     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




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