De Paula v. Attorney General of United States, 091614 FED3, 13-3365

Docket Nº:13-3365, 13-4505
Opinion Judge:JORDAN, Circuit Judge.
Judge Panel:Before: FISHER, JORDAN, and HARDIMAN, Circuit Judges.
Case Date:September 16, 2014
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit




Nos. 13-3365, 13-4505

United States Court of Appeals, Third Circuit

September 16, 2014


Submitted Under Third Circuit LAR 34.1(a) September 9, 2014

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

Before: FISHER, JORDAN, and HARDIMAN, Circuit Judges.


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 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 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 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...

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