Remberto Aguinada-Lopez v. Eric H. Holder, Jr.

Filing

OPINION FILED - THE COURT: Diana E. Murphy, Duane Benton and Jane Kelly AUTHORING JUDGE:Duane Benton (PUBLISHED) [4408445] [15-1095]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1095
___________________________
Remberto Aguinada-Lopez
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, Attorney General of the United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: December 17, 2015
Filed: June 7, 2016
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Before MURPHY, BENTON, and KELLY, Circuit Judges.
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BENTON, Circuit Judge.
Remberto Aguinada-Lopez, a citizen of El Salvador, entered the United States
illegally. He sought relief from removal by asserting claims for asylum, withholding
of removal, and withholding under the Convention Against Torture. The Immigration

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Judge and Board of Immigration Appeals denied each claim. Having jurisdiction
under 8 U.S.C. § 1252, this court denies the petition for review.1
Aguinada-Lopez is not a gang-member, but his cousin Oscar Gil belonged to
the MS-13 gang (rival to the Dieciocho gang). Aguinada-Lopez alleges four
incidents of violence in El Salvador. First, two men approached, asked if he were in
a gang, and knocked him unconscious with a pistol. The second incident occurred
when three men intercepted him, in his school uniform, leaving school (the National
Industrial Technical Institute). The men beat him, threw rocks at him, bludgeoned
him with sticks, and told him if he returned to the Institute, they would kill him. The
third incident occurred when a man in black knocked him off his bicycle, pulled a
gun, and said “You’re that rat Oscar’s cousin.” When a car approached, the assailant
fired three or four shots in the air and ran away. In the last incident, two men dressed
in black shot at him. Aguinada-Lopez then went to stay at a friend’s home, but
members of the Dieciocho gang threatened his mother to “look for him anywhere,
everywhere.” Shortly after leaving El Salvador, members of the Dieciocho gang
killed Oscar in front of Aguinada-Lopez’s house as a “threat for [him] not to
return. . . .”
The Immigration Judge found Aguinada-Lopez credible but denied all claims
for relief. The Board of Immigration Appeals affirmed. When the BIA adopts the
decision of an IJ but adds additional reasoning, this court reviews both decisions.
Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir. 2006). Factual findings are reviewed
for substantial evidence and not reversed unless “any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Questions of
law are reviewed de novo. Setiadi, 437 F.3d at 713.

1

This court’s prior opinion of February 23, 2016 is hereby vacated and this
opinion substituted for it. The pending Petition for Panel Rehearing is denied as
moot.
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I.
The Attorney General may not remove an alien to a country if it is determined
“that the alien’s life or freedom would be threatened in that country because of the
alien’s race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3). An applicant for withholding based on membership
in a particular social group must establish both a cognizable social group and a nexus
between the persecution and membership in that social group. Gonzalez Cano v.
Lynch, 809 F.3d 1056, 1058 (8th Cir. 2016).
Aguinada-Lopez claims persecution on account of his membership in two
family-based social groups: (1) male, gang-aged family members of murdered gang
members, and (2) male, gang-aged family members of his cousin Oscar. The
Immigration Judge found the second “does constitute a particular social group under
the Act.” The BIA disagreed, finding that Aguinada-Lopez’s “circumstances in this
case are not meaningfully distinguishable from those in. . . . the Eighth Circuit’s
precedent decisions,” and concluding that both proposed family-based social groups
are not viable. See Antonio-Fuentes v. Holder, 764 F.3d 902, 905 (8th Cir. 2014)
(rejecting a family-based social group–“member of a household” including cousin
“killed by a gang”–because petitioner did not establish gangs specifically targeted his
family as a group, thus no “different than any other Salvadoran family that has
experienced gang violence”); Constanza v. Holder, 647 F.3d 749, 754 (8th Cir. 2011)
(per curiam) (agreeing with BIA that “a family that experienced gang violence”
(including harm to nephew and cousin) lacked visibility and particularity, thus “too
broad to be perceived as social group[] by society.”). The BIA also affirmed the IJ’s
finding that Aguinada-Lopez “did not establish a sufficient nexus . . . based on his
fear of gangs in El Salvador.”
Assuming Aguinada-Lopez’s proposed family-based groups are cognizable,
this court affirms for failure to establish nexus. See Bernal-Rendon v. Gonzales, 419
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F.3d 877, 881 (8th Cir. 2005) (recognizing that “a nuclear family can constitute a
social group” and that the “prototype” and plainest example of a social group is “the
immediate members of a certain family,” but agreeing with the BIA that petitioners
failed to prove a clear probability of a specific threat to their family as a social group
(noting “extended family” still living without incident in Colombian cities)). Only
the third incident is directly tied to his relationship to Oscar Gil. This single fact does
not compel the conclusion that Aguinada-Lopez established nexus.
See
§ 1252(b)(4)(B). The BIA did not err in denying withholding on the basis of the
family-based particular social groups.
Aguinada-Lopez also claims persecution because of his membership in a third
social group “male, gang-aged members of the Institute.” He cites extensive evidence
suggesting that students at the Institute are victimized by gangs. Although this may
be sufficient to establish a cognizable social group, Aguinada-Lopez lacks evidence
to prove nexus. The IJ found that the first, third, and fourth violent incidents were
motivated by gang-recruitment, gang-membership, or his relationship to Oscar Gil.
Attendance at the Institute may have motivated the second attack (when he was
wearing his school uniform), but this single encounter does not, by itself, rise to the
level of past persecution. See Eusebio v. Ashcroft, 361 F.3d 1088, 1091 (8th Cir.
2004).
The BIA did not err in denying Aguinada-Lopez’s claim for withholding of
removal.
II.
To qualify for relief under the Convention Against Torture, an alien must show
“it is more likely than not that he or she would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 1208.16(c)(2). The torture must be inflicted “by or
at the instigation of or with the consent or acquiescence of a public official or other
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person acting in an official capacity.” § 1208.18(a). “Acquiescence” requires that
the public official be aware of the activity and “thereafter breach his or her legal
responsibility to intervene to prevent such activity.” Id.
To show acquiescence, Aguinada-Lopez relies on country-conditions evidence
identifying instances of police-corruption. However, these same documents also
identify government efforts to end gang violence, including a stimulus program to
rehabilitate gang members, a U.S.-funded wiretap center, and an elite anti-gang police
unit. Certainly, El Salvador has struggled to protect against gang violence, but it has
not acquiesced to gang violence. See Solis v. Mukasey, 515 F.3d 832, 836 (8th Cir.
2008) (“Although the government of El Salvador may struggle to control violence,
there is no evidence in the record that government agents participate or acquiesce in
possible torture perpetrated by others.”); Mouawad v. Gonzales, 485 F.3d 405, 413
(8th Cir. 2007) (“A government does not acquiesce in the torture of its citizens merely
because it is aware of torture but powerless to stop it. . . .” (internal quotations and
citation omitted)).
The BIA did not err in rejecting the CAT claim.2

*******

The petition for review is denied.
______________________________

2

Aguinada-Lopez also sought asylum. The IJ and BIA found the claim to be
time-barred, and he does not appeal that decision.
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