In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1874
JOSE ORELLANA‐ARIAS,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A078‐678‐415.
____________________
ARGUED NOVEMBER 10, 2016 — DECIDED JULY 25, 2017
____________________
Before RIPPLE, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Jose Orellana‐Arias is a native and
citizen of El Salvador. Immigration officials detained him
and took him into custody as he entered the United States
near McAllen, Texas in April 2013. This was not his first time
entering the United States without being admitted or pa‐
roled. In spring 2001, he came to the United States, but bor‐
der patrol agents stopped him, and after the Department of
2 No. 16‐1874
Homeland Security prevailed in immigration proceedings,
he was removed to El Salvador on October 3, 2001. In 2007,
he returned to the United States again to find work to allow
him to provide for his family in El Salvador and this time
was able to stay and work undetected from 2007 through
December 2011, when he returned to his family.
Orellana‐Arias testified that while he was in the United
States, his wife informed him that gang activity and crime
had increased significantly during his time away. Approxi‐
mately one month after returning to El Salvador, on his way
home from work, three masked men confronted him. Orel‐
lana‐Arias recognized the men from their voices and knew
that they were neighborhood members (along with a leader)
of the gang MS‐13 who were believed to be behind the
deaths of people in the neighborhood. The men threw him to
the ground, kicked him, tried unsuccessfully to steal his
shoes, and successfully stole his phone and money. One
suggested that they kill Orellana‐Arias, but he pleaded for
his life and managed to run away. During the incident, Orel‐
lana‐Arias twisted his ankle but did not receive any medical
care as a result of the attack other than taking pills he re‐
ceived from a pharmacy.
Two days later the same men approached Orellana‐Arias
as he bathed in a pond and suggested that he contribute
$5,000 to the MS‐13 gang. When Orellana‐Arias stated he did
not have the money, the gang members insisted that he
must, as he had just returned from the United States. They
threatened that he would “disappear” if he did not comply.
Orellana‐Arias negotiated with the men and, in the end, paid
them $500. Following this incident, the gang members ex‐
torted money from Orellana‐Arias on a number of occasions,
No. 16‐1874 3
and each time they demanded money, he gave them what‐
ever he had on hand—anywhere from $1–$5. On one occa‐
sion they stopped Orellana‐Arias to remind him to call a
number they had given him to report any sightings of police
officers.
To escape the extortion and fear, in April 2012, Orellana‐
Arias fled back to the United States where he was arrested at
the border and detained for 45 days before being removed
once again. Back in his home town, the demands by MS‐13
gang members continued. Gang members commanded Orel‐
lana‐Arias to call them whenever he saw the police and they
entered a phone number into his cell phone such that he
would also be suspected of being in the gang if stopped by
the police. Orellana‐Arias testified that he refused to comply
with the demand to act as a lookout if he saw the police, as it
conflicted with his morals. He also did not report his en‐
counters to the police, believing from seeing gang members
go free after arrest, that the police would be of no help.
In October 2012, three men in civilian clothes shot at
Orellana‐Arias as he tried to escape them. They later identi‐
fied themselves as police officers and stated that they were
looking for two of the gang members who had once assault‐
ed Orellana‐Arias. They handcuffed Orellana‐Arias and re‐
viewed the numbers in his cell phone, but took no action
against him. Orellana‐Arias noticed that the men the police
were looking for were never arrested, confirming his belief
that the police were unable or unwilling to protect him from
future harm by gang members.
In February 2013, these same gang members, along with
two others, again approached Orellana‐Arias, asked him if
he had seen the police, and again gave him a number to call
4 No. 16‐1874
should he see the police in the future. That same month,
Orellana‐Arias heard that members of MS‐13 killed two bus
drivers who drove a route through his town after they failed
to pay demanded extortion fees. These events prompted
Orellana‐Arias to flee the escalating violence and gang activ‐
ity that he perceived as infecting the entire country. He ar‐
rived in McAllen, Texas in April 2013, where immigration
officials took him into custody. While Orellana‐Arias was in
custody, gang members twice approached his wife—once at
home and once on the street—asking his whereabouts. The
gangs did not contact his wife thereafter and none of Orella‐
na‐Arias’s family members have been physically harmed by
the gangs.
After being detained following his April 2013 reentry,
Orellana‐Arias requested a reasonable fear interview with
the asylum office in Chicago. The asylum officer determined
that Orellana‐Arias did not have a reasonable fear of perse‐
cution or torture. Yet upon Orellana‐Arias’s request, the case
was transferred to an immigration judge who found that
Orellana‐Arias did indeed have a reasonable fear of return‐
ing to El Salvador and vacated the asylum officer’s underly‐
ing decision, thus allowing Orellana‐Arias to apply for
withholding of removal and Convention Against Torture
protection.
On October 16, 2013, Orellana‐Arias appeared before a
different immigration judge by televideo. He testified re‐
garding his interactions with and fear of gang members in El
Salvador, including the facts we have recounted above. He
testified that he feared that he would be kidnapped and
killed in El Salvador, that he has religious and moral objec‐
tions to gangs, and that he did not believe there was any
No. 16‐1874 5
other part of El Salvador to which he could relocate safely.
Along with his testimony, the immigration judge considered
affidavits of family members and experts, and many articles
on gang activity in El Salvador. The immigration judge de‐
nied the applications and Orellana‐Arias waived his right to
appeal.
Shortly thereafter, Orellana‐Arias filed an unopposed
motion to reconsider, stating that he wished to withdraw his
waiver of appeal. The Board, granting the motion, remanded
the case back to the immigration judge for preparation of a
written decision. In her September 4, 2014 decision, the im‐
migration judge found that Orellana‐Arias was credible, but
that he had not demonstrated that the mistreatment he suf‐
fered previously in El Salvador rose to the level of past per‐
secution as opposed to mere harassment, and that the risk of
future mistreatment was too speculative to constitute a clear
probability of future persecution. Finally, the immigration
judge determined that Orellana‐Arias did not establish a
nexus between any protected ground and alleged harm. The
proposed group of “young Salvadoran males who oppose
gang and other criminal activities due to their religious
and/or moral beliefs,” the immigration judge found, was not
“sufficiently particular” because the core attribute is opposi‐
tion to gangs, likely a common attribute held by every Sal‐
vadoran citizen who is not a member of a gang. R. 136. She
then ruled that even if the group was cognizable, Orellana‐
Arias offered no evidence that the gang had any knowledge
of his beliefs and opposition to the gang. Similarly, she held
that the social group of “Salvadorans who have lived in the
United States for many years and who are perceived by drug
cartels, criminal organizations, gangs, and corrupt govern‐
ment officials to have money upon their return to El Salva‐
6 No. 16‐1874
dor” was likewise not sufficiently particular to be cogniza‐
ble. Id. The judge found that the record evidence did not
support Orellana‐Arias’s assertion that he faced a more par‐
ticularized risk than others because he lived in the United
States. Finally, the immigration judge found that Orellana‐
Arias had not met his burden for CAT protection—that is, he
did not experience past torture, and any fear of future tor‐
ture was too speculative to warrant protection under CAT.
Following the immigration judge’s decision, Orellana‐
Arias’s case wound through a series of procedural snafus
that we relegate to a footnote for the sake of efficiency.1 Once
back on track, on March 24, 2016, the Board issued a decision
denying Orellana‐Arias’s appeal. The Board’s decision con‐
cluded that Orellana‐Arias had not established past persecu‐
tion or that he faced a clear probability of future persecution
on account of his membership in a social group of young
Salvadoran males who oppose gang membership and other
criminal activities due to their religion and/or moral beliefs.
The Board concluded that the group has not been shown to
1 After the immigration judge certified the record back to the Board, on
November 13, 2014, the Board dismissed the appeal without issuing a
briefing schedule. R. 122. On December 15, 2014 Orellana‐Arias filed a
motion for reconsideration with the Board, arguing that it was procedur‐
al error to dismiss the appeal without briefing. The Department did not
oppose the motion for reconsideration and the Board granted the mo‐
tion. R. 90. At the same time that Orellana‐Arias filed a motion for recon‐
sideration with the Board, he filed a petition in this court for review of
the Board’s November 13, 2014 decision. See Orellana‐Arias v. Holder, No.
14‐3712, R. 1. After the Board reopened his removal proceedings, this
court granted Orellana‐Arias’s voluntary dismissal of his motion. Id. at
R. 7.
No. 16‐1874 7
be cohesive and socially distinct in El Salvador, and that it
was too loosely defined to meet the requirement of particu‐
larity because it is overbroad. The Board also concluded that
Orellana‐Arias had not established past persecution or that
he faced a clear probability of future persecution on account
of his membership in a social group of individuals who are
perceived by drug cartels, criminal organizations, gangs,
and corrupt government officials to have money because
they are returning from the United States. The Board again
concluded that it was not sufficiently distinct or defined
with sufficient particularity. Finally, the Board concluded
that Orellana‐Arias had failed to meet the nexus require‐
ment, that is, that he was targeted on account of his mem‐
bership in either of these two social groups. The Board
pointed out that “gangs and other criminal elements target
anyone who could provide them with money, goods or ser‐
vices.” R. 4.
Moving on to the CAT appeal, the Board concluded, in
one sentence, that Orellana‐Arias “did not meet his burden
of proof to establish that it is more likely than not that he
will be tortured by or with the instigation of or with the con‐
sent or acquiescence (including willful blindness) of a public
official or other person acting in an official capacity in El
Salvador.” Id.
Orellana‐Arias objects to the conclusions of the immigra‐
tion judge and Board, asserting that he did indeed demon‐
strate past persecution, that both of his proposed social
groups are cognizable under the Immigration and Nationali‐
ty Act, that he was targeted because of his membership in
those groups, that he established a clear probability of future
persecution, and that he warranted protection under the
8 No. 16‐1874
Convention Against Torture. We review the decision of the
immigration judge as supplanted by the Board, reviewing
the legal conclusions de novo and the factual conclusions to
determine whether they are supported by substantial evi‐
dence. Dominguez‐Pulido v. Lynch, 821 F.3d 837, 841 (7th Cir.
2016). The standard of review is a deferential one in which
we “uphold the Board’s determination if it is supported by
substantial evidence—that is, reasonable, substantial, and
probative evidence on the record considered as a whole.”
Cece v. Holder, 733 F.3d 662, 669 (7th Cir. 2013) (en banc). We
overturn the Board’s decision only if the record compels a
different result. Tapiero de Orejuela v. Gonzalez, 423 F. 3d 666,
671 (7th Cir. 2005).
Although the Board discussed the cognizability of the
proposed social groups, we need not, as we agree with the
Board’s secondary assessment that even if the two proposed
groups are cognizable as social groups under the Immigra‐
tion and Nationality Act, Orellana‐Arias has not provided
sufficient evidence establishing that he was targeted on the
basis of his membership in either social group. In other
words, in order to determine whether a petitioner has been
persecuted based on membership in a social group, the ad‐
judicating court must determine both whether the group
constitutes a social group under the Act and whether the pe‐
titioner has established a nexus between the persecution and
the membership in the social group. Lozano‐Zuniga v. Lynch,
832 F.3d 822, 827 (7th Cir. 2016). In this case, both the Board
and immigration judge determined that there was no nexus
and we agree, thus making it unnecessary to determine
No. 16‐1874 9
whether the social groups defined by Orellana‐Arias were
cognizable under the Act.2
To be eligible for asylum, an applicant bears the burden
of demonstrating that he is “unable or unwilling to return”
to the country of his nationality “because of persecution or a
well‐founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or po‐
litical opinion.” 8 U.S.C. § 1101(a)(42)(A). In this case, Orel‐
lana‐Arias claims that he was and will be persecuted because
of his membership in the two social groups set forth above.
A petitioner for asylum can meet his burden by proving ei‐
ther past persecution or well‐founded fear of future persecu‐
tion. Dominguez‐Polido, 821 F.3d at 844. An applicant who
successfully proves that she was subject to past persecution
is presumed to have a well‐founded fear of future persecu‐
tion, which the Attorney General can rebut by demonstrat‐
ing a change in conditions in the applicant’s home country.
Cece, 733 F.3d at 668; 8 C.F.R. § 1208.13(b)(1). Applicants who
base their claim on membership in a social group must
demonstrate that the group to which they belong is defined
by a characteristic or characteristics that are either immuta‐
ble or so fundamental that a person ought not be required to
change. Cece, 733 F.3d at 669. And, importantly for this case,
2 Despite this conclusion, however, we note parenthetically that the par‐
ties spend much time discussing the Board’s conclusion that Orellana‐
Arias’ proposed social groups were overly broad and not sufficiently
particularized. As we have noted time and again, in this circuit we reject
the notion that the breadth of a social category per se makes it non‐
cognizable under the Act. Cece, 733 F.3d at 674; see also Gutierrez v.
Lynch, 834 F.3d 800, 805 (7th Cir. 2016); N.L.A. v. Holder, 744 F.3d 425, 438
(7th Cir. 2014).
10 No. 16‐1874
the applicant “must establish a ‘nexus’ between any past or
feared harm and that membership. In other words, the peti‐
tioner must show that he or she is persecuted on account of
membership in a particular social group.” Dominguez‐Pulido,
821 F.3d at 844–45 (internal citations omitted).
Orellana‐Arias did not present sufficient evidence that he
was targeted on the basis of his membership in a group of
individuals who are perceived by drug cartels, criminal or‐
ganizations, gangs, and corrupt government officials to have
money because they are returning from the United States.
The gangs appeared to have targeted Orellana‐Arias to fill
their coffers with his money, but there is no evidence that he
was targeted based on the fact that he was perceived to have
money because he was returning from the United States.
Although it is true that the gang mentioned his return from
the United States when it first approached him asking for
money, Orellana‐Arias provided no evidence that he was
more of a target because he was deported from the United
States then he would have been had he returned from, for
example, Qatar, Luxembourg, Brunei or any other country
perceived to be wealthy, or had he won the lottery, inherited
a large estate, secured a high‐paying job, or discovered a di‐
amond mine in his backyard. Moreover, after that initial ex‐
tortion, in which Orellana‐Arias stated that he gave the gang
all the money he had available, the fact of his return from the
United States dropped out of the equation. In other words, it
was simply Orellana‐Arias’s perceived wealth alone that
made Orellana‐Arias a target for the gang. Our prior deci‐
sions have held that “wealth, standing alone, is not an im‐
mutable characteristic of a cognizable social group.”
Dominguez‐Pulido, 821 F.3d at 845 (citing Tapiero de Ore‐
juela, 423 F.3d at 672). Specifically, in Dominguez‐Pulido we
No. 16‐1874 11
held that the social group of individuals deported from the
United States who have money or are perceived to have
money and who have family members in the United States
who could pay a ransom “is not cognizable as a ground for
protection because its primary characteristic is wealth or
perceived wealth … [and the petitioner’s] attempt to narrow
his proposed group by adding the trait of ‘being deported
from the U.S.’ does not render his group cognizable. “
Dominguez‐Pulido, 821 F.3d at 845; see also Lopez v. Sessions,
No. 17‐1047, 2017 WL 2543346, at *3, 859 F.3d 464 (7th Cir.
June 13, 2017); Gutierrez, 834 F.3d at 806 (concluding that the
social group of people who have money or are perceived to
have money is not a cognizable social group, even when the
characteristic of having been deported from the United
States is added); But see Gutierrez, 834 F. 3d at 807–808 (Pos‐
ner, J. concurring) (arguing that the fact that wealth is not an
immutable characteristic is not reason to deny a social
grouping in asylum cases as wealth rarely stands alone and
moreover, “having or being thought to have wealth is in an
important practical sense ‘immutable.’”) and Lozano‐Zuniga,
832 F.3d at 828 (expressing a lack of certainty as to whether
the group of “recent deportees from the United States who
might be perceived to have money” is a cognizable social
group but finding it unnecessary to resolve). The concurring
opinion in Gutierrez raises significant concerns about wheth‐
er perceived wealth is an immutable characteristic but, in
any event, in this circuit we have determined that wealth
alone is not cognizable as a social group. And we are not
alone in finding that wealth alone, or even wealth along with
deportation from the United States are not characteristics
that are cognizable as a social group under the Act. See Bel‐
trand–Alas v. Holder, 689 F.3d 90, 94 (1st Cir. 2012) (neither
12 No. 16‐1874
wealth alone nor perceived wealth upon returning from the
United States can form the basis for a cognizable social
group); Ucelo–Gomez v. Mukasey, 509 F.3d 70, 72–74 (2d Cir.
2007) (wealth alone cannot form the basis of a social group);
Faustov v. Attorney Gen., 538 F. Appʹx 166, 168 (3d Cir. 2013)
(perceived wealth cannot form the basis of a cognizable so‐
cial group); Temu v. Holder, 740 F.3d 887, 895 (4th Cir. 2014)
(affluence alone cannot be basis of social group); Gonzalez‐
Soto v. Lynch, 841 F.3d 682, 684 (5th Cir. 2016) (neither wealth
alone nor perceived wealth upon return from the United
States are recognized as social groups); Sanchez‐Robles v.
Lynch, 808 F.3d 688, 692 (6th Cir. 2015) (perceived wealth af‐
ter return from working in the United States is not a charac‐
teristic that can form the basis of a social group); Matul–
Hernandez v. Holder, 685 F.3d 707, 712–13 (8th Cir. 2012) (in‐
dividuals returning from United States and perceived as
wealthy do not constitute a recognized particular social
group); Ramirez‐Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir.
2016) (people perceived as wealthy Americans is not a dis‐
crete class of persons recognized by society as a particular
social group); Delcid‐Zelaya v. Holder, 534 F. Appʹx 694, 698
(10th Cir. 2013) (perceived wealth based on return from
United States does not constitute a social group); Ilyukhin v.
U.S. Atty. Gen., 489 F. Appʹx 331, 334 (11th Cir. 2012)
(“wealth and perceived ability to pay bribes is not the sort of
attribute that is fundamental to a person’s individual identi‐
ty sufficient to comprise a particular social group.”). More
importantly, a person claiming that he is targeted because of
his perceived wealth having returned from the United
States, must submit evidence supporting that claim (Rivera v.
Lynch, 845 F.3d 864, 865 (7th Cir. 2017)), and Orellana‐Arias
has failed to do that.
No. 16‐1874 13
As for Orellana‐Arias’s proposed social group of “young
Salvadoran males who oppose gang membership and other
criminal activities due to their religious and/or moral be‐
liefs,” we need not opine on the cognizability of that group
either. As the immigration judge pointed out, nothing in the
record before the immigration court suggested that the gang
members knew about Orellana‐Arias’s moral or religious
objection to gangs. Orellana‐Arias had not voiced any such
concern or made any of his positions public. Although he
did refrain from reporting police activity to the gang mem‐
bers, as they instructed him to do, it is not clear that the gang
members would have perceived his lack of reports to be the
result of his opposition to gang activity as opposed to mere
failure to witness any relevant police activity. And without
any knowledge of his religious or moral opposition to gangs,
it cannot be said that the gang targeted Orellana‐Arias on
account of his membership in such a group.
We conclude that Orellana‐Arias did not meet his burden
of demonstrating a nexus between the alleged persecution
and his proposed social groups of wealthy deportees or gang
resisters. But even were this not so, Orellana‐Arias’s petition
was properly denied for failing to demonstrate either past
persecution or a well‐founded fear of future persecution.
The burden of establishing past persecution or a fear of
future persecution falls to the petitioner. 8 U.S.C.
§§ 1229a(c)(4)(A)(i), § 1231(b)(3)(C). Persecution “must rise
above mere harassment,” and can include “detention, arrest,
interrogation, prosecution, imprisonment, illegal searches,
confiscation of property, surveillance, beatings, or torture,”
or behavior that threatens the same, and “non‐life‐
threatening behavior such as torture and economic depriva‐
14 No. 16‐1874
tion if the resulting conditions are sufficiently severe,” Ve‐
lasquez‐Banegas v. Lynch, 846 F.3d 258, 270–71 (7th Cir. 2017).
However, “generalized conditions of hardship which affect
entire populations do not rise to the level of persecution.” Id.
In this case, the gang attacked Orellana‐Arias, throwing
him to the ground, kicking him and twisting his ankle. Our
precedent informs that minor injuries such as these, albeit
traumatic, do not rise to the level of persecution. “Persecu‐
tion involves, we suggest, the use of significant physical force
against a person’s body, or the infliction of comparable
physical harm without direct application of force.” Tsegmed
v. Sessions, No. 16‐1036, 2017 WL 2588881, at *3, 859 F.3d 480
(7th Cir. June 15, 2017) (emphasis in original). Mere harass‐
ment will not suffice. Velasquez‐Banegas, 846 F.3d at 270. See
Nzeve v. Holder, 582 F.3d 678, 684 (7th Cir. 2009) (blister and
bruises from attack does not compel finding of past persecu‐
tion); Mema v. Gonzales, 474 F.3d 412, 416–18 (7th Cir.2007)
(abduction at gunpoint followed by detention and physical
abuse, resulting in petitioner losing consciousness, did not
compel conclusion that petitioner suffered past persecution);
Zhu v. Gonzalez, 465 F.3d 316, 319–20 (7th Cir. 2016) (beating,
including being hit on the head with a brick resulting in cut
requiring seven stitches, did not compel finding of persecu‐
tion); see also Dandan v. Ashcroft, 339 F.3d 567, 573–74 (7th
Cir. 2003) (record did not compel conclusion that petitioner
suffered persecution based on a single incident where he
was detained and deprived of food for three days and was
“beaten to the extent that his face became ‘swollen’” because
petitioner needed to provide more detail).
As the immigration judge pointed out, the death threats
are more troubling, but Orellana‐Arias bought off the gang
No. 16‐1874 15
members with small payments, and other than the minor
physical injury in the first interaction, they appeared content
to leave him physically unharmed each time thereafter de‐
spite his failure to meet their high monetary demands and
despite the fact that he never participated as a police lookout
as they requested. No one in his immediate family was
threatened with death or physical injury due to his failure to
meet the gang’s demands. The immigration judge found that
the threats simply were not credible or imminent. R. 133. The
facts do not compel us to conclude otherwise.
The economic hardship posed to Orellana‐Arias and his
family from this extortion cannot be ignored, but we cannot
say that the immigration judge erred by concluding that the
economic harm did not rise to the level of persecution. Eco‐
nomic harm can indeed rise to the level of persecution if it is
deliberately imposed as a form of punishment and it results
in sufficiently severe deprivations. Ahmed v. Gonzales, 467
F.3d 669, 673 (7th Cir. 2006). But, as we have noted, our im‐
migration laws do not allow for grants for asylum for gener‐
alized conditions of crime and poverty within a nation. Ve‐
lasquez‐Banegas, 846 F.3d at 270. This case highlights the dire
circumstances that many people around the world face from
drugs, gangs, crime, and poverty. El Salvador has one of the
highest crime rates in the world. See Rivera, 845 F. 3d at 866.
“But persecution is not so broad a concept as to encompass
all that we regard as ‘unfair, unjust, or even unlawful or un‐
constitutional’” and does not include within its parameters
“unpleasant or even dangerous conditions in [the appli‐
cantʹs] home country ” or “[g]eneral conditions of hardship
that affect entire populations.” Ahmed, 467 F.3d at 673 (inter‐
nal citations omitted). An applicant for asylum must present
16 No. 16‐1874
evidence of how safe or unsafe he personally will be in El
Salvador. Rivera, 845 F.3d at 866.
Orellana‐Arias states that we defined persecution in
Tapiero de Orejula to include repeated attempts at extortion
and various death threats. See Brief of Petitioner at 16 (citing
Tapiero de Orejula, 423 F.3d at 673). But he neglects to include
the fact that we found persecution of that family where the
gang repeatedly attempted to extort the family, made multi‐
ple death threats, and actually followed up those threats by
murdering the family patriarch. Tapiero de Orejula, 423 F.3d
at 673. Here of course, and thankfully, there was no actual
murder of a family member lending credence to the naked
threats. Orellana‐Arias has not met his burden of demon‐
strating past persecution.
An applicant who has not demonstrated past persecution
but who still seeks asylum, must demonstrate a clear proba‐
bility of future persecution “because of [his] race, religion,
nationality, membership in a particular social group, or po‐
litical opinion.” 8 U.S.C. § 1231(b)(3)(A). Orellana‐Arias must
show a clear probability of persecution if removed to El Sal‐
vador, that is, that it appears more likely than not that he
will suffer persecution if removed. Musa v. Lynch, 813 F.3d
1019, 1023 (7th Cir. 2016); 8 C.F.R. § 1208.16(b)(2).
The immigration judge’s determination that Orellana‐
Arias failed to establish that there was a clear probability
that he would be subject to future danger because of his
membership in these social groups was supported by rea‐
sonable and substantial evidence. A petitioner must set forth
specific, detailed evidence indicating that it would be more
likely than not that he would be individually targeted for
harm. Lozano‐Zuniga, 832 F.3d at 828–29. Fears of generalized
No. 16‐1874 17
harms are not enough. Id. at 828. The immigration judge de‐
termined that Orellana‐Arias’s fear of future persecution
was too speculative to meet the burden for withholding of
removal. The gang has not delivered on any threats against
his family since he has been gone (nor did they while he was
in El Salvador), gang members never asked Orellana‐Arias
to join MS‐13 in the past nor punished him for failing to act
as a police lookout. Nor have they extorted his family while
he has been in the United States despite the fact that he had
previously admitted to the gang members that he had been
sending all of the money he earned in the United States
home to his family so that they could repair their hurricane‐
damaged home.
That leaves for our consideration, Orellana‐Arias’s claim
for protection under the Convention Against Torture. Orel‐
lana‐Arias argues that the Board, in addressing the CAT
claim in a single sentence, failed to attend to his arguments
and demonstrate that it considered the evidence. It is true
that an immigration judge must “consider the issues raised,
and announce its decision in terms sufficient to enable a re‐
viewing court to perceive that it has heard and thought and
not merely reacted.” Mansour v. I.N.S., 230 F.3d 902, 908 (7th
Cir. 2000). But the Board is not “required to write an exegesis
on every contention.” Id. The Board is presumed to have re‐
viewed the record and the burden is on the petitioner to
prove that the agency failed to consider his arguments.
Rashiah v. Ashcroft, 388 F.3d 1126, 1130 (7th Cir. 2004). More‐
over, we review the immigration judge’s decision wherever
the Board has not supplanted it with its own rationale. Jab‐
ateh v. Lynch, 845 F.3d 332, 337 (7th Cir. 2017). Where the
Board has spoken, we review its reasoning. Id. But where it
has not, we review the immigration judge’s reasoning. Id. To
18 No. 16‐1874
the extent the Board’s decision is lacking, therefore, we can
look to the immigration judge’s decision to fill in the gaps.
Although it is true that the Board’s discussion of the applica‐
tion for protection under CAT was quite cursory, the immi‐
gration judge dedicated several paragraphs to Orellana‐
Arias’s CAT claim and thus we have sufficient reasoning
from the immigration judge’s decision, together with the
Board’s decision, to review.
The burden for CAT protection is no less stringent than
that for withholding of removal. Lozano‐Zuniga, 832 F.3d at
830. Orellana‐Arias must demonstrate that it is more likely
than not that he would be tortured if removed to El Salva‐
dor. Id.
‘Torture’ is defined as the intentional infliction
of ‘severe pain or suffering’ for the purpose of
coercion, punishment, or discrimination 8
C.F.R. §§ 1208.16(c)(2), 208.18(a)(1). Torture
does not include ‘lesser forms of cruel, inhu‐
man or degrading treatment or punishment,’
id. § 208.18(a)(2), or suffering inherent to ‘law‐
ful sanctionsʹ imposed for violating the law, id.
§ 208.18(a)(3).
Id. (citing Borovsky v. Holder, 612 F.3d 917, 923 (7th Cir.
2010)). The applicant for CAT protection must demonstrate
that the torture was inflicted by or at the behest of, or with
the consent or acquiescence of, a public official. Lozano‐
Zuniga, 832 F.3d at 830.3
3 Orellana‐Arias objects to the immigration judge’s use of the acquies‐
cence standard alone without also including “willful blindness” explicit‐
(continued)
No. 16‐1874 19
The immigration judge’s decision, supplemented by that
of the Board, concluded that Orellana‐Arias had not sus‐
tained his burden of demonstrating that it was more likely
than not that Orellana‐Arias would be tortured if he re‐
turned to Mexico. In assessing whether Orellana‐Arias has
met his burden, the immigration judge must address various
factors such as evidence of past torture, ability to relocate
within the country, evidence of grave human rights viola‐
tions or other relevant country conditions. Tchenkou v. Gonza‐
les, 495 F.3d 785, 795 (7th Cir. 2007) (citing 8 C.F.R.
§ 208.16(c)(3)(i)–(iv)). The immigration judge referred back
to her assessment of the withholding of removal claim, not‐
ing that his “CAT claim is based on the same arguments he
made for withholding of removal.” R. 138. Therefore the
immigration judge addressed Orellana‐Arias’s evidence of
past torture (R. 132–134, 138), his claim that he could not re‐
locate within the country, (R. 129), and evidence of country
conditions (R. 130–31, 134–35, 137–38), along with the ac‐
companying details.
ly within the umbrella of acquiescence as some circuits have done. See,
e.g., Myrie v. Attorney Gen. United States, 855 F.3d 509, 516 (3d Cir. 2017).
Our circuit has not affirmatively adopted the “willful blindness stand‐
ard” other than in passing while quoting the Board’s decision. See Loza‐
no–Zuniga, 832 F.3d at 831 (“As the Board held, ‘[t]he record does not
sufficiently substantiate that any Mexican public official currently would
seek to torture the respondent or would acquiesce in or exhibit willful
blindness toward any torture inflicted on him by any gang member, any
criminal, or anyone else.’”) (citing decision of the Board below). But the
Board in this case did indeed look to see whether the government was
“willfully blind” to the gang activity and so even if that is the standard
that this court requires, the two opinions, supplementing each other, en‐
gage in the correct evaluation.
20 No. 16‐1874
The immigration judge, having concluded that Orellana‐
Arias did not suffer harm rising to the level of persecution,
also concluded that he could not show that it was more like‐
ly than not that Orellana‐Arias would be tortured should he
return to El Salvador. All of his fear, the immigration judge
concluded, was based on speculation. The immigration
judge acknowledged that a couple of police officers had shot
at him on one occasion as Orellana‐Arias ran away from
them, but the court concluded, with good reason based on
Orellana‐Arias’s testimony, that this was a case of mistaken
identity or a random act of violence and not torture inflicted
by or at the behest of a public official. Orellana‐Arias pre‐
sented country condition reports speaking to the violence in
the country and the government’s inability to control it, in‐
cluding its acquiescence that results from corruption. R. 130–
31, 134, 138. Nevertheless, none of this constituted evidence
that Orellana‐Arias specifically would be targeted for torture
by the government or due to its acquiescence. “Acquiescence
of a public official requires that the public official, prior to
the activity constituting torture, have awareness of such ac‐
tivity and thereafter breach his or her legal responsibility to
intervene to prevent such activity.” Lozano–Zuniga, 832 F.3d
at 831 (citing 8 C.F.R. § 1208.18(a)(7)). We are not compelled
to overrule the Board’s finding that Orellana‐Arias did not
demonstrate that any torture would be at the acquiescence
(or willful blindness, for that matter, see footnote 3, supra) of
the government.
The Board’s determination (along with that of the immi‐
gration judge where the Board had not spoken) is supported
by reasonable, substantial, and probative evidence on the
record considered as a whole and therefore the petition for
review is DENIED.