17-2187 Lucero-Franco v. Barr BIA Straus, IJ A206 781 501 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd day of September, two thousand nineteen.

PRESENT: REENA RAGGI, RICHARD C. WESLEY, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________

CARLOS OMAR LUCERO-FRANCO, Petitioner,

v. 17-2187 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Jon E. Jessen, Stamford, CT.

FOR RESPONDENT: Tracie N. Jones, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Carlos Omar Lucero-Franco, a native and

citizen of Guatemala, seeks review of a BIA decision affirming

an Immigration Judge’s (“IJ”) denial of his application for

withholding of removal and relief under the Convention

Against Torture (“CAT”). In re Carlos Omar Lucero-Franco,

No. A 206 781 501 (B.I.A. Jun. 26, 2017), aff’g No. A 206 781

501 (Immig. Ct. Hartford Apr. 21, 2016). We assume the

parties’ familiarity with the underlying facts and procedural

history in this case.

We consider the IJ’s decision as supplemented and

modified by the BIA. See Yan Chen v. Gonzales,

(2d Cir. 2005). We “review de novo the legal

determination of whether a group constitutes a ‘particular

social group’” under the Immigration and Nationality Act

(“INA”). Paloka v. Holder,

(2d Cir. 2014).

We review the denial of CAT relief under the substantial

evidence standard. See Yanqin Weng v. Holder,

(2d Cir. 2009). 2 I. Withholding of Removal

To be eligible for withholding of removal, Lucero-Franco

must show that his “life or freedom would be threatened in

[Guatemala] because of [his] race, religion, nationality,

membership in a particular social group, or political

opinion.”

(b)(3)(A); Matter of C-T-L-,

(B.I.A. 2010) (requiring above factors be

“one central reason” for persecution). Lucero-Franco claims

eligibility based on his membership in a “social group” that

he defines as the children of wealthy families extorted by

gangs. The agency correctly concluded that such a social

group is not cognizable under the INA because it lacks the

requisite immutability, particularity, and social

distinctiveness. See Matter of M-E-V-G-,

(B.I.A. 2014) (stating that cognizable social group

must be “(1) composed of members who share a common immutable

characteristic, (2) defined with particularity, and

(3) socially distinct within the society in question”).

This comports with our own precedent holding “that class

status does not establish a social group with sufficient

particularity.” Ucelo-Gomez v. Mukasey,

(2d

Cir. 2007). Petitioner does not dispute that wealth or

3 affluence, by itself, is too “subjective, inchoate, and

variable to provide the sole basis for membership in a

particular social group.” In re A-M-E- & J-G-U-,

(B.I.A. 2007). Nevertheless, he maintains that

his proposed group clears these hurdles by limiting itself to

the children of the wealthy. We are not persuaded because

wealth, and not minority status, remains the defining

characteristic of the group.

Nor can Lucero-Franco use the alleged harm—extortion—to

urge recognition of his proposed social group. A “‘particular

social group’ cannot be defined exclusively by the claimed

persecution”; rather, “it must be ‘recognizable’ as a

discrete group by others in the society, [with] well-defined

boundaries.” In re M-E-V-G-,

; see also

Ucelo-Gomez v. Mukasey,

(“[A]lthough the

existence of persecution is a relevant factor, a social group

cannot be defined exclusively by the fact that its members

have been subjected to harm.” (internal quotation marks and

emphasis omitted)).

As Lucero-Franco concedes, gang extortion is common in

Guatemala and is not limited to children of wealthy families.

See Ucelo-Gomez v. Mukasey,

(“When the harm

4 visited upon members of a group is attributable to the

incentives presented to ordinary criminals rather than to

persecution, the scales are tipped away from considering

those people a ‘particular social group.’”). Thus, the agency

did not err in also finding that Lucero-Franco failed to

demonstrate that he was harmed because he was a member of his

proposed social group.

The agency therefore did not err in denying withholding

of removal. See

(b)(3)(A).

II. Convention Against Torture

To receive protection under the CAT, Lucero-Franco must

“establish that it is more likely than not that he . . . would

be tortured if removed to the proposed country of removal.”

(c)(2). Unlike withholding of removal, CAT

relief does not require a nexus to a protected ground. See

Torture is “severe pain or suffering” inflicted “at the

instigation of or with the consent or acquiescence of a public

official,”

§ 1208.18(a)(1), which requires “that

government officials know of or remain willfully blind to an

act and thereafter breach their legal responsibility to

prevent it,” Khouzam v. Ashcroft,

(2d Cir.

2004). Substantial evidence supports the agency’s finding

5 that Lucero-Franco failed to establish that he will more

likely than not be tortured if returned to Guatemala. See

Hui Lin Huang v. Holder,

(2d Cir. 2012) (“A

determination of what will occur in the future and the degree

of likelihood of the occurrence has been regularly regarded

as fact-finding.”); Yanqin Weng v. Holder,

.

First, there is no evidence that gang members remain

interested in Lucero-Franco. They have not contacted him

since he left Guatemala in 2008, nor anyone in his family

since 2010. See Melgar de Torres v. Reno,

(2d Cir. 1999) (noting that applicant’s well-founded fear of

persecution is undercut when similarly-situated family

members remain unharmed in home country). Lucero-Franco

admits that his fear that gang members may, nevertheless,

resume efforts to extort him on return is speculative.

Speculative harm, however, is insufficient for relief. See

Jian Xing Huang v. U.S. INS,

(2d Cir. 2005).

Second, Lucero-Franco failed to adduce evidence of the

required government acquiescence in or consent to the claimed

extortion. See

(a)(1). Although the 2014

State Department Report for Guatemala notes that government

6 “officials frequently engaged in corrupt practices with

impunity,” such evidence is insufficient to show that

petitioner himself will likely be targeted and tortured with

the consent of government officials. See Mu-Xing Wang v.

Ashcroft,

(2d Cir. 2003) (noting that

although “some prisoners” in country “have been tortured,”

petitioner must show “someone in his particular alleged

circumstances is more likely than not to be tortured if

imprisoned”); see also Mu Xiang Lin v. U.S. Dep’t of Justice,

(2d Cir. 2005) (requiring “particularized

evidence” beyond general country conditions to support CAT

claim). Here, the record indicates that Lucero-Franco’s

mother reported the extortion threats to the police, who took

steps to investigate. Though the police were unsuccessful

in preventing subsequent threats, there is no evidence that

failure was a result of acquiescence or consent. Cf. Khouzam

v. Ashcroft,

(explaining that not all official

actions resulting in harm constitute torture). We, therefore,

conclude that substantial evidence supports the agency’s

denial of CAT relief.

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of removal

7 that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot. Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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