United States Court of Appeals

for the Fifth Circuit

No. 22-60177

Summary Calendar

Carlos Leonel Erazo-Flores, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

Agency No. A209-305-007

Before King, Higginson, and Willett, Circuit Judges.

Per Curiam:*

Carlos Leonel Erazo-Flores petitions for review of the BIA’s decision 

denying him asylum, withholding of removal, and protection under the 

Convention Against Torture. For the following reasons, the petition is 

DENIED.

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

United States Court of Appeals

Fifth Circuit

FILED

March 23, 2023

Lyle W. Cayce

Clerk

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I.

Carlos Leonel Erazo-Flores is a native and citizen of Honduras. He 

testified that in 2013, he was leaving church in his village in Honduras when 

four drunk male strangers came up to him, grabbed him, beat him, and raped 

him. The men took Erazo-Flores, threw him on the ground, and asked him 

why he went to church. They laughed at him, said he was “going to be a gay

[sic],” and threatened to kill him if he yelled. Erazo-Flores did not report this 

incident to the police because, in part, he was afraid the police would tell 

others that he had been sexually assaulted.

Additionally, Erazo-Flores testified to various encounters with gang 

members between April 2014 and May 2015. Some men tried to steal ErazoFlores’s motorcycle, and gang members later attempted to recruit ErazoFlores. Erazo-Flores reported one such incident to the police, but an officer 

tore up his written statement and told him that the gangs would find out he 

had filed a report. Erazo-Flores and his father then received various threats 

via text message. Finally, in June 2017, someone—Erazo-Flores believes it 

was a gang member—hit the car of Erazo-Flores’s father from behind and 

shot at him. 

In 2016, Erazo-Flores entered the United States without 

authorization. The Department of Homeland Security (“DHS”) then issued 

him a Notice to Appear (“NTA”) charging him with removal as a noncitizen 

not in possession of a valid entry document at time of entry. Through 

counsel, Erazo-Flores conceded the NTA’s factual allegations and charge.

He then filed for asylum, withholding of removal, and protection under the 

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Convention Against Torture (“CAT”) based on, as relevant to this appeal,

his religion and membership in a particular social group (“PSG”).1

At his hearing in front of an Immigration Judge (“IJ”), Erazo-Flores

proffered seven PSGs based primarily on his imputed membership in the 

LGBTQ community, Catholicism, and opposition to criminal gangs.2 The IJ 

denied Erazo-Flores’s application. Concerning his asylum and withholding 

of removal claims, the IJ first held that Erazo-Flores could not establish the 

requisite nexus to a protected ground. The IJ also held that Erazo-Flores’s 

proffered PSG of “Honduran male witnesses” was not a cognizable PSG. 

Finally, the IJ denied Erazo-Flores’s application for CAT protection for 

failure to establish a sufficient likelihood of future torture with the requisite 

state acquiescence. The Board of Immigration Appeals (“BIA”) affirmed the 

IJ’s decision without a written opinion. Erazo-Flores timely filed a petition 

for review with this court.

II.

“When . . . the BIA affirms the immigration judge and relies on the 

reasons set forth in the immigration judge’s decision, this court reviews the 

decision of the immigration judge as well as the decision of the BIA.” Ahmed 

v. Gonzales, 447 F.3d 433, 437 (5th Cir. 2006). In doing so, we review for 

substantial evidence the IJ’s factual findings, which include an applicant’s 

eligibility for asylum, withholding of removal, and CAT relief. Chen v. 

1 Erazo-Flores withdrew his political opinion-based claims for relief

2 Specifically, these seven PSGs are: (1) imputed members of the LGBTQ 

community; (2) Catholic-Honduran males; (3) Honduran males perceived to be enemies 

of criminal gangs by virtue of their opposition to gang influence; (4) Honduran males 

perceived to be advocates for strong rule of law by virtue of their resistance to gang 

influence; (5) Catholic-Honduran males who refuse to join criminal gangs; (6) Honduran 

males perceived to encourage public opposition to criminal gangs by refusing to submit to 

gang authority; and (7) Honduran male witnesses.

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Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). Substantial evidence exists if 

the BIA’s conclusion was “based upon the evidence presented 

and . . . substantially reasonable,” Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 

(5th Cir. 1996) (quoting Wilson v. INS, 43 F.3d 211, 213 (5th Cir. 1995)), and 

we will reverse the BIA’s factual findings only if “the evidence compels” a 

contrary result because “no reasonable factfinder could conclude against it,” 

Wang v. Holder, 569 F.3d 531, 536–37 (5th Cir. 2009). 

A. Asylum and Withholding of Removal

To receive asylum, an applicant must establish the suffered or feared 

persecution was on account of one of the five statutorily protected grounds; 

this is the “nexus requirement.” 8 U.S.C. §§ 1101(a)(42)(A), 

1158(b)(1)(B)(i); Sharma v. Holder, 729 F.3d 407, 411 (5th Cir. 2013); see 

Tamara-Gomez v. Gonzalez, 447 F.3d 343, 349 (5th Cir. 2006) (noting the 

noncitizen “carries the burden to establish a nexus”). 

On appeal, Erazo-Flores first argues he is eligible for asylum and 

withholding of removal because his sexual assault by the four men qualifies 

as past persecution on account of his religion. But the record indicates that 

this sexual assault could also be characterized as personally- or criminallymotivated conduct not constituting persecution on account of a protected 

ground. See Ramirez-Mejia v. Lynch, 794 F.3d 485, 492–93 (5th Cir. 2015)

(affirming a determination of no nexus where evidence suggested 

motivations for harm were to criminally extort information). The IJ

concluded that the four men approached Erazo-Flores intending to commit 

assault based on general criminal motivations, not by Erazo-Flores’s religious 

background. This conclusion is supported by the record. Erazo-Flores

testified that the men did not know who he was or that he was religious when 

he was initially approached. The men approached Erazo-Flores and, 

according to his affidavit, grabbed and threw him to the ground before he told 

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the attackers that he was coming from church. These men did not know of 

Erazo-Flores’s religious background when they approached and attacked 

him, and Erazo-Flores testified that he never saw these men again. This thus 

suggests that this attack was the kind of random, indiscriminate violence 

driven by a criminal motive that we have previously declined to consider 

persecution on account of a protected ground. See Thuri v. Ashcroft, 380 F.3d 

788, 792–93 (5th Cir. 2004) (holding that officers motivated by criminal, 

personal reasons did not persecute applicant on account of a protected 

ground). Under such facts, the evidence does not compel a result contrary to 

the IJ’s conclusion that any purported religious motivation on the part of the 

attackers was an “incidental, tangential, superficial, or subordinate” reason 

for the harm. Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009) (internal 

citation omitted). The IJ’s decision that Erazo-Flores had failed to establish 

nexus is thus “supported by record evidence and substantially reasonable.” 

Revencu v. Sessions, 895 F.3d 396, 401 (5th Cir. 2018) (quoting Shaikh, 588 

F.3d at 863).

Erazo-Flores next argues that he was threatened and fears reprisal 

from gang members because of his filing a police report and his membership 

in the PSG of “Honduran male witnesses.” A PSG must be (i) “composed 

of members who share a common immutable characteristic,” (ii) “defined 

with particularity,” and (iii) “socially distinct within the society in 

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

Orellana-Monson v. Holder, 685 F.3d 511, 519–22 (5th Cir. 2012) (according 

deference to the BIA’s interpretation of a PSG and noting that the agency’s 

factual findings on PSG cognizability criteria must be supported by 

substantial evidence). Concerning the social distinction requirement, social 

distinction is “determined by ‘the extent to which members of a society 

perceive those with the characteristic in question as members of a social 

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group.’” Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016) 

(quoting Orellana-Monson, 685 F.3d at 519–20).

Groups based on being a witness lack the required social distinction to 

qualify as a PSG, as members of such groups “are not substantially different 

from anyone else in the general population” who resist criminal 

organizations. Hernandez-De La Cruz, 819 F.3d at 787. The present case is 

no different. The IJ found no evidence suggesting that the Honduran 

community views male witnesses as a separate and distinct part of the 

community. Erazo-Flores’s arguments to the contrary are unavailing. He 

notes “widely unenforced laws which have been enacted in Honduras to 

protect members of civil society from gang violence” as evidence of social 

distinction. But he does not identify any laws with the requisite specificity 

required for us to consider these as evidence of social distinction. Cf. 

Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (explaining that courts 

will not sift through the record to identify the specific evidence supporting a 

party’s contention). And in any case, his characterization of these laws as 

protecting “members of civil society” does not show that these laws 

distinguish between “Honduran male witnesses” and the larger, more 

general group of Hondurans (who may not be witnesses) requiring protection 

from gang violence. See Aranda-Galvan v. Lynch, 623 F. App’x 217, 219 (5th 

Cir. 2015) (rejecting PSG because plaintiff did not show evidence compelling 

a conclusion that his native country’s society perceives those individuals as a 

distinct group); Matter of H-L-S-A-, 28 I. & N. Dec. 228, 239 (BIA 2021)

(similar). Similarly, he argues that his proffered PSG is socially distinct 

because “rumors began to spread throughout his community that he had 

defied the authority of the gangs,” but such occurrences say nothing about 

whether Honduran society views Honduran male witnesses as a distinct 

group. Accordingly, this proffered PSG fails for lack of social distinction, and 

it cannot serve as a basis for Erazo-Flores’s asylum claim. The IJ did not err 

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in refusing to recognize this PSG and in denying Erazo-Flores’s asylum claim 

on these grounds.

Additionally, because the level of proof required for withholding of 

removal is “more stringent than for asylum purposes,” Erazo-Flores’s 

failure to establish eligibility for asylum necessarily dooms his withholding of 

removal claim.3 Eduard v. Ashcroft, 379 F.3d 182, 186 n.2 (5th Cir. 2004)

(quoting Mikhael v. INS, 115 F.3d 299, 306 (5th Cir.1997)).

B. Convention Against Torture

Concerning his CAT claim, Erazo-Flores also challenges the BIA’s 

determination that he did not establish a clear probability of future torture; 

he argues his testimony and proffered evidence compel the conclusion that 

he established eligibility for CAT protection. An applicant seeking CAT 

protection must prove that he will more likely than not be tortured “by or at 

the instigation of or with the consent or acquiescence of a public official 

acting in an official capacity or other person acting in an official capacity.” 

Tabora Gutierrez v. Garland, 12 F.4th 496, 502 (5th Cir. 2021) (quoting 8 

C.F.R. § 1208.18(a)(1)); see also 8 C.F.R. § 1208.16(c)(2). In assessing the 

likelihood of torture, the IJ considers evidence of past torture, the applicant’s 

ability to relocate within the country of removal to avoid torture, and human 

rights violations within the country of removal. Tabora Gutierrez, 12 F.4th at 

503.

Erazo-Flores fails to demonstrate that he is more likely than not to be 

tortured. He does not adequately explain what record evidence supports 

3 Because Erazo-Flores presents no arguments on appeal concerning his other 

proposed PSGs, he has waived these arguments. See Cinel v. Connick, 15 F.3d 1338, 1345 

(5th Cir. 1994) (“An appellant abandons all issues not raised and argued in its initial brief 

on appeal. . . . A party who inadequately briefs an issue is considered to have abandoned 

the claim.”).

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reversing the IJ’s determination that his past harm did not rise to the requisite 

level of “severe pain or suffering.” Id. at 502. Additionally, Erazo-Flores

does not adequately contest the IJ’s conclusion that he could relocate to avoid 

future harm because he was able to live for over a year in Honduras without 

incident. Thus, the IJ’s conclusions concerning a lack of past torture and 

Erazo-Flores’s ability to safely relocate are substantially reasonable. Revencu, 

895 F.3d at 401. Consequently, Erazo-Flores cannot show a likelihood of 

torture, which precludes his eligibility for CAT protection.4 Tabora 

Gutierrez, 12 F.4th at 502–03.

III.

For the foregoing reasons, the petition for review is DENIED.

4 We need not and thus do not reach the state acquiescence prong of the CAT 

analysis and thus decline to consider Erazo-Flores’s arguments that the Honduran 

government would acquiesce to any future torture. See, e.g., Tabora Gutierrez, 12 F.4th at 

503 (stating that a CAT applicant must show both likelihood of torture and state 

acquiescence to receive CAT protection).

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