NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 21

- 1582

_____________ AURELIA ALEJANDRES SANTACRUZ ; W ILBER SOLORIO ALEJANDRES , Petitioners

v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

_______________ On Petition for Review of an Order of the Board of Immigration Appeals (A209

- 167

- 344 & A209

- 167

- 345) Immigration Judge: John B. Carle

_______________ Submitted Under Third Circuit LAR 34.1(a) May 25 , 2 022
Before: KRAUSE, PHIPPS, Circuit Judges and STEARNS * , Distric t Judge. (Filed : June 2 3 , 2022 )

_______________ OPINION ∗ ∗

_______________

* Honorable Richard G. Stearns , United States District Court Judge for the District of Massachusetts , sitting by designation.

∗ ∗ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.2 STEARNS , District Judge

. Petitioners Aurelia Alejandres Santacruz and her minor son , who are natives and
citizens of Mexico , arrived in the United State s in June of 2016 without valid entry documents. They now appeal a final removal order of the Board of Immigration Appeals. We have jurisdiction under 8 U.S.C. § 1252(a) . We review the Board’s legal conclus ion s
de novo , see Cheruku v. Att’y Gen. , 662 F.3d 198, 202 (3d Cir. 2011) , and “ we must regard all determinations about facts grounding the final order as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Mendoza

Ordonez v. Att ’ y Gen. , 869 F.3d 164, 169 (3d Cir. 2017) (quoting 8 U.S.C §
12 52(b)(4)(B)).
Th e petition arises against the backdrop of a power struggle between two drug
cartels based in the Michoac á n State

— La Familia Michoac á n and Jalisco Nueva
Generacion

— battling for control of the drug trade in the area where petitioner lived before coming to the United States. Petitioner Alejandres had joined El Timbrichi, a ranching collective consisting of some two hundred farming households. On June 9, 2016, Alejand res witnessed a deadly shootout between members of the rival gangs

. Although Alejandres was not personally threatened (no r were members of her family), she feared for her continuing safety. She left for the United States with her son and applied for asyl um, claiming that she was being persecuted by partisans of the Jalisco

gang , with the acquiescence of the Mexican government, because of her membership in a social group, El Timbrichi. She also sought withholding of removal, and relief under the
Conventio n Against Torture (CAT)

.3 The Board determin ed that Alejandres’s experience, while “regrettable,” did not rise to the level of persecution. A pp. 19. Further, to the extent that the ranch ing community constitute d a social group, she was unable to establish that her membership in
the collective was “at least one central reason” for her fear of harm. The Board found that there was no evidence that “either of the rival groups intended then or now . . . to specifically harm [Alejandres] . . . .” I d

. The B oard also concluded that she had not
established that she and her son could not safely relocate to another area of Mexico , as
her mother and in

- laws were living safely elsewhere in the country

. Finally, the Board deemed that petitioners had waived the ir CAT claim. Alejandres contend s in general terms that the Board “ overlooked the law and
evidence ” in rejecting her assert ed fear of future persecution and in determining that membership in El Ti mbrichi was not “ at least one central reason” for her fear of persecution

. 1 Appellant’s Br. 12

– 13. To be eligible for asylum, a petitioner bear s the
burden to “ demonstrate either (i) proof of past persecution, or (ii) a well

- founded fear of future persecution in [their] home country ‘on account of race, religion, nationality, membership in a particular social group , or political opinion .’” Sesay v. Att ’ y Gen. , 787 F.3d 215, 218

– 19 (3d Cir. 2015) (quoting 8 U.S.C. § 1101(a)(42) )

. A pplicants seeking withholding of removal must also carry the heavier burden of establish ing that they
would “ more likely than not” be persecuted on account of a protected characteristic.

1 Aleja ndr es and her son do not substantively challenge the Board’s determination that they did not suffer past persecution and that they could safely relocate to another area of Mexico.4 Thayalan v. Att ’ y Gen. , 997 F.3d 132, 138 (3d Cir. 2021) . In either case, the “ protected
characteristic must be ‘ or will be at least one central reason ’ for [the] persecution. ” Id. at
142 (quoting 8 U.S.C. § 1158(b)(1)(B)(i))

. “For a protected characteristic to qualify as ‘one central reason’, it must be an essential or principal reason for the persecution.” Gonzalez

- Posadas [ v. Att ’ y Gen

. ] , 781 F.3d [677,] 685 [(3d. Cir. 2015)]

. As a result, neither asylum nor withholding of removal may be granted “when the characteristic at issue ‘played only an incidental, tangential, or superficial role in persecution.’” Id. (quoting Ndayshimiye v. Att ’ y Gen. , 557 F.3d 124, 130 (3d Cir. 2009)). The characteristic “must be both a but

- for cause of [the] persecution and it must play more than a minor role that is neither incidental nor tangential to another reason for the harm or a means to a non protected end.” Matter of A

- B

- , 28 I. & N. Dec. 199, 211 (A.G. 2021).
Id. at 142

- 4 3. We see no error in the Board’s finding of facts or application of law. Alejandr es do es not identify any evidence in the record that reflect s that she was a target
rather than an adventitious spectator of the gun battle between rival gang members , or
that her membership in El Timbrichi was a but

- for cause of any persecution

. See
Valdiviezo

- Galdamez v. Att’y Gen. , 663 F.3d 582, 609 (3d Cir. 2011) (“ There must be evidence that the gang knew of his political opinion and targeted him because of
it. However, there is no such evidence here.”). Alejandres also fault s the Board for not considering the evidence that the Mexican
government would not protect her from future torture if she and her son are removed

. A pplicant s for relief under CAT must establish that “ that it is more likely than not that [they] would be tortured if removed to the proposed country of removal.” Sevoian v. Ashcroft , 29 0 F.3d 166, 175 (3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2) )

. Torture, under the regulations, is defined as acts done “ by or at the instigation of or with the consent or acquiescence of a public official or5 other person acting in an official capacity, ” by means of which “ severe pain and suffering, whether physical or mental, is intentionally inflicted ” for purposes such as obtaining confessions, punishment, intimidation or coercion.
Id. (quoting 8 C.F.R. § 208.18(a)(1)). Alejandres do es not address the Board’ s rejection
of her CAT claim on grounds of waiver. Even putting aside the procedural default , given
the Board’s unchallenged determination that her experience does not rise to the level of persecution and that she has available the avenue of safe relocat ion to another area of Mexico, the record does not establish that she and her son would “more likely than not”
be tortur ed if returned to Mexico. For the foregoing reasons, we will deny the petition for review.