Ferreira v. Holder, Jr.

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-1554
ROBSON ALVES FERREIRA,
Petitioner,
v.
LORETTA E. LYNCH,* Attorney General,*
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Thompson, and Barron,
Circuit Judges.
Nina J. Froes on brief for petitioner.
Lisa Morinelli, Trial Attorney, Office of Immigration
Litigation, Joyce R. Branda, Assistant Attorney General, Civil
Division, and Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, on brief for respondent.
October 9, 2015
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Loretta
E. Lynch has been substituted for former Attorney General Eric
H. Holder, Jr. as the respondent.
THOMPSON, Circuit Judge. Petitioner Robson Alves
Ferreira ("Alves Ferreira"), a native and citizen of Brazil, asks
this Court to review a decision from the Board of Immigration
Appeals ("BIA") affirming an Immigration Judge's ("IJ") denial of
his application for asylum. For the reasons that follow, we deny
Ferreira's petition for judicial review.
BACKGROUND
In May 2002, Alves Ferreira entered the United States on
a visitor visa, and then remained beyond the time the visa
permitted. In 2006, he got married, and the marriage lasted about
two years. After his marriage ended, Alves Ferreira learned that
his wife, who was also a native of Brazil, had been working as an
informant for Immigration and Customs Enforcement ("ICE"), and
that she was providing information about Brazilians to ICE, which
caused others in the Brazilian community to be angry at both of
them. On at least one occasion, a woman named Carmen threatened
Alves Ferreira because of his wife's actions.
Eventually, in October 2008, Alves Ferreira himself was
apprehended by ICE agent Craig DeLuzo. According to Alves
Ferreira, DeLuzo made a deal with him: if he provided information
as to the whereabouts of certain Brazilian nationals of interest
to ICE, DeLuzo would "help" him. Alves Ferreira kept up his end
of the bargain, and, as a result of information he provided, a
woman named Ana Maria was deported to Brazil. When Ana Maria's
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nephew, Oziel, found out his aunt had been deported, he told Alves
Ferreira that if he learned who had informed on his aunt, the
informant would be killed upon return to Brazil. Alves Ferreira
believed this death threat was serious because he knew Oziel to be
involved in the drug trafficking trade and in the death of
individuals in Brazil.
It is also around this time that Alves Ferreira's car
was vandalized, he noticed people sitting in cars outside his home
(on one occasion someone took a picture of his license plate), and
he began to receive hang-up phone calls -- all of which he believed
to be related to his activities as an informant. As a result,
Alves Ferreira sought psychological care, and was diagnosed with
depression and prescribed medication.
Meanwhile, despite the assistance he had provided ICE,
removal proceedings continued against Alves Ferreira, with DeLuzo
apparently unable or unwilling to do anything to help. Alves
Ferreira conceded removability and sought asylum, withholding of
removal, and protection under the Convention Against Torture
("CAT").1
After granting several continuances for reasons not
relevant to this appeal, the IJ held a hearing on February 2, 2012,
at which Alves Ferreira, represented by counsel, was the sole
1 He did not apply for voluntary departure.
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witness. In addition to his testimony, Alves Ferreira submitted
a news article and country conditions reports describing corrupt
police practices in Brazil, photographs and records demonstrating
the damage to his car, a restraining order he had taken out against
his wife, and his mental health records.
The IJ issued an oral ruling at the hearing in which she
did not make an adverse credibility finding against Alves Ferreira,
but expressed "some doubts about the credibility of his testimony."
Specifically, the IJ found it suspect that the submitted medical
records reflected only depression associated with traumatic
separation from his wife and concerns regarding his immigration
status, and made no mention of the threats Alves Ferreira had
received or his fears for his safety related to his role as an ICE
informant. And, she noted, his original application for asylum
made no mention of his cooperation with ICE.
The IJ then went on to deny asylum on these grounds:
(1) that Alves Ferreira (who was not entitled to a presumption of
future persecution because he conceded he had not suffered past
persecution) had failed to meet his burden of establishing a well-
founded fear of persecution on account of either political opinion2
or membership in a social group, in that he had failed to identify
2 Alves Ferreira did not raise this issue of his eligibility
for asylum on account of political opinion in his appeal to the
BIA, and does not raise it before this Court, so we say no more of
it.
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a viable social group; (2) that he had not met the government
action element of his claim, as he had not made any showing that
the private individuals he feared were in league with the
government or not controllable by the government; and (3) that
even if he had been able to corroborate his testimony, the single
direct threat he testified to receiving was insufficient to form
the basis of well-founded fear of persecution. Having denied
asylum, the IJ also denied eligibility for withholding of removal,
which is subject to a higher burden of proof, and denied protection
under the CAT, as he had not demonstrated that he would be subject
to torture by or with the acquiescence of a public official.
Alves Ferreira timely appealed the IJ's rulings on
asylum and withholding of removal (but not the denial of protection
under the CAT) to the BIA, which dismissed his appeal and affirmed
the denials. In its review, the BIA "agree[d] with the [IJ] that
even if the respondent satisfied the credibility and the
corroboration requirements of the REAL ID Act, he did not meet his
burden of proof to establish that he was persecuted, or faces a
well-founded fear of future persecution . . . on account of his
purported membership in a particular social group." By the way,
the REAL ID Act of 2005 (the "REAL ID Act"), Pub. L. No. 109-13,
119 Stat. 302, concerns "among other things, the standards
governing credibility determinations and the need for
corroboration of testimony in asylum cases." Dhima v. Gonzales,
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416 F.3d 92, 95 n.3 (1st Cir. 2005). The BIA also agreed with the
IJ’s determination that Alves Ferreira failed to establish a
connection to government action or inaction, and that he had failed
to show that the "private citizens" he feared are "either aligned
with the government or that the government is unable or unwilling
to control" them. The BIA affirmed the IJ's denial of withholding
of removal. Finally, the BIA found no due process violation where
the IJ initially stated the incorrect standard for asylum but later
corrected the record to apply the correct standard.
This petition followed. Alves Ferreira's arguments on
appeal can be distilled into two errors that he claims the BIA
committed in denying his application for asylum:3 first, that it
should not have affirmed the IJ's ruling that he failed to
establish membership in a social group; and second, that it should
have found that his due process rights were violated when the IJ
did not give him an opportunity to corroborate his testimony.4 For
3 Alves Ferreira raises no argument relating to the BIA's
decision affirming denial of withholding of removal, and so has
abandoned any challenge to that ruling.
4 Alves Ferreira also again contends that the IJ made a legal
error when she misspoke during her oral ruling and stated the
incorrect burden of proof, an error she later corrected for the
record. Specifically, he says that on the recording, the IJ said,
"The respondent has not established that it is more likely than
not that his life or freedom would be threatened on account of
either of the grounds he identifies in his application." But to
be eligible for asylum, applicants do not need to show that
persecution is more likely than not, only that they have a well-
founded fear of the event happening. See INS v. Cardoza-Fonseca,
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the reasons below, both arguments fail, so we affirm the denial of
asylum.
DISCUSSION
I. Standard of Review
We usually focus our review on the BIA's decision, but
where "the BIA adopts portions of the IJ's findings while adding
its own gloss, we review both the IJ's and the BIA's decisions as
a unit." Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012). This
Court upholds decisions of the BIA with respect to asylum if
"supported by reasonable, substantial, and probative evidence on
the record considered as a whole." INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992) (citation omitted). Where the issue is
whether the BIA was justified in finding that the petitioner failed
to carry his burden of proof, review permits reversal "only if the
petitioner's evidence would compel a reasonable factfinder to
conclude that relief was warranted." Settenda v. Ashcroft, 377
F.3d 89, 93 (1st Cir. 2004). Legal conclusions are reviewed de
novo. Id.
480 U.S. 421, 440 (1987). On appeal, the BIA rejected Alves
Ferreira's argument that this was reversible error, noting that
the IJ had corrected herself soon after, that the transcript of
the IJ's ruling reflects that she applied the correct burden of
proof for asylum, and that, in any case, "the dispositive issue in
this case is particular social group." We reject his arguments
for the same reasons.
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II. Analysis
A. Social Group
We address the social group issue first. An asylum
applicant must prove that he is unable or unwilling to return to
his country of nationality either due to past "persecution or a
well-founded fear of [future] persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion."5 8 U.S.C. § 1101(a)(42)(A); id.
§ 1158(b)(1)(B)(i). Here, the IJ ruled that Alves Ferreira failed
to identify a social group at all, and that, even if she assumed
the group he intended to identify was informants cooperating with
law enforcement, this would not be a viable social group under
immigration law.
On appeal to the BIA, Alves Ferreira contended for the
first time that his purported social group was not voluntary
informants, but informants cooperating under duress, and argued
that, despite his failure to designate it as his social group, as
much should have been obvious to the IJ based on his written and
oral testimony. The BIA declined to consider this argument,
explaining that Alves Ferreira "did not present, as was his burden,
5 Alves Ferreira does not claim that he suffered past
persecution, which gives rise to a rebuttable presumption of future
persecution, so the burden in this case was on him to affirmatively
prove a well-founded fear of future persecution based on one of
the enumerated grounds. Palma-Mazariegos v. Gonzales, 428 F.3d
30, 34-35 (1st Cir. 2005).
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this argument during his proceedings before the [IJ], and it
therefore is waived on appeal." Alves Ferreira now wants us to
remand the case back to the IJ for consideration so that he can
better lay out his intended social group as those "known in the
Brazilian community as an ICE informant, whose assistance, under
duress, resulted in the deportation of at least one person to
Brazil." We decline to do so because we find that the BIA was
correct to find this argument waived. See Kechichian v. Mukasey,
535 F.3d 15, 21-22 (1st Cir. 2008) (finding no error where the BIA
refused to address a claim that had not been properly raised before
the IJ). It was Alves Ferreira's burden to identify the particular
social group or groups in which he claimed membership, and he
failed to meet this burden. The record indicates he never
identified his particular social group in his asylum application,
written affidavit, or testimony before the IJ.
Furthermore, the government argues, and we agree, that
it does not matter whether the BIA erred in upholding the IJ's
ruling on the social group issue because Alves Ferreira develops
no argument challenging the IJ's additional ruling that he failed
to establish any connection to government action or inaction -- an
issue that is dispositive of whether asylum should have been
denied. Recall that it was Alves Ferreira's burden to establish
a well-founded fear of persecution on account of a protected
category. Persecution "necessarily implies some connection to
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government action or inaction," meaning that the government "must
practice, encourage, or countenance it, or at least prove itself
unable or unwilling to combat it." Lopez Perez v. Holder, 587
F.3d 456, 461-62 (1st Cir. 2009) (citation omitted). Here, the
BIA affirmed the IJ's ruling that Alves Ferreira failed to
establish such a connection to government action because he failed
to establish that the private individuals he feared were either
connected to the government or not controllable by the government,
and Alves Ferreira does not appeal that ruling before this Court.
To the extent that Alves Ferreira addresses the
government action issue in his petition, he does so only to make
the pitch that the IJ's ruling on the government action issue was
based on her social group ruling (which he contends was erroneous),
and therefore should automatically be remanded along with it for
reevaluation in light of a better-defined social group. But he
does not provide any argument or additional evidence to indicate
a basis on which the IJ -- even if she found this new social group
posited by him to be viable -- would find that the Brazilian
government is unwilling or unable to protect informants
cooperating under duress, as opposed to voluntary informants.
Furthermore, although Alves Ferreira argues that the "country
conditions reports submitted in this case made it clear that
witnesses are not protected by the government," referencing
reports of Brazil's problem protecting witnesses involved in
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criminal cases, and "that police are corrupt and operate with
impunity," he neither explains how he is such a "witness" in either
iteration of his purported social group, nor has he articulated an
argument for why he could not seek protection from the Brazilian
government against private individuals like Oziel.6 We would thus
be hard-pressed to read this as an appeal of the government action
issue. See Vallejo Piedrahita v. Mukasey, 524 F.3d 142, 144 (1st
Cir. 2008) ("Issues adverted to on appeal in a perfunctory manner,
unaccompanied by some developed argumentation, are deemed to have
been abandoned.") (citation omitted). On that basis alone, then,
we need go no further to uphold the BIA's decision affirming denial
of asylum.
B. Due Process
As for Alves Ferreira's due process challenge, which we
review de novo, see Ticoalu v. Gonzales, 472 F.3d 8, 11 (1st Cir.
2006), it also fails. Alves Ferreira argues that the BIA should
have found that the IJ violated his due process rights to a full
and fair hearing by not giving him a chance to corroborate his
testimony after stating in her oral ruling that, though she did
not make an adverse credibility finding, she did not wholly believe
his testimony. But "before a petitioner in an immigration case
may advance a procedural due process claim, he must allege some
6 Oziel himself was deported to Brazil sometime during the
pendency of the proceedings.
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cognizable prejudice fairly attributable to the challenged
process." Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004). He
does not do so here.
The IJ ruled, and the BIA affirmed, that even if Alves
Ferreira had satisfied the credibility and corroboration
requirements, he would still have been denied asylum because he
failed to meet his burden of proof to establish either membership
in a viable social group or that any persecution he feared was
connected to a government action or inaction. Because he would
have been denied asylum even if he had been given an opportunity
to further corroborate his testimony, there is no cognizable
prejudice and Alves Ferreira's attempt to raise a due process claim
fails.
CONCLUSION
For the reasons above, we deny the petition for judicial
review.
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