[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10528

Non-Argument Calendar

____________________

FREDI ELISEO CUX-LOPEZ, 

FLORIDALMA CUX-LOPEZ, 

Petitioners,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A206-894-341

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____________________

Before ROSENBAUM, JILL PRYOR, and ABUDU, Circuit Judges.

PER CURIAM:

Guatemalan citizens, Floridalma Cux-Lopez and her son 

Fredi Cux-Lopez (collectively “Petitioners”) seek review of the 

Board of Immigration Appeals’ (“BIA”) final order affirming the 

Immigration Judge’s (“IJ”) denial of their applications for asylum, 

withholding of removal, and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading 

Treatment or Punishment (“CAT”). On appeal, Petitioners argue 

that the BIA erred by determining that they were ineligible for asylum, withholding of removal, and CAT relief. After reviewing the 

record and the applicable law, we affirm.

I. Denial of Asylum & Withholding of Removal

We review only the decision of the BIA, except to the extent 

that the BIA expressly adopts or explicitly agrees with the IJ’s decision. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). 

We do not consider issues that the BIA did not reach. Id. 

We review de novo the BIA’s legal conclusions, such as 

whether a petitioner’s claimed social group qualifies as a particular 

social group under the INA. Perez-Zenteno v. U.S. Att’y Gen., 913 

F.3d 1301, 1306 (11th Cir. 2019). Our review is informed by Chevron1 deference, meaning that if a statute that the agency administers

1 Chevron, U.S.A., Inc. v Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

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is silent or ambiguous, we determine whether the agency’s interpretation is permissible and if so, defer to that interpretation. Id.

Because the INA does not clearly define the phrase “particular social group,” we have deferred to the BIA’s interpretation as set 

forth in its unpublished, three-member decisions. Id. at 1307; see 

also Gonzalez, 820 F.3d at 404 (“We have previously held that the 

BIA’s interpretation of the phrase ‘particular social group’ in 8 

U.S.C. § 1231(b)(3)(A) is entitled to Chevron deference because the

INA does not define the phrase and it is ambiguous.”). 

The noncitizen bears the burden of establishing that she is 

entitled to asylum, which requires the noncitizen to establish, with 

specific and credible evidence, that: (1) she suffered past persecution on account of a statutorily protected ground; or (2) she has a 

well-founded fear that she will be persecuted on account of a statutorily protected ground. Id.; 8 C.F.R. § 1208.13(a), (b). The statutorily protected grounds include, among other things, membership in a particular social group. 8 U.S.C. § 1158(b)(1)(B)(i). 

To qualify as a particular social group under the INA, the 

group must be composed of members who “share a common, immutable characteristic” that the group members either cannot 

change, or should not be forced to change, “because it is fundamental to their individual identities or consciences.” Perez-Zenteno, 913 

F.3d at 1309-10 (internal quotation marks and citation omitted). 

The “particular social group also must be defined with particularity,” meaning the group has discrete, definable boundaries, and is 

not vague or amorphous. Id. at 1310 (internal quotation marks and 

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citation omitted). Moreover, the group should be seen within the 

given society as a “sufficiently distinct group.” Id. (internal quotation marks and citation omitted). Importantly, the particular social 

group cannot be circularly defined by the persecution of its members, meaning the particular social group’s defining attribute cannot be its risk of persecution stemming from being targeted by 

gangs. Id. at 1309-10 (holding that the BIA reasonably determined 

that the noncitizen’s proposed social group of “Mexican citizens 

targeted by criminal groups because they have been in the United 

States and have families in the United States” was impermissibly 

circular) (underline in original); see also Amezcua-Preciado v. U.S. 

Att’y Gen., 943 F.3d 1337, 1344-45 (11th Cir. 2019) (holding that the 

BIA reasonably determined that the noncitizen’s proposed social 

group of “women in Mexico who cannot leave domestic relationships” was impermissibly circular); Rodriguez v. U.S. Att’y Gen., 735 

F.3d 1302, 1310 (11th Cir. 2013) (holding that the BIA did not err in 

finding incognizable a noncitizen’s proposed social group of “members of a family targeted by a drug-trafficking organization because 

a family member sought criminal justice against a member of the 

drug-trafficking organization” because the social group was impermissibly defined by the risk of persecution).

Additionally, the petitioner must establish a nexus between 

the feared persecution and a statutorily protected ground by 

demonstrating that one of the protected grounds was or will be at 

least one central reason for persecuting her. 8 U.S.C. 

§ 1158(b)(1)(B)(i). Evidence “consistent with acts of private violence or the petitioner’s failure to cooperate with guerillas,” or 

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evidence merely showing the petitioner “has been a victim of criminal activity,” is insufficient to support a finding that the noncitizen 

faced persecution based on a statutorily protected ground. Ruiz v. 

U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006).

A noncitizen is eligible for withholding of removal if she 

shows that, upon return to her country, she will be persecuted in 

that country because of a protected ground, such as her membership in a particular social group. 8 U.S.C. § 1231(b)(3). The standard for withholding of removal is more stringent than that for asylum, meaning if the petitioner fails to meet the standard of proof 

for asylum, she necessarily cannot meet the standard for withholding of removal. Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 

891 (11th Cir. 2007).

Before the BIA and IJ, Cux-Lopez framed her proposed particular social group as “Guatemalan mothers fleeing personal gang 

persecution and that of their young student children.” Fredi 

framed his proposed particular social group as “young Guatemalan 

male students who are targeted by gang members for repeated rejection of gang recruitment to protect themselves and their family 

members.” At the hearing before the IJ, Petitioners presented evidence that they suffered from and feared gang violence. Fredi 

stated that when he was about 10 years old, he began experiencing 

repeated pressure to join gangs that chased, attacked, threatened, 

and harassed him. He indicated that some of those gang encounters resulted in him getting bruised, but his mother acknowledged 

that he never received any medical attention for those injuries. 

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Petitioners also witnessed the murder of their pastor, and CuxLopez was grabbed by one of the assailants and had her phone stolen so that she could not report the crime. Given these experiences, 

Petitioners feared leaving their home, and Fredi quit attending 

school due to this fear. Cux-Lopez further stated that she has family living in Guatemala City, about a four to five-hour drive from 

her hometown. However, her reluctance to relocate within Guatemala was not based on fear, but instead because she has no 

money and her siblings told her she could not move there. 

After considering Petitioners’ testimony and the other evidence introduced, including reports regarding Guatemala’s human 

rights conditions, the IJ denied the Petitioners’ applications for asylum and withholding of removal, which the Petitioners appealed 

to the BIA. The BIA, in a single-member decision relying on precedent from this Court and the BIA, affirmed the IJ’s decision, concluding that Petitioners failed to sufficiently establish their membership in a particular social group due to the circular nature of 

their proposed social group and the lack of a nexus between their 

claimed persecution and their proposed social group. 

We affirm the BIA’s decision.2 As to asylum, Petitioners did 

not meet their burden of proof under the INA. Petitioners’ basis 

for asylum was that they are members of a particular social group 

and face a risk of persecution due to that status—specifically, as 

2 On appeal, Petitioners also argue that they demonstrated past persecution. 

Because the BIA did not reach that issue, Petitioners’ argument is not properly 

before the Court. Gonzalez, 820 F.3d at 403. 

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“Guatemalan mothers fleeing personal gang persecution and that 

of their young student children” and “young Guatemalan male students who are targeted by gang members for repeated rejection of 

gang recruitment to protect themselves and their family members.” However, the definition of their “particular social groups” 

is circular in that the risk of persecution defines the very risk they 

fear. Cux-Lopez’s proposed social group’s defining attribute is the 

risk of persecution stemming from being a mother with a young 

student child fleeing gang persecution, which is the definition of an 

impermissibly circular social group. Perez-Zenteno, 913 F.3d at 1310. 

Fredi’s proposed social group suffers the same fate, for his proposed 

social group’s defining attribute is the fact that he has been targeted 

by gang members. Rodriguez, 735 F.3d at 1310 (holding that “family 

[members] targeted by a drug-trafficking organization” was an impermissibly circular social group) (emphasis added). Thus, the proposed groups were not legally cognizable, and because they asserted no other protected ground, they could not establish the requisite nexus between the claimed persecution and a protected 

ground. 8 U.S.C. § 1158(b)(1)(B)(i). Moreover, Petitioners’ fear of 

gang-related violence directed towards them, while obviously 

troubling, does not establish a widespread fear of violence against 

every Guatemalan mother or young student. The same, as a matter of statutory interpretation and application, is true for Fredi who 

defined his proposed social group as all “young Guatemalan male 

students” targeted by gangs. Ruiz, 440 F.3d at 1258. As such, the 

BIA did not err in affirming the IJ’s denial of Petitioners’ application 

for asylum. Likewise, because Petitioners are not eligible for

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asylum, they necessarily cannot establish their eligibility for withholding of removal, and the BIA did not err in affirming the IJ’s 

denial of such relief. Rodriguez Morales, 488 F.3d at 891.

II. Denial of CAT Relief 

We review the BIA’s factual findings for substantial evidence, wherein we “view the record evidence in the light most favorable to the agency’s decision and draw all reasonable inferences 

in favor of that decision.” Perez-Zenteno, 913 F.3d at 1306 (internal 

quotation marks omitted) (quoting Adefemi v. Ashcroft, 386 F.3d 

1022, 1027 (11th Cir. 2004) (en banc)). Under this standard of review, “we must affirm the BIA’s decision if it is supported by reasonable, substantial, and probative evidence” in consideration of 

the entire record. Id. (internal quotation marks omitted) (quoting 

Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004)).

To be eligible for CAT relief, the noncitizen must meet a 

higher burden of proof than for asylum eligibility and show that 

she will more likely than not be tortured if she returned to the designated country of removal. Lingeswaran v. U.S. Att’y Gen., 969 F.3d 

1278, 1293 (11th Cir. 2020) (quoting 8 C.F.R. § 1208.16(c)(2)). All 

relevant evidence must be considered, including the applicant’s 

ability to relocate and information regarding conditions within the 

country. 8 C.F.R. § 1208.16(c)(3). “Torture” is defined as an intentionally inflicted “extreme form of cruel and inhuman treatment” 

that includes “severe pain or suffering” which can be either mental 

or physical. 8 C.F.R. § 208.18(a)(1), (2).

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Importantly, CAT only protects noncitizens from torture 

that is being inflicted, instigated, or acquiesced to by a public official or another individual acting in his or her official capacity. Lingeswaran, 969 F.3d at 1293. For a public official to acquiesce to the 

torture, the public official must have awareness of the activity before it occurs and be aware of his or her responsibility to intervene 

to prevent the activity. Id. A government does not acquiesce to 

torture when it “actively, albeit not entirely successfully, combats

the alleged torture.” Lingeswaran, 969 F.3d at 1294 (internal quotation marks omitted) (quoting Reyes-Sanchez v. U.S. Att’y Gen., 369 

F.3d 1239, 1243 (11th Cir. 2004)). 

Before the IJ, Petitioners only presented evidence of criminal 

gang activity by private actors they directly experienced or witnessed. Although their evidence showed that crime rates were 

high in Guatemala, the record does not demonstrate that the Guatemalan government inflicted, instigated, or acquiesced to any activities that constitute torture under CAT. Although perhaps woefully inadequate and thus far unsuccessful, Petitioners’ evidence 

nevertheless did show some modest efforts on the part of the Guatemalan government to curb the violence. Additionally, Petitioners never reported the incidents of violence they personally experienced to Guatemalan officials. Based on this evidence, the IJ denied 

Petitioners’ application for CAT relief, and the BIA affirmed the denial. 

Here, the record, taken as a whole, does not support a finding that Petitioners would more likely than not be tortured with 

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the acquiescence of the Guatemalan government upon their return. 8 C.F.R. § 1208.16(c)(2), (3); Perez-Zenteno, 913 F.3d at 1306; 

Lingeswaran, 969 F.3d at 1293-94. While Petitioners may understandably be afraid of continued violence in Guatemala, their reasonable fears unfortunately do not satisfy the heightened standard 

to be eligible for CAT relief.

PETITION DENIED. 

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