Diaz v. Sessions, 688 F. App'x 66

Petitioner Marco Aurelio Dias, a Brazilian national, sought asylum, withholding of removal, and CAT protection after convictions/publicity and fears of future homophobic violence.
IJ denied relief; BIA affirmed the denial (Sept. 9, 2015), rejecting Dias’s claim that he could not safely remain in Brazil as a gay man.
Dias argued private parties in Brazil routinely persecute gay men and the government is unwilling or unable to control such violence; he relied on country reports, studies, and news articles documenting homophobic violence.
The agency acknowledged violence but relied on evidence of Brazil’s legal protections and civil-society activity (gay marriage, pride events, local anti-discrimination ordinances, advocacy groups) to conclude the government was not unwilling or unable to protect him.
The Second Circuit reviewed the BIA decision (minus the IJ’s relocation finding) under the substantial-evidence standard and denied the petition for review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Withholding of removal—risk of persecution as a gay man / pattern or practice	Dias: private actors in Brazil routinely attack gay men; government unable/unwilling to control violence; credible stats and incidents show high risk	Government: Brazil has legal protections, active NGOs, and efforts reducing evidence of state acquiescence; record does not compel finding government inability/unwillingness	Denied — substantial evidence supports BIA/IJ finding that Dias did not prove government unwilling/unable to control persecution
CAT protection—likelihood of torture with state acquiescence	Dias: likely to be targeted/tortured if his sexual orientation becomes known through media, family, or future relationship	Government: Dias’s chain-of-events theory is speculative; no compelled finding that torture by or with acquiescence of officials is more likely than not	Denied — BIA reasonably found claim speculative and record not to compel CAT relief

Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004) (describing standard for withholding based on membership in a particular social group)
Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir. 2005) (treating BIA-modified IJ decisions for review)
Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) (standards of review for immigration decisions)
Tu Lin v. Gonzales, 446 F.3d 395 (2d Cir. 2006) (role of State Department country reports as probative evidence)
Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012) (likelihood of future events is a factual determination)
Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007) (factfinder’s permissible choice between competing views of evidence)
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987) (standards governing asylum-related factual determinations)