Luiz Claudio Francisco v. U.S. Attorney General ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14300
Non-Argument Calendar
________________________
Agency No. A093-440-769
LUIZ CLAUDIO FRANCISCO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 12, 2014)
Before HULL, MARCUS, and FAY, Circuit Judges.
PER CURIAM:
Luiz Claudio Francisco, a native and citizen of Brazil, seeks review of the
Board of Immigration Appeals (“BIA”)’s dismissal of his appeal from the
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Immigration Judge (“IJ”)’s denial of his application for withholding of removal
and for relief under the United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). We deny
Francisco’s petition for review.
I. BACKGROUND
A. Background Facts
Francisco testified he began working as a driver for one of the directors of a
candidate for the presidency of the Metalworkers Union in Rio de Janeiro in 1998.
He was paid only part of his wages and was told he would be completely paid,
when the campaign ended. In April 1998, the candidate was elected as union
president; Francisco still was not paid his full wages and was told to be patient.
During a May 1998 union meeting, Francisco told the Union president he had not
yet been paid and, if he was not paid, he would denounce the Union on the radio.
The president warned Francisco against following through with his threat and
ejected him from the meeting.
Approximately one week later, while he was walking home from a soccer
match, three men he did not know called him by name and confronted him about
his threat. The men cursed at Francisco, beat him, and kicked him for
approximately three or four minutes. As the men left, they told Francisco “this
was only a message and . . . next time . . . [his] family would be lighting candles
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for [him].” ROA at 89. Francisco reported the incident to the police, who did not
seem to take him seriously.
In June 1998, he called a radio program and spoke about how the Union had
not paid him and had sent men to assault him, when he complained. He identified
himself on the radio, and approximately two days later, he began receiving
threatening phone calls. Callers cursed at him and said he “had just signed [his]
death sentence.” ROA at 92. Francisco received approximately 15 calls over the
next month or two.
In September 1998, Francisco and his brother opened a store in a small town
approximately 200 kilometers from Rio de Janeiro. That December, the store was
broken into and most of the merchandise was stolen. An unidentified man later
telephoned Francisco and told him, next time, he would not only lose his
merchandise, but also would lose his life. Francisco believed this man was
associated with the union, because a common thief would not call him and threaten
his life. He reported the break-in to police. Approximately three days after the
break-in, Francisco moved in with his aunt, where he hid until he left the country.
His aunt lived approximately 50 kilometers from the city in which his store had
been located. He continued to receive anonymous telephone calls while living
with his aunt. Francisco entered the United States on March 1, 1999, with
permission to stay until September 1, 1999.
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B. Course of Proceedings
In September 2011, Francisco was issued a Notice to Appear (“NTA”)
charging him with removability under INA § 237(a)(1)(B), 8 U.S.C.
§ 1227(a)(1)(B), for being an alien who, having been admitted as a non-immigrant,
remained in the United States for a longer time than permitted. Francisco applied
for withholding of removal under the Immigration and Nationality Act (“INA”)
based on political opinion and membership in a particular social group and CAT
relief. 1
During a hearing before an IJ, Francisco admitted the factual allegations in
the NTA, conceded removability, and identified his social group as “Brazilians
who express a disapproval of union practices.” ROA at 109. Francisco testified to
the facts above. He could not recall the names of the Union candidate and director
for whom he had worked as a driver, although he had worked in that job for 8-20
hours per day, 5-6 days per week, for 2 months. Francisco did, however, identify
by name and frequency the radio station on which he had denounced the Union.
Francisco testified he was afraid to return to Brazil, because he feared for his
life from the union. He would not be safe anywhere in Brazil, because the union
has a presence throughout the country. According to Francisco, the previous
Brazilian president had served as president of the steel union in São Paulo, and the
1
Francisco initially also sought asylum, but he has since withdrawn that claim.
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current Brazilian president previously had worked in the union with the previous
Brazilian president.
Francisco testified he had asked his brothers to seek corroborating
documents from the police, the radio station, and the union. They had been
unsuccessful, because 14 years had passed, and the entities could not find any of
the information they requested. One brother had written a letter explaining their
efforts and why they had not succeeded, but Francisco had not received it, and he
had not asked for another letter.
Francisco could not confirm whether any of the people involved in his prior
union incidents were still alive. He explained he did not fear the union members
but “the union itself.” ROA at 104. But he had not received a threatening phone
call since he had lived with his aunt in Brazil. He had not asked his aunt to provide
him with a statement.
The parties submitted the 2010 and 2011 U.S. Department of State’s Human
Rights Reports for Brazil (“Country Reports”). The references to union activities
in the Country Reports noted authorities in Brazil at times did not effectively
enforce laws protecting union members from discrimination.
The IJ denied Francisco’s requests for relief and ordered him to be removed
to Brazil. The IJ concluded Francisco’s testimony was not credible, because:
(1) he could not remember the names of the union members for whom he had
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worked; (2) his testimony was vague; and (3) he could not identify anyone in the
Union, who would want to harm him. Moreover, Francisco had failed to provide
corroborating evidence, as required by the REAL ID Act of 2005. The IJ
alternatively determined Francisco had not established a right to relief on the
merits of his claims.
Francisco appealed to the BIA. The BIA considered Francisco credible for
purposes of review and dismissed his appeal for lack of corroboration. In his
petition for review, Francisco argues his testimony sustained his burden of proof,
regardless of his inability to obtain corroborating records. 2
II. DISCUSSION
Where the BIA issues its own opinion, without expressly adopting the IJ’s
opinion, but affirms and relies upon the IJ’s decision and reasoning, we first review
the IJ’s opinion, to the extent the BIA found the IJ’s reasons were supported by the
record. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009). We then
review the BIA’s decision as to those matters on which it rendered its own opinion
and reasoning. Id. We review factual determinations under the substantial-
evidence test. Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1330 (11th Cir. 2011)
(per curiam). Substantial evidence is such relevant evidence as a reasonable
2
Because Francisco has failed to brief any claim he may have had for CAT relief, he has
abandoned the issue. See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005)
(per curiam) (“When an appellant fails to offer argument on an issue, that issue is abandoned.”).
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person would accept as adequate to support a conclusion. Todorovic v. U.S. Att’y
Gen., 621 F.3d 1318, 1323-24 (11th Cir. 2010). Under this test, we view the
record evidence in the light most favorable to the decision and draw all reasonable
inferences in favor thereof. Carrizo, 652 F.3d at 1330. We will reverse an IJ’s
factual findings only if the evidence compels a reasonable factfinder to find
otherwise. Id. at 1331. The mere fact that the record may support a contrary
conclusion is not enough to justify a reversal. Diallo v. U.S. Att’y Gen., 596 F.3d
1329, 1332 (11th Cir. 2010) (per curiam).
An alien is entitled to withholding of removal upon a showing that, if
returned to his country, his life or freedom would be threatened in that country
because of his race, religion, nationality, membership in a particular social group,
or political opinion. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir.
2005) (per curiam) (citing INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A)). An
alien may make such a showing in two ways. Tan v. U.S. Att’y Gen., 446 F.3d
1369, 1375 (11th Cir. 2006). He may establish past persecution in his country
based on a protected ground, or he may show it is more likely than not he will be
persecuted on account of a protected ground upon return to his country. 8 C.F.R.
§ 208.16(b)(1)-(2); Tan, 446 F.3d at 1375. Persecution is “an extreme concept,
requiring more than a few isolated incidents of verbal harassment or intimidation.”
Sepulveda, 401 F.3d at 1231 (citation and internal quotation marks omitted).
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The alien’s testimony may be sufficient to sustain his burden without
corroboration, but only if the factfinder finds his testimony is credible, is
persuasive, and refers to specific facts sufficient to establish a right to relief. See
INA § 241(b)(3)(C), 8 U.S.C. § 1231(b)(3)(C) (cross-referencing INA
§ 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii)); 8 C.F.R. § 208.16(b); Yang v.
U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). “The weaker an applicant’s
testimony, however, the greater the need for corroborative evidence.” Yang, 418
F.3d at 1201. After the passage of the REAL ID Act of 2005, when the IJ
determines an alien should provide evidence to corroborate otherwise credible
testimony, such evidence must be provided unless the alien shows he does not have
the evidence and cannot reasonably obtain it. INA § 208(b)(1)(B)(ii), 8 U.S.C.
§ 1158(b)(1)(B)(ii). No court may reverse a factfinder’s determination as to the
availability of corroborating evidence unless the court determines a reasonable
factfinder is “compelled to conclude that such corroborating evidence is
unavailable.” INA § 242(b)(4), 8 U.S.C. § 1252(b)(4).
Assuming, as the BIA did, Francisco’s testimony was credible, the record
does not compel a finding that his testimony was sufficiently detailed to establish
past persecution or a well-founded fear of future persecution without some
corroborating evidence. See Carrizo, 652 F.3d at 1331; see also INA
§ 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii). Francisco could not identify by
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name the Union officials for whom he had worked, and his testimony contained no
facts suggesting any union members involved in his prior, 14-year-old altercations
were still active in the union or interested in him. He identified no threats in the 14
years since he left Brazil. The Country Reports, which indicated union members
themselves were targets of discrimination, undermined Francisco’s vague
allegations as to widespread official support of union activities in Brazil.
Francisco’s reliance on Niftaliev v. U.S. Att’y Gen., 504 F.3d 1211 (11th Cir.
2007), is misplaced. The petitioner in Niftaliev provided extensive and detailed
testimony about “protests, beatings, arrests, searches, interrogations, being
imprisoned for fifteen days, being held with little food or water, being threatened
with being shot and even continued harassment” when he left his home country.
Niftaliev, 504 F.3d at 1217. We concluded the “cumulative effect” of the
petitioner’s testimony established past persecution without the need for
corroboration. Id. Francisco, by contrast, identified a single assault by unknown
men, several anonymous telephone threats over a two-to-three month period, and a
burglary of his store by unknown individuals, which was followed by another
anonymous telephone call. Given the weaknesses in Francisco’s testimony, the
record does not compel the conclusion that the BIA erred in finding it was
insufficient, absent corroboration, to establish his life or freedom would be
threatened in Brazil because of a protected ground. See INA § 241(b)(3)(A), 8
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U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b); Carrizo, 652 F.3d at
1330; Sepulveda 401 F.3d at 1231-32. Nor does the record compel the conclusion
that corroborating evidence was unavailable, given Francisco’s failures to seek
corroboration from his aunt and to follow-up with his brother as to the brother’s
letter. See INA § 242(b)(4), 8 U.S.C. § 1252(b)(4).
PETITION DENIED.
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