Moura v. Holder

United States Court of Appeals
For the First Circuit
No. 13-2046
ANTONIO D. MOURA,
Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
PETITION FOR REVIEW FROM AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
William P. Joyce and Joyce & Associates P.C. on brief for
petitioner.
Joanna L. Watson, Trial Attorney, Office of Immigration
Litigation, Civil Division, Stuart F. Delery, Assistant Attorney
General, Civil Division, and Ernesto H. Molina, Jr., Assistant
Director, Office of Immigration Litigation, on brief for
respondent.
July 14, 2014
LYNCH, Chief Judge. On September 2, 2011, an Immigration
Judge ("IJ") denied Antonio D. Moura's application for asylum,
withholding of removal, and protection under the Convention Against
Torture ("CAT"). The Board of Immigration Appeals ("BIA")
dismissed Moura's appeal from the IJ's decision on July 22, 2013.
Moura petitions for review of the BIA's decision, contesting only
its denial of his withholding of removal claim. The basis for
Moura's claim that his family was entitled to avoid removal was the
threats made by his daughter's former boyfriend. The BIA
disagreed. We deny the petition.
I.
Moura, a native and citizen of Brazil, came to the United
States on September 5, 2000.1 The Department of Homeland Security
initiated removal proceedings against him on February 18, 2009,
charging him as unlawfully present in the United States. See 8
U.S.C. § 1182(a)(6)(A)(i). Moura conceded removability and applied
for several forms of relief, including withholding of removal. As
to that claim, Moura alleged that he feared persecution in Brazil
because his daughter's ex-boyfriend had persecuted him due to his
membership in either one of two social groups: (1) the immediate
family of his daughter, Elizandra Moura (Elizandra), or (2) people
1
Moura testified before an IJ that he arrived in Orlando,
Florida in September 2000 on a visa. The record does not provide
other details as to Moura's arrival in the United States.
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who help Brazilian women escape "violent relationships where they
are viewed as property of their significant others."
Moura testified at a merits hearing before an IJ on
September 2, 2011. The IJ found him generally credible save as to
his testimony on a key point. We describe the relevant testimony
and evidence.
In 1993 Moura's daughter Elizandra, then sixteen, started
dating nineteen-year-old Nelton Silva De Oliveira (Silva). Moura
disapproved of the relationship because he had heard that Silva was
a drug dealer. He encouraged Elizandra to break-up with Silva.
She eventually did.
After Elizandra ended her relationship with Silva in
1996, Silva started to follow Elizandra and threatened to kill her.
As a result, Moura began taking Elizandra to and from school to
protect her from Silva. Moura also reported Silva's threats
against Elizandra to the local police. A translated statement from
a local police officer submitted as evidence said Moura had told
the police in 1996 that Silva had threatened to murder his daughter
out of jealousy. The police officer's statement explained that the
police could not issue a criminal complaint against Silva without
a statement from Elizandra, the victim. Moura testified that he
told Elizandra that she had to personally report Silva to the
police but that she refused, out of fear.
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In addition to verbal threats, Silva twice forced
Elizandra to ride on a motorcycle with him, saying "if she could
not belong to him, she would not belong to anyone else, and that
her father's death was already predicted." On one of those forced
rides, Silva caused an accident that broke Elizandra's leg. Local
police took a statement from Elizandra with regard to the accident
but she did not report the previous death threats.
Moura testified that Silva first threatened him
personally in 1996, saying that "if he could not marry [Elizandra],
[Moura] wold wake up dead with [his] mouth full of insects." Moura
testified that Silva also said: "if he could not get married and
have [Elizandra] with him always or forever, she would not belong
to anyone else. . . . And if I tried to do something to separate
them, for sure he would kill me." Moura could not remember the
number of times Silva had threatened him but clarified that the
"several threats" he had received were always by telephone. Silva
had also called Moura's wife and told her she should prepare to
become a widow.
In July 1997, Moura moved to Goiana, a town six hours
away from the family's hometown, to find a new home for the family
where they would be free from Silva. His family later joined him.
Moura testified that as soon as he had moved, Silva
called to say he was going to kill him. About six months after the
move, two men stabbed him in the stomach as he was leaving the
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store where he worked. The attack happened very quickly, and he
did not see who the attackers were. Nor did the attackers say
anything to him. Moura reported the incident to the police; they
said that they were unable to locate the perpetrators. Moura
believes Silva was responsible for the attack, but could not state
reasons to support his belief.
After the attack in Goiana, Moura moved to another
neighborhood with his family. Moura said that between 1997 and
2000, a three year period, no one in his family had any personal
contact with Silva, although Silva had called his wife and left
threatening messages for him during this period.
Moura came to the United States in September 2000 because
a friend gave him financial support for the journey and told him
his family could live a peaceful life in the United States.
Moura's wife joined Moura in the United States a couple of months
later, as did Elizandra and her husband, whom Elizandra had married
in October 2000.
Although it had been over a decade since Moura had any
contact with Silva, Moura testified that he feared Silva would kill
him if he returned to Brazil because Silva's criminal record, which
was also submitted as evidence, indicated that Silva was still
involved in criminal activities.2 Moura had also been told from
2
Silva's criminal record shows he has been prosecuted and
convicted of several crimes. Moura also testified that Silva had
been to jail many times.
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friends in Brazil that Silva asked about his whereabouts and had
vowed to "destroy[]" him.
The IJ issued an oral opinion after he had listened to
Moura's testimony and reviewed the record evidence. The IJ found
Moura to be credible except for Moura's testimony that Silva was
responsible for the stabbing he had suffered in Goiana. The IJ
found there was no evidence, only conjecture, to substantiate that
suspicion.
The IJ denied Moura's withholding of removal application
and granted him voluntary departure. Moura had not shown he was a
victim of past persecution on account of a statutorily protected
ground. There was no nexus between Silva's actions and threats
against Moura and a protected ground. Rather, the IJ found that
Silva was motivated by his "possessiveness" of Elizandra,
reasoning:
It is quite clear that [Silva] had a personal
dispute against [Elizandra] and the
[petitioner]. The purpose of [Silva's]
harming [Elizandra] and threatening [Moura]
was not to punish either one of them for a
belief or characteristic which they had which
he sought to overcome, but merely to satisfy
his own possessiveness. He repeatedly
maintained that if he could not have
[Elizandra], then no one would.
(emphasis added). Moura also had not established a well-founded
fear of future persecution.3
3
The IJ's denial of Moura's asylum and CAT claims are not at
issue here.
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Moura appealed to the BIA. On July 22, 2013, the BIA
dismissed the appeal, agreeing with the IJ that Silva's threats
were not on account of a protected ground but rather "motivated by
revenge and a personal dispute with [Moura] because [Moura's]
daughter wanted to cease her relationship with [Silva]." The BIA
concluded that the law does not authorize withholding based on an
applicant's "[f]ear of retribution over personal matters," and
Moura had not shown he had suffered past persecution on account of
a protected ground.
The BIA also agreed with the IJ that Moura had not
established a well-founded fear of future persecution. The BIA
explained, "[Moura] departed Brazil in 2000. There is no evidence
in the record that [Silva] continues to hold any animosity against
[Moura] or that he will seek to hurt the respondent upon his return
to Brazil."
In addition, the BIA, citing Rebenko v. Holder, 693 F.3d
87 (1st Cir. 2012), determined that Moura's withholding claim
failed because "the record does not indicate that the Brazilian
government would not assist or protect [Moura] from [Silva]." See
id. at 92 ("[V]iolence by private citizens . . ., absent proof that
the government is unwilling or unable to address it, is not
persecution." (second alteration in original) (quoting Butt v.
Keisler, 506 F.3d 86, 92 (1st Cir. 2007)) (internal quotation marks
omitted)). The BIA reinstated the IJ's grant of voluntary
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departure for a period of sixty days. The petition for review
followed.
II.
"Where the BIA has deferred to or adopted the IJ's
reasoning, we review the IJ's decision, as supplemented by the
BIA." Sam v. Holder, 752 F.3d 97, 99 (1st Cir. 2014). "We uphold
the BIA's findings if they are 'supported by reasonable,
substantial, and probative evidence on the record considered as a
whole.'" Budiono v. Mukasey, 548 F.3d 44, 48 (1st Cir. 2008)
(quoting Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir. 2005)).
We will not reverse factual findings unless "any reasonable
adjudicator would be compelled to conclude the contrary." Restrepo
v. Holder, 676 F.3d 10, 16 (1st Cir. 2012) (quoting Lin v.
Gonzales, 503 F.3d 4, 7 (1st Cir. 2007)) (internal quotation marks
omitted).
To qualify for withholding of removal, the applicant must
show by a clear probability that he will be persecuted on account
of a protected ground upon repatriation. Rotinsulu v. Mukasey, 515
F.3d 68, 71 (1st Cir. 2008). Moura does not dispute that, as a
matter of law, harm resulting from a personal dispute or personal
antagonism is not a basis for withholding of removal. See id. at
73 (citing the "well-settled rule that withholding of removal
cannot be premised on what is essentially a personal dispute");
Silva v. Ashcroft, 394 F.3d 1, 6 (1st Cir. 2005); Romilus v.
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Ashcroft, 385 F.3d 1, 6 (1st Cir. 2004) ("The [Immigration and
Nationality Act] is not intended to protect aliens from violence
based on personal animosity."). Rather, Moura contests the BIA's
factual findings. Moura argues that Silva threatened him because:
(1) he was part of Elizandra's nuclear family; and (2) he was a
member of a social group defined as those who help Brazilian women
escape violent relationships. He argues the BIA erred in
concluding that Silva was motivated by jealousy and possessiveness
of Elizandra, a personal matter, and not due to any immutable
characteristics of the petitioner.
Here, ample evidence supports the BIA's finding. First,
the threats were explicit as to Silva's motive, given Moura's
testimony that Silva had threatened to kill him "if he could not
marry [Elizandra]," and had repeatedly said that Elizandra would
not belong to anyone but him. Relatedly, Silva's threats against
Moura did not start until after Elizandra had ended their
relationship. In addition, the statement of the local police
force, submitted as evidence, said Moura had complained that Silva
had threatened to murder his daughter out of "jealousy."
Moura has not pointed to any record evidence that would
compel a different conclusion.4 We will not disturb the BIA's
4
If anything, Moura has mischaracterized the evidence. He
states that Silva "targeted anyone who sought to keep Elizandra
away from him," including Moura, Moura's wife, and Elizandra
herself. The evidence is, however, that Silva threatened only
Moura and Elizandra. Silva's phone calls to Moura's wife conveyed
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finding that Moura feared harm resulting from a personal dispute,
and so he has not suffered past persecution on account of a
protected ground.5 See Costa v. Holder, 733 F.3d 13, 17 (1st Cir.
2013) (upholding BIA's findings where substantial evidence showed
risk petitioner faced was personal and not due to membership in a
particular social group); see also Rotinsulu, 515 F.3d at 73
(holding that withholding of removal claim fails where petitioner's
evidence suggests alleged harm arose from a personal dispute
between petitioner and his former lover's family).
Nor has Moura cast doubt on the BIA's conclusion that he
has failed to establish a well-founded fear of future persecution.
Not only has Moura not shown any nexus to a protected ground, but
also there is scant evidence that Silva still intends to harm him.
The last time Silva contacted Moura directly was in 1997. Moura's
unsubstantiated statements that family members in Brazil have said
Silva occasionally inquires about him and has promised to destroy
death threats against Moura and were not direct threats against his
wife.
As to Moura's claim that Silva targeted him because he was
part of Elizandra's nuclear family, Moura points to no record
evidence that Silva targeted either of Elizandra's two sisters,
also members of that alleged social group.
5
Even if Moura convinced us that Silva's motivation was on
the basis of a protected ground, he would still have to show that
the evidence compels a finding that the Brazilian government is
unwilling or unable to address the violence he faces from a private
citizen. See Rebenko, 693 F.3d at 92.
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him do not undermine the BIA's finding of a lack of evidence as to
Silva's continued animosity toward Moura many years later.
Because the lack of nexus between Silva's conduct and a
protected ground is fatal to Moura's withholding of removal claim,
see Mayorga-Vidal v. Holder, 675 F.3d 9, 19 & n.5 (1st Cir. 2012),
we need not address Moura's other claims of error or whether Moura
has satisfied his burden of proof as to the other elements of
withholding of removal.
III.
For the reasons stated, the petition for review is
denied.
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