Lordes v. Mukasey

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 07-1968

CLAUDENIR NUNES LORDES,

Petitioner,

v.

MICHAEL B. MUKASEY,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Lipez, and Howard,
Circuit Judges.

Mary E. Womboldt for petitioner.
Scott Rempell, Trial Attorney, Jeffrey S. Bucholtz, Acting
Assistant Attorney General, Civil Division, and Linda S. Wernery,
Assistant Director, Office of Immigration Litigation, U.S.
Department of Justice, for respondent.

August 13, 2008
 LIPEZ, Circuit Judge. Claudenir Nunes Lordes, a citizen

and native of Brazil, petitions for review of an order of the Board

of Immigration Appeals ("BIA") affirming a decision of the

Immigration Judge ("IJ"), rejecting his application for asylum as

untimely, and denying his claims for withholding of removal and

protection under the Convention Against Torture ("CAT"). We deny

the petition for review.

I.

Lordes entered the United States through Tecate,

California on March 12, 2002, without being admitted or paroled.

Later that same day, he was issued a Notice to Appear, charging him

with removability under 8 U.S.C. § 1182(a)(6)(A)(i). On April 30,

2002, an IJ in San Diego entered an in absentia order of removal.

On May 31, 2002, Lordes filed a motion to reopen with the IJ.

Although the motion was initially denied, the BIA remanded the case

for further proceedings after finding that ineffective assistance

of counsel had caused Lordes to fail to appear at the April 30

hearing and that this ineffective assistance constituted an

"exceptional circumstance" excusing his failure.

Lordes then successfully moved to change venue to Boston,

Massachusetts. On October 27, 2004, Lordes's current counsel

entered her first appearance on his behalf in Boston Immigration

Court. On July 19, 2005, Lordes filed an application for asylum

and withholding of removal. This asylum application came more than

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three years after Lordes's entry into the United States and more

than eight months after his current counsel began representing him.

At a hearing on February 14, 2006, the IJ heard testimony

from Lordes regarding his labor union membership and the three

incidents that formed the basis of his claims for asylum and

withholding of removal. Lordes testified that he had joined the

Sindeferro labor union in 1988. He stated that he participated in

demonstrations, passed out pamphlets, manned picket lines during

strikes, and invited others to join the union.

The first of the three incidents he described occurred in

February 2000, when two armed men broke into his home, locked

Lordes and his family in the bathroom, and took all of the

valuables in the home. Lordes testified that the burglars warned

the family not to report the incident to the police and to "stay

away from the problems."1 He did not report this incident to the

police because of the threats the burglars had made to kill or

kidnap his family. He believed these threats because the burglars

"were against the movement that [he] was working on in the

syndicate." After the incident, his wife and children stayed at

his father-in-law's farm for several weeks because he felt they

would be safer there.

1
In his brief on appeal, Lordes asserts that "the problems" to
which the men were referring were union activities.

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 Second, Lordes testified that he was attacked in January

2001 while riding the bus to work. The attacker stole his watch

and wallet and he missed three days of work from injuries sustained

in the attack. Lordes's supervisor reported the incident to the

police, but Lordes himself did not speak with police about it.

Lordes stated that the attacker's characteristics were the same as

those of the burglars who had robbed his home.

Third, Lordes testified about a second home invasion in

September 2001. One night while he was at work, four armed men

shot and killed the family guard dog, broke into his home, tied up

his wife and children, and stole all of the valuables in the house,

including his car. Lordes reported this incident to the police.

He testified that he thought his family had been targeted for this

attack because he was "like a leader in the syndicate." He

submitted a translation of the police report of this incident to

the IJ.

Lordes worked at Companhia Vale Do Rio Doce ("CVRD") as

a diesel train mechanic from 1984 to 2002. After the three

incidents described above, CVRD offered to transfer Lordes to Rio

de Janeiro or Sao Paolo, but he testified that he did not want to

move to another city "[b]ecause [he] had constructed life in this

city for more than 15 years. And it would be very difficult to go

and move to another city and start everything anew."

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 At the hearing, Lordes also testified that he did not

know about the asylum system when he arrived in the United States.

He stated that he had intended to obtain legal status through a

labor certification.2

In an oral decision, the IJ ruled that Lordes's asylum

application was untimely because it was filed more than one year

after his arrival in the United States. The IJ did not credit

Lordes's testimony that he was unaware of the availability of

asylum when he arrived in 2002. The IJ also noted that the

ineffective assistance of counsel that justified the reopening of

Lordes's case did not relate to any failure to file an asylum

application or failure to advise Lordes about the availability of

asylum. Thus, the IJ found that there were no "extraordinary

circumstances" that could excuse the late filing.

The IJ also denied Lordes's claim for withholding of

removal.3 The IJ stated that Lordes had not introduced sufficient

2
On October 2, 2003, Lordes filed for a labor certification
from the Department of Labor. His counsel at the time apparently
hoped that the deadline for adjustment of status under section
245(i) of the Legal Immigration Family Equity Act (LIFE Act) might
be extended. However, the April 30, 2001 deadline, established by
the LIFE Act Amendments of 2000, was not subsequently extended. As
a result, Lordes was never eligible for adjustment of status
through the LIFE Act; the deadline had passed before he arrived in
the United States.
3
The IJ questioned Lordes's credibility with regard to the
second home invasion because, inter alia, the police report
indicated that Lordes had been at home during the attack, while he
testified that he had not been present. However, the IJ held that
even assuming Lordes's testimony had been credible, it was

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evidence to show that the attacks came about on account of his

membership in a labor union. The IJ noted that there was no

evidence regarding the extent of Lordes's involvement with a union,

or that he was a member of one at all. The IJ found it "far more

likely that the perpetrators attacked the respondent's home because

it was in a decent neighborhood where apparently people of adequate

means lived." The IJ held that Lordes could have relocated within

his own country. The IJ also concluded that the government of

Brazil was "not a party" to or "complicit in" any reported violence

against labor union organizers. Accordingly, the IJ "d[id] not

find it to be more likely than not that the respondent would be

persecuted if he returns to Brazil."

Although Lordes had not specifically requested protection

under the CAT, the IJ considered the claim sua sponte and concluded

that Lordes had not shown that "any segment of the government of

Brazil" would harm him. Instead, the IJ concluded that Lordes was

afraid of the "pervasive criminality" in Brazil. The IJ thus

denied protection under the CAT. The IJ also concluded that Lordes

was ineligible for voluntary departure because he had been served

with a Notice to Appear within one year of arriving in the United

States. See 8 U.S.C. § 1229c(b)(1)(A).

insufficient to establish the withholding of removal claim.
Because of these assumptions, we do not have to consider the impact
on this case of the REAL ID Act, which altered the standard for
evaluating an alien's credibility. See 8 U.S.C. §
1158(b)(1)(B)(iii).

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 Lordes appealed to the BIA, which adopted and affirmed

the decision of the IJ. The BIA held that the ineffective

assistance of Lordes's prior counsel "did not affect the

respondent's untimely filing of his application for asylum" and

agreed with the IJ's conclusion that Lordes had "not demonstrated

he suffered past persecution in Brazil on account of a protected

ground." Lordes then filed this petition for review.

II.

Lordes asks us to reverse the determination by the IJ and

the BIA that his untimely filing of an application for asylum was

not excused by "extraordinary circumstances." However, under 8

U.S.C. §§ 1158(a)(3) and 1252(a)(2)(D), we do not have jurisdiction

to review the agency's application of the "extraordinary

circumstances" exception, unless the alien identifies a legal or

constitutional defect in the decision. Hana v. Gonzales, 503 F.3d

39, 43 (1st Cir. 2007).

Lordes identifies no such defect. Although he argues

that the jurisdictional bar in § 1158(a)(3) violates due process,

this argument is foreclosed by our holding in Hana, 503 F.3d at 44.

He also argues that Congress intended the "extraordinary

circumstances" exception to be interpreted broadly and that

Lordes's "extreme circumstances of ineffective assistance of

counsel, coupled with ignorance of the U.S. asylum law" constitute

such circumstances. However, this argument does not raise any

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constitutional or legal claims. Instead, it asks us to second-

guess the agency's assessment of the merits of the "extraordinary

circumstances" claim. This is precisely what we cannot do under §

1158(a)(3). Accordingly, we are without jurisdiction to review the

rejection of Lordes's asylum application on timeliness grounds.

III.

Lordes also challenges the denials of withholding of

removal and protection under the CAT. Where, as here, the BIA

adopts and affirms the IJ's ruling, and also discusses some of the

bases for the IJ's opinion, we review both the IJ's and the BIA's

opinions. Zheng v. Gonzales, 475 F.3d 30, 33 (1st Cir. 2007). We

afford a high degree of deference to factual findings in those

opinions and must allow them to stand "unless 'any reasonable

adjudicator would be compelled to conclude to the contrary.'"

Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005)

(quoting 8 U.S.C. § 1252(b)(4)(B)).

A. Withholding of Removal

An alien seeking withholding of removal, pursuant to 8

U.S.C. § 1231(b)(3)(A), must demonstrate that "his or her life or

freedom would be threatened in the proposed country of removal on

account of race, religion, nationality, membership in a particular

social group, or political opinion." 8 C.F.R. § 1208.16(b). The

alien may meet this burden by showing either past persecution,

which creates a rebuttable presumption of future persecution, or

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that "it is more likely than not" that he would suffer future

persecution if he returned. Id.; Hana, 503 F.3d at 42 n.2.

Lordes contends that his testimony that the three attacks

he experienced in Brazil were motivated by his labor union

membership was unrefuted and therefore conclusive. However,

"[w]here the record supports plausible but conflicting inferences,"

the IJ is free to choose between those inferences. Hincapie v.

Gonzales, 494 F.3d 213, 219 (1st Cir. 2007). In this case, the IJ

did just that, concluding that, based on Lordes's description, the

attacks had likely been motivated by "basic criminality and the

intent of evil doers to rob the respondent and his family of their

possessions." The BIA agreed with the characterization of Lordes

as a "victim of random violence." Even on the assumption that

Lordes's testimony was entirely credible, his conclusory statements

linking the three attacks to his union membership do not compel the

conclusion that he was targeted "on account of" that membership.

See Samayoa Cabrera v. Ashcroft, 367 F.3d 10, 14 (1st Cir. 2004)

("While an alien seeking asylum is not required to provide direct

proof of his persecutors' motives, he must provide some evidence of

such motives."). Accordingly, we affirm the determination that

Lordes did not demonstrate past persecution.

If no past persecution has been shown, the alien bears

the burden of demonstrating that it is more likely than not that he

or she would experience persecution in the future if he or she

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returned and that "it would not be reasonable for him or her to

relocate" within the home country to avoid threats of future

persecution. 8 C.F.R. § 1208.16(b)(2),(b)(3)(i). The IJ concluded

that Lordes had not met that burden and the BIA agreed, stating

that Lordes had "failed to demonstrate . . . that he would

experience problems throughout the country of Brazil." Lordes does

not address this issue in his appellate briefs. Accordingly, he

has abandoned the issue. Berrio-Barrera v. Gonzales, 460 F.3d 163,

168 & n.2 (1st Cir. 2006). In any event, the record supports the

conclusion that internal relocation would be feasible. Thus, his

withholding of removal claim fails.

B. CAT Protection

To be eligible for CAT protection, an alien must

demonstrate that it is more likely than not that he would be

tortured in his home country by the government or with its

acquiescence. 8 C.F.R. §§ 1208.16(c)(4), 1208.18(a)(1).

"Acquiescence" requires that a "public official, prior to the

activity constituting torture, have awareness of such activity and

thereafter breach his or her legal responsibility to intervene to

prevent such activity." 8 C.F.R. § 1208.18(a)(7). Lordes has

failed to establish that any segment of the Brazilian government

would torture him or acquiesce in his torture if he returned to

Brazil. Thus, he is ineligible for CAT protection.

Petition denied.

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