                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit


No. 15-1501

                GLORIA ESPERANZA PINEDA-HERNANDEZ,

                               Petitioner,

                                     v.

                         LORETTA E. LYNCH,
              Attorney General of the United States,

                               Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS


                                  Before

                       Howard, Chief Judge,
               Selya and Thompson, Circuit Judges.


     Hans J. Bremer and Bremer Law & Associates, LLC on brief for
petitioner.
     Paul   Fiorino,  Senior   Litigation   Counsel,  Office   of
Immigration Litigation, United States Department of Justice,
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, and Douglas E. Ginsburg, Assistant Director, on
brief for respondent.


                          September 29, 2016
            Per   Curiam.   Petitioner   Gloria     Esperanza   Pineda-

Hernandez ("Pineda"), a native and citizen of Honduras, asks us to

review a Board of Immigration Appeals ("BIA") order denying her

claims for asylum, withholding of removal, and protection under

the United Nations Convention Against Torture (“CAT”).           After

careful consideration of the briefs and the record, we deny the

petition.

                                 I.

            Pineda entered the United States unlawfully in March

2012 and was subsequently served with a Notice to Appear charging

her as removable pursuant to Immigration and Nationality Act §

212(a)(7)(A)(i).     In response, Pineda conceded removability and

sought asylum, withholding of removal, and protection under the

CAT.

            In support of these claims, Pineda alleged that, two or

three months before she left Honduras, she had been touched

sexually, pushed to the ground, and threatened by a member of the

Mara Salvaltrucha gang named "El Peludo."1        Pineda expressed her

belief that El Peludo would also have raped her had another man

not come to her assistance.    Pineda did not report the attack to



       1
       Pineda also testified that she had previously interacted
with El Peludo on just two occasions.   During the first, at a
party, he repeatedly asked her to dance and stared at her after
she refused. During the second, he approached her on the street
and asked her to live with him.


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the local authorities, believing that the police would not do

anything to help her and fearing that El Peludo and his fellow

gang members would retaliate against her if she did.2      Although

Pineda did not encounter El Peludo again after the assault, she

stated that she still feared he would rape or kill her.

          The immigration judge ("IJ") found Pineda credible but

ineligible for relief.   The IJ reasoned that Pineda's experiences

did not rise to the level of persecution and that, even if they

did, she had not established a nexus to a protected ground.

          The BIA subsequently affirmed, emphasizing that although

the evidence reflected that Pineda "was the victim of a criminal

act by a gang member who sought a relationship with her," it did

not support a claim that she had suffered past persecution or that

she was targeted on account of any protected ground. This petition

timely followed.

                                II.

          Where, as here, the BIA issues its own opinion, we focus

on the decision of the BIA as opposed to that of the IJ.   Pulisir

v. Mukasey, 524 F.3d 302, 307–308 (1st Cir. 2008).   In reviewing

a BIA decision, we ask whether it is "supported by reasonable,

substantial, and probative evidence on the record considered as a



     2 Additionally, the record shows that the police station was
approximately 25 to 30 minutes away from Pineda's home in Agua
Azul.


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whole."    Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir. 2014).                      If

it is, we will uphold it.             Under this deferential standard, the

fact that "the record supports a conclusion contrary to that

reached by the BIA is not enough to warrant upsetting the BIA's

view of the matter; for that to occur, the record must compel the

contrary conclusion."             Lopez de Hincapie v. Gonzales, 494 F.3d

213, 218 (1st Cir. 2007).

              In    order   to    qualify    for    asylum,   an    applicant       must

establish either past persecution or a well-founded fear of future

persecution if repatriated, on account of one of five enumerated

grounds, including membership in a particular social group.                         See

8 U.S.C. § 1101(a)(42)(A).           The asylum statute "is not intended to

protect aliens from violence based on personal animosity." Romilus

v. Ashcroft, 385 F.3d 1, 6 (1st Cir. 2004); accord Guerra-Marchorro

v. Holder, 760 F.3d 126, 128-29 (1st Cir. 2014).                         Thus, Pineda

bears the burden of showing both that she was persecuted and that

there   was    a    "nexus"      between    the    persecution     and   one   of   the

statutorily protected grounds.              See Lopez de Hincapie, 494 F.3d at

217.      Further, the government must be implicated for harm to

qualify as persecution.            Barsoum v. Holder, 617 F.3d 73, 79 (1st

Cir. 2010).        And that is the problem for Pineda, because the harms

she suffered were, on her own account, inflicted solely by El

Peludo,    without     the    government's         involvement,     complicity,      or

condonation.         See id. at 80.          Although Pineda's reluctance to


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report the sexual assault was understandable, her decision not to

involve the police made it impossible for the Honduran government

to respond.         Cf. Castillo-Diaz v. Holder, 562 F.3d 23, 25 (1st

Cir. 2009) (denying petition for review of a kidnapping and rape

victim, in part because no police report had been filed).                            Absent

a   showing    of    past    persecution,         Pineda    is     not    entitled     to   a

presumption that her fear of future persecution is well-founded.

See Barsoum, 617 F.3d at 80; see also 8 C.F.R. §208.13(b)(1).

              Because Pineda has not carried her burden of showing

that she suffered past persecution or has a well-founded fear of

future persecution, we need not reach the question of whether harm

has occurred (or is anticipated to occur) "on account of" her

membership in a particular social group.

              Because Pineda failed to carry the burden of persuasion

for the asylum claim, her counterpart claim for withholding of

removal necessarily fails.             See Villa-Londono v. Holder, 600 F.3d

21, 24 n.1 (1st Cir. 2010).

              This    brings      us   to    Pineda's      final    claim.       The    BIA

concluded      that     Pineda     had      not     established      eligibility        for

protection      under       the    CAT,     explaining       that        she   failed       to

"demonstrate[] that she is more likely than not to be tortured in

Honduras, by or with the acquiescence . . . of a government

official."     The record amply supports this conclusion.                      Pineda has

not adduced any evidence that her potential torturers — El Peludo


                                            - 5 -
and, possibly, his fellow Mara gang members — are state actors or,

alternatively, that the authorities would in some way be complicit

in her torture.    This is important because, without minimizing

Pineda's unfortunate situation, the mere infliction of harm does

not constitute torture within the meaning of the CAT.     Rather,

such injury meets this definition only if the harm "is inflicted

by, at the direction of, or with the acquiescence of government

officials."   Lopez de Hincapie, 494 F.3d at 221.

                               III.

          For the foregoing reasons, we deny Pineda's petition for

review.




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