Kevin Omar Andrade-Menjivar v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN OMAR ANDRADE-MENJIVAR,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-361
Agency No.
A206-502-846
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 14, 2023**
Pasadena, California
Before: WARDLAW, CHRISTEN, and SUNG, Circuit Judges.
Kevin Andrade-Menjivar, a citizen of El Salvador, petitions for review of
the Board of Immigration Appeals’ (BIA) dismissal of his appeal from the
Immigration Judge’s (IJ) denial of his application for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
* This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 16 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The agency’s denial of Andrade-Menjivar’s applications for asylum and
withholding of removal is supported by substantial evidence. Andrade-Menjivar
seeks relief based on his membership in a proposed particular social group that
he describes as “Salvadorans with opposition to gang violence.” The record
does not demonstrate that this proposed particular social group is cognizable. A
particular social group is cognizable if it is “(1) composed of members who
share a common immutable characteristic, (2) defined with particularity, and (3)
socially distinct within the society in question.” Akosung v. Barr, 970 F.3d
1095, 1103 (9th Cir. 2020) (citation omitted). Andrade-Menjivar introduced
country reports that established that gang violence, intimidation, and
recruitment of children is prevalent in El Salvador. However, there is no
evidence in this record that “[Salvadoran] society recognizes those who, without
more, [oppose] gang violence as a distinct group.” Conde Quevedo v. Barr, 947
F.3d 1238, 1243 (9th Cir. 2020) (emphasis in original).
Substantial evidence also supports the agency’s denial of CAT protection.
“CAT protection cannot be granted unless an applicant shows a likelihood of
torture that ‘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.’” B.R. v. Garland, 26 F.4th 827, 844 (9th Cir.
2022) (quoting 8 C.F.R. § 208.18). The record does not compel the conclusion
that a public official would acquiesce to Andrade-Menjivar’s feared torture by
the gangs. Andrade-Menjivar points only to evidence of generalized violence in

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El Salvador and argues that the fact that “crime is rampant” evidences “the
government’s inability to protect its citizens[, which] is tantamount to
persecution by a government actor.” However, “[g]eneralized evidence of
violence in a country is itself insufficient to establish that anyone in the
government would acquiesce to a petitioner’s torture.” Id. at 845. Moreover,
“[a] government does not acquiesce in the torture of its citizens merely because
it is aware of torture but powerless to stop it.” Id. at 844 (quoting Garcia-Milian
v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014)).
PETITION DENIED.1
1 The temporary stay of removal remains in place until the mandate issues. The
motion for stay of removal is otherwise denied.

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