Halmenschlager v. Mukasey

Case: 08-9514 Document: 01018255319
FILED
Date Filed: United States Court 1 Appeals
07/31/2009 Page: of
Tenth Circuit
August 14, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
MARCELO HALMENSCHLAGER,
Petitioner,
v. No. 08-9514
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AMENDING DECISION
Before O’BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.
This matter is before the court on Respondent Eric H. Holder, Jr’s Motion
For Technical Correction of Decision. In the motion, the government correctly
identifies an error in the Order & Judgment filed in this matter on July 31, 2009.
Specifically, the decision improperly referred to the BIA’s review as a single
judge review when, in fact, a three member panel reviewed the appeal from an
IJ’s decision. Respondent seeks correction of that error, and also seeks deletion
and amendment of other language used in the Order & Judgment.
Upon careful consideration, the motion is granted in part and denied in
part. We grant that portion of the request seeking correction of the language used
to reference the Board’s review. We deny that portion of the motion seeking to
Case: 08-9514 Document: 01018255319 Date Filed: 07/31/2009 Page: 2
amend this court’s statement: “We acknowledge a facially apparent disparity
between the BIA’s view and our view of its appellate role with regard to factual
determinations and legal conclusions in persecution cases.” We add, however, at
the end of the paragraph immediately preceding the quoted language the
following: “Compelling as it may be, that dictum cannot resolve the dilemma
because it is in tension with our precedents.”
An amended decision is attached to, and incorporated in, this order. The
clerk is directed to issue the amended Order & Judgment nunc pro tunc to our
original July 31, 2009, filing date.
Entered for the Court
ELISABETH A. SHUMAKER
Clerk of Court
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Case: 08-9514 Document: 01018255319
FILED
Date Filed: United States Court 3 Appeals
07/31/2009 Page: of
Tenth Circuit
July 31, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
MARCELO HALMENSCHLAGER,
Petitioner,
v. No. 08-9514
(Petition for Review)
ERIC H. HOLDER, JR., *
United States Attorney General,
Respondent.
ORDER AND JUDGMENT **
Before O’BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.
An Immigration Judge (IJ) granted Marcelo Halmenschlager’s petition for
asylum, finding him to be a refugee based upon incidents of mistreatment and his
fears of future persecution because of his homosexuality. The Board of
Immigration Appeals (BIA) accepted the factual findings of the IJ but concluded
*
Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for
Michael B. Mukasey as the respondent in this appeal.
**
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Case: 08-9514 Document: 01018255319 Date Filed: 07/31/2009 Page: 4
“the evidence of record does not establish an objective well-founded fear of
persecution.” Admin. R. at 2. It vacated the grant of asylum and ordered
Halmenschlager removed to Brazil. He petitioned for judicial review of the order
of removal. We deny the petition.
Background
Halmenschlager, a self-described homosexual with effeminate traits, was
apprehended in 2004 when he attempted to enter this country illegally. He
conceded the charge of removability and sought asylum based on his sexual
orientation.
At the hearing before the Immigration Judge (IJ), Halmenschlager was the
only witness. He testified at length concerning his experiences in Brazil. By his
first year in school, he realized he was different from other boys. Schoolmates
called him names, laughed at him, and beat him. Other children, especially boys,
would not play with him. He changed schools in the third grade but he was still
harassed and beat by other children. He was afraid to tell the teachers because he
believed the more people who knew of his problems, the more he would be
subjected to mistreatment. Most of his friends in high school were girls. He had a
troubled relationship with his stepfather who said Halmenschlager was not the
type of son he expected.
Two adverse incidents occurred by the time Halmenschlager was seven
years old. At age five or six, teenagers exposed themselves to him and at age
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seven a man exposed himself and fondled him. Adults were of little assistance--
his teachers did not help him and his stepfather ignored him.
In a later incident, when he was sixteen, a male neighbor exposed himself
to Halmenschlager and a female friend. They reported the incident to a police
officer who lived in the neighborhood. The officer brought the neighbor to the
police station. The neighbor blamed Halmenschlager for the incident because he
was effeminate and the neighbor was never punished.
Self-conscious and fearful, Halmenschlager tried to avoid going out in
public. But when he began working at the airport and attending university
classes, he needed to commute by public transportation. Every day people called
him names and he was worried that someone would follow him. At work he and a
homosexual co-worker were isolated from the public because his boss was
ashamed of the way he gestured when dealing with people.
Because of depression he quit the airport job, but five months later the
airport hired him back. He was required to register for military service, but was
excused because he had rheumatic fever as a child. When he went to register
soldiers called him names and said they would have some fun with him once he
was in the army. A boyfriend broke off their relationship for fear of being
identified as a homosexual. Halmenschlager was miserable and pretty much
restricted himself to his home to avoid unpleasant interactions. He went to a
psychiatrist who treated him for depression and anxiety disorder. He took Prozac.
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A friend told him of another homosexual who had been murdered due to his
sexual orientation. He no longer wishes to hide his sexual orientation and believes
he would not be safe anywhere in Brazil. Halmenschlager left Brazil and entered
the United States illegally when he was 26 years old.
For documentary evidence, the record contained State Department reports
from 2002 to 2004. Admin. R., Vol. I at 21. The reports paint a picture of
violence in the country on a number of fronts. The most recent report, based on
2004 events (2004 report), mentioned police “killings for hire and death squad
executions of suspected criminals, persons considered undesirable, indigenous
people, and labor activists.” Id. “Violence and discrimination against women;
child abuse and prostitution; and trafficking in persons, particularly women and
children for the purpose of prostitution and slavery, remained problems.” Id.
“Rural violence, including the killings of land reform and rural labor activists
persisted.” Id. The report contained accounts of discrimination against the
elderly.
Specifically concerning homosexuals, the 2004 report said “[t]here was a
history of societal violence against homosexuals. Although the Constitution does
not prohibit discrimination based on sexual orientation, state and federal laws do
prohibit such discrimination, and the federal and state governments remained
committed to combating it. According to the Ministry of Health, there were
approximately 180 killings of homosexuals during the year.” Id. at 42 Brazil,
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which occupies an area slightly smaller than the continental United States (not
counting Alaska and Hawaii) had a population of over 180 million in 2004. No
reasons were given for the homosexual murders. Other instances of violence were
reported. “[Non-governmental organizations] confirmed that police committed
abuse and extortion directed against transvestite prostitutes in the cities. . . .” Id.
at 43. The report mentioned high profile prosecutions and civil suits brought
against government officials, gang members, and others for homosexual related-
violence. The report went on to say:
The Secretariat of State Security in Rio de Janeiro, in partnership
with [non-governmental organizations], operated a hotline and
offered professional counseling services to victims of anti-
homosexual crimes.
In November, Rio de Janeiro state lawmakers reversed the governor’s
veto on a bill that gives same-sex partner benefits to government
employees. The state’s 70-member assembly voted 37 to 21 to
override the veto and the law went into effect. In July, a Sao Paulo
state court ordered 15 health insurance companies to recognize
same-sex couples in their coverage.
In April, the Special Secretariat for Human Rights launched the
“Brazil Without Homophobia” program, which sought to stop
violence against homosexuals, provide legal counsel to victims of
violence, and prevent anti-homosexual sentiment by providing
tolerance training for school-aged children. According to the
National Secretariat for Human Rights, the program aims to
strengthen public institutions and [non-governmental organizations]
that promote homosexual rights and combat homophobia; offers
training to professionals and representatives in the homosexual
community; creates publicity campaigns to raise awareness and
disseminate information about homosexual rights and to promote
homosexual self-esteem; and encourages reporting of violence
against homosexuals.
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Id. at 42.
In addition to the State Department reports, Halmenschlager submitted
accounts compiled by human-rights organizations, newspaper articles, advisories
from gay-activist groups, and a report by an anthropology professor. As related
to the human rights of homosexuals, these exhibits provided significant anecdotal
evidence of discriminatory conditions, violent incidents, and police corruption.
After reviewing the documentary evidence and listening to the testimony,
the IJ granted asylum. In his decision, the IJ recounted Halmenschlager’s
testimony and expressed a belief that he is homosexual and “very feminine.”
Admin. R., Vol. II at 408. Noting that “in some cases the only available evidence
of an alien’s subjective fears may [be] the alien’s own testimony,” the IJ found
Halmenschlager gave a “sufficiently detailed, consistent, and believable” report
of his experiences in Brazil, thus “provid[ing] a plausible and coherent account of
the basis for his fears [without] further corroboration of any further evidence.”
Id. at 407.
From the documentary exhibits, the IJ decided “that even though Brazil is
making some progress . . . homosexuals still in that particular country have
problems.” Id. at 412. They “are subject to persecution by other individuals”
and “the government hasn’t done a lot in the past.” Id. at 412-13. In the IJ’s
view, “when you are with a group of people that are like you in large number,
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you are okay, but I think once you go [to] your separate city and so forth, that
there are problems in Brazil, and the Court has read those articles indicating that
Brazil is one of the worst countries in the world for this particular problem.”
Id. at 413.
Although the IJ recounted Halmenschlager’s testimony and found it
credible, he did not make specific findings on past persecution or the probability
of future persecution. One might infer, however, he found the presence of past
persecution, a reasonable fear of future persecution, or both.
The Department of Homeland Security appealed to the BIA. In a
three-member decision, the BIA disposed of the matter without extensive
analysis. Unlike the IJ, it determined that Halmenschlager was not eligible for
asylum relief. In reversing the IJ’s decision, the BIA first determined
Halmenschlager had failed to establish past persecution, in that the most serious
incident happened when he was seven years old and “there is no evidence that the
event occurred on account of the respondent’s sexual orientation (assuming it
could have been discerned at that time) or that had the authorities been informed,
they would not have punished the perpetrator.” Admin. R., Vol. I at 2. The same
was true of other incidents occurring in Halmenschlager’s childhood. Id. And
subsequent events, “while abhorrent in many respects, do not rise individually or
cumulatively to the level of persecution.” Id.
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Reviewing the exhibits in the record, the BIA recognized Brazil’s “history
of problems with violence against homosexuals.” Id. at 2-3. The latest State
Department report, however, indicated to the BIA that Brazil had taken steps to
protect the rights of homosexuals. Though “societal discrimination and
occasional violence exist, without more, this does not establish an objective basis
for a well-founded fear of persecution.” Id. at 3. The BIA vacated the IJ’s grant
of asylum and entered a final order of removal. Halmenschlager then filed his
petition for review in this court. Our task is to review the decision of the BIA,
not that of the IJ. See Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th Cir.
2007); Awolesi v. Ashcroft, 341 F.3d 227, 231 (3d Cir. 2003). Halmenschlager
claims the BIA erred in concluding: 1) the level of harm he suffered because of
his homosexuality does not rise to the level of persecution; 2 he has not
demonstrated a well founded fear of future persecution; and 3) country conditions
in Brazil have changed.
Standard of Review
As a threshold matter, we must determine the standard of review to be
applied to Halmenschlager’s arguments. 1 In doing so, we recognize the difference
1
Initially the parties agreed that our review was limited to determining
whether substantial evidence supported the BIA’s decision. Not satisfied, we
ordered supplemental briefing. The parties were instructed to discuss “[w]hether
this court should review de novo the BIA’s reversal of the IJ’s determination to
grant Halmenschlager’s request for asylum,” based on the statement in Kabba v.
(continued...)
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in the approaches taken by this court and the BIA. This court has long held “‘the
ultimate determination whether an alien has demonstrated persecution is a
question of fact, even if the underlying factual circumstances are not in dispute
and the only issue is whether those circumstances qualify as persecution.’”
Hayrapetyan v. Mukasey, 534 F.3d 1330, 1335 (10th Cir. 2008) (quoting
Vicente-Elias v. Mukasey, 532 F.3d 1086, 1091 (10th Cir. 2008)). Although
“[s]ome circuits deem this a mixed question calling for de novo review,” Tenth
Circuit “precedent forecloses any argument that the application of a correct legal
definition for persecution to the facts of a specific case is a mixed question of law
and fact, to be reviewed under some standard less deferential than substantial
evidence.” Vincente-Elias, 532 F.3d at 1091 & n.5 (quotation and alteration
omitted).
The BIA, however, takes a different view. It is an appellate body charged
with reviewing agency decisions. 8 C.F.R. § 1003.1(d)(1). The Attorney General
has delegated to it the authority “to prescribe procedures governing proceedings
1
(...continued)
Mukasey, 530 F.3d 1239, 1245 (10th Cir. 2008), that we “‘consider de novo
whether the BIA, in making its own factual findings, actually reviewed the IJ’s
decision only for clear error,’” as required by § 1003.1(d)(3)(I). Nov. 24, 2008,
Order at 1.
In response Halmenschlager now challenges the BIA’s evaluation of the
evidence under a de novo standard. But he did not raise that issue before the BIA
and we therefore lack jurisdiction to consider it. See Sidabutar, 503 F.3d at 1122.
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before it.” Id., § 1003.1(d)(4). And it has done so. The BIA does not engage in de
novo review of the IJ’s factual findings. It may take administrative notice of
commonly known facts but may not otherwise engage in fact finding. If the facts
have not been adequately developed it must remand to the IJ to make a record. On
the other hand, the BIA conducts de novo review of questions of law, discretion,
and judgment and all other issues. 8 C.F.R. § 1003.1(d)(3). 2 In adopting the
2
(3) Scope of review.
(i) The Board will not engage in de novo review of findings of fact
determined by an immigration judge. Facts determined by the
immigration judge, including findings as to the credibility of
testimony, shall be reviewed only to determine whether the findings
of the immigration judge are clearly erroneous.
(ii) The Board may review questions of law, discretion, and judgment
and all other issues in appeals from decisions of immigration judges
de novo.
(iii) The Board may review all questions arising in appeals from
decisions issued by Service officers de novo.
(iv) Except for taking administrative notice of commonly known
facts such as current events or the contents of official documents, the
Board will not engage in factfinding in the course of deciding
appeals. A party asserting that the Board cannot properly resolve an
appeal without further factfinding must file a motion for remand. If
further factfinding is needed in a particular case, the Board may
remand the proceeding to the immigration judge or, as appropriate, to
the Service.
(4) Rules of practice. The Board shall have authority, with the
approval of the Director, EOIR, to prescribe procedures governing
proceedings before it.
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regulations governing the BIA the Attorney General made a detailed response to
comments about the (then) proposed rule and explained the final version and
offered reasons for his approach. Board of Immigration Appeals: Procedural
Reforms to Improve Case Management, 67 Fed. Reg. 54878 (Aug. 26, 2002).
Under its regulatory scheme, the BIA must accept an IJ’s factual findings
unless they are clearly erroneous; it may not overturn them “‘simply because the
[BIA] would have weighed the evidence differently or decided the facts differently
had it been the factfinder.’” Id. at 54889. The “clearly erroneous” standard “does
not apply” to “judgments as to whether the facts established by a particular alien
amount to ‘past persecution’ or a ‘well-founded fear of future persecution.’” Id. at
54890. That is so because “immigration judges are better positioned to discern
credibility and assess the facts with the witnesses before them; the Board is better
positioned to review the decisions from the perspective of legal standards and the
exercise of discretion.” Id.In asylum cases, “[t]he immigration judge’s determination of ‘what
happened’ to the individual is a factual determination” reviewed for clear error.
Id. “The immigration judge’s determinations of whether these facts demonstrate
harm that rises to the level of ‘persecution,’ and whether the harm inflicted was
‘on account of’ a protected ground, are questions that will not be limited by the
‘clearly erroneous’ standard.” Id.-11-
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“[A]n agency’s interpretation of [its own regulations] is . . . controlling
unless plainly erroneous or inconsistent with the regulation.” Auer v.
Robbins, 519 U.S. 452, 461 (1997) (quotation omitted). The Executive Office
for Immigration Review included the persecution classification in its
notice-and-comment rulemaking process and later applied it in a formal
adjudication. See BIA: Procedural Reforms, 67 Fed. Reg. at 54879; Matter of
A-S-B-, 24 I. & N. Dec. 493, 497 (BIA 2008) (“The question whether these
uncontested facts were sufficient to establish a well-founded fear of persecution,
however, was a legal determination that was not subject to the clearly erroneous
standard of review.”). The BIA’s interpretation thus warrants full deference under
the principles expressed in Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). See Been v. O.K. Indus., Inc., 495 F.3d 1217,
1226-27 (10th Cir. 2007).
In dicta, this court recognized the BIA’s rules and procedures classifying the
persecution determination as a question of law. Sidabutar, 503 F.3d at 1122, n.6(stating that the BIA suggests that it is “not limited to the IJ’s determinations of
‘past persecution’” and that it “may reach these decisions de novo under its
plenary review of legal decisions”). Compelling as it may be, that dictum cannot
resolve the dilemma because it is in tension with our precedents.
We acknowledge a facially apparent disparity between the BIA’s view and
our view of its appellate role with regard to factual determinations and legal
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conclusions in persecution cases. Had the differences been brought to the
attention of the BIA and thereby properly preserved it would be an issue subject to
our review. Since the issue was not exhausted we lack jurisdiction to consider it.
Sidabutar, 503 F.3d at 1122. We now turn to the issues properly before us.
Discussion
Statutory, regulatory, and judicial law specify the essential components of
eligibility for asylum relief. An applicant must demonstrate that he is a refugee,
meaning that “he is outside” the country of his nationality and “is unable or
unwilling to return to . . . that country because of persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).
Although persecution has no statutory definition, “we have held that a
finding of persecution requires the infliction of suffering or harm upon those who
differ . . . in a way regarded as offensive.’” Hayrapetyan, 534 F.3d at 1337(quotation omitted). It “must entail more than just restrictions or threats to life
and liberty.” Id. (quotation omitted). Of equal concern is the source of the
persecution, if established. It is not sufficient for an applicant to be persecuted in
some undifferentiated way or by disparate individuals or groups. The persecution
must have been inflicted by the government or by a non-governmental individual
or group the government is unwilling or unable to control.” Id. (quotation
omitted); see also In re Acosta, 19 I. & N. Dec. 211, 222-23 (BIA 1985) (holding
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that persecution encompasses only harm inflicted “either by the government of a
country or by persons or an organization that the government was unable or
unwilling to control”), overruled in part on other grounds by INS v.
Cardoza-Fonseca, 480 U.S. 421, 449 (1987). Accord Ramos Barrios v. Holder,
___ F.3d ___, 2009 WL 1813469 (9th Cir. June 26, 2009); Burbiene v. Holder,
568 F.3d 251, 255 (1st Cir. 2009); Khalili v. Holder, 557 F.3d 429, 436 (6th Cir.
2009); Niang v. Gonzales, 422 F.3d 1187, 1194 (10th Cir. 2005); Wiransane v.
Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004).
An applicant may establish refugee status with a showing of “past
persecution” or a “well-founded fear of future persecution.” 8 C.F.R.
§ 1208.13(b). “An applicant who has been found to have established . . . past
persecution shall also be presumed to have a well-founded fear of persecution on
the basis of the original claim.” 8 C.F.R. § 1208.13(b)(1). For a “well-founded
fear of persecution, ‘it need not be shown that the situation will probably result in
persecution, but it is enough that persecution is a reasonable possibility.’”
Hayrapetyan, 534 F.3d at 1335 (quoting Cardoza-Fonseca, 480 U.S. at 440).
“‘[P]ersecution on account of membership in a particular social group’”
is “directed toward an individual who is a member of a group of persons all of
whom share a common, immutable characteristic . . . that the members of the
group either cannot change, or should not be required to change because it is
fundamental to their individual identities or consciences.” Niang, 422 F.3d at
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1199 (quoting In re Acosta, 19 I. & N. Dec. at 233). The agency has “formally
adopted the position that homosexuals do constitute a particular social group.”
Karouni v. Gonzales, 399 F.3d 1163, 1171 (9th Cir. 2005) (alteration and
quotation omitted).
“Although always deferential to agency fact-finding, we must ensure that
BIA conclusions are sufficiently supported by the available evidence.” Uanreroro
v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). “‘Our duty is to guarantee that
factual determinations are supported by reasonable, substantial and probative
evidence considering the record as a whole.” Id. (alteration and quotation
omitted). “[W]here the BIA determines a petitioner is not eligible for relief,
we review the decision to determine whether the record on the whole provides
substantial support for that determination.” Id.The record indicates that Halmenschlager relied mostly on childhood events
and the cumulative effects of discrimination and harassment by diverse individuals
in his adulthood. The most troubling incidents occurred before Halmenschlager’s
homosexuality was apparent to others and without any connection to action or
inaction by the government or entities or individuals it is unable or unwilling to
control. He testified credibly as to the bleak nature of his life in Brazil and is
deserving of sympathy. But other than childhood “beatings” at the hands of other
children, he related no instance of violence directed toward him because of his
sexual preference. Nor is there evidence of credible threats to his safety or well
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being. 3 Moreover, there is no evidence the unpleasantness he experienced came
from the government or individuals or entities it was unable or unwilling to
control. The isolated failure of teachers to respond adequately to childhood
bullying (particularly if the problems were not called to their attention) or one
police officer’s failure to respond appropriately to improper sexual conduct is not
necessarily sufficient to show “persecution” even when accompanied by evidence
of general intolerance of homosexuals in Brazil, particularly when the State
Department reports government policies and efforts to restrain such attitudes. 4
The BIA denied Halmenschlager’s asylum request for failure to demonstrate
“persecution” on account of his homosexuality. The BIA’s decision was terse but
3
The IJ recounted his testimony about the most ominous threats made
against him: “He indicated that when he went to register [for military service] that
the soldiers were hassling him. They were calling him names and they said the[y]
would have a lot of fun with him once he got into the army.” Admin. R. at 468
Such taunts, unaccompanied by more serious acts, are insufficient to show
persecution. See Witjaksono v. Holder, No. 08-9540, 2009 WL 2192657, *6
(10th Cir. July 17, 2009) (“Verbal taunts, while offensive, fall within the bounds
of harassment and discrimination, not persecution.”). In any event he was excused
from military service because he had rheumatic fever as a child.
4
Conclusions drawn from State Department country reports as well as
reports from non-governmental organizations and other entities and individuals
are subject to de novo review by the BIA, and with good reason. “The most
common facts about country conditions appropriate for administrative notice are
those contained in country reports and profiles prepared by experienced foreign
service officers in the Department of State who are experts on specific regions
and countries.” As the courts have recognized, they, the immigration judges, and
the Board owe deference to the Department of State on such matters of foreign
intelligence as assessments of conditions. BIA: Procedural Reforms, 67 Fed.
Reg. at 54892 (discussing administrative notice of facts).
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“contains a discernible substantive discussion” and is therefore sufficient for our
principled review. Uanreroro, 443 F.3d at 1204. The BIA gave considered,
supported reasons for its determination that Halmenschlager’s experiences did not
add up to past persecution. Under our standard of review, we do not disturb the
BIA’s finding. See Sidabutar, 503 F.3d at 1124 (holding substantial evidence
supported absence-of-persecution finding in spite of evidence of repeated beatings,
confrontations accompanied by money demands, and burning of a motorcycle).
Without a credible showing of past persecution based on his homosexuality,
Halmenschlager was not entitled to a presumption of future persecution. 8 C.F.R.
§§ 208.13(b)(1), 1208.13(b)(1). Instead, as an alien “basing [his] asylum claim[]
upon a well-founded fear of future persecution,” he “must show both a genuine,
subjective fear of persecution, and an objective basis by credible, direct, and
specific evidence in the record, of facts that would support a reasonable fear of
persecution.” Yan v. Gonzales, 438 F.3d 1249, 1251 (10th Cir. 2006) (quotation
omitted).
Evidence relating to Halmenschlager’s fear of future persecution included
State Department reports on the status of human rights in Brazil and publications
of nongovernmental organizations. Halmenschlager argues that the BIA erred by
relying on only the latest state department country report and failing to credit
exhibits describing harm done to homosexuals.
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“A state department report on country conditions may be probative in a
well-founded fear case.” Yuk v. Ashcroft, 355 F.3d 1222, 1236 (10th Cir. 2004)
(alteration and quotation omitted). Indeed, these reports are “generally deemed
authoritative for purposes of immigration proceedings.” Pulisir v. Mukasey,
524 F.3d 302, 310 (1st Cir. 2008). “In certain circumstances,” the BIA may “give
the contents of such reports appreciable--even determinative--weight.” Id.“[C]onflicting reports, for all their insights, may have drawbacks of their own.”
Gonahasa v. U.S. INS, 181 F.3d 538, 542 (4th Cir. 1999). Private entities have
done important work “‘in exposing inhumane practices,’” but “‘these organizations
may have their own agendas and concerns, and their condemnations are virtually
omni present.’” Id. (quoting M.A. v. U.S. INS, 899 F.2d 304, 313 (4th Cir. 1990)
(statutorily superseded on other grounds). 5
Unquestionably, Halmenschlager showed that homosexuals may be
mistreated in Brazil. But neither his testimony nor the documentary evidence
requires a finding that he faces persecution if returned to Brazil. “[I]t is not our
5
As the agency states, “reports by NGOs are simply not as reliable as those
of the Department of State because the mission of those organizations is to
advocate specific ideas and views, their positions are often based on anecdotal
experiences of identified and unidentified persons, and their opinions tend to lack
the discernment and expertise of those provided by the Department of State.”
BIA: Procedural Reforms, 67 Fed. Reg. at 54892 (discussing administrative
notice of facts). “The important, complicated, delicate, and manifold problems of
assessing conditions in a foreign country warrant deference to those whose
expertise the United States tasks with that duty.” Id.
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Case: 08-9514 Document: 01018255319 Date Filed: 07/31/2009 Page: 21
prerogative to reweigh the evidence, but only to decide if substantial evidence
supports the [agency’s] decision.” Yuk, 355 F.3d at 1236. We find that the
BIA acted reasonably in choosing to give greater weight to the 2005 assessment
of the State Department.
And that report does not compel a finding that Halmenschlager
demonstrated a reasonable fear of future persecution. The unvarnished fact that
180 homosexuals were killed in one year is not remarkable in a country of over
180 million, particularly when the report does not identify the killings as murder,
contains no mention of the reason for the killings or any description of the
perpetrators (by type, not by name). The reader is left to speculate--were they
homophobic killings or were they motivated by other factors (jilted lovers, drug
dealing, prostitution, etc.) and only coincidently involved homosexuals.
The record does not demonstrate that the BIA wrongly rejected
Halmenschlager’s claim. It is fair to infer, even from its cryptic remarks, that the
BIA put the killings of homosexuals in context, considering the diverse area and
population of Brazil; the ambiguity surrounding the killings; and the lingering
problems affecting the human rights of many citizens, not just homosexuals.
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Case: 08-9514 Document: 01018255319 Date Filed: 07/31/2009 Page: 22
Further, the report describes governmental efforts to combat violence, curb
homophobia, and promote nondiscrimination.
The petition for review is DENIED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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