    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
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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
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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).
                                        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.” 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

                                         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-, 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

                                    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 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

                                  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, 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

                                   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, 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

                                  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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