Maria Alvarenga v. Todd Blanche
CourtCourt of Appeals for the Eighth Circuit
Date FiledOctober 8, 2026
Docket25-2780
StatusPublished
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Full Opinion
United States Court of Appeals
For the Eighth Circuit
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No. 25-2780
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Maria Lily Alvarenga; E.D.B.A.
Petitioners
v.
Todd Blanche, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: June 10, 2026
Filed: October 8, 2026
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Before COLLOTON, Chief Judge, ERICKSON and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Maria Lily Alvarenga and her son, E.D.B.A., petition for review of the Board
of Immigration Appeals’ (BIA) order affirming an immigration judge’s (IJ) decision
ordering them removed to Honduras and denying their claims for asylum, statutory
withholding of removal, and protection under the Convention Against Torture
(CAT). We deny the petition.
I. Background
Alvarenga1 and E.D.B.A. are Honduran nationals who unlawfully entered the
United States in April 2019. After Border Patrol officers encountered Alvarenga,
the Department of Homeland Security placed her into removal proceedings for being
present without admission or parole. Removal proceedings are divided into two
phases: the first determines an alien’s removability; the second determines whether
an alien qualifies for relief from removal. At the first hearing, the IJ determined
Alvarenga was removable after Alvarenga admitted she was a citizen of Honduras
and lacked a visa or passport when she arrived at the United States border.
At the second hearing, Alvarenga sought relief by claiming asylum, statutory
withholding of removal, and protection under the CAT. Alvarenga argued she
merited relief based on gang-related persecution, claiming MS-13 repeatedly tried
to recruit E.D.B.A. E.D.B.A. refused the gang’s recruitment and MS-13 threatened
to kidnap him and “do something” to his mother. Alvarenga reported that she feared
MS-13 would torture and kill her in retaliation. MS-13 never physically harmed
Alvarenga nor acted on the kidnapping threats. But E.B.D.A. stopped going to
school to avoid interacting with the gang. Alvarenga never reported the gang’s
activity to law enforcement.
Because Alvarenga did not sufficiently prove the persecution was because of
a protected ground nor demonstrate government acquiescence in the face of torture,
the IJ denied Alvarenga’s claims for relief. Alvarenga appealed to the BIA,
challenging the IJ’s denial of relief from removal and claiming her due process rights
were violated because the IJ committed procedural errors. The BIA dismissed the
appeal, and Alvarenga now petitions this court for review.
1
Given the derivative nature of the relief sought by E.D.B.A., we refer only
to Alvarenga throughout this opinion.
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II. Discussion
In her petition for review, Alvarenga claims the BIA erred when it concluded
the IJ did not violate Alvarenga’s due process rights and affirmed the IJ’s decision
to deny Alvarenga’s application for relief under asylum, statutory withholding of
removal, and the CAT. We address each in turn.
A. Due Process
Alvarenga argues the IJ violated her due process rights when he committed
procedural errors “in numerous ways” during the course of her removal proceedings.
“We review procedural due process challenges de novo, ‘as the question of whether
an immigration hearing violates due process is a purely legal issue.’” Brizuela v.
Garland, 71 F.4th 1087, 1091 (8th Cir. 2023) (quoting Ramirez v. Sessions, 902 F.3d
764, 770 (8th Cir. 2018)).
The Fifth Amendment’s Due Process clause applies to aliens in removal
proceedings and “mandates that removal hearings be fundamentally fair.” Al Khouri
v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004). “However, it is axiomatic in this
Circuit that an alien’s due process claim must demonstrate both a fundamental
procedural error and prejudice.” Brizuela, 71 F.4th at 1091 (quoting Ramirez, 902
F.3d at 770). To show prejudice, a petitioner must demonstrate “the outcome of the
proceeding may well have been different had there not been any procedural
irregularities.” Mohamed v. Bondi, 137 F.4th 692, 695 (8th Cir. 2025); see also
Arroyo-Sosa v. Garland, 74 F.4th 533, 541 (8th Cir. 2023) (“Actual prejudice exists
where defects in the deportation proceedings may well have resulted in a deportation
that would not otherwise have occurred.”).
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Alvarenga was charged as an alien present “without being admitted or
paroled” and so bore the burden 2 to prove that she was “entitled to be admitted” or
otherwise “lawfully present in the United States pursuant to a prior admission.”
8 U.S.C. § 1229a(c)(2)(A)–(B). Alvarenga did not carry her burden and only alleges
that while she did not “have a visa and . . . passport to enter legally,” there are “many
situations” where a non-citizen lacks a passport or visa but is not deemed present
“without being admitted or paroled.” Even assuming, without deciding, that there
were fundamental procedural errors in the removal proceedings, Alvarenga has not
demonstrated prejudice, and so her due process claim fails. Put simply, Alvarenga
failed to show she may not have been ordered removed even if the IJ had conducted
procedurally perfect removal proceedings.
While it is true that possessing a visa is not the sole, exclusive means through
which an alien can be “admitted or paroled,” Alvarenga still has not demonstrated a
plausible basis that she was “entitled to be admitted” or otherwise “lawfully
present.” § 1229a(c)(2)(A)–(B); 8 C.F.R. § 1240.8(c); see also Brizuela, 71 F.4th at
1091 (denying due process claim where alien did not contest she was removable nor
explain how she might otherwise have obtained relief if procedural defects had not
occurred). Instead of detailing the evidence she might have offered if the IJ had
conducted a more thorough inquiry, Alvarenga argues the IJ’s alleged failure to ask
sufficient probing questions constitutes grounds for reversal and remand. We
disagree. See Deng Chol v. Garland, 25 F.4th 1063, 1072 (8th Cir. 2022) (“[T]here
is no prejudice if the petitioner fails to explain the evidence . . . she might have
offered if the IJ asked further questions.”); Durakovic v. Garland, 101 F.4th 989,
995 (8th Cir. 2024) (denying due process claim when petitioners could not show the
2
The government has the initial burden to “establish the alienage of the
respondent” who is “charged as being in the United States without being admitted
or paroled.” 8 C.F.R. § 1240.8(c). But here, Alvarenga conceded that she was a
citizen of Honduras and consequently bore the burden to prove she was lawfully
present. See Rodriguez-Quiroz v. Lynch, 835 F.3d 809, 818 (8th Cir. 2016) (noting
that after alien “admitted that he was a citizen of Mexico,” the “burden of proof
thereafter shifted to [the alien] to establish . . . that he was ‘lawfully present . . . .’”
(quoting 8 U.S.C. § 1229a(c)(2)(B))).
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outcome of removal proceedings would have been different). The mere “speculative
possibility” that Alvarenga would have produced evidence of her lawful
presence3 or admissibility had she been asked the right question, without more, “is
insufficient to establish actual prejudice . . . .” United States v. Leal-Monroy, 988
F.3d 1077, 1081 (8th Cir. 2021). Accordingly, Alvarenga’s due process claim fails.
B. Asylum and Withholding of Removal
Alvarenga argues the BIA erred by denying her claims for asylum and
withholding of removal. We review the BIA's legal determinations de novo and
apply the deferential substantial evidence standard when reviewing the BIA's factual
determinations. See Quijano-Duran v. Bondi, 172 F.4th 991, 994 (8th Cir. 2026); 8
U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.”).
To be eligible for asylum, Alvarenga must demonstrate she is unable or
unwilling to return to Honduras because of past persecution or a well-founded fear
of future persecution on account of her race, religion, nationality, political opinion,
or membership in a particular social group. 8 U.S.C. §§ 1101(a)(42),
1158(b)(1)(B)(i); Ferchichi v. Bondi, 128 F.4th 966, 973 (8th Cir. 2025). Alvarenga
claims she was part of the particular social group “Honduran citizens who refused
to comply with gang demands” and alternatively argues that she was persecuted on
behalf of her imputed political opinion stemming from her “perceived (imputed)
resistance to the narco-state and support of the current governmental structure.”
3
That Alvarenga had only a “speculative possibility” of producing evidence
that she was “admitted or paroled” is supported by her own Application for Asylum
and Withholding of Removal where Alvarenga indicated she lacked an “I-94
Number.” A Form I-94 is a document marked with an “I-94 Number” that indicates
one’s arrival into the United States through an official port of entry and is given to
aliens who are admitted or paroled by DHS. 8 C.F.R. §§ 1.4, 264.1.
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When a claim for asylum is based on one’s membership in a particular social
group, “the petitioner must establish that the group is (1) composed of members who
share a common immutable characteristic, (2) defined with particularity, and (3)
socially distinct within the society in question.” Ngugi v. Lynch, 826 F.3d 1132,
1138 (8th Cir. 2016). The petitioner must show the protected characteristic “was or
will be at least one central reason for persecuting the [petitioner].” 8 U.S.C.
§ 1158(b)(1)(B)(i); see also Ferchichi, 128 F.4th at 973.
Likewise, a petitioner is “eligible for withholding of removal if she shows a
clear probability that her life or freedom would be threatened on the basis of her
membership in a particular social group” or political opinion if she was removed to
her country of origin. Becerril-Sanchez v. Bondi, 127 F.4th 1099, 1110 (8th Cir.
2025) (cleaned up); see also 8 U.S.C. § 1231(b)(3)(A). “The clear probability
standard for withholding of removal is more onerous than the well-founded fear
standard for asylum.” Mayorga-Rosa v. Sessions, 888 F.3d 379, 382 (8th Cir. 2018)
(emphasis added) (quoting Malonga v. Mukasey, 546 F.3d 546, 551 (8th Cir. 2008)).
“Therefore, an alien who cannot meet the standard for asylum cannot meet the
standard for establishing withholding of removal.” Becerril-Sanchez, 127 F.4th at
1110 (quoting Guled v. Mukasey, 515 F.3d 872, 881 (8th Cir. 2008)).
The BIA found Alvarenga’s proposed social group of “Honduran citizens who
refused to comply with gang demands” was not sufficiently particular or recognized
within Honduran society. We agree. See Gaitan v. Holder, 671 F.3d 678, 682 (8th
Cir. 2012) (rejecting the social group of “young males from El Salvador who have
been subjected to recruitment by MS-13 and who have rejected or resisted
membership in the gang”); Mayorga-Rosa, 888 F.3d at 384–85 (finding particular
social groups defined by fear of gang violence lack particularity and immutability);
Constanza v. Holder, 647 F.3d 749, 754 (8th Cir. 2011) (holding the social group of
“‘persons resistant to gang violence’ [is] too diffuse to be recognized as a particular
social group”).
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Alvarenga’s claim for persecution based on imputed political opinion fares no
better. While Alvarenga argues her perceived, imputed “resistance to the narco-
state and support of the current governmental structure” qualifies as a basis for
asylum, precedent says otherwise — generalized political opposition against gang
activity is not enough. See INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992) (holding
neither “the mere existence of a generalized ‘political’ motive underlying the
[gang’s] forced recruitment” nor retaliation for petitioner’s “refusal to [join the gang
and] fight with them” is sufficient alone to prove petitioner was persecuted because
of petitioner’s political opinion); Marroquin-Ochoma v. Holder, 574 F.3d 574, 579
(8th Cir. 2009) (holding that opposition to gang violence and the “mere refusal to
join [MS-13], without more, does not compel a finding that the gang’s threats were
on account of an imputed political opinion”). Alvarenga’s asylum claim thus fails.
And because she can cannot meet the “well-founded fear standard for asylum,” she
therefore cannot meet the “more rigorous . . . standard for establishing withholding
of removal.” Becerril-Sanchez, 127 F.4th at 1110 (quoting Guled, 515 F.3d at 881).
C. CAT
Lastly, Alvarenga argues the BIA erred in denying her claim for relief under
the CAT. “We review the BIA’s determination of claims for . . . relief under the
CAT using the standard of substantial evidence . . . .” Che v. Mukasey, 532 F.3d
778, 781 (8th Cir. 2008). To qualify for relief under the CAT, a petitioner must
show it is more likely than not that he or she would be tortured if removed to the
proposed country of removal. Durakovic, 101 F.4th at 996; 8 C.F.R.
§ 1208.16(c)(2).
The petitioner must show that severe pain or suffering would be inflicted “by
or at the instigation of or with the consent or acquiescence of” a public official or
other person acting in an official capacity. § 1208.18(a)(1). “A government does
not acquiesce in the torture of its citizens merely because it is aware of torture but
powerless to stop it, but it does cross the line into acquiescence when it shows willful
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blindness toward the torture of citizens by third parties.” Hassan v. Rosen, 985 F.3d
587, 590 (8th Cir. 2021).
Because Alvarenga does not allege her predicted torture would be “by or at
the instigation of or with the consent of [government] officials, [s]he must show that
public officials will acquiesce in [her] torture.” Becerril-Sanchez, 127 F.4th at 1111
(quoting Garcia v. Holder, 746 F.3d 869, 873 (8th Cir. 2014)). “Acquiescence of a
public official requires that the public official, prior to the activity constituting
torture, have awareness of such activity and thereafter breach his or her legal
responsibility to intervene to prevent such activity.” Id. (quoting 8 C.F.R.
§ 208.18(a)(7)); see also Menjivar v. Gonzales, 416 F.3d 918, 923 (8th Cir. 2005)
(“‘Acquiescence’ at least requires prior awareness of the torture and a breach of a
legal responsibility to intervene.”).
Alvarenga never reported any of the gang’s activities or threats to the
Honduran police and so has not shown they were aware of the potential for torture.
Nor has she put forth substantial evidence that shows the government exhibits
“willful blindness toward the torture of citizens by third parties.” Juarez-Coronado
v. Barr, 919 F.3d 1085, 1089 (8th Cir. 2019) (quoting Mouawad v. Gonzales, 485
F.3d 405, 413 (8th Cir. 2007)). At most, Alvarenga has made generalized claims
that criminal organizations have infiltrated the Honduran police and judiciary. But
these are insufficient to show government acquiescence. Uriostegui-Teran v.
Garland, 72 F.4th 852, 857 (8th Cir. 2023) (finding substantial evidence supported
the BIA’s decision to deny CAT relief when petitioner only submitted “country-
conditions reports show[ing] that criminal organizations have infiltrated the
Mexican police and government” but did not explain how “general infiltration”
made acquiescence in petitioner’s torture more likely).
Alvarenga’s petition for CAT relief fails because substantial evidence
supports the BIA’s denial.
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III. Conclusion
We deny the petition.
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