Lordes v. Mukasey , 288 F. App'x 712 ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1968
CLAUDENIR NUNES LORDES,
Petitioner,
v.
MICHAEL B. MUKASEY,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lipez, and Howard,
Circuit Judges.
Mary E. Womboldt for petitioner.
Scott Rempell, Trial Attorney, Jeffrey S. Bucholtz, Acting
Assistant Attorney General, Civil Division, and Linda S. Wernery,
Assistant Director, Office of Immigration Litigation, U.S.
Department of Justice, for respondent.
August 13, 2008
LIPEZ, Circuit Judge. Claudenir Nunes Lordes, a citizen
and native of Brazil, petitions for review of an order of the Board
of Immigration Appeals ("BIA") affirming a decision of the
Immigration Judge ("IJ"), rejecting his application for asylum as
untimely, and denying his claims for withholding of removal and
protection under the Convention Against Torture ("CAT"). We deny
the petition for review.
I.
Lordes entered the United States through Tecate,
California on March 12, 2002, without being admitted or paroled.
Later that same day, he was issued a Notice to Appear, charging him
with removability under 8 U.S.C. § 1182(a)(6)(A)(i). On April 30,
2002, an IJ in San Diego entered an in absentia order of removal.
On May 31, 2002, Lordes filed a motion to reopen with the IJ.
Although the motion was initially denied, the BIA remanded the case
for further proceedings after finding that ineffective assistance
of counsel had caused Lordes to fail to appear at the April 30
hearing and that this ineffective assistance constituted an
"exceptional circumstance" excusing his failure.
Lordes then successfully moved to change venue to Boston,
Massachusetts. On October 27, 2004, Lordes's current counsel
entered her first appearance on his behalf in Boston Immigration
Court. On July 19, 2005, Lordes filed an application for asylum
and withholding of removal. This asylum application came more than
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three years after Lordes's entry into the United States and more
than eight months after his current counsel began representing him.
At a hearing on February 14, 2006, the IJ heard testimony
from Lordes regarding his labor union membership and the three
incidents that formed the basis of his claims for asylum and
withholding of removal. Lordes testified that he had joined the
Sindeferro labor union in 1988. He stated that he participated in
demonstrations, passed out pamphlets, manned picket lines during
strikes, and invited others to join the union.
The first of the three incidents he described occurred in
February 2000, when two armed men broke into his home, locked
Lordes and his family in the bathroom, and took all of the
valuables in the home. Lordes testified that the burglars warned
the family not to report the incident to the police and to "stay
away from the problems."1 He did not report this incident to the
police because of the threats the burglars had made to kill or
kidnap his family. He believed these threats because the burglars
"were against the movement that [he] was working on in the
syndicate." After the incident, his wife and children stayed at
his father-in-law's farm for several weeks because he felt they
would be safer there.
1
In his brief on appeal, Lordes asserts that "the problems" to
which the men were referring were union activities.
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Second, Lordes testified that he was attacked in January
2001 while riding the bus to work. The attacker stole his watch
and wallet and he missed three days of work from injuries sustained
in the attack. Lordes's supervisor reported the incident to the
police, but Lordes himself did not speak with police about it.
Lordes stated that the attacker's characteristics were the same as
those of the burglars who had robbed his home.
Third, Lordes testified about a second home invasion in
September 2001. One night while he was at work, four armed men
shot and killed the family guard dog, broke into his home, tied up
his wife and children, and stole all of the valuables in the house,
including his car. Lordes reported this incident to the police.
He testified that he thought his family had been targeted for this
attack because he was "like a leader in the syndicate." He
submitted a translation of the police report of this incident to
the IJ.
Lordes worked at Companhia Vale Do Rio Doce ("CVRD") as
a diesel train mechanic from 1984 to 2002. After the three
incidents described above, CVRD offered to transfer Lordes to Rio
de Janeiro or Sao Paolo, but he testified that he did not want to
move to another city "[b]ecause [he] had constructed life in this
city for more than 15 years. And it would be very difficult to go
and move to another city and start everything anew."
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At the hearing, Lordes also testified that he did not
know about the asylum system when he arrived in the United States.
He stated that he had intended to obtain legal status through a
labor certification.2
In an oral decision, the IJ ruled that Lordes's asylum
application was untimely because it was filed more than one year
after his arrival in the United States. The IJ did not credit
Lordes's testimony that he was unaware of the availability of
asylum when he arrived in 2002. The IJ also noted that the
ineffective assistance of counsel that justified the reopening of
Lordes's case did not relate to any failure to file an asylum
application or failure to advise Lordes about the availability of
asylum. Thus, the IJ found that there were no "extraordinary
circumstances" that could excuse the late filing.
The IJ also denied Lordes's claim for withholding of
removal.3 The IJ stated that Lordes had not introduced sufficient
2
On October 2, 2003, Lordes filed for a labor certification
from the Department of Labor. His counsel at the time apparently
hoped that the deadline for adjustment of status under section
245(i) of the Legal Immigration Family Equity Act (LIFE Act) might
be extended. However, the April 30, 2001 deadline, established by
the LIFE Act Amendments of 2000, was not subsequently extended. As
a result, Lordes was never eligible for adjustment of status
through the LIFE Act; the deadline had passed before he arrived in
the United States.
3
The IJ questioned Lordes's credibility with regard to the
second home invasion because, inter alia, the police report
indicated that Lordes had been at home during the attack, while he
testified that he had not been present. However, the IJ held that
even assuming Lordes's testimony had been credible, it was
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evidence to show that the attacks came about on account of his
membership in a labor union. The IJ noted that there was no
evidence regarding the extent of Lordes's involvement with a union,
or that he was a member of one at all. The IJ found it "far more
likely that the perpetrators attacked the respondent's home because
it was in a decent neighborhood where apparently people of adequate
means lived." The IJ held that Lordes could have relocated within
his own country. The IJ also concluded that the government of
Brazil was "not a party" to or "complicit in" any reported violence
against labor union organizers. Accordingly, the IJ "d[id] not
find it to be more likely than not that the respondent would be
persecuted if he returns to Brazil."
Although Lordes had not specifically requested protection
under the CAT, the IJ considered the claim sua sponte and concluded
that Lordes had not shown that "any segment of the government of
Brazil" would harm him. Instead, the IJ concluded that Lordes was
afraid of the "pervasive criminality" in Brazil. The IJ thus
denied protection under the CAT. The IJ also concluded that Lordes
was ineligible for voluntary departure because he had been served
with a Notice to Appear within one year of arriving in the United
States. See 8 U.S.C. § 1229c(b)(1)(A).
insufficient to establish the withholding of removal claim.
Because of these assumptions, we do not have to consider the impact
on this case of the REAL ID Act, which altered the standard for
evaluating an alien's credibility. See 8 U.S.C. §
1158(b)(1)(B)(iii).
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Lordes appealed to the BIA, which adopted and affirmed
the decision of the IJ. The BIA held that the ineffective
assistance of Lordes's prior counsel "did not affect the
respondent's untimely filing of his application for asylum" and
agreed with the IJ's conclusion that Lordes had "not demonstrated
he suffered past persecution in Brazil on account of a protected
ground." Lordes then filed this petition for review.
II.
Lordes asks us to reverse the determination by the IJ and
the BIA that his untimely filing of an application for asylum was
not excused by "extraordinary circumstances." However, under 8
U.S.C. §§ 1158(a)(3) and 1252(a)(2)(D), we do not have jurisdiction
to review the agency's application of the "extraordinary
circumstances" exception, unless the alien identifies a legal or
constitutional defect in the decision. Hana v. Gonzales, 503 F.3d
39, 43 (1st Cir. 2007).
Lordes identifies no such defect. Although he argues
that the jurisdictional bar in § 1158(a)(3) violates due process,
this argument is foreclosed by our holding in Hana, 503 F.3d at 44.
He also argues that Congress intended the "extraordinary
circumstances" exception to be interpreted broadly and that
Lordes's "extreme circumstances of ineffective assistance of
counsel, coupled with ignorance of the U.S. asylum law" constitute
such circumstances. However, this argument does not raise any
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constitutional or legal claims. Instead, it asks us to second-
guess the agency's assessment of the merits of the "extraordinary
circumstances" claim. This is precisely what we cannot do under §
1158(a)(3). Accordingly, we are without jurisdiction to review the
rejection of Lordes's asylum application on timeliness grounds.
III.
Lordes also challenges the denials of withholding of
removal and protection under the CAT. Where, as here, the BIA
adopts and affirms the IJ's ruling, and also discusses some of the
bases for the IJ's opinion, we review both the IJ's and the BIA's
opinions. Zheng v. Gonzales, 475 F.3d 30, 33 (1st Cir. 2007). We
afford a high degree of deference to factual findings in those
opinions and must allow them to stand "unless 'any reasonable
adjudicator would be compelled to conclude to the contrary.'"
Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005)
(quoting 8 U.S.C. § 1252(b)(4)(B)).
A. Withholding of Removal
An alien seeking withholding of removal, pursuant to 8
U.S.C. § 1231(b)(3)(A), must demonstrate that "his or her life or
freedom would be threatened in the proposed country of removal on
account of race, religion, nationality, membership in a particular
social group, or political opinion." 8 C.F.R. § 1208.16(b). The
alien may meet this burden by showing either past persecution,
which creates a rebuttable presumption of future persecution, or
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that "it is more likely than not" that he would suffer future
persecution if he returned. Id.; Hana, 503 F.3d at 42 n.2.
Lordes contends that his testimony that the three attacks
he experienced in Brazil were motivated by his labor union
membership was unrefuted and therefore conclusive. However,
"[w]here the record supports plausible but conflicting inferences,"
the IJ is free to choose between those inferences. Hincapie v.
Gonzales, 494 F.3d 213, 219 (1st Cir. 2007). In this case, the IJ
did just that, concluding that, based on Lordes's description, the
attacks had likely been motivated by "basic criminality and the
intent of evil doers to rob the respondent and his family of their
possessions." The BIA agreed with the characterization of Lordes
as a "victim of random violence." Even on the assumption that
Lordes's testimony was entirely credible, his conclusory statements
linking the three attacks to his union membership do not compel the
conclusion that he was targeted "on account of" that membership.
See Samayoa Cabrera v. Ashcroft, 367 F.3d 10, 14 (1st Cir. 2004)
("While an alien seeking asylum is not required to provide direct
proof of his persecutors' motives, he must provide some evidence of
such motives."). Accordingly, we affirm the determination that
Lordes did not demonstrate past persecution.
If no past persecution has been shown, the alien bears
the burden of demonstrating that it is more likely than not that he
or she would experience persecution in the future if he or she
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returned and that "it would not be reasonable for him or her to
relocate" within the home country to avoid threats of future
persecution. 8 C.F.R. § 1208.16(b)(2),(b)(3)(i). The IJ concluded
that Lordes had not met that burden and the BIA agreed, stating
that Lordes had "failed to demonstrate . . . that he would
experience problems throughout the country of Brazil." Lordes does
not address this issue in his appellate briefs. Accordingly, he
has abandoned the issue. Berrio-Barrera v. Gonzales, 460 F.3d 163,
168 & n.2 (1st Cir. 2006). In any event, the record supports the
conclusion that internal relocation would be feasible. Thus, his
withholding of removal claim fails.
B. CAT Protection
To be eligible for CAT protection, an alien must
demonstrate that it is more likely than not that he would be
tortured in his home country by the government or with its
acquiescence. 8 C.F.R. §§ 1208.16(c)(4), 1208.18(a)(1).
"Acquiescence" requires that a "public official, prior to the
activity constituting torture, have awareness of such activity and
thereafter breach his or her legal responsibility to intervene to
prevent such activity." 8 C.F.R. § 1208.18(a)(7). Lordes has
failed to establish that any segment of the Brazilian government
would torture him or acquiesce in his torture if he returned to
Brazil. Thus, he is ineligible for CAT protection.
Petition denied.
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