NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 17-1866

___________

JOSE VLADIMIR VARGAS-ARGETA,

 Petitioner

v.

THE ATTORNEY GENERAL OF THE 

UNITED STATES OF AMERICA,

 Respondent

_______________________

On Petition for Review of a Decision of the

Board of Immigration Appeals

BIA No. A208-985-374

(U.S. Immigration Judge: Honorable Kuyomars Q. Golparvar)

______________

Argued: November 08, 2018

Before: AMBRO, SCIRICA, and RENDELL, Circuit Judges.

(Filed: April 3, 2019)

Amanda B. Elbogen [ARGUED]

Kirkland & Ellis

333 South Hope Street

29th Floor

Los Angeles, CA 90071

Michael Glick

Kirkland & Ellis

1301 Pennsylvania Avenue, N.W.

Washington, DC 20004
2

Counsel for Petitioner

Jonathan A. Robbins [ARGUED]

Joanna L. Watson

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

________________

OPINION*

________________

SCIRICA, Circuit Judge

Jose Vladimir Vargas-Argeta, a native and citizen of El Salvador, entered the 

United States unlawfully in 2016. When the Department of Homeland Security initiated 

removal proceedings, Vargas-Argeta conceded removability and applied for asylum, 

withholding of removal, and protection under the Convention Against Torture. Following 

a hearing, an Immigration Judge denied all relief, and the Board of Immigration Appeals 

dismissed Vargas-Argeta’s appeal. Vargas-Argeta now petitions for review of that order. 

Because the Board did not legally err and substantial evidence supports its decision, we 

will deny the petition for review.

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
3

I.

At his removal hearing before the Immigration Judge (IJ), Vargas-Argeta testified 

in support of his applications for relief. Beginning in 2009, he worked for his father’s 

carpentry business in El Salvador. But in 2013, gang activity grew rampant in their town,

and gang members began demanding that area businesses pay extortion fees. VargasArgeta and his father paid the gang $100 per week. Sometime in 2015 or 2016, the gang 

demanded more money, but Vargas-Argeta’s father could not pay more than $100. As a 

result, the gang threatened Vargas-Argeta’s life and assaulted him on five occasions. 

Vargas-Argeta did not report these assaults because he believed the police were corrupt 

and would not assist, and the gang told him not to contact the police. Ultimately, he left 

his town to live with his sister in San Salvador. He was not harmed or mistreated while he 

lived with his sister, but he testified the gang came looking for him. Because he believed 

the gang would find and harm him, he fled to the United States. Although the carpentry 

business closed after he left El Salvador, Vargas-Argeta testified the gang would still kill 

him for the past failure to pay.

The IJ found Vargas-Argeta testified credibly, but denied all relief. As to the 

asylum claim, the IJ held Vargas-Argeta had not been persecuted on account of any 

protected ground. The IJ stated that “[f]ear . . . based upon generalized criminal activity 

and civil disorder is insufficient to be granted asylum.” App. 34. Relying on precedent of 

the Board of Immigration Appeals (Board or BIA) that rejected proposed social groups 

composed of victims of targeted gang violence, the IJ determined that Vargas-Argeta’s 

“resistance to the gangs or being unable to pay any kind of extortion fee” is not a 
4

protected category for purposes of asylum. Id. The asylum claim also failed because 

Vargas-Argeta had not shown a well-founded fear of future persecution—he could 

relocate to another part of El Salvador, and the closure of the carpentry business made it 

unlikely he would be targeted or harmed.

Noting that the burden for withholding of removal is higher than that for claims of 

asylum, the IJ also denied Vargas-Argeta’s withholding of removal application. Turning 

to the Convention Against Torture (CAT) claim, the IJ determined “the evidence seems 

to suggest that [Vargas-Argeta] would not be tortured” upon return to El Salvador 

because of the closure of the carpentry business. App. 37. Moreover, he never reported 

anything to the police, so the IJ could not find the police were aware of or involved in 

what happened to him and his family. The IJ also noted the country reports showed that 

high-ranking officials were working to curb corruption in El Salvador. In light of these 

findings, the IJ determined there was no willful blindness or acquiescence on the part of 

government officials, and denied Vargas-Argeta’s CAT claim.

Vargas-Argeta appealed, and the BIA dismissed his appeal in a single-member 

decision. The Board agreed with the IJ that he was a victim of criminal activity and was 

not persecuted on account of his membership in a particular social group (PSG). 

Although Vargas-Argeta’s appeal specified that his proposed PSG was “young men in El 

Salvador who have refused to pay extortion to a gang,” the Board rejected this 

formulation. Accordingly, it held Vargas-Argeta had not shown eligibility for asylum or 

withholding of removal. As to the CAT claim, the Board acknowledged Vargas-Argeta’s 

arguments related to corruption and impunity in El Salvador but held Vargas-Argeta did 
5

not show he more likely than not would face torture by or with the acquiescence of a 

public official.

Vargas-Argeta filed a timely petition for review to this Court.1

II.

The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have 

jurisdiction to hear this appeal from the BIA under 8 U.S.C. § 1252(a)(1).

We generally review the BIA’s legal determinations de novo and its finding of 

facts under the “substantial evidence” standard. Valdiviezo-Galdamez v. Att’y Gen., 663 

F.3d 582, 590 (3d Cir. 2011). Under that standard, we can only reverse the BIA’s

decision if “any reasonable adjudicator would be compelled to conclude to the contrary.” 

8 U.S.C. § 1252(b)(4)(B). “Because the BIA did not summarily affirm the IJ’s order but 

instead issued a separate opinion, we review the BIA’s disposition and look to the IJ’s 

ruling only insofar as the BIA deferred to it.” Roye v. Att’y Gen., 693 F.3d 333, 339 (3d 

Cir. 2012).

III.

Vargas-Argeta contends the Board erred in denying him relief. With respect to his 

asylum and withholding of removal claims, he primarily challenges the Board’s rejection 

of his proposed PSG, arguing that rejection was wrong and not adequately explained. As 

to his CAT claim, Vargas-Argeta also raises both substantive and procedural error, 

 

1 We thank pro bono counsel for their excellent representation of Vargas-Argeta.
6

contending the Board erred in denying his claim and failed to properly consider the 

evidence.

A.

To be eligible for asylum relief, a petitioner must establish that he is a refugee, 8 

U.S.C. § 1158(b)(1), which is defined as a person who has suffered persecution or has a 

well-founded fear of persecution “on account of race, religion, nationality, membership in 

a particular social group, or political opinion,” id. § 1101(a)(42)(A). Here, Vargas-Argeta 

claims he fears persecution because of his membership in a proposed PSG he defines as 

“young men in El Salvador who have refused to pay MS-13 gang extortion fees.” Pet’r’s

Br. at 23. Under BIA precedent to which we have afforded Chevron deference, VargasArgeta must make a three-part showing to prove the existence of a recognized PSG. 

S.E.R.L. v. Att’y Gen., 894 F.3d 535, 540 (3d Cir. 2018). He must “establish that the 

group [at issue] is (1) composed of members who share a common immutable 

characteristic, (2) defined with particularity, and (3) socially distinct within the society in 

question.” Id. (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))

(alteration in S.E.R.L.).

In denying Vargas-Argeta’s proposed PSG of “young men in El Salvador who 

have refused to pay extortion to a gang,” App. 25 (internal quotation marks omitted), the 

Board relied on its precedential decisions in Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 

2014), and M-E-V-G-, 26 I. & N. Dec. 227. In those cases, the BIA rejected proposed 

PSGs consisting of victims of gang-related criminal activity in part because they did not 

meet the third requirement—they were not “socially distinct, that is, recognized in the 
7

society in question as a discrete class of persons.” M-E-V-G-, 26 I. & N. Dec. at 249; see 

also W-G-R-, 26 I. & N. Dec. at 210. In M-E-V-G-, the Board rejected a PSG of 

Honduran youth who refused to join gangs. 26 I. & N. Dec. at 228. It explained that in 

countries with prevalent gang violence, “the residents all generally suffer from the gang’s 

criminal efforts to sustain its enterprise in the area.” Id. at 251. The Board concluded that 

groups composed of individuals affected by such criminal efforts are thus not sufficiently 

discrete absent evidence they are perceived by society as a distinct group. Id. at 251. 

Similarly, in W-G-R- the Board rejected a PSG of former gang members that had 

renounced their gang membership. 26 I. & N. Dec. at 221. Because the petitioner had put 

forth no evidence showing that group was “perceived, considered, or recognized in [the 

country’s] society as a distinct group,” the PSG was not recognized. Id. at 222.

Noting these decisions established that “those targeted for extortion by gangs or 

criminals are not per se members of a cognizable [PSG],” the Board determined VargasArgeta, “[o]n this record, . . . has not shown otherwise.” App. 25. Rather, he “was a 

victim of criminal activity, and there is no evidence that the gang members . . . pursued 

him because of his . . . membership in a particular social group.” Id. Because VargasArgeta had not shown membership in such a PSG, the Board held he had not established 

eligibility for asylum. Moreover, as a petitioner seeking withholding of removal must 

satisfy a higher standard than that of asylum—i.e., “that it is more likely than not . . . that

[the petitioner] would suffer persecution upon returning home,” Valdiviezo-Galdamez, 

663 F.3d at 591—the Board also determined Vargas-Argeta was not eligible for 
8

withholding of removal. Cf. id. (“[A]n alien who fails to qualify for asylum is necessarily 

ineligible for withholding of removal.”).

We find the Board’s decision meets the substantial evidence standard. As we have 

recognized, the “social distinction” requirement “works to narrow the universe of 

‘particular social groups’ to those whose members are seen to be ‘distinct’ or ‘other,’ like 

the distinctiveness inherent in the other enumerated grounds of race, religion, nationality, 

and political opinion.” S.E.R.L., 894 F.3d at 553 (quoting M-E-V-G-, 26 I. & N. Dec. at 

244). To show such distinction, it is “well within the bounds of reasonableness” for the 

Board to “requir[e] evidence that the society in question recognizes a proposed group as 

distinct.” Id. at 551. Vargas-Argeta has pointed to no evidence showing Salvadoran 

society perceives young men who refuse to pay extortion to gangs as a socially distinct 

group. Because he has failed to meet the social distinction requirement, he has not shown 

his PSG is legally recognized.

2

We also reject Vargas-Argeta’s related claims of procedural error. Although he 

contends the Board did not adequately explain its decision to reject his PSG, we find it 

provided sufficient analysis to enable our review. Cf. Filja v. Gonzales, 447 F.3d 241, 

256 (3d Cir. 2006) (noting the Board need only “announce its decision in terms sufficient 

to enable a reviewing court to perceive that it has heard and thought”) (internal quotation 

marks and citation omitted). The Board’s discussion of Vargas-Argeta’s testimony and its 

citations to M-E-V-G- and W-G-R- show that it understood his claims and—as in those 

 

2 Because we find Vargas-Argeta has not shown membership in a recognized PSG, we 

will not address his other arguments related to the Board’s dismissal of his asylum claim.
9

cited precedential decisions—rejected them for his failure to show evidence of social 

distinction. Accordingly, we will not disturb the Board’s dismissal of Vargas-Argeta’s 

appeal.

B.

Vargas-Argeta’s CAT claim also fails. For relief under the CAT, a petitioner must 

establish that, if he or she is removed, it is “more likely than not that he or she would be 

tortured,” 8 C.F.R. § 208.16(c)(2), “with the consent or acquiescence of a public official 

or other person acting in an official capacity,” id. § 208.18(a)(1). We have held that 

acquiescence means government officials participate in or “turn a blind eye” to torture. 

Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 70 (3d Cir. 2007). Here, the Board reviewed the 

IJ’s findings and agreed with his determination that Vargas-Argeta had not shown a 

likelihood of torture with the consent or acquiescence of a government official. App. 26. 

Vargas-Argeta suggests the Board applied the wrong legal standard, considering 

only whether he had been tortured by government officials and failing to assess whether 

he was tortured with official consent or acquiescence. Pet’r’s Br. at 31. We disagree. The 

record shows the Board properly considered whether “any public official in El Salvador 

seeks to torture him or would consent or acquiesce in his torture,” and referred both to the 

correct regulation and our precedent interpreting that regulation. App. 26. Vargas-Argeta

also asserts the Board reached the wrong conclusion, contending “the record shows 

widespread government acquiescence to the rampant gang violence and extortion in El 

Salvador.” Pet’r’s Br. at 32–33. The Board acknowledged this evidence, noting VargasArgeta’s argument on appeal “that there is widespread corruption and a high level of 
10

impunity in El Salvador.” App. 26. But in light of other record evidence, including 

evidence that Vargas-Argeta never reported any of the gang’s activities to the police and 

evidence showing high-level efforts to curtail corruption, the Board did not find it more 

likely than not that Vargas-Argeta would be tortured with government acquiescence. 

Under the substantial evidence standard, we cannot conclude the record compels a 

contrary conclusion.

Finally, Vargas-Argeta argues the Board erred procedurally. He contends it failed 

to examine all the evidence relevant to the possibility of future torture, noting it did not 

discuss Vargas-Argeta’s testimony about the gang’s threats or his allegation the gang 

followed him to San Salvador. Pet’r’s Br. at 30. But because the Board’s decision turned 

on the absence of official consent or acquiescence, evidence about gang members

threatening and intimidating Vargas-Argeta was less probative and did not require indepth discussion. We are accordingly satisfied the Board’s review was proper.

IV.

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