United States Court of Appeals
For the First Circuit
Nos. 08-1898, 08-1912
RORNE DIAS GOMES,
ANDERSON DIAS GOMES,
Petitioners,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States
Respondent.
ON PETITIONS FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Selya, and Hansen,*
Circuit Judges.
Stephen A. Lagana and Lagana & Associates for petitioners.
Michael F. Hertz, Acting Assistant Attorney General, Terri J.
Scadron, Assistant Director and Shahrzad Baghai, Trial Attorney,
Office of Immigration Litigation, United States Department of
Justice, Civil Division, on brief for respondent.
May 14, 2009
*
Of the Eighth Circuit, sitting by designation.
HOWARD, Circuit Judge. Petitioners and brothers Rorne
Dias Gomes and Anderson Dias Gomes are natives and citizens of
Brazil who, on the ground that they fear for their safety in their
home country, applied for asylum, withholding of removal, and
relief under the Convention Against Torture. An Immigration Judge
("IJ") denied their applications, and the Board of Immigration
Appeals ("BIA") denied their appeals with a separate written
opinion.
The Gomes brothers now petition for judicial review of
the BIA's decision pursuant to 8 U.S.C. § 1252. They do not,
however, challenge the BIA's determinations that their asylum
claims were untimely, and therefore those claims are waived.
Nikijuluw v. Gonzales, 427 F.3d 115, 120 n.3 (1st Cir. 2005); see
also Sandstrom v. ChemLawn Corp., 904 F.2d 83, 87 (1st Cir. 1990).
Similarly, the IJ's denial of the petitioners’ claims under the
Convention Against Torture were neither appealed to the BIA nor
included in the petitions for review, and consequently those too
are waived. Nikijuluw, 427 F.3d at 120 n.3; Makhoul v. Ashcroft,
387 F.3d 75, 80 (1st Cir. 2004); Sandstrom, 904 F.2d at 87. The
sole matter before us is therefore the BIA's denial of the
petitioners’ applications for withholding of removal.
The gravamen of each application is the alleged threat of
violence from members of a Brazilian gang who suspect that one of
the Gomes brothers identified the gang's leader to the police as
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the person who murdered the petitioners’ nephew. The gang's
leader, whom the petitioners believe is ultimately responsible for
the threats, was convicted of the murder and incarcerated in
Brazil. According to the petitioners, the gang members suspect
that one of the brothers is the police informant, and because the
gang members do not know with certainty which of the brothers did
it, they have threatened harm to both.
To qualify for protection under the Immigration and
Nationality Act, a person seeking withholding of removal must show
that he cannot return to his home 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); see Castillo-Diaz v. Holder,
562 F.3d 23, 27 (1st Cir. 2009) (citing Palma-Mazariegos v.
Gonzales, 428 F.3d 30, 37 (1st Cir. 2005)). "A petitioner must
also show that the persecution is the direct result of 'government
action, government-supported action, or government's unwillingness
or inability to control private conduct.'" Ly v. Mukasey, 524 F.3d
126, 132 (1st Cir. 2008) (quoting Kho v. Keisler, 505 F.3d 50, 55
(1st Cir. 2008)). The petitioner bears the burden of proving his
claim. Pulisir v. Mukasey, 524 F.3d 302, 308 (1st Cir. 2008).
The IJ and BIA both found that the record evidence failed
to demonstrate the requisite connection of the purported
persecution to the Brazilian government's action or inaction. The
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record evidence supports these findings. The record shows that the
Brazilian government incarcerated the gang's leader for a previous
act of violence -- the murder of the petitioners’ nephew -- thus
demonstrating its willingness and ability to combat the gang's
violent tendencies. Moreover, the petitioners concede that they
have not informed the Brazilian police of the gang's threats, and
this fact also severs the threats from any action or inaction of
the government of Brazil. See, e.g., Castillo-Diaz, 562 F.3d at
27-28. The lack of government involvement precludes the
petitioners’ eligibility for withholding of removal.
Although we need go no further to affirm the decisions of
the BIA, we note that the petitions contain other weaknesses, among
them the fact that the petitioners' older brother, who also lived
in Brazil at the relevant time, was not subject to the same
threats. This fact undermines the credibility of the alleged
threat awaiting the petitioners in Brazil, see, e.g., Nikijuluw,
427 F.3d at 122, and it suggests that the petitioners’ asserted
"particular social group" -- whether defined as "siblings,"
"brothers," or "family" -- is not "one central reason" for the
threats against them, see 8 U.S.C. § 1158(b)(1)(B)(I); Singh v.
Mukasey, 543 F.3d 1, 5 (1st Cir. 2008).
PETITIONS DENIED.
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