United States Court of Appeals
For the First Circuit
Nos. 07-1642, 07-1643
GENARIO VICENTE DE OLIVEIRA & RICARDO LEMOS NEIVA,
Petitioners,
v.
MICHAEL B. MUKASEY,* Attorney General
Respondent.
PETITIONS FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Wallace**, Senior Circuit Judge,
and Howard, Circuit Judge.
Jose A. Espinosa on brief for petitioners.
Peter D. Keisler, Assistant Attorney General, James E. Grimes,
Senior Litigation Counsel, and Scott Rempell, Trial Attorney,
Office of Immigration Litigation, United States Department of
Justice, on brief for respondents.
March 19, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Michael B.
Mukasey is substituted for former Attorney General Alberto R.
Gonzales as respondent.
**
Of the Ninth Circuit, sitting by designation.
HOWARD, Circuit Judge. Genario Vicente de Oliveira and
his son Ricardo Lemos Neiva petition this court to review the
decision of the Board of Immigration Appeals (BIA). The BIA upheld
the determination of an Immigration Judge (IJ) that the two men
were not entitled to withholding of removal or protection under the
Convention Against Torture (CAT).1 Because the BIA upheld the IJ
without its own written opinion, it is considered to have adopted
the decision of the IJ. Guillaume v. Gonzalez, 504 F.3d 68, 72
(1st Cir. 2007). Discerning substantial evidence in the record to
support the BIA's determination, we deny the petition.
De Oliveira is a former candidate for mayor of Cuparaque,
Brazil. During the campaign he received death threats from those
close to the incumbent. After he lost the election, de Oliveira
received more threats, which stopped when he left Cuparaque to stay
with his brother. Upon his return he was threatened again, and
then the threats subsided for the four months before de Oliveira
left for the United States. De Oliveira claims the threats also
promised violence to his children.
"This court reviews BIA decisions under the deferential
substantial evidence standard. The BIA's decision will be upheld
if supported by reasonable, substantial, and probative evidence on
the record considered as a whole." Carcamo-Recinos v. Ashcroft,
1
Neither man sought asylum, as those claims were time-barred.
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389 F.3d 253, 256 (1st Cir. 2004). In order to qualify for
withholding of removal, de Oliveira would need to prove that it is
more likely than not that he will face persecution should he return
to Brazil. INS v. Aguirre-Aguirre, 526 U.S. 415, 419 (1999). This
showing can be made by proving past persecution, which raises a
rebuttable presumption of the likelihood of future persecution.
Journal v. Keisler, 507 F.3d 9, 12 (1st Cir. 2007). To qualify for
protection under the CAT, de Oliveira would need to prove it more
likely than not that he would suffer torture at the hands of the
government or with the consent or acquiescence of the government.
Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004).
Substantial evidence in the record supports the IJ's
determination that de Oliveira has proved neither past persecution
nor a likelihood of future persecution. In particular, the IJ
found that the death threats were never accompanied by overt
action, that they were not escalating in nature, and that they
stopped both for the "couple months" that de Oliveira left town
after the election, and for the four months that he was winding up
his affairs and preparing to move to the United States. As for a
likelihood of future persecution, the IJ noted that another son of
de Oliveira has been living in Brazil since April 2005 without
harm. That son was active in de Oliveira's campaign. Similarly,
de Oliveira's wife and two of their other children had remained in
Brazil throughout this time and were not harmed. "[T]he fact that
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close relatives continue to live peacefully in the alien's homeland
undercuts the alien's claim that persecution awaits his return."
Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir. 1999), cited by
Romilus, 385 F.3d at 8. This is particularly true, where, as here,
the threats explicitly contemplated harm to the children. Also,
the IJ found that the cessation of threats while de Oliveira was
visiting his brother in another town meant that he could indeed
safely return to Brazil, even if persecution awaited him in the
single town of Cuparaque. Finally, the IJ found that Cuparaque has
a new mayor, who would presumably not have the same interest in
prosecuting a vendetta on behalf of the old mayor, if indeed one
existed. This substantial evidence in support of the IJ's decision
ends the matter.
The IJ correctly noted that because de Oliveira had
failed to prove it more likely than not that he would be harmed, he
has necessarily failed to prove it more likely than not that he
would be tortured. Thus, the BIA's denial of petition for
protection must be upheld.
Neiva predicates his claims on those of his father. For
his part, he has never been threatened or harmed, and his fears
center on the likelihood of reprisals against his father. His
claims therefore fall with his father's.
The petitions for review are denied. It is so ordered.
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