DLD-129                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-3450
                                       ___________

         CARMELINO GOMEZ-ELIAS; JUANA TEBALAN-CASTRO;
      MARGELY GOMEZ-TEBALAN; JOSUE ABIMAEL GOMEZ-TEBALAN,
                                                   Petitioners
                               v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA
                   ____________________________________

                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
                     (Agency Nos. A208-180-087, A208-180-089,
                            A208-180-094 & A208-180-095)
                  Immigration Judge: Honorable Charles M. Honeyman
                      ____________________________________

                      Submitted on a Motion for Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   February 27, 2020

              Before: RESTREPO, PORTER and SCIRICA, Circuit Judges

                              (Opinion filed: April 7, 2020)
                                      _________

                                        OPINION*
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                             1
          Carmelino Gomez-Elias, his wife, Juana Tebalan Castro, and two of their children

petition for review of an order of the Board of Immigration Appeals (“BIA”), which

affirmed the Immigration Judge’s (“IJ”) removal order. Because the petition presents no

substantial question for review, we will grant the Government’s motion for summary

action.

          Carmelino1 and his family are citizens of Guatemala. They entered the United

States in September 2015 without proper entry documents. They applied for asylum and

related relief, based on extortion and death threats against the family. Juana received a

call on the family’s cell phone from a caller who identified himself as Luis Lopez. Luis

threatened to kill her family unless she deposited 8000 queztals in a designated bank

account. When Juana explained that she did not have the money, Luis stated that he

knew that she had adult children in the United States and that she owned a business (she

sold chickens and vegetables at a market stall) and so she must have money. Juana did

not report the call to the police because Luis threatened to harm her family. Juana

obtained loans from friends and paid part of the amount. Luis then called again and

demanded the full amount. Juana got more loans and completed the payment. About a

month later, Luis called again and demanded another 3000 queztals. He said that he

would kill Juana’s family if she did not pay. Juana went to the police, who recommended

that she deposit 50 queztals in the designated account so that they could track the

payment. She did as the police requested. Luis called and threatened to finish off the



1
    We will follow Petitioners’ lead and refer to the family members by their first names.
                                               2
family if she did not complete the payment. The family fled to Carmelino’s brother’s

ranch and then a few days later left for Mexico, and eventually the United States. The

family has not directly received more threats, but extended family members that live near

their home in Guatemala reported that armed men had entered their home looking for

them and shooting.

         In immigration proceedings, the IJ found Carmelino and Juana credible.2 But the

IJ denied relief, finding no nexus between threats against the family and any protected

status. In particular, the IJ determined that the extortion and threats were not based on

any family member’s imputed political opinion or because of their membership in any

“particular social group” (“PSG”). The IJ also denied relief under the Convention

Against Torture. The BIA affirmed the IJ, and with regard to relief under the CAT noted

that the possibility of torture could not be “based on a chain of assumptions” and that

there was “insufficient evidence that any feared torture would be inflicted with the

consent, acquiescence or willful blindness of a public official.” BIA decision at 4.3

         The Petitioners have filed a timely, counseled petition for review and a motion for

a stay of removal. The Government filed a motion for summary affirmance and

opposition to the stay motion. Because the briefing schedule was not stayed (the



2
    The Government waived the children’s presence at the hearing.
3
  Petitioners also raised a claim before the IJ and BIA that removal proceedings should be
terminated, based on Pereira v. Sessions, 138 S. Ct. 2105 (2018), because their Notices to
Appear lacked a time and date. Petitioners are not pursuing that claim here, and any such
claim is foreclosed by this Court’s decision in Nkomo v. Attorney General, 930 F.3d 129,
132-34 (3d Cir. 2019).
                                              3
Petitioners have since filed their opening brief and the Government has filed its brief as

well), we will consider the parties’ briefs along with their motions.

       We have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s decision and

consider the IJ’s decision to the extent that the BIA deferred to it. See Roye v. Att’y

Gen., 693 F.3d 333, 339 (3d Cir. 2012). To prevail on their asylum claim, Petitioners had

the burden of establishing that they were persecuted, or that they had a well-founded fear

of being persecuted, on a protected ground, such as political opinion or membership in a

PSG. 8 U.S.C. § 1101(a)(42)(A). For a PSG claim, a petitioner must establish “(1) a

particular social group that is legally cognizable; (2) membership in that group; (3) a

well-founded fear of persecution, which must be subjectively genuine and objectively

reasonable; and (4) a nexus, or causal link, between the persecution and membership in

the particular social group.” S.E.R.L. v. Att’y Gen., 894 F.3d 535, 544 (3d Cir. 2018).

       Petitioners argue here that the IJ and BIA erred in determining that their nuclear

family was not a cognizable PSG. But their claim was not rejected for that reason;

instead, it was rejected because they failed to show a nexus between the extortion and

threats and their family membership. We agree that the record does not support a finding

that Luis targeted Juana or her family because of their family membership, rather than

based on purely criminal motives. See, e.g., Gonzalez-Posadas v. Att’y Gen., 781 F.3d

677, 686-87 (3d Cir. 2015) (noting that criminal activity that is motivated by a desire to

reap financial rewards does not constitute persecution); see also Abdille v. Ashcroft, 242

F.3d 477, 494 (3d Cir. 2001) (“[O]rdinary criminal activity does not rise to the level of

persecution necessary to establish eligibility for asylum.”).

                                              4
       Petitioners also argue that the persecution was on account of imputed political

opinion, i.e., opposition to gangs, as shown by Juana’s police report, but that is an even

weaker claim. Petitioners cite Espinosa-Cortez v. Attorney General, 607 F.3d 101 (3d

Cir. 2010), in which we held that an asylum applicant who “made his living by

supporting the Colombian government, military, and military academy through the

provision of food and other services,” id. at 110, could be seen by his persecutors as

having an imputed pro-Colombian-government political opinion, id. at 110-12. In

contrast, Carmelito, Juana, and their family have no apparent connection with the

Guatemalan government or any political entity. Because Petitioners did not establish that

they were persecuted, or might be persecuted, on a protected ground, we agree that

asylum was not warranted.4

       A claim under the Convention Against Torture does not require showing that the

feared torture will be motivated by a protected ground, but the applicant must show that

the torture would occur with the consent or acquiescence of a public official. 8 C.F.R.

§ 1208.18(a)(1). Petitioners did not establish acquiescence. The police were

investigating the extortion threat against the family. But Petitioners left before they

learned whether the police succeeded in finding the culprit. Thus, they cannot establish

that the police breached any duty to protect them from possible torture. See Dutton-

Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017) (“To establish acquiescence, an


4
  And because the standard for withholding of removal “is more demanding than that
governing eligibility for asylum, an alien who fails to qualify for asylum is necessarily
ineligible for withholding of removal.” See S.E.R.L., 894 F.3d at 544 (quoting
Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 591 (3d Cir. 2011)).
                                              5
applicant must demonstrate that, prior to the activity constituting torture, a public official

was aware of it and thereafter breached the legal responsibility to intervene and prevent

it.” (citing 8 C.F.R. § 1208.18(a)(7)).

       For all these reasons, we grant the Government’s motion for summary action and

will deny the petition for review. Petitioners’ motion for a stay of removal is denied as

moot, and the temporary administrative stay entered on December 4, 2019, is vacated.




                                              6
