United States Court of Appeals 

for the Fifth Circuit 

No. 20-60974 

Heystin Jesus Lopez-Aguilar, 

Petitioner, 

versus

Merrick Garland, U.S. Attorney General, 

Respondent. 

Petition for Review of an Order of the 

Board of Immigration Appeals 

Agency No. A206 421 355 

Before Richman, Chief Judge, and Elrod and Oldham, Circuit Judges.

Per Curiam:*

 Heystin Jesus Lopez-Aguilar petitions for review of a decision of the 

Board of Immigration Appeals (BIA) upholding an immigration judge’s (IJ) 

denial of his applications for asylum, withholding of removal, and protection 

under the Convention Against Torture (CAT). He argues that the BIA erred 

by determining that he had not demonstrated the required nexus between his 

persecution and his membership in a particular social group (PSG) without 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

March 31, 2023 

Lyle W. Cayce 

Clerk 

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2 

first deciding whether his proposed PSG was cognizable; that the BIA applied 

the wrong legal standard to his claim for withholding of removal; and that the 

BIA applied the wrong legal standard to his CAT claim and erred in 

determining he was ineligible for CAT protection. Because Lopez-Aguilar’s 

first argument remains unexhausted, we dismiss his petition as to that claim 

for lack of jurisdiction. The BIA applied the correct legal standards to LopezAguilar’s withholding of removal and CAT claims, and substantial evidence 

supports the BIA’s factual conclusions regarding his ineligibility for CAT 

protection. We therefore deny Lopez-Aguilar’s petition as to those claims. 

I 

Lopez-Aguilar, a citizen and native of Honduras, entered the United 

States unlawfully in 2014. After being apprehended by U.S. Border Patrol 

agents, Lopez-Aguilar—then fifteen years old—was served with a notice to 

appear, charging that he was removable under 8 U.S.C. § 1182(a)(6)(A)(i) as 

being an “alien present in the United States without being admitted or 

paroled . . . .” Lopez-Aguilar conceded the charge but applied for asylum 

and withholding of removal based upon persecution on account of his 

membership in a PSG. He also sought protection under the CAT. 

In 2018, an IJ held a hearing regarding Lopez-Aguilar’s three claims 

for relief. Lopez-Aguilar, who was then nineteen, testified that his parents 

had departed Honduras for the United States when he was three, leaving him 

and his brother in the care of a family friend named Oscar. According to 

Lopez-Aguilar, Oscar, a gang member, systematically abused him for thirteen 

years until Lopez-Aguilar fled to the United States. Lopez-Aguilar also 

claimed that other gang members—friends of Oscar’s—attempted to recruit 

him into the gang and assaulted him when he refused. Lopez-Aguilar stated 

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3 

that he feared he would suffer further abuse or death at the hands of Oscar 

and the other gang members if returned to Honduras. 

In support of his applications, Lopez-Aguilar submitted—among 

other items—affidavits from witnesses to Oscar’s abuse and an expert 

declaration describing the vulnerability of Honduran children and the 

Honduran government’s inability to protect them. 

Despite finding Lopez-Aguilar credible, the IJ denied his applications 

for relief and ordered him removed to Honduras. With respect to LopezAguilar’s claims for asylum and withholding of removal, the IJ concluded that 

Lopez-Aguilar was a “victim of a crime” and had therefore not made the 

required showing that he was “subjected to persecution based on a protected 

ground.” The IJ also denied relief under the CAT because the abuse LopezAguilar suffered did not “rise[] to the level of torture” and was not “carried 

out” or “condone[d]” by a government official. 

Lopez-Aguilar appealed to the BIA, arguing only that his proposed 

PSG was cognizable. The BIA dismissed Lopez-Aguilar’s appeal. In a brief 

opinion, it affirmed the IJ’s denial of Lopez-Aguilar’s asylum claim because 

he feared “harm due to no other apparent reason than criminal gang activity” 

and therefore “ha[d] not shown that he [would] be harmed on account of his 

membership in a particular social group.” For the same reason, the BIA 

determined that Lopez-Aguilar “also did not satisfy the higher burden of 

proof for withholding of removal.” Finally, the BIA agreed with the IJ that 

Lopez-Aguilar did not qualify for CAT protection because he “did not show 

that he more likely than not . . . will face torture by or with the consent or 

acquiescence (including willful blindness) of any public official . . . .” LopezAguilar subsequently petitioned this court for review. 

 Lopez-Aguilar makes three primary claims to this court. First, 

Lopez-Aguilar alleges the BIA erred by determining he had not demonstrated 

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the required nexus between his persecution and membership in a PSG 

without first deciding whether his proposed PSG was cognizable. Second, he 

claims the BIA applied the wrong legal standard to his claim for withholding 

of removal. Finally, he challenges the legal standard used to assess his CAT 

claim, as well as the substantive determination that he is ineligible for CAT 

protection. 

II 

“[J]urisdiction is always first.”1

 Before we can reach the merits of 

Lopez-Aguilar’s claims, we must determine whether we have jurisdiction to 

address them.2

 “We examine our jurisdiction on our own motion when 

necessary.”3

The Immigration and Nationality Act (INA) confers on the courts of 

appeals exclusive jurisdiction to review final orders of removal.4

 It does not, 

however, give us carte blanche. We may only exercise jurisdiction when an 

alien has “exhausted all administrative remedies available . . . as of 

right . . . .”5 “A remedy is available as of right if (1) the petitioner could have 

argued the claim before the BIA, and (2) the BIA has adequate mechanisms 

to address and remedy such a claim.”6 The exhaustion requirement reduces 

“the risk that we must prolong a proceeding by reversing to correct errors 

1 Arulnanthy v. Garland, 17 F.4th 586, 592 (5th Cir. 2021) (alteration in original) 

(quoting United States v. Shkambi, 993 F.3d 388, 389 (5th Cir. 2021)). 

2 Mejia v. Whitaker, 913 F.3d 482, 487 (5th Cir. 2019). 

3 Id.

4

 8 U.S.C. § 1252(a)(5). 

5

 8 U.S.C. § 1252(d)(1); Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009) (quoting 

8 U.S.C. § 1252(d)). 

6 Omari, 562 F.3d at 318-19. 

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5 

that the [BIA] had no chance to address”7 and permits the BIA to apply its 

“expertise in immigration matters . . . in the first instance.”8 A “[f]ailure to 

exhaust an issue creates a jurisdictional bar as to that issue.”9

An alien may exhaust a claim by raising it “in the first instance before 

the BIA . . . on direct appeal . . . in a motion to reopen,”10 or “on a motion to 

reconsider.”11 Whether an alien must file a motion for reconsideration before 

petitioning the court depends on the “posture” of the relevant claim “before 

the BIA.”12 When a claim is “raised or lost at the BIA,” it is exhausted, and 

no motion for reconsideration is required.13 But “[a] motion for 

reconsideration is . . . confined to the substance of the BIA’s original 

decision.”14 Therefore, when a new issue arises solely from “the BIA’s act 

of decisionmaking” such that “neither party could have possibly raised [it] 

prior to the BIA’s decision,” the alien “must first bring it to the BIA’s 

attention through a motion for reconsideration.”15

As we have noted, however, the purpose of the exhaustion 

requirement is to give the BIA the first “chance to address” any errors that 

may arise during immigration proceedings.16 Because of this, when the BIA 

7 Martinez-Guevara v. Garland, 27 F.4th 353, 359 (5th Cir. 2022). 

8 Omari, 562 F.3d at 322. 

9 Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (per curiam). 

10 Id. (quoting Wang v. Ashcroft, 260 F.3d 448, 453 (5th Cir. 2001)). 

11 Martinez-Guevara, 27 F.4th at 360. 

12 Lopez-Dubon v. Holder, 609 F.3d 642, 644 (5th Cir. 2010). 

13 Martinez-Guevara, 27 F.4th at 360. 

14 Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 2009). 

15 Id. at 320-21. 

16 See Martinez-Guevara, 27 F.4th at 359. 

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6 

itself “chooses to address an issue on the merits,” it is exhausted “despite 

potential defects in its posture . . . .”17 We consider each of Lopez-Aguilar’s 

claims against these standards. 

A 

Lopez-Aguilar first argues that the BIA erred in dismissing his claim 

for asylum on the grounds that no nexus exists between his persecution and 

membership in a PSG without first deciding whether Lopez-Aguilar is a 

member of a cognizable PSG. 

Asylum is a discretionary grant of relief available to “refugees who 

meet certain requirements.”18 The INA defines a refugee as “an alien who 

is unable or unwilling to return to his home country ‘because of persecution 

or a well-founded fear of persecution on account of’” a statutorily protected 

ground, including “membership in a particular social group . . . .”19 To 

prevail on an asylum claim, an alien must therefore show both that the PSG 

in which he claims membership is “cognizable” within the meaning of the 

INA and that there is a nexus between his persecution and membership in 

that group.20 The “nexus requirement” is satisfied when membership in a 

PSG is “one central reason” for the alien’s persecution.21 A PSG is 

cognizable when it is “(1) composed of members who share a common 

immutable characteristic, (2) defined with particularity, and (3) socially 

17 Lopez-Dubon, 609 F.3d at 644. 

18 Vazquez-Guerra v. Garland, 7 F.4th 265, 268-69 (5th Cir. 2021). 

19 I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. 

§ 1101(a)(42)(A)). 

20 See Vazquez-Guerra, 7 F.4th at 269. 

21 Id. (quoting Sealed Petitioner v. Sealed Respondent, 829 F.3d 379, 383 (5th Cir. 

2016)); 8 U.S.C. § 1158(b)(1)(B)(i). 

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distinct within the society in question.”22 The group must also “exist 

independently of the fact of persecution.”23

Lopez-Aguilar contends that the agency erred in its application of two 

cases, Matter of A-B-24 and Orellana-Monson v. Holder,

25 in determining that 

he had not demonstrated he would be harmed “on account of his 

membership in a particular social group.” The thrust of his argument, 

however, is that the BIA and the IJ erred by making this determination 

without first deciding whether his proposed PSG was cognizable. The 

Government, for its part, insists that the agency can dispose of an asylum 

claim on nexus grounds alone and without consideration of whether a 

proposed PSG is cognizable. 

Either way, Lopez-Aguilar has not exhausted this claim. He filed but 

a single document with the BIA—his notice of appeal—and that document 

contained but a single claim: “Previously the BIA has affirmed the same PSG 

used in the instant case to be cognizable . . . ‘minors without resources who 

have been abused by a custodial parent/guardian.’ Here, the Respondent is 

also from Honduras and the facts are substantially similar.” He submitted 

no briefing to the BIA,26 and filed no motion to reopen. He therefore failed 

to present the issue to the BIA on direct appeal. 

This is also not a “new issue” arising only from the “BIA’s act of 

decisionmaking,” and which “neither party could have possibly raised prior 

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

23 Id. at 236 n.11. 

24 27 I. & N. Dec. 316 (A.G. 2018). 

25 685 F.3d 511 (5th Cir. 2012). 

26 See, e.g., Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 2009). 

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to the BIA’s decision.”27 The IJ demonstrated that he denied asylum 

without considering Lopez-Aguilar’s PSG when he declared in his oral 

opinion, “I don’t remember the exact formulation . . . as to the composition 

of this group . . . [but] he was not subjected to persecution based on a 

protected ground.” Given the clear basis of the IJ’s judgment, Lopez-Aguilar 

could easily have raised to the BIA the claim that the agency may not make a 

nexus determination without first assessing the propriety of a proposed PSG. 

Even if it were a “new issue” before the BIA, however, Lopez-Aguilar would 

have been required to file a motion for reconsideration, which he failed to 

do.28

The BIA also did not consider this issue of its own accord. Its decision 

merely reiterated the IJ’s, stating that “regardless of whether the respondent 

has shown that that he belongs to a cognizable particular social group, he has 

not established eligibility for asylum.” 

Because Lopez-Aguilar did not avail himself of the “full and fair 

opportunity to present” this claim to the BIA,29 the claim remains 

unexhausted, and we lack jurisdiction to consider it. To the extent that 

Lopez-Aguilar also claims that the BIA or IJ “ignor[ed]” or 

“mischaracterized the [r]ecord,” he did not raise this issue in any form 

before the BIA, and it too remains unexhausted.30

27 Id. at 320-21. 

28 See id. at 320. 

29 See id. at 323. 

30 See id., 562 F.3d at 320-21; cf. Martinez-Guevara v. Garland, 27 F.4th 353, 361 

(5th Cir. 2022) (claim that the BIA ignored evidence was exhausted because petitioner 

asked BIA to correct IJ’s identical error). 

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B 

Lopez-Aguilar next claims that the BIA and the IJ erred by applying 

an incorrect legal standard to his claim for withholding of removal under 8 

U.S.C. § 1231(b)(3), which, like asylum, requires a nexus between an alien’s 

persecution and a statutorily protected ground, such as membership in a 

PSG.31 Lopez-Aguilar contends that the standard for establishing a nexus for 

withholding of removal is distinct from and more permissive than the 

corresponding standard in asylum claims. Lopez-Aguilar argues, therefore, 

that the BIA and the IJ improperly denied his withholding claim by 

impermissibly conflating these standards when they determined, after 

denying his asylum claim on nexus grounds, that he necessarily failed to 

qualify for withholding of removal. 

At first glance, “one might think we lack jurisdiction.”32 LopezAguilar could have presented this claim on direct appeal to the BIA based on 

the IJ’s decision, yet he did not, and he also filed no motion for 

reconsideration. Still, we think otherwise. 

Ordinarily, a claim of legal error such as this would require review by 

the BIA on a motion for reconsideration before we could assert jurisdiction.33 

As we have said, however, the BIA’s choice to “address an issue on the 

31 Vazquez-Guerra v. Garland, 7 F.4th 265, 270-71 (5th Cir. 2021). 

32 Martinez-Guevara, 27 F.4th at 360. 

33 See, e.g., Rodriguez Hernandez v. Barr, 770 F. App’x 669, 670 (5th Cir. 2019) 

(unpublished) (per curiam) (quoting Omari, 562 F.3d at 320-21) (explaining that a “claim 

that the BIA relied on an erroneous legal standard is an issue ‘stemming from BIA’s act of 

decisionmaking’” and therefore must be raised “in a motion to reopen or for 

reconsideration to satisfy the exhaustion requirement.”); see also Omari 562 F.3d at 320 

(explaining that a motion for reconsideration may allege errors of “fact or law.”). 

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merits despite potential defects in its posture” exhausts that issue.34 In his 

decision, the IJ applied the same nexus standard to both Lopez-Aguilar’s 

asylum and withholding of removal claims, noting that because “Respondent 

failed to meet the burden of proof for establishing an asylum claim, he has 

necessarily also failed to meet the higher burden of proof required for 

withholding of removal . . . .” 

The BIA adopted the IJ’s determination and reasoning and concluded 

that because Lopez-Aguilar “has not established eligibility for asylum[,] [i]t 

follows that the respondent also did not satisfy the higher burden of proof for 

withholding of removal.” Though it did not say explicitly that the nexus 

standards for withholding of removal and asylum are the same, we are 

permitted to make reasonable inferences as to the bases for the BIA’s 

judgments.35 The BIA had the “opportunity to apply its specialized 

knowledge” to the IJ’s use of the same nexus standard for both claims.36 It 

similarly applied the same standard to both in affirming the IJ’s decision. 

Though Lopez-Aguilar never affirmatively brought his claim 

regarding the nexus standard for withholding of removal before the BIA, the 

BIA “addressed the issue on the merits . . . .”37 The issue is therefore 

exhausted, and we have jurisdiction to entertain it. 

C 

Finally, Lopez-Aguilar avers that the BIA erred in denying him CAT 

protection because it applied an incorrect legal standard to his claim. 

34 Lopez-Dubon v. Holder, 609 F.3d 642, 644 (5th Cir. 2010). 

35 See Manzano-Garcia v. Gonzales, 413 F.3d 462, 468 (5th Cir. 2005) (per curiam). 

36 Lopez-Dubon, 609 F.3d at 644 (quoting Sidabutar v. Gonzales, 503 F.3d 1116, 1121 

(10th Cir. 2007)). 

37 Id. 

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Specifically, he suggests that the BIA required him to demonstrate that 

government officials are “willfully accepting” of torture, but that he need 

only make the lesser showing that government officials are aware or willfully 

blind to torture and are either unable or unwilling to intervene. He also 

challenges the BIA’s determination that he is ineligible for CAT protection. 

As above, an allegation of legal error such as this would ordinarily 

require review by BIA on a motion for reconsideration before we could 

exercise jurisdiction over it.38 In this case, however, BIA expressly recited 

the legal standard against which it assessed Lopez-Aguilar’s CAT claim. The 

BIA’s decision noted that “the respondent did not show that he more likely 

than not . . . will face torture by or with the consent or acquiescence 

(including willful blindness) of any public official . . . .” 

The BIA having considered and addressed the proper legal standard 

for Lopez-Aguilar’s CAT claim, as well as his eligibility for CAT protection, 

we conclude that these issues are exhausted and that we have jurisdiction to 

consider them.39

38 Omari, 562 F.3d at 320. 

39 Lopez-Dubon, 609 F.3d at 644. 

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III

We now turn to the merits of Lopez-Aguilar’s claims regarding the 

nexus standard in withholding of removal, the legal standard for CAT 

protection, and his eligibility for withholding under the CAT. 

A 

Lopez-Aguilar contends that BIA and the IJ erred by applying an 

improper legal standard for the nexus requirement to his claim for 

withholding of removal under 8 U.S.C. § 1231(b)(3). 

Though we “typically only review the final decision of the BIA,”40

“[w]hen, as in the present case, the BIA’s decision is affected by the IJ’s 

ruling . . . we also review the IJ’s decision.”41 “We review the BIA’s 

conclusions of law de novo,” including claims that the BIA applied an 

incorrect legal standard.42

“[W]ithholding of removal is a mandatory form of relief for aliens” 

that meet certain statutory requirements.43 To qualify for withholding under 

8 U.S.C. § 1231(b)(3), aliens must “demonstrate a clear probability that their 

life or freedom would be threatened because of a protected ground, such as 

membership in a particular social group, if they were returned to the country 

of removal.”44 Accordingly—and as with asylum claims—the alien must 

establish a nexus between his persecution and his membership in a PSG.45

40 Parada-Orellana v. Garland, 21 F.4th 887, 893 (5th Cir. 2022). 

41 Sealed Petitioner v. Sealed Respondent, 829 F.3d 379, 383 (5th Cir. 2016). 

42 See Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002). 

43 Vazquez-Guerra v. Garland, 7 F.4th 265, 270 (5th Cir. 2021). 

44 Id.; 8 U.S.C. § 1231(b)(3)(A). 

45 See Vazquez-Guerra, 7 F.4th at 270-71. 

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Lopez-Aguilar urges that the statutes governing asylum and 

withholding of removal are “unambiguously different” in that the legal 

standard for establishing a nexus in withholding of removal claims—unlike in 

asylum claims—does not require a showing that a statutorily protected 

ground is “one central reason” for an alien’s persecution.46 On this basis, he 

concludes that the nexus requirement in withholding of removal claims is 

“less stringent” than that in asylum claims. Because the standards are 

different, he suggests, the BIA and IJ should have analyzed each claim 

independently and provided further explanation regarding its nexus 

determination. 

On its face, Lopez-Aguilar’s statement regarding the relevant statutes 

is correct. 8 U.S.C. § 1158(b)(1)(B)(i), which sets forth the standard for 

demonstrating a nexus in asylum claims, explicitly declares that a statutorily 

protected ground must be “one central reason” for an alien’s persecution.47 

In contrast, 8 U.S.C. § 1231(b)(3)(C), elaborating on the burden of proof for 

withholding of removal, describes how a trier of fact might determine that 

the alien “would be threatened for a reason” enumerated elsewhere in the 

statute, including membership in a PSG.48 Relying on out-of-circuit 

precedent, Lopez-Aguilar interprets these differences to mean that 

withholding of removal requires a “less demanding standard” for showing a 

nexus—“a reason”—than does asylum—“one central reason.”49 While 

46 See 8 U.S.C. § 1158(b)(1)(B)(i) (For asylum, an “applicant must establish 

that . . . membership in a particular social group . . . was or will be at least one central reason 

for persecuting the applicant.”). 

47 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added). 

48 8 U.S.C. § 1231(b)(3)(C) (emphasis added); see also 8 U.S.C. § 1231(b)(3)(A). 

49 Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017); see also 8 U.S.C. 

§ 1231(b)(3)(C); 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added). 

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Lopez-Aguilar may be correct that the courts of appeals are divided on this 

question,50 the law in this circuit is unambiguous and squarely forecloses his 

argument. 

Indeed, we recently denied a petition for review on nearly identical 

grounds to those on which the BIA dismissed Lopez-Aguilar’s withholding 

of removal claim. In Vazquez-Guerra v. Garland,

51 we rejected the 

petitioner’s argument that “withholding of removal involves a ‘less 

demanding’ and ‘more relaxed’ standard than asylum for meeting the nexus 

requirement . . . .”52 We have previously noted that the “key difference in 

the standards for asylum and withholding of removal” is not the nexus 

requirement, but the burden of proof for demonstrating future persecution.53 

While asylum requires only a “well-founded fear” of persecution, 

withholding of removal requires the heightened showing of a “clear 

probability.”54 The nexus requirement, however, is the same for both—a 

statutorily protected ground must be “one central reason” for the alien’s 

50 Compare Barajas-Romero, 846 F.3d at 360 (holding that “‘a reason’ is a less 

demanding standard than ‘one central reason.’”), and Guzman-Vazquez v. Barr, 959 F.3d 

253, 272 (6th Cir. 2020) (same), with Gonzalez-Posadas v. Att'y Gen. U.S., 781 F.3d 677, 

684-85 (3d Cir. 2015) (requiring a showing that membership in a PSG is “one central 

reason” for an alien’s persecution for the purposes of withholding of removal). 

51 7 F.4th 265 (5th Cir. 2021). 

52 Id. at 271. 

53 Revencu v. Sessions, 895 F.3d 396, 402 (5th Cir. 2018). 

54 Id.

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persecution.55 Therefore, “[a]n applicant who fails to establish eligibility for 

asylum also fails to establish eligibility for withholding of removal.”56

Lopez-Aguilar relies in part on the Supreme Court’s decision in I.N.S. 

v. Cardoza-Fonseca57 to support his contention that asylum and withholding 

of removal claims involve distinct standards for establishing a nexus to 

persecution, but this reliance is misplaced. In Cardoza-Fonseca, the Court 

concluded, as we have noted, that withholding of removal and asylum involve 

different burdens of proof for future persecution.58 The case says nothing, 

however, about the standard for establishing a nexus between persecution 

and a statutorily protected ground. 

Because our circuit’s case law clearly requires that the same “one 

central reason” standard for establishing a nexus between persecution and 

membership in a PSG be applied to both asylum and withholding of removal 

claims,59 we deny Lopez-Aguilar’s petition with respect to this argument. 

We express no opinion as to whether Lopez-Aguilar has in fact 

satisfied the nexus requirement for withholding of removal—or, for that 

matter, asylum. Though the Government argues that Lopez-Aguilar has 

forfeited a challenge to the agency’s nexus determination by failing to raise it 

in his opening brief to this court, we disagree; Lopez-Aguilar couches his 

55 Id. (using the “one central reason” nexus test for a withholding of removal 

claim); Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009) (quoting 8 

U.S.C. § 1158(b)(1)(B)(i)) (same); see also Matter of C-T-L-, 25 I. & N. Dec. 341, 348 (BIA 

2010). 

56 Vazquez-Guerra v. Garland, 7 F.4th 265, 271 (5th Cir. 2021).

57 480 U.S. 421 (1987). 

58 I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 430, 449 (1987). 

59 Vazquez-Guerra, 7 F.4th at 271 (quoting Quinteros-Hernandez v. Sessions, 740 F. 

App’x 57, 58 (5th Cir. 2018) (unpublished) (per curiam)). 

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arguments regarding the agency’s substantive nexus holding within his 

claims involving the failure to assess his proposed PSG and the legal standard 

for withholding of removal. 

Nevertheless, Lopez-Aguilar has forfeited the separate issue of 

whether his proposed PSG is cognizable.60 Deciding the nexus issue directly 

would therefore implicitly require us to either consider a forfeited argument 

or render an opinion on whether the agency may make a nexus determination 

without first assessing whether a proposed PSG is cognizable—a question we 

lack jurisdiction to entertain. 

B 

Lopez-Aguilar next argues that the BIA applied an incorrect legal 

standard to his CAT claim. He also challenges the BIA’s factual conclusion 

that he is ineligible for CAT protection. 

 Again, “[w]e review the BIA’s conclusions of law de novo” including 

claims that the BIA applied an incorrect legal standard.61 “We review . . . the 

IJ and the BIA[’s] . . . factual findings for substantial evidence.”62 Eligibility 

for CAT protection is one such factual finding.63 Under this deferential 

standard, we reverse only when “the evidence is so compelling that no 

reasonable fact finder could fail to find the petitioner statutorily eligible for 

relief.”64 Indeed, even if “a reasonable factfinder could have found [the facts] 

60 See, e.g., Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021) (“A party 

forfeits an argument by . . . failing to adequately brief [it] on appeal.”); see also Fed. R. 

App. P. 28(a)(8)(A). 

61 See Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002). 

62 Sealed Petitioner v. Sealed Respondent, 829 F.3d 379, 383 (5th Cir. 2016). 

63 Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). 

64 Sharma v. Holder, 729 F.3d 407, 411 (5th Cir. 2013) (quoting Arif v. Mukasey, 509 

F.3d 677, 679 (5th Cir. 2007) (per curiam)); 8 U.S.C. § 1252(b)(4)(B) (“[A]dministrative 

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sufficient” to reach a result contrary to the agency’s, it does not follow that 

“a factfinder would be compelled to do so.”65

“[R]elief under the Convention Against Torture requires a two part 

analysis—first, is it more likely than not that the alien will be tortured upon 

return to his homeland; and second, is there sufficient state action involved 

in that torture.”66 To satisfy the state action requirement, torture must be 

“inflicted by, or at the instigation of, or with the consent or acquiescence of, 

a public official . . . .”67 “Acquiescence . . . requires that the public 

official . . . have awareness of such activity and . . . breach his or her legal 

responsibility to intervene . . . .”68 “[A]wareness requires . . . either actual 

knowledge or willful blindness.”69 “Willful blindness means . . . aware[ness] 

of a high probability of . . . torture and deliberately avoid[ing] learning the 

truth . . . .”70 Finally, the regulations note that, “No person will be deemed 

to have breached a legal responsibility to intervene if such person is unable to 

intervene . . . .”71

findings of fact are conclusive unless any reasonable adjudicator would be compelled to 

conclude to the contrary . . . .”). 

65 Mikhael v. I.N.S., 115 F.3d 299, 304 (5th Cir. 1997) (emphasis in original). 

66 Tamara-Gomez v. Gonzales, 447 F.3d 343, 350-51 (5th Cir. 2006) (footnote 

omitted). 

67 8 C.F.R. § 1208.18(a)(1). 

68 8 C.F.R. § 1208.18(a)(7). 

69 Id.; see also Hakim v. Holder, 628 F.3d 151, 155 (5th Cir. 2010) (“[A]cquiescence 

is satisfied by a government’s willful blindness of tortuous activity.” (internal quotation 

marks omitted)).

70 8 C.F.R. § 1208.18(a)(7). 

71 Id.

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Before the IJ, Lopez-Aguilar testified that Oscar had beaten him with 

“belts, cables, and branches” from the time he was three years old until he 

fled to the United States at age fifteen. He further alleged that friends of 

Oscar’s, who were members of a gang, assaulted him when he refused to join 

the gang, in one instance fracturing his shin. He stated that Oscar squandered 

money intended for him, sexually abused him, and once threatened him with 

a gun to prevent him from reporting the abuse to his mother. He stated that 

he feared that if returned to Honduras, he risked further abuse, and possibly 

death, at the hands of Oscar and the other gang members. Lopez-Aguilar 

acknowledged that he never reported Oscar’s abuse to the police. 

Considering this testimony, the IJ denied Lopez-Aguilar’s claim for 

protection under the CAT on two grounds: first that the abuse Lopez-Aguilar 

suffered did not meet the definition of torture, and second, that it was not 

“carried out” or “condone[d]” by the Honduran government. The BIA 

affirmed the IJ’s conclusion that it was not “more likely than not . . . that 

[Lopez-Aguilar] will face torture by or with the consent or acquiescence 

(including willful blindness) of any public official,” noting in particular that 

Lopez-Aguilar had not shown he was ever tortured by any government 

official or that “any public official in Honduras seeks to torture him . . . .” 

Lopez-Aguilar alleges that the BIA applied the wrong legal standard 

to his CAT claim by requiring him to show that the Honduran government 

was “willfully accepting” of torture as opposed to merely aware of or 

willfully blind to it and unable or unwilling to intervene. This necessarily 

implicates the factual finding that he is ineligible for CAT protection. In 

support of his argument, Lopez-Aguilar asserts that the type of abuse he 

suffered is systemic in Honduras and that the government is unable to 

address it. 

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On its face, the BIA’s decision approximated the correct standard for 

protection under the CAT. It required that Lopez-Aguilar demonstrate a 

likelihood of torture “with the consent or acquiescence (including willful 

blindness)” of a Honduran public official and relied on controlling authority 

in doing so.72 While this articulation did not consider the “actual 

knowledge” of Honduran authorities,73 the record does not compel reversal 

under either theory. 

Our circuit’s precedent has consistently held that “potential 

instances of violence committed by non-governmental actors . . . together 

with speculation that the police might not prevent that violence, are generally 

insufficient to prove government acquiescence . . . .”74 This is particularly 

true when the government has taken “meaningful steps to address” the 

abuses alleged.75

In light of these principles, our recent decision in Tabora Gutierrez v. 

Garland76 provides a yardstick for assessing Lopez-Aguilar’s CAT claim. In 

that case, as here, the petitioner fled to the United States from the violence 

72 See, e.g., Ramirez-Mejia v. Lynch, 794 F.3d 485, 493-94 (5th Cir. 2015). 

73 8 C.F.R. § 1208.18(a)(7). 

74 Garcia v. Holder, 756 F.3d 885, 892 (5th Cir. 2014). 

75 Tabora Gutierrez v. Garland, 12 F.4th 496, 505 (5th Cir. 2021); see also Garcia, 

756 F.3d at 892 (speculation regarding police inability to control private violence 

insufficient for acquiescence when “there is evidence that the government prosecutes 

rogue or corrupt public officials.”); Chen v. Gonzales, 470 F.3d 1131, 1142-43 (5th Cir. 2006) 

(“[G]overnment efforts to combat corruption or abuse . . . [are] relevant to the willful 

blindness inquiry.” Given that the government prosecuted human smugglers and corrupt 

public officials, substantial evidence supported the conclusion that the government did not 

acquiesce in torture). 

76 12 F.4th 496. 

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of Honduran gangs.77 For his persistent refusal to join or pay off the gang, 

the petitioner was brutally beaten, stabbed, shot multiple times, and 

repeatedly threatened with death.78 Though he reported at least three of 

these incidents to police, authorities informed him either that he lacked 

sufficient proof of his allegations, that they could not help him, or that they 

themselves feared documenting reports of gang violence.79 Ultimately, the 

very people from whom the petitioner sought refuge advised him to leave 

Honduras.80

Despite the brutality inflicted upon the petitioner and the Honduran 

authorities’ utter failure to protect him, the IJ ordered him removed to 

Honduras.81 The BIA concluded that the police were not willfully blind to 

the petitioner’s treatment by the gangs, pointing in part to evidence of the 

government’s efforts—albeit largely unsuccessful—to combat gang violence 

and corruption.82 The petitioner’s mere “speculation that officers would not 

protect him in the future” was therefore insufficient to show acquiescence.83 

Acknowledging that the BIA and IJ might have concluded otherwise, we 

denied the petition for review because the record did not “compel them to 

do so.”84 This reasoning is fatal to Lopez-Aguilar’s claim. 

77 Id. at 498-99. 

78 Id. at 499. 

79 Id.

80 Id.

81 Id. at 498. 

82 Id. at 500, 504-505. 

83 Id. at 500-01 (internal quotation marks omitted). 

84 Id. at 505-06. 

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Unlike the petitioner in Tabora Gutierrez, Lopez-Aguilar 

acknowledged that he never attempted to report to the police any of the 

violence that Oscar perpetrated against him because “[he] was afraid.” His 

assertion that “the Honduran Government is not able to stop the type of 

harm” he suffered therefore amounts to the same “speculation” we have 

acknowledged as insufficient for government acquiescence in our prior 

cases.85 Indeed, we would be “hard-pressed to find [even] that the 

authorities were unable or unwilling to help . . . if [Lopez-Aguilar] never gave 

them the opportunity to do so.”86 Regardless, the government’s mere 

inability to intervene to prevent torture alone does not amount to 

acquiescence.87

To be sure, the record is replete with evidence detailing the Honduran 

government’s failure to protect children such as Lopez-Aguilar from abuse 

at the hands of their families, gangs, and society generally. Nevertheless, the 

record also demonstrates “meaningful steps” on the part of Honduran 

authorities to ameliorate these conditions. The government has 

“purg[ed] . . . many policemen” involved in gang-related or other corrupt 

activities. The country has well-crafted laws for the protection of children 

and has continued to reform those laws. Finally, as of 2014, the government 

had proposed an entirely new infrastructure for promoting child welfare. 

Regardless of whether these efforts prove fruitful, as in Tabora 

Gutierrez, we are not compelled to conclude that the Honduran government 

was or will be “willfully blind” to the type of harm Lopez-Aguilar has 

85 See, e.g., Garcia v. Holder, 756 F.3d 885, 892 (5th Cir. 2014). 

86 Sanchez-Amador v. Garland, 30 F.4th 529, 534 (5th Cir. 2022) (considering an 

asylum application). 

87 8 C.F.R. § 1208.18(a)(7); Qorane v. Barr, 919 F.3d 904, 911 (5th Cir. 2019) (“[A] 

government’s inability to protect its citizens does not amount to acquiescence.”). 

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suffered or that it is even aware of his particular abuse, as he never reported 

it.88 We also pause to note the IJ’s observation in this case that—the 

circumstances of Honduran children notwithstanding— Lopez-Aguilar is no 

longer a child. As a result, it is not clear he would still be subject to the harms 

detailed in the record if he were returned to Honduras. 

The possibility that the government might not protect him in the 

future is therefore impermissibly speculative.89 On the evidence presented, 

“a reasonable factfinder” could have concluded that Lopez-Aguilar will not 

“face torture by or with the consent or acquiescence” of the Honduran 

government,90 and there is no indication that the BIA required Lopez-Aguilar 

to demonstrate that “government officials be willfully accepting 

of . . . torture.” Because Lopez-Aguilar’s claim fails on the “state action” 

prong of the test,91 we need not consider whether the harm he suffered 

amounts to torture within the meaning of the regulations.92

Finally, Lopez-Aguilar alleges that the BIA’s judgment was “not 

reasoned” with respect to his CAT claim. Lopez-Aguilar provides no 

support or explanation for this contention beyond his challenge to the BIA’s 

ultimate conclusion. Even if we were to construe it as a claim that the BIA 

88 12 F.4th at 501, 505; see also Ramirez-Mejia v. Lynch, 794 F.3d 485, 494 (5th Cir. 

2015) (explaining that “country reports . . . may weigh against [the] conclusion” that it was 

not more likely than not that the petitioner would be tortured upon return to Honduras, 

but “they do not compel the opposite conclusion.”). 

89 Garcia, 756 F.3d at 892. 

90 See Ramirez-Mejia, 794 F.3d at 494. 

91 See Tamara-Gomez v. Gonzales, 447 F.3d 343, 350-51 (5th Cir. 2006). 

92 See C.F.R. § 1208.18(a)(1) (defining torture). 

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failed to consider relevant evidence, however, such claim was not raised 

before the BIA and therefore remains unexhausted.93

Because we conclude that BIA applied the correct legal standard and 

that substantial evidence supports its judgment, we deny Lopez-Aguilar’s 

petition as to his CAT claims. 

* * * 

We DENY Lopez-Aguilar’s petition in part and DISMISS it in part 

for lack of jurisdiction. 

93 See Omari v. Holder, 562 F.3d 314, 320-21 (5th Cir. 2009); cf. Martinez-Guevara 

v. Garland, 27 F.4th 353, 361 (5th Cir. 2022) (claim that the BIA ignored evidence was 

exhausted because petitioner asked BIA to correct IJ’s identical error). 

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