NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 13-3365 and 13-4505
_____________
FELIPE SOARES DE PAULA;
JANE MARA ALVES GOMES,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A089-255-937; BIA 1:A089-255-938)
Immigration Judge: Honorable Michael W. Straus
_______________
Submitted Under Third Circuit LAR 34.1(a)
September 9, 2014
Before: FISHER, JORDAN, and HARDIMAN, Circuit Judges.
(Filed: September 16, 2014)
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Felipe Soares De Paula and Jane Mara Alves Gomes petition for review of the
denial by the Board of Immigration Appeals (“BIA”) of their applications for asylum,
withholding of removal, and protection under the Convention Against Torture (“CAT”).
We will grant in part and deny in part their petitions for review.
I. Background1
De Paula and Alves, husband and wife,2 entered the United States without
inspection from their native Brazil around July 4, 2004, and June 22, 2005, respectively.
In 2007, De Paula filed an I-589 application seeking asylum, withholding of removal, and
relief under the CAT, listing Alves as a dependent spouse.3 The government commenced
removal proceedings against De Paula and Alves in 2008. At a hearing before an
immigration judge (“IJ”) on October 8, 2009, Alves filed her own application for relief,
listing De Paula as a dependent spouse.
De Paula and Alves based their applications for relief on membership in a
particular social group – De Paula’s family. They expressed fear of future persecution by
a gang in Brazil dating back to a physical altercation between De Paula and a gang
leader. The altercation occurred in 2004, as De Paula and Alves were walking down a
1
Neither the immigration judge nor the BIA made any express credibility
determinations. Because, “[f]or the purposes of our review the credibility of [De Paula
and Alves] has not been determined[,] … we must proceed as if [the] testimony were
credible.” Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir. 2003). We thus recount the
background facts from the perspective provided by the petitioners.
2
De Paula and Alves were legally married in 2009 but have held themselves out to
be married since March 2001, before the incidents in question occurred in Brazil.
3
De Paula tried to file the application on his own in 2006 but was unsuccessful
until he obtained the help of a lawyer in 2007. Although De Paula failed to file his
application for relief within one year of his arrival in the United States, pursuant to 8
U.S.C. § 1158(a)(2)(B), the immigration judge found that De Paula merited an exception
to that time requirement.
2
street in Brazil. During the incident, the gang leader stabbed De Paula, and, in self-
defense, De Paula knocked the man unconscious. Members of the gang started searching
for De Paula, asking his parents where he was because they wanted to make him “pay for
what [he] did.” (A.R. at 408.)4 At the urging of his parents, De Paula left the country a
few weeks later for the United States. The gang subsequently harassed Alves and
threatened to hurt her unless she divulged De Paula’s whereabouts, which prompted her
to leave Brazil for the United States as well.
More than a year later, in August 2006, De Paula’s father was killed by a gang
member after he filed complaints with the Brazilian police about gang-related drug and
weapons sales occurring at a local bar. An eye witness told De Paula’s mother that the
gang member who killed his father had “put the revolver under [his father’s] nose and
told [him] that [‘]this was because of [your] son and this is for you[’]” before pulling the
trigger. (A.R. at 411.) De Paula claims that “only the police could have told” the gang
that his father was behind the complaint. (A.R. at 414.) About one week later, a shooting
at the same local bar killed a gang member and injured the bar owner, who also belonged
to the gang. The bar owner accused De Paula of being the shooter, even though De Paula
was in the United States at the time.
De Paula testified that gang members continued to harass his family in Brazil at
least through early 2011. In August 2007, for instance, gang members fired shots at
De Paula’s sisters while they were walking down a street. Despite pleas to do so, the
4
We will use “A.R.” to refer to the certified administrative record that was filed in
connection with the petitions before us.
3
police never investigated the killing of De Paula’s father or the harassment of De Paula’s
mother and sisters. In her testimony, Alves expressed confidence that the gang had not
forgotten the incidents involving De Paula and his father, even though she testified that
De Paula’s family was no longer being persecuted.
Following a hearing on November 14, 2011, the IJ issued an oral decision on
De Paula’s and Alves’s applications for relief. The IJ rejected De Paula’s arguments for
asylum and withholding of removal, finding that he had not shown “past persecution
based on what happened to his father” and that the gang member that De Paula knocked
unconscious “was after [De Paula] for vengeance,” which was not a protected ground.
(App. at 11.) The IJ thus held that there was no basis for De Paula’s purported fear that
he would be persecuted in Brazil on a protected ground. The IJ further denied him relief
under the CAT for failure to show “that officials in the Brazilian government, including
police, [we]re willfully blind to any torture of [him] by th[e] gang.” (App. at 12.) With
respect to Alves, the IJ cited her testimony “that on a couple of occasions, the gang
members asked her where [De Paula] was and threatened her on one occasion.” (App. at
7.) Without further discussion, the IJ also denied her application for relief.
De Paula and Alves appealed to the BIA, which dismissed the appeal. The BIA
held that the IJ made reasonable inferences from the record to find that De Paula had
failed to establish that a protected ground was a “central reason” for his fear of
persecution. (App. at 2.) Regarding Alves, the BIA stated that her “testimony and
asylum application focused on events which arose based upon her marriage to [De Paula],
and she did not describe any mistreatment unrelated to the dispute between the gang
4
members and her husband and his father.” (App. at 3 (citation omitted).) De Paula and
Alves then filed a motion to reconsider on various grounds, which the BIA also denied.
The BIA credited their argument for reconsideration insofar as the IJ had failed to
consider the purported connection between De Paula’s altercation and the death of his
father. However, the BIA held that the error was harmless because the IJ had reached the
conclusion that the killing of De Paula’s father was unrelated to De Paula. The BIA
stated that its failure to review De Paula’s request for relief under the CAT was also
harmless error, as the IJ had analyzed that claim and De Paula had not met his burden of
proof. Finally, the BIA held that it did not have to separately consider Alves’s
application because “her claims were based on [De Paula’s] claims.” (Supp. App. at 3.)
Having failed to obtain relief, De Paula and Alves timely petitioned our Court for
review.5
II. Discussion6
De Paula and Alves raise several issues that were rejected by the BIA on
reconsideration. With respect to the denial of relief to De Paula, they submit that the
evidence does not substantially support that decision. Specifically, they seek remand to
5
De Paula and Alves filed a petition for review after the BIA issued its decision
denying their appeal. Following the BIA’s denial of their motion for reconsideration,
they filed another petition for review, which we consolidated for purposes of the
responsive brief and disposition. We ordered De Paula and Alves to file supplemental
briefing and will cite to the supplemental appendix attached to that briefing as “Supp.
App.”
6
We have jurisdiction to review final orders of removal pursuant to 8 U.S.C.
§ 1252(a)(1).
5
the IJ for the failure to consider the connection between De Paula’s activities and his
father’s death as evidence supporting persecution on the ground of family membership.
They also ask us to vacate and remand the denial of CAT relief to De Paula, arguing that
the BIA engaged in “impermissible fact-finding” regarding the likelihood that he would
be tortured and that it “ignore[d] evidence reflecting a cooperative relationship between
the gangs and the police in Brazil.” (Petitioners’ Supp. Opening Br. at 11.) In addition,
they contend that the failure to separately consider Alves’s application deprived her of
due process.7
7
De Paula and Alves also argue that they were “deprived … of a meaningful
opportunity to present their entire claims for relief” because the IJ denied their motion to
accept late-filed documents and motion for a continuance to present expert testimony
about conditions in Brazil. (Petitioners’ Opening Br. at 24.) The BIA held that the IJ did
not err in either regard. We review the denial of a motion for a continuance for abuse of
discretion. Khan v. Att’y Gen., 448 F.3d 226, 233 (3d Cir. 2006). As noted infra, we
review de novo whether a petitioner’s due process rights were violated. Cabrera-Perez v.
Gonzales, 456 F.3d 109, 115 (3d Cir. 2006).
At the November 14, 2011, hearing, counsel for De Paula and Alves asked the IJ
to accept about 200 pages of late-filed documents and requested a continuance to present
expert testimony about conditions in Brazil. The IJ had previously told counsel that he
would “not accept any material within ten days of the merits hearing … unless good
cause is shown.” (A.R. at 378.) Counsel for De Paula and Alves did not provide any
explanation for the eleventh-hour requests, except to cite internal law firm delay.
With respect to the potential expert witness, the BIA took into account that
De Paula and Alves had not located a specific expert witness, submitted a witness list, or
presented an expert report to support their request for a continuance. Under those
circumstances, the denial of the motion for continuance was not an abuse of discretion.
As for the late-filed documents, many of those were redundant of testimonial or
documentary evidence already of record, such as background materials on Brazil or the
harassment against De Paula’s relatives. Moreover, the IJ allowed counsel to identify
and submit about 40 pages of those documents by fax, despite the failure to show good
cause for the delay. We therefore do not discern any due process violation stemming
from the denial of the evidentiary motions.
6
We “review the administrative record on which the final removal order is based.”
Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005). “The ‘final order’ to be reviewed
is usually that of the [BIA],” unless “the BIA simply states ‘that it affirms the IJ’s
decision for the reasons set forth in that decision.’” Id. (citation omitted). In that case,
“the IJ’s opinion effectively becomes the BIA’s, and, accordingly, a court must review
the IJ’s decision.” Id. (citation omitted) (internal quotation marks omitted). As the BIA
did not defer to or merely adopt the IJ’s decision in either denying De Paula and Alves’s
appeal or denying their motion to reconsider, we will review the BIA’s decisions here.
A. Substantial Evidence8
1. Asylum and withholding of removal
De Paula and Alves argue that proper consideration of the evidence connecting
De Paula’s activities with his father’s death could afford them relief in the form of
asylum or withholding of removal on account of family ties. Specifically, they argue that
it is “impossible to reconcile” the BIA’s initial decision reviewing the IJ’s
characterization of evidence with the BIA’s decision on reconsideration, which held that
the IJ’s characterization of evidence was in error yet harmless. (Petitioners’ Supp.
Opening Br. at 9.)
8
“Our review of factual findings, including findings of persecution and fear of
persecution, is for substantial evidence, which means we must uphold findings of fact
unless the record evidence compels a contrary finding.” Li Hua Yuan v. Att’y Gen., 642
F.3d 420, 425 (3d Cir. 2011). In addition, “we will view an error as harmless and not
necessitating a remand to the BIA when it is highly probable that the error did not affect
the outcome of the case.” Id. at 427; see also NLRB v. Wyman-Gordon Co., 394 U.S.
759, 766 n.6 (1969) (noting that remand to an agency is not necessary when it “would be
an idle and useless formality”).
7
Pursuant to the Immigration and Naturalization Act (“INA”), 8 U.S.C.
§ 1158(b)(1), the Attorney General has the discretionary power to grant asylum to an
alien who qualifies as a “refugee” under 8 U.S.C. § 1101(a)(42)(A). To make out a case
for refugee status under § 1101(a)(42)(A), an applicant must show “either past
persecution or a well-founded fear of future persecution if returned to her prior country of
residence based on ‘race, religion, nationality, membership in a particular social group, or
political opinion.’” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003) (quoting 8
U.S.C. § 1101(a)(42)(A)). An asylum applicant must establish that one of those
protected categories was or will be “at least one central reason” for persecution. 8 U.S.C.
§ 1158(b)(1)(B)(i). “[A] persecutor may have more than one central motivation for his or
her actions; whether one of those central reasons is more or less important than another is
irrelevant.” Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir. 2009). However,
“asylum may not be granted if a protected ground is only an ‘incidental, tangential, or
superficial’ reason for persecution of an asylum applicant.” Id. at 130. Unlike asylum,
which is discretionary, “withholding of removal under INA § 241(b)(3)(A), 8 U.S.C.
§ 1231(b)(3)(A), is mandatory.” Singh v. Gonzales, 406 F.3d 191, 196 (3d Cir. 2005)
(citation omitted). To succeed on an application for withholding of removal, the
applicant must “meet[] a more stringent standard” that “‘more likely than not’ … he or
she will be persecuted on account of race, religion, nationality, membership in a
particular social group, or political opinion if deported to his or her home country.” Id.
(citation omitted).
8
We have “accepted the definition for a ‘particular social group’ developed by the
BIA,” i.e., “‘a group of persons all of whom share a common, immutable characteristic.’”
Lukwago v. Ashcroft, 329 F.3d 157, 171 (3d Cir. 2003) (quoting Matter of Acosta, 19 I. &
N. Dec. 211, 233 (B.I.A. 1985), overruled in part as stated in Matter of Mogharrabi, 19
I. & N. Dec. 439 (B.I.A. 1987)). “[W]hatever the common characteristic that defines the
group, it must be one that members of the group either cannot change, or should not be
required to change because it is fundamental to their individual identities or consciences.”
Id. (quoting Acosta, 19 I. & N. Dec. at 233) (internal quotation marks omitted). We have
further acknowledged that the BIA considers “membership in a particular social group”
to include “kinship ties.” Singh, 406 F.3d at 196 n.5 (noting “that the BIA has identified
kinship ties as an innate, shared characteristic”); see also Fatin v. INS, 12 F.3d 1233,
1239 (3d Cir. 1993) (same).
As the BIA acknowledged on reconsideration, the IJ did not consider the evidence
that, just before De Paula’s father was killed, the gang member who pulled the trigger
had told him “this was because of [your] son and this is for you.” (A.R. at 411.) The
BIA decided that the remark should have been considered but dismissed the error as
harmless, based on the IJ’s conclusion that the killing of De Paula’s father was unrelated
to De Paula. We agree that the failure to consider a possible nexus between De Paula and
his father’s death was erroneous, but it cannot be that such error was harmless simply
because the IJ decided that De Paula was the victim of criminal revenge. The alleged
harmfulness of the error lies in the incomplete consideration of the record, which cannot
be assumed away by referring to the conclusion reached by the infirm process. The IJ’s
9
oversight may indeed turn out to be harmless because, even if it is found that the
persecution of De Paula’s father was partially based on a family relationship, that finding
would not necessarily support the converse conclusion that any persecution against
De Paula would be on account of his kinship tie to his father. Nevertheless, because we
will, for reasons explained below, remand for independent consideration of Alves’s
application, we will also remand for proper consideration of the possibility of a nexus
between De Paula’s alleged fear of persecution and his father’s death.9
2. Relief under the CAT
De Paula and Alves also argue that we should remand the denial of De Paula’s
request for relief under the CAT because, “[t]hough the [BIA] addressed the CAT issue
in its [reconsideration] decision, it disposed of the claim on a basis other than that relied
upon by the IJ.” (Petitioners’ Reply Br. at 5.) They claim that the BIA “impermissibly
acted as the trier of fact” (id.) and “ignore[d] evidence reflecting a cooperative
relationship between the gangs and the police in Brazil,” including the refusal of the
9
As the BIA cannot conduct its own fact-finding, 8 C.F.R. § 1003.1(d)(3)(i), (iv),
we will remand with instructions to allow the IJ to consider such nexus in the first
instance. We note, however, the logical difficulty presented by such a nexus, even if it
exists. It is odd to think that, although someone who is the victim of a purely criminal act
cannot rely on that act as a basis for asylum, a relative of the victim can rely on kinship to
claim membership in a protected class and thereby seek asylum. The relative stands in a
better position than does the victim. That oddity is further compounded by the circularity
evident in this case. De Paula was the victim of purely criminal acts – the stabbing and
later efforts at revenge by the gang – which, the IJ concluded, do not constitute a basis for
asylum. Yet, because his father was killed in another criminal act during which the
murderer mentioned De Paula, simple criminality was perhaps converted into a basis for
asylum. Whether that alchemy is legally sound has not been briefed or argued before us,
but it may be worth exploring with the parties once this matter is before the IJ and BIA
again.
10
police to investigate the killing of De Paula’s father, the failure of the police to
investigate the attack on De Paula’s sisters, and the State Department’s report regarding
alleged corruption of Brazilian police. (Petitioners’ Supp. Opening Br. at 11-12).
Under the CAT, “it became the policy of the United States not to expel … or
otherwise effect the involuntary return of any person to a country in which there are
substantial grounds for believing the person would be in danger of being subjected to
torture.” Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 64 (3d Cir. 2007) (omission in
original) (citation omitted) (internal quotation marks omitted). An alien seeking relief
under the CAT “bears the burden of establishing that it is more likely than not that he or
she would be tortured if removed to the proposed country of removal.”10 Id. (citation
omitted) (internal quotation marks omitted). The applicant “can satisfy the burden
established for CAT relief by producing sufficient evidence that the government in
question is willfully blind to such activities.” Id. at 65.
Contrary to the De Paula and Alves’s position, the BIA did not ignore the
evidence regarding the alleged relationship between gangs and police in Brazil. On
reconsideration, it reviewed the reasoning provided by the IJ, who expressly considered
that evidence and held that De Paula had failed to carry his burden. The evidence here
was not “so compelling that no reasonable factfinder could conclude as the BIA did” on
10
“Unlike with asylum or withholding or removal, an alien seeking relief under
the CAT need not establish that he/she is a ‘refugee’ and therefore need not establish that
torture is inflicted ‘on account of’ any protected status.” Silva-Rengifo, 473 F.3d at 64
(citation omitted).
11
De Paula’s request for CAT relief. Kayembe, 334 F.3d at 234. Accordingly, we will
deny the petition for review on De Paula’s request for relief under the CAT.
C. Due Process11
Alves, meanwhile, raises a separate claim, arguing that she was denied due
process when the IJ and BIA failed to independently consider her application for relief.
“In the removal context, due process requires that ‘an alien be provided with a full and
fair hearing and a reasonable opportunity to present evidence.’” Castro v. Att’y Gen., 671
F.3d 356, 365 (3d Cir. 2012) (quoting Romanishyn v. Att’y Gen., 455 F.3d 175, 185 (3d
Cir. 2006)). That includes “the right to ‘an individualized determination of [her]
interests.’” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (citation omitted).
The BIA’s conclusion that Alves’s application did not require a separate
determination because “her claims were based on [De Paula’s] claims” was erroneous.
(Supp. App. at 3.) Although their applications for relief were based on the same gang-
related incidents, Alves may be situated differently than De Paula. For instance, whereas
De Paula may not have shown that his fear of persecution ultimately arises from anything
but personal retribution, Alves may be able to show a nexus between her past persecution
and her spousal relationship to De Paula.12 Alves also claims that evidence could
establish that she would face more persecution in Brazil than De Paula because of her
gender. We do not reach that argument. Insofar as the IJ and the BIA presumed that
11
We review de novo the legal question of whether a petitioner’s due process
rights were violated. Cabrera-Perez, 456 F.3d at 115.
12
See supra note 9.
12
Alves was situated similarly to De Paula, that deprived Alves of an individualized
determination on her application. We will thus vacate and remand for a consideration of
Alves’s application that comports with due process.
III. Conclusion
For the foregoing reasons, we will grant in part and deny in part De Paula’s and
Alves’s petitions for review. The petitions will be remanded to the BIA for further
remand to an IJ for proceedings consistent with this opinion.
13