Lopez-Diaz v. Lynch , 661 F. App'x 116 ( 2016 )

15-2722
Lopez-Diaz v. Lynch
BIA
Verrillo, IJ
A206 791 080/081
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
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 4th day of October, two thousand sixteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 DIXSY DAYANA LOPEZ-DIAZ, ANGEL
14 NOE GOMEZ-LOPEZ,
15 Petitioners,
16
17 v. 15-2722
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Robert C. Ross, West Haven,
25 CT.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal
28 Deputy Assistant Attorney General;
29 Mary Jane Candaux, Assistant
30 Director; Aimee J. Carmichael,
31 Trial Attorney, Office of
32 Immigration Litigation, United
33 States Department of Justice,
34 Washington, 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
4 is DENIED.
5 Petitioners Dixsy Dayana Lopez-Diaz and Angel Noe
6 Gomez-Lopez, natives and citizens of Honduras, seek review
7 of a July 28, 2015, decision of the BIA affirming a February
8 3, 2015, decision of an Immigration Judge (“IJ”) denying
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Dixsy Dayana
11 Lopez-Diaz, Angel Noe Gomez-Lopez, Nos. A206 791 080/081
12 (B.I.A. July 28, 2015), aff’g Nos. A206 791 080/081 (Immig.
13 Ct. Hartford Feb. 3, 2015). We assume the parties’
14 familiarity with the underlying facts and procedural history
15 in this case.
16 We have reviewed the IJ’s and the BIA’s decisions “for
17 the sake of completeness.” Wangchuck v. Dep’t of Homeland
18 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
19 standards of review are well established. See 8 U.S.C. §
20 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
21 Cir. 2009).
2
1 Asylum and Withholding of Removal
2 In order to demonstrate eligibility for asylum and
3 withholding of removal, “the applicant must establish that
4 race, religion, nationality, membership in a particular
5 social group, or political opinion was or will be at least
6 one central reason for persecuting the applicant.” 8 U.S.C.
7 § 1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A); see also In re
8 C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010). Relief “may
9 be granted where there is more than one motive for
10 mistreatment, as long as at least one central reason for the
11 mistreatment is on account of a protected ground.” Acharya
12 v. Holder, 761 F.3d 289, 297 (2d Cir. 2014) (internal
13 quotation marks omitted). The agency did not err in finding
14 that Lopez-Diaz failed to demonstrate the requisite nexus to
15 a protected ground.
16 Grandmother’s Abuse
17 The agency reasonably concluded that Lopez-Diaz failed
18 to demonstrate that her grandmother abused her on account of
19 her political opinion that girls should be allowed to attend
20 secondary school.1 In order to demonstrate that persecution
1 “Private acts can . . . constitute persecution if the
government is unable or unwilling to control such actions.”
3
1 or a well-founded fear of persecution is on account of an
2 applicant’s political opinion, the applicant must “show,
3 through direct or circumstantial evidence, that the
4 persecutor’s motive to persecute arises from the applicant’s
5 political belief,” rather than merely by the persecutor’s
6 own opinion. Yueqing Zhang v. Gonzales, 426 F.3d 540, 545
7 (2d Cir. 2005) (emphasis added). Lopez-Diaz admitted that
8 she did not know why her grandmother was abusive. Lopez-
9 Diaz’s speculation that her grandmother was motivated by an
10 opposition to Lopez-Diaz’s opinion that girls should be
11 permitted to attend secondary school was not supported by
12 the record evidence, which established that her grandmother
13 was abusive long before Lopez-Diaz began attending secondary
14 school and was abusive to Lopez-Diaz’s grandfather as well.
15 Id.
16 The agency also did not err in concluding that Lopez-
17 Diaz’s proposed social groups of “minors abused by custodial
18 family members” and “young women vulnerable to abuse” were
19 not cognizable. To constitute a particular social group, a
20 group must be “(1) composed of members who share a common
21 immutable characteristic, (2) defined with particularity,
Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015).
4
1 and (3) socially distinct within the society in question.”
2 In re M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see
3 also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-74 (2d Cir.
4 2007). “[A] particular social group cannot be defined
5 exclusively by the claimed persecution, . . . it must be
6 recognizable as a discrete group by others in the society.”
7 In re M-E-V-G-, 26 I. & N. Dec. at 232 (internal quotation
8 marks omitted). “The group must also . . . have definable
9 boundaries—it must not be amorphous, overbroad, diffuse, or
10 subjective.” Id. at 239.
11 Contrary to Lopez-Diaz’s argument, her case is
12 distinguishable from Matter of A-R-C-G-, in which the BIA
13 found cognizable the particular social group of “married
14 women in Guatemala who are unable to leave their
15 relationship.” 26 I. & N. Dec. 388, 392 (B.I.A. 2014).
16 Unlike the social group in Matter of A-R-C-G-, which was
17 defined with particularity given “societal expectations
18 about gender and subordination, as well as legal constraints
19 regarding divorce and separation” in Guatemala, id. at 393,
20 the boundaries of Lopez-Diaz’s proposed groups are overbroad
21 and narrowed only by subjectively defined factors that do
22 not “provide a clear benchmark for determining who falls
5
1 within the group,” i.e., what constitutes abuse by family
2 members or vulnerability to abuse, In re M-E-V-G-, 26 I. &
3 N. Dec. at 239. Cf. Ucelo-Gomez, 509 F.3d at 73 (“If
4 ‘wealth’ defined the boundaries of a particular social
5 group, a determination about whether any petitioner fit into
6 the group (or might be perceived as a member of the group)
7 would necessitate a sociological analysis as to how persons
8 with various assets would have been viewed by others in
9 their country.”). Accordingly, the agency did not err in
10 finding that these social groups were not defined with
11 sufficient particularity to be cognizable. See In re M-E-V-
12 G-, 26 I. & N. Dec. at 239.
13 Unfulfilled Threats
14 Lopez also claimed that unknown individuals threatened
15 to harm her or her family should she investigate her
16 father’s 1997 murder. She argued that these threats
17 constituted past persecution and established a well-founded
18 fear of future persecution on account of her membership in
19 the social group of “murdered individual’s surviving nuclear
20 family members.” The agency did not err in concluding that
21 this proposed social group failed because it does not
22 satisfy the social distinction requirement.
6
1 Lopez-Diaz did not present evidence that family members
2 of murder victims are a socially distinct group in Honduran
3 society. “Evidence such as country conditions reports,
4 expert witness testimony, and press accounts of
5 discriminatory laws and policies, historical animosities,
6 and the like may establish that a group exists and is
7 perceived as ‘distinct’ . . . in a particular society.” In
8 re M-E-V-G-, 26 I. & N. Dec. at 244. Lopez-Diaz presented
9 evidence of widespread violence in Honduras, but she did not
10 submit any evidence that her proposed group is perceived as
11 distinct.
12 Although membership in a family “may form a cognizable
13 shared characteristic for a particular social group,” Vumi
14 v. Gonzales, 502 F.3d 150, 155 (2d Cir. 2007), Lopez-Diaz
15 did not define her group so narrowly. She defined the group
16 as families of individuals who had been murdered, not her
17 murdered father’s family. And, regardless of whether the
18 group is defined broadly or is limited to her family, she
19 did not present any evidence that the group was socially
20 distinct.
21 Accordingly, because Lopez-Diaz failed to establish
22 past persecution or a well-founded fear of persecution on
7
1 account of a protected ground, the agency did not err in
2 denying asylum or withholding of removal. See 8 U.S.C.
3 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); see also In re C-T-L-,
4 25 I. & N. Dec. at 348.
5 Convention Against Torture
6 An applicant for CAT relief must “establish that it is
7 more likely than not that he or she would be tortured if
8 removed to the proposed country of removal.” 8 C.F.R.
9 § 1208.16(c)(2). Unlike asylum and withholding of removal,
10 CAT relief does not require a nexus to any ground. See id.
11 We find no error in the agency’s finding that Lopez-Diaz
12 failed to establish a likelihood of torture. Lopez-Diaz
13 does not cite any evidence that would compel a contrary
14 conclusion.
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, the pending motion
17 for a stay of removal in this petition is DISMISSED as moot.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
8