United States Court of Appeals

For the Eighth Circuit

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No. 15-1095

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Remberto Aguinada-Lopez

lllllllllllllllllllllPetitioner

v.

Loretta E. Lynch, Attorney General of the United States

lllllllllllllllllllllRespondent

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Petition for Review of an Order of the

 Board of Immigration Appeals

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 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

ofremoval, and withholding under the Convention Against Torture. The Immigration
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 fourshots 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 (8thCir. 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. 

This court’s prior opinion of February 23, 2016 is hereby vacated and this 1

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 onmembership

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 (8thCir. 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-agedmembers ofthe 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 showacquiescence, 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

(8thCir. 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.

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Aguinada-Lopez also sought asylum. The IJ and BIA found the claim to be 2

time-barred, and he does not appeal that decision. 

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