NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CARLOS ALBERTO ESCOBAR- No. 15-73678 ASCENCIO, Agency No. A089-846-488 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 7, 2022 Pasadena, California Before: BERZON and FRIEDLAND, Circuit Judges, and KORMAN,** District Judge. Carlos Alberto Escobar-Ascencio (“Escobar-Ascencio”), a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA’s”) dismissal of his appeal of the immigration judge’s (“IJ’s”) denial of his * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. application for withholding of removal and relief under the Convention Against Torture. We deny the petition in part and grant it in part. 1. Substantial evidence supports the BIA’s determination that Escobar- Ascencio does not qualify for withholding of removal because his proposed particular social group of “former gang members of the Mara 18 gang in El Salvador who have renounced their gang membership” is not cognizable. This Court rejected the same proposed group, in the same society, in Garay Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016). Escobar-Ascencio has not pointed to any record evidence compelling a different result here. Because substantial evidence supports the BIA’s determination that Escobar-Ascencio’s proposed particular social group is not cognizable, we do not reach the BIA’s alternative holding that Escobar-Ascencio has not shown that the government is unable or unwilling to control his persecutors. 2. The BIA’s determination that Escobar-Ascencio failed to establish his eligibility for relief under the Convention Against Torture was based on legal error and on an erroneously truncated consideration of the factual record. First, the IJ relied on the rationale that Largo was a “rogue” police officer and therefore that there was not sufficient evidence that the torture Escobar- Ascencio feared would be carried out with the acquiescence of the government of El Salvador. To the extent it is unclear whether the BIA incorporated the IJ’s 2 rationale, we accept the government’s representation that it did. This Court has repeatedly held that there is no “‘rogue official’ exception” to relief under the Convention Against Torture. Macedo Templos v. Wilkinson, 987 F.3d 877, 884 (9th Cir. 2021); Barajas-Romero v. Lynch, 846 F.3d 351, 362 (9th Cir. 2017). The requirement that the torture be “inflicted by or at the instigation of or with the consent or acquiescence of a public official,” 8 C.F.R. § 1208.18(a)(1) (2020), is met if a public official “is the perpetrator or knowingly acquiesces to the torture,” regardless whether the official was “acting in [his] official capacity” or “carrying out his official duties,” Macedo Templos, 987 F.3d at 884; see also Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. …
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