Chacon v. Sessions , 693 F. App'x 91 ( 2017 )

15-2396
Diaz v. Sessions
BIA
Straus, IJ
A206 515 518
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 16th day of August, two thousand seventeen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 MIGUEL ANGEL RENE DIAZ CHACON,
14 Petitioner,
15
16 v. 15-2396
17 NAC
18 JEFFERSON B. SESSIONS, III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jon E. Jessen, Stamford, CT.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal
26 Assistant Attorney General; Carl
27 McIntyre, Assistant Director;
28 Margaret A. O’Donnell, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Miguel Angel Rene Diaz Chacon (“Diaz”), a native
6 and citizen of Guatemala, seeks review of a July 2, 2015 decision
7 of the BIA affirming a March 13, 2015 decision of an Immigration
8 Judge (“IJ”) denying Diaz’s application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Miguel Angel Rene Diaz Chacon, No. A206 515 518
11 (B.I.A. July 2, 2015), aff’g No. A206 515 518 (Immig. Ct.
12 Hartford Mar. 13, 2015). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this case.
14 We have considered both the IJ’s and the BIA’s opinions “for
15 the sake of completeness.” Wangchuck v. Dep’t of Homeland
16 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
17 standards of review are well established. See 8 U.S.C.
18 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
19 Cir. 2009).
20 An applicant seeking asylum or withholding of removal “must
21 establish that race, religion, nationality, membership in a
22 particular social group, or political opinion was or will be
23 at least one central reason for persecuting the applicant.” 8
2
1 U.S.C. § 1158(b)(1)(B)(i); Matter of C-T-L-, 25 I. & N. Dec.
2 341, 348 (B.I.A. 2010) (applying the “one central reason”
3 standard in 8 U.S.C. § 1158(b)(1)(B)(i) to withholding of
4 removal standard in § 1231(b)(3)(A)). A particular social
5 group must be: “(1) composed of members who share a common
6 immutable characteristic, (2) defined with particularity, and
7 (3) socially distinct within the society in question.” Matter
8 of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see also
9 Paloka v. Holder, 762 F.3d 191, 195-98 (2d Cir. 2014). A group
10 is not defined with particularity unless “terms used to describe
11 the group have commonly accepted definitions in the society of
12 which the group is a part,” and the group is “discrete and [has]
13 definable boundaries—it must not be amorphous, overbroad,
14 diffuse, or subjective.” Matter of W-G-R-, 26 I. & N. Dec. 208,
15 214 (B.I.A. 2014), remanded on other grounds by Reyes v. Lynch,
16 842 F.3d 1125 (9th Cir. 2016); see also Matter of M-E-V-G-, 26
17 I. & N. Dec. at 239 (“A particular social group must be defined
18 by characteristics that provide a clear benchmark for
19 determining who falls within the group.”). Social distinction
20 “exists where the relevant society perceives, considers, or
21 recognizes the group as a distinct social group.” Matter of
22 W-G-R-, 26 I. & N. Dec. at 217. “[A]sylum may be granted where
23 there is more than one motive for mistreatment, as long as at
3
1 least one central reason for the mistreatment is on account of
2 a protected ground.” Acharya v. Holder, 761 F.3d 289, 297 (2d
3 Cir. 2014) (internal quotation marks and citations omitted).
4 Before the IJ, Diaz argued that he belonged to a particular
5 social group: the families of government workers, specifically
6 bus drivers. He alleged that, in 2013, members of a gang (he
7 suggested the Maras) attacked him and his cousin in a park, but
8 he conceded that their attackers said nothing about Diaz’s
9 family or his father’s work as a bus driver. Based on that
10 testimony, the agency did not err in finding that a protected
11 ground was not “at least one central reason for the
12 mistreatment” Diaz suffered. Id.13 The agency was also on sound footing when it rejected Diaz’s
14 proposed social group. Diaz’s only evidence of such a group
15 was his mother’s testimony and a single newspaper article. His
16 mother testified that, in 2001, she overheard her husband
17 (Diaz’s father) receive a threatening phone call; that he
18 subsequently disappeared; and that one of his colleagues was
19 found dismembered. The 2014 article reported that the police
20 captured two men who planned to kill a bus driver. The agency
21 did not err in concluding that this evidence failed to establish
22 the particularity and social distinction required for a
23 particular social group. As to particularity, Diaz did not
4
1 articulate a “clear benchmark for determining who falls within
2 the group”—e.g., whether if included nuclear families only, or
3 all family members. Matter of M-E-V-G-, 26 I. & N. Dec. at 239.
4 As to social distinction, “[e]vidence such as country
5 conditions reports, expert witness testimony, and press
6 accounts of discriminatory laws and policies, historical
7 animosities, and the like may establish that a group exists and
8 is perceived as ‘distinct’ . . . in a particular society.” Id.
9 at 244. But Diaz presented no evidence that Guatemalans view
10 bus drivers’ families as a coherent group, or that the families
11 view themselves that way. Matter of W-G-R-, 26 I. & N. Dec.
12 at 217. Moreover, his mother did not describe a threat that
13 was linked to her husband’s job. Her testimony that his
14 colleague was later killed did not compel the agency to make
15 that inferential leap. Siewe v. Gonzales, 480 F.3d 160, 168
16 (2d Cir. 2007) (“So long as there is a basis in the evidence
17 for a challenged inference, we do not question whether a
18 different inference was available or more likely.”).
19 Diaz cites cases recognizing that, under certain
20 circumstances, a family may be a cognizable social group, and
21 claims that his proposed particular social group consists of
22 family members of murdered bus drivers. He did not raise that
23 specific argument before the agency, and we decline to consider
5
1 it for the first time on this petition for review. Lin Zhong
2 v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir. 2007)
3 (“Judicially-imposed doctrines of issue exhaustion . . . will
4 usually mean that issues not raised to the BIA will not be
5 examined by the reviewing court.”). Regardless, this new
6 description does not provide the missing evidentiary link
7 between his father’s 2001 disappearance and Diaz’s 2013 beating
8 by unidentified individuals.
9 Diaz also seeks humanitarian asylum. The agency has the
10 discretion to grant humanitarian asylum “if the alien ‘has
11 demonstrated compelling reasons for being unwilling or unable
12 to return to the country arising out of the severity of the past
13 persecution,’ . . . even though he does not have a well-founded
14 fear of future persecution.” Jalloh v. Gonzales, 498 F.3d 148,
15 151 (2d Cir. 2007) (quoting 8 C.F.R. § 1208.13(b)(1)(iii)).
16 Diaz did not exhaust this claim, and so we decline to consider
17 it. Lin Zhong, 480 F.3d at 123.
18 Diaz does not challenge the denial of CAT relief. Yueqing
19 Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of removal
22 that the Court previously granted in this petition is VACATED,
23 and any pending motion for a stay of removal in this petition
6
1 is DISMISSED as moot. Any pending request for oral argument
2 in this petition is DENIED in accordance with Federal Rule of
3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
4 34.1(b).
5 FOR THE COURT:
6 Catherine O=Hagan Wolfe, Clerk
7