Da Silva v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-2738

PAULO ROCHA PEREIRA DA SILVA ET AL.,

Petitioners,

v.

JOHN ASHCROFT, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Selya, Circuit Judge,

Coffin and Cyr, Senior Circuit Judges.

Kevin R. Murphy on brief for petitioners.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Linda S. Wernery, Senior Litigation Counsel, Office of Immigration
Litigation, and Kathleen M. Zapata, Trial Attorney, on brief for
respondent.

January 5, 2005
 SELYA, Circuit Judge. Petitioner Paulo Rocha Pereira Da

Silva, a Brazilian national, seeks review of a final order of the

Board of Immigration Appeals (BIA) rejecting his request for

withholding of removal. Discerning no error, we deny the petition.

I.

Background

In November of 1997, the petitioner, previously a

domiciliary of Campos, Brazil, entered the United States on a six-

month tourist visa. He took up residence in the Boston area and

overstayed his visa. A year later, he was joined by his wife,

Regina Celia Gomes De Lima Silva, and his minor daughter, Paola

Lima Rocha Pereira. They also arrived as tourists and stayed past

their respective visa expiration dates.

In September of 2000, the petitioner requested asylum on

behalf of himself, his wife, and his daughter. The Immigration and

Naturalization Service (INS) responded by serving a notice to

appear.1 That notice directed the trio to answer charges that

their continued presence in the United States violated the

provisions of the Immigration and Nationality Act (INA). See 8

U.S.C. § 1227(a)(1)(B). At a hearing before an immigration judge

(IJ), the family members admitted through an attorney that they had

1
The Homeland Security Act of 2002, Pub. L. 107-296, § 471,
116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. § 291(a)),
abolished the INS and transferred its duties to the Department of
Homeland Security. See Lattab v. Ashcroft, 384 F.3d 8, 13 n.2 (1st
Cir. 2004).

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overstayed, acknowledged removability, conceded that the

application for asylum was time-barred, and sought withholding of

removal on the ground that the petitioner had a well-founded fear

of future persecution in his native Brazil because of his

membership in a particular social group, that is, his status as a

"member of society [who] refused to perform illegal tasks simply

because of pressure from his immediate supervisors at work."

In support of his application for withholding of removal,

the petitioner testified that he had been employed as a part-time

accountant for a government-funded drug rehabilitation center in

Campos. While carrying out his bookkeeping duties, he learned that

the chief executive officer of the center, Fred Luis Mauricio, was

embezzling funds. The petitioner aided and abetted the

embezzlement by creating phony invoices to account for the missing

money. When at long last the Brazilian federal government launched

an inquiry into the center's operations, Mauricio threatened to

kill the petitioner and his family if he spoke about the

corruption.

Despite the threat, the petitioner gave a statement

implicating Mauricio to the investigators. Subsequently, his wife

was threatened and his apartment ransacked. He reported these

incidents to the local office of the military police,2 who declined

2
According to the United States Department of State Country
Reports on Human Rights Practices — Brazil (2001), entered into the
administrative record, Brazil's police forces consist of a small,

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to afford him special protection because he did not know whether

Mauricio was responsible for what had transpired. The petitioner

took this refusal as a sign that Mauricio and the local police were

conspiring against him and that further requests for police

assistance would be an exercise in futility.

Concerned about his safety and that of his family, the

petitioner borrowed money from relatives and fled to the United

States. His wife and daughter stayed in Brazil, but moved to his

brother's house ninety miles from Campos. A year passed without

any untoward incidents. At that point, the petitioner's wife and

daughter joined him in the United States.

After listening to the petitioner's tale, the IJ found

credible those portions of his testimony that recounted facts

within his personal knowledge, e.g., that his work situation was

corrupt; that he had initially participated in the corruption but

later cooperated with the authorities to root it out; that by

providing information to the federal police, he had acted as a

whistleblower, albeit one with "lesser status" since his

whistleblowing began only when it became apparent that he could be

prosecuted for his complicity in the ongoing embezzlement; and that

Mauricio had threatened him. The IJ explicitly declined to make a

primarily investigative federal force and several state police
forces (the uniformed members of which are colloquially known as
"military police").

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finding that Mauricio was responsible for the threat to the

petitioner's wife or for the break-in at the petitioner's home.

Despite her acceptance of much of the petitioner's

testimony, the IJ refused to embrace many of the conclusions that

the petitioner sought to draw from the underlying facts, calling

them "mere speculation." Specifically, she refused to credit the

petitioner's self-serving accusation that the local police were in

league with Mauricio, observing that no hard evidence of such a tie

had been proffered. She also noted that the petitioner had made no

effort to enlist the help of any police department outside of the

local area in which Mauricio might have had political influence,

thus further weakening his broad-brush claim of police bias. She

then rejected as a matter of law the petitioner's contention that

his whistleblower status made him a member of a targeted social

group within the purview of 8 U.S.C. § 1231(b)(3)(A). Finally, she

denied his prayer for withholding of removal.3

The petitioner appealed. The BIA adopted the IJ's

findings of fact and conclusions of law, adding an independent

finding that the feared harm related to what was "essentially a

3
The IJ also held that the petitioner had not established a
basis for relief under Article III of the Convention Against
Torture. Inasmuch as the petitioner did not include this claim in
his appeal to the BIA, he has effectively abandoned it. See
Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004) (stating that
"theories not advanced before the BIA may not be surfaced for the
first time in a petition for judicial review of the BIA's final
order").

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personal dispute" between Mauricio and the petitioner. For that

reason, any threats that had been made against the petitioner and

his family were insufficient to establish a well-founded fear of

future persecution.

After the BIA affirmed the IJ's order, this petition for

judicial review eventuated.4 See 8 U.S.C. § 1252(a)(1), (b).

II.

Analysis

Under the INA, an otherwise deportable alien may avoid

removal if the Attorney General determines that "the alien's life

or freedom would be threatened in [the destination] country because

of the alien's race, religion, nationality, membership in a

particular social group, or political opinion." Id. §

1231(b)(3)(A). The applicant must carry the devoir of persuasion

to show either that (i) he has suffered past persecution on account

of one of these five protected grounds (thus creating a rebuttable

presumption that he may suffer future persecution), or (ii) it is

more likely than not that he will be persecuted on account of a

protected ground upon his return to his native land.5 See 8 C.F.R.

4
The petitioner's wife and minor daughter appear as co-
petitioners. Since their claims are purely derivative, we do not
dwell on them. It suffices to say that our denial of the head of
the household's claim, see text infra, necessitates the denial of
their derivative claims as well.
5
The threshold of eligibility for withholding of removal is
higher than the threshold of eligibility for asylum. Mekhoukh v.
Ashcroft, 358 F.3d 118, 130 (1st Cir. 2004); Ipina v. INS, 868 F.2d

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§ 208.16(b); see also INS v. Stevic, 467 U.S. 407, 429-30 (1984).

A showing of a well-founded fear of future persecution involves

both objective and subjective elements. See Laurent v. Ashcroft,

359 F.3d 59, 65 (1st Cir. 2004). To perfect that showing, an alien

must establish not only that he harbors a subjectively genuine fear

of future persecution but also that an objectively reasonable basis

for that fear exists. Id.

The Attorney General's authority to make these

determinations has been delegated to the BIA. See 8 C.F.R. §

1003.1(a)(1). We review the BIA's findings of fact, including its

credibility determinations, pursuant to the substantial evidence

standard. Mediouni v. INS, 314 F.3d 24, 26 (1st Cir. 2002). Under

that regime, a reviewing court will accept the BIA's findings as

long as they are "supported by reasonable, substantial, and

probative evidence on the record considered as a whole." INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992). This means, in effect,

that we will set aside the BIA's findings only if, and to the

extent that, "the record evidence would compel a reasonable

factfinder to make a contrary determination." Aguilar-Solis v.

INS, 168 F.3d 565, 569 (1st Cir. 1999). A recent amendment to the

INA has codified this deferential standard. See 8 U.S.C. §

511, 515 (1st Cir. 1989). In this instance, the IJ ruled that the
petitioner's application for asylum was time-barred, and the
petitioner has not challenged that ruling. Thus, the petitioner
must satisfy the higher eligibility standard for withholding of
removal.

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1252(b)(4)(B) (ordaining that the BIA's findings of fact shall be

upheld "unless any reasonable adjudicator would be compelled to

conclude to the contrary").

Rulings of law command our attention under a somewhat

different framework. We afford de novo review to the BIA's legal

conclusions, but cede some deference to its interpretations of the

INA. See INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999); Lattab

v. Ashcroft, 384 F.3d 8, 17 (1st Cir. 2004); see also Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-

43 (1984).

In this case, the petitioner focuses on the fourth of the

five protected grounds: membership in a particular social group.

He variously defines that social group as comprising those who

"refused to perform illegal tasks because of pressure" from

workplace supervisors or "trapped" employees forced to acquiesce to

the demands of corrupt employers.6 To make matters more nebulous,

the IJ synthesized his argument as being that the particular social

group consisted of "whistleblowers," and the petitioner has not

6
We flatly reject the petitioner's belated suggestion that his
social group consists of either public employees or business
professionals. No such argument was made to the BIA, and it is too
late to make new arguments here. See Makhoul v. Ashcroft, 376 F.3d
75, 80 (1st Cir. 2004); Ravindran v. INS, 976 F.2d 754, 761 (1st
Cir. 1992). In all events, by the petitioner's own account, the
threats supposedly directed against him and his family emanated
solely from his participation in the government investigation into
alleged corruption and only peripherally involved his particular
occupation and place of business.

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disavowed that nomenclature. The petitioner urges that the BIA

erred in concluding that he failed to prove a cognizable threat of

future persecution on account of that membership, however defined.

His argument is unpersuasive.

In determining what constitutes persecution on account of

membership in a particular social group, the key is whether the

claimed persecution is aimed at an individual because of his or her

affiliation with a group of persons, all of whom share a common,

immutable characteristic. See Gebremichael v. INS, 10 F.3d 28, 36

(1st Cir. 1993); Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1st

Cir. 1985); see also In re Acosta, 19 I. & N. Dec. 211, 233 (BIA

1985), overruled in part by In re Mogharrabi, 19 I. & N. Dec. 439

(BIA 1987). Because the most obvious groups meeting these criteria

— such as racial or ethnic groups — are independently covered under

the withholding of removal statute, stand-alone social group claims

are rather rare. See Gebremichael, 10 F.3d at 35 n.20. When such

claims are proffered, they usually are based on discrete classes

such as gender, e.g., Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.

1993), kinship units such as clans, e.g., In re H-, 21 I. & N. Dec.

337, 337 (BIA 1996), or individual family membership, e.g.,

Gebremichael, 10 F.3d at 36.

To be sure, the common characteristic also may reflect a

shared experience, such as past membership in a military or

paramilitary force. See, e.g., Mediouni, 314 F.3d at 28. Whether

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the common characteristic is innate or experiential, "it must be

one 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." Acosta, 19 I. & N. Dec. at

233.

At first blush, none of the labels used by the petitioner

or the IJ seems to fit comfortably with the concept of a

"recognizable and discrete" social group. Gebremichael, 10 F.3d at

36. One telltale is the difficulty that the petitioner has in

delineating his particular social group; he defines it in various

ways at various times, without much in the way of precise line-

drawing. Yet, notwithstanding this imprecision, we are keenly

aware that refugees' situations vary widely. Thus, we have been

reluctant to exclude characteristics categorically from the "social

group" definition. Cf. Elien v. Ashcroft, 364 F.3d 392, 396 (1st

Cir. 2004) (cautioning that the term "particular social group," as

used in the INA, is not "free from ambiguity"). The taxonomic

problem is exacerbated here because whistleblowers generally have

been recognized as political, rather than social, refugees, see,

e.g., Reyes-Guerrero v. INS, 192 F.3d 1241, 1245 (9th Cir. 1999);

Marquez v. INS, 105 F.3d 374, 381 (7th Cir. 1997), yet the

petitioner explicitly relinquished this ground before the IJ and

does not attempt to resurrect it here.

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 Even so, characteristics relating to current or former

employment status can, at least theoretically, form the linchpin

for assembling a protected social group. See, e.g., Meguenine v.

INS, 139 F.3d 25, 27 n.2 (1st Cir. 1998) (stating that a health

care worker who refuses to violate her profession's code of ethics

might have a "trait which a member of that group should not, in

good conscience, be required to change"); see also Alvarez-Flores

v. INS, 909 F.2d 1, 7 (1st Cir. 1990) (finding "strained," but

accepting arguendo, a petitioner's contention that he was a member

of a social group of cheesemakers subject to persecution for having

supplied food to guerilla groups). The petitioner here

alternatively self-identifies as a "trapped" or harried

governmental employee, and at least one court has been willing to

recognize a social group of "former government employees who

refused to comply with their employer's demands." Marku v.

Ashcroft, 380 F.3d 982, 987 n.8 (6th Cir. 2004).

In the last analysis, we find it unnecessary to decide

whether former employees or whistleblowers can comprise a

cognizable social group. Assuming, for argument's sake, that the

"social group" requirement has been met, the petitioner nonetheless

has failed to show persecution based on his claimed membership in

such a group: the evidence in this case does not compel a finding,

more likely than not, that he was persecuted on account of his

status as a member of that group. That defect is, in itself, fatal

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to his claim for withholding of removal. See Aguilar-Solis, 168

F.3d at 570 (explaining that there must be a nexus between the

alleged acts of persecution and the statutorily protected ground);

see also 8 C.F.R. § 208.16(b). We explain briefly.

The BIA found that the petitioner did not forge the

necessary connection between the claimed persecution and the

claimed social group membership. The record amply supports this

finding. The most obvious justification is the BIA's determination

that the petitioner and Mauricio had became ensnared in what was

"essentially a personal dispute." This determination represents a

fair inference from the record and, therefore, is supported by

substantial evidence. See 8 U.S.C. § 1252(b)(4)(B). That

determination contradicts any claim that the petitioner was

persecuted on account of his membership in any particular social

group. See Romilus v. Ashcroft, 385 F.3d 1, 6 (1st Cir. 2004)

("The INA is not intended to protect aliens from violence based on

personal animosity."); Aguilar-Solis, 168 F.3d at 572 (similar);

see also Mogharrabi, 19 I. & N. Dec. at 447.

The finding of a lack of connection between the claimed

persecution and the claimed social group membership is sustainable

on another ground as well. In the prototypical case, a well-

founded fear of persecution arises when an alien faces the prospect

of severe mistreatment at the hands of his own government should he

be returned to his native land. See Ananeh-Firempong, 766 F.2d at

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622-23. Action by non-governmental actors can undergird a claim of

persecution only if there is some showing that the alleged

persecutors are in league with the government or are not

controllable by the government. See Aguilar-Solis, 168 F.3d at

573; see also de la Llana-Castellon v. United States, 16 F.3d 1093,

1097 (9th Cir. 1994) (explaining that installation of a new

Nicaraguan government did not necessarily quell petitioner's fears

of persecution at the hands of the Sandinistas).

By like token, an alien who asserts a fear of future

persecution by local functionaries ordinarily must show that those

functionaries have more than a localized reach. The rationale

behind this requirement is that if a potentially troublesome state

of affairs is sufficiently localized, an alien can avoid

persecution by the simple expedient of relocating within his own

country instead of fleeing to foreign soil. See Lukwago v.

Ashcroft, 329 F.3d 157, 181 (3d Cir. 2003); Singh v. Moschorak, 53

F.3d 1031, 1034 (9th Cir. 1995) (collecting cases); In re C-A-L-,

21 I. & N. Dec. 754, 757 (BIA 1997); see also 8 C.F.R. §

208.16(b)(2) (stating that an alien seeking withholding of removal

cannot show that it is more likely than not that he will suffer

future persecution if he "could avoid a future threat to his or her

life or freedom by relocating to another part of the proposed

country of removal and, under all the circumstances, it would be

reasonable to expect the applicant to do so").

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 Viewed in this light, the BIA had adequate justification,

based on the record, for finding no cognizable persecution. The

petitioner did not present a shred of evidence that Mauricio posed

any danger beyond the municipal boundaries of Campos. Moreover,

the fact that the petitioner's wife and daughter lived in Brazil

without incident during the year that they spent at a relative's

house outside the city limits speaks volumes about the localized

nature of any such peril.

To cinch matters, the record contains no evidence that

the federal government lacked either the will or the wherewithal to

discipline Mauricio and those loyal to him. Indeed, the very fact

that federal investigators shut down Mauricio's corrupt boondoggle

undercuts the petitioner's wholly conclusory claim that his boss

enjoyed special protection outside the local purlieus in which he

operated. This lack of proof that the federal authorities would be

unable or unwilling to do their duty, and thus safeguard the

petitioner and his family, is telling. See Lopez-Soto v. Ashcroft,

383 F.3d 228, 234 n.9 (4th Cir. 2004) (noting that persecution

requires either state action or a demonstrated inability of the

state to protect victims from non-state actors); Aguilar-Solis, 168

F.3d at 573 (similar).

Let us be perfectly clear. If the state is the putative

persecutor, internal relocation will almost always be a moot point.

See Singh, 53 F.3d at 1034 ("it has never been thought that there

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are safe places within a nation when it is the nation's government

that has engaged in the acts . . . that have driven the victim to

leave the country"). Even if the putative persecutor is a local

official or other non-state actor, an alien need not show that he

will be unsafe anywhere in the country in order to avoid automatic

disqualification from withholding of removal. Where, for example,

the non-state actor's reach is countrywide, the inefficacy of

internal relocation will be apparent. See Sepulveda v. U.S. Atty.

Gen., 378 F.3d 1260, 1265 (11th Cir. 2004) (finding that IJ erred

by holding that persecution could be avoided by relocating within

Colombia, given uncontradicted evidence that "guerillas exercise

influence throughout [the country]"). The touchstone is whether,

under all the circumstances of a particular case, internal

relocation is a reasonable solution.

In this instance, even if the petitioner had shown that

he would be subject to persecution based on his alleged social

group membership, the putative persecutor is an individual whose

sphere of influence apparently encompasses only one municipality in

a large country. Moreover, there is no evidence that the

government cannot or will not protect the petitioner should he

return. Here, then, relocation within the country is a feasible

course of action.7 Given that reality, the BIA was not compelled

7
The petitioner's claim that he made reasonable efforts to
relocate within Brazil is unavailing. He couches this claim in
sweeping generalities and never explains why the funds that he

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to find that the petitioner had a well-founded fear of future

persecution.

III.

Conclusion

We need go no further. While we leave the "social group"

question open, we nonetheless uphold both the BIA's determination

that the petitioner failed to establish a well-founded fear of

future persecution and its rejection of the petitioner's claim for

withholding of removal.

The petition for review is denied.

borrowed to bring himself and his family to the United States could
not have been expended to establish a new Brazilian domicile away
from Campos.

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