Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-31-2008
Guimaraes v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4967
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4967
DARCY DEDRONHO GUIMARAES,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
Agency No. A79-136-771
Immigration Judge: R. K. Malloy
Submitted Under Third Circuit LAR 34.1(a)
March 3, 2008
Before: BARRY, JORDAN and HARDIMAN, Circuit Judges
(Opinion Filed: March 31, 2008)
OPINION
BARRY, Circuit Judge
Darcy Guimaraes, a native and citizen of Brazil, petitions for review of a final
order of removal of the Board of Immigration Appeals (“BIA”), which affirmed a
decision of an immigration judge (“IJ”) denying his claims for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). For the following
reasons, we will deny Guimaraes’s petition.
Because we write only for the parties, we set out only those facts necessary for our
analysis. Guimaraes’s wife, Mara Cicivizzo, is a native of Brazil who was granted
asylum in the United States in 1997. Cicivizzo was previously married to another
Brazilian national while living in Brazil and for some time while living in the United
States. They later divorced. Cicivizzo, who worked in Brazil as a government social
worker assigned to assist children in the criminal justice system, sought asylum on the
ground that she had been threatened by Brazilian police after she attempted to publicize
the police’s use of the children she worked with to commit various crimes. Guimaraes
seeks relief on the theory that upon his return to Brazil he will be detained and tortured by
the Brazilian government by virtue of his marriage to Cicivizzo, about whom the
Brazilian government and its police force have allegedly not forgotten even though the
activities in which she was involved occurred in 1993 and she has been in the United
States since 1994.
Guimaraes first argues that the IJ’s and BIA’s denial of his application for asylum
on the ground that he failed to file his application within one year of his arrival, 8 U.S.C.
§ 1158(a)(2)(B), and failed to demonstrate changed circumstances in Brazil warranting an
exception to the one-year filing requirement, id. § 1158(a)(2)(D), violated his right to due
process.1 Due process guarantees an alien in an asylum proceeding “the opportunity to be
1
Where, as here, the BIA adopts the decision of the IJ and adds additional explanation
for its holding, we review both decisions. He Chun Chen v. Ashcroft, 376 F.3d 215, 222
(3d Cir. 2004). We lack jurisdiction to review the purely factual determination as to
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heard at a meaningful time and in a meaningful manner.” Mudric v. Atty. Gen., 469 F.3d
94, 100 (3d Cir. 2006) (internal quotation marks and citation omitted). The alien is
entitled to “fact finding produced to the IJ or BIA and disclosed to him,” “the ability to
make arguments on his own behalf,” and “an individualized determination of his
interests.” Id. Guimaraes’s argument, at bottom, is that the IJ’s and BIA’s decisions
were wrong, not that he was precluded from making arguments or having findings of fact
produced to him, or that he did not receive an individualized determination of his claim.
Indeed, we find that all three of these requirements were satisfied. Guimaraes’s due
process claim therefore fails.
Guimaraes’s only arguable challenge to the denial of his withholding of removal
and CAT claims is that the adverse credibility determination drawn against Cicivizzo by
the IJ is not supported by substantial evidence.2 An adverse credibility determination is a
finding of fact that we must treat as conclusive “unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Dia v. Ashcroft,
353 F.3d 228, 247 (3d Cir. 2003) (en banc).
When asked whether her ex-husband had ever visited or returned to Brazil while
living in the United States, Cicivizzo stated that his mother had told her in 1996 that he
whether there exist changed circumstances that excuse an untimely filed asylum
application. Mudric v. Atty. Gen., 469 F.3d 94, 101 (3d Cir. 2006). Indulging
Guimaraes’s argument that the decisions below raise a constitutional claim, however, we
will assert our jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the alleged error.
2
We reject without further discussion Guimaraes’s argument that the IJ “deemed [his]
entitlement to relief ameliorated” because he could divorce his wife and/or lie to Brazilian
officials upon his arrival. Reply Br. at 13-14. The IJ “deemed” no such thing.
3
had done so. When asked whether she had any reason to believe that he had been
tortured, harmed, or detained upon his return to Brazil, Cicivizzo answered no. She was
then asked whether she had any reason to believe that her ex-husband’s mother had lied
to her about her son’s trip to Brazil. Cicivizzo began to “backtrack” and answered in the
affirmative because, she said, when the mother said her son was in Brazil it was during
the divorce proceedings and the mother knew that Cicivizzo was seeking child support
from him. The IJ found this line of testimony to be “totally incredible” because, in the
IJ’s view, Cicivizzo only claimed that her ex-husband’s mother had lied after Cicivizzo
had testified that she had no reason to believe that the ex-husband had been tortured,
detained, or otherwise harmed upon returning to Brazil and could travel back and forth to
the United States—an admission wholly undermining Guimaraes’s argument that if
removed to Brazil he would be detained and tortured for having married Cicivizzo.
Indeed, the IJ found that it is “inconceivable” that the Brazilian government would
immediately “pounce[]” on Guimaraes at the airport and hold him responsible for any
activities in which Cicivizzo engaged while living in Brazil so many years ago or any
information the government believes she may have shared with him. It was surely not
unreasonable for the IJ to find that Cicivizzo had changed her position in an effort to
undercut a previous statement that undermined her husband’s claims. The adverse
credibility determination was supported by substantial evidence.
For these reasons, we will dismiss the petition for review.
4