Mayorga-Vidal v. Holder

United States Court of Appeals
For the First Circuit

No. 09-1208

HENRY EDGARDO MAYORGA-VIDAL,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General of the United States,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Lipez, Circuit Judge,
Souter,* Associate Justice,
and Howard, Circuit Judge.

Ilana Greenstein, with whom Maureen O' Sullivan, Jeanette Kain
and Kaplan, O'Sullivan & Friedman, LLP were on brief, for
petitioner.
Corey L. Farrell, Attorney, Office of Immigration Litigation,
United States Department of Justice, Civil Division, with whom Tony
West, Assistant Attorney General, Civil Division and Greg D. Mack,
Senior Litigation Counsel, were on brief, for respondent.

March 16, 2012

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 HOWARD, Circuit Judge. In 2002, petitioner Henry Edgardo

Mayorga-Vidal, a native and citizen of El Salvador, attempted to

enter the United States without authorization. He was detained and

placed in removal proceedings, where he initially denied that he

was removable. He also sought asylum, withholding of removal and

protection under the Convention Against Torture ("CAT"). In

support of his asylum and withholding requests, Mayorga-Vidal

claimed that he would suffer future persecution if returned to his

homeland, based on two statutorily-protected grounds. See 8 U.S.C.

§ 1101(a)(42)(A). The first was his purported membership in a

"particular social group," defined by him as young Salvadoran men

who have resisted gang recruitment and whose parents are

unavailable to protect them. See id. The second ground was his

alleged anti-gang, pro-establishment "political opinion." See id.

He sought CAT relief on the ground that, if repatriated, he would

face gang violence for which the government would be responsible.

All three requests for relief failed before both the Immigration

Judge (IJ) and the Board of Immigration Appeals (BIA),1 and

Mayorga-Vidal now petitions for judicial review. After a careful

review of the final agency orders and the underlying record, we

deny the petition.

1
This case was heard by different IJs on two occasions and
also was twice reviewed by the BIA. Both IJs credited the
petitioner's factual account, and these findings were left
undisturbed by the two BIA decisions.

-2-
 I. Background

We summarize the facts as provided in the agency

decisions and as otherwise undisputed by the parties. Mayorga-

Vidal was born in El Salvador in 1984. By 1998, his parents had

left the country for the United States, leaving him in the care of

his aunt and other family. Many parents made a similar choice in

the wake of the country's civil war, and El Salvador later

experienced wide-spread gang problems.

Mayorga-Vidal's family life in his aunt's household was

less than ideal, and, apparently, none of the extended family

members took an interest in caring for him. Around the time that

Mayorga-Vidal was 14 or 15 years old, gang members of the "Mara 18"

approached him in the street and attempted to recruit him, but he

declined to join their ranks. Upon the arrival of some of his

friends, the gang fled. This encounter would not be the last.

Different members of the Mara 18 approached him on several more

occasions, demanding that he join the gang, and when he refused,

they would tell him to be "very careful." During one encounter,

the gang members threatened to beat him, and, still, he declined

gang membership.

At one point, a neighbor recommended to Mayorga-Vidal

that he join a church group as an alternative to membership in a

street gang and as a means of keeping himself safe from gang

intimidation. He did so and participated in church activities for

-3-
about a year and a half. During this time, his contact with gang

members was minimal because he avoided situations that would force

an encounter. Some contact occurred, however, when Mayorga-Vidal

visited some of his cousins who were active gang members.

In 2001, the petitioner experienced his final

confrontation with the Mara 18, during which gang members told him

that if they ever found him alone they would kill him. The gang's

threats resonated with Mayorga-Vidal because he and his family

believed that the Mara 18 had killed his cousin who had been a

member of a rival gang. He did not report his encounters to the

police out of fear of gang retaliation. Five months after his last

gang encounter, Mayorga-Vidal left for the United States in

February 2002. He was 17 years old at the time.

At his removal hearing, Mayorga-Vidal gave his personal

account, and he presented expert testimony and documentary evidence

about country conditions in El Salvador. The evidence showed that

gang violence was a pervasive problem in El Salvador, touching all

segments of the population. Reports also indicated that the

government had made efforts to combat the gang stronghold,

including the creation of an anti-gang task force which deployed

hundreds of military personnel to high crime areas.

Despite such efforts, gang violence continued to be a

serious, wide-spread problem in El Salvador. Two expert witnesses

testified that the Salvadoran police were ineffectual, with one

-4-
stating that some police officers were actively involved in gang

activity. One also testified that Mayorga-Vidal's status as a

youth without family support would make him a prime target for gang

recruitment, and that if he refused to join a gang he could be

threatened, intimidated, beaten, or killed.

Ultimately, the IJ found Mayorga-Vidal removable, denied

his requests for relief, and ordered him removed to El Salvador

(2004 IJ decision). This decision was summarily affirmed by the

BIA (2005 BIA decision), and Mayorga-Vidal petitioned this court

for review. Before appellate briefing was complete, however, on

the government's unopposed motion, the matter was remanded for the

agency to consider the claim of "political opinion" persecution, an

issue left undecided in the 2004 IJ decision. The IJ accepted all

the evidence from the first hearing, as well as additional

testimony from Mayorga-Vidal. The petitioner conceded removability

before the IJ, and after denying his claim of "political opinion"

persecution, the IJ again ordered Mayorga-Vidal removed (2007 IJ

decision). In an order that included brief written analysis, the

BIA affirmed the second IJ's decision and also reaffirmed its

previous dismissal of Mayorga-Vidal's claim of "social group"

persecution (2009 BIA decision). This timely petition followed.

-5-
 II. Discussion

We review the agency's findings of fact under a

deferential, "substantial evidence" standard, and we give respect

to its findings as long as they are supported by the record on the

whole. Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir. 2009);

Touch v. Holder, 568 F.3d 32, 38 (1st Cir. 2009); see 8 U.S.C.

1252(b(4)(B). De novo review is accorded to legal conclusions,

with some deference accorded the agency's statutory interpretation

in line with principles of administrative law. Scatambuli, 558

F.3d at 58; see INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25

(1999); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842-43 (1984). When a statute is silent or

ambiguous, "we uphold the implementing agency's statutory

interpretation, provided it is 'reasonable' and consistent with the

statute." Scatambuli, 558 F.3d at 58.

The procedural path of this case results in the following

review of the agency orders. We review the 2009 BIA decision in

tandem with the 2004 IJ decision for the "particular social group"

claim of future persecution,2 and the 2009 BIA decision together

2
The entirety of the IJ's analysis in its 2004 decision
regarding the "social group"-based claims may be reviewable, given
the 2007 BIA summary affirmance of that decision. The BIA,
however, revisited sua sponte the "social group" analysis in its
2009 decision, and we need not consider the extent to which this
decision may have supplanted the BIA's 2007 summary affirmance
because the reasons provided in its later decision adequately
supported its dismissal of the petitioner's claim of "social group"
persecution.

-6-
with the 2007 IJ decision for the "political opinion" claim of

future persecution. Our review of the CAT claim rests on the 2004

IJ decision as summarily affirmed by the 2005 BIA decision. See,

e.g., Villa-Londono v. Holder, 600 F.3d 21, 23 (1st Cir. 2010)

(stating that where the BIA adopts portions of the IJ's decision

while adding its own comments, appellate court reviews both the

IJ's opinion and the BIA's decision).

Asylum and Withholding of Removal

To be eligible for asylum, an alien must establish that

he has a well-founded fear of future persecution if repatriated (a

showing of past persecution creates a rebuttable presumption of a

well-founded fear), on account of a statutorily-protected ground:

"race, religion, nationality, membership in a particular social

group, or political opinion." 8 U.S.C. 1101(a)(42)(A); see Mendez-

Barrera v. Holder, 602 F.3d 21, 25 (1st Cir. 2010) (providing legal

framework regarding past persecution, and explaining that a well-

founded fear of future persecution is one that is both subjectively

genuine and objectively reasonable). An alien seeking withholding

of removal must meet a higher burden, proving he will more likely

than not suffer future persecution on account of one of the

enumerated protected grounds. See Faye v. Holder, 580 F.3d 37, 41

(1st Cir. 2009); 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16(b)(2);

see also INS v. Stevic, 467 U.S. 407, 430 (1984).

-7-
 In his brief, the petitioner characterizes his future

persecution claim as follows: "[Mayorga-Vidal] does not claim that

being targeted for recruitment efforts constitutes persecution, but

that violent retribution for refusing to comply with those efforts

does." Contending that he will be "branded an enemy," the

petitioner argues that: "Insofar as his refusal to join

constitutes an expression of an anti-gang political opinion, the

Mara 18's retribution against him would clearly be political in

nature. Insofar as his vulnerability to targeting, recruitment and

attack is exacerbated by his status as a young man with no family

to protect him, the retribution would be on account of his

membership in a particular social group as well."

In its 2009 decision, the BIA held that Mayorga-Vidal had

not established past persecution, and the petitioner does not

challenge that conclusion. The Board also affirmed the denial of

both the asylum and withholding of removal requests on the basis

that Mayorga-Vidal had not established that any potential future

persecution would be on account of his "proposed membership in a

particular social group of those opposed to gangs, or any anti-gang

'political opinion' the gangs might impute to [him]."

1. Social Group

The term "particular social group," 8 U.S.C. §

1101(a)(42)(A), is not defined by statute, and we accord deference

to the BIA's interpretation of the bounds of this phrase. See

-8-
Mendez-Barrera, 602 F.3d at 25-26; Faye, 580 F.3d at 41; see also

Gonzales v. Thomas, 547 U.S. 183, 186-87 (2006) (per curiam). We

have accepted that a legally cognizable social group is one whose

members share a common, immutable characteristic that makes the

group socially visible -- that is, generally recognizable in the

community -- and sufficiently particular to define the group's

membership. See Carvalho-Frois v. Holder, 667 F.3d 69, 73 (1st

Cir. 2012); see also Faye, 580 F.3d at 41. Because discrete groups

meeting the immutable characteristic requisite -- such as racial or

ethnic groups, see 8 U.S.C. § 1101(a)(42)(A) -- are already

independently afforded protected status, successful "stand-alone

social group claims are rather rare," Silva v. Ashcroft, 394 F.3d

1, 5 (1st Cir. 2005).

The BIA has defined a common, immutable characteristic as

"one that the members of the group either cannot change, or should

not be required to change because it is fundamental to their

individual identities or consciences," akin to the other four

protected grounds -- race, religion, nationality, and political

opinion. In re Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985); see

Scatambuli, 558 F.3d at 59 (identifying factors relied upon by the

BIA to determine whether a claimed social group constitutes a

legally cognizable one). Examples include an innate characteristic

such as sex, color, or kinship ties, or a shared past experience

such as former military leadership or land ownership. In re

-9-
Acosta, 19 I. & N. Dec. at 233; see also In re C-A-, 23 I. & N.

Dec. 951, 955, 959-60 (BIA 2006) (discussing immutability based on

past experiences and collecting BIA cases illustrating a range of

recognized "particular social groups").

Additionally, societal perceptions are important. The

BIA has underscored that "the extent to which members of a society

perceive those with the characteristic in question as members of a

social group" plays a meaningful part in discerning whether a

particular shared characteristic gives rise to a protected social

group. In re E-A-G-, 24 I. & N. Dec. 591, 594 (BIA 2008); see

Carvalho-Frois, 667 F.3d at 73 (providing that the common

characteristic must be one that enables the community, not just the

alleged persecutors, "readily to differentiate" members of the

group from the country's populace as a whole).

Especially pertinent here, a common, immutable

characteristic properly bounds a protected social group only if it

is "sufficiently distinct" such that the proposed group would be

recognized as a "discrete class of persons." In re S-E-G-, 24 I.

& N. Dec. 579, 584 (BIA 2008). In other words, the proffered

characteristic must provide a clear demarcation, "permit[ting] an

accurate separation of members from non-members"; an amorphous

feature will not satisfy this requirement. Ahmed v. Holder, 611

F.3d 90, 94 (1st Cir. 2010); In re S-E-G-, 24 I. & N. Dec. at 584.

Consequently, loose descriptive phrases that are open-ended and

-10-
that invite subjective interpretation are not sufficiently

particular to describe a protected social group. See Ahmed, 611

F.3d at 94; Mendez-Barrera, 602 F.3d at 27.

Discerning the parameters of a cognizable social group is

not always a straightforward task, especially when the proposed

shared immutable characteristic comprises a common life experience

or circumstance, rather than an innate trait or physical

demarcation. Nevertheless, an examination of precedent provides

sufficient guidance in this case. See Garcia-Callejas v. Holder,

666 F.3d 828, 829 (1st Cir. 2012).

Mayorga-Vidal identifies his purported social group as

"young Salvadoran men who have already resisted gang recruitment

and whose parents are unavailable to protect them." We have,

however, on many occasions rejected social group status for

purported groups bearing similar hallmarks -- namely, youth who are

resistant to gang membership. See id. at 830 (collecting cases

that decline protected social group status for young Salvadoran men

or women recruited by gang members or those who resist such

recruitment); see, e.g., Diaz v. Holder, No. 11-1125, 2012 WL

372664, at *2 (1st Cir. Feb. 7, 2012); Socop v. Holder, 407 F.

App'x 495, 498 (1st Cir. 2011); Mendez-Barrera, 602 F.3d at 26-27;

Larios v. Holder, 608 F.3d 105, 109 (1st Cir. 2010). Recently, we

displayed several BIA cases that are consistent with this approach.

See Garcia-Callejas, 666 F.3d at 830.

-11-
 The bulk of the characteristics of Mayorga-Vidal's

purported social group -- young men who have resisted gang

recruitment -- fall squarely within this governing authority, and

the BIA cited to its own precedent in this regard when affirming

the denial of asylum and withholding. See In re S-E-G-, 24 I. & N.

Dec. at 585 (rejecting a petitioner's proposed social group of

young Salvadorans who resisted gang recruitment in part because it

represented a large, diffuse portion of society with

characteristics simply too amorphous to readily distinguish the

boundaries of membership). Although "particular social group"

status is a country-specific inquiry that involves underlying fact

finding, see Gonzales, 547 U.S. at 186-78; Faye, 580 F.3d at 41, we

have repeatedly deferred to the BIA's reasonable determination that

the features encompassing "youths who resist gang recruitment" are

simply too subjective and open-ended to describe a sufficiently

particular, legally cognizable social group. See, e.g., Diaz Ruano

v. Holder, 420 F. App'x 19, 22 (1st Cir. 2011) (per curiam);

Larios, 608 F.3d at 109; Mendez-Barrera, 602 F.3d at 27. The same

analysis applies to this case, and we need not revisit it.

Mayorga-Vidal, however, seeks to distinguish his proposed

group by attributing a purported immutable characteristic that he

claims is sufficiently particular and socially visible: the group

consists of those whose parents are unavailable to protect them.

According to the petitioner, the BIA improperly relied on prior BIA

-12-
decisions and failed to consider the uncontroverted evidence that

a large segment of Salvadoran children were left behind when their

parents fled the country in the 1980s and 1990s due to civil war,

that the young males who consequently lack parental protection are

particularly vulnerable to gang recruitment, and that Salvadoran

society, the police, and gangs all view this distinct, vulnerable

population as prime candidates for gang recruitment. The record

does not bear out these criticisms.

In affirming the IJ's dismissal of the claims based on

social group, the BIA did not ignore the evidence, as the

petitioner contends, but rather adopted the IJ's analysis and

followed supportive BIA precedent. See In re S-E-G-, 24 I. & N.

Dec. 579; In re E-A-G-, 24 I. & N. Dec. 591. The IJ's decision, in

turn, reflects several reasons for declining to extend protected

social group status to the proffered characteristics urged by the

petitioner.

The IJ found that the petitioner's proffered group

profile was "too broad and encompasses too large a percentage of

the population." In so doing, the IJ followed prior BIA authority

setting forth that "simply identify[ing] the common characteristic

of a statistical grouping of a portion of the population at risk"

is not enough to create a "particular social group." See In re

Sanchez and Escobar, 19 I. & N. Dec. 276, 285 (BIA 1985). In

considering the record before it, the IJ found that the evidence

-13-
did not establish that "young men without familial support are

viewed as members of a distinct social group," and that the

characteristics of "the claimed group do not define its members."

This reasoning is supported by the record, is in keeping with

governing authority, and displays a reasonable construction of the

statutory category "particular social group."

By his own admission, Mayorga-Vidal's situation is "far

from unique among Salvadoran children" in a country "swarming with

unsupervised, uncared-for young people." Throughout his brief, he

points to evidence that the familial-based vulnerability to gang-

recruitment shared by many young Salvadoran males has a variety of

causes, ranging from parents fleeing the country or dying during

the civil war, to youth who are being raised by a single mother or

are victims of domestic violence. He further identifies evidence

that many youth are vulnerable to gang recruitment because they are

not well-protected by the community at large. At bottom, the

evidence supports the conclusion that the gangs are opportunistic

and prey upon vulnerable youth without regard for the particular

cause of weakness.

Not only does the determination of social group status

require an appropriate evidentiary foundation, but also recognition

of a statutorily-protected particular social group requires more

than evidence of a broad social grouping based on a general

immutable characteristic, even if the grouping bears some measure

-14-
of identifiable boundaries. See, e.g., Civil v. I.N.S., 140 F.3d

52, 56 (1st Cir. 1998) (despite "ample documentary evidence that

young people in Haiti were not exempted from the general violence

and unrest that occurred in the aftermath of Haiti's military coup,

[Haitian alien] presented no evidence that such persons constitute

anything other than a general demographic segment of the troubled

Haitian population"). This is just the type of evidentiary concern

expressed by the IJ and adopted by the BIA in this case. Moreover,

for its part, the BIA also relied on In re E-A-G- in which it had

previously rejected a Honduran citizen's request for social group

status for "persons resistant to gang membership (refusing to join

when recruited)," partly because the evidence failed to establish

the existence and visibility of a persecuted group beyond a general

showing of "statistical or actuarial groups," or "artificial group

definitions." 24 I. & N. Dec. at 595. Reliance on this precedent

was sound.

The broad and diffuse nature of the petitioner's

purported social grouping also stems from the loose and open-ended

nature of the profile that he urges. His label of youth "whose

parents are unavailable to protect them" -- i.e., "lacking in

parental protection" -- invites subjective interpretation. Here,

Mayorga-Vidal's parents left him in the care of his aunt and other

family -- conduct which could be thought to afford him parental

protection through the substitute care of other family members.

-15-
And yet, the aunt apparently neglected this expected task, leaving

him unprotected and vulnerable to gang-recruitment. While some may

view the loss of parental protection as due to his parents leaving

the country, others might justifiably lay blame on the petitioner's

aunt for failing in her substitute parental role. Leaving to one

side the apparent assumption that Mayorga-Vidal's familial-based

vulnerability would continue once he is back in his homeland, this

one illustration drawn from the record demonstrates that a "lack of

parental protection" inquiry involves too much subjectivity. It is

not hard to paint the myriad difficulties that would be encountered

in attempting to objectively distinguish between vulnerable youths

lacking in supervision and those not. One wonders where and how

the "lack of parental protection" boundary can be legitimately

drawn based on objective criteria. In relying on In re S-E-G-, the

BIA decision expresses a similar legitimate concern. See In re S-

E-G-, 24 I. & N. Dec. at 585 (rejecting protected social group

status to "Salvadoran youths who have resisted gang recruitment,"

reasoning in part that characteristics such as "male children who

lack stable families and meaningful adult protection" are

"amorphous because 'people's ideas of what those terms mean can

vary'").3

3
The petitioner challenges the IJ's conclusion that
"[t]emporary placement for care with relatives does not equate into
an immutable characteristic which is necessary to establish
membership in a particular social group." He argues that this
finding signifies a miscalculation about his group profile. We

-16-
 Ultimately, the grouping advanced by the petitioner bears

amorphous or boundless features not unlike those that we have

previously rejected as giving rise to a legally cognizable

"particular social group." See, e.g., Garcia-Callejas, 666 F.3d at

830 (noting that "[w]e have rejected social groups based solely on

perceived wealth, even if signaling an increased vulnerability to

crime"); Faye, 580 F.3d at 42 (declining the alien's requested

social group status for "adulterers [having] a child out of

wedlock" as "too general" and "not sufficiently particular" because

it was too "difficult to identify" when the country's populace

would consider a woman with her experience, i.e., having a child

while married, as part of such a group).

The evidence does not compel a conclusion that there

exists a particular social group comprised of young Salvadoran

males who have resisted gang recruitment and are vulnerable to

gangs from a lack of parental or family protection. The term

"particular social group," while ambiguous, has an aim, just as do

the other statutorily-protected categories such as race and

religion. Not every shared characteristic -- including many common

disagree. The IJ's written decision reflects that when assessing
the propriety of the social grouping advocated by Mayorga-Vidal, he
considered what the petitioner classifies as his group's "critical"
immutable characteristics: "his rejection of gang culture[,] his
refusal to join it," and "[h]is status as a child, with absent
parents." The "temporary placement" statement simply reflects the
fact that the proffered social grouping partly rested on the
petitioner's specific circumstance of having been temporarily
placed under the care of other family members.

-17-
life experiences that cannot be undone -- will give rise to a

cognizable social group. See In re C-A-, 23 I. & N. Dec. at 958

(providing, "A past experience is, by its very nature, immutable,

as it has already occurred and cannot be undone. However, that

does not mean that any past experience that may be shared by others

suffices to define a particular social group for asylum

purposes.").

The BIA's decision to decline to acknowledge protected

status for Mayorga-Vidal's proposed group profile is substantially

supported by the evidence and is a reasonable construction of the

statute. Accordingly, we accept it. This holding is fatal to both

the petitioner's "social group"-based requests for asylum and for

withholding of removal.4

2. Political Opinion

Mayorga-Vidal next contends that the agency committed

legal error when rejecting his claim of future persecution on

account of his anti-gang, pro-establishment "political opinion."

He argues that the IJ erred in dismissing his claim merely because

4
In his reply brief, the petitioner argues for the first time
that, in recent decisions, the BIA's "particular social group"
analysis has departed from settled law by requiring members of a
proposed social group to demonstrate not only that they share an
immutable characteristic but also that the characteristic is
"literally visible to the naked eye" and recognizable to the
general population of the country from which they have fled. This
delayed argument is waived and we, therefore, decline to address
it. See Ouk v. Keisler, 505 F.3d 63, 66 n.3 (1st Cir. 2007)
(issues raised by the appellant for the first time in the reply
brief are generally deemed waived).

-18-
he was not a prominent gang critic or member of an organization

aimed at dismantling or suppressing gangs, and that the IJ thereby

failed to recognize that the petitioner had communicated his

political opinion to the gang members by refusing their efforts to

recruit him. Challenging the BIA's decision, the petitioner

charges that it "engaged in no analysis whatsoever," and simply

followed its precedent without accounting for the "fundamentally

different" evidence before it. These plaints lack merit.

The IJ found that the gang members' recruitment efforts

did not arise "out of a political animus," and also underscored two

evidentiary points: first, while the petitioner testified to his

firmly held anti-gang opinion, he presented no evidence that he

expressed this opinion to the gang members during his encounters

with them; and second, he presented no evidence that he had made

his anti-gang opinion publicly known. We discern no error in this

reasoning.

Political persecution may be grounded on an imputed

political opinion, whether or not the opinion is correctly or

incorrectly attributed to the alien. See Vasquez v. I.N.S., 177

F.3d 62, 65 (1st Cir. 1999). Nevertheless, evidence of mere

refusal to join a gang, without more, does not compel a conclusion

that the alleged persecutor viewed the alien's resistance as an

expression of a political opinion. See In re E-A-G-, 24 I & N.

Dec. at 596; see also INS v. Elias-Zacarias, 502 U.S. 478, 481-82

-19-
(1992) (rejecting notion that an alien's mere resistance to forced

guerilla conscription necessarily expresses a political opinion

hostile to the alleged persecutor). Here, the petitioner points to

no evidence compelling a conclusion that the gang members

understood that his mere refusal to join their ranks was an

expression of an anti-gang, pro-establishment political opinion.

See Vasquez, 177 F.3d at 65. Indeed, the evidence supports the

IJ's finding that the gang's recruitment agenda was simply

strategic rather than political. See id.; see also Tobon-Marin v.

Mukasey, 512 F.3d 28, 31 (1st Cir. 2008) (identifying range of

motives that may drive coercive conscription efforts); cf. Reyes

Beteta v. Holder, 406 F. App'x. 496, 499 (1st Cir. 2011)

(collecting cases holding that gang action motivated by extortion

is not equivalent to targeting a protected social group).

Finally, contrary to the petitioner's assertion, the BIA

adopted the analysis of the IJ, and the Board properly viewed two

of its prior decisions as materially indistinguishable from

Mayorga-Vidal's case. See In re S-E-G-, 24 I. & N. Dec. 579; In re

E-A-G-, 24 I. & N. Dec. 591. Both prior BIA decisions dismissed

claims of political opinion persecution partly because the record

lacked evidence showing that the gangs would impute an anti-gang

political opinion to the alien's actions in refusing to join their

ranks, or showing that the gangs were motivated by any reason other

than increasing their size and influence. In re S-E-G-, 24 I. &

-20-
N. Dec. at 589; In re E-A-G-, 24 I. & N. Dec. at 597. The BIA's

reliance on these decisions was sound.

In the end, we discern no error in the agency's finding

that the petitioner failed to establish a well-founded fear of

future persecution on account of his political opinion.5 This

holding also dooms his request for withholding of removal.

Convention Against Torture

To prevail on a CAT claim, an applicant must prove that

he will more likely than not face torture upon repatriation. See

Ahmed, 611 F.3d at 97-98; see also 8 C.F.R. §§ 1208.16(c)(2).

Torture involves "any act by which severe pain or suffering,

whether physical or mental . . . is intentionally inflicted on a

person . . . by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an

official capacity." 8 C.F.R. § 1208.18(a)(1); see Limani v.

Mukasey, 538 F.3d 25, 32 (1st Cir. 2008). It is "an extreme form

of cruel and inhuman treatment and does not include lesser forms of

5
The 2004 IJ decision also found there was no nexus between
the petitioner's encounters with gang members and his purported
membership in a "social group" based on his lack of parental or
family support. The IJ specifically found that the gang members'
conduct "can be attributed to other factors beyond [Mayorga-
Vidal's] identification with this particular group," and that the
gang "threats are more closely linked with the gang's desire to
outnumber its rival gang as opposed to persecuting [Mayorga-Vidal]
for membership in a particular social group." This lack of nexus
finding was endorsed by the BIA in its 2009 decision and provides
additional support for the agency's dismissal of the petitioner's
"social group"-based claim of future persecution.

-21-
cruel, inhuman or degrading treatment or punishment that do not

amount to torture." 8 C.F.R. § 1208.18(a)(2); see also 8 C.F.R. §

1208.18(a)(4)-(6).

Mayorga-Vidal argues that the IJ erroneously rejected his

CAT claim on the sole basis that he failed to prove that the

Salvadoran government had actual knowledge of his specific

encounters with the gangs and of the specific future torture that

he fears will take place. According to the petitioner, the IJ's

decision is flawed because government acquiescence only requires

proof that "government officials deliberately accept the group's

activities" such that the gangs may be considered "state actors."6

But see 8 C.F.R. § 1208.18(a)(7) ("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."). Regardless, the petitioner reads the

IJ's reasoning too narrowly. Properly read, the agency decision is

supported by the evidence and legally sound.

6
The petitioner cites to the BIA decision of In re S-V-, 22 I.
& N. Dec. 1306 (BIA 2000), to support his view of the legal
contours for government acquiescence. This reliance is surprising
given the disdainful treatment of this BIA decision by several
circuits. See, e.g., Hakim v. Holder, 628 F.3d 151, 155-56 (5th
Cir. 2010); Marroquin-Ochoma v. Holder, 574 F.3d 574, 579 n.3 (8th
Cir. 2009); McIntosh v. I.N.S., 247 F. App'x 226, 227-28 (2d Cir.
2007); Silva-Rengifo v. Att'y Gen., 473 F.3d 58, 65-70 (3d Cir.
2007); Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006); Zheng
v. Ashcroft, 332 F.3d 1186, 1196 (9th Cir. 2003).

-22-
 The IJ determined that the petitioner failed to establish

the government acquiesced to the gang's threatening conduct toward

him in the past, or that it would do so in the future.

Specifically addressing Mayorga-Vidal's past gang encounters, the

IJ noted that he "did not report the threats to the police or any

other governmental agency." This observation supports the

conclusion that the Salvadoran government lacked actual knowledge

of the gang's specific conduct toward Mayorga-Vidal. Coupled with

other evidence reviewed by the IJ, it also supports the conclusion

that the petitioner failed to show that the government would

acquiesce to torture by gangs.

The IJ considered evidence that the government has been

taking concrete measures to combat gang violence. The record shows

that the government established an anti-gang task force, deploying

military personnel to high crime areas, and also that the

authorities arrested many individuals pursuant to anti-gang

legislation. Although there was evidence some police officers have

engaged in gang-related activity, the record also supports the

conclusion that such individuals were arrested for their actions,

expelled from the police force, or otherwise held responsible for

their misconduct.

El Salvador's efforts at managing gang activity have not

been completely effectual. The record, however, does not compel a

conclusion that the government has acquiesced in gang activities.

-23-
Cf. Mendez-Barrera, 602 F.3d at 28 (holding that country conditions

reports, standing alone, failed to establish that the petitioner

would face a likelihood of government-sanctioned torture); Faye,

580 F.3d at 42 (affirming the agency's dismissal of a CAT claim

where the alien failed to report the domestic abuse to the

authorities or to otherwise display a sufficient link to the

government); Amilcar-Orellana v. Mukasey, 551 F.3d 86, 92 (1st Cir.

2008) (affirming the agency's dismissal of a Salvadoran alien's CAT

claim because substantial evidence supported the BIA's conclusion

that the government "is trying as best it can to control the

gangs"). Accordingly, we must accept the BIA's determination that

the petitioner has not established a likelihood of torture if he is

repatriated.

III. Conclusion

After careful review of the record and the agency

decisions, we deny the petition.

-24-