     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




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