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. 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 **16 th** **day of August, two thousand seventeen.** 4 5 **PRESENT:** 6 **ROSEMARY S. POOLER,** 7 **RICHARD C. WESLEY,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **MIGUEL ANGEL RENE DIAZ CHACON,** 13 Petitioner **,** 14 15 **v. 15-2396** 16 **NAC** 17 **JEFFERSON B.**  **SESSIONS, III,**  **UNITED** 18 **STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Jon E. Jessen, Stamford, CT. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal 25 Assistant Attorney General; Carl 26 McIntyre, Assistant Director; 27 Margaret A. O’Donnell, Trial 28 Attorney, Office of Immigration 29 Litigation, United States 30 Department of Justice, Washington, 31 DC. 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Miguel Angel Rene Diaz Chacon (“Diaz”), a native 5 and citizen of Guatemala, seeks review of a July 2, 2015 decision 6 of the BIA affirming a March 13, 2015 decision of an Immigration 7 Judge (“IJ”) denying Diaz’s application for asylum, withholding 8 of removal, and relief under the Convention Against Torture 9 (“CAT”). In re Miguel Angel Rene Diaz Chacon, No. A206 515 518 10 (B.I.A. July 2, 2015), aff’gNo. A206 515 518 (Immig. Ct. 11 Hartford Mar. 13, 2015). We assume the parties’ familiarity 12 with the underlying facts and procedural history in this case. 13

We have considered both the IJ’s and the BIA’s opinions “for 14 the sake of completeness.” Wangchuck v. Dep’t of Homeland 15

Sec. , 448 F.3d 524, 528 (2d Cir. 2006). The applicable 16 standards of review are well established. See 8 U.S.C. 17 § 1252(b)(4)(B); Yanqin Weng v. Holder , 562 F.3d 510, 513 (2d 18 Cir. 2009). 19

An applicant seeking asylum or withholding of removal “must 20 establish that race, religion, nationality, membership in a 21 particular social group, or political opinion was or will be 22 at least one central reason for persecuting the applicant.” 8 233 U.S.C. § 1158(b)(1)(B)(i); Matter of C-T-L- , 25 I. & N. Dec. 1 341, 348 (B.I.A. 2010) (applying the “one central reason” 2 standard in 8 U.S.C. § 1158(b)(1)(B)(i) to withholding of 3 removal standard in § 1231(b)(3)(A)). A particular social 4 group must be: “(1) composed of members who share a common 5 immutable characteristic, (2) defined with particularity, and 6 (3) socially distinct within the society in question.” Matter 7 of M-E-V-G- , 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see also 8 Paloka v. Holder , 762 F.3d 191, 195-98 (2d Cir. 2014). A group 9 is not defined with particularity unless “terms used to describe 10 the group have commonly accepted definitions in the society of 11 which the group is a part,” and the group is “discrete and [has] 12 definable boundaries—it must not be amorphous, overbroad, 13 diffuse, or subjective.” Matter of W-G-R- , 26 I. & N. Dec. 208, 14 214 (B.I.A. 2014), remanded on other grounds by Reyes v. Lynch , 15 842 F.3d 1125 (9th Cir. 2016); see also Matter of M-E-V-G- , 26 16 I. & N. Dec. at 239 (“A particular social group must be defined 17 by characteristics that provide a clear benchmark for 18 determining who falls within the group.”). Social distinction 19 “exists where the relevant society perceives, considers, or 20 recognizes the group as a distinct social group.” Matter of 21

W-G-R- , 26 I. & N. Dec. at 217. “[A]sylum may be granted where 22 there is more than one motive for mistreatment, as long as at 234 least one central reason for the mistreatment is on account of 1 a protected ground.” Acharya v. Holder , 761 F.3d 289, 297 (2d 2 Cir. 2014) (internal quotation marks and citations omitted). 3 Before the IJ, Diaz argued that he belonged to a particular 4 social group: the families of government workers, specifically 5 bus drivers. He alleged that, in 2013, members of a gang (he 6 suggested the Maras) attacked him and his cousin in a park, but 7 he conceded that their attackers said nothing about Diaz’s 8 family or his father’s work as a bus driver. Based on that 9 testimony, the agency did not err in finding that a protected 10 ground was not “at least one central reason for the 11 mistreatment” Diaz suffered. Id. 12 The agency was also on sound footing when it rejected Diaz’s 13 proposed social group. Diaz’s only evidence of such a group 14 was his mother’s testimony and a single newspaper article. His 15 mother testified that, in 2001, she overheard her husband 16 (Diaz’s father) receive a threatening phone call; that he 17 subsequently disappeared; and that one of his colleagues was 18 found dismembered. The 2014 article reported that the police 19 captured two men who planned to kill a bus driver. The agency 20 did not err in concluding that this evidence failed to establish 21 the particularity and social distinction required for a 22 particular social group. As to particularity, Diaz did not 235 articulate a “clear benchmark for determining who falls within 1 the group”—e.g., whether if included nuclear families only, or 2 all family members. Matter of M-E-V-G- , 26 I. & N. Dec. at 239. 3 As to social distinction, “[e]vidence such as country 4 conditions reports, expert witness testimony, and press 5 accounts of discriminatory laws an d policies, historical 6 animosities, and the like may establish that a group exists and 7 is perceived as ‘distinct’ . . . in a particular society.” Id

. 8 at 244. But Diaz presented no evidence that Guatemalans view 9 bus drivers’ families as a coherent group, or that the families 10 view themselves that way. Matter of W-G-R- , 26 I. & N. Dec. 11 at 217. Moreover, his mother did not describe a threat that 12 was linked to her husband’s job. Her testimony that his 13 colleague was later killed did not compel the agency to make 14 that inferential leap. Siewe v. Gonzales , 480 F.3d 160, 168 15 (2d Cir. 2007) (“So long as there is a basis in the evidence 16 for a challenged inference, we do not question whether a 17 different inference was available or more likely.”). 18 Diaz cites cases recognizing that, under certain 19 circumstances, a family may be a cognizable social group, and 20 claims that his proposed particular social group consists of 21 family members of murdered bus drivers. He did not raise that 22 specific argument before the agency, and we decline to consider 236 it for the first time on this petition for review. Lin Zhong 1 v. U.S. Dep’t of Justice , 480 F.3d 104, 123 (2d Cir. 2007) 2 (“Judicially-imposed doctrines of issue exhaustion . . . will 3 usually mean that issues not raised to the BIA will not be 4 examined by the reviewing court.”). Regardless, this new 5 description does not provide the missing evidentiary link 6 between his father’s 2001 disappearance and Diaz’s 2013 beating 7 by unidentified individuals. 8 Diaz also seeks humanitarian asylum . The agency has the 9 discretion to grant humanitarian asylum “if the alien ‘has 10 demonstrated compelling reasons for being unwilling or unable 11 to return to the country arising out of the severity of the past 12 persecution,’ . . . even though he does not have a well-founded 13 fear of future persecution.” Jalloh v. Gonzales , 498 F.3d 148, 14 151 (2d Cir. 2007) (quoting 8 C.F.R. § 1208.13(b)(1)(iii)). 15 Diaz did not exhaust this claim, and so we decline to consider 16 it. Lin Zhong , 480 F.3d at 123. 17 Diaz does not challenge the denial of CAT relief. Yueqing 18 Zhang v. Gonzales , 426 F.3d 540, 541 n.1 (2d Cir. 2005). 19 For the foregoing reasons, the petition for review is 20 DENIED. As we have completed our rev iew, any stay of removal 21 that the Court previously granted in this petition is VACATED, 22 and any pending motion for a stay of removal in this petition 237 is DISMISSED as moot. Any pending request for oral argument 1 in this petition is DENIED in accordance with Federal Rule of 2 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 3 34.1(b). 4

FOR THE COURT: 5 Catherine O = Hagan Wolfe, Clerk 6