Silva v. Ashcroft

• Citation: 394 F.3d 1
• Decision Date: 05 January 2005
• Docket Number: No. 03-2738.,03-2738.
• Parties: Paulo Rocha Pereira Da SILVA et al., Petitioners, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 1

394 F.3d 1

Paulo Rocha Pereira Da SILVA et al., Petitioners, v. John ASHCROFT, Attorney General, Respondent.

No. 03-2738.

United States Court of Appeals, First Circuit.

Submitted November 15, 2004.

Decided January 5, 2005.

Kevin R. Murphy on brief for petitioners.

Peter D. Keisler, Assistant Attorney General, Civil Division, Linda S. Wernery, Senior Litigation Counsel, Office of Immigration Litigation, and Kathleen M. Zapata, Trial Attorney, on brief for respondent.

Before SELYA, Circuit Judge, COFFIN and CYR, Senior Circuit Judges.

SELYA, Circuit Judge.

Petitioner Paulo Rocha Pereira Da Silva, a Brazilian national, seeks review of a final order of the Board of Immigration Appeals (BIA) rejecting his request for withholding of removal. Discerning no error, we deny the petition.

I. Background

In November of 1997, the petitioner, previously a domiciliary of Campos, Brazil, entered the United States on a six-month tourist visa. He took up residence in the Boston area and overstayed his visa. A year later, he was joined by his wife, Regina Celia Gomes De Lima Silva, and his minor daughter, Paola Lima Rocha Pereira. They also arrived as tourists and stayed past their respective visa expiration dates.

In September of 2000, the petitioner requested asylum on behalf of himself, his wife, and his daughter. The Immigration and Naturalization Service (INS) responded by serving a notice to appear.¹ That notice directed the trio to answer charges that their continued presence in the United States violated the provisions of the Immigration and Nationality Act (INA). See 8 U.S.C. § 1227(a)(1)(B). At a hearing before an immigration judge (IJ), the family members admitted through an attorney that they had overstayed, acknowledged removability, conceded that the application for asylum was time-barred, and sought withholding of removal on the ground that the petitioner had a well-founded fear of future persecution in his native Brazil because of his membership in a particular social group, that is, his status as a "member of society [who] refused to perform illegal tasks simply because of pressure from his immediate supervisors at work."

In support of his application for withholding of removal, the petitioner testified that he had been employed as a part-time accountant for a government-funded drug rehabilitation center in Campos. While carrying out his bookkeeping duties, he learned that the chief executive officer of the center, Fred Luis Mauricio, was embezzling funds. The petitioner aided and abetted the embezzlement by creating phony invoices to account for the missing money. When at long last the Brazilian federal government launched an inquiry into the center's operations, Mauricio threatened to kill the petitioner and his family if he spoke about the corruption.

Despite the threat, the petitioner gave a statement implicating Mauricio to the investigators. Subsequently, his wife was threatened and his apartment ransacked. He reported these incidents to the local office of the military police,² who declined to afford him special protection because he did not know whether Mauricio was responsible for what had transpired. The petitioner took this refusal as a sign that Mauricio and the local police were conspiring against him and that further requests for police assistance would be an exercise in futility.

Concerned about his safety and that of his family, the petitioner borrowed money from relatives and fled to the United States. His wife and daughter stayed in Brazil, but moved to his brother's house ninety miles from Campos. A year passed without any untoward incidents. At that point, the petitioner's wife and daughter joined him in the United States.

After listening to the petitioner's tale, the IJ found credible those portions of his testimony that recounted facts within his personal knowledge, e.g., that his work situation was corrupt; that he had initially participated in the corruption but later cooperated with the authorities to root it out; that by providing information to the federal police, he had acted as a whistleblower, albeit one with "lesser status" since his whistleblowing began only when it became apparent that he could be prosecuted for his complicity in the ongoing embezzlement; and that Mauricio had threatened him. The IJ explicitly declined to make a finding that Mauricio was responsible for the threat to the petitioner's wife or for the break-in at the petitioner's home.

Despite her acceptance of much of the petitioner's testimony, the IJ refused to embrace many of the conclusions that the petitioner sought to draw from the underlying facts, calling them "mere speculation." Specifically, she refused to credit the petitioner's self-serving accusation that the local police were in league with Mauricio, observing that no hard evidence of such a tie had been proffered. She also noted that the petitioner had made no effort to enlist the help of any police department outside of the local area in which Mauricio might have had political influence, thus further weakening his broad-brush claim of police bias. She then rejected as a matter of law the petitioner's contention that his whistleblower status made him a member of a targeted social group within the purview of 8 U.S.C. § 1231(b)(3)(A). Finally, she denied his prayer for withholding of removal.³

The petitioner appealed. The BIA adopted the IJ's findings of fact and conclusions of law, adding an independent finding that the feared harm related to what was "essentially a personal dispute" between Mauricio and the petitioner. For that reason, any threats that had been made against the petitioner and his family were insufficient to establish a well-founded fear of future persecution.

After the BIA affirmed the IJ's order, this petition for judicial review eventuated.⁴ See 8 U.S.C. § 1252(a)(1), (b).

II. Analysis

Under the INA, an otherwise deportable alien may avoid removal if the Attorney General determines that "the alien's life or freedom would be threatened in [the destination] country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." Id. § 1231(b)(3)(A). The applicant must carry the devoir of persuasion to show either that (i) he has suffered past persecution on account of one of these five protected grounds (thus creating a rebuttable presumption that he may suffer future persecution), or (ii) it is more likely than not that he will be persecuted on account of a protected ground upon his return to his native land.⁵ See 8 C.F.R. § 208.16(b); see also INS v. Stevic, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). A showing of a well-founded fear of future persecution involves both objective and subjective elements. See Laurent v. Ashcroft, 359 F.3d 59, 65 (1st Cir.2004). To perfect that showing, an alien must establish not only that he harbors a subjectively genuine fear of future persecution but also that an objectively reasonable basis for that fear exists. Id.

The Attorney General's authority to make these determinations has been delegated to the BIA. See 8 C.F.R. § 1003.1(a)(1). We review the BIA's findings of fact, including its credibility determinations, pursuant to the substantial evidence standard. Mediouni v. INS, 314 F.3d 24, 26 (1st Cir.2002). Under that regime, a reviewing court will accept the BIA's findings as long as they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). This means, in effect, that we will set aside the BIA's findings only if, and to the extent that, "the record evidence would compel a reasonable factfinder to make a contrary determination." Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir.1999). A recent amendment to the INA has codified this deferential standard. See 8 U.S.C. § 1252(b)(4)(B) (ordaining that the BIA's findings of fact shall be upheld "unless any reasonable adjudicator would be compelled to conclude to the contrary").

Rulings of law command our attention under a somewhat different framework. We afford de novo review to the BIA's legal conclusions, but cede some deference to its interpretations of the INA. See INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); Lattab v. Ashcroft, 384 F.3d 8, 17 (1st Cir.2004); see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

In this case, the petitioner focuses on the fourth of the five protected grounds: membership in a particular social group. He variously defines that social group as comprising those who "refused to perform illegal tasks because of pressure" from workplace supervisors or "trapped" employees forced to acquiesce to the demands of corrupt employers.⁶ To make matters more nebulous, the IJ synthesized his argument as being that the particular social group consisted of "whistleblowers," and the petitioner has not disavowed that nomenclature. The petitioner urges that the BIA erred in concluding that he failed to prove a cognizable threat of future persecution on account of that membership, however defined. His argument is unpersuasive.

In determining what constitutes persecution on account of membership in a particular social group, the key is whether the claimed persecution is aimed at an individual because of his or her affiliation with a group of persons, all of whom share a common, immutable characteristic. See Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir.1993); Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1st Cir.1985); see also In re Acosta, 19 I. & N. Dec. 211, 233, 1985 WL 56042 (BIA 1985), overruled in part by In re Mogharrabi, 19 I. & N. Dec. 439, 1987 WL 108943 (BIA 1987). Because the most obvious groups meeting these criteria — such as racial or ethnic groups-are independently covered under the...