Lucero-Franco v. Barr ( 2019 )

17-2187
Lucero-Franco v. Barr
BIA
Straus, IJ
A206 781 501
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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, 417 F.3d 268,
271 (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, 762 F.3d 191, 195 (2d Cir. 2014).
We review the denial of CAT relief under the substantial
evidence standard. See Yanqin Weng v. Holder, 562 F.3d 510,
513, 516 (2d Cir. 2009).
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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.” 8 U.S.C. § 1231(b)(3)(A); Matter of C-T-L-, 25 I.
& N. Dec. 341, 348 (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-, 26 I. & N. Dec.
227, 237 (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, 509 F.3d 70, 74 (2d
Cir. 2007). Petitioner does not dispute that wealth or
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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-, 24 I. & N.
Dec. 69, 76 (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-, 26 I. & N. Dec. at 232; see also
Ucelo-Gomez v. Mukasey, 509 F.3d at 73 (“[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, 509 F.3d at 73 (“When the harm
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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 8 U.S.C. § 1231(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.”
8 C.F.R. § 1208.16(c)(2). Unlike withholding of removal, CAT
relief does not require a nexus to a protected ground. See
id. Torture is “severe pain or suffering” inflicted “at the
instigation of or with the consent or acquiescence of a public
official,” id. § 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, 361 F.3d 161, 171 (2d Cir.
2004). Substantial evidence supports the agency’s finding
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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, 677 F.3d 130, 134 (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, 562 F.3d at 513,
516.
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, 191 F.3d 307, 313
(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, 421 F.3d 125, 129 (2d Cir. 2005).
Second, Lucero-Franco failed to adduce evidence of the
required government acquiescence in or consent to the claimed
extortion. See 8 C.F.R. § 1208.18(a)(1). Although the 2014
State Department Report for Guatemala notes that government
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“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, 320 F.3d 130, 144 (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,
432 F.3d 156, 160 (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, 361 F.3d at 171 (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
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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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