FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE NELSON SANTOS-LEMUS, 

Petitioner, No. 07-70604

v. Agency No. 

M A98-298-858 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 10, 2008—San Francisco, California

Filed September 8, 2008

Before: J. Clifford Wallace and Susan P. Graber,

Circuit Judges, and Robert J. Timlin,* District Judge.

Opinion by Judge Wallace

*The Honorable Robert J. Timlin, United States District Judge for the

Central District of California, sitting by designation. 

12383
COUNSEL

Stephen Shaiken, Law Office of Stephen Shaiken, San Francisco, California, for the petitioner. 

James E. Grimes, Senior Litigation Counsel, and Erica B.

Miles, Office of Immigration Litigation, Washington, D.C.,

for the respondent.

OPINION

WALLACE, Circuit Judge: 

Santos-Lemus petitions from the dismissal by the Board of

Immigration Appeals (Board) of his appeal from an immigration judge’s (IJ) denial of his application for asylum, withholding of removal, and protection under the Convention

Against Torture (CAT). We deny the petition.

I.

Santos-Lemus, a native and citizen of El Salvador, entered

the United States without inspection on July 18, 2004. Prior

to coming to the United States, he lived with his mother in

Cologne San Jose la Chalatenango, El Salvador. This town,

like many in El Salvador, was plagued by gang violence instigated by the Mara Salvatrucha, or MS-13 (Mara). SantosLemus’s family had a number of problems with the Mara,

beginning in 2000. In July of that year, Santos-Lemus’s

brother, Jose Ubidio Santos, was aboard a bus when armed

Mara held him up at gunpoint, beat him, and took a small

amount of money. After the incident, the Mara searched for

Jose Ubidio at his school and threatened him. The Mara continued searching for Jose Ubidio for “revenge” because they

were unable to take his shoes and clothing when they robbed

him. As a result of the Mara’s threats, Jose Ubidio left El Salvador later that year. 

12388 SANTOS-LEMUS v. MUKASEY
When the Mara realized Jose Ubidio was gone, they threatened the rest of Santos-Lemus’s family. On June 29, 2001, the

Mara shot and killed Santos-Lemus’s oldest brother, Jose

Cecilio Santos. The police did not investigate the murder, but

Santos-Lemus testified at the hearing before the IJ that Jose

Cecilio had insulted the Mara by asking them why they had

a problem with his family. Santos-Lemus also testified he

knew that the Mara were the ones who had killed Jose Cecilio

because the gang had sent many anonymous notes threatening

the family. After Jose Cecilio’s murder, the Mara began to

harass Santos-Lemus’s youngest brother, Luis Alonzo Santos.

In August of 2001, the Mara beat Luis, robbed him, and

demanded that he have more money for them that afternoon

or he would be killed. The Mara came to Santos-Lemus’s

home looking for Luis; in January of 2002, Luis left El Salvador. 

Once his brothers left El Salvador, Santos-Lemus began to

receive threats from the Mara. He testified that in March of

2003, he was beaten by a group of two hundred Mara, two of

whom insulted him and told him that “the same thing was

going to happen . . . as had happened to [his] other brother.”

His elbow was wounded with a knife, and a gang member

kicked him in the back. On May 15, 2004, Santos-Lemus

received an anonymous threat stating that he would be killed

like his brother. He fled the country. 

Santos-Lemus testified that during this time, no one in his

family filed a complaint with police because they feared that

the Mara would retaliate, and because the family believed that

the police were involved with the Mara and would do nothing

to help the family. He also testified that every time he or his

brothers encountered the Mara, they were “looking for

money” and that they would bother anyone to get money or

jewelry. 

Santos-Lemus testified that Luis currently lives with him in

California and that Jose Ubidio is in the United States also.

SANTOS-LEMUS v. MUKASEY 12389
He has two sisters and another brother who live in El Salvador in a town two hours away from his home town. None

have had problems with the Mara. Santos-Lemus’s mother

remains in Chalatenango. Santos-Lemus testified that three

months prior to the hearing there were men who cut wires

around his mother’s house and broke pieces off her roof, but

there was no evidence that these men were Mara. 

Santos-Lemus testified that he feared he would be killed by

the Mara if he returned to El Salvador. He stated that he had

never insulted or spoken out against the gang, and had never

belonged to any type of organization in El Salvador. He stated

he did not believe he could safely move to another city in El

Salvador because gang members are everywhere. 

The day Santos-Lemus entered the United States, the

Department of Homeland Security issued him a Notice to

Appear that charged him with removability as an alien present

in the United States without being admitted or paroled. At an

initial hearing on October 27, 2004, Santos-Lemus admitted

the factual allegations in the Notice to Appear and conceded

his removability; he also indicated that he would apply for

asylum, withholding of removal, and CAT protection. He did

so, and after he presented testimony and evidence in support

of his applications, the IJ found Santos-Lemus credible but

issued an oral decision denying asylum, withholding of

removal, and CAT protection, and ordering Santos-Lemus

removed to El Salvador. 

Santos-Lemus timely appealed to the Board, arguing that

he established he was persecuted on account of his membership in two particular social groups, (1) his family and (2)

“the class of young men in El Salvador who resist the violence and intimidation of gang rule.” He also claimed persecution on account of his anti-gang political opinion. Finally,

he argued that he established it was more likely than not he

would be tortured upon returning to El Salvador. The Board

affirmed the IJ’s denial of Santos-Lemus’s asylum, withhold12390 SANTOS-LEMUS v. MUKASEY
ing of removal, CAT claims and issued its own opinion dismissing the appeal. 

The Board concluded that Santos-Lemus had not established a well-founded fear of future persecution on account of

membership in a particular social group. As for SantosLemus’s claim that he was persecuted on account of his family membership, the Board reasoned that even if SantosLemus’s family were to be considered a particular social

group, Santos-Lemus “cannot establish a well founded fear

based upon his membership in that group because his mother

has remained unharmed in El Salvador since his departure.”

With regard to Santos-Lemus’s claim that he was persecuted

because he was a member of a social group as “a young man

in El Salvador resisting gang violence unstoppable by the

police,” the Board found this social group not cognizable

because it has no “social visibility” and is not therefore a

“particular social group” for asylum purposes. 

The Board also rejected Santos-Lemus’s claim that his

resistance to gangs or his “anti-gang opinions” constituted

political opinion, reasoning that expression of a fear of harm

resulting from general conditions of violence and civil unrest

does not substantiate a well-founded fear of persecution on

account of political opinion. The Board concluded that

because Santos-Lemus had “not established persecution or a

well-founded [fear] of persecution ‘on account of a qualifying

ground,’ he . . . failed to establish his eligibility for asylum”

and withholding of removal. 

Finally, the Board agreed with the IJ that Santos-Lemus did

not establish that he will more likely than not be tortured in

El Salvador, observing that his mother, “who is similarly situated to” him, has remained unharmed in El Salvador. SantosLemus timely petitioned this court for review of the Board’s

decision. 

SANTOS-LEMUS v. MUKASEY 12391
II.

We review the Board’s legal conclusions de novo. See

Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir. 2004). We

give Skidmore deference to the Board’s “interpretation of the

governing statutes and regulations,” recognizing that, “ ‘while

not controlling upon the courts by reason of their authority,

[these interpretations] do constitute a body of experience.’ ”

Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011, 1014 (9th

Cir. 2006) (alteration in original) (quoting Skidmore v. Swift

& Co., 323 U.S. 134, 140 (1944)). “Factual findings made by

the [Board] are reviewed under the deferential substantial evidence standard and will be upheld unless the evidence compels a contrary result.” Ochoa v. Gonzales, 406 F.3d 1166,

1169 (9th Cir. 2005); see also 8 U.S.C. § 1252(b)(4)(B).

Where, as here, “the [Board] conducts a de novo review of an

IJ’s decision, rather than adopting the IJ’s decision as its own,

[we] review[ ] the [Board’s] decision.” Ochoa, 406 F.3d at

1169. 

The government argues that we should review the decisions

of both the Board and the IJ, and urges affirmance of the

Board’s decision based on each of the grounds given in the

IJ’s decision. However, contrary to the government’s suggestion, the Board did not incorporate the IJ’s decision as its

own. For the most part, the Board did not even refer to the

IJ’s decision or state that it agreed with the IJ. The only place

the Board incorporated the IJ’s decision was in its CAT analysis, where the Board stated that “we agree with the Immigration Judge that the respondent did not establish that he will

more likely than not be tortured in El Salvador” and cited the

IJ’s opinion. Accordingly, except to the extent the Board

incorporated as its own the IJ’s decision on Santos-Lemus’s

CAT claim, our review is confined to the decision of the

Board. See Gonzalez v. INS, 82 F.3d 903, 907 (9th Cir. 1996);

Acewicz v. INS, 984 F.2d 1056, 1059 (9th Cir. 1993). The sole

issues for review before us with respect to Santos-Lemus’s

asylum and withholding of removal claims are whether

12392 SANTOS-LEMUS v. MUKASEY
Santos-Lemus showed a well-founded fear of persecution

based on his family membership, whether his status as “a

young man in El Salvador resisting gang violence” makes him

part of a particular social group, and whether his resistance to

gangs is a “political opinion.”

III.

[1] Eligibility for asylum requires showing a well-founded

fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.

8 U.S.C. § 1101(a)(42)(A). The persecutor must be a government official or individuals the government is unable or

unwilling to control. Avetova-Elisseva v. INS, 213 F.3d 1192,

1196 (9th Cir. 2000). Withholding of removal requires a clear

probability of the same. 8 U.S.C. § 1231(b)(3); Al-Harbi v.

INS, 242 F.3d 882, 888 (9th Cir. 2001). Although the IJ gave

a number of reasons for concluding that Santos-Lemus failed

to establish eligibility for asylum, the Board decided the case

on much narrower grounds, which we now address.

A.

[2] Santos-Lemus asserts eligibility for asylum and withholding of removal based on his membership in his family, all

of whom, he testified, were targeted by the Mara. The Board

assumed for the purpose of argument in this case that SantosLemus’s family was a “particular social group,” but rejected

his claim because Santos-Lemus “cannot establish a wellfounded fear based upon membership in that group because

his mother has remained unharmed in El Salvador since his

departure. Her continued safety undermines [Santos-Lemus’s]

claim.” For the purpose of our decision, we make the same

assumption. But see Gonzales v. Thomas, 547 U.S. 183 (2006)

(per curiam). Santos-Lemus challenges this decision, arguing

that his mother has in fact continued to receive threats from

the Mara, and alternatively that, even if his mother were safe,

SANTOS-LEMUS v. MUKASEY 12393
her safety does not affect his well-founded fear because she

and Santos-Lemus are not similarly situated. 

[3] Substantial evidence supports the Board’s factual finding that Santos-Lemus’s mother has remained safely in El

Salvador. At his hearing, Santos-Lemus was asked, “And

does [your mother] have any problems with the Mara?” He

responded, “No.” Santos-Lemus went on to explain that some

men had been around his mother’s home during the night, and

had cut some wires surrounding the home and broken pieces

off of the roof, but there was no evidence that these men were

affiliated with the Mara. Santos-Lemus’s vague account of the

damage to his mother’s house does not compel reversal of the

Board’s finding that Santos-Lemus’s mother “has remained

unharmed in El Salvador since his departure.” 

[4] Moreover, Santos-Lemus’s mother’s continuing safety

in El Salvador is substantial evidence supporting the Board’s

finding that Santos-Lemus does not have a well-founded fear

of future persecution. We have considered the continuing

safety of family members to be an important factor in determining whether a petitioner has a well-founded fear of future

persecution. See, e.g., Hakeem v. INS, 273 F.3d 812, 817 (9th

Cir. 2001) (affirming the Board’s decision denying petitioner’s application for withholding of removal and reasoning that

his alleged fear of persecution on account of his religion was

undermined by the fact that no one in his family had ever

been charged, arrested, or harmed based on their religion). 

[5] Where the claimed group membership is the family, a

family member’s continuing safety is an even more persuasive factor in considering a petitioner’s well-founded fear. In

Aruta v. INS, we affirmed the Board’s denial of asylum for a

petitioner who claimed a well-founded fear of future persecution based on her father’s anti-terrorist activity. 80 F.3d 1389,

1396 (9th Cir. 1996). Our conclusion was based in part on the

fact that the petitioner’s sister, who was “identically situated

in terms of the danger [petitioner] describe[d] in her applica12394 SANTOS-LEMUS v. MUKASEY
tion and from which she [sought] asylum,” remained safely in

petitioner’s city. Id. at 1393. We held there, as we have in

other cases, that when similarly situated members of the petitioner’s family live without incident in the alleged danger

zone, “such family evidence and the inferences drawn from it

. . . does substantially support the agency decision” denying

asylum. Id. at 1395 (internal quotation marks omitted) (citing

Mendez-Efrain v. INS, 813 F.2d 279, 282-83 (9th Cir. 1987));

see also Estrada v. INS, 775 F.2d 1018, 1021-22 (9th Cir.

1985) (“The absence of harassment of an alien’s family tends

to reduce the probability of persecution”). 

[6] Here, too, where Santos-Lemus’s claim of persecution

is based on his membership in the “particular social group” of

his “family,” the fact that a family member has remained

unharmed since he left El Salvador is “substantial evidence”

supporting the Board’s finding that Santos-Lemus lacks a

well-founded fear of future persecution based on family membership. 

[7] Santos-Lemus recognizes that ongoing family safety

might mitigate a well-founded fear of future persecution, but

argues that in his case, unlike in Aruta, he is not similarly situated to his mother because “she is a female and the Maras

gang targeted young males in El Salvador, not older females.”

However, while that argument might be relevant to his claim

that he was persecuted based on his membership in the social

group of young males in El Salvador who resist gang violence, it is not relevant with respect to his argument that he

was persecuted based on membership in his family. SantosLemus has repeatedly asserted that “the Mara felt his entire

family was responsible and began to harass them” and that

“his entire family was targeted by the Maras.” Indeed, his

speculation that the Mara were behind the damage to his

mother’s house belies his assertion that she is not similarly

situated to him. He has provided no coherent argument

explaining why his mother was not similarly situated to him

with respect to his proposed social group of his family, and

SANTOS-LEMUS v. MUKASEY 12395
so her continued safety is substantial evidence supporting the

Board’s finding. 

Nor does Santos-Lemus’s reliance on Lim v. INS, 224 F.3d

929 (9th Cir. 2000), save his claim. In that case, the petitioner

was a former police officer who had worked against a terrorist

group from whom he personally received death threats and

members of which had murdered his colleagues. See id. at

932. The petitioner in Lim did not assert that he was subject

to persecution based on his family membership, and no evidence suggested he was similarly situated to his family with

respect to the risks he faced as a result of his former job.

Therefore, our conclusion that, “although relevant, the fact

that [petitioner’s] family is safe does not refute his claims of

persecution,” id. at 935 (internal quotation marks omitted),

simply has no bearing on Santos-Lemus’s claim. Substantial

evidence therefore supports the Board’s finding that SantosLemus’s mother’s continued safety in his hometown undermines his well-founded fear of persecution on the basis of his

family membership, and we deny his petition based on this

claim.

B.

[8] Santos-Lemus also asserts eligibility for asylum and

withholding of removal based on his membership in the group

of “young [men] in El Salvador resisting gang violence.” We

have defined “social group” for purposes of asylum, as any

group “united by 1) a voluntary association which imparts

some common characteristic that is fundamental to the members’ identities, or 2) an innate characteristic which is so fundamental to the identities or consciences of its members they

either cannot or should not be required to change it.” Arteaga

v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007). In determining

whether a social group exists, we consider certain factors,

including “whether a group’s shared characteristic gives

members social visibility and whether the group can be

defined with sufficient particularity to delimit its member12396 SANTOS-LEMUS v. MUKASEY
ship.” Id. at 944-45 (citing In re A-M-E, 24 I. & N. Dec. 69,

74-76 (B.I.A. 2007)). 

Santos-Lemus argues that the Board erred when it held that

his proposed group of “[young men] in El Salvador resisting

gang violence” is not a “particular social group” for purposes

of asylum because it has no “social visibility.” Santos-Lemus

contends that he “established that as a member of a class of

young men in El Salvador who share the immutable characteristic of resistence to violence and intimidation of gang rule

in an atmosphere of police indifference or inadequacy, he is

a member of a particular social group, deserving of protection

from future persecution.” 

[9] We have not considered whether “young [men] in El

Salvador resisting gang violence” is a “particular social

group” under applicable asylum and withholding of removal

standards. However, the Board recently issued an opinion

holding that a proposed group consisting of “young Salvadorans who have been subject to recruitment efforts by criminal

gangs, but who have refused to join for personal, religious, or

moral reasons, . . . does not qualify as a particular social

group.” Matter of S-E-G-, 24 I. & N. Dec. 579, 588 (B.I.A.

2008). There, the Board explained that “membership in a purported social group requires that the group have particular and

well-defined boundaries, and that it possess a recognized level

of social visibility.” Id. at 582. The group of young Salvadorans who have been subject to recruitment efforts by criminal

gangs, but who have refused to join, satisfied neither the “particularity” nor the “social visibility” standard. While the

Board’s decision in Matter of S-E-G- is not binding on us, we

have already adopted the Board’s particularity and social visibility requirements in determining whether a purported association or characteristic creates a particular social group. See

Arteaga, 511 F.3d at 944-45. The Board’s analysis in Matter

of S-E-G- is therefore particularly helpful. 

[10] The Board first held that the proposed social group did

not meet the particularity requirement. It explained that “the

SANTOS-LEMUS v. MUKASEY 12397
essence of the ‘particularity’ requirement . . . is whether the

proposed group can accurately be described in a manner sufficiently distinct that the group would be recognized, in the

society in question, as a discrete class of persons.” Matter of

S-E-G-, 24 I. & N. Dec. at 584. The Board then held that the

social groups in that case lacked particularity because “[t]hey

make up a potentially large and diffuse segment of society,

and the motivation of gang members in recruiting and targeting young males could arise from motivations quite apart

from any perception that the males in question were members

of a class.” Id. at 585. 

This analysis is consistent with our case law on similar

issues. In Sanchez-Trujillo v. INS, we held that a purported

social group of “young, working class males who have not

served in the military of El Salvador” was too “allencompassing [a] grouping” to constitute “that type of cohesive, homogeneous group to which we believe the term ‘particular social group’ was intended to apply.” 801 F.2d 1571,

1572, 1577 (9th Cir. 1986). “Individuals falling within the

parameters of this sweeping demographic division naturally

manifest a plethora of different lifestyles, varying interests,

diverse cultures, and contrary political leanings.” Id. at 1577.

We later relied on that reasoning in Ochoa to reject the

claim that “a social group comprised of business owners in

Colombia who rejected demands by narco-traffickers to participate in illegal activity” was a particular social group

because the group was not sufficiently narrowly defined. 406

F.3d at 1170. We reasoned that “[t]here is no unifying relationship or characteristic to narrow this diverse and disconnected group. This category is too broad to qualify as a

particularized social group for the purposes of asylum and

withholding of removal.” Id. at 1171. 

[11] Based on the Board’s decision in Matter of S-E-G- and

our relevant case law, we hold that the group that SantosLemus describes, young men in El Salvador resisting gang

12398 SANTOS-LEMUS v. MUKASEY
violence, is too loosely defined to meet the requirement for

particularity. In fact, Santos-Lemus’s group is even less

defined than the purported social group in Matter of S-E-Gbecause it is not limited to young men who have been

recruited by gangs, but also includes any young men who for

any reason resist gang violence and intimidation. This purported group is composed of a variety of different individuals

who may be victims of civil unrest, but who do not form a

cohesive or particular social group. As in Sanchez-Trujillo

and Ochoa, Santos-Lemus’s proposed group includes a

sweeping demographic division; it is too broad and diverse to

qualify as a particular social group. 

[12] Moreover, Santos-Lemus’s group fails to qualify as a

particular social group because it lacks social visibility. The

Board held in Matter of S-E-G- that the proposed social group

of young men resisting criminal gang recruitment is insufficiently socially visible to constitute a particular social group.

24 I. & N. Dec. at 587. Social visibility requires that “the

shared characteristic of the group should generally be recognizable by others in the community.” Id. at 586. The Board

reasoned that there is little evidence that “Salvadoran youth

who are recruited by gangs but refuse to join . . . would be

‘perceived as a group’ by society, or that these individuals

suffer from a higher incidence of crime than the rest of the

population.” Id. at 587. “[G]ang violence and crime in El Salvador appear to be widespread, and the risk of harm is not

limited to young males who have resisted recruitment . . . but

affects all segments of the population.” Id.

[13] The same reasoning applies to Santos-Lemus’s proposed social group. The harassment appears to have been part

of general criminality and civil unrest; Santos-Lemus even

testified that the Mara gang robbed “anyone” and “everyone”

to get money and jewelry. Santos-Lemus’s “group” was not

particularly socially visible to the gang, and there is no evidence that they targeted him because they perceived him to be

a member of any kind of anti-gang group. 

SANTOS-LEMUS v. MUKASEY 12399
[14] Indeed, the only people who appear to know about

Santos-Lemus’s anti-gang stance are his own family and some

members of the Mara gang. Nothing in the record establishes

that he was a well-known anti-gang activist or even outspoken

about gangs. On the contrary, he testified that he never spoke

out against or insulted gang members. Thus, there does not

appear to be anything about Santos-Lemus’s actions that

would distinguish him from the rest of the population or cause

others who oppose gang violence to recognize him as a member of their “group.” 

[15] Lacking both particularity and social visibility, SantosLemus’s proposed group is not a “particular social group” for

asylum purposes. We therefore affirm the Board’s conclusion

and deny Santos-Lemus’s petition with respect to his claim

that he qualifies for asylum based on membership in a social

group of young Salvadoran men who resist gang violence and

intimidation.

C.

[16] Santos-Lemus also asserts he is entitled to refugee protection because he was persecuted based on his anti-gang “political opinion.” He argued to the Board that he was “antigang” and that he manifested this opinion in expressing resistance against the Mara, as a result of which he was persecuted. The Board rejected this argument, holding that

“resistance to gangs or ‘anti-gang opinions’ ” is not a “protected political opinion.” 

It is well-established in this circuit that 

[a]sylum generally is not available to victims of civil

strife, unless they are singled out on account of a

protected ground. To put it another way, “persecution on account of political opinion . . . can[not] be

inferred merely from acts of random violence by

members of a village or political subdivision against

12400 SANTOS-LEMUS v. MUKASEY
their neighbors who may or may not have divergent

. . . political views.” 

Ochave v. INS, 254 F.3d 859, 865 (9th Cir. 2001) (alteration

and ellipses in original) (quoting Sangha v. INS, 103 F.3d

1482, 1487 (9th Cir. 1997)). In Matter of S-E-G-, the Board

held that because there was “no evidence in the record that the

respondents were politically active or made any anti-gang

political statements,” their resistance to gang recruitment was

not necessarily based on a “political motive” and they could

not show a well-founded fear of future persecution on account

of their political opinion. 24 I. & N. Dec. at 589. 

[17] Similarly here, Santos-Lemus provided no evidence

that his opposition to the gang’s criminal activity was based

on political opinion. Santos-Lemus also did not present evidence that he was politically or ideologically opposed to the

ideals espoused by the Mara or to gangs in general, or that the

Mara imputed to Santos-Lemus any particular political belief.

The available evidence suggests instead that Santos-Lemus

was victimized for economic and personal reasons. These

motivations do not constitute persecution on account of political opinion. 

[18] Santos-Lemus suggests, for the first time on appeal,

that he suffered past persecution on account of an imputed

political opinion stemming from his and his brothers’ refusals

to join the gang. The Board in Matter of S-E-G-, relying on

the Supreme Court’s decision in INS v. Elias-Zacarias, 502

U.S. 478 (1992), rejected the argument that resistance to a

gang’s recruitment efforts alone constitutes political opinion.

24 I. & N. Dec. at 588. In any event, Santos-Lemus never

raised this claim to the Board and it is therefore not

exhausted. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358

F.3d 674, 677-78 (9th Cir. 2004). Furthermore, this claim is

wholly unsupported by the record. Santos-Lemus neither

stated in his application for asylum, nor in his testimony at his

hearing, that he or his brothers refused to join the gang. He

SANTOS-LEMUS v. MUKASEY 12401
only stated that the gang members were easily insulted and

that one of his brothers insulted them by asking them why

they were after his family, and that Santos-Lemus stood

silently when the Mara insulted and attacked him. 

[19] No evidence suggests that the gang held any sort of

belief system that they perceived Santos-Lemus to oppose.

Without evidence of an actual political opinion or motive in

Santos-Lemus’s or the gang’s actions, his claim fails. The

Board’s determination that a general aversion to gangs does

not constitute a political opinion for asylum purposes was reasonable and we deny Santos-Lemus’s petition based on this

claim.

IV.

[20] Santos-Lemus also challenges the Board’s denial of

his request for relief under CAT. To obtain protection under

CAT, an applicant must show “that 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.” Id. § 1208.18(a)(1).

Torture is “an extreme form of cruel and inhuman treatment,”

and includes only “severe pain or suffering.” Id.

§ 1208.18(a)(1), (2). The Board agreed with the IJ’s decision,

and concluded that Santos-Lemus did not establish that he

will more likely than not be tortured in El Salvador, observing

again that his mother had remained unharmed in El Salvador

since his departure. Santos-Lemus counters that it is more

likely than not he will be subject to torture upon returning to

El Salvador because “the police were unwilling or unable to

protect him from gang violence and that very likely, the

police themselves either cooperated with the Maras gang or

were themselves members of this gang.” 

[21] Santos-Lemus provides no evidence that would compel reversal of the Board’s determination. His argument that

12402 SANTOS-LEMUS v. MUKASEY
police are unwilling to protect him or are themselves members of the gang is unsupported and speculative, particularly

because he failed to report any incidents to the police. Moreover, it is undisputed that any torture Santos-Lemus fears

would be committed by private individuals, not the government, and the Salvadoran government was not even aware

that Santos-Lemus or his brothers had been targeted by the

gang because the incidents were never reported and there is

no evidence in the record suggesting the government may

have otherwise been aware of threats made against SantosLemus. Finally, as the Board stated, because Santos-Lemus’s

mother has remained safely in his hometown, substantial evidence supports the Board’s finding that it is not more likely

than not that Santos-Lemus will be tortured by or with the

consent or acquiescence of the Salvadoran government upon

return. We therefore deny his petition for review based on the

CAT claim.

V.

Substantial evidence supports the Board’s finding that

Santos-Lemus’s fear of persecution based on family membership was not well-founded and that it is not more likely than

not that he will be tortured if returned to El Salvador. Additionally, the Board correctly determined that Santos-Lemus’s

proposed group of “young [men] in El Salvador resisting gang

violence” is not a “particular social group,” and that a general

anti-gang opinion is not a protected political opinion, for asylum and withholding of removal purposes. We therefore deny

his petition for review. 

PETITION DENIED. 

SANTOS-LEMUS v. MUKASEY 12403