15-3161 

Diaz v. Sessions

BIA 

Verrillo, IJ 

A205 497 464 

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 

24th 4 day of April, two thousand seventeen. 

5 

6 PRESENT: 

7 REENA RAGGI,

8 PETER W. HALL, 

9 DENNY CHIN,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 MARCO AURELIO DIAS, AKA MARCO A. 

14 DIAS, 

15 Petitioner, 

16 

17 v. 15-3161

18 NAC 

19 JEFFERSON B. SESSIONS III, UNITED 

20 STATES ATTORNEY GENERAL, 

21 Respondent.* 

22 _____________________________________ 

23 

24 FOR PETITIONER: Robert C. Ross, West Haven, CT. 

25 

26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

27 Assistant Attorney General; Jesse M. 

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney

General Jefferson B. Sessions III is automatically substituted for 

former Attorney General Loretta E. Lynch as Respondent.
2

1 Bless, Senior Litigation Counsel; 

2 Alexander J. Lutz, Trial Attorney, 

3 Office of Immigration Litigation, 

4 United States Department of Justice, 

5 Washington, DC. 

6 

7 UPON DUE CONSIDERATION of this petition for review of a 

8 Board of Immigration Appeals (“BIA”) decision, it is hereby 

9 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

10 DENIED. 

11 Petitioner Marco Aurelio Dias, a native and citizen of 

12 Brazil, seeks review of a September 9, 2015 decision of the BIA 

13 affirming a May 7, 2014, decision of an Immigration Judge (“IJ”) 

14 denying Dias’s application for asylum, withholding of removal, 

15 and relief under the Convention Against Torture (“CAT”). In 

16 re Marco Aurelio Dias, No. A205 497 464 (B.I.A. Sept. 9, 2015), 

17 aff’g No. A205 497 464 (Immig. Ct. Hartford May 7, 2014). We 

18 assume the parties’ familiarity with the underlying facts and 

19 procedural history in this case. 

20 We have considered the IJ’s decision “as modified by the 

21 BIA’s decision,” that is, minus the IJ’s finding that Dias could 

22 relocate within Brazil. See Xue Hong Yang v. U.S. Dep’t of 

23 Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable 

24 standards of review are well established. See 8 U.S.C. 

25 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510, 

26 513 (2d Cir. 2009). 
3

1 To succeed on his withholding application, Dias had to show 

2 “that it is more likely than not that his ‘life or freedom would 

3 be threatened’” on account of his membership in the particular 

4 social group of gay men. Ramsameachire v. Ashcroft, 357 F.3d 

5 169, 178 (2d Cir. 2004) (quoting 8 U.S.C. § 1231(b)(3)(A), 8 

6 C.F.R. § 208.16(b)(1)). “Persecution,” required for 

7 withholding of removal, “clearly contemplates that harm or 

8 suffering must be inflicted upon an individual in order to 

9 punish him for possessing a belief or characteristic a 

10 persecutor seeks to overcome.” Matter of Acosta, 19 I. & N. 

11 Dec. 211, 223 (B.I.A. 1985), overruled on other grounds by 

12 I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987). “Private acts 

13 can . . . constitute persecution if the government is unable 

14 or unwilling to control such actions.” Pan v. Holder, 777 F.3d 

15 540, 543 (2d Cir. 2015); see also Rizal v. Gonzales, 442 F.3d 

16 84, 92 (2d Cir. 2006) (“[P]ersecution can certainly be found 

17 when the government, although not itself conducting the 

18 persecution, is unable or unwilling to control it.”). 

19 Although Dias did not articulate it as such, his claim is 

20 that private parties have a pattern or practice of persecuting 

21 gay men in Brazil, which the government is unable to stop. 8 

22 C.F.R. § 1208.16(b)(2) (a withholding applicant may show his 

23 life or freedom would be threatened based on a pattern or 
4

1 practice of those similarly situated). Dias predicts that 

2 people in Brazil will discover that he is gay either from the 

3 Internet article about his crime, from his family, or from a 

4 future relationship with a man. He asserts that homophobic 

5 violence is rampant in Brazil, citing a State Department report 

6 that killings based on sexual orientation rose from 2011 to 

7 2012, and a Chicago Tribune article on a 1995 study that found 

8 59% of gay Brazilians had suffered some type of homophobic 

9 violence. He cites a study finding that a gay person’s risk 

10 of being killed there is 785 percent greater than in the United 

11 States and several high-profile cases of homophobic murders. 

12 He acknowledges that Brazil has gay marriage, active gay rights 

13 groups, and certain cities with anti-discrimination laws, but 

14 argues that this evidence shows that Brazil is willing but 

15 unable to stop the violence. 

16 The agency disagreed. It acknowledged the evidence of 

17 violence and discrimination against gay Brazilians. But, in 

18 light of Brazil’s gay rights groups, gay marriage, gay pride 

19 parade, and city ordinances banning anti-gay discrimination, 

20 the agency found that Dias failed to show the Brazilian 

21 government would be unwilling or unable to control those 

22 responsible for the violence and discrimination. Although the 

23 IJ and BIA decisions are sparse on reasoning, substantial 
5

1 evidence supports that finding. Dias relies heavily on the 

2 statistic that 59% of gay Brazilians have suffered violent 

3 attacks; but that comes from a newspaper article published in 

4 1995, nearly 20 years before his merits hearing. The 2012 State 

5 Department report cited 338 killings based on sexual 

6 orientation, but like the other evidence in the record, 

7 acknowledged the Brazilian government’s efforts to fight 

8 discrimination and promote gay rights. See Tu Lin v. Gonzales, 

9 446 F.3d 395, 400 (2d Cir. 2006) (“The observations of State 

10 Department country profiles do not automatically discredit 

11 contrary evidence presented by the applicant, and . . . are not 

12 binding on the immigration court; they are probative 

13 nonetheless.” (internal citation and punctuation omitted)). 

14 Based on this record, the agency was not compelled to find the 

15 governmental involvement required for withholding of removal. 

16 See 8 U.S.C. § 1252(b)(4)(B) (“[t]he administrative findings 

17 of fact are conclusive unless any reasonable adjudicator would 

18 be compelled to conclude to the contrary[.]”); Hui Lin Huang 

19 v. Holder, 677 F.3d 130, 134 (2d Cir. 2012) (finding that 

20 likelihood of a future event is factual); see also Siewe v. 

21 Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where there are 

22 two permissible views of the evidence, the factfinder’s choice 

23 between them cannot be clearly erroneous.”). 
6

1 Dias’s CAT claim rested on essentially the same theory as 

2 his withholding claim. The agency reasonably concluded that 

3 his predicted chain of events was speculative. See In re M-B-A, 

4 23 I. & N. Dec. 474, 479-80 (B.I.A. 2002) (A claim “based on 

5 a chain of assumptions and a fear of what might happen” is 

6 insufficient to demonstrate eligibility for CAT relief). Even 

7 if it is likely that Dias will have a romantic relationship with 

8 a man, the record did not compel the agency to find it more likely 

9 than not that Dias will be tortured by, or with the acquiescence 

10 of, Brazilian authorities. See 8 C.F.R. § 1208.18(a)(1) 

11 (defining torture under the CAT as pain or suffering “inflicted 

12 by or at the instigation of or with the consent or acquiescence 

13 of a public official or other person acting in an official 

14 capacity”). 

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 DENIED as moot. Any 

18 pending request for oral argument in this petition is DENIED 

19 in accordance with Federal Rule of Appellate Procedure 

20 34(a)(2), and Second Circuit Local Rule 34.1(b). 

21 FOR THE COURT: 

22 Catherine O=Hagan Wolfe, Clerk