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.**  **At a stated term of the United States Court of Appeals for** 1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **24 th** **day of April, two thousand seventeen.** 4 5 **PRESENT:** 6 **REENA RAGGI,** 7 **PETER W. HALL,** 8 **DENNY CHIN,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **MARCO AURELIO DIAS, AKA MARCO A.** 13 **DIAS,** 14 Petitioner **,** 15 16 **v. 15-3161**  17 **NAC** 18 **JEFFERSON B. SESSIONS III, UNITED** 19 **STATES ATTORNEY GENERAL,** 20 Respondent **.*** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Robert C. Ross, West Haven, CT. 24 25 **FOR RESPONDENT:**  Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Jesse M. 27

* 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 Bless, Senior Litigation Counsel; 1 Alexander J. Lutz, Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of Justice, 4 Washington, DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review is 9

DENIED. 10 Petitioner Marco Aurelio Dias, a native and citizen of 11 Brazil, seeks review of a September 9, 2015 decision of the BIA 12 affirming a May 7, 2014, decision of an Immigration Judge (“IJ”) 13 denying Dias’s application for asylum, withholding of removal, 14 and relief under the Convention Against Torture (“CAT”). In 15 re Marco Aurelio Dias, No. A205 497 464 (B.I.A. Sept. 9, 2015), 16 aff’gNo. A205 497 464 (Immig. Ct. Hartford May 7, 2014). We 17 assume the parties’ familiarity with the underlying facts and 18 procedural history in this case. 19 We have considered the IJ’s decision “as modified by the 20 BIA’s decision,” that is, minus the IJ’s finding that Dias could 21 relocate within Brazil. See Xue Hong Yang v. U.S. Dep’t of 22 Justice , 426 F.3d 520, 522 (2d Cir. 2005). The applicable 23 standards of review are well established. See 8 U.S.C. 24 § 1252(b)(4)(B); see also Yanqin Weng v. Holder , 562 F.3d 510, 25 513 (2d Cir. 2009). 263 To succeed on his withholding application, Dias had to show 1 “that it is more likely than not that his ‘life or freedom would 2 be threatened’” on account of his membership in the particular 3 social group of gay men. Ramsameachire v. Ashcroft , 357 F.3d 4 169, 178 (2d Cir. 2004) (quoting 8 U.S.C. § 1231(b)(3)(A), 8 5 C.F.R. § 208.16(b)(1)). “Persecution,” required for 6 withholding of removal, “clearly contemplates that harm or 7 suffering must be inflicted upon an individual in order to 8 punish him for possessing a belief or characteristic a 9 persecutor seeks to overcome.” Matter of Acosta , 19 I. & N. 10 Dec. 211, 223 (B.I.A. 1985), overruled on other grounds by 11 I.N.S. v. Cardoza-Fonseca , 480 U.S. 421 (1987). “Private acts 12 can . . . constitute persecution if the government is unable 13 or unwilling to control such actions.” Pan v. Holder , 777 F.3d 14 540, 543 (2d Cir. 2015); see also Rizal v. Gonzales , 442 F.3d 15 84, 92 (2d Cir. 2006) (“[P]ersecution can certainly be found 16 when the government, although not itself conducting the 17 persecution, is unable or unwilling to control it.”). 18 Although Dias did not articulate it as such, his claim is 19 that private parties have a pattern or practice of persecuting 20 gay men in Brazil, which the government is unable to stop. 8 21 C.F.R. § 1208.16(b)(2) (a withholding applicant may show his 22 life or freedom would be threatened based on a pattern or 234 practice of those similarly situated). Dias predicts that 1 people in Brazil will discover that he is gay either from the 2 Internet article about his crime, from his family, or from a 3 future relationship with a man. He asserts that homophobic 4 violence is rampant in Brazil, citing a State Department report 5 that killings based on sexual orientation rose from 2011 to 6 2012, and a Chicago Tribune article on a 1995 study that found 7 59% of gay Brazilians had suffered some type of homophobic 8 violence. He cites a study finding that a gay person’s risk 9 of being killed there is 785 percent greater than in the United 10 States and several high-profile cases of homophobic murders. 11 He acknowledges that Brazil has gay marriage, active gay rights 12 groups, and certain cities with anti-discrimination laws, but 13 argues that this evidence shows that Brazil is willing but 14 unable to stop the violence. 15 The agency disagreed. It acknowledged the evidence of 16 violence and discrimination against gay Brazilians. But, in 17 light of Brazil’s gay rights groups, gay marriage, gay pride 18 parade, and city ordinances banning anti-gay discrimination, 19 the agency found that Dias failed to show the Brazilian 20 government would be unwilling or unable to control those 21 responsible for the violence and discrimination. Although the 22 IJ and BIA decisions are sparse on reasoning, substantial 235 evidence supports that finding. Dias relies heavily on the 1 statistic that 59% of gay Brazilians have suffered violent 2 attacks; but that comes from a newspaper article published in 3 1995, nearly 20 years before his merits hearing. The 2012 State 4 Department report cited 338 killings based on sexual 5 orientation, but like the other evidence in the record, 6 acknowledged the Brazilian government’s efforts to fight 7 discrimination and promote gay rights. See Tu Lin v. Gonzales , 8 446 F.3d 395, 400 (2d Cir. 2006) (“The observations of State 9 Department country profiles do not automatically discredit 10 contrary evidence presented by the appl icant, and . . . are not 11 binding on the immigration court; they are probative 12 nonetheless.” (internal citation and punctuation omitted)). 13 Based on this record, the agency was not compelled to find the 14 governmental involvement required for withholding of removal. 15

See 8 U.S.C. § 1252(b)(4)(B) (“[t]he administrative findings 16 of fact are conclusive unless any reasonable adjudicator would 17 be compelled to conclude to the contrary[.]”); Hui Lin Huang 18 v. Holder , 677 F.3d 130, 134 (2d Cir. 2012) (finding that 19 likelihood of a future event is factual); see also Siewe v. 20 Gonzales , 480 F.3d 160, 167 (2d Cir. 2007) (“Where there are 21 two permissible views of the evidence, the factfinder’s choice 22 between them cannot be clearly erroneous.”). 236 Dias’s CAT claim rested on essentially the same theory as 1 his withholding claim. The agency reasonably concluded that 2 his predicted chain of events was speculative. See In re M-B-A , 3 23 I. & N. Dec. 474, 479-80 (B.I.A. 2002) (A claim “based on 4 a chain of assumptions and a fear of what might happen” is 5 insufficient to demonstrate eligibility for CAT relief). Even 6 if it is likely that Dias will have a romantic relationship with 7

a man, the record did not compel the agency to find it more likely 8 than not that Dias will be tortured by, or with the acquiescence 9 of, Brazilian authorities. See8 C.F.R. § 1208.18(a)(1) 10 (defining torture under the CAT as pain or suffering “inflicted 11 by or at the instigation of or with the consent or acquiescence 12 of a public official or other person acting in an official 13 capacity”). 14 For the foregoing reasons, the petition for review is 15 DENIED. As we have completed our review, the pending motion 16 for a stay of removal in this petition is DENIED as moot. Any 17 pending request for oral argument in this petition is DENIED 18 in accordance with Federal Rule of Appellate Procedure 19 34(a)(2), and Second Circuit Local Rule 34.1(b). 20

FOR THE COURT: 21 Catherine O = Hagan Wolfe, Clerk 22