3d 82, 85-87 (1st
Cir. 2013), we do not find its reasoning persuasive here.
First, Cantarero is distinguishable from the present case
inasmuch as the court there applied Chevron deference to the
BIA’s decision and thus only determined that the BIA’s
interpretation of the INA was not “unreasonable or
impermissible.” Id. at 85-86. Second, as we explain below, we
are not persuaded by Cantarero’s proposition that “Congress did
not mean to grant asylum to those whose association with a
criminal syndicate has caused them to run into danger.” Id. at
86. Congress was explicit in outlining the transgressions that
could disqualify an alien from withholding of removal
protection, see § 1231(b)(3)(B), and “associat[ing] with a
criminal syndicate” is not on that list. Third, we are dubious
of the Cantarero court’s dire prediction that our holding today
will “offer an incentive for aliens to join gangs here as a path
to legal status.” 734 F.3d at 86. For this trick to work, the
alien would need to join a criminal gang, abandon it, and then
persuade the IJ that his “life . . . would be threatened” as a
result should he be removed. 8 U.S.C. § 1231(b)(3)(A). The
facts of the present case illustrate the horrors gang members
face when they turn their backs on their comrades. We doubt
that many aliens would risk their lives in this manner, and we
are confident in the ability of immigration judges to ferret out
charlatans who feign such danger.

17
a “particular social group,” however, is untenable as a matter

of statutory interpretation and logic.

First, nothing in the statute suggests that persons

categorically cannot be members of a cognizable “particular

social group” because they have previously participated in

antisocial or criminal conduct. Rather, Congress has identified

only a subset of antisocial conduct that would bar eligible

aliens from withholding of removal, defined by the alien’s

engaging in past persecution, committing a particularly serious

crime, or presenting a danger to the security of the United

States. See 8 U.S.C. § 1231(b)(3)(B). But Congress “has said

nothing about barring former gang members.” See Ramos, 589 F.3d

at 430.

Moreover, in arguing for its interpretation that a

particular social group may not include members who engaged in

past antisocial or criminal conduct, the government focuses on

the former status of membership in a gang, failing to recognize

a distinct current status of membership in a group defined by

gang apostasy and opposition to violence. For support, the

government relies heavily on the decision in Arteaga v. Mukasey,

511 F.3d 940 (9th Cir. 2007), as did the BIA. That case,

however, is materially distinguishable inasmuch as it affirmed

the BIA’s denial of withholding of removal from an alien who was

“still a gang member,” albeit no longer “active.” Id. at 945.

18
The court noted that gang membership should not be protected if

the alien’s shared past experience as a member of the gang

“includes violent criminal activity.” Id. The court continued,

“We cannot conclude that Congress, in offering refugee

protection for individuals facing potential persecution through

social group status, intended to include violent street gangs

who assault people and who traffic in drugs and commit theft.”

Id. at 945-46.

We agree that current gang membership does not qualify as

an immutable characteristic of a particular social group to

support withholding of removal under § 1231(b)(3). It is not

the case that current gang members “cannot change” their status

as gang members, as they can leave the gang. Acosta, 19 I. & N.

Dec. at 233. Nor do we think that they “should not be required

to change because [gang membership] is fundamental to their

individual identities or consciences.” Id. To so hold would

“pervert the manifest humanitarian purpose of the statute.”

Arteaga, 511 F.3d at 946.

But Martinez is not a current gang member. Rather, the

social group he has identified is defined by rejection of gang

membership and its attendant violence. Martinez asserts that

his repudiation of gang membership, along with its violence and

criminality, is a critical aspect of his conscience that he

should not be forced to change. We agree.

19
 The BIA alternatively, albeit briefly, justified its

rejection of Martinez’s claim for withholding of removal on the

ground that the threats to his life were only an aspect of

internal gang discipline, citing In re McMullen, 19 I. & N. Dec.

90 (B.I.A. 1984). McMullen was a member of the Provisional

Irish Republican Army (“PIRA”), and, while a member, he refused

to carry out a kidnapping job because he feared that the job

would not be successful. Id. at 94. He claimed that his

refusal to participate in the operation constituted a political

opinion for which the PIRA would persecute him if he returned to

Ireland. Id. The BIA found that McMullen’s refusal to commit

the kidnapping for fear of being caught “does not constitute [a]

political opinion.” Id. at 95. And it noted that the “internal

use of violence by the PIRA does not constitute persecution

. . . . Having elected to participate in the PIRA, with

knowledge of its internal disciplinary policies, [McMullen] is

not now in a position to complain.” Id.

The BIA’s reliance on In re McMullen in this case was

misplaced in that McMullen was still a member of the PIRA, and

his fears arose from a disagreement over the wisdom of a

particular criminal endeavor. In rejecting his claim, the BIA

emphasized that McMullen had assumed this danger as a risk

inherent in membership when he joined the PIRA. Martinez, on

the other hand, withdrew from the MS-13 gang; he rejected the

20
organization, its violence, and its purposes. He is being

targeted because of his membership in the group of former

members of MS-13, and the danger he faces is based on his

rejection of gang membership. See In re C-A, 23 I. & N. Dec.

951, 958-59 (B.I.A. 2006) (distinguishing between threats that

inhere as a part of one’s profession and persecution as a result

of being a former member of that profession).

Accordingly, we conclude that the BIA erred as a matter of

law in its interpretation of the phrase “particular social

group” by holding that former gang membership is not an

immutable characteristic of a particular social group for

purposes of § 1231(b)(3).

Because we only reach the “immutability” criterion and do

not address any other criteria that might be applicable, we

remand Martinez’s withholding of removal claim under

§ 1231(b)(3)(A) for further proceedings consistent with this

opinion. 4

4
While the “particularity” criterion remains an open
question for resolution on remand, we note that the Seventh
Circuit in Ramos, 589 F.3d at 431, did distinguish the
particularity of the class of inactive gang members at issue in
Arteaga from the class of former gang members that it was
considering. We also note that we have yet to affirm the
statutory authority for the “social visibility” criterion. See
Zelaya, 668 F.3d at 165 n.4; cf. Temu v. Holder, __ F.3d __, No.
13-1192, 2014 WL 169932, at *4-6 (4th Cir. Jan. 16, 2014)
(finding that the BIA had applied the “social visibility”
criterion too restrictively). Assuming without deciding that it

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 IV

Martinez also contends that he was erroneously denied

protection under the CAT because, if he were returned to El

Salvador, “the Salvadoran police [would] likely acquiesce in or

turn a willfully blind eye to the threat that [he would] be

tortured.” He argues that the BIA ignored relevant evidence

that supports his application for CAT protection -- in

particular, the evidence that “the police do not take seriously

what they perceive as gang-on-gang violence” and the evidence

that he “feared reporting the [gang] attacks to police.”

“To warrant CAT protection, an alien must prove, first,

that it is more likely than not that he will be tortured if

removed to the proposed country of removal and, second, that

this torture will occur at the hands of government or with the

is valid, however, we note that the BIA did not consider that
issue at all and the IJ failed to provide a sufficient
explanation for why the group of former gang members is
insufficiently socially visible for § 1231(b)(3) purposes. See
SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (“[T]he process of
review requires that the grounds upon which the administrative
agency acted be clearly disclosed and adequately sustained”).
The only relevant case cited by the IJ, In re S-E-G-, 24 I. & N.
Dec. 579, 582 (B.I.A. 2008), concerned non-gang members who
resisted gang recruitment efforts. In the present case, there
was evidence that MS-13 held meetings in which the leadership
listed individuals who had the “green light” for leaving the
gang. On remand, the BIA should, if it applies this criterion,
explain why such evidence does not distinguish the present case
from the facts of In re S-E-G-.

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consent or acquiescence of government.” Turkson v. Holder, 667

F.3d 523, 526 (4th Cir. 2012) (emphasis added) (citing 8 C.F.R.

§ 1208.16(c)(2)). “Acquiescence of a public official requires

that the public official, prior to the activity constituting

torture, have awareness of such activity and thereafter breach

his or her legal responsibility to intervene to prevent such

activity.” 8 C.F.R. § 1208.18(a)(7).

In this case, the IJ concluded that Martinez had not made

the necessary showing, finding that because Martinez “never

reported the shooting or other threats to his life to the police

in El Salvador” and because “country condition information

reflects that government officials in El Salvador are taking

some steps to address the difficult problem of gang violence

there,” he failed to show that the Salvadoran government would

acquiesce in his future torture. The BIA affirmed on similar

grounds, holding that “respondent cannot complain that the

Government did not prosecute his attackers because he never made

a report” and noting that the “Government of El Salvador has

made attempts to reduce or control gang activity,” citing

several reports about country conditions in El Salvador.

We presume that, in reaching these conclusions, the IJ and

the BIA reviewed the evidence presented to them and made their

decisions based on the relevant evidence. See Larita-Martinez

v. INS, 220 F.3d 1092, 1095-96 (9th Cir. 2000) (“[A]n alien

23
attempting to establish that the Board violated his right to due

process by failing to consider relevant evidence must overcome

the presumption that it did review the evidence”); Man v. INS,

69 F.3d 835, 838 (7th Cir. 1995) (“[A]bsent evidence to the

contrary, we assume that the BIA reviewed the specific findings

of the immigration judge in light of the record”).

Martinez’s claim that the BIA ignored “the extensive

country conditions evidence in the record” is simply not

supported by the record. In the first instance, the IJ

recognized that “[Martinez] th[ought] that government officials

in El Salvador would look at him as if he still belonged to the

gang.” She also made note of the “prevalence of gang violence

in El Salvador” and that “country condition information reflects

that government officials in El Salvador are taking some steps

to address the difficult problem of gang violence there.” The

BIA similarly noted that El Salvador has attempted to control

gang violence, even citing the very reports that Martinez now

claims the BIA ignored. It is apparent that the IJ and the BIA

reviewed the relevant evidence before them. Accordingly, we

affirm the BIA’s decision to deny relief under the CAT.

PETITION FOR REVIEW GRANTED IN PART AND
DENIED IN PART; REMANDED FOR FURTHER
PROCEEDINGS

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