Vilela v. Holder

• Decision Date: 09 September 2010
• Docket Number: No. 10-1037.,10-1037.
• Citation: 620 F.3d 25
• Parties: Antonio Alves VILELA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

620 F.3d 25

Antonio Alves VILELA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10-1037.

United States Court of Appeals,First Circuit.

Submitted July 20, 2010.

Decided Sept. 9, 2010.

Susan E. Zak was on brief for petitioner.

Sunah Lee, Trial Attorney, Office of Immigration Litigation, Tony West, Assistant Attorney General, Civil Division, and Michelle G. Latour, Assistant Director, were on brief for respondent.

Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.

LYNCH, Chief Judge.

Antonio Alves Vilela, of Brazil, entered the United States on January 26, 1997 on a six-month non-immigrant visa and overstayed. He petitions for review of a December 7, 2009 final order of removal by the Board of Immigration Appeals (BIA). The BIA, affirming the April 3, 2008 opinion of an Immigration Judge (IJ), denied Vilela's applications for asylum, withholding of removal, protection under the Convention Against Torture (CAT), and voluntary departure in the alternative. Vilela petitions for review of only the BIA's denial of withholding of removal. For that reason we omit mention of his asylum and CAT claims. We deny the petition.

I.

Vilela was issued a Notice to Appear on September 30, 2004. Conceding removability, Vilela applied for asylum, withholding of removal, and protection under the CAT, or voluntary departure in the alternative, before an IJ on February 7, 2006. He appeared before an IJ for an evidentiary hearing on April 3, 2008.

We summarize Vilela's testimony before the IJ. Beginning in the 1970s, Vilela engaged in what he called “social work” with other members of his church in impoverished parts of Belo Horizonte, a city in the Brazilian state of Minas Gerais. The group provided food, toys, and medicine to the poor. In 1985, Vilela and about twenty members of his church founded AMISE, an acronym he explained stood for “Friends of the Neighborhood of Santa Efigenia and Sao Lucas,” to formalize their work.

Vilela testified that AMISE grew to about one hundred members and became the most active community organization in the state. He said that his own connections to local politicians and his familiarity with government bureaucracy, gained from his former employment in local and state government, helped AMISE attract significant government support for its projects. Among AMISE's many accomplishments were upgrading roads, lighting, sewers, and utility lines, increasing the number of buses serving the neighborhoods, increasing policing, and providing training and craft fairs to combat unemployment.

Vilela claimed that as AMISE grew more successful, Communist activists began to see it as a drain on the political support they would otherwise receive from the neighborhoods. Vilela thought that AMISE's success cost the Communists electoral support. Vilela also testified that, as the leader of AMISE, he was a well-known figure in the community, and he appeared on local television and radio broadcasts speaking out against Communism.

Vilela testified that in 1990, he visited a neighborhood near Santa Efigenia to distribute informational flyers about AMISE. On a street called the Avenida Memdesa, a group of four people he knew to be Communists approached him, told him he could not distribute his flyers in that neighborhood, and said that he should leave the region because their leader, Francisco Luciano, was angry at him for refusing to join the Communists' cause.

Vilela testified that within a month of the 1990 encounter, he began to receive phone calls from unidentified callers. Sometimes the callers would remain on the line in silence, sometimes they would laugh into the phone, and sometimes they would tell Vilela that he was “going to become a corpse.” In the seven years between 1990 and his departure for the United States in 1997, Vilela said, he received more than 50 such phone calls. Vilela “only suspect [ed]” that the callers were Communists, because he was generally respected and well-liked in the community and so had no other enemies who could be making the calls. He never reported any of the calls to the police.

In 1992, an unknown vandal slashed all four of the tires on Vilela's car and scratched through the paint. Vilela did not report the vandalism to the police, and assumed that Communists were responsible, because he could not think of anyone else who would want to vandalize his car.

In 1996, an unknown vandal painted “death to Antonio” on the high fence surrounding Vilela's home. He did not report the vandalism to the police or photograph the damage; he simply repainted the fence.

Also in 1996, Vilela was walking to work down a straight section of the Avenida Memdesa when a car drove up onto the curb and nearly hit him. Vilela thought the car looked like an unmarked police car; did not recognize either the driver or the passenger, who were laughing; but assumed they must be Communists. They did not make any further attempt to pursue him, and he did not know whether they were trying to kill him. He did not take down the car's license plate number or report the incident to the police.

On cross-examination, Vilela added that for a time after the car incident his wife thought there was someone following her wherever she went, but neither Vilela nor his wife reported this to the police.

As to why he did not report any of these incidents to the police, Vilela explained that retired police officers who were members of AMISE told him the police would do nothing in response and he thought the car looked like a police car.

Vilela testified that since his arrival in the United States, leftist politicians had come to power in Brazil, and political violence had broken out. Communists were suspected in the deaths of three people in the state of Rondônia, and these deaths, more than a thousand miles from Belo Horizonte, made Vilela feel like he would not be safe from the Communists anywhere in Brazil. He felt that he would be a “marked man” in Brazil because he had always been an outspoken anti-Communist in the church community and in the media.

Vilela was asked how he had obtained a United States Social Security card and work authorization card when he was, as he knew, ineligible for both. Vilela maintained that he was a “victim” of a scam in which he paid $2500 in “legal fees” to obtain a “legitimate card.” In 2004, Immigrations and Customs Enforcement (ICE) discovered the scam-an attempt by a Social Security Administration employee to sell actual Social Security cards to illegal immigrants-and interviewed Vilela as a client of the scheme. Vilela testified that he still had the fake Social Security card, and claimed it was only during cross-examination that he was first made aware that the card was invalid. He also claimed not to know what a work authorization card was, but eventually said that he had received one from a former employer who told him it was legitimate.

The IJ denied Vilela relief. The IJ noted that Vilela's testimony was plausible and internally consistent, but highlighted her concern that he had “embellish[ed]” his story. She found Vilela undermined his own credibility by using fraudulent documents and by either battering his wife or accepting her filing of a fraudulent police report. ¹ As a result, the IJ held that she would deny withholding of removal and voluntary departure as a matter of discretion, even if Vilela had established eligibility for relief, which he had not.

The IJ found that Vilela had not established eligibility for withholding of removal, because he had not shown past persecution or a well-founded fear of future persecution. Further, he had been unable to identify any of his antagonists, to establish a nexus between any of the harms he suffered and a protected ground, or to establish that those harms, including the phone threats, amounted to more than harassment. The IJ concluded that in a poor neighborhood like Vilela's, it was plausible that the property vandalism and car incident Vilela described were isolated and unrelated incidents.

The IJ also found that Vilela had not established government involvement or acquiescence. The IJ found that he could relocate safely within Brazil.

The BIA dismissed the appeal, upholding the IJ. The BIA treated Vilela's testimony as presumptively true. Even so, the BIA affirmed the IJ's findings that Vilela had failed to show harm rising to the level of persecution, nexus sufficient to support a finding of past persecution or a well-founded fear of future persecution, country-wide future danger, or eligibility under CAT.

II.

Where, as here, the BIA has issued its own opinion, we review the BIA's opinion, as well as any portion of the IJ's opinion adopted by the BIA. ² Bonilla v. Mukasey, 539 F.3d 72, 76 (1st Cir.2008). We review the BIA's determinations according to the deferential substantial evidence standard, upholding them unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Budiono v. Mukasey, 548 F.3d 44, 48 (1st Cir.2008) (quoting 8 U.S.C. § 1252(b)(4)(B)). Vilela does not raise any pure questions of law.

Only Vilela's withholding of removal claim is before us. ³

Withholding of removal protects an alien from removal to a country where “the...