USCA4 Appeal: 22-1499 Doc: 31 Filed: 06/23/2023 Pg: 1 of 17 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 22-1499 MARVIN A.G., Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: May 4, 2023 Decided: June 23, 2023 Before THACKER and HEYTENS, Circuit Judges, and KEENAN, Senior Circuit Judge. Petition for review granted in part and denied in part; vacated in part and remanded by published opinion. Senior Judge Keenan wrote the opinion, in which Judge Thacker and Judge Heytens joined. ARGUED: Eric Raul Suarez, SANABRIA & ASSOCIATES, Silver Spring, Maryland, for Petitioner. Robert Paul Coleman, III, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian M. Boynton, Principal Deputy Assistant Attorney General, Jennifer Levings, Assistant Director, Sarah A. Byrd, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. USCA4 Appeal: 22-1499 Doc: 31 Filed: 06/23/2023 Pg: 2 of 17 BARBARA MILANO KEENAN, Senior Circuit Judge: Marvin A.G. (the petitioner) seeks review of the Board of Immigration Appeals’ (Board) order denying his motion to reconsider the dismissal of his requests for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In its order denying reconsideration, the Board affirmed the Immigration Judge’s (IJ) finding that the petitioner, a Salvadoran national whose entire family had fled to the United States, had not established a nexus between his family membership and the threat of persecution as required for his asylum and withholding of removal claims. The Board also affirmed the IJ’s finding that the petitioner had not shown acquiescence by public officials as required for his CAT claim. Upon our review, we conclude that the Board abused its discretion by applying an incorrect legal standard in its nexus analysis for the petitioner’s asylum and withholding of removal claims. We also hold with regard to these two claims that the Board abused its discretion by arbitrarily disregarding the petitioner’s testimony about the threat of future persecution. However, we reject the petitioner’s argument that the Board abused its discretion with regard to his CAT claim. The Board provided specific reasons for finding the petitioner’s testimony insufficient to meet his burden of proof, and appropriately evaluated the evidence under the futility exception. We thus grant in part and deny in part the petition for review, vacate in part the Board’s order denying reconsideration, and remand for further proceedings consistent with this opinion. 2 USCA4 Appeal: 22-1499 Doc: 31 Filed: 06/23/2023 Pg: 3 of 17 I. A. The petitioner is a native and citizen of El Salvador. Years after he entered the United States without inspection in 2005, he was placed in removal proceedings under 8 U.S.C. § 1182(a)(6)(A)(i). The petitioner conceded removability, but applied for asylum under 8 U.S.C. § 1158 and withholding of removal under 8 U.S.C. § 1231(b)(3) based on his membership in a particular social group, namely, his family. He also sought protection under …
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