Not for Publication in West's Federal Reporter


              United States Court of Appeals
                        For the First Circuit

No. 07-1638

                          ONAN FLORES-COREAS,

                                Petitioner,

                                      v.

               MICHAEL B. MUKASEY, ATTORNEY GENERAL,

                                Respondent.


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


                                   Before

                        Lipez, Circuit Judge,
              Selya and Siler,* Senior Circuit Judges.



     José A. Espinosa on brief for petitioner.
     Peter D. Keisler, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Greg D. Mack, Senior Litigation Counsel, Office of
Immigration Litigation, on brief for respondent.



                            February 1, 2008




_______________
*Of the Sixth Circuit, sitting by designation.
            Per Curiam.     In this immigration case, petitioner Onan

Flores-Coreas, a citizen of El Salvador, seeks judicial review of

a final decree of the Board of Immigration Appeals (BIA) dated

April 3, 2007.      That decree affirmed a decision of an immigration

judge   (IJ)    declaring    the   petitioner    ineligible    for    asylum,

withholding of removal, and/or protection under the United Nations

Convention Against Torture (CAT).          For the reasons that follow, we

deny the petition.

            The relevant facts are straightforward.         The petitioner,

now in his late twenties, was born in El Salvador.            After spending

much of his childhood there, he lived for a period of time in the

United States.      He then repaired to El Salvador.          The events at

issue in this proceeding transpired after he had returned to his

homeland.

            The IJ credited the petitioner's testimony, so we start

there. The petitioner testified to a number of negative encounters

with gang members in El Salvador from and after 1999.                    These

encounters included a robbery and a concomitant assault, at least

one attempt to recruit him as a gang member, efforts to extort

money, and a variety of threats.        The petitioner attributed these

maraudings     to   his   active   membership   in   a   liberal     apostolic

Christian church (El Salvador is a largely Catholic country) and to

his refusal to join a gang.         He also admitted, however, that (i)

the gangs aspired to recruit individuals who, like himself, owned


                                     -2-
automobiles, and (ii) the gangs also aspired to recruit individuals

who, like himself, had lived in the continental United States

(assuming that such individuals had money).

            The adverse experiences chronicled by the petitioner

spanned a three-year period from 1999 to the end of 2001.                After

that, he hid in his house but still could not escape the gangs'

unrequited attention.

            The dénouement occurred in 2003.          On one occasion during

that year, gang members came to the petitioner's home after a

drinking spree and waited for him to emerge.           They left when others

told them (falsely) that the petitioner was not there.

            A month later, the petitioner fled.               He entered the

United States, without inspection, at or near Columbus, New Mexico,

around November 7, 2003.         He was immediately detained, and the

Department of Homeland Security initiated removal proceedings.                In

due course, the petitioner conceded removability and cross-applied

for asylum, withholding of removal, and protection under the CAT.

            Following an evidentiary hearing, the IJ concluded that

the petitioner's testimony was credible but that he had failed to

establish    that   he   was   targeted    by   the   gangs   because   of   his

religious or political beliefs.             In the IJ's view, the gangs

appeared to be harassing the petitioner because of his perceived

affluence.    Thus, the petitioner had not carried the burden of

demonstrating a nexus between the claimed persecution (the gangs'


                                     -3-
offensive    conduct)      and    a    characteristic    protected      under   the

Immigration and Nationality Act.

            The    IJ   also     found    that     although   gang    members   had

addressed some threats to the petitioner concerning his refusal to

join their ranks, these threats were neither "of an escalating

nature" nor "severe."       As to the fact that the petitioner had been

physically assaulted on one occasion, the IJ noted that the assault

transpired "in connection with being robbed."                 In sum, the series

of incidents that had occurred did not add up to persecution.

            Based on these and other findings, the IJ denied all

three forms of requested relief.            On appeal, the BIA affirmed the

IJ's decision, stating that the petitioner had "failed to establish

that the gangs in El Salvador, who attempted to rob him and extort

money from him, were motivated by his political opinion, imputed

political opinion, religion, or another protected ground, rather

than by financial gain."          In addition, the BIA observed that the

petitioner had not established that the gangs were working with the

government    or    that    the       government    lacked    power   over   them.

Consequently, the petitioner's generalized fear that he would fall

prey to gang violence should he be returned to El Salvador did not

render him eligible either for protection under the CAT or for any

other relief.

            Once the BIA ruled that the petitioner had failed to

satisfy the requirements for asylum, withholding of removal, or


                                          -4-
protection under the CAT, the petitioner filed this petition for

judicial    review.        The   petition    is    timely,    see    8   U.S.C.   §

1252(b)(1), and we have jurisdiction to entertain it under 8 U.S.C.

§ 1252, as amended.

            We    begin    our   substantive      analysis   by     examining the

petitioner's      asylum   claim.     To    qualify   for    asylum,     an   alien

initially must establish his status as a refugee, that is, a person

who is unable or unwilling to return to his homeland "because of

persecution . . . on account of race, religion, nationality,

membership in a particular social group, or political opinion."                   8

U.S.C. § 1101(a)(42)(A); see INS v. Cardoza-Fonseca, 

,

428 (1987); Jiang v. Gonzales, 

, 30 (1st Cir. 2007).

"Persecution is a protean term, not defined by statute."                  Lopez de

Hincapie v. Gonzales, 

, 217 (1st Cir. 2007).                       "One

element in the decisional calculus involves the degree of the harm

inflicted    or    threatened."       

   to   the    level    of

persecution, "the sum of an alien's experiences must add up to more

than ordinary harassment, mistreatment, or suffering."                   Id.; see

Bocova v. Gonzales, 

, 263 (1st Cir. 2005).

            Given a sufficient showing of harm, an alien can base an

asylum claim on a showing that he has been persecuted in the past

or, alternatively, that he harbors a well-founded fear of future

persecution.      See Makhoul v. Ashcroft, 

, 79 (1st Cir.

2004).   In either event, however, he must show a nexus between the


                                      -5-
harm (whether past or threatened) and one of the five statutorily

protected grounds. See, e.g., Raza v. Gonzales, 

, 128-

29 (1st Cir. 2007); 

.    To accomplish this

feat, the petitioner must "provide sufficient evidence to forge an

actual connection between the harm and some statutorily protected

ground."   Lopez de 

; see Da Silva v.

Ashcroft 

, 6 (1st Cir. 2005); see also 8 C.F.R. §

208.13(b)(1).

           The question of whether persecution is on account of one

of the five statutorily protected grounds is factbound.   Hence, we

review the BIA's answer to that question through the prism of the

substantial evidence rule. See Lopez de 

.

"This is a highly deferential standard, under which we must uphold

the BIA's determination as long as that determination is 'supported

by reasonable, substantial, and probative evidence on the record

considered as a whole.'"   

v. Elias-Zacarias, 

, 481 (1992)).     "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."    

n.1)(emphasis in original); see 8 U.S.C.

§ 1252(b)(4)(B) (mandating that, in this context, "administrative

findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary").


                                -6-
          Here, the petitioner tries to connect the gangs' unruly

conduct to his religious persuasion (membership in an apostolic

Christian church) or, alternatively, to his political opinion

(imputed from his refusal to join a gang).          But he weaves these

connections out of the gossamer strands of speculation and surmise.

In support, he offers only his personal (subjective) conviction and

weak circumstantial evidence that either or both of these reasons

spurred the gangs' actions. Hard evidence of the required nexus is

conspicuously absent.

          We add, moreover, that what evidence exists in the record

invites the inference that the gangs targeted the petitioner

because of greed, not religion or politics.          That inference is

reinforced by its plausibility: gangs typically are composed of

common criminals who are apt to resort to force to accomplish their

nefarious ends.    See Romilus v. Ashcroft, 

, 6-7 (1st Cir.

2004).   Even reading the record with a charitable eye, the gangs'

actions (as the petitioner describes them) could just as easily

have been prompted by a desire to extort money as by any motive

connected to a statutorily protected ground. That state of affairs

leaves   us   no   principled   choice   but   to    uphold   the   BIA's

determination.1    After all, where the record admits of plausible



     1
      Because this ground suffices to sustain the denial of the
claim for asylum, we need not consider the BIA's alternative
holding that the conduct complained of, though harassing, did not
sink to the level of persecution.

                                  -7-
but conflicting inferences, the agency's choice between those

inferences is necessarily supported by substantial evidence.                          See

; Aguilar-Solis v. INS, 

, 571

(1st Cir. 1999).

            Let us be perfectly clear.              We are not without empathy

for the petitioner's plight.             Gang violence apparently is endemic

in El Salvador, and the events described by the petitioner paint an

unattractive picture.           But the substantial evidence rule demands

that we uphold the agency's determination unless the evidence

"points   unerringly       in     the    opposite     direction."           Laurent    v.

Ashcroft, 

, 64 (1st Cir. 2004).                     The evidence here does

not   approach    that    level     of    certitude       in    connection     with   the

putative relationship between the gangs' menacing actions and the

petitioner's religious and/or political beliefs.

            We need not linger long over the petitioner's claim for

withholding      of    removal.         Although    the    tests      for   asylum    and

withholding      of    removal    differ    somewhat,          the   "on    account   of"

requirement is embedded identically in each formulation.                        See INS

v.    Stevic,    

,    429-30    (1984).           Accordingly,     the

petitioner's failure to establish a nexus between the conduct

complained of and some statutorily protected ground serves equally

to defeat his withholding of removal claim.                      See, e.g., Lopez de

.




                                          -8-
          This leaves the petitioner's CAT claim. Unlike his other

two claims, this claim does not embody an "on account of" element.

An alien can prevail on a CAT claim simply by showing that, more

likely than not, he will be tortured if repatriated.             See 8 C.F.R.

§ 208.16(c)(2); see also Ang v. Gonzales, 

, 58 (1st Cir.

2005). He need not establish a nexus between the predicted torture

and some statutorily protected ground.

          We   review   the   BIA's    disposition   of    a   CAT   claim   by

application of the substantial evidence rule.              See Settenda v.

Ashcroft, 

, 93 (1st Cir. 2004).      Thus, we must honor the

BIA's resolution of the petitioner's CAT claim unless the evidence

compels us to reach a different conclusion.          

cannot surmount this hurdle.

          In order to qualify for protection under the CAT, an

alien must demonstrate that it is more likely than not that he will

be tortured if returned to his country of origin.                 8 C.F.R. §

1208.16(c)(2).   For purposes of the CAT, "[t]orture is defined as

any act by which severe pain or suffering, whether physical or

mental, is intentionally inflicted on a person . . . by or at the

. . . acquiescence of a public official or other person acting in

an official capacity."    

       Passing the question

of whether the actions of which the petitioner complains can be




                                      -9-
equated with torture,2 there is nothing in the record that compels

the conclusion that the petitioner, if remitted to his homeland, is

likely   to    be   tortured     either     by       the   government     or     through

governmental acquiescence.         We explain briefly.

              In this instance, the petitioner avers that he would be

harmed (i.e., tortured) by gangs upon his return to El Salvador.

While he acknowledges that the gangs are not officially sanctioned,

he asserts that the government is unable to control them.

              Admittedly,    the   record       is    tenebrous      on   this   point.

Nevertheless, the BIA concluded, inter alia, that the petitioner

had failed to establish that the El Salvadoran government would

acquiesce in the gangs' infliction of harm upon private citizens.

The very murkiness of the record means that we are not compelled to

decide otherwise, and it therefore makes the BIA's conclusion

invulnerable.

              At   any   rate,   there    is     evidence     that    gang     violence

constitutes a serious problem in El Salvador, but that the police

attempt with some success to prevent that activity.3                       While that


     2
      Torture is "an extreme form of cruel and inhuman treatment
and does not include lesser forms of cruel, inhuman or degrading
treatment . . . ."      8 C.F.R. § 208.18(a)(2). The government
asseverates that no conduct extreme enough to constitute "torture"
was in prospect here.    Given our ratio decidendi, we need not
address this argument.
     3
      Indeed, this evidence is buttressed by the petitioner's
affidavit, in which he states that it was the intercession of a
guard that stopped gang members from harassing him in the December
2001 incident of which he complains.

                                         -10-
sort of stand-off may be of scant solace to the citizenry, it

plainly supports an inference that the government neither condones

gang violence nor is helpless in the face of it.4

                The short of it is that the petitioner has not adduced

any compelling evidence that the putative torturers are state

actors or, alternatively, that the authorities would be in some way

complicit (or at least acquiescent) in the infliction of harm.

This       is   dispositive   because   the    infliction   of   harm   does   not

constitute torture within the meaning of the CAT unless that harm

is inflicted by, at the direction of, or with the acquiescence of

government officials.          See 8 C.F.R. § 208.18(a)(1); Sharari v.

Gonzales, 

, 475-76 (1st Cir. 2005).              Given this gap in

the proof, the agency's denial of the petitioner's claim for

protection under the CAT must stand.

                We need go no further. For the reasons elucidated above,

we uphold the BIA's rejection of the petitioner's claims.



The petition for review is denied.




       4
      To be sure, the petitioner did submit some "country
conditions" evidence suggesting that the El Salvadoran government
has not been fully able to bring gang violence to heel. But the
petitioner has fallen short of providing compelling evidence to
support the conclusion that gang violence is either out of control
or conducted with the government's tacit consent.

                                        -11-