Rogaciano Galvez-Vicencio v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 23-3018
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Rogaciano Galvez-Vicencio
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: March 13, 2024
Filed: May 6, 2024
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Before BENTON, ERICKSON, and KOBES, Circuit Judges.
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ERICKSON, Circuit Judge.
Rogaciano Galvez-Vicencio, a Mexican citizen who first entered the United
States unlawfully in 2009, petitions for review of the immigration judge’s
determination that he failed to establish a reasonable fear of persecution or torture
for purposes of removal proceedings under 8 U.S.C. § 1231. We deny the petition.

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I. BACKGROUND
Upon conclusion of his sentence for federal reentry after deportation, Galvez-
Vicencio requested a reasonable fear interview with the Asylum Office of the
Department of Homeland Security (“DHS”) regarding his fear of returning to
Mexico based on cartel violence. On August 21, 2023, an asylum officer conducted
an interview and determined that Galvez-Vicencio, while credible, did not have a
reasonable fear of persecution or torture. Galvez-Vicencio requested review by an
immigration judge (“IJ”). During the IJ proceedings, Galvez-Vicencio testified and
provided evidence to support his claim. The IJ affirmed the decision of DHS, finding
the past harm Galvez-Vicencio experienced was not on account of a particular social
group; his fear of future harm was based on a desire by the Cartel de Jalisco Nueva
Generacion (“CJNG”) to harm him out of a personal vendetta, not on account of a
protected ground; and he did not have a reasonable fear of torture because it was
speculative that the torture Galvez-Vicencio feared would be at the consent or
acquiesce of a government official. The 2009 Order of Removal was reinstated.
Galvez-Vicencio seeks review of the IJ’s findings that he failed to
demonstrate a reasonable possibility of future harm or torture.
II. ANALYSIS
We review the reinstatement of a prior removal order for substantial evidence,
and we will not overturn DHS’s factual findings unless “it would not be possible for
any reasonable fact-finder to come to the conclusion reached by the administrator.”
Perez-Garcia v. Lynch, 829 F.3d 937, 940–41 (8th Cir. 2016) (quotation omitted).
To avoid removal, Galvez-Vicencio must establish a reasonable possibility that he
would be persecuted in Mexico on account of his race, religion, nationality,
membership in a particular social group or political opinion, or a reasonable
possibility that he would be tortured in Mexico. See 8 U.S.C. § 1231(b)(3)(A); 8
C.F.R. § 208.31(c).

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Galvez-Vicencio contends he established a reasonable possibility of
persecution based on his membership in the social group of his family. An applicant
for withholding based on membership in a particular social group must establish
both a cognizable social group and a nexus between the persecution and membership
in that social group. Gonzalez Cano v. Lynch, 809 F.3d 1056, 1058 (8th Cir. 2016).
While we have previously held that a nuclear family can constitute a social group,
Bernal-Rendon v. Gonzales, 419 F.3d 877, 881 (8th Cir. 2005), we have rejected a
nuclear family social group claim when the family lacked visibility. To constitute a
family with visibility, we have explained that “the members of the group are
perceived as a group by society such that these individuals suffer from a higher
incidence of crime than the rest of the population.” Antonio-Fuentes v. Holder, 764
F.3d 902, 905 (8th Cir. 2014) (cleaned up). Without more, a family experiencing
gang violence is too broad. See de la Rosa v. Barr, 943 F.3d 1171, 1174 (8th Cir.
2019; Cambara-Cambara v. Lynch, 837 F.3d 822, 826 (8th Cir. 2016); Constanza v.
Holder, 647 F.3d 749, 753–54 (8th Cir. 2011) (per curiam).
Here, Galvez-Vicencio provided evidence of violence against himself and his
family, but he did not provide sufficient information to establish reasonable fear of
persecution. Galvez-Vicencio testified that his mother resides in Mexico and has
not been harmed despite submitting police reports related to violence against family
members. Galvez-Vicencio also testified that his brother Victor has not been harmed
or threatened since returning to Mexico in 2022. Although Galvez-Vicencio offered
evidence that the prosecutor’s office in Zacatecas has listed him as belonging to a
protected group through his relationship to his kidnapped brother, Dionicio, this
evidence suggests that Galvez-Vicencio may be at risk of violence, not that the risk
of violence is because of the family relationship. See Rivas v. Sessions, 899 F.3d
537, 542 (8th Cir. 2018) (“[T]he fact that a persecutor targets a family member
simply as a means to an end is not, by itself, sufficient to establish a claim.”)
(quotation omitted).
With respect to the various gangs, Galvez-Vicencio described violence by the
Mexican cartels related to recruitment or intimidation, or violence in retaliation for

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his cooperation with police. This sort of evidence does not establish Galvez-
Vicencio was harmed on account of a protected group. See Martinez-Galarza v.
Holder, 782 F.3d 990, 993–94 (8th Cir. 2015) (finding persecution arose from
“personal retribution” rather than applicant’s membership in a particular social
group); Aguinada-Lopez v. Lynch, 825 F.3d 407 (8th Cir. 2016) (persecution not
due to membership in social group but instead motivated by gang recruitment). We
see no error in the IJ’s determination that Galvez-Vicencio failed to show a
reasonable possibility he would be persecuted based on a protected ground should
he return to Mexico.
Galvez-Vicencio also contends that he provided sufficient evidence to
establish fear of persecution by torture. To obtain relief, Galvez-Vicencio must
show it is “more likely than not” that he would be tortured if removed to Mexico. 8
C.F.R. § 1208.16(c)(2). Torture is “an extreme form of cruel and inhuman
treatment” and is defined to include any act which consists of: (1) severe pain or
suffering, either physical or mental; (2) that is intentionally inflicted; (3) not as a
lawful sanction; and (4) is inflicted by, or at the instigation of, or with the consent
or acquiescence of, a public official acting in an official capacity or other person
acting in an official capacity. Id. at § 1208.18(a)(1), (a)(2). “A government does
not acquiesce in the torture of its citizens merely because it is aware of torture but
powerless to stop it, but it does cross the line into acquiescence when it shows willful
blindness toward the torture of citizens by third parties.” Ramirez-Peyro v. Holder,
574 F.3d 893, 899 (8th Cir. 2009) (quotation omitted).
Galvez-Vicencio’s testimony about law enforcement’s physical treatment
arising out of a mistaken identity does not rise to the level of torture. Likewise, the
evidence in the record is insufficient to show police acquiescence to the gang
violence that he and his family endured. See Uriostegui-Teran v. Garland, 72 F.4th
852, 856 (8th Cir. 2023) (stating the record did not support the contention that the
Mexican government turned a blind eye to gang-inflicted torture because the police
offered to help when applicant’s uncle was kidnapped); Cambara–Cambara, 837
F.3d at 827 (“[T]hat a police force struggles to control gang activity is insufficient

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to compel a finding of . . . government acquiescence in their criminal activities.”).
The lack of evidence showing who specifically would torture Galvez-Vicencio or a
reasonable possibility of government acquiesce is fatal to Galvez-Vicencio’s claim.
Substantial evidence supports the IJ’s conclusion that Galvez-Vicencio did not
demonstrate it would be more likely than not he would be tortured if returned to
Mexico.
Finally, the IJ’s use of the word “speculative” to describe the evidence of
acquiescence did not imply an inappropriate, heightened standard was used. The
word “speculative” comports with the law, as Galvez-Vicencio must show that the
possibility of torture is more than hypothetical. See Gilbertson v. Garland, 7 F.4th
700, 706 (8th Cir. 2021) (finding a hypothetical chain of events is insufficient to
show that it was more likely than not that each link in the chain would occur); see
also Deng v. Garland, 80 F.4th 859, 863 (8th Cir. 2023) (same).
III. CONCLUSION
For these reasons, we deny the petition for review.
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