No. 18

- 67

- ag

Quintanilla v. Garland



## In **the**



# United **States Court**  **of Appeals** 

**for the**  **Second Circuit** 

A UGUST T ERM 2020

No

. 1 8

- 67

R ICARDO Q UINTANILLA

- M EJIA

,

AKA R ICARDO E LIUD Q UINTANILLA

- M EJIA

,

Petitioner

,

v.

M ERRICK B. G ARLAND

, U nited States Attorney General

, Respondent

.

On Appeal from the Board of Immigration Appeals

A RGUED : M ARCH 1

, 20 21

D ECIDED : J ULY 9, 2021

_____

Before: C ABRANES

, R AGGI

, and S ULLIVAN

, Circuit Judges

.

_____

Ricardo Quintanilla

- Mejia petitions for review of a Board of

Immigration Appeals (“BIA”) decision denying his application for

statutory withholding of removal and protection under the

Convention Against Torture (“CAT”)

. P etitioner faults the agency for

denying relief without the Immigration Judge (“ IJ ”), (1) on all claims,2 rul ing expressly as to his credibility ; ( 2 ) on his withholding claim,

considering the likelihood of his facing life

- threatening injury i n El

Salvador as a member of a cognizable “ social group ,” specifically,

(a) “former gang members who actively distance themselves from the

gangs and work to oppose them ,” or (b) “individuals working in El

Salvador to rehabilitate youth in order to prevent their joining gangs,”

Pet’ r Br. at 10

– 11; and

, (3) on his CAT claim, recognizing that, if

returned to El Salvador, petitioner face s likely torture by the police or

by gang s acting with the acquiescence of the police

. The arguments

do not persuade because

, first

, any failure by the IJ to make an explicit

credibility finding requires no remand because the BIA explicitly

assumed petitioner’s credibility in upholding the IJ’s decision,

consistent with 8 U.S.C. §§ 1158(b)(1)(B)(iii) & 1231(b)(3)(C)

. Second

,

the IJ

, sua sponte

, effec tively considered the social groups identified by

petitioner in this court

, and the record eviden ce considered in light of

controlling precedent does not support, much less compel

, the

conclusion that the se social group s b ear the particularity or s ocial

di stinction required for withholding of removal

. Third

, the record

evidence also does not compel the conclusion that petitioner face s

likely torture either directly by or indirectly with the acquiescence of

Salvadoran police

, as required for CAT relief

.

P ET ITION D ENIED

.

______________

R OBERT G RAZIANO

, Buffalo

, New York

, for

Petitioner

.

E VAN P. S CHULTZ ( Joseph H. Hunt

, Stephen J.

Flynn

, on the brief )

, United States Department of

Justice, Office of Immigration Litigation,

Washington, District of Columbia

, for Respondent

.3 R EENA R AGGI

, Circuit Judge :

Ricardo Quintanilla

- Mejia (“Quintanilla”) is a citizen of El

Salvador who has unlawfully entered

, or attempted to enter, the

United States four times in twenty years

, the last three entries after

removal by federal authorities

. He now seeks to avoid another

removal by petitioning this court for review of a 2017 decision of the

Board of Immigration Appeals (“BIA” or “Board” ) upholding an

Immigration Judge ’s (“IJ”) order authorizing reinstatement of a prior

order of removal. See In re Ricardo Quintanilla

- Mejia

, No. A077 174 686

(BIA Dec. 26, 2017), aff’g No. A077 174 686 (Immig r

. Ct. Bata via

Jul y 27, 2017). Quintanilla maintains that he is entitled to relief from

removal pursuant to 8 U.S.C. § 1231(b)(3)(A)

, which mandates

withholding of removal “if the Attorney General decides that the

alien’s life or freedom would be threatened” in the country of removal

“because of the alien’s race, religion, nationality, membership in a

particular social group, or political opinion.” He further claims relief

under the Convention Against Torture (“CAT”) b ecause of the

likelihood that

, if returned to El Salvador, he will be tortured by police

officials or by members of his former gang with police acquiescence. 1

Quintanilla argues that the agency erred in denying him relief (1) on

all claims

, because the IJ did not expressly rule as to Quintanilla’s

cre dibility; (2) on his withholding claim

, because the IJ did not

1 See United Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment

, Art. 3, Dec. 10, 1984, 1465

U.N.T.S. 85

, 114 (“ N o State Party shall expel, return ( ‘ refouler ’ ) or extradite a

person to another State where there are s ubstantial grounds for believing that he

would be in danger of being subjected to torture. ”); s ee also 8 C.F.R. § 1208.16(c)

(listing standards of eligibility for withholding of removal under CAT)

.4 consider the likelihood of Quintanilla facing persecution in El

Salvador as a member of a cognizable “ social group ,” specifically,

(a) “former gang members who actively distance themselves from the

gangs and work to oppose them,” or (b) “individuals working in El

Salvador to rehabilitate youth in order to prevent their joining gangs ,”

Pet’r Br. at 10 2 ; and ( 3 ) on his CAT claim

, because the IJ failed to

recog niz e that Quintanilla face s likely torture by Salvadoran police or

by gangs acting with the acquiescence of the police

.

None of the arguments persuade s

. First

, as to credibility, any

failure by the IJ to make an explicit credibility determination does not

require remand because the BIA explicitly assumed petitioner’s

credibility in upholding the IJ’s decision, consistent with 8 U.S.C.

§§ 1158(b)(1)(B)(iii) & 1231(b)(3)(C)

. Second

, as to withholding, the IJ

,

sua sponte

, effectively considered the social groups now identified by

petitioner on appeal. Further

, the record evidence considered in light

of controlling precedent does not support, much less compel

, the

conclusion that the se social group s bear the particularity or

recognized social distinction required for withholding of removal

.

Third

, the record evidence also does not compel the conclusion that

2 “The term ‘persecution,’ used in authorizing claims for asylum, 8 U.S.C.

§ 1101(a)(42)(A), see id. § 1158(b)(1)(A)

– (B)(i), is frequently also used to reference

the ‘threat’ to ‘life or freedom’ required to secure withholding of removal, id.

§ 1231(b)(3).” Scarlett v. Barr

, 957 F.3d 316, 321 n.1 (2d Cir. 20 2 0) (collecting cases).

Thus, we use the word “persecution” throughout this opinion in discussing

Quintanilla’s challenge to the denial of his withholding claim, even though

Quintanilla was not eligible for asylum because he reentered the United States

illegally after having been removed. See 8 U.S.C. § 1231(a)(5); Herrera

- Molina v.

Holder

, 597 F.3d 128, 139 (2d Cir. 2010) (observing that alien previously removed

from United States is ineligible for asy lum but may seek withholding).5 petitioner faces likely torture either directly by or indirectly with the

acquiescence of Salvadoran police

, as required for CAT r elief

.

Accordingly, we deny the petition for review.

B ACKGROUND

I. Quintanilla’s Illegal Entries into the United States

First Entry (1991) and Removal (2000)

Quintanilla first left El Salvador and unlawfully entered the

United States i n 199 1 when he was 13 ye ars old

. That entry was

effected by a smuggler h ired by Quintanilla’s older sister

, who was

already in this country.

B y 1994, Qu i ntanilla was addicted to heroin and a memb er of

the notorious Mara Salvatrucha gang (“MS

- 13”) in California.

Qu i ntanilla sold cocaine for the gang in return for heroin. In 199 9

, he

was convicted in California of unlawful heroin possession

. In

February 2000, federal authorities removed Qu i ntanilla from this

country

, with strict limits on his abi lity to return as a result of his

felony drug conviction. See 8 U.S.C. § 1182(a)(9) ( prohibiting

removed aliens from entering United States for ten years absent prior

consent of Attorney General)

.

Second Entry (2001) and Removal (2001)

Within two months o f Quintanilla’s removal, his sister again

p aid a smuggler to arrange for her brother to enter the United States

.

The smuggler, however, abandoned Quintanilla in Mexico, where he

remained until 2001 when he attempted to enter the United States as

a M exican citizen named “Antonio Silva.” App’x at 168. When a6 border fingerprint check revealed Quintanilla’s prior Calif ornia

conviction

, federal officials returned him to Mexico.

Third Entry (2001) and Removal (2010)

Within days of his second removal, Quintanilla hired another

smuggler who helped him successfully enter the United States

without inspection later in 2001

. A fter spending a few weeks with

family in California

— where he was nominally still on probation for

his 1998 drug conviction

— Quintanilla re locat ed to Michigan, a move

he attributes to his desire to sever all connections to gangs.

S ometime in 2006

– 07, Quintan illa left Michigan and moved to

Minnesota where family members operated a restaurant. There, he

was twice convicted, first in 2008 on a state charge of drunk driving,

and again that same year on a federal charge of unlawful entry into

the United States

. T he Department of Homeland Security (“DHS”)

reinstate d Quintanilla’s previous order of removal and, i n 2010,

remove d him to El Salvador

. See 8 U.S.C. § 1231(a)(5).

Fourth Entry (2016)

Quintanilla was attempting to enter the United States

unlawfully for a fourth time on October 3, 2016, when federal

immigration officials intercepted him near Hidalgo, Texas. On

October 6, 2016

, DHS filed a notice of intent to reinstate his prior

removal order, but b ecause Quintanilla professed a fear for his life if7 returned to El Salvador, he was referred for interview to a n asylum

officer

. 3

II. Agency Proceedings Seeking Relief from Removal

The “ Reasonable Fear ” Interview s

Quintanilla participate d pro se in two lengthy telephone

interviews by an asylum officer on November 28, 2016, and on

December 12, 2016

. 4 The record of the interviews indicate s that

Quintanilla

— through an interpreter

— s tated t hat he feared returning

to El Salva d or because MS

- 13 members in that country viewed him as

a “traitor” for leaving the gang, attempting to remove his gang

tattoos, and participating in a church program that encouraged

Salvadoran youths not to join or to leave gangs. App’x at 397. 5

3 See 8 C.F.R. § 208.31 (b)

– (c) (stating that if alien subject to reinstatement of

removal order expresses fear of returning to his country, he shall be referred to

asylum officer for interview to determine if alien has “reaso nable fear of

persecution or torture ” ); see also id. § 241.8(e) (excepting aliens expressing

reasonable fear of removal from general requirement that aliens with reinstated

removal orders are not entitled to hearing before IJ prior to removal).

4 Prior to these interviews, Quintanilla appears to have consulted with

Robert Graziano, the same attorney who later represented him before the BIA and

who currently represents him before this court.

5 Quintanilla was removing his tattoos with the assistance of Programa

Integral de Remoción de Tatuajes del Instituto Nacional de la Juventud

(“Programa Integral”), which he described as a government

- sponsored program

financed by a European non

- profit organization. He identified the church group

in which he part icipated as Iglesias Evangelicas Unidas Para La Paz (“Iglesias

Evangelicas”), where one of his brothers served as president and pastor.8 Quintani lla stated that after gang members learned, sometime

in 20 10

– 11

, of his efforts to remove his tattoos

, they repeatedly

threatened hi s life

. T o avoid being killed, he left the removal program

and acquiesc ed in gang demands t hat he make extortionate “ rent”

payment s and store guns for the gang

. Id

. Quintanilla n ever

complained to the police about these gang actions

, explaining that he

believed the Salvadoran police to be corrupt and, in some cases,

complicit with gang s

.

Quintanilla claimed that, some years later, in or about October

2015

, gang members falsely accused him of stealing an AK

- 47 firearm

and attempted to beat him to death. Quintanilla survived the beati ng,

but was hospitalized with serious injuries. W hen questioned by

police, Quintanilla falsely reported being the victim of a robbery

because he thought police would inform gang members if he filed a

truthful complaint against them. He stated that “ neigh bors ” who had

reported gang extortion demands to the police “were killed because

the police informed the gangs.” Id. at 401.

A few days after Quintanilla’s hospital discharge, gang leader

Sergio Hernandez sought out Quintanilla at his home a nd attempted

t o shoot him. When, instead, Hernandez’s gun jammed, Quintanilla

picked up a knife and s tabbed the gang leader in the neck

, but did not

kill him

. The next day, Quintanilla fled to Mexico explaining, “ I

stabbed a powerful person in El Salvador. This perso n has power all

over El Salvador to tell people what to do to me because of what I did

to him.” Id. at 402. During the second of his reasonable fear

interviews, Quintanilla identified the stabbing incident as the “main

reason” he feared for his life if returned to El Salvador. Id. at 411.9 After fleeing El Salvador, Quintanilla stayed in Mexico for

approximately a y ear

, during which time he learned from a brother

in El Salvador that Hernandez had issued an “international order” for

Quintanilla’s death. Id. at 398. Asked why he did not seek asylum in

Mexico, Qui ntanilla explained that he ha d entered that country

illegally and, except for a cousin

, had no family th ere.

Quintanilla gave conflicting accounts of his interactions with

Salvadoran police

. For instance, in his first reasonable fear interview,

Quintanilla stated that police beat him “6 or 7 times leaving church.”

Id. at 403. Nevertheless

, he said,

I’m n ot really afraid of the police because I don’t have a

record there [presumably, El Salvador] so I don’t owe

them anything. I know that they beat me up before, but

I’m not really afraid of that in the future. It’s just a

precaution because there is a war going on between the

gangs and the police.

Id.

I n his second interview, Quintanilla said police beat him “two

or three times.” Id. at 409. Reminded by the asylum officer of his

earlier statement that police had beat him six or seven times,

Quintanilla re iterated that “[t]hey beat me like three times but they

were always threatening me.” Id. Asked to clarify whether “[t]he

police were always threatening you,” Quintanilla reversed course:

“The police did not but they were always following me around

becau se I was tattooed.” Id. Asked if the police had, in fact, beat him

up outside church, Quintanilla stated:10 I never said the police beat me. I said the gang beat me.

They [presumably, the police] were following me around

because I had the tattoos but they were never able to get

anything against me. If there was ever an occasion that

they wanted to beat me. B ut they never did anything

violent except hit me but the neighbors defended me.

Id. Asked whether “the police beat you or not,” Quintanilla stated,

“They hit me a few times but not outside of church. It was after I was

making a purchase at the store and I was heading home.

. . . Because

I have the tattoos that associate me with being a gang member.” Id.

In the same interview, Quintanilla insisted that he “didn’t say”

in his first reasonable fear interview that police had beat him six or

seven times after leaving church, and that it was “very strange” for

that to be reflected in the asylum officer’s notes because “that didn’t

happen. I said they attempted to beat me many times but my

neighbors supported me and they stopped them.” Id

.

Notwithstanding Quin tanilla’s contradictory testimony

regarding his interactions with the police in El Salvador

, the asylum

officer found Quintanilla to have stated a credible claim for CAT relief

but not for statutory withholding of removal. 6 O n December 20

, 2016,

6 The difference might be explained by the fact that CAT relief does not

require proof of a nexus element, whereas withh olding relief does. See Hong Fei

Gao v. Sessions

, 891 F.3d 67, 76 (2d Cir. 2018) (“Unlike asylum and withholding of

removal, CAT relief does not require a nexus to a protected ground.” (internal

quotation marks omitted))

.11 t he asyl um officer referred Quintanilla to an IJ for an evidentiary

hearing on whether to grant relief from removal.

The IJ Hearing

1. I

- 589 Form

Before the IJ hearing, on March 16, 2017

, Quintanilla submitted

an I

- 589 Application for Asylum and f or Withholding of Removal

. In

response to a form inquiry asking whether relief was sought based on

race, religion, nationality, political opinion, membership in a

particular social group, or the CAT, Quintanilla checked only the

boxes for religion and the CA T. On the form, Qui ntanilla stated that

he had suffered past “physical assaults and verbal abuse, ” and also

had “been threatened with death by members of gangs for deciding

to no longer be a gang member, and by government authorities for

being an ex

- gang member.” Id. at 278. He stated that he feared future

torture for “four reasons” : (1) “I have renounced the life as a gang

member without aut [ h ] orization ([which] is not way to get out ) ”; ( 2 )

“I participated in an integral government program where my gan g

related t [ attoos ] were removed”; (3) “I participated in a religious

organization that taught against violence and promoted peace; this

organization angered both the government and the several gang[s] of

[ E ] l Salvador”; and (4) “ I have injured a leader of a gang who

attempted to kill me before I left the country and returned to the U.S.”

Id. at 279, 285

.12 2. Hearing Testimony

A ppearing pro se before the IJ on Ju ne 1

, 2017, 7 Quintanilla

provided testimony that was generally

, but no t entirely

, consistent

with the statements he had made at his reasonable fear interviews

. As

pertinent here, Qu intanilla testified that it was soon after his 2010

removal to El Salvador that he began participating in Programa

Integral’s tattoo

- removal program. He s ubmitted a letter from a

program official attesting to his participation from December 2009

through April 2010. Quintanilla stated that, a s part of this program,

he gave a video

- recorded interview to representatives of the

European sponsoring non

- profit o rganization. He testified that,

although he was promised confidentiality, the Salvadoran

government posted his interview online, which resulted in MS

- 13

learning of his efforts at rehabilitation and threatening his life

. 8

Quintanilla recounted that in 2013, the gang “gave an order that all

the former gang members that have been involved in Christian things

or rehabilitation programs

. . . had to be killed.” Id. at 176. Quintanilla

stated that, by then, he was working with the Christian church group

,

7 It appears that Quintanilla was no longer consulting with counsel at this

time because he and his family could not afford attorney’s fees. The IJ had granted

Quintanilla two continuances to secure counsel and provided him with a list of pro

bono counsel

.

8 At his reasonable fear interv iews, Quintanilla stated that the European

non

- profit organization supporting Programa Integral posted his interview online

because “they needed proof they were helping out.” App’x at 410 (“I don’t know

exactly the website but it was going through YouTube .”). Quintanilla told the IJ

he did not have any printouts or still photos from the internet showing his tattoo

removal interview but that he could obtain them by calling Programa Integral. See

id. at 192 (stating that program was “confidential” but that he could obtain by

calling because “they will listen to my voice and know that it’s me”).13 Iglesias Evangelicas

, “to rescue [youths] from the gangs so they can

be contributing members in the society in El Salvador.” Id. at 178. 9

Quintanilla stated that

, nevertheless, for some years MS

- 13

subjected him only to verbal abuse because he p aid extortion to and

stored guns for them

. 10 Things changed i n October 2015 when gang

members accused Quintanilla of stealing an A K

- 47 firearm

.

Quintanilla testified that the accusation was false and only an

“excuse” to beat him to death. Id. at 192. 11 Quintanilla sustained

severe injuries from the beating and was hospitalized

. Soon after

Quintanilla’s discharge, the gang leader

— an gry that Quintanilla had

survived

— went to his home and tried to shoot him. W hen the

9 Quintanilla submitted an undated letter from Luz de Maria de Zetino,

identified as the pastor in charge of Iglesias Evangelicas ’s human rights

department, which described Quintanilla as a former employee who had

commendably worked in the church’s violence prevention, rehabilitation, and

reintegration program for at

- risk youth.

10 Quintanilla told the IJ that, until 2013, the gang threatened him and

“torture[d him] verbally, psychologically, morally.” App’x at 176. Although he

claimed “physical torture” too, when asked to explain, he said gang members had

called him “a traitor” a nd other “bad words.” Id. Later in his testimony,

Quintanilla would state that “[t]he gang was always hitting me and torturing me

verbally for almost five years.” Id. at 192.

11 Asked why a gang as vicious as MS

- 13 would need an excuse to kill him,

Quint anilla stated,

They knew that I was a religious person and that I was working

with youth. But they had to have a good argument to violate the

laws of religion and to be able to kill me. And that’s why they

accused me that I had stolen an AK

- 47. With th at accusation,

. . . they can take me out and kill me.

Id.14 leader’s firearm jammed

, Quinta nilla “grab[bed] a knife” and stabbed

the leader in the neck, inflicting a non

- fatal injury

. Id. at 177. The next

day, Quintanilla fled to Mexico.

Quintanilla testified that, if removed to El Salvador, he feared

that his life would be in danger not only from MS

- 13 but also from

police. Confronted with his reasonable fear interview statement that

he did not fear the police, Quintanilla explained that he had had no

fear of police “at that moment,” but professed to have a fear “ in the

future

. ” Id

. at 193

– 94

.

Quintanilla explained that, on three occasions approximately a

year and a half after his 2010 removal to El Salvador, police had tried

to hurt him and to bring him “to a place so I can be killed

, ” although

they did not in fact do so. Id. at 182. On t he first occasion

, police

officers professing their own support for rival gang MS

- 18 tried to

remove Quintanilla from his home, assuming from his tattoos that he

was sti ll affiliated with MS

- 13

. They abandoned that attempt after

Quintanilla’s neighbor s intervened. 12 Soon after, police tried to beat

Quintanilla as he was leaving church, stating that they did not believe

that he was now a Christian and no longer a gang member. Finally,

“probably in 2012

, ” police took Quintanilla to “the crime departmen t

of El Salvador” where they hurt, but did not kill

, him

, a restraint that

Quintanilla attributed to the fact that his neighbors had taken down

“ the plate number and the serial number” of the police vehicle in

12 Quintanilla offered no corroborating evidence from any neighbor,

attributing the omission to neighbors’ fear.15 which he was taken away and, thus, “were a wit ness if anything

happened to me.” Id

. at 184.

Quintanilla acknowledged that he had no further problems

with the police in the years between 2012 and his 2015 departure from

El Salvador, but he claimed to have heard from his brother that police

were currently arresting former gang members who arrived at the

airport and turning them over to the gangs “ [ s ] o that the gangs can

kill them.” Id

. 13

3. T he IJ Decision Denying Relief

In a detailed decision dated July 27, 2017, the IJ denied

Quintanilla relief from removal. In so ruling, the IJ observed that he

had considered not only Quintanilla’s testimony, but also his

reasonable fear interview statemen ts, his I

- 589 filing, and all

documents received in evidence, including the State Department’s

2015 and 2016 Human Rights Country Reports for El Salvador and its

2015 Inter national Religious Freedom Report

.

Withholding of Removal

As to withholding, the I J found that Quintanilla failed to carry

his evidentiary burden as to the requi red nexus between his professed

13 On this point, Quintanilla offered no corroborating statement from his

brother, nor did he offer other corroborating evidence from any other family

member remaining in El Salvador

— three brothers, three sisters, and his parents

—

all of whom he claimed had also been threatened by gang members and, as a

result, forced to move from their vill age to another area. The reported police

misconduct respecting returning gang members also lacked support in either the

State Department’s 2015 or 2016 Human Rights Country Report s for El Salvador,

both of which were received in evidence by the IJ.16 fear of future harm and a protected ground

. 14 On his I

- 589 form,

Quintanilla had indicated that he feared future persecution based on

religion

. Nevertheless

, the IJ sua sponte considered whether such a

fear might also be based on Quintanilla’s membership in a cognizable

social group. In concluding that it did not, the IJ found that

Quintanilla’s testimony indicated that gang members ta rgeted him to

“enforce their code of conduct and punish [his] infidelity” to the gang.

Id. at 57. But this was insufficient to satisfy withholding’s nexus

element in light of a gency precedent instruct ing that persons who

renounce

, reject, or resist gang membership d o not constitute a

cognizable “social group

. ” Id. at 56

– 57 (citing Matter of W

- G

- R

- ,

26 I

. & N

. Dec. 208 (B

. I

. A

. 2014) ; Matter of E

- A

- G

- , 24 I

. & N

. Dec. 591

(B

. I

. A

. 2008) )

.

As to a religion nexus

, the IJ found no record evidence “that the

gang had singled [Quintanilla] out on account of his religious

practices.” Id. at 57. Rather, what the gang appeared to object to was

“respondent’s activities of trying to rehabilitate youth” so that they

would leave or not join gangs. Id

. While Quintanilla participated in

such activities through a religious organization, the IJ again pointed

to controlling agency precedent in struct ing that persons engaged in

14 Having found Quintanilla not to have carried his nexus burden for

withholding, the IJ did not address whether he satisfactorily established that the

feared conduct qualified as “persecution” because it was attributable to public

officials, whether directl y or indirectly because of their inability or unwillingness

to control gangs. See Scarlett v. Barr

, 957 F.3d at 328 (“To qualify as ‘persecution’

the conduct at issue must be attributable to the government, whether directly

because engaged in by governmen t officials, or indirectly because engaged in by

private persons whom the government is unable or unwilling to control

. ” (internal

quotation marks omitted)).17 resistance to gangs

, whether for “ personal, moral, or rel igious ”

reasons, did not constitute a cognizable social group. Id. (citing Matter

of S

- E

- G

, 24 I

. & N

. Dec. 579 (B

. I

. A

. 2008) )

.

CAT Relief

As for the CAT

, which require s proof of likely torture by or

with the acquiescence of government officials without regard to

nexus, the IJ concluded that Quintanilla was not entitled to relief

because he had indicated “with specificity that he had not been

harmed or beaten by the polic e” while in El Salvador. Id. at 57

– 58.

Further, despite Quintanilla’s claim of police corruption, he had

adduced no evidence that the MS

- 13 members who had harmed

Quintanilla were acting in any official capacity or with official

acquiescence. Finally, c iting documentary evidence that the

government of El Salvador was trying to control gang activity, the IJ

found an insufficient evidentiary basis to conclude that police would

turn “a willful blind eye” to gang attacks on Quintanilla if he were

returned to El Salvador. Id. at 58.

Accordingly, the IJ ordered Quintanilla returned to custody for

the government to reinstate its prior order of removal.

4. BIA Upholds Denial of Relief

Quintanilla filed a timely pro se notice of appeal with the BIA.

By the time his brief was due, Quintanilla had secured counsel who

argued on his behalf that the IJ had erred by failing (1) to make an

express determination as to Quintanilla’s credibility, (2) to consider

whether Quintanil la’s activities “trying to rehabilitate youth”18 identified a cognizable social group

, id. at 15 15 ; (3 ) to consider whether

the Salvadoran government’s disclosure on social media of

Quintanilla ’s participation in a gang

- tattoo

- removal program

amounted to acq uiesce nce in gang torture; and (4) to consider State

Department findings of corruption in and ineffectiveness by

Salvadoran law enforcement.

In its December 26, 2017 decision rejecting these arguments, the

BIA expressly assumed Quintanilla’s credibility in upholding the IJ’s

determination that Quintanilla failed to carry his evidentiary burden

for relief from removal. As to withholding, the BIA s ummariz ed

Quintanilla’s own testimony

— t hat gang members initially threatened

him when they discovered h e was try ing to remove his gang tattoos;

that Quintanilla then complied with gang demands that he pay

extortion and store gang guns; and that a stolen

- gun accusation in

2015 prompted two failed gang attempts to kill him, during the

second of which Quintanilla stab bed his assailant and then fled the

country

— and concluded that it did not support a claim of persecution

based on religion.

In reaching the same conclusion with respect to a social

- group

nexus, the BIA considered Quintanilla’s membership in three possible

groups : (1) f ormer gang members, (2) former gang members from the

United States who resist an d actively act against the gangs

, and (3)

15 Before the BIA, counsel argued that Quintanilla had demonstrated a fear

of persecution based on membership in three social groups consisting of

(1 ) “former gang members from the United States who resist and actively act

against the gangs,” (2) “individuals working in El Salvador to rehabilitate youth

in order to prevent their joining gangs,” and (3) “individuals who have publicly

repudiated their former gang membership.” App’x at 12, 15

– 16

.19 former tattooed gang members

. The BIA concluded that the hearing

record fai led to show that any of these groups exhibited the

immutable characteristics

, particularity

, and social distinction

required by agency precedent to be recognized as a protected social

group under the withholding statute

. See i d. (collecting cases).

As for CAT relief, the BIA noted both Quintanilla’s admitted

failure to report gang abuse to the police and his “confusing

testimony” about past mistreatment by the police in identifying “no

clear error” in the IJ’s determination that Quintanilla failed to

demon strate likely future torture by or with the consent or

acquiescence of Salvadoran authorities. Id. (citing Matter of Z

- Z

- O

- ,

26 I

. & N. Dec. 586 (B

. I

. A

. 2015), to support conclusion that IJ’s

predictive finding as to future event is largely factual and su bject to

clear

- error review).

Accordingly, the BIA dismissed Quintanilla’s appeal.

III. Petition for Judicial Review

With the assistance of counsel, Quintanilla timely petitioned

this court for review, challenging the agency’s denial of both

withholding and CAT relief, and moving for in forma pauperis status

and a stay of removal pending resolution of his petition. This court

granted Quintanilla’s motions

, and we now address his petition.

D ISCUSSION

I. Standard of Review

In the circumstance s of this case, where Quintanilla was

previously ordered removed for a drug offense, this court lacks20 jurisdiction to review any final order of removal except for

constitutional or legal challenges

. See 8 U.S.C. § 1252(a)(2)(C)

(stripping courts of “juris diction to review any final order of removal

against an alien who is removable by reason of having committed a

criminal offense covered in” 8 U.S.C. § 1182(a)(2)) 16 ; id. § 1252(a)(2)(D)

(permitting “review of constitutional claims or questions of law”). I n

short, we cannot rev iew purely factual challenges to Quintanilla’s

order of removal. See id. § 1252(a)(2)(C) ; Nasrallah v. Barr

, 140 S. Ct.

1683, 1690 (2020). As the Supreme Court recently clarified, however,

that limitation does not apply to CAT orders, which are not

themselves final orders of removal and do not affect the final validity

of such orders. See Nasrallah

, 140 S. Ct. at 1691. Thus, we can review

factual challenges to the order denying Quintanilla CAT relief, but

subject to the “highly deferential” substantial evidence standard

. Id

.

at 1692. Under that standard, we must uphold agency factfinding

“unless any reasonable adjudicator would be compel led to conclude to

the contrary .” 8 U.S.C. 1252(b)(4)(B) (emphasis added); see Shunfu Li

v. Mukasey

, 529 F.3d 141, 146 (2d Cir. 2008) ( quoting statute )

.

In Nasrallah

, the Supreme Court expressly “le[ft] for another

day” the question of whether its reasoning as to CAT orders applies

equally to statutory withholding

- of

- removal orders. 140 S. Ct. at 1694.

While our court has yet to decide the question

, we need not do s o here

because, even if we assume arguendo that our authority to review

Quintanilla’s withholding challenge is the same as our authority to

16 Section 1182(a)(2) states, in pertinent part, that an “alien convicted of

. . .

a violation of

. . . any law

. . . of a State

. . . relating to a controlled sub stance” is

inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(II). Quintanilla ’s 1999 removal order was

pursuant to § 1182(a)(2), as a result of his California heroin conviction

.21 review his CAT challenge, we would not grant his petition. See

Ivanishvili v. U.S. Dep’t of Just.

, 433 F.3d 332, 33 8 n.2 (2d Cir. 2006)

(declining to address statutory question of jurisdiction where

substance of claim is plainly without merit).

In sum, in explaining why we now dismiss Quintanilla’s

petition, w e apply the substantial evidence standard to questions of

fa ct raised in his withholding and CAT challenges, and de novo review

to all questions of law

, including the application of law to facts. See

Pierre v. Gonzales

, 502 F.3d 109, 113 (2d Cir. 2007)

. Finally

, because the

BIA expressly adopted the IJ’s reasoning

, we review the IJ’s decision

as modified by the BIA ’s decision

. See Yan Chen v. Gonzales

, 417 F.3d

268, 271

– 72 (2d Cir. 2005).

II. Credibility Determination

Quintanilla submits that the IJ e rred in denying him relief from

removal without expressly ruling on his credibility. The government

concedes that the IJ did not make an explicit credibility finding, but

argues that this error does not require remand because the BIA

presumed Quintanilla’s credibility on appeal yet still denied relief.

See Res p’t Br. at 21

– 22; 8 U.S.C. § 1158(b)(1)(B)(iii); see also id.

§ 1231(b)(3)(C). We agree

. 17

17 In his reply brief to this court, Quintanilla professes a willingness to

abandon h is lack

- of

- an

- explicit

- credibility finding challenge provided that this

court reviews the agency’s denial of relief “with an eye that [Quintanilla]’s

testimony was credible.” Pet’r Reply Br. at 4; see Oral Arg. at 0:34 (confirming22 The Law Pertaining to Credibility Findings

The IJ’s obligation to assess credibility derives from statute. In

determining an alien’s claim for relief from removal

, 8 U.S.C.

§ 1231(b)(3)(C) states that “the trier of fact shall determine whether

the alien has sustained the alien’s burden of proof, and shall make

credibility determinations, in the manner described in clauses (ii) and

(iii) of section 1158(b)(1)(B) of this title.” The referenced sub sectio ns

state that (1 ) the testimony of an alien seeking relief from removal

“may be sufficient to sustain [his] burden without corroboration”

provided it is “credible, is persuasive, and refers to specific facts

sufficient to demonstrate” eligibility for relie f, id. § 1158(b)(1)(B)(ii),

and (2) a trier of fact must assess credibility “[c]onsidering the totality

of the circumstances,” id. § 1158(b)(1)(B)(iii). See also 8 C.F.R.

§ 1208.16(b) (stating that applicant’s testimony, “if credible, may be

sufficient to sustain the burden of proof without corroboration”); id.

§ 1208.16(c)(2) (same re garding CAT claims).

We have construed these statutory provisions to “require[] a

twofold determination. First, the agency must determine whether the

applicant’s testimony i s credible

. . . . Second, the agency must

determine whether the applicant has met his or her burden of proof.”

Diallo v. I.N.S.

, 232 F.3d 279, 290 (2d Cir. 2000)

. Such a sequential

approach serves to ensure both “that an alien receives the potential

be nefit of succeeding on credible testimony alone,” and “that

same). While we are not ourselves obliged to make that assumption, see Garland

v. Ming Dai

, 141 S. Ct. 1669, 1678 (2021) (holding that statutory presumption of

credibility applies only to administrative appeal and not to judicial review), to the

extent the BIA did so, we follow suit in explaining herein why we nevertheless

identify no error in the agency’s denial of relief from removal. See infra Part III.C.23 appellate review of such a determination is preserved.” Zaman v.

Mukasey

, 514 F.3d 233, 237 (2d Cir. 2008 ) (internal quotation marks

omitted)

.

To “encourage[] the IJ to make specific findings abo ut

credibility,” the law “provides that absent an ‘explicit’ ‘adverse

credibility determination,’ ‘ the applicant or witness shall have a

rebuttable presumption of credibility on appeal. ’ ” Garland v. Ming

Dai

, 141 S. Ct. 1669, 1677

– 78 (2021) (internal alterations omitted)

(quoting 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C)).

In Ming Dai

, the Supreme Court “le[ft] for another day” the question

of exactly what an IJ “ must say or do to furnish” an explicit adverse

credibility determination, holding only that, on appeal, the BIA need

not “follow a particular formula or incant magic words like

‘incredible’ or ‘rebutted’” in rejecting the presumption. Id. at 1679

.

This court, however, has held that “the IJ need not engage in rob otic

incantations to make clear that he has considered and rejected a

petitioner’s proffered explanation.” Xiao Ji Chen v. U.S. Dep't of Just.

,

434 F.3d 144, 160 n.13 (2d Cir. 2006) (internal quotation marks

omitted ); see Contreras

- Salinas v. Holder

, 585 F.3d 710, 715 (2d Cir. 2009)

(denying petition where “apparent from the IJ’s decision that he

found [petitioner’s] evidence to be not credible and outweighed by”

other evidence) ; cf. Diallo v. I.N.S.

, 232 F.3d at 287 (identifying error

where IJ who failed to make credibility determination denied relief

based solely on lack of corroboration b ecause law permits applicants

to rely exclusively on their credible testimony)

.24 The Agency’s Treatment of Credi bility

Applying these principles here, we conclude that Quintanilla

cannot complain of the IJ’s failure to make an explicit adverse

credibility ruling with respect to withholding of removal because the

record convincingly shows that the IJ assumed the credibility of

Quintanilla’s statements as to his 2010

– 16 experiences in El Salvador

with gangs, rehabilitative organizations, and a church group. Indeed,

the IJ reported Quintanilla’s version of events respectfully and in

some detail in stating that he had “careful ly considered the testimony

of the respondent and the documentary evidence of record,” but

“conclude[d] the respondent failed to carry his burden to

demonstrate eligibility” for relief from removal. Id. at 49. Such a

statement is reasonably construed “to mean that[,] even assuming the

applicant to be credible, which the IJ did, the applicant nevertheless

failed to meet his burden of proof.” Gashi v. Holder

, 702 F.3d 130, 135

n.3 (2d Cir. 2012) (adopting stated conclusion as reached by BIA); see

Garland v

. Ming Dai

, 141 S. Ct. at 1680 (explaining that evidence may

be credible without being sufficient).

The same conclusion obtains with respect to that part of

Quintanilla’s CAT claim based on gang violence acquiesced in by

corrupt police. T he record convi ncingly indicates that the IJ made no

adverse credibility ruling but

, rather

, implicitly a ssumed the

credibility of Quintanilla’s accounts

, s ee App’x at 58 (acknowledging

“high level of [ gang ] violence” and reports of “police or military

malfeasance” in El Salvador)

, in n evertheless finding such evidence

insufficient to carry Quintanilla’s burden

.25 To the extent that Quintanilla also sought CAT relief based on

direct police violence, the record does not clearly indicate whether the

IJ credited or discredited Quintanilla’s numerous inconsistent

statements about past police mistreatment

. Rather, the IJ noted the

inconsistencies in finding that Quintanilla failed to carry his burden

of p roof. The omission requires no remand, however, because the

BIA explicitly afforded all Quintanilla’s statements the statutory

presumption of credibility and, nevertheless

, reached the same

insufficiency conclusion. See Garland v. Ming Dai

, 141 S. Ct. a t 1680

.

Accordingly, we identify no error in the IJ’s failure to make an

explicit finding as to Quintanilla’s credibility because we conclude

from the record that the IJ assumed the credibility of much of

Quintanilla’s testimony

, and, in any event, the BIA explicitly afforded

the whole of his testimony the presumption of credibility provided by

8 U.S.C. §§ 1158(b)(1)(B)(iii) & 1231(b)(3)(C) in upholding the denial

of relief from removal

.

III. Withholding Relief Based on “ Social Group ”

Quintanilla also faults the IJ for failing adequately to consider

his eligibility for withholding of removal “ b ecause of

. . . membership

in a particular social group

. ” 8 U.S.C. § 1231(b)(3)(A)

. 18 Before this

18 In his principal brief before this court

, Quintanilla raise s no challenge to

the agency’s denial of withholding based on feared religious persecution. Indeed,

he concede s that omission in his reply brief. See Pet’r Reply Br. at 5 (stating that

“initial argument was that []his religious work fit more appropriately into a26 court, he challenges the agency’s findings only as to his membership

in “ the potential social group of former gang members who actively

distance themselves from the gangs and work to oppose them,” Pet’r

Br. at 10; see Pet’r Reply Br. at 7

, and the group of “individuals

working in El Salvador to rehabilitate youth in order to prevent their

joining gangs

, ” Pet’r Br. at 11. The argument fails because the record

shows that the IJ

, (1) did consider

– sua sponte

– the social groups now

identified by Quintanilla and (2) did not err in concluding that they

did not warran t w ithholding of removal under § 1231(b)(3)(A).

Waiver

Before explaining that conclusion, we address the

government’s argument that Quintanilla waived a withholding

argument based on any social group because, in agency

proceedings

— at least through the IJ hearing

— Quintanilla specifically

identified only “religion” as the protected ground for which he

sought relief. Resp’t Br. at 23. W e are not persuaded. W hile

Q uintanilla did not expressly employ the phrase “social group” in

pursuing withholding befor e the IJ, the IJ himsel f, mindful of

particular social group analysis than religious persecution” ). Insofar as

Quintanilla attempts for the first time in his reply brief to appea l the agency’s

rejection of his religious persecution claim, the argument is waived

. See Tardif v.

City of New York

, 991 F.3d 394, 404 n.7 (2d Cir. 2021) (“[I]ssues raised for the first

time in a reply brief are generally deemed waived.” (internal quotati on marks

omitted)). In any event, Quintanilla ’s reply brief fails to show how the record

evidence, even assuming its credibility, compelled the conclusion that Quintanilla

“ was targeted on account of his religion, any religious preaching, or any [religiou s]

efforts to get gang members to quit the gang or otherwise rehabilitate them. ”

App’x at 4 ( upholding IJ finding that evidence did not so reflect); see Cao He Lin v.

U.S. Dep ’ t of Just.

, 428 F.3d 391, 400 (2d Cir. 2005) (observing only “evidence that

wou ld compel a contrary conclusion indicates a lack of substantial evidence”)

.27 Quintanilla’s then

- pro se status, liberally construed the evidentiary

record to assert a fear of future persecution based on both religion and

social group. See Matter of M

- D

- C

- V

- , 28 I. & N. Dec. 18, 31 n.16 (B

. I

. A

.

2 020) (finding social group claims not waived where IJ construed such

groups for pro se respondent but, nevertheless, declining to reach

issue ). Moreover, when Quintanilla’s counsel specifically argued

persecution based on social groups on appeal, the BIA identified no

exhaustion concerns but, rather, addressed the argument on the

merits. In these circumstances, we identify no waiver, and proceed to

consider the petition

. See generally Adams v. Holder

, 692 F.3d 91, 96 n.2

(2d Cir. 2012) (rejecting exhaust ion challenge where BIA construed

alien’s pro se brief implicitly to raise argument).

The IJ Did Consider the Social Groups Now Raised by

Quintanilla

T he record shows that the IJ did consider, sua sponte

, the very

social groups that Quintanilla now raises on appeal: (1) former gang

members who actively distance themselves from the gang and work

to oppose them

, and (2) individuals in El Salvador who work to

rehabilitate youth to prevent their joining gangs. 19 This consideration

19 In light of this conclusion, we need not consider the extent to which

Paloka v. Holder

, 762 F.3d 191

, 198

– 99 (2d Cir. 2014)

, relied on by Quintanilla,

permits a petitioner to “ refine, ” or even to redefine, the social group that was the

basis for his withholding claim before the IJ or the BIA

. We note only that in Paloka

we ordered remand so that the agency could, in the first instance, reconsider

petitioner’s claim for relief from removal in light of more recent, controlling

agency precedent clarifying the criteria for recognizing a particular social group.28 is evident from the I J’s summary of the evidence on which Quintanilla

now relies to demonstrate his membership in these groups

.

Specifically, t he IJ detailed Quintanilla’s account of his own

renunciation of gang membership, his publicized participation in a

gang rehabilitatio n program, and his work with a church group

attempt ing to rehabilitate young men recruited by gangs

. Further, i n

concluding that these facts did not support withholding of removal,

the IJ relied on controlling agency precedent declining to identify as

“pa rticular social groups” persons who had renounced or resisted

gang membership

, specifically, (1) Matter of W

- G

- R

- , 26 I. & N. Dec. at

2 21, which held that former members of a Salvadoran gang

— there

,

Mara 18

— who renounced their gang membership did not constitute

a particular social group for purposes of withholding of removal; and

(2) Matter of S

- E

- G

- , 24 I

. & N. Dec. at 581, which declined to recognize

as a particular social group persons who “reject ed or res isted

membership in

. . . gang[s] based on their own personal, moral, and

See id. at 199

. It was in that context that we identified as a furth er reason for

remand the fact that petitioner had “refined her particular social group during her

appeal” to include “a specific age range

. . . find[ing] support in the evidence,” that

resulted in “a subclass that is ‘specific’ and subsidiary’ to the broa der class first

proposed.” Id

. (quoting Steevenez v. Gonzales

, 476 F.3d 114, 117 (2d Cir. 2007))

. The

same context informed the BIA ’s decision to remand to the IJ in Matter of M

- E

- V

- G

- ,

26 I. & N. Dec. 227

, 252 ( B.I.A. 2014) (ordering remand where, inter alia

,

“ [1] respondent’s proposed social group has evolved during the pendency of this

appeal, [2] our guidance on particular social group claims has been clarified since

this case was last before the [IJ] ,” and [3] DHS did not oppose), a decision which

we relied on in Paloka, 761 F.3d at 198

– 99

. While this case is distinguishable at least

to the extent the IJ had the benefit of the clarifying law referenced in Paloka and

Matter of M

- E

- V

- G

- , we need not pursue the question of social

- group refinemen t

further because we conclude that, here, the IJ adequately considered the social

groups now urged by Quintanilla in this court.29 religious opposition to the gang’s values and activities,” as well as

their family members

. To be sure, the IJ employed this language from

Matter of S

- E

- G

- to explain why the religi ous sponsorship of

Qu intanilla’s efforts to prevent young men from joining gangs did not

support his professed fear of persecution based on religio n

, and the

BIA affirmed for the same reason

. But, as Quintanilla himself

acknowledges, even before this court

, he has r elied on his youth work

sometimes to support feared persecution based on religion, and

sometimes to support feared persecution based on social group

.

T hus, t he IJ’s citation to Matt er of S

- E

- G

- is significant because the

point made in the above

- quoted language is that resistance to gangs

in El Salvador no more support s a withholding claim based on

religion than it d oes a claim based on membership in a social group.

In sum, when we co nsider the IJ’s recitation of the facts together

with the cases he relied on in denying Quintanilla withholding of

removal based on membership in a social group, we are satisfied that

the IJ considered the groups now identified by Quintanilla

.

The IJ Did N ot Err i n Denying Withholding Based on

Social G roup

While Quintanilla complains principally of the IJ’s failure to

consider the social groups he now identifies, he also conclusorily

asserts that these groups poss ess the particularity and social

distinction require ments for a protected social group. We identify no

error in the agency’s contrary conclusion

.

To secure withholding of removal based on a professed fear of

future persecution be cause of “membership in a particular social

group,” Q uintanilla had to demonstrate that (1) his proposed social30 group was cognizable under 8 U.S.C. § 1231(b)(3)(A), see generally

Paloka v. Holder

, 762 F.3d. 191, 195

– 98 ( 2d Cir. 2014) (discussing criteria

f or identifying “particular social group” ) ; and (2) his persecutors ’

motive in threatening his life or freedom was

, at least in part,

Quintanilla’s membership in that social g roup

, s ee Martinez De Artiga

v. Barr

, 961 F.3d 586, 593 (2d Cir. 2020) (discussing “nexus”

requirement); Uwais v. U.S. Att ’ y Gen.

, 478 F.3d 513, 517 (2d Cir. 2007)

( observing that in case of mixed motives, applicant need show that

harm was motivated only “in part [] by an actual or imputed protected

ground”)

. F ederal immigration law does not define “membership in

a particular social group ,” and this court has acknowledged that the

phrase is sufficiently ambiguous to warrant judicial deference to BIA

interpretation. See Paloka v. Holder

, 762 F.3d at 195 (according phra se

Chevron deference, see Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837, 842

– 43 (1984))

. 20

In a series of precedential opinions, the BIA has identified three

criteria

, each of which must be satisfied for recognition of a

“particular so cial group

. ” Id. at 196 (collecting cases). First, members

of a proposed group must “share a common

, immutable

20 The phrase appears to derive from the United Nations Protocol Relating

to the Status of Refugees, Jan

. 31, 1967, 19 U.S.T. 62 23

, which itself “largely

incorporated the definition of a refugee contained in

. . . the United Nations

Convention Relating to the Status of Refugees

, ” July 28, 1951, 189 U.N.T.S. 150

(“UN Convention”). Matter of Acosta

, 19 I. & N. Dec. 211, 219 & n.5 (B

. I

. A

. 1985).

As the BIA has recognized, neither the UN Convention’s diplomatic history nor

its drafting history shed s light on the “social group” phrase’s intended meaning,

as the drafting committee did not include it in its proposed definition of “refuge e.”

Id. at 232. Rather, the language appears to have been “added as an afterthought,”

with no subsequent clarification on adoption. Id.31 characteristic,” i.e.

, a characteristic that “ members of the group either

cannot change

, or should not be required to change because it is

fundamental to their individual identi t ies or consciences .” Matter of

Acosta

, 19 I

. & N. Dec. 211, 233 (B.I.A. 1985)

. 21 In addition, a second

criteria requires that the identified group be “defined with

par ticularity,” while a third demands that the group be “socially

distinct within the society in question.” Matter of M

- E

- V

- G

- , 26 I

. & N

.

Dec. 227, 237 (B.I.A. 2014) ; see Paloka v. Holder

, 762 F.3d at 196

. 22 A

social group is sufficiently particular if it “ha [ s ] definable

boundaries,” i.e., “characteristics that provide a clear benchmark for

determining who falls within the group.” Matter of M

- E

- V

- G

- , 26 I. &

N. Dec. at 239

. It is socially distinct if “the people of a given society

would perceive a proposed group as sufficiently separate or distinct.”

Id. at 241. While “ a persecutor’s perception can be indicative of

whether society views a group as distinct

, a persecutor’s perception

alone is not enough

, ” by itself, “ to establish a cogni zable social

group. ” Paloka v. Holder

, 762 F.3d at 196; see Matter of M

- E

- V

- G

- , 26 I.

& N. Dec. at 242 (stating that defining particular social group “from

21 Examples of immutable characteristics cited in Matter of Acosta include

“sex, color, or kinship ties, or in some ci rcumstances

. . . a shared past experience

such as former military leadership or land ownership.” Id. at 221 ; see Matter of

M

- E

- V

- G

- , 26 I. & N. Dec. at 243, 2 4 6 (identifying former employees of Colombia’s

Attorney General’s office and former policemen as sharing immutable

characteristic beyond their capacities to change) ; but see Matter of Acosta

, 19 I. & N.

Dec. at 234 (holding group of Salvadoran taxi drivers who refused to participate

in “guerrilla

- sponsored work stoppages” did not share im mutable characteristic

because “ members of the group could avoid the threats of the guerrillas either by

changing jobs or cooperating in the work stoppages” ).

22 Both the BIA in Matter of M

- E

- V

- G

- and this court in Palok a discuss a series

of controlling BIA precedents establishing these criteria.32 the perspective of the persecutor is in conflict with our prior holding

that a social group cannot be defined exclusively by the fact that its

members have been subjected to harm” (internal quotation marks

omitted)). Indeed, d efining a social group based only on the

perception of the persecutor blurs the distinction between the two

steps of inquiry, th e first asking whether a proposed social group is

cognizable, and the second asking whether there is a nexus between

that social group and threatened p ersecution. See Matter of M

- E

- V

- G

- ,

26 I. & N. Dec. at 242. Society’s perception ultimately determines the

former

, while the persecutor’s motivation determines the latter. See

Paloka

, 762 F.3d at 198.

T he BIA has frequently applied these principles to cases

involving Central American gangs

. In Matter of W

- G

- R

- , relied on by

the IJ here, the BIA concluded that f ormer Mara 18 gang members in

El Salvador who renounced their gang membership did not qualify as

a “ particular social group ” because such a group is “too broad and

subjective” to sat isfy the particularity criteri on

. 26 I. & N. Dec. at 221

.

The B oard explained that “when a former association ”

— such as

former membership in a gang

— “ is the immutable characteristic that

defines a proposed group, the group will often need to be further

def ined with respect to the duration or strength

. . . and the recency

of [members’] active participation if it is to qualify as a particular

social group

. ” Id. at 221

– 22. Further, in Matter of W

- G

- R

- , the BIA

observed that record evidence also failed to show that the proposed

social group satisfied the social

- distinction requirement. See id. at 222

(noting “scant evidence that Salvadoran society considers former

gang members who had renounced their g ang membership as a

distinct social group”). While acknowledging “a societal stigma33 against former gang members because of their tattoos,” the BIA

identified ambiguity as to whether the stigma arose because persons

were known to be “former gang members or because their tattoos

create[d] doubts or confusion about whether they are, in fact, former,

rather than active, gang members.” Id.

The reasoning in Matter of W

- G

- R

- applies equally to

Quintanilla’s case to the extent he claims membership in a social

gro up of former gang members who renounce their gang

membership. Insofar as he proposes to narrow this group to former

gang members who actively oppose gangs or to persons who

(regardless of former gang association) work to help youths resist

gang membership

, the BIA ’s reasoning in Matter of S

- E

- G

- , 24 I. & N.

Dec

. at 587

, also relied on by the IJ here, explains why this does not

assua ge particularity and social

- distinction concerns

. I n Matter of

S

- E

- G

- , the BIA acknowledged that “gangs such as the MS

- 13 retaliate

against those who refuse to join their ranks .” Id. Nevertheless, it

concluded that this was insufficient to i dentify such persons as a

particular social group b ecause the grim reality in El Salvador is that

“such gangs have directed harm against anyone and everyone

perceived to have interfered with, or who might present a threat to,

their criminal enterprises and territorial power.” Id. In short, persons

who resist gang recruitment efforts in El Salvador are “not in a

substantially diffe rent situation from anyone [else in that country]

who has crossed the gang, or who is perceived to be a threat to the

gang’s interests.” Id.

In Matter of M

- E

- V

- G

- , the BIA emphasized that Matter of

S

- E

- G

- “should not be read as a blanket rejection of all factual

scenarios involving gangs” because “[s]ocial group determinations34 are made on a case

- by

- case basis.” 26 I. & N. Dec. at 251 (citing Matter

of Acosta

, 19 I. & N. Dec. at 233)

. To illustrate, it noted that “a factual

scenario in which gangs are targeting homosexuals may support a

particular social group claim.” Id. Nevertheless, reiterating the

critical point from Matter of S

- E

- G

- , the BIA observed that the very

prevalence of gang violence throughout a country

— there

,

Honduras

— while tragic, may make it difficult to secure relief from

removal under provisions of law limited to protected classes. The

Board explained that while “ certain segments of a population may be

more susceptible to one type of [gang ] criminal activity than another,”

where “the residents all generally suffer from the gang’s criminal

efforts to sustain its enterprise,” the “significant societal problems”

that result may not support relief in the form of asylum or

withholding of removal

. Id. at 250

– 51. In such circumstances, it is up

to Congress “ to provide ” other forms of “ relief to those suffering from

difficult situations not covered by as y lum and withholding of

removal

. ” Id. (citing 8 U.S.C. § 1254a(a)(1) (providing temporary

prot ected status for certain persons ) ) 23 ; see also Melgar de Torres v. Reno

,

191 F.3d 307, 314 (2d Cir. 1999) (“[A] well

- founded fear of persecution

must be on account of an enumerated ground set forth in the [INA],

and general crime conditions are not a state d ground.”)

.

23 In the past, the United States has designated El Salvador for Temporary

Protected Status (“TPS”). See Designation of El Salvador Under Temporary Protected

Status Program

, 66 Fed. Reg. 14,214, 14,214 (May 9, 2001) (explaining TPS

designation based on series of earthquakes); Sanchez v. Mayorkas

, 141 S. Ct. 1809,

1812 (2021) (discussing same). More recently it has also designated Burma. S ee

Designation of Burma (Myanmar) for Temporary Protected Status, 86 Fed. Reg.

28,132, 28,133 (May 25, 2021) (explaining TPS designation based on “humanitarian

crisis” resulting from military coup ).35 In sum, these precedents provide legal support for the IJ’s

decision to deny Quintanilla withholding of removal based on

membership in his proposed social groups. Indeed, because the two

cases cited by the IJ, Matter of W

- G

- R

- , and Matter of S

- E

- G

- ,

specifically addressed gang activities in El Salvador

, the IJ’s reliance

on them raises no concerns akin to those identified in Ordonez Asme n

v. Barr

, 965 F.3d 128

, 135 (2 d Cir. 2 020) ( faulting agency’s reliance on

Salvadoran and Honduran perceptions of former gang members as

identified in Matter of W

- G

- R

- and Matter of M

- E

- V

- G

- without

specifically considering Guatemalan society’s perception of that

group as it exists in Guatemala).

The requisite factual support for the IJ’s decision is evident in

Quintanilla’s provision of only “sca nt evidence” to demonstrate the

parti cularity or social distinction of the groups on which he now

relies. Matter of W

- G

- R

- , 26 I. & N. Dec. at 222. It is, of course, well

established that “when a petitioner bears the burden of proof, his

failure to adduce evidence can itself constitute the substantial

evidence necessary to support the agency’s challenged deci sion

. ”

Shao v. Mukasey

, 546 F.3d 138, 157

– 58 (2d Cir. 2008) (internal quotation

marks omitted)

.

Here, Quintanilla offered evidence of a government sponsor ed

,

privately

- funded program to help persons remove gang tattoos

.

While that may be some evidence that the Salvadoran government

views former gang members as socially distinct

— at least to the extent

that they were the primary beneficiaries of the tattoo

- removal

program

— it does not compel the conclusion that Salvadoran society

as a whole viewed gang members who participated in the program as

socially distinct. See generally Matter of M

- E

- V

- G

- , 26 I. & N. Dec.36 at 242. The participation of a foreign non

- profit organization i n the

program does not provide such evidence because h ow a group within

a country is viewed by those outside its borders does not demonstrate

domestic social distinction. 24 Nor is the requisite social distinction

established by reports of current gang mem bers murder ing past

program participants. Even if such uncorroborated hearsay reports

sufficed to show that program participants were specific gang targets,

“a persecutor’s perception alone is not enough to establish a

cognizable social group.” Paloka v. Holder

, 762 F.3d at 101.

The same conclusion obtains i nsofar as Quintanilla stated at his

reasonable fear interview that MS

- 13 had targeted his brother (who

had never been a gang member), a s well as himself, for their

rehabilitation work with Iglesias Eva ngelicas

. T he gang’s hostile

perception of persons doing rehabilitation work was insufficient, by

itself, to compel the IJ to find that Salvadoran society as a whole

viewed such workers as a socially distinct group. See id

. While

Quintanilla testified that his neighbors approved of his ministry, that

evidence pertained to Quintanilla specifically and does little to

answer the question of whether his neighbors

— assuming arguendo

that they can be viewed as a proxy for Salvadoran society as a

whole

— would perceive others performing similar work as part of a

distinct social group. See Matter of W

- G

- R

- , 26 I. & N. Dec. at 217

24 In Oliva v. Lynch

, 807 F.3d 53, 61 (4th Cir. 2015), cit ed by Quintanilla in

his reply brief

, the Fourth Circuit faulted the BIA for failing to address whether

“programs to help former gang members rehabilitate themselves” supported the

social distinction criteria for a particular social group. There, however, the

government conceded that the agency had not considered Oliva’s evidence and

remand was

, therefore

, “the proper course of action.” Id

. That is not this case.37 (“[T]here must be evidence showing that society in general perceives,

considers, or recognizes persons shari ng the particular characteristic

to be a group.” (emphasis added) ) ; see also Matter of M

- E

- V

- G

- , 26 I. &

N. Dec. at 244 (“Evidence such as country conditions reports, expert

witness testimony, and press accounts of discriminatory laws and

policies, histori cal animosities, and the like may establish that a group

exists and is perceived as ‘distinct’ or ‘other’ in a particular society.”);

cf. Lopez Canas v. Barr

, 787 F. App’x 32, 34 (2d Cir. 2019) (“[T]he

recognition of friends and former coworkers is not an appropriate

proxy for the perception of society as a whole.”).

In sum, we conclude that the IJ sua sponte considered the social

groups now identified by petitioner

, and that his decision to deny

withholding of removal based on social group is supported by both

controlling law and su bstantial evidence. 25

25 The IJ seems to have found Quintanilla’s withholding claim lacking not

only at the cogniza ble

- social

- group step of the analysis but also at the nexus step.

See

, e.g., App’x at 56 (“[I]t appears through the testimony of the respondent that

the gang members that the respondent claims he fears are simply attempting to

potentially enforce their co de of conduct and punish infidelity to the gang.”) ; see

also Matter of W

- G

- R

- , 26 I. & N. Dec. at 224 (“The respondent has not shown that

any acts of retribution or punishment by gang members would be motivated by

his status as a former gang member, rather than by the gang members’ desire to

enforce their code of conduct and punish infidelity to the gang.”)

. Quintanilla

presents no challenge to this nexus determination distinct from his claim that the

agency failed to recognize his social groups. Se e Pet’r Reply Br. at 8. No matter.

We have already explained why his social

- group argument fails. And the IJ’s

adverse nexus conclusion is supported by substantial evidence unrelated to38 IV. CAT R elief

Under Article 3 of the CAT, an alien cannot be removed “to a

country where he more likely than not woul d be tortured by

, or with

the acquiescen c e of, government officials acting in an official

capacity.” Mu Xiang Lin v. U.S. Dep’t of Just.

, 432 F.3d 156, 159 (2d Cir.

2005) ; see Scarlett v. Barr, 957 F.3d at 334

. An alien seeking CAT relief

bears the burde n of proving the likelihood of future torture by or with

the acquiescence of government officials. See 8 C.F.R. § 1208.16(c)(2).

“Torture ” is “an extreme form of cruel and inhuman treatment,” not

“ incident al to lawful sanctions, ” and “specifically intended to inflict

severe physical or mental pain or suffering

. ” I d. § 1208.18 ( a) (2), (3),

(5). Acquiescence “requires that the public official, prior to the

activity constituting torture, have awareness of such activity and

thereafte r breach his or her legal responsibility to intervene to prevent

such activity.” Id. § 1208.18(a)(7) ; see Pierre v. Gonzales

, 502 F.3d at 119

(“ A private actor’s behavior can constitute torture under the CAT

without a government’s specific intent to infli ct it if a government

official is aware of the persecutor’s conduct and intent and acquiesces

in violation of the official’s duty to intervene

. ” (emphasis omitted )).

I n considering a CAT clai m, t he agency properly considers “all

evidence relevant to the p ossibility of future torture,” including

Quintanilla’s renunciation of his membership in MS

- 13 or his gang

- o pposition

work with Iglesias Evangelicas

. Specifically, Quintanilla’s own statements

acknowledge that (1) MS

- 13 members tried to kill him after accusing him of

stealing a gang gun, and (2) the “ main reason ” he feared for his life if removed to

El Salvador was because he had stabbed a gang leader. App’x at 411. These

motives for gang violence, not based on Quintanilla’s renunciation of or active

opposition to MS

- 13, provided substantial evidence to support the IJ’s adverse

nexus determination.39 evidence of “ past torture ”; of possib le internal relocation; of “ gross,

flagrant or mass violations of human rights ”; and any other relevant

information regarding “ conditions in the country of removal.”

8 C.F.R. § 1208.16(c)(3).

In rejecting Quintanilla’s CAT claim, the IJ found that

Quintanilla had not persuasively show n that Salvadoran government

officials would commit or acquiesce in his torture because

(1) Quintanilla had “indicated with specificity that he had not been

harmed or beaten by the police” in the past ; (2) MS

- 13 members were

not themselves part of the Salvadoran government ; and (3) the State

Department Country Reports for El Salvador showed that

, despite the

country’s high level of violence and in stances of “police or military

malfeasance,” the government ( a ) was “embattled i n trying to control

gang activity in the country”; and ( b ) would not “turn a blind eye to

harm of the respondent by gang members

. ” App’x at 57

– 58.

Identifying no clear error i n these findings, the BIA affirmed.

See Hui Lin Huang v. Holder

, 677 F.3d 130, 134 (2d Cir. 2012) (“[A]n IJ’s

finding that a future event will occur [is] fact

- finding subject to review

for clear error.”).

In petitioning this court for review, Quintanilla faults the IJ for

failing to reference his hearing testimony that, on three occasions,

Salvadoran police tried to harm or kill him. We identify no error

because the IJ detailed Quintanilla’s numerous inconsistent

statements about his encounters with Salva doran police and

determined from the occasion when he “indicated with specificity

that he had not been harmed or beaten by the police” that he failed to

demonstrate a likelihood of direct police torture. App’x at 57

– 58. The40 BIA reached the same conclusio n, even affording Quintanilla’s

testimony a presumption of credibility. Because the agency’s

conclusion finds support in record evidence, Quintanilla cannot

secure CAT relief by pointing to conflicting evidence that might

support

— but not compel

— a different conclusion. See generally

Joaquin

- Porras v. Gonzales

, 435 F.3d 172, 181 (2d Cir. 2006) (observing

that substantial evidence standard does not permit court to reverse

agency ruling “ simply because [ it ] disagree [ s ] with its evaluation of

the fac ts ” (internal quotation marks omitted) ).

As for Quintanilla’s claim that Salvadoran police would likely

acquiesce in his torture by gang members, the BIA correctly observed

that he offered no evidence to show that Salvadoran officials were

aware of past ga ng attacks on his life. See Khouzam v. Ashcroft

, 361

F.3d 161, 171 (2d Cir. 2004) (“In terms of state action, torture requires

. . . that government officials know of or remain willfully blind to an

act and thereafter breach their legal responsibility to prevent it.”). Far

from reporting the October 2015 gang attempt to beat him to death,

Quintanilla falsely told the police that he had been the victim of a

robbery. While a failure to ask for police help is not enough, by itself

,

to preclude a finding of acquiescence, see Pan v. Holder

, 777 F.3d 54 0

,

544

– 45 (2d Cir. 2015), where, as here, other evidence, specifically,

State Department Country Reports, supports the agency’s finding

that the Salvadoran government is aggressively trying to combat

gang violenc e, even through armed confrontations, we cannot

conclude that the agency was compelled to find it likely that, if

Quintanilla were removed to El Salvador, that country’s officials

would acquiesce in his torture by gang members.41 In urging otherwise, Quintanilla argues that evidence of

government efforts to combat gang violence do es not preclude a

finding of acquiescence where other evidence shows public officials

condoning gang torture. 26 He is correct that a finding of acquiesce nce

is not precluded in such circumstances

. But neither is it compelled.

Rather, it invites careful factfinding. Quintanilla argues that the IJ’s

factfinding on this point was defective because he overlooked

evidence in the 2016 State Department Country Report indicating that

corrupt Salvadoran officials acquiesced in torture. See generally

Mendez v. Holde r

, 566 F.3d 316, 323 (2d Cir. 2009) (observing that error

of law may occur where agency “totally overlooked” or “seriously

mischaracterized” record ev idence). The argument is defeated by the

record

, which shows that the IJ considered the 2015 and 2016 State

Department Country Reports and

, in his decision, acknowledged

their discussion not only of “the high level of violence and trouble

that takes place in the country of El Salvador” but also of “reports on

events involving police or military malfeasance.” App’x at 58. At its

core, then, what Quin tanilla’s argument seeks is for this court to

reweigh facts showing that, on the one hand, El Salvador is t rying to

26 In suppo r t

, he cites De La Rosa v. Holder

, 598 F.3d 103

, 110 (2d Cir. 2010).

The case is distinguishable because, there, in vacating a denial of relief from

removal based on a BIA finding that some evidence of police assistance precluded

a showing of official acqu iescence in torture, we observed that the government

there was “admittedly unable to actually prevent the torture from taking place.”

Id. at 111 ; see id. at 110 (“Where a government contains officials that would be

complicit in torture, and that governmen t, on the whole, is admittedly incapable

of actually preventing that torture, the fact that some officials take action to

prevent the torture would seem n[ot] inconsistent with a finding of government

acquiescence

. ”). Quintanilla does not claim that the g overnment of El Salvador

“on the whole, is admittedly incapable of actually preventing” the gang torture

that he fears on removal. Id. at 110.42 combat gang violence but, on the other hand, some police and

military malfeasance hampers those efforts, and to accord the latter

more weight than the former. But substantial evidence review does

not contemplate any judicial reweighing of evidence. Rather, it

requires us to ask only whether record evidence compelled an

acquiescence finding different from that reached by the agency. We

conclude that it did not.

Finally, Quintanilla argues that the government’s acquiescence

in torture is evident from its turning a blind eye to the risk of gang

torture resulting from its publication on social media of Quintanilla’s

participation in a gang

- tattoo

- removal program. In reviewing this

argument, we assume certain facts in the light m ost favorable to

Quintanilla: (1) that the Salvadoran government sanctioned the

challenged publication, (2) that such publication breached a program

promise of confidentiality

, and (3) that gangs had killed other

program participants. Nevertheless, we co nclude that these

circumstances did not compel the IJ to find it likely that, if Quintanilla

is removed to El Salvador, government officials will acquiesce in his

torture.

First

, there is no evidence that any government official who

sanctioned publication acted from more than mistake or negligence

about any attendant risk

. S ee 8 C.F.R. § 1208.18(a)(7) (stating that

mistake, negligence, or even reckless disregard of truth are

insufficient to demonstrate “acquiescence” in torture). Second

, insofar

as Quinta nilla identified the gang’s October 2015 beating as past

torture supporting his CAT claim, that attack occurred over four years

after publication of his participation in the tattoo program

. During

those years, Quintanilla managed to avoid gang torture by paying43 extortion and storing gang guns

. He was beaten only when gang

members accused him of stealing a gun. Third

, and as already noted,

State Department Country Reports indicated that the Salvadoran

government was actively trying to curtail gang violenc e. On this

record, we cannot conclude that the IJ was compelled to find that

government officials would acquiesce in gang torture of Quintanilla

upon his removal to El Salvador.

C ONCLUSION

To summarize

, we conclude as follows:

(1) Any failure by t he IJ to make an explicit adverse credibility

finding does not require remand because the BIA explicitly

a ff orded Quintanilla’s testimony the presumption of

credibility provided in 8 U.S.C. §§ 1158(b)(1)(B)(iii) &

1231(b)(3)(C)

, and, nevertheless, found it insufficient to

support withholding of removal

.

(2) The IJ sua sponte considered the two social groups identified

by Quintanilla on this appeal

— “former gang members who

actively distance themselves from the gangs and work to

oppose them ” and “individuals work ing in El Salvador to

rehabilitate youth in order to prevent their joining gangs ”

—

and substantial evidence supports the agency’s conclusion

that neither group possessed the particularity or social

distinction necessary for withholding of removal

.

(3) Substanti al evidence, including State Department Country

Reports, supports the agency’s determination that

Quintanilla failed to show that, if removed to El Salvador,

he would likely face torture from government officials or44 from gangs acting with the acquiescence of government

officials.

Accordingly, w e DENY Quintanilla’s petition for review of the

challenged decisions

. Quintanilla’s stay of removal is hereby

VACATE D as moot.