                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           JUN 16 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ENRIQUE GERVACIO-LUCAS,                          No. 14-72087

              Petitioner,                        Agency No. A205-396-459

 v.
                                                 MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted June 9, 2017
                              Pasadena, California

Before: THOMAS, Chief Judge, KOZINSKI, Circuit Judge, and KORMAN,**
District Judge.

      I. Asylum and Withholding of Removal

      Gervacio-Lucas argues that he should have been granted asylum or

withholding of removal based on his membership in a particular social group,

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
namely, “person[s] with access to money from having lived in the United States

whose wealth could be extracted through kidnapping or other forms of extortion.”

This argument fails. We recently rejected a social group virtually indistinguishable

from the one proposed here. See Ramirez-Munoz v. Lynch, 816 F.3d 1226,

1228–29 (9th Cir. 2016). As in that case, Gervacio-Lucas “provide[d] insufficient

evidence to support [his] claim that [his] alleged American appearance will make

[him a] target[] for violent crimes upon return to [Guatemala] any more than the

populace at large.” Id. at 1229.

      Gervacio-Lucas also argues that, because the current standard for evaluating

social groups did not apply at the time of his removal hearing, he was not aware of

the need to provide evidence supporting the social distinction of his proposed

group. The premise of this argument is incorrect. Although the BIA has

periodically refined its standard for social groups, it has long required evidence

supporting the social visibility (recently renamed “social distinction”) of an alien’s

proposed group. See, e.g., In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 74–75 (BIA

2007).

      Gervacio-Lucas’s remaining arguments in support of his asylum claim are

without merit. And because Gervacio-Lucas “fails to satisfy the lower standard of

proof for asylum,” he “necessarily fails to satisfy the more stringent standard for


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withholding of removal” based on his membership in a particular social group.

Ramirez-Munoz, 816 F.3d at 1230 (citation omitted).

      II. Convention Against Torture

      Gervacio-Lucas argues that he should have been granted withholding of

removal under the CAT based on his testimony and documentary evidence

showing police involvement or acquiescence in his torture. This argument fails.

An alien can obtain CAT protection by establishing that (1) “it is more likely than

not that he or she would be tortured if removed to the proposed country of

removal,” 8 C.F.R. § 208.16(c)(2), and (2) the torture would be “inflicted by . . . or

with the consent or acquiescence of a public official,” 8 C.F.R. § 208.18(a)(1).

Taking Gervacio-Lucas’s testimony as true, it cannot be said whether his captors

were, as they claimed to be, police officers, or if their claim was merely a ruse to

gain access to his home. Nor can it be said whether his captors actually had an

arrangement with the police, or whether that too was a ruse designed to deter

Gervacio-Lucas from seeking help. Moreover, the documentary evidence does not

connect Gervacio-Lucas’s captors to the police.

      Because Gervacio-Lucas has failed to demonstrate police involvement or

acquiescence, we need not consider his additional argument that the IJ erroneously




                                           3
imposed the burden of proof on Gervacio-Lucas to show that he could not relocate

safely to another part of Guatemala.

      PETITION FOR REVIEW DENIED.




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