Goncalves Carvalho v. Garland ( 2024 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 23-1250
JOAO PAULO GONCALVES CARVALHO; J.V.A.C.,
Petitioners,
v.
MERRICK B. GARLAND, United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Lynch, Rikelman,
Circuit Judges.
Saher J. Macarius, Audrey Botros, and Law Offices of Saher J.
Macarius LLC on brief for petitioner.
Sunah Lee, Senior Trial Attorney, Office of Immigration
Litigation, Cindy S. Ferrier, Assistant Director, Office of
Immigration Litigation, and Brian Boynton, Principal Deputy
Assistant Attorney General, Civil Division, U.S. Department of
Justice on brief for respondent.
August 13, 2024
LYNCH, Circuit Judge. Joao Paulo Goncalves Carvalho and
his son, Joao Victor Antunez Carvalho, of Brazil, petition for
review of a decision of the Board of Immigration Appeals ("BIA")
affirming an Immigration Judge's ("IJ") order denying their
applications for asylum, and the father petitions for review of
the denial of his application for withholding of removal as well
as relief under the Convention Against Torture ("CAT"). See 8
U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A); 8 C.F.R. §§ 1208.16(c)(2),
1208.18(a)(1); see also Convention Against Torture, art. 3, Dec.
10, 1984, S. Treaty Doc. No. 100-20 (1988).
The IJ found Goncalves Carvalho not to be credible in
his testimony in support of these applications. The BIA upheld
the IJ’s denials of relief, finding, inter alia, that there was no
error in the IJ's finding that the petitioner's testimony was not
credible and, in the alternative, that the petitioner failed to
sustain his burden of proof for asylum and withholding of removal
even if his testimony were found credible. The BIA further found
that there was no error in the IJ's finding that the petitioner
failed to demonstrate eligibility for CAT protection.
We need not reach the BIA's alternative ground for
denial. The BIA and IJ's (collectively, "the agency") adverse
credibility determination is supported by substantial evidence and
is alone sufficient to deny the petitioner's application for asylum
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and withholding of removal. We also agree with the agency that
the petitioner has not met the standard for protection under CAT.
We deny the petition for review.
I.
The petitioner and his son1 entered the United States on
or around April 5, 2018 without valid entry documents. The next
day, they were served with Notices to Appear, charging them with
removability pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). The
petitioner and his son conceded removability in pleadings
submitted to the IJ and at an initial hearing before the IJ on
September 13, 2018. On October 15, 2018, the petitioner filed an
application for asylum, naming his son as a derivative beneficiary,
and for withholding of removal and protection under CAT. He
submitted a written declaration, dated October 12, 2018, in
support of his claims.
The petitioner appeared before the IJ on September 12,
2019, represented by counsel, where he was the sole witness to
1 We refer to Goncalves Carvalho throughout as the
"petitioner," acknowledging that Antunez Carvalho has a derivative
claim for asylum. Antunez Carvalho is not, however, eligible for
withholding of removal or protection under CAT because these forms
of relief do not carry derivative benefits and Antunez Carvalho
did not file any separate applications. See Mariko v. Holder, 632
F.3d 1, 1 n.1 (1st Cir. 2011).
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testify.2 The IJ found the petitioner's testimony to be not
credible.
The IJ denied the petitioner's applications and ordered
the petitioner and his son removed to Brazil. The IJ found that
the petitioner did not qualify for asylum for two independent
reasons, the first being that his testimony was not credible and
lacked sufficient corroborating evidence to meet his burden of
proof. The IJ found the petitioner's testimony to be not credible
because "[t]here were too many inconsistencies between his
testimony and his written statement" and "[t]he omissions [were]
glaring and significant." The petitioner failed to provide a
"satisfactory" explanation for these inconsistencies. The IJ
further found that "there [was] very little corroborating evidence
in the record other than country conditions evidence." The IJ
accordingly found that the petitioner "[had] failed to meet his
statutory burden of proof for asylum." In the alternative, the IJ
also found that even if the petitioner's testimony had been
credible, the petitioner's alleged harms were still insufficient
to demonstrate persecution on account of a protected ground.
The IJ then held that it necessarily followed that the
petitioner "cannot meet the higher burden of proof for withholding
2 While Goncalves Carvalho did not claim protection under CAT
in his initial pleadings before the IJ, we consider his claim as
made in his asylum application.
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of removal." The IJ also denied the petitioner's claim for
protection under CAT because the petitioner presented no evidence
showing that "the police in any way acquiesced or turned a blind
eye to the activity going on to harm him."
The petitioner appealed to the BIA, arguing again
through counsel that he: (1) gave credible testimony;
(2) demonstrated past persecution on account of his political
opinion and religion;3 and (3) demonstrated a fear of future
persecution on the same grounds.
The BIA affirmed. First, the BIA "discern[ed] no clear
error in the Immigration Judge's adverse credibility finding."
The BIA agreed with the IJ that the inconsistencies between the
petitioner's testimony and written declaration "go beyond mere
3 The petitioner's brief before the BIA framed this issue as
one of "past persecution due to political opinion and membership
in a particular social group." (Emphasis added). However, the
brief made no arguments as to particular social group, and
petitioner's counsel had withdrawn the argument before the IJ.
The BIA accordingly found a claim based on particular social group
waived. The BIA also found a claim based on race waived because
the petitioner did not meaningfully challenge the IJ's finding
regarding this claim nor did he "make any meaningful arguments on
appeal regarding race." We agree. The petitioner argues before
this court that the petitioner's "race is tied to his religious
beliefs as well," suggesting that any argument made on account of
religion should also be taken as an argument on account of race.
But this argument was not properly exhausted before the BIA, and
we do not consider it. See Singh v. Garland, 87 F.4th 52, 58-59
(1st Cir. 2023) ("[W]e consistently have held that arguments not
made before the BIA may not make their debut in a petition for
judicial review of the BIA's final order." (quoting Gomez-Abrego
v. Garland, 26 F.4th 39, 47 (1st Cir. 2022))(internal quotation
marks omitted in original)).
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details and relate to whether the [petitioner] suffered
persecution in Brazil, a central aspect of his asylum claim." The
BIA also agreed that the petitioner "did not submit sufficient
corroborating evidence." In the alternative, assuming the
credibility of the petitioner's testimony, the BIA concluded that
the petitioner had failed to establish any nexus between his
alleged harms and a protected ground.
The BIA affirmed the IJ's finding that the petitioner
did not satisfy "the higher standard of a clear probability of
persecution as required for withholding of removal under the INA."
The BIA also affirmed the IJ's finding that the petitioner did not
demonstrate eligibility for CAT protection because the petitioner
failed to meet his burden of proof.
This timely petition for review followed.
II.
"We review the BIA's decision . . . as the agency's
final decision and look to the IJ's decision only 'to the extent
that the BIA deferred to or adopted the IJ's reasoning.'" Mendez
v. Garland, 67 F.4th 474, 481 (1st Cir. 2023) (quoting Chavez v.
Garland, 51 F.4th 424, 429 (1st Cir. 2022)). We apply the
deferential "substantial evidence standard" to the IJ's factual
findings, including adverse credibility determinations, which
"requires us to accept the [IJ's] factual findings . . . unless
the record is such as to compel a reasonable factfinder to reach
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a contrary conclusion." Dorce v. Garland, 50 F.4th 207, 212 (1st
Cir. 2022) (emphasis and omission in original) (quoting
Mazariegos-Paiz v. Holder, 734 F.3d 57, 64 (1st Cir. 2013)). For
adverse credibility determinations, "we narrowly inquire whether:
(i) the discrepancies articulated by the IJ and/or the BIA are
actually present in the administrative record; (ii) the
discrepancies generate specific and cogent reasons from which to
infer that petitioner or his witnesses provided non-creditworthy
testimony; and (iii) petitioner failed to provide a persuasive
explanation for these discrepancies." Cuko v. Mukasey, 522 F.3d
32, 37 (1st Cir. 2008).
We first turn to the petitioner's asylum application.
In order to succeed on an asylum application, a petitioner must
"'demonstrate a well-founded fear of persecution on one of five
protected grounds' -- race, religion, nationality, political
opinion or membership in a particular social group." Paiz-Morales
v. Lynch, 795 F.3d 238, 243 (1st Cir. 2015) (quoting Singh v.
Holder, 750 F.3d 84, 86 (1st Cir. 2014)); see 8 U.S.C.
§§ 1101(a)(42), 1158(b)(1)(B)(i). A petitioner must demonstrate
that one of the five protected grounds is at least "one central
reason for the harm alleged." Barnica-Lopez v. Garland, 59 F.4th
520, 528 (1st Cir. 2023) (quoting Sanchez-Vasquez v. Garland, 994
F.3d 40, 47 (1st Cir. 2021) (internal quotation marks omitted));
8 U.S.C. § 1158(b)(1)(B)(i). A petitioner's "testimony, if
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credible, can on its own be sufficient to meet this burden." Jin
Lin v. Holder, 561 F.3d 68, 71 (1st Cir. 2009). However, the
testimony "may be discounted or completely disregarded" if the
agency finds it to be not credible. Id.The IJ and BIA both concluded that the petitioner's
testimony was not credible and lacked corroborating evidence.
Substantial evidence supports this conclusion. We affirm.
Credibility determinations in cases filed after May 11,
2005, such as the petitioner's, are controlled by the REAL ID Act.
Pub. L. No. 109–13, § 101(a)(3), 119 Stat. 302, 303 (codified at
8 U.S.C. § 1158(b)(1)(B)(iii)); see Mariko, 632 F.3d at 5. Under
that standard, the IJ considers "the totality of the circumstances,
and all relevant factors," including "the consistency between the
applicant's or witness's written and oral statements" and "the
consistency of such statements with other evidence of record." 8
U.S.C. § 1158(b)(1)(B)(iii). "In the event that an applicant is
found not to be entirely credible in [his] testimony, corroborating
evidence may be used to bolster [his] credibility." Jin Lin, 531
F.3d at 72.
The IJ's adverse credibility determinations here rested
on material discrepancies between the petitioner's testimony on
September 12, 2019 and his written declaration dated October 12,
2018. We begin with the unequivocal facts in the record before
turning to these discrepancies. The petitioner was thirty-seven
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years old at the time of the hearing. The petitioner testified
that in Brazil, he borrowed 80,000 reals from a loan shark, which
he has not repaid and cannot repay, and which he said has spawned
a series of threats to him and his family. In addition, the
petitioner asserts that he is an Evangelical Christian and that he
has been targeted due to his religion and race. This targeting
includes being called racial slurs and some other incidents
discussed below.
As the IJ found, the petitioner's description of the
threats he and his family received in connection with the
outstanding loan are inconsistent with his declaration. In his
declaration, the petitioner referred to a single and unaccompanied
loan shark, stating that "[h]e went to my house on many occasions
to threaten me" and that "[h]e also went to the door of my son's
school to threaten him," and related no other threats. (Emphases
added). His declaration did not state that the loan shark was
armed or that he was accompanied. In contrast, in his testimony,
the petitioner stated that "three guys showed up to my house and
called me outside to talk, and they were armed." (Emphases added).
And the petitioner, in his testimony, added an additional incident:
that they threatened the petitioner outside the hospital after his
second child was born, stating that they would harm his family.
The IJ also properly noted inconsistencies in the
petitioner's various accounts of the harm he said he had incurred
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on the basis of his race and religion. Absent from his written
declaration, but present in his testimony, he said that he and his
family: (1) were beaten while walking to church and called
religious slurs; (2) were barred by Catholics, using physical
force, from participating in an open-air mass on account of their
Evangelical religion; and (3) were barred from using the bathroom
in a commercial establishment on account of their race and were
called racial slurs. Further, the petitioner testified that he
was robbed of money and jewelry on account of his race and
religion, but in his declaration, he stated only that "[p]eople
attempted to rob me near my house." (Emphasis added). When asked
about these inconsistencies during the hearing, the petitioner
first answered that he "didn't imagine that every detail was
necessary for the entire trajectory of all the threats that
happened." He later gave the different explanation that he "was
interrogated by seven agents for the immigration" and that "[t]he
last one stuck his finger in my face," even though the declaration
at issue was authored months following his entry into the United
States.
The record supports the agency's holding that the
petitioner had not submitted corroborating evidence in support of
his claims. The only corroborating evidence submitted by the
petitioner was a copy of his passport and marriage certificate,
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country conditions reports, and external reports and articles with
more information on country conditions.
The IJ gave specific and cogent reasons for her adverse
credibility finding, pointing toward inconsistencies that are
replete within the record. The petitioner was given multiple
opportunities to explain the inconsistencies but provided only
conflicting and unreasonable explanations. The petitioner failed
to present any evidence corroborating his testimony, such as any
evidence of the purported loan, any medical documentation of his
injuries, or even evidence of his Evangelical Christian faith. An
adverse credibility determination "dooms [an asylum
application] . . . if the alien's case for asylum rests
exclusively on his testimony," and such is the case here. Ahmed
v. Holder, 765 F.3d 96, 101 (1st Cir. 2014).4
We turn next to the petitioner's application for
withholding of removal under 8 U.S.C. § 1231(b)(3). To succeed,
the petitioner "must show that, if returned to his homeland, he
4 The petitioner argues that the BIA abused its discretion in
failing to address the petitioner's "separate ground for relief"
based on a well-founded fear of future persecution. Not so. The
BIA's adverse credibility determination necessarily reached both
petitioner's claim based on past persecution and that based on a
well-founded fear of future persecution because his whole case
turned on his testimony. See Ahmed, 765 F.3d at 101 (upholding
the BIA's denial of petitioner's asylum claim based on fear of
future persecution that the BIA found "to be dependent upon the
petitioner's incredible testimony and, thus, inadequately
supported").
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would more likely than not be subject to persecution on account of
a statutorily protected ground." Amouri v. Holder, 572 F.3d 29,
35 (1st Cir. 2009). "A petitioner who cannot clear the lower
hurdle for asylum will necessarily fail to meet the higher bar for
withholding of removal." Paiz-Morales, 795 F.3d at 245. Here,
the petitioner's asylum claim fails, so his withholding of removal
claim fails as well.
We turn last to the petitioner's application for
protection under CAT. We agree with the BIA that the petitioner
"has not shown that it is more likely than not he would be tortured
by, or at the instigation of, or with the consent or acquiescence
(including willful blindness) of a public official or other person
acting in an official capacity upon removal to Brazil." See
Hincapie v. Gonzales, 494 F.3d 213, 221 (1st Cir. 2007) ("[T]he
infliction of harm does not constitute torture within the meaning
of the CAT unless that harm is inflicted by, at the direction of,
or with the acquiescence of government officials."); see also 8
C.F.R. § 1208.16(c)(2); 8 C.F.R. § 1208.18(a)(1). The agency
based its conclusion on the fact that the petitioner "testified
that he does not fear any persons in the government of Brazil,"
has "never been physically harmed by anyone from the government of
Brazil," and has "never reported any of [the alleged instances of
persecution] to the police." The agency buttressed its conclusion
with the fact that the petitioner testified that the police
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"interceded and protected" him and his son "on the one occasion
that they were present." (Emphasis added). Substantial evidence
supports the agency's conclusion based on these facts.
The petition for review of the decision of the BIA is
denied.
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