                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-2424


JULIO ERNESTO MARTINEZ, a/k/a Julio Martinez,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.

--------------------------

AMERICAN IMMIGRATION LAWYERS ASSOCIATION,

                Amicus Supporting Petitioner.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   October 31, 2013                 Decided:   January 23, 2014


Before NIEMEYER and WYNN, Circuit Judges, and Louise W.
FLANAGAN, United States District Judge for the Eastern District
of North Carolina, sitting by designation.


Petition for review granted in part and denied in part; case
remanded for further proceedings by published opinion. Judge
Niemeyer wrote the opinion, in which Judge Wynn and Judge
Flanagan joined.


ARGUED: Maureen A. Sweeney, UNIVERSITY OF MARYLAND CAREY SCHOOL
OF LAW, Baltimore, Maryland, for Petitioner. Oluremi da Rocha-
Afodu, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.      Benjamin Richard Casper, UNIVERSITY OF
MINNESOTA SCHOOL OF LAW, Minneapolis, Minnesota, for Amicus
Supporting Petitioner.    ON BRIEF:    Alison D. Yoder, Student
Attorney, UNIVERSITY OF MARYLAND CAREY SCHOOL OF LAW, Baltimore,
Maryland, for Petitioner.    Stuart F. Delery, Acting Assistant
Attorney General, Civil Division, Blair T. O'Connor, Assistant
Director, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Andres
C. Benach, BENACH RAGLAND L.L.P., Washington, D.C.; Katherine
Evans, CASPER & EVANS, P.A., Minneapolis, Minnesota; Samuel
Johnson, Student Attorney, Holden Turner, Student Attorney,
Interprofessional Center For Counseling & Legal Services,
UNIVERSITY OF ST. THOMAS, Minneapolis, Minnesota, for Amicus
Supporting Petitioner.




                               2
NIEMEYER, Circuit Judge:

        Julio Ernesto Martinez, a citizen of El Salvador, who is

subject to removal from the United States because he entered

without authorization and, while in the United States, was given

a judgment of probation before verdict for marijuana possession,

requests    that     the    Attorney      General           withhold   removal     under   8

U.S.C. § 1231(b)(3), which places restrictions on removal to

countries where the alien’s life or freedom would be threatened.

He   claims    that        as   a    former        member      of     the   violent     Mara

Salvatrucha    gang    (“MS-13”),         he       is   a    member    of   a   “particular

social group,” as would qualify for withholding of removal under

§ 1231(b)(3), and that he would be killed if sent back to El

Salvador because he renounced his membership in MS-13.                            Based on

these     circumstances,            he   also       requests        relief      under   the

Convention     Against          Torture        (“CAT”),        contending        that   the

government of El Salvador would acquiesce in his torture at the

hands of MS-13.

        The immigration judge (“IJ”) and the Board of Immigration

Appeals (“BIA”) rejected Martinez’s arguments, concluding that

being a “former member[] of a gang in El Salvador” is not an

“immutable    characteristic”            of    a    particular        social    group   that

could      qualify     for          withholding         of      removal,        since    the

characteristic “result[ed] from the voluntary association with a

criminal gang.”        The IJ and the BIA also found that Martinez’s

                                               3
claim for relief under the CAT was not supported by sufficient

evidence.

     We   conclude     that    Martinez’s         proposed        particular      social

group of former MS-13 members from El Salvador is immutable for

withholding    of   removal     purposes         in    that   the     only     way   that

Martinez could change his membership in the group would be to

rejoin MS-13.       We hold therefore that the BIA erred in its

ruling declining -- on immutability grounds -- to recognize the

particular    social   group    of   former       members        of   MS-13    who   have

renounced their membership in the gang.                   Accordingly, we reverse

that ruling on immutability and remand Martinez’s application

for withholding of removal to permit the BIA to consider whether

Martinez’s     proposed        social       group        satisfies         the       other

requirements    for    withholding          of        removal.        On      Martinez’s

application for protection under the CAT, we affirm.                             Despite

Martinez’s claim to the contrary, we conclude that the IJ and

the BIA sufficiently considered the relevant evidence.


                                        I

     Martinez was born in San Miguel, El Salvador, in 1980 and

lived there until he entered the United States unlawfully in

2000.

     In March 2006, when Martinez was stopped while driving his

friend’s car with a malfunctioning brake light, the police found


                                        4
a    marijuana     blunt     in     a    dashboard           compartment      of   the    car.

Although Martinez denied any connection with the marijuana, he

pleaded to probation before judgment in December 2007.

       Even before Martinez’s marijuana charge was resolved, the

Department        of     Homeland            Security         had      initiated       removal

proceedings       against      him      based         on    his     illegal    entry.       It

subsequently closed the proceedings because Martinez agreed to

serve as a confidential informant, assisting the FBI in making

controlled    purchases        of       drugs         and   fake    green     cards.      When

Martinez was stopped again in May 2011 for a traffic offense,

the   Department        of   Homeland         Security       recalendared       the    removal

proceedings, concluding that Martinez was “no longer useful as a

confidential       informant.”               In    the      reopened    proceedings,       the

government added a charge that Martinez was subject to removal

as    an   alien       convicted        of    a       controlled      substance       offense.

Martinez conceded that he was subject to removal, but he sought

relief     from    removal     on       the       ground     that    his    life   would    be

endangered should he be returned to El Salvador.

       At the hearing before the IJ, Martinez testified that his

stepfather died when he was 12 years old and that, at the age of

14, he befriended a group of older boys who had also lost family

members.     The group went to parties, drank, and smoked marijuana

together.         Martinez later learned, however, that some of the

boys who had recruited him into this group were also associated

                                                  5
with MS-13, although the group itself had no association with

that gang.      This status changed, however, when several members

of MS-13 were deported from the United States and arrived in

Martinez’s      neighborhood.                Martinez’s          group     was         then

“incorporated” into the larger MS-13 gang structure, which, to

some extent, was involuntary.                Martinez testified that the new

MS-13    arrivals   informed        him    and   his     friends    that   they        were

“already . . . part of MS-13” and that they had no option but to

join the gang.      Martinez, who was now 15, agreed to undergo MS-

13’s initiation rite of a beating that lasts 13 seconds.

     Soon after Martinez’s induction into MS-13, the deportees

killed the original leaders of Martinez’s group of friends and

became the gang’s new leaders.                   They ordered Martinez to get

tattoos signifying his allegiance to MS-13, which he did.                              They

also ordered him to extort money from members of the community,

which    he   refused   to    do.         Because   of     his    disobedience,         the

leaders of the gang beat Martinez on a weekly basis.                          Martinez

testified that he never “committed any crimes for the gang,”

although he conceded that he did participate once in the beating

of   a   fellow     gang     member       for     failing    to     follow       orders.

Thereafter,     however,      he      also       refused     to     join   in      those

disciplinary      beatings,     which        consequently         subjected      him     to

further beatings.



                                            6
       MS-13       held      weekly     meetings      for    members       in    the    local

community and monthly general meetings, which were attended by

thousands of members from across El Salvador.                         Martinez attended

most   of    these        meetings,     and    he    was    beaten    when      he    did   not

attend.      At the meetings, the leaders would discuss who was part

of the gang and who was not.                   They also informed the membership

as to who had the “green light,” which indicated that the member

was to be executed.             A principal reason for receiving the green

light was attempting to leave MS-13.                       Indeed, two of Martinez’s

friends who attempted to leave the gang were killed.

       By    the      time   Martinez     reached      the    age     of   16,    he    became

“tired      of     [the]     beatings”        that    he    had   been     receiving        for

refusing to obey the leaders, and he decided to leave MS-13.

Accordingly, he stopped attending its meetings.                             Several weeks

later,      he    encountered     his     local      group    leader,      “Psycho,”        who

asked him where he had been.                   When Martinez told Psycho that he

wanted to leave the gang, Psycho responded that there was “only

one    way       to   get     out,”     implying      by     death.        When       Martinez

nonetheless insisted that he was quitting, gang members beat him

and    stabbed        him,    leaving    him    for    dead.         Martinez        survived,

however, and, after leaving the hospital, went to live with a

cousin in Intipucá, which is about an hour’s drive south of San

Miguel.



                                                7
       In   Intipucá,        Martinez    covered        his    tattoos     and     left    his

house only to go to work.                    Two months later, however, MS-13

members found him and shot at him from a car.                            Multiple bullet

fragments struck Martinez, and he was again hospitalized for

several weeks.          After recovering, Martinez went into hiding with

friends and family members.

       MS-13 members once again found Martinez and once again shot

at   him.        This       time   he   managed     to     escape        without    injury.

Martinez left El Salvador to come to the United States in 2000,

entering without permission.                  He believes that if he were to

return to El Salvador, MS-13 members would kill him.                             Indeed, he

claims that while he has been in the United States, he has

refrained from going places where he might meet an MS-13 member,

such as Spanish nightclubs.

       Based on his fear of bodily harm at the hands of MS-13,

Martinez sought several forms of relief from removal.                             He argued

that    under      8    U.S.C.      §   1231(b)(3),           he   was     eligible        for

withholding      of     removal     because       his    life      was    threatened       on

account     of   his    membership      in    the   particular       social        group   of

former gang members from El Salvador.                         He also argued that he

qualified for protection under the CAT because the Salvadoran

government would acquiesce in his torture should he be removed.

In     addition,       he     applied    for      temporary        protected        status.

Finally, as an alternative, he requested voluntary departure.

                                              8
     Following a hearing, the IJ found Martinez credible but

nonetheless denied him all relief except for his application for

voluntary departure.              On appeal, the BIA, in a single-member

opinion,    also     rejected       Martinez’s     request   for     relief.       With

respect to his § 1231(b)(3) claim, the BIA defined Martinez’s

proposed    social        group   as    “former    members      of   a   gang    in   El

Salvador” and concluded that Martinez had not shown that this

group   had    a    “common,       immutable      characteristic”        because      the

“characteristic result[ed] from the voluntary association with a

criminal gang.”           The BIA also affirmed the IJ’s conclusion that

Martinez    had     not    demonstrated     that    the   Salvadoran       government

would acquiesce in his torture.

     From the BIA’s final order of removal dated October 24,

2012, Martinez filed this petition for review.


                                           II

     “The courts of appeals are granted jurisdiction to review

final orders of removal, 8 U.S.C. § 1252(a)(1), and final orders

in cases such as the one before us are generally made by the BIA

following     appeal      from    the   decision     of   the    IJ.”      Camara     v.

Ashcroft,     378   F.3d     361,    366   (4th    Cir.   2004);     accord     Huaman-

Cornelio v. BIA, 979 F.2d 995, 999 (4th Cir. 1992).                        Situations

may arise when it is appropriate for this Court to review an

IJ’s opinion, such as when the BIA adopts the IJ’s decision


                                           9
without an opinion of its own, see Camara, 378 F.3d at 366, or

when the BIA adopts the IJ’s opinion and supplements it with

additional reasoning, see Barahona v. Holder, 691 F.3d 349, 353

(4th Cir. 2012).            In both such cases, the BIA has determined

that the IJ’s opinion will become -- in whole or in part -- the

final order of removal subject to review.

        In   this   case,    however,    the   BIA    issued    its   own   opinion

without      adopting       the   IJ’s    opinion.      The     BIA’s   decision,

therefore,      constitutes       the    final       order     of   removal,    and

accordingly we review that opinion and not the opinion of the

IJ. 1


        1
       This Court has recently purported to review the decisions
of both the IJ and the BIA whenever they both issue opinions.
See, e.g., Singh v. Holder, 699 F.3d 321, 327 (4th Cir. 2012)
(“When, as here, the Board and an IJ issue decisions in a case,
we review both on appeal”); Kourouma v. Holder, 588 F.3d 234,
239-40 (4th Cir. 2009) (“When the BIA and the immigration judge
both issue decisions in a case, we review both decisions upon
appeal”).     We take those cases, however, to involve BIA
decisions that incorporated some part of the IJ’s opinion as
part of the BIA’s final order. See Camara, 378 F.3d at 366;
Huaman-Cornelio, 979 F.2d at 999 (“As a court of appeals, we
review only the findings and order of the BIA, not those of the
IJ. Section 106(a) of the Immigration and Nationality Act vests
us only with the jurisdiction to review ‘final orders of
deportation.’   Final  orders   are  entered   only   after  all
administrative remedies have been exhausted; thus final orders
in deportation proceedings come from the BIA, the highest
administrative tribunal” (citation omitted)).    Otherwise, they
would conflict with 8 U.S.C. § 1252(a)(1), which provides that
we may only review a “final order of removal.” An alien facing
removal may appeal to the BIA as of right.          8 C.F.R. §§
1003.1(b)(3), 1003.38(a), 1240.15.    The BIA reviews the IJ’s
legal conclusions de novo and its factual conclusions for clear


                                         10
        Martinez’s   particular        challenge      to     the   BIA’s     opinion      in

this case is directed against the BIA’s determination that, for

purposes    of   §   1231(b)(3),        “former      members       of    a   gang   in   El

Salvador” are not a “particular social group” as that term is

used in the statute, because members of the group do not have “a

common,     immutable       characteristic           where    that       characteristic

results from voluntary association with a criminal gang.”                                The

parties agree that this presents us with a question of law.

     We    review    the    BIA’s      legal   determinations,            including      its

interpretation       of    the   INA    and    any    attendant         regulations,     de

novo.     See Li Fang Lin v. Mukasey, 517 F.3d 685, 691-92 (4th

Cir. 2008).      But in conducting our review, we generally give

Chevron     deference       to   the     BIA’s       statutory          interpretations,

recognizing that Congress conferred on the BIA decisionmaking




error. Id. § 1003.1(d)(3). As such, “there is no ‘final order’
until the Board acts.”    Cruz-Funez v. Gonzales, 406 F.3d 1187,
1190 (10th Cir. 2005).    Thus, where the BIA issues an opinion
without adopting the IJ’s opinion in whole or in part, this
Court can only review the BIA’s opinion.     Every other circuit
has come to the same conclusion. Romilus v. Ashcroft, 385 F.3d
1, 5 (1st Cir. 2004); Yan Chen v. Gonzales, 417 F.3d 268, 271
(2d Cir. 2005); Brandao v. Att’y Gen., 654 F.3d 427, 429 n.4 (3d
Cir. 2011); Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997);
Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007);
Begzatowski v. INS, 278 F.3d 665, 669 n.5 (7th Cir. 2002); Aung
Si Thu v. Holder, 596 F.3d 994, 998 (8th Cir. 2010); Hosseini v.
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006); Uanreroro v.
Gonzales, 443 F.3d 1197, 1203-04 (10th Cir. 2006); Rodriguez v.
U.S. Att’y Gen., 735 F.3d 1302 (11th Cir. 2013) (per curiam);
Gutierrez-Rogue v. INS, 954 F.2d 769, 772 (D.C. Cir. 1992).


                                          11
power to decide such questions of law.                             See INS v. Aguirre-

Aguirre,     526    U.S.   415,        424   (1999);       Chevron,      U.S.A.,     Inc.   v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

This is true even when the BIA “gives ambiguous statutory terms

‘concrete        meaning         through        a      process        of     case-by-case

adjudication.’”         Aguirre-Aguirre, 526 U.S. at 425 (quoting INS

v.     Cardoza-Fonseca,          480     U.S.       421,    448     (1987)).         Chevron

deference,       however,        is      accorded          only    when     an     “agency’s

interpretation is rendered in the exercise of [its] authority

[to make rules carrying the force of law].”                              A.T. Massey Coal

Co.    v.   Barnhart,      472    F.3d       148,    166    (4th    Cir.    2006)    (citing

United States v. Mead Corp., 533 U.S. 218, 226-27 (2001)).                                  If

not,    then     the   interpretation           is    “beyond      the     Chevron    pale.”

Mead, 533 U.S. at 234.

       Because the decision in this case was issued by a single

BIA member, it does not constitute a precedential opinion, as a

precedential opinion may only be issued by a three-member panel.

See 8 C.F.R. § 1003.1(g) (“By majority vote of the permanent

Board members, selected decisions of the Board rendered by a

three-member panel or by the Board en banc may be designated to

serve as precedents in all proceedings involving the same issue

or     issues”     (emphasis      added));           see    also    id.    § 1003.1(e)(6)

(“Cases may only be assigned for review by a three-member panel

if the case presents one of these circumstances . . . (ii) the

                                               12
need    to    establish          precedent      construing           the   meaning        of   laws,

regulations,         or        procedures     . . .”).           When      issuing    a    single-

member, nonprecedential opinion, the BIA is not exercising its

authority to make a rule carrying the force of law, and thus the

opinion is not entitled to Chevron deference.                               Accord Arobelidze

v. Holder, 653 F.3d 513, 520 (7th Cir. 2011); Carpio v. Holder,

592 F.3d 1091, 1097 (10th Cir. 2010); Quinchia v. U.S. Att’y

Gen., 552 F.3d 1255, 1258 (11th Cir. 2008); Rotimi v. Gonzales,

473 F.3d 55, 57 (2d Cir. 2007); Garcia–Quintero v. Gonzales, 455

F.3d 1006, 1012 (9th Cir. 2006); see also De Leon-Ochoa v. Att’y

Gen., 622 F.3d 341, 350 (3d Cir. 2010) (agreeing with the Ninth

Circuit       that       precedential         value       is    the     key   determinant         in

whether       an     agency       decision      is    accorded          Chevron      deference).

Therefore, the BIA’s interpretation of § 1231(b)(3) in the case

before us is not entitled to Chevron deference.

       That    is        not    to    say    that    we    will      not    accord    the      BIA’s

opinion      any     consideration.             Even      in     the    absence      of    Chevron

deference, we have concluded that we can rely on the agency’s

opinions      as     a    “body       of    experience         and   informed     judgment”       to

which we may “properly resort for guidance.”                                A.T. Massey Coal,

472 F.3d at 168 (quoting Skidmore v. Swift & Co., 323 U.S. 134,

140 (1944)).             But even that modest deference depends upon “the

thoroughness evident in [the BIA’s] consideration, the validity

of     its    reasoning,             its    consistency         with    earlier      and       later

                                                 13
pronouncements, and all those factors which give it power to

persuade.”       Id. (quoting Skidmore, 323 U.S. at 140).


                                       III

       While Martinez agrees that his circumstances subject him to

an order of removal, he claims that the BIA erred in denying him

relief under § 1231(b)(3)(A), which provides in relevant part

that the Attorney General may not remove an alien, even though

otherwise removable, “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.”

8 U.S.C. § 1231(b)(3)(A) (emphasis added); see also Camara, 378

F.3d at 367. 2        The statute does not define “particular social

group,” and there is little legislative history on the matter.

See Fatin v. INS, 12 F.3d 1233, 1239 (3d Cir. 1993).                   The BIA

has,       however,   defined   “particular    social   group”   as    a   group

meeting       three   criteria:       “(1)    its    members   share   common,

       2
       This exception to removal is limited, however, and the
alien may nonetheless be removed if (1) he engaged in
persecution on account of an individual’s “race, religion,
nationality, membership in a particular social group, or
political opinion”; (2) he has been convicted of a “particularly
serious crime” in the United States and is a “danger to the
community”; (3) “there are serious reasons to believe [he]
committed a serious nonpolitical crime outside the United
States”; or (4) “there are reasonable grounds to believe that
[he] is a danger to the security of the United States.”        8
U.S.C. § 1231(b)(3)(B).


                                       14
immutable characteristics, (2) the common characteristics give

its members social visibility, and (3) the group is defined with

sufficient particularity to delimit its membership.”                               Lizama v.

Holder,    629    F.3d       440,    447      (4th       Cir.   2011)    (emphasis      added).

While we have endorsed both the immutability and particularity

criteria, see id. (affirming under both of these criteria), we

have     explicitly       declined            to    determine       whether      the    social

visibility criterion is a reasonable interpretation of the INA,

see Zelaya v. Holder, 668 F.3d 159, 165 n.4 (4th Cir. 2012).

       To meet the “immutability” criterion -- the only one at

issue in this petition for review -- members of a particular

social    group       must    share       a    characteristic           that    they    “either

cannot change, or should not be required to change because it is

fundamental       to    their       individual            identities     or     consciences.”

Zelaya, 668 F.3d at 165 (quoting In re Acosta, 19 I. & N. Dec.

211, 233 (B.I.A. 1985), overruled in part on other grounds by In

re Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987)) (internal

quotation    mark       omitted).             The   BIA     has   explained      that   “[t]he

shared characteristic might be an innate one such as sex, color,

or kinship ties, or in some circumstances it might be a shared

past   experience        such       as    former         military    leadership        or   land

ownership.”       Acosta, 19 I. & N. Dec. at 233 (emphasis added).

       Martinez        contends      that          his    proposed      group    of     “former

members    of     a    gang     in       El    Salvador”        meets    the    immutability

                                                   15
requirement because he cannot change his status as a former gang

member except by rejoining MS-13, which he claims would violate

fundamental precepts of his conscience.

       Neither     the       BIA     nor   the       government       seriously    contests

Martinez’s argument that he cannot change his status as a former

gang member.       Rather, the BIA held that Martinez failed to show

that   he   was    “a       member    of   a     group   with     a    common,    immutable

characteristic          where      that     characteristic            results     from   the

voluntary association with a criminal gang.”                           (Emphasis added).

And the government amplifies this position, asserting that “past

‘antisocial’ behavior is not an attribute or shared experience

that warrants protection under this country’s refugee laws.”

       At the outset, we agree that Martinez’s membership in a

group that constitutes former MS-13 members is immutable.                                See

Acosta,     19    I.    &    N.    Dec.    at     233    (listing       “former    military

leadership” as a prototypical particular social group); Gatimi

v. Holder, 578 F.3d 611, 615 (7th Cir. 2009) (former member of a

violent political group); Lukwago v. Ashcroft, 329 F.3d 157, 178

(3d Cir. 2003) (former child soldier).                       Martinez has presented

extensive evidence that violence and criminality pervade MS-13,

and we conclude, as has the Seventh Circuit, that it would be

“perverse” to interpret the INA to force individuals to rejoin

such gangs to avoid persecution.                      See Ramos v. Holder, 589 F.3d

426, 430 (7th Cir. 2009); see also Urbina-Mejia v. Holder, 597

                                                16
F.3d       360,   366   (6th     Cir.   2010)    (holding        that    former     gang

membership is an immutable characteristic). 3

       The    government       argues   that    the       INA   disqualifies      groups

whose       members     had     formerly   participated          in   antisocial     or

criminal conduct.             Attaching this condition to qualification as

a “particular social group,” however, is untenable as a matter

of statutory interpretation and logic.

       First,      nothing      in   the   statute         suggests     that   persons

categorically         cannot    be   members    of    a    cognizable     “particular


       3
       While the First Circuit has recently held that former gang
members are not a cognizable particular social group under
§ 1231(b)(3), see Cantarero v. Holder, 734 F.3d 82, 85-87 (1st
Cir. 2013), we do not find its reasoning persuasive here.
First, Cantarero is distinguishable from the present case
inasmuch as the court there applied Chevron deference to the
BIA’s decision and thus only determined that the BIA’s
interpretation   of    the   INA   was   not   “unreasonable   or
impermissible.” Id. at 85-86. Second, as we explain below, we
are not persuaded by Cantarero’s proposition that “Congress did
not mean to grant asylum to those whose association with a
criminal syndicate has caused them to run into danger.” Id. at
86. Congress was explicit in outlining the transgressions that
could   disqualify   an   alien  from   withholding  of   removal
protection, see § 1231(b)(3)(B), and “associat[ing] with a
criminal syndicate” is not on that list. Third, we are dubious
of the Cantarero court’s dire prediction that our holding today
will “offer an incentive for aliens to join gangs here as a path
to legal status.” 734 F.3d at 86. For this trick to work, the
alien would need to join a criminal gang, abandon it, and then
persuade the IJ that his “life . . . would be threatened” as a
result should he be removed.     8 U.S.C. § 1231(b)(3)(A).    The
facts of the present case illustrate the horrors gang members
face when they turn their backs on their comrades.       We doubt
that many aliens would risk their lives in this manner, and we
are confident in the ability of immigration judges to ferret out
charlatans who feign such danger.


                                           17
social      group”    because       they   have       previously        participated        in

antisocial or criminal conduct.                  Rather, Congress has identified

only    a   subset    of     antisocial     conduct      that       would    bar   eligible

aliens      from    withholding      of    removal,      defined        by   the    alien’s

engaging in past persecution, committing a particularly serious

crime, or presenting a danger to the security of the United

States.       See 8 U.S.C. § 1231(b)(3)(B).                  But Congress “has said

nothing about barring former gang members.”                         See Ramos, 589 F.3d

at 430.

       Moreover,       in     arguing      for     its      interpretation          that     a

particular social group may not include members who engaged in

past antisocial or criminal conduct, the government focuses on

the former status of membership in a gang, failing to recognize

a distinct current status of membership in a group defined by

gang apostasy         and    opposition     to    violence.           For    support,      the

government relies heavily on the decision in Arteaga v. Mukasey,

511    F.3d   940    (9th    Cir.    2007),      as   did    the      BIA.     That      case,

however, is materially distinguishable inasmuch as it affirmed

the BIA’s denial of withholding of removal from an alien who was

“still a gang member,” albeit no longer “active.”                             Id. at 945.

The court noted that gang membership should not be protected if

the    alien’s      shared    past    experience       as    a      member   of    the   gang

“includes violent criminal activity.”                    Id.     The court continued,

“We    cannot        conclude       that   Congress,           in     offering      refugee

                                            18
protection for individuals facing potential persecution through

social group status, intended to include violent street gangs

who assault people and who traffic in drugs and commit theft.”

Id. at 945-46.

      We agree that current gang membership does not qualify as

an   immutable      characteristic      of    a   particular        social     group    to

support withholding of removal under § 1231(b)(3).                            It is not

the case that current gang members “cannot change” their status

as gang members, as they can leave the gang.                       Acosta, 19 I. & N.

Dec. at 233.        Nor do we think that they “should not be required

to   change    because       [gang   membership]       is    fundamental       to   their

individual identities or consciences.”                      Id.     To so hold would

“pervert      the    manifest    humanitarian      purpose         of   the    statute.”

Arteaga, 511 F.3d at 946.

      But Martinez is not a current gang member.                          Rather, the

social group he has identified is defined by rejection of gang

membership and its attendant violence.                       Martinez asserts that

his repudiation of gang membership, along with its violence and

criminality,        is   a   critical   aspect    of    his       conscience    that   he

should not be forced to change.              We agree.

      The     BIA     alternatively,      albeit       briefly,         justified      its

rejection of Martinez’s claim for withholding of removal on the

ground that the threats to his life were only an aspect of

internal gang discipline, citing In re McMullen, 19 I. & N. Dec.

                                         19
90 (B.I.A. 1984).                 McMullen was a member of the Provisional

Irish Republican Army (“PIRA”), and, while a member, he refused

to carry out a kidnapping job because he feared that the job

would not        be   successful.               Id.      at   94.        He     claimed        that       his

refusal to participate in the operation constituted a political

opinion for which the PIRA would persecute him if he returned to

Ireland.      Id.       The BIA found that McMullen’s refusal to commit

the kidnapping for fear of being caught “does not constitute [a]

political opinion.”               Id. at 95.             And it noted that the “internal

use   of    violence        by    the      PIRA      does     not       constitute        persecution

. . . .          Having      elected          to     participate           in      the    PIRA,          with

knowledge of its internal disciplinary policies, [McMullen] is

not now in a position to complain.”                           Id.

      The    BIA’s      reliance           on   In       re   McMullen        in      this     case       was

misplaced in that McMullen was still a member of the PIRA, and

his   fears      arose      from       a    disagreement            over        the      wisdom         of   a

particular criminal endeavor.                        In rejecting his claim, the BIA

emphasized       that     McMullen          had      assumed        this      danger          as    a    risk

inherent in membership when he joined the PIRA.                                          Martinez, on

the other hand, withdrew from the MS-13 gang; he rejected the

organization,         its    violence,             and    its      purposes.             He    is       being

targeted     because        of     his      membership             in   the     group         of    former

members     of    MS-13,         and    the     danger        he    faces       is    based         on    his

rejection of gang membership.                         See In re C-A, 23 I. & N. Dec.

                                                    20
951, 958-59 (B.I.A. 2006) (distinguishing between threats that

inhere as a part of one’s profession and persecution as a result

of being a former member of that profession).

      Accordingly, we conclude that the BIA erred as a matter of

law   in   its    interpretation          of    the    phrase       “particular    social

group”     by    holding      that   former          gang    membership      is   not     an

immutable       characteristic       of    a        particular      social    group      for

purposes of § 1231(b)(3).

      Because we only reach the “immutability” criterion and do

not address       any    other   criteria           that    might   be   applicable,      we

remand       Martinez’s        withholding            of     removal      claim       under

§ 1231(b)(3)(A)         for   further      proceedings         consistent     with      this

opinion. 4


      4
        While the “particularity” criterion remains an open
question for resolution on remand, we note that the Seventh
Circuit in Ramos, 589 F.3d at 431, did distinguish the
particularity of the class of inactive gang members at issue in
Arteaga from the class of former gang members that it was
considering.    We also note that we have yet to affirm the
“social visibility” criterion. See Zelaya, 668 F.3d at 169 n.4.
Assuming without deciding that it is valid, however, we note
that the BIA did not consider that issue at all and the IJ
failed to provide a sufficient explanation for why the group of
former gang members is insufficiently socially visible for
§ 1231(b)(3) purposes.   See SEC v. Chenery Corp., 318 U.S. 80,
94 (1943) (“[T]he process of review requires that the grounds
upon which the administrative agency acted be clearly disclosed
and adequately sustained”). The only relevant case cited by the
IJ, In re S-E-G-, 24 I. & N. Dec. 579, 582 (B.I.A. 2008),
concerned   non-gang  members  who  resisted   gang  recruitment
efforts.   In the present case, there was evidence that MS-13
held meetings in which the leadership listed individuals who had


                                               21
                                      IV

       Martinez    also    contends   that    he   was   erroneously   denied

protection under the CAT because, if he were returned to El

Salvador, “the Salvadoran police [would] likely acquiesce in or

turn a willfully blind eye to the threat that [he would] be

tortured.”        He argues that the BIA ignored relevant evidence

that    supports     his    application      for   CAT   protection    --   in

particular, the evidence that “the police do not take seriously

what they perceive as gang-on-gang violence” and the evidence

that he “feared reporting the [gang] attacks to police.”

       “To warrant CAT protection, an alien must prove, first,

that it is more likely than not that he will be tortured if

removed to the proposed country of removal and, second, that

this torture will occur at the hands of government or with the

consent or acquiescence of government.”             Turkson v. Holder, 667

F.3d 523, 526 (4th Cir. 2012) (emphasis added) (citing 8 C.F.R.

§ 1208.16(c)(2)).          “Acquiescence of a public official requires

that the public official, prior to the activity constituting

torture, have awareness of such activity and thereafter breach




the “green light” for leaving the gang.      On remand, the BIA
should, if it applies this criterion, explain why such evidence
does not distinguish the present case from the facts of In re S-
E-G-.


                                      22
his or her legal responsibility to intervene to prevent such

activity.” 8 C.F.R. § 1208.18(a)(7).

       In this case, the IJ concluded that Martinez had not made

the    necessary   showing,     finding       that   because   Martinez   “never

reported the shooting or other threats to his life to the police

in    El   Salvador”    and    because    “country     condition    information

reflects that government officials in El Salvador are taking

some steps to address the difficult problem of gang violence

there,” he failed to show that the Salvadoran government would

acquiesce in his future torture.               The BIA affirmed on similar

grounds,     holding    that    “respondent      cannot     complain   that   the

Government did not prosecute his attackers because he never made

a report” and noting that the “Government of El Salvador has

made    attempts   to    reduce    or    control     gang    activity,”   citing

several reports about country conditions in El Salvador.

       We presume that, in reaching these conclusions, the IJ and

the BIA reviewed the evidence presented to them and made their

decisions based on the relevant evidence.                   See Larita-Martinez

v. INS, 220 F.3d 1092, 1095-96 (9th Cir. 2000) (“[A]n alien

attempting to establish that the Board violated his right to due

process by failing to consider relevant evidence must overcome

the presumption that it did review the evidence”); Man v. INS,

69 F.3d 835, 838 (7th Cir. 1995) (“[A]bsent evidence to the



                                         23
contrary, we assume that the BIA reviewed the specific findings

of the immigration judge in light of the record”).

     Martinez’s     claim    that    the   BIA   ignored   “the      extensive

country     conditions    evidence    in   the   record”   is   simply      not

supported    by   the    record.     In    the   first   instance,    the    IJ

recognized that “[Martinez] th[ought] that government officials

in El Salvador would look at him as if he still belonged to the

gang.”    She also made note of the “prevalence of gang violence

in El Salvador” and that “country condition information reflects

that government officials in El Salvador are taking some steps

to address the difficult problem of gang violence there.”                   The

BIA similarly noted that El Salvador has attempted to control

gang violence, even citing the very reports that Martinez now

claims the BIA ignored.       It is apparent that the IJ and the BIA

reviewed the relevant evidence before them.                Accordingly, we

affirm the BIA’s decision to deny relief under the CAT.


                                             PETITION FOR REVIEW GRANTED
                                             IN PART AND DENIED IN PART;
                                   CASE REMANDED FOR FURTHER PROCEEDINGS




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