United States Court of Appeals

For the Eighth Circuit 

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Nos. 20-3681, 23-1667

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Veronica Griselda Mena-Leon; W.A.A.; C.D.A. 

 Petitioners 

v.

Merrick B. Garland, Attorney General of the United States

 Respondent

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Petition for Review of an Order of the

Board of Immigration Appeals

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Submitted: December 15, 2023

Filed: February 7, 2024

[Unpublished]

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Before SMITH, Chief Judge, GRUENDER and GRASZ, Circuit Judges. 

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PER CURIAM.

In 2008, Veronica Mena-Leon, a citizen of El Salvador, entered the United 

States using an altered visa and a counterfeit Guatemalan passport. The Department 

of Homeland Security (“DHS”) processed Mena-Leon for expedited removal, see 8 

U.S.C. § 1225(b)(1), and removed her from the United States. 
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In 2014, Mena-Leon and her two minor children, W.A.A. and C.D.A., entered 

the United States without being admitted or paroled. DHS reinstated Mena-Leon’s 

2008 removal order and charged W.A.A. and C.D.A. with removability under 8 

U.S.C. § 1182(a)(6)(A)(i). Mena-Leon filed an application for withholding of 

removal, see id. § 1231(b)(3)(A), and protection under the Convention Against 

Torture (“CAT”). W.A.A. and C.D.A. conceded removability but filed applications 

for asylum, see id. § 1158, withholding of removal, see id. § 1231(b)(3)(A), and 

protection under the CAT.

An Immigration Judge (“IJ”) held a hearing on the applications. Mena-Leon 

testified that she operated a seafood shop in El Salvador with her sister-in-law, Maria 

Alvarez Bonilla. Gang members attempted to extort money from Bonilla, and, in 

2014, men with tattoos of the Mara 18 gang shot and killed Bonilla. The gang 

members involved in Bonilla’s murder were arrested but subsequently released and 

never imprisoned. After Bonilla’s murder, Mena-Leon received one phone threat 

and two written threats from gang members. The threats instructed Mena-Leon to 

pay the gang members extortion money. Mena-Leon did not report these threats to 

the police. 

The IJ denied the applications, and Mena-Leon and her children appealed the 

IJ’s decision to the Board of Immigration Appeals (“BIA”). The BIA dismissed the 

appeal. Mena-Leon and her children subsequently moved the BIA to reopen their 

applications in light of the Attorney General’s decisions vacating Matter of A-B-, 27 

I. & N. Dec. 316 (A.G. 2018), and Matter of L-E-A-, 27 I. & N. Dec. 581 (A.G. 

2019), but the BIA denied the motions. Mena-Leon and her children now petition 

this court for review of the BIA’s decisions. 

“Only the BIA order is subject to our review, including the IJ’s findings and 

reasoning to the extent they were expressly adopted by the BIA.” Uriostegui-Teran 

v. Garland, 72 F.4th 852, 855 (8th Cir. 2023) (citing Silvestre-Giron v. Barr, 949 

F.3d 1114, 1117 (8th Cir. 2020)). “We review questions of law de novo, and we 

review the [BIA’s] factual determinations, including its decision that an applicant 
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has failed to establish eligibility for asylum, withholding of removal, or CAT relief, 

under the substantial evidence standard.” Cano v. Barr, 956 F.3d 1034, 1038 (8th 

Cir. 2020). Under this “extremely deferential standard of review[,] . . . this court 

will not reverse the [BIA’s] decision unless the petitioner demonstrates that the 

evidence was so compelling that no reasonable fact finder could fail to find in favor 

of the petitioner.” Mejia-Ramos v. Barr, 934 F.3d 789, 792 (8th Cir. 2019) (internal 

citation and quotation marks omitted). We review the BIA’s denial of an applicant’s 

motion to reopen her case for an abuse of discretion. Pacheco-Moran v. Garland, 

70 F.4th 431, 441 (8th Cir. 2023).

We begin with the claims for asylum and withholding of removal. To qualify 

for asylum, an applicant must be “unable or unwilling to return to [her home country]

. . . because of persecution or a well-founded fear of persecution on account of race, 

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

See 8 U.S.C. § 1101(a)(42). To qualify for withholding of removal, an applicant 

“bears the even higher burden of demonstrating a ‘clear probability’ that she will be 

persecuted on account of her membership in a particular social group.” FuentesErazo v. Sessions, 848 F.3d 847, 852 (8th Cir. 2017). For both asylum and 

withholding of removal claims, there must exist a nexus between the persecution 

suffered or feared by the applicant and the applicant’s membership in the claimed 

social group. See Garcia-Moctezuma v. Sessions, 879 F.3d 863, 868 (8th Cir. 2018) 

(noting that the harm suffered by an applicant cannot be “incidental or tangential to 

the persecutor’s motivation”).

Mena-Leon claims that she has a well-founded fear of future persecution by 

gang members based on her membership in the social group of “family members of 

Maria Alvarez Bonilla.” However, the record in this case does not compel the 

conclusion that the harm Mena-Leon suffered and fears in El Salvador actually was, 

or will be, inflicted by gang members on account of her familial relationship with

Bonilla. See Mejia-Ramos, 934 F.3d at 792 (holding that, under the substantial 

evidence standard, this court will only reverse a BIA ruling if the evidence not only 

supports a contrary conclusion but compels it). Mena-Leon testified that she was a 
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business owner and that, after Bonilla was murdered, gang members demanded she 

pay them extortion money. Given Mena-Leon’s testimony, substantial evidence 

supports the BIA’s determination that Mena-Leon was targeted by gang members 

because of her status as a business owner whom the gang could extort for money and 

not due to her familial relationship with Bonilla. Mena-Leon is thus ineligible for 

withholding of removal. See Cambara-Cambara v. Lynch, 837 F.3d 822, 826 (8th 

Cir. 2016) (rejecting the petitioners’ claims for asylum based on family membership 

where “they provided no proof that the criminal gangs targeted members of the 

family because of family relationships, as opposed to the fact that, as prosperous 

businessmen, they were obvious targets for extortionate demands”). As the 

children’s applications are based on the same facts as Mena-Leon’s application and 

they have not offered any evidence independent of her application, we likewise 

conclude that the children are ineligible for asylum and withholding of removal. 

We next turn to the claims for relief under the CAT. An applicant seeking 

relief under the CAT must “establish that it is more likely than not that he or she 

would be tortured if removed to” her home country. 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 acting in an official capacity or other person acting 

in an official capacity.” Id. § 1208.18(a)(1). “A government’s willful blindness 

toward the torture of citizens by third parties amounts to unlawful acquiescence.” 

Khrystotodorov v. Mukasey, 551 F.3d 775, 782 (8th Cir. 2008) (internal quotation 

marks omitted). 

Mena-Leon and her children contend that they are entitled to relief under the 

CAT as the Salvadoran government will consent or acquiesce to their torture by gang 

members upon their return to El Salvador. However, the Salvadoran government 

has made efforts to combat gang violence as evidenced by the identification and 

arrest of the gang members involved in Bonilla’s death. That the gang members 

were subsequently released and never imprisoned does not necessarily evidence 

governmental acquiescence in gang activities. The gang members involved in 

Bonilla’s murder could have been released for a variety of reasons, perhaps due to 
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their status as minors or due to a lack of witnesses to the crime. See UriosteguiTeran, 72 F.4th at 856 (holding that a government’s inability to “do anything” did 

not evidence governmental acquiescence to criminal-gang-inflicted torture). 

Consequently, substantial evidence supports the BIA’s determination that MenaLeon and her children are ineligible for relief under the CAT.

Mena-Leon and her children assert that their due process rights were violated 

as the denial of their applications was based on “speculation and conjecture.” To 

establish a due process violation, an applicant “must demonstrate both a fundamental 

procedural error and prejudice as a result of the error.” Fofana v. Holder, 704 F.3d 

554, 557 (8th Cir. 2013). As previously discussed, the BIA’s findings are supported 

by substantial evidence in the record. Mena-Leon and her children disagree with the 

weight that the BIA accorded the evidence, but we reject their “efforts to 

recharacterize their claims regarding credibility and persuasiveness as constitutional 

contentions.” Id. at 557-58. Accordingly, we discern no due process violation.

We finally consider whether the cases should be reopened in light of the 

Attorney General’s decisions vacating Matter of A-B- and Matter of L-E-A-. The 

BIA cited Matter of A-B- and Matter of L-E-A- for the general propositions that the 

BIA is not required to make findings on non-dispositive issues and that, to establish 

eligibility for asylum and withholding of removal, an applicant must show a nexus 

between the harm suffered and the proposed social group. Thus, in each instance

that the BIA cited Matter of A-B- and Matter of L-E-A-, it did so for general 

propositions that are amply supported by the law of this circuit. See, e.g., PrietoPineda v. Barr, 960 F.3d 516, 522 (8th Cir. 2020) (noting that the BIA is not required 

to “decide issues unnecessary to the final resolution of [an applicant’s] appeal”); 

Fuentes-Erazo, 848 F.3d at 851 (articulating the nexus requirement). The BIA did 

not err in denying the motions to reopen the cases.

For the foregoing reasons, we deny the petition for review.

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