Gomes v. Garland

• Decision Date: 03 November 2021
• Docket Number: No. 20-2106,20-2106
• Citation: 17 F.4th 210
• Parties: Robson Xavier GOMES, Petitioner, v. Merrick B. GARLAND, Respondent.
• Court: U.S. Court of Appeals — First Circuit

17 F.4th 210

Robson Xavier GOMES, Petitioner,

v.Merrick B. GARLAND,^* Respondent.

No. 20-2106

United States Court of Appeals, First Circuit.

November 3, 2021

SangYeob Kim, with whom Gilles Bissonnette, American Civil Liberties Union of New Hampshire, Anna R. Welch, Suzannah Dowling, Blake McCartney, and Cumberland Legal Aid Clinic University of Maine School of Law were on brief, for petitioner.

Jane T. Schaffner, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Brian Boynton, Acting Assistant Attorney General, Civil Division, and Papu Sandhu, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Before Lynch and Barron, Circuit Judges, Burroughs,^** District Judge.

BURROUGHS, District Judge.

An Immigration Judge ("IJ") denied Petitioner Robson Xavier Gomes' applications for asylum, withholding of removal, cancellation of removal, protection under the United Nations Convention Against Torture ("CAT"), and voluntary departure. The Board of Immigration Appeals ("BIA") then dismissed his appeal. Now, Mr. Gomes petitions for review of the BIA's decision on his asylum and withholding of removal claims.¹ For the reasons below, we dismiss one of the claims in the petition because we lack jurisdiction over it and deny the others.

I. Background

A. Legal Framework for Asylum and Withholding of Removal

Our case law is clear that:

[t]o be eligible for asylum, the applicant must show that [ ]he is unwilling or unable to return to h[is] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group ["PSG"], or political opinion. The applicant may make this showing by establishing that [ ]he suffered past persecution, which creates a rebuttable presumption of a well-founded fear of future persecution. Establishing past persecution ordinarily requires an applicant to show that [ ]he experienced more than mere discomfiture, unpleasantness, harassment, or unfair treatment. Absent evidence of past persecution, the well-founded fear requirement may be satisfied with evidence of a reasonable likelihood of future persecution, so long as the fear is genuine and objectively reasonable. To meet the objectively reasonable requirement, the applicant must produce credible, direct, and specific evidence supporting a fear of individualized persecution in the future.

Additionally, the applicant bears the burden of demonstrating that the claimed persecution was or will be on account of a statutorily protected ground -- the nexus requirement. That requirement is met if the applicant can prove that a statutorily protected ground was or will be at least one central reason for persecuting the [alien]. Importantly, [w]hether the harm suffered by an asylum applicant was inflicted on account of a protected ground is generally [a] question[ ] of fact.

Pojoy-De León v. Barr, 984 F.3d 11, 16 (1st Cir. 2020) (final four alterations and emphasis in original) (citations and internal quotation marks omitted).

"The standard for withholding of removal is even higher; the applicant must show that it is more likely than not that [ ]he would be subject to persecution on account of an enumerated ground if [ ]he were repatriated." Villalta-Martinez v. Sessions, 882 F.3d 20, 23 (1st Cir. 2018) (citing 8 U.S.C. § 1231(b)(3) and Mayorga-Vidal v. Holder, 675 F.3d 9, 13 (1st Cir. 2012) ).

B. Facts

Mr. Gomes was born in Brazil in 1974. When he was nineteen years old, he came to the United States. He lives with his common-law wife in New Hampshire. They have two children who are both U.S. citizens. Mr. Gomes has been consistently employed and owns a commercial cleaning company.

Mr. Gomes owns land in Xinguara, a rural area of Brazil. His parents reside in a small city nearby. Mr. Gomes' land was originally owned by his father but was transferred to him about twenty years ago because Mr. Gomes' father feared that it would be invaded and/or attacked by members of the "Partido dos Trabalhadores" ("PT") and/or the "Movimento dos Trabalhadores Sem Terra" ("MST").² Members of the PT and the MST invade farmland and perpetrate violence throughout Brazil. They invaded Mr. Gomes' land on multiple occasions, burning it and killing two of Mr. Gomes' employees in the process. Since his arrival in the United States, Mr. Gomes has returned to Brazil regularly to check on his land and see his parents.

In 2009, intending to relocate his family to Brazil, Mr. Gomes packed a shipping container with some of his belongings——including motorcycles, commercial cleaning equipment, and a safe that contained firearms——and arranged for it to be shipped to Brazil. Because the container's location was unknown for more than a year, Mr. Gomes hired a broker to track it down. The broker located the container at the port of Santos in Brazil. When Mr. Gomes went to recover the container, the port official told him that he would release the container only if Mr. Gomes paid him a large bribe. Mr. Gomes refused, telling the port official that the requested bribe was three-fold what the container's contents were worth and that he was "against the bribery." The official then threatened Mr. Gomes. Later, the official lowered his demand, but Mr. Gomes still refused to pay the bribe.

The Brazilian government charged, tried, and convicted Mr. Gomes in absentia for failing to pay taxes on the shipping container and unlawfully shipping firearms. Then, the Brazilian government issued an INTERPOL Red Notice, pursuant to which Mr. Gomes was apprehended by the U.S. Department of Homeland Security ("DHS") in December 2018. While being interrogated by agents from the U.S. Postal Inspection Service, DHS, and U.S. Immigration and Customs Enforcement, Mr. Gomes admitted to using his friend's U.S. passport to travel between Brazil and the United States. Mr. Gomes was criminally charged in the United States, and he pleaded guilty to making a false statement in violation of 18 U.S.C. § 1001(a)(2).

Following the guilty plea, DHS issued a Notice to Appear, which charged Mr. Gomes as removable under 8 U.S.C. §§ 1182(a)(6)(A)(i), 1182(a)(6)(C)(i), and 1182(a)(6)(C)(ii). During his removal proceedings, Mr. Gomes conceded removability but sought relief in the form of asylum, withholding of removal, protection under CAT, and cancellation of removal, or, in the alternative, voluntary departure. In connection with his asylum claim, Mr. Gomes maintained that he had been persecuted (and feared future persecution) based on his membership in two PSGs: (1) landowners in Brazil who oppose corruption and (2) individuals opposed to and refusing to cooperate with corrupt government officials. Additionally, he asserted that he had been and would be persecuted for his political opinions. His application for withholding of removal was based on the same grounds.

C. The IJ's Decision

Although the IJ found that Mr. Gomes "testified credibly," he denied Mr. Gomes all relief and ordered him removed.³

With respect to asylum, the IJ rejected Mr. Gomes' contention that he had suffered past persecution, finding that neither (1) the invasion/destruction of his land at the hands of the PT and/or the MST nor (2) the threats made against him by the PT, the MST, and/or port officials rose to the level of persecution. The IJ also found that Mr. Gomes did not have a well-founded fear of future persecution because he failed to demonstrate a reasonable probability that he would be singled out for persecution or that there was a pattern and practice of harming similarly-situated individuals in Brazil. Next, the IJ considered whether Mr. Gomes had satisfied the "basis" and "nexus" requirements and found that he had not. The IJ concluded that Mr. Gomes' proposed PSGs——landowners in Brazil who oppose government corruption and individuals who oppose and refuse to cooperate with corrupt government officials——were not legally cognizable. Taking a belt-and-suspenders approach, the IJ also concluded that, even setting aside the fact that Mr. Gomes had failed to identify a legally cognizable PSG, he had also not adequately demonstrated that any alleged past or future persecution was tied to his membership in a PSG. Specifically, the IJ found that the PT and the MST invaded land to make money, not to target any particular group. Then, the IJ rejected Mr. Gomes' political opinion-based claim because Mr. Gomes had not expressed his political opinion to anyone nor was a political opinion imputed to him. Additionally, the IJ rejected Mr. Gomes' argument that he had been criminally prosecuted in Brazil because of his political opinion, instead finding that he had been prosecuted and convicted because of his criminal conduct (i.e., illegally shipping guns and failing to pay required taxes).

The IJ rejected Mr. Gomes' withholding of removal claim because Mr. Gomes had failed to satisfy the lower burden of establishing his eligibility for asylum.

D. The BIA's Decision

The BIA dismissed Mr. Gomes' appeal. With respect to his asylum claim, the BIA found that his proffered PSG, Brazilian landowners who oppose corruption, was not legally cognizable.⁴ The BIA also rejected Mr. Gomes' political opinion argument, agreeing with the IJ that Mr. Gomes "did not express his political opinion to anyone or establish that a political opinion was imputed to him." Additionally, the BIA found that, even if Mr. Gomes had identified a legally cognizable PSG or established that he had expressed a political opinion (or had one imputed to him), the IJ had correctly concluded that Mr. Gomes had failed to demonstrate a sufficient link between any past or feared harm and a protected ground. In doing so, the BIA: (1) highlighted Mr. Gomes' testimony that the PT invaded his land to make money; (2) affirmed the IJ's decision that Mr. Gomes' criminal prosecution in Brazil stemmed from his own criminal conduct rather than a protected ground; and (...