Paraense-Almeida v. Ashcroft ( 2004 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2205
ELISABETH PARAENSE-ALMEIDA,
A/K/A ELIZABETH FONSECA-DE ALMEIDA,
Petitioner,
v.
JOHN ASHCROFT,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Porfilio,* Senior Circuit Judge,
and Howard, Circuit Judge.
Kerry E. Doyle, with whom William E. Graves, Jr. and Graves &
Doyle were on brief, for petitioner.
Jennifer J. Keeney, Trial Attorney, Office of Immigration
Litigation, Civil Division, with whom Peter D. Keisler, Assistant
Attorney General, and Emily Anne Radford, Assistant Director, were
on brief, for respondent.
August 18, 2004
*
Of the Tenth Circuit, sitting by designation.
Per Curiam. Petitioner Elisabeth Paraense-Almeida
("Paraense") appeals the Board of Immigration Appeal's ("BIA")
decision denying her applications for asylum, withholding of
removal, and voluntary departure. We affirm.
I. Background
Paraense is a native and citizen of Brazil. On April 25,
1998, Paraense was arrested, along with her sister,1 while crossing
the border between the United States and Mexico. On April 26,
1998, the Immigration and Naturalization Service ("INS")2 filed a
Notice to Appear charging Paraense with being removable as an alien
present in the United States without being admitted or paroled.
See 8 U.S.C. § 1182(a)(6)(A)(i). Paraense appeared before an
immigration judge, conceded removability, and applied for asylum,
withholding of removal, and voluntary departure. In an oral
decision, the immigration judge denied Paraense's applications for
asylum and withholding of removal, and found that Paraense was
statutorily ineligible for voluntary departure. Paraense appealed
1
Paraense's sister appeared with Paraense before the immigration
judge and appealed the immigration judge's decision to the BIA.
Paraense's sister has not appealed the BIA's decision to this
court.
2
In March 2003, the relevant functions of the INS were
transferred into the Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
("BICE"). For simplicity, we refer to the agency throughout this
opinion as the INS.
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this decision to the BIA, and on July 31, 2003, a single member of
the BIA adopted and affirmed the decision of the immigration judge.
II. Analysis
A. Asylum
An asylum applicant, such as Paraense, bears the burden
of demonstrating her eligibility for asylum. See Albathani v. INS,
318 F.3d 365, 373 (1st Cir. 2003). She can meet this burden by
demonstrating past persecution or a well-founded fear of future
persecution based on "race, religion, nationality, membership in a
particular social group, or political opinion." Id. (quoting 8
C.F.R. § 208.13(b)) (internal quotation marks omitted). To
establish past persecution, an applicant must provide "conclusive
evidence" that she was targeted on any of the five grounds.
Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st Cir. 2003). To show a
well-founded fear of future persecution, an applicant must meet
both subjective and objective prongs. Id. To satisfy the
objective prong, an applicant's testimony alone may be sufficient,
but it must constitute credible and specific evidence of a
reasonable fear of persecution. El Moraghy v. Ashcroft, 331 F.3d
195, 203 (1st Cir. 2003). To meet the subjective prong, the
applicant must show her fear is genuine. See Aguilar-Solís v. INS,
168 F.3d 565, 572 (1st Cir. 1999).
"Determinations of eligibility for asylum or withholding
of deportation are reviewed under the substantial evidence
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standard." Fesseha, 333 F.3d at 18. The agency decision is upheld
if it is "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." Id. (quoting INS v.
Elías-Zacarías, 502 U.S. 478, 481 (1992)). Under the substantial
evidence standard, "[t]o reverse the BIA finding we must find that
the evidence not only supports that conclusion, but compels
it. . . ." Elías-Zacarías, 502 U.S. at 481 n.1 (emphasis in
original). "Ordinarily, Courts of Appeals review decisions of the
[BIA], and not those of an IJ. When the BIA does not render its
own opinion, however, and either defers [to] or adopts the opinion
of the IJ, a Court of Appeals must then review the decision of the
IJ." See Settenda v. Ashcroft, No. 03-1722, 2004 WL 1718288, at 7
(1st Cir. Aug 2, 2004)(quoting Albathani v. INS, 318 F.3d at 373)).
Paraense testified to the following facts. She was born
in 1978 and lived in northern Brazil. She is of Ciapo Indian
descent. Her parents and most of her siblings still live in
Brazil. In 1994, Paraense's brother was shot and killed in front
of their family's home. At first, Paraense thought her brother was
killed during a robbery. In December 1997, however, Paraense
learned from her father that her brother was killed by squatters
who had a land dispute with Paraense's father. Paraense testified
that her father, who managed properties, evicted squatters from
some land at the instruction of the land's owner. During the
eviction, one of the squatters was killed. Paraense testified that
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her brother was killed in retaliation for the eviction. At her
father's urging, Paraense fled Brazil to avoid the escalating land
disputes. She testified that she did not want to suffer the same
fate as her brother. She also testified that she was never
personally threatened and that her parents and siblings still live
in Brazil. Along with her testimony, Paraense presented
documentary evidence that detailed land conflicts in Brazil.
The immigration judge concluded that Paraense did not
establish a nexus between her brother's death and her contention
that she feared she would suffer persecution if she returned to
Brazil. Further, the immigration judge noted that Paraense safely
lived in Brazil for over three years after her brother was killed.
The immigration judge denied Paraense's asylum application. The
BIA adopted the immigration judge's decision and found that
Paraense had not met her burden of showing past persecution or a
well-founded fear of future persecution on account of a protected
ground. These findings are supported by substantial evidence.
1. Past Persecution
Paraense argues that she was persecuted because of her
family membership and the political opinion imputed to her on the
basis of her family membership. Paraense bases this argument on
her brother's murder in 1994 by squatters seeking revenge against
her father for evicting them. In her brief, Paraense asserts that
she was persecuted because of her family membership. However,
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Paraense never discusses how the alleged past persecution based on
her family membership constitutes a form of past persecution on
account of membership in a particular social group.3 "We have
steadfastly deemed waived issues raised on appeal in a perfunctory
manner, not accompanied by developed argumentation." United States
v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997). Paraense failed
to adequately argue that past persecution on account of her family
was a form of past persecution on account of membership in a
particular social group. We therefore conclude that the argument
is waived.
Paraense also tries to characterize her father's
participation in the land disputes as indicative of his political
opinion. However, Paraense has failed to show that her father's
actions in evicting the squatters constituted a political opinion.
See Cuevas v. INS, 43 F.3d 1167, 1170-71 (7th Cir. 1995) (refusal
to sell land to squatter is an economic, not political, choice);
Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 351-52 (5th Cir. 2002)
(no evidence that persecution of landlord was a result of politics
rather than economics). Further, Paraense's sister testified at
the hearing that Paraense's brother was not politically active in
Brazil, and there was no testimony that Paraense or any family
member held or expressed any political opinions. Paraense has
3
After making the statement that she was persecuted on account of
her family membership, Paraense simply moves on to discuss her fear
of future persecution.
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failed to show that her brother was murdered for an imputed
political opinion, and we therefore find that the record does not
compel a conclusion that Paraense suffered past persecution on
account of any imputed political opinion.
2. Well-Founded Fear of Future Persecution
Substantial evidence also exists to support the
determination that Paraense did not demonstrate a well-founded fear
of future persecution. Paraense argues that, based on her
brother's murder and the often violent land disputes that are
occurring in Brazil, she has a well-founded fear of future
persecution. To establish a well-founded fear, Paraense must prove
that her fear is "both genuine and objectively reasonable."
Aguilar-Solís, 168 F.3d at 572. We focus our discussion on the
objective prong. The relevant inquiry is "whether a reasonable
person in the asylum applicant's circumstances would fear
persecution on account of a statutorily protected ground." Id. We
believe that a reasonable person in Paraense's circumstances would
not fear persecution on account of a statutorily protected ground.
Paraense's brother was murdered in March 1994. Paraense
entered the United States in April 1998. Paraense presented no
evidence that, in the nearly four-year interim between her
brother's death and her departure from Brazil, she or her family
was threatened or harmed as a result of the land disputes described
in her testimony and in the documentary evidence. Furthermore,
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Paraense's parents and siblings remain in Brazil, and there was no
evidence submitted that they have been harmed or threatened since
Paraense left Brazil. See id. at 573 ("Without some explanation,
the fact that close relatives continue to live peacefully in the
alien's homeland undercuts the alien's claim that persecution
awaits [her] return"); see also Velásquez v. Ashcroft, 342 F.3d 55,
59 (1st Cir. 2003). This evidence does not compel a finding that
a reasonable person in Paraense's circumstances would fear
persecution on account of a statutorily protected ground.
Paraense also argues that the immigration judge erred
because he made no credibility finding and rejected Paraense's
documentary evidence on the grounds that it did not specifically
mention Paraense or her family. See El Moraghy, 331 F.3d at 204.
However, both the immigration judge and the BIA treated Paraense's
story as credible; they simply found that her experiences did not
constitute past persecution or provide evidence of a well-founded
fear of future persecution. While it is true that the immigration
judge noted that Paraense's country condition reports did not
specifically mention her or her family, there is no indication that
he rejected them completely. Rather, the immigration judge's
decision indicates that, because Paraense remained at home for
several years after her brother's murder without incident and
because no one else in her family had been harmed or threatened,
she did not have a well-founded fear of future persecution.
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We find substantial evidence to support the findings that
Paraense failed to demonstrate past persecution due to a protected
ground and failed to demonstrate a well-founded fear of future
persecution due to a protected ground. We affirm the denial of
asylum.
B. Withholding of Removal
If a petitioner is unable to satisfy the less stringent
standard for asylum, she is a fortiori unable to satisfy the test
for withholding of deportation. Albathani, 318 F.3d at 372.
C. Due Process
Paraense contends that the BIA did not provide a clear
administrative finding because it adopted and affirmed the
immigration judge's decision and added only four sentences of
analysis.4 We have already ruled that the BIA's streamlined
procedures do not violate a petitioner's due process rights. See,
e.g., Albathani, 318 F.3d at 375-78 (holding that the BIA's
"affirmance without opinion" procedure does not violate due
process). "If due process requirements are met when the BIA
affirms the IJ's finding without issuing any opinion, the due
process requirements are certainly met when the BIA affirms the
IJ's finding with a brief explanatory order." Settenda, 2004 WL
1718288 at *7. Thus, we reject Paraense's claim that the BIA
4
While the BIA's decision is four paragraphs long, Paraense's
complaint is that only four sentences analyze the case, while the
rest recite the facts of the case.
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violated her due process rights by failing to provide a clear
administrative finding or adequately review and establish the
record of the case. See id.Paraense, citing to 8 C.F.R. §§ 1003.1(a)(7) and e(5),
also contends that the BIA's single-member decision violated its
own procedures for evaluating and handling a case. We have already
held that this argument is unavailing, for a variety of reasons.
See Settenda, 2004 WL 1718288 at 6-7 (finding that comments to the
final rule make it clear that single members may go beyond issuing
affirmance without opinion, and that § 1003.1(e)(5) is more
specific and was adopted after § 1003.1(a)(7), and therefore
supercedes § 1003.1(a)(7)).
Last, Paraense contends that the IJ did not afford her a
fair hearing because the IJ interrupted Paraense during
questioning. "An immigration judge, like other judicial officers,
possesses broad (though not uncabined) discretion over the conduct
of trial proceedings." Aguilar-Solís, 168 F.3d at 568. While
possessing broad discretion, an immigration judge must function as
a "neutral and impartial arbiter[]." Id. at 569. In this case,
the immigration judge acted in a neutral manner. The immigration
judge did not restrict Paraense's opportunity to present her
testimony or other evidence fully. While he may have exhibited
impatience and abruptness, "[t]his is not the stuff from which a
due process violation can be fashioned." Id. (citing Liteky v.
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United States, 510 U.S. 540, 555-56 (1994)(stating that
"expressions of impatience, dissatisfaction, annoyance, and even
anger" do not by themselves establish judicial bias)). In sum, we
find that Paraense had a full and fair hearing. Id.Affirmed.
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