Scatambuli v. Holder

• Decision Date: 25 February 2009
• Docket Number: No. 08-1584.,08-1584.
• Citation: 558 F.3d 53
• Court: U.S. Court of Appeals — First Circuit
• Parties: Julio SCATAMBULI; Geliane Scatambuli, Petitioners, v. Eric H. HOLDER, Jr.,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.

558 F.3d 53

Julio SCATAMBULI; Geliane Scatambuli, Petitioners, v. Eric H. HOLDER, Jr.,^* Attorney General, Respondent.

No. 08-1584.

United States Court of Appeals, First Circuit.

Submitted November 5, 2008.

Decided February 25, 2009.

Jose A. Vazquez on brief for petitioners.

Kathryn L. DeAngelis, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Gregory G. Katsas, Assistant Attorney General, Civil Division, and Terri J. Scadron, Assistant Director, on brief for respondent.

Before LYNCH, Chief Judge, SELYA and BOUDIN, Circuit Judges.

LYNCH, Chief Judge.

Julio and Geliane Scatambuli, natives and citizens of Brazil, petition for review of the Board of Immigration Appeals's denial of their application for asylum and withholding of removal.

The Scatambulis arrived in the United States with false visas, obtained through an illegal alien smuggling operation, and upon their detention by U.S. immigration authorities, provided information to authorities regarding the smuggling ring. Petitioners then sought asylum protection and withholding of removal based on their claimed fear of persecution for their status as "government informants." The Immigration Judge and the BIA denied their claim. The Scatambulis argue that the BIA improperly relied on "social visibility" in determining that they were not members of a particular social group within the meaning of the Immigration and Nationality Act. 8 U.S.C. §§ 1101(a)(42)(A), 1231(b)(3)(A). We deny their petition.

I.

On July 4, 2003, the Scatambulis sought admission to the United States at El Paso, Texas. They were detained by immigration officials at the border. On July 29, 2003, the Department of Homeland Security issued Notices to Appear ("NTA's") with two charges related to inadmissibility: first that petitioners were aliens who sought to procure a visa, other documentation, or admission to the United States by fraud or willful misrepresentation of a material fact, under 8 U.S.C. § 1182(a)(6)(C)(i); and second that petitioners lacked proper entry documentation at the time of their application for admission, under § 1182(a)(7)(A)(i)(I).

Julio appeared in Immigration Court, with counsel, on September 8, 2003, and admitted all of the factual allegations made against him, although he denied any fraudulent conduct.

Julio submitted an application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT") on September 15, 2003. The application named Geliane as a derivative beneficiary. The removal proceedings were consolidated. On November 19, 2003, the Scatambulis moved for a change of venue from El Paso to Boston and admitted the charges in their NTAs. The change of venue was granted, and hearings before the IJ occurred on July 28, 2005, March 8, 2006, and April 12, 2006.

In his asylum application affidavit, and in his testimony before the IJ, Julio explained that in May 2003, his brother Roberto Scatambuli referred him to Mr. X¹ in order to obtain tourist visas to come to the United States. Julio was told to go to Mr. X's office to drop off his and Geliane's passports along with processing fees of $300. Julio subsequently paid Mr. X and his associate Mr. Y an additional $11,100 to obtain the tourist visas, plane tickets from Brazil to Mexico City, and additional fees to travel from Mexico City to the United States. On their arrival in Mexico City, the Scatambulis met Mr. Y, who took them from Mexico City in a rental van to the border town of Juarez, Mexico. Mr. Y told them that they should never reveal to U.S. authorities who had helped them obtain their visas, because if they did Mr. X and Mr. Y would find them and kill them and their families.

When the Scatambulis were detained at the border, an officer told them that he believed their visas were fraudulent because a woman and her three children had attempted to cross the border that morning with similar visas and identical airline reservations. The Scatambulis were then placed in detention.

Julio testified that after about twenty days in detention, Special Agent Oscar Diaz visited him. Diaz asked Julio about how he and Geliane had come to the United States. Julio said he was told "that if [he] was to state the truth, the United States government would protect him." He therefore agreed to cooperate with Diaz. Julio testified that he gave Diaz photos and contact and bank account information about Mr. X and Mr. Y to help Diaz's investigation. Diaz met with the Scatambulis approximately six times. In return for their cooperation, the Scatambulis received work permits.

Julio further testified that he had told Diaz, "I ... need the protection because these guys will kill me," and that Julio's neighbors had reported that Mr. X and Mr. Y were looking for him in Brazil.

Geliane's testimony before the IJ was similar to Julio's. She stated that Mr. X had threatened her and Julio that if they revealed information about Mr. X to American authorities, they "would be sorry." Geliane also stated that Mr. X told them that he could "get anything he wanted because he already had [their] address in Brazil" and that if they encountered any problems in their trip to the U.S., they "could not talk about [Mr. X] because then he would silence [them]." She testified that she gave Diaz the information she knew about Mr. X and the photos that she had taken during the trip from Brazil through Mexico of Mr. Y and the other travelers.

On July 28, 2006, the IJ issued an oral decision denying the Scatambulis' application for asylum, withholding of removal, and protection under the CAT, or in the alternative voluntary departure. The IJ found that the Scatambulis were "generally credible" but did not credit Julio's claim that he only realized his visa was fraudulent when he was stopped at the U.S. border. The IJ found that they had a subjectively genuine fear of returning, but that they had not met their burden of demonstrating that the persecution they feared was "on account of a protected ground." They claimed they had membership in a particular social group of "informants." Relying on In re C-A-, 23 I. & N. Dec. 951 (BIA 2006), the IJ found, inter alia, that petitioners' purported group lacked the visibility to be considered a social group for asylum purposes, explaining that "[t]he only people who know of their decision to provide information to the Department of Homeland Security are family members, and possibly also [Mr. X] and [Mr. Y]."

The IJ determined that because petitioners' asylum claim failed, their claim for withholding of removal failed as well, because the standard for withholding is more stringent than the standard for asylum. The IJ further found that the petitioners fear of torture was too speculative. The IJ denied their applications for voluntary departure, finding the petitioners ineligible because they failed to meet the requirement of one year of residency in the United Statutes prior to the issuance of an NTA. 8 U.S.C. § 1229c(b)(1)(A).

On April 14, 2008, the BIA affirmed the decision of the IJ in a three-page per curiam decision. Relying on its recent decisions, the BIA determined that the caselaw articulated considerations in addition to the requirement that applicants show membership in a group sharing a "common, immutable characteristic." The BIA stated, "[i]n each of these cases, we emphasized that the purported group's social visibility—i.e., the extent to which members of a society perceive those with the characteristic in question as members of a social group—is of particular importance in determining whether an alien is a member of a claimed particular social group." The BIA concluded:

We find that the [IJ], citing our holding in Matter of C-A-... properly applied the "social visibility" factor in determining that "informants against a Brazilian smuggling ring" are not a particular social group. Persons who act as informants to the United States government have not been shown to be part of a socially visible group within Brazilian society, and [Julio] does not allege that he possesses any outward characteristics that would cause others in Brazilian society to recognize him as one who has acted as an informant with government authorities. Witnesses in criminal cases, or other investigations, do not share a characteristic which identifies them to others. Of course, individuals who inform on others in criminal or other investigative matters may face risks from the individuals who have been informed upon. But such risk would arise from an individualized reaction of the persons informed upon to the specific behavior of the informant.

The BIA also upheld the IJ's determination that Julio had failed to establish that if he returned to Brazil, Mr. X and Mr. Y would be able to bribe Brazilian police who would then "subject him to punishment reaching the level of torture."

II.

We review the BIA's findings of fact under the deferential substantial evidence standard. Budiono v. Mukasey, 548 F.3d 44, 48 (1st Cir.2008). We accept the BIA's findings so long as they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Sharari v. Gonzáles, 407 F.3d 467, 473 (1st Cir.2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)) (internal quotation marks omitted). We reverse only if "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also, e.g., Chikkeur v. Mukasey, 514 F.3d 1381, 1382-83 (1st Cir.2008). "When the BIA adopts the IJ's opinion and discusses some of the bases for the IJ's decision, we have authority to review both the IJ's and the BIA's opinions." Ouk v. Gonzales, 464 F.3d 108, 110 (1st Cir.2006).

With respect to the BIA's legal interpretations, we review de novo, Elien v. Ashcroft, 364 F.3d 392, 396 (1st Cir.2004), but we nonetheless give substantial deference to the BIA's interpretations of the...