Wanderson Aguiar-Ferreira v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 20-2377
WANDERSON AGUIAR FERREIRA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
On Petition for Review of a Final Order
of the Board of Immigration Appeals
(No. A098-962-620)
Immigration Judge: Mirlande Tadal
Submitted Under Third Circuit L.A.R. 34.1(a)
March 11, 2021
Before: SMITH, Chief Judge, MCKEE, and AMBRO, Circuit Judges
(Opinion filed: April 20, 2021)
OPINION *
AMBRO, Circuit Judge
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Wanderson Aguiar-Ferreira seeks our review of the Board of Immigration
Appeals’ (“BIA”) refusal to extend his briefing deadline and rejection of his applications
for withholding of removal and protection under the Convention Against Torture
(“CAT”). We deny his petition.
I.
Aguiar-Ferreira, a native of Brazil, entered the United States in May 2005 without
admission or parole. The Department of Homeland Security immediately began removal
proceedings. In June 2005, after Aguiar-Ferreira failed to appear for his first hearing, he
was ordered removed in absentia. But he did not depart the country. Years later,
removal proceedings recommenced, and Aguiar-Ferreira applied for asylum, withholding
of removal, and protection under the CAT.
The Immigration Judge (“IJ”) held a hearing in November 2019. 1 At the hearing,
Aguiar-Ferreira claimed he feared returning to Brazil because in March 2016, years after
his departure from that country, an off-duty police officer killed his cousin after an
argument. The killing was not random: Aguiar-Ferreira testified that he and his cousin
had a longstanding relationship with the officer, who had repeatedly bullied them.
Aguiar-Ferreira further asserted that, when he called a Brazilian police station after the
killing, an unidentified individual threatened that he would be killed like his cousin if he
returned to the country. However, Aguiar-Ferreira made clear during the hearing that he
1
Aguiar-Ferreira suggests in his brief that the IJ issued an adverse credibility
determination, see, e.g., Pet’r’s Br. at 33, but this is inaccurate. The IJ expressly found
him credible. A.R. at 99.
2
had no issues with other police officers during the years he lived in Brazil and has no
reason to believe the Brazilian police are looking for him. And news reports suggest his
cousin’s killer surrendered to the police and was detained.
In December 2019, the IJ denied all of Aguiar-Ferreira’s applications. 2 Aguiar-
Ferreira appealed to the BIA, but his counsel failed to file a timely brief. Three weeks
after the deadline, in March 2020 counsel moved for an extension of the deadline,
claiming she never received the briefing schedule. Although counsel reported she was
not sure why this happened, she “suspect[ed]” the postal worker may have delivered the
document to her neighbor’s mailbox by accident, which was apparently a common
occurrence. A.R. at 59. Counsel indicated that she only became aware she had missed
the deadline when Aguiar-Ferreira himself called the BIA’s hotline and discovered his
brief was late.
The BIA denied counsel’s motion because it was untimely and failed to give good
cause for the delay. Approximately two weeks later, counsel filed a document styled as a
“motion for reconsideration for late-filed brief,” along with a proposed brief. The motion
for reconsideration effectively restated the argument in counsel’s initial motion for an
extension and provided no additional corroboration of the mailing issue. Counsel’s sole
new argument was that she had been ill for approximately one week (with what she now
believes may have been COVID-19) before submitting the motion for reconsideration
and the untimely brief.
2
The IJ denied Aguiar-Ferreira’s asylum application as untimely, a decision he does not
challenge before us.
3
In June 2020, the BIA dismissed Aguiar-Ferreira’s appeal. As an initial matter, it
denied counsel’s motion for reconsideration for lack of good cause. But instead of
summarily dismissing the appeal based on counsel’s failure to file a timely brief, the BIA
turned to the merits. It affirmed the IJ’s conclusion that the threat Aguiar-Ferreira
received from an unidentified person at the Brazilian police station was not persecution.
And although Aguiar-Ferreira attempted to show he was persecuted based on his
membership in the proposed social group of “family member[s] of [a] cousin who was
killed by police in Brazil,” the BIA affirmed the IJ’s determination that this group was
not cognizable because it was not socially distinct within Brazilian society. A.R. at 9–10.
Finally, the BIA affirmed the IJ’s conclusion that Aguiar-Ferreira had not established
eligibility for protection under the CAT, because he did not show it was more likely than
not he would be tortured with the acquiescence of a public official upon a return to
Brazil.
Aguiar-Ferreira filed a petition for review. However, counsel then missed yet
another important deadline by failing to file a timely appearance form. Only after a
warning from the Clerk’s Office that the petition would be dismissed if she failed to
comply did counsel finally enter her appearance—43 days after the first deadline.
II.
The BIA had jurisdiction to review the IJ’s removal decision under
8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have jurisdiction to review a final order of
removal under 8 U.S.C. § 1252(a)(1). Because only the BIA can issue a final order of
removal, our jurisdiction is limited to review of the BIA’s decision. Guzman Orellana v.
4
Att’y Gen., 956 F.3d 171, 177 (3d Cir. 2020). However, “we also review the IJ’s decision
to the extent it is adopted, affirmed, or substantially relied upon by the BIA.” Id.III.
Aguiar-Ferreira raises three main arguments in his petition for review. None
provides a basis for granting the petition.
A. The BIA’s Refusal to Extend the Briefing Deadline
Aguiar-Ferreira first challenges the BIA’s refusal to extend the briefing deadline.
The Government argues we should review the BIA’s denial of counsel’s motion for
reconsideration on this issue only for abuse of discretion. We agree. Although neither
party has identified case law setting a standard of review in this specific context, we
typically review for abuse of discretion in analogous situations. See, e.g., Pllumi v. Att’y
Gen., 642 F.3d 155, 158 (3d Cir. 2011) (motions to reconsider or reopen); Ponce-Leiva v.
Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003) (motions to continue). Under this standard, we
reverse only if the BIA’s decision was “arbitrary, irrational, or contrary to law.” Hashmi v.
Att’y Gen., 531 F.3d 256, 259 (3d Cir. 2008).
No abuse of discretion is apparent here. Aguiar-Ferreira’s counsel did not provide
good cause for her failure to file a timely brief. Although she claimed the post office
frequently misdelivered her mail, she provided no corroboration (through an affidavit or
otherwise) of this issue. Moreover, it is undisputed that counsel was aware of the issue
long before the briefing notice was issued in this case, yet it does not appear that she took
reasonable steps to fix the problem in a timely fashion. And counsel’s claim that she was
“ill” is a red herring because she asserted that her illness occurred after the briefing
5
deadline had already passed. Finally, the BIA did not penalize Aguiar-Ferreira by
summarily dismissing his appeal for failure to file a timely brief—instead, it issued a
thorough, well-reasoned opinion addressing his claims on the merits. Hence the BIA did
not abuse its discretion on this issue.
B. Withholding of Removal
Aguiar-Ferreira next challenges the rejection of his withholding-of-removal claim.
This argument is unpersuasive. As an initial matter, there are significant gaps in
counsel’s brief: it fails to address, except in cursory fashion, the reasons the BIA gave for
rejecting Aguiar-Ferreira’s withholding claim. As such, these arguments are arguably
forfeited. Cf. United States v. Shaw, 891 F.3d 441, 455 n.17 (3d Cir. 2018) (“Arguments
raised in . . . a cursory fashion, without adequate citation to the record and authority, are
deemed waived.”).
But even considering the issue on the merits, 3 Aguiar-Ferreira’s claim fails. To
establish eligibility for withholding of removal, a petitioner must show that, “if returned
to his country, it is more likely than not that [his] life or freedom would be threatened on
account of [a protected ground].” Amanfi v. Ashcroft, 328 F.3d 719, 726 (3d Cir. 2003).
If the petitioner shows he has experienced past persecution, he is entitled to a rebuttable
presumption that future persecution will occur for the same reason. See 8 C.F.R.
3
We review the BIA’s legal conclusions de novo, Doe v. Att’y Gen., 956 F.3d 135, 141
(3d Cir. 2020), and we defer to its factual findings “if they are supported by reasonable,
substantial, and probative evidence in the record considered as a whole,” S.E.R.L. v. Att’y
Gen., 894 F.3d 535, 543 (3d Cir. 2018).
6
§ 1208.16(b)(1)(i); see also Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 684 (3d Cir.
2015).
The BIA soundly affirmed the IJ’s conclusion that Aguiar-Ferreira failed to
establish past persecution. Notably, Aguiar-Ferreira experienced no physical harm
during the approximately 17 years he lived in Brazil. The sole incident of persecution he
alleges was an isolated, unfulfilled threat in 2016 from an unidentified individual.
“[U]nfulfilled threats must be of a highly imminent and menacing nature in order to
constitute persecution.” Li v. Att'y Gen., 400 F.3d 157, 164 (3d Cir. 2005). The non-
specific threat Aguiar-Ferreira received approximately five years ago did not meet this
threshold. Aguiar-Ferreira does not allege he has received any threats since that time,
and he concedes he has no reason to believe the Brazilian police are looking for him.
Even if Aguiar-Ferreira had established the requisite persecution, the BIA properly
rejected Aguiar-Ferreira’s attempt to link that persecution to his membership in a
particular social group of “family members of cousins killed by police.” To constitute a
particular social group, a group must be, among other criteria, “socially distinct within
the society in question.” S.E.R.L., 894 F.3d at 540 (citation omitted). 4 Aguiar-Ferreira
4
Aguiar-Ferreira argues that we should overturn the BIA’s decision in Matter of A-B-, 27
I. & N. Dec. 316, 344 (AG 2018), which discusses the three-part framework for
establishing a particular social group, including the social distinction requirement. This
argument fails for more than one reason. As the Government points out, the BIA did not
announce a new framework in Matter of A-B-; it simply reiterated the framework it had
previously adopted—a framework to which we have deferred under Chevron U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), in a precedential
opinion. See S.E.R.L., 894 F.3d at 540. Moreover, even if we had the authority as a
panel to overturn our Court’s prior precedent, Aguiar-Ferreira has provided no
explanation why we should do so.
7
has provided no basis for us to conclude that his “home society actually does recognize
[his proposed] group as being a ‘distinct’ and identifiable group.” Id. at 553. His only
argument on this point is that his proposed group is “socially distinct within the society in
question because the police abused his governmental authority.” Pet’r’s Br. at 26. This
statement provides no support for Aguiar-Ferreira’s claim; whether the officer abused his
governmental authority has no bearing whatsoever on whether Aguiar-Ferreira’s
proposed social group is socially distinct. His withholding-of-removal claim therefore
fails. 5
C. Convention Against Torture
Finally, Aguiar-Ferreira argues the BIA erred in rejecting his CAT claim. We are
unpersuaded. As with his withholding-of-removal claim, Aguiar-Ferreira’s brief does not
adequately address each of the BIA’s specific reasons for rejecting his CAT claim, thus
arguably forfeiting the issue. See Shaw, 891 F.3d at 455 n.17. And the CAT-related
arguments that Aguiar-Ferreira does raise are unsupported and conclusory. For example,
Aguiar-Ferreira argues that the BIA “deviated from the Matter of G-A holding and put an
5
Aguiar-Ferreira states, without meaningful support or elaboration, that the BIA’s
handling of his withholding-of-removal claim violated his right to due process. Because
his argument on this issue is so conclusory, we will not address it in detail. However, it
is worth noting that Aguiar-Ferreira does not argue the BIA denied him due process by
refusing to grant his counsel an extension of the briefing deadline. Instead, his argument
focuses solely on the BIA’s substantive approach to his withholding claim, yet cites
mostly Ninth Circuit case law focusing on procedural due process. At bottom, Aguiar-
Ferreira has provided no basis for concluding the BIA denied him “the right to a full and
fair hearing that allow[ed] [him] a reasonable opportunity to present evidence on [his]
behalf” with respect to his withholding claim. Abdulrahman v. Ashcroft, 330 F.3d 587,
596 (3d Cir. 2003) (internal quotation marks and citation omitted).
8
impermissible burden of proof upon” him. Pet’r’s Br. at 35. But his counsel fails even to
provide a citation for the Matter of G-A case or explain why she believes the BIA
departed from the holding in that case.
Even addressing the CAT issue on the merits, Aguiar-Ferreira cannot prevail. To
succeed on this claim, he needed to show that, if he were removed, “it is more likely than
not” he would be tortured “by, or at the instigation of, or with the consent or
acquiescence of, a public official or other person acting in an official capacity.” See 8
C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1); Sevoian v. Ashcroft, 290 F.3d 166, 174–75 (3d
Cir. 2002). “Torture is an extreme form of cruel and inhuman treatment and does not
include lesser forms of cruel, inhuman, or degrading treatment or punishment.” 8 C.F.R.
§ 1208.18(a)(2). In evaluating whether a petitioner is likely to be tortured, the agency
considers “all evidence relevant to the possibility of future torture,” including evidence of
“past torture inflicted upon the applicant.” 8 C.F.R. § 1208.16(c)(3).
The BIA reasonably concluded that Aguiar-Ferreira did not suffer torture in the
past because the threat he experienced does meet even the level of persecution, let alone
to the arguably more demanding standard for torture. Moreover, there is no indication
that any torture Aguiar-Ferreira might theoretically face would be by or with the
acquiescence of a public official, particularly given that the tragic death of his cousin
seems to have stemmed from a personal vendetta, and the officer who killed his cousin
appears to have surrendered and been detained by the authorities, at least temporarily.
Accordingly, we reject Aguiar-Ferreira’s CAT argument.
9
IV.
We conclude with an admonishment to Aguiar-Ferreira’s counsel, and to other
attorneys representing petitioners in removal proceedings. “Because aliens often do not
speak English and are usually unfamiliar with our laws and procedures, they are
particularly vulnerable to inadequate counsel.” Xu Yong Lu v. Ashcroft, 259 F.3d 127,
132 (3d Cir. 2001). And the stakes in immigration proceedings—whether an individual
may stay in this country or will be detained or removed—are extraordinarily high. It is
therefore essential that counsel in immigration cases take care to represent their clients
diligently. While we do not take the extraordinary step of sanctioning Aguiar-Ferreira’s
counsel today, we are troubled by some of her repeated failings in this case—missing
critical deadlines, failing to make a genuine effort to remedy or justify those errors, and
filing a brief that forfeited dispositive issues. Given the weaknesses in Aguiar-Ferreira’s
case, it does not appear that counsel’s failings in these areas prejudiced her client. But
under other circumstances they could easily have done so. We urge counsel, and others
in her position, to take their obligations to their clients seriously to avoid these sorts of
issues in the future.
* * * * *
We deny Aguiar-Ferreira’s petition for review.
10