De Oliveira Rodrigues v. Garland

112 F.4th 12

• Court: Court of Appeals for the First Circuit
• Decided: August 8, 2024
• Docket: 23-2081
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-2081

JOZELIA MARIA DE OLIVEIRA RODRIGUES; E.C.D.O.R.,

Petitioners,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Thompson and Gelpí, Circuit Judges.

Lidice D. Samper and Samper Law on brief for petitioners. Adriana Lafaille and Julian Bava on brief for the American Civil Liberties Union Foundation of Massachusetts, Inc., amicus curiae. Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, Dawn S. Conrad, Senior Litigation Counsel, Office of Immigration Litigation, and Christopher G. Geiger, Trial Attorney, United States Department of Justice, Office of Immigration Litigation, on brief for respondent.

August 8, 2024 THOMPSON, Circuit Judge. An adverse credibility finding

(or adverse credibility determination, as it is also commonly

called) is a factual finding that a noncitizen's testimony during

their removal proceedings was not credible. We've repeatedly

explained (and find ourselves in the position to reiterate today)

that such a finding can defeat a noncitizen's claim for immigration

relief. See, e.g., Mashilingi v. Garland, 16 F.4th 971, 977 (1st

Cir. 2021); Zaruma-Guaman v. Wilkinson, 988 F.3d 1, 5-6 (1st Cir.

2021). Today's immigration appeal is a prime example of an adverse

credibility finding doing just that.

To explain, at the center of today's immigration appeal

we have Jozelia Maria De Oliveira Rodrigues ("De Oliveira") and

her minor daughter E.C.D.O.R. (collectively, "Petitioners"),

Brazilian citizens who fled to the United States after their

neighbor, a drug dealer named Joao Carlos ("J.C."), began to

threaten them. Once here in the United States, they applied for

asylum, withholding of removal, and protection under the

Convention Against Torture ("CAT"), but an Immigration Judge

("IJ") denied their applications primarily because she found De

Oliveira's in-court testimony not credible. Petitioners

thereafter appealed to the Board of Immigration Appeals ("BIA"

and, collectively with the IJ, "the agency"), which ultimately

affirmed the IJ's adverse credibility finding. Fearing what might

happen to them if removed to Brazil, Petitioners appealed once

- 2 - more and brought their case to us through a petition for review,

urging us to reverse the agency's adverse credibility finding.

For reasons we'll explain in due course, however, we find the

adverse credibility finding is sufficiently supported by the

record and, accordingly, we must deny the petition.

GETTING UP TO SPEED

As always, we begin by getting up to speed with a summary

of the facts and of how Petitioners' case made its way to us.

(Bear with us, as we do plunge into the particulars.) In laying

out the facts and procedural history, we draw from the

administrative record, including De Oliveira's testimony, which

the IJ found not credible.1 M.S.C. v. Garland, 85 F.4th 582, 585

n.2 (1st Cir. 2023).

Credible Fear Interview

On or about November 22, 2017, Petitioners entered the

United States and applied for admission into the country. Upon

arrival, De Oliveira expressed a fear of returning to Brazil so

the Department of Homeland Security ("DHS") referred her to an

asylum officer ("AO") for a credible fear interview ("CFI").2 De

1The IJ made no credibility determination as to De Oliveira's minor daughter, E.C.D.O.R., because she did not testify. In fact, De Oliveira was the only witness to testify before the IJ. 2A CFI is a preliminary screening conducted by an AO to determine whether a noncitizen "can establish a credible fear of persecution or torture" in the country of removal. 8 C.F.R. § 208.30(d)-(e); see also 8 C.F.R. § 235.3(b)(4).

- 3 - Oliveira's CFI took place over the course of two days, December 4

and December 6, 2017, with the help of a Portuguese interpreter.

The AO took notes during the course of the interview, but those

notes include the following disclaimer:

The following notes are not a verbatim transcript of this interview. These notes are recorded to assist the individual officer in making a credible fear determination and the supervisory [AO] in reviewing the determination. There may be areas of the individual's claim that were not explored or documented for purposes of this threshold screening.

According to those notes, the AO started off the

interview by gathering some basic personal information about De

Oliveira, including that her last address in Brazil was in Santa

Rita do Itueto. He also asked her several questions about her

family, such as whether she was married and whether she had

children. To the marriage question, De Oliveira responded that

she was "[l]egally married but in real life [she was] not with

[her] partner any[more]" and the "[l]ast time [she] heard of him

he [was] in Brazil." To the children question, she responded that

she had two children, E.C.D.O.R., who had entered the United States

with her, and a son, who was still in Brazil.

With De Oliveira's basic personal information squared

away, the AO shifted the focus of the interview to De Oliveira's

fear of returning to Brazil. She explained that in Brazil she was

threatened by three to five different "drug users" with weapons

- 4 - near her house. This all started, De Oliveira went on, after she

saw them "using and selling drugs" and "report[ed] them to the

police." Although these individuals were arrested by the Brazilian

police, they were soon released from custody and began threatening

De Oliveira and her family. These individuals, De Oliveira

explained, would "pass by [her] house and scratch the tip of [a]

gun on [her] window."

The AO asked several follow-up questions to tease out if

there were any other reasons these individuals (or anyone else)

would harm De Oliveira if removed back to Brazil. For example,

the AO asked her whether "being a member of [her] family" had

"anything to do with" why these individuals targeted her. De

Oliveira stated that she believed it did "[b]ecause [she] [no]

longer live[d] with [her] husband, [she] live[d] alone with [her]

daughter, being a single mother was easier for [her] to be

targeted." The AO also asked her whether she had any problems in

Brazil "because of [her] race, being indigenous." De Oliveira

expressed that she "fe[lt] abused" in Brazil because "[w]hite

people" would "call [her] bad names, that [she] came from the

forest, the jungle." When asked who might harm her in Brazil

because of her indigenous ethnicity, she responded "[p]eople from

other race groups, people who like to despise indigenous people."

At the end of interview, the AO asked De Oliveira if the

following summary of her testimony was correct:

- 5 - You testified that you were threatened by drug dealers in Brazil because you informed the police on them, . . . and you are a single mother. You fear that if you return to Brazil the gang members will kill you because of these same reasons . . . .

De Oliveira indicated that the AO's summary was correct. Nowhere

in the interview notes does it reflect that De Oliveira ever

specifically mentioned an individual by the name J.C. (we'll get

to his relevance to De Oliveira's narrative shortly).

Ultimately, the AO deemed De Oliveira's fear credible

and referred Petitioners to the immigration court for removal

proceedings, during which they could seek asylum and related

relief.

I-589 Applications and Written Affidavit

Less than a year later on October 23, 2018, De Oliveira

filed with the Boston Immigration Court her I-589 application for

asylum, withholding of removal, and CAT protection, listing

E.C.D.O.R. as a derivative.3 To support their I-589 applications

for asylum and related relief, Petitioners filed several

additional documents, including a three-page written affidavit

3Two quick points. First, our use of "derivative" here refers to the fact that "[w]hen a noncitizen has been granted asylum, immigration law allows their spouse and children (who meet certain statutory criteria) to be granted asylum as derivatives." Cabrera v. Garland, 100 F.4th 312, 315 n.1 (1st Cir. 2024). That benefit applies only to asylum, not withholding of removal or CAT protection. Id. Second, in addition to being listed as a derivative on her mother's I-589 application, E.C.D.O.R. filed a separate I-589 application for herself, also on October 23, 2018.

- 6 - from De Oliveira drafted with the help of Petitioners' lawyer,

seven country conditions reports, a copy of De Oliveira's passport,

and copies of E.C.D.O.R.'s and her brother's birth certificates.

One piece of supporting evidence worth getting into the

weeds of is De Oliveira's written affidavit. In it, she stated

that her neighbors in Brazil were having a loud party one night

and she could see that they were drinking and doing drugs.

Although she asked them to keep it down, they refused and

"[e]ventually the police showed up and arrests were made [due] to

the drug use." One of the arrestees was her neighbor J.C., who De

Oliveira did not know at that time "was a well[-]know[n] drug

dealer."

The day after the party, J.C. was released from police

custody and began calling her house and threatening her family

because J.C. believed she called the police on him, notwithstanding

her denials to the contrary. Thereafter, J.C. frequently called

De Oliveira, sometimes "yelling and screaming" at her, sometimes

"just breath[ing] heavily into the phone," sometimes "calling

[her] horrible names," and sometimes threatening "to rape [her]."

Despite De Oliveira reporting J.C.'s threats to the police

"multiple times," the police "did nothing to stop him."

In fact, things worsened. J.C. began showing up at De

Oliveira's work to follow her home. She became so concerned that

J.C. would do something to her on her way home that she had a

- 7 - co-worker start walking her home. One day, J.C. slashed De

Oliveira's tires and that night he called her to ask her if she

liked having her tires slashed. She "pleaded with him to leave

[her] and [her] family alone," but J.C. just "laughed and said

that he was going to kill one of [her] children as punishment."

This interaction really frightened De Oliveira so she packed up

her family's things and "went to stay with one of [her] cousin[s]"

in a different town. De Oliveira's efforts, it turns out, were

all for naught because J.C. "found out where [they] were." This

convinced her that J.C. "would continue to hunt [them] down there

in Brazil," so she fled to the United States with E.C.D.O.R. in

tow.

That was the extent of the information included in De

Oliveira's written affidavit.

Direct Examination

Chugging along, on September 9, 2019, Petitioners

appeared with their lawyer before the IJ for their merits hearing,

seeking to avoid removal through their applications for asylum,

withholding of removal, and CAT protection. At the hearing, De

Oliveira took the stand, first for direct examination by her

lawyer, through the help of a Portuguese interpreter.

After some preliminary biographical questions, De

Oliveira's lawyer asked her why she came to the United States.

She explained that she fled to the United States after J.C., her

- 8 - neighbor and a drug trafficker, began threatening and harassing

her three to four years ago. Those threats and harassment began,

De Oliveira testified, after she saw him using drugs in front of

her house and she called the police. Although the police came and

arrested him, he was released the next day and he began threatening

to kill her and her family and to set her house on fire. In

addition to the threats, De Oliveira testified that J.C. slashed

her tires, that "[t]here were nights where he spent the entire

night with a revolver outside of [her] house," and that he would

"follow [her], and bother [her] at night." De Oliveira went to

the police for help, but "they didn't do anything." With no

protection from the police, she decided to move to Belo Horizonte,

"[a]nother state [in Brazil] where [they] had some relatives."

J.C., however, found them in Belo Horizonte and threatened to kill

De Oliveira and her children.

De Oliveira also mentioned, in response to her lawyer's

questioning, that she was the descendant of Indians and, therefore,

indigenous. She added on that J.C. "many times would cuss [her]

out as an Indian and say, like, Indian is like a . . . jungle

animal."

At the end of her direct examination, De Oliveira stated

that she feared returning to Brazil because J.C. was a dangerous

person capable of carrying out his threats, as she previously

- 9 - "witnessed him . . . beat[ing people] up." Since fleeing to the

United States, however, she has not heard from him again.

Cross-Examination

Next up was the government's turn to cross-examine De

Oliveira, during which she made some relevant clarifications to

the issues on appeal today.

In response to the government's questioning, De Oliveira

clarified that she contacted the police about J.C. three to four

times in total; the first time for the loud party and drug use and

the latter times for his threats against her and her family. After

the government asked De Oliveira why she had not submitted any

Brazilian police reports about these incidents in support of

Petitioners' applications for immigration relief, she testified

that she did try to acquire these reports but, when she called the

Brazilian police to get copies, they told her that they would only

give them to her if she first paid them 10,000 Brazilian reals.4

De Oliveira also made some important clarifications

about her family. She testified that, at the time she called the

police on J.C., she was living with her husband and their two

children. The four of them left Brazil together at the same time,

but her husband and son entered the United States on November 18,

2017 and Petitioners entered four days later on November 22, 2017.

4 In today's dollars, that sum would be around $1,800.

- 10 - When asked why her husband and son entered before her and

E.C.D.O.R., De Oliveira explained her husband "came ahead of [her],

because he was going to find a place to stay for when [she] arrived

with [E.C.D.O.R.]." She further explained that her husband was

presently in the United States. The government followed up and

asked De Oliveira if she had asked her husband to submit a written

statement corroborating her testimony, to which she responded,

"No."

The next clarifications regarded the move to Belo

Horizonte to escape J.C. and his threats. De Oliveira explained

that Belo Horizonte was about a twenty-six-hour drive from her

home in Santa Rita do Itueto, she lived at her cousins' home there

for about a month, and her husband went there with her. She

further testified on cross-examination that J.C. made his way to

her cousins' home, told her that "he had found [her]," and

threatened "that he was going kill [her] and [her] family and

anybody that [she] got involved in the middle of it." J.C. didn't

actually do so at that moment, De Oliveira went on, because her

family and cousins were there. She also stated that she never

informed her cousins about the threats she was receiving from J.C.

or the real reason as to why she and her family went to live with

them for a month. When her cousins asked De Oliveira who J.C. was

after he approached her at their home, she simply told them he

- 11 - "was just someone [she] knew" because she "w[as] afraid" and

"didn't want to worry them."

Moving on, the government then asked De Oliveira if J.C.

had ever gone to her parents' and siblings' home in Santa Rita do

Itueto looking for her. De Oliveira testified that, after she

came to the United States, J.C. had gone to their home and spoken

with her brother Washington. When pressed by the government as to

why she didn't have Washington submit a written statement

explaining that J.C. had come by looking for her, she explained

that it was "[o]ut of fear that [J.C.] would find out and then try

to take [her] brother's life." De Oliveira believed J.C. capable

of doing so because he previously "slash[ed] [Washington's]

motorcycle tires trying to get at [her]" right after she "reported

him" to the police.

Finally, the government asked De Oliveira about a few

alleged discrepancies between her in-court testimony and the notes

from her CFI. For example, the government asked her why she told

the AO that she was "[l]egally married but in real life [she was]

not with [her] partner any[more]" but testified that she, her

husband, and their children were all living together in Brazil.

De Oliveira explained that there was a "time frame" of "[o]ne or

two months" during which her husband left their home to see if

J.C.'s threats would "calm down." When the threats did not "calm

down," she reunited with her husband in Belo Horizonte at his

- 12 - cousins' home, where he had been staying during this

one-to-two-months' time frame. The government quickly followed up

and asked, "So when you went to live with your cousins it was your

husband's cousins," to which De Oliveira responded, "Yes."

The government also asked De Oliveira if she knew J.C.'s

name when she came to the United States, to which she indicated

that she did. If that was the case, the government followed up by

asking why she didn't mention J.C.'s name during her CFI. De

Oliveira responded with the following: "If I didn't say it, it

was due to forgetting because I had -- as far as I know, I had

said it." Furthermore, the government asked De Oliveira why,

throughout her CFI, she referred to people plural threatening her,

as her in-court testimony suggested only J.C. had threatened her.

She explained that J.C.'s "subordinates" "were always by [his]

side."

After a bit more back and forth questioning, the

government ended its cross-examination.

IJ's Questioning

After cross-examination there was no re-direct or

re-cross, but the IJ did take an opportunity to ask De Oliveira

some clarifying questions of her own.

Recounting just the highlights, the IJ asked De Oliveira

why she had not mentioned Washington's tires being slashed in her

I-589 application or written affidavit, to which she responded, "I

- 13 - don't know." Next, the IJ inquired as to whether De Oliveira had

ever asked the co-worker who would sometimes walk her home from

work to write a letter corroborating her story. She responded

that she had not done so. The IJ also asked her why she hadn't

listed the Belo Horizonte address in her I-589 application.5 De

Oliveira explained that she had "stayed there for a very short

amount of time, and [she] didn't even make note of and remember

the address where [she] stayed." Notably, the IJ also asked De

Oliveira why her written affidavit prepared with the help of her

lawyer did not include any mention of the confrontation between

her and J.C. in Belo Horizonte. De Oliveira stated that "when

[she] was talking with [her] attorney [she] was bringing up the

things that were . . . happening more frequently, and that was

just something that happened more, like, at a distance, so [she]

didn't put that down." Then, the IJ asked De Oliveira why her

written affidavit indicated that it was her cousins' home that

they stayed at in Belo Horizonte, whereas she testified on

cross-examination that it was her husband's cousins. She clarified

that she "consider[s] them [her] cousins because they're [her]

husband's relatives." Finally, the IJ asked De Oliveira if anyone

had ever hurt her children. She indicated that J.C.'s son

Among the many questions listed on the I-589 applications 5

Petitioners submitted are questions regarding their last address before coming to the United States and their addresses for the past five years.

- 14 - frequently hit her son at school. After the IJ asked her why she

didn't include this detail in her I-589 application or written

affidavit,6 De Oliveira explained it was her understanding that

her "case [was her] and [E.C.D.O.R.]" and didn't understand the

I-589 application to be asking her about instances of harm to the

rest of her family.

That was the end of the IJ's questioning. Before ending

the hearing, the IJ indicated that she would be issuing a written

decision and previewed, with some elaboration, that her decision

would be a denial because she did not find De Oliveira's testimony

"to be very credible."

The IJ's Decision

The IJ was true to her word and issued a written decision

on September 24, 2019, denying Petitioners asylum, withholding of

removal, and CAT protection and ordering their removal to Brazil.

She denied them relief for the most part because of an adverse

credibility finding but she concluded, in the alternative, that

they would not be entitled to relief on the merits regardless.

Starting off with asylum, the IJ found that De Oliveira

"did not testify credibly due to the inconsistencies between her

written statement and her testimony before the court and her sworn

6 Another question included on the I-589 applications Petitioners submitted is whether "you, your family, or close friends or colleagues ever experienced harm or mistreatment or threats in the past by anyone." (Emphasis added).

- 15 - statements to the . . . [AO] who conducted an interview, and due

to significant omissions from her written statement." To support

the adverse credibility finding, the IJ laid out nine alleged

inconsistencies, which we recap below:

• De Oliveira testified that J.C. stood outside of her house with a revolver, but her written affidavit made no mention of this.

• De Oliveira's testimony reflected that the family internally relocated within Brazil to her husband's cousins' home in Belo Horizonte, whereas her written affidavit reflected that it was her cousins.

• While De Oliveira testified that J.C. actually made his way to her husband's cousins' home in Belo Horizonte and confronted and threatened her there, her written affidavit was silent as to this alleged confrontation. The IJ also commented that she found it "highly implausible that [J.C.] would have followed her to this house, but not physically harmed anyone there."

• De Oliveira's CFI notes and I-589 application indicated that her most recent address in Brazil was in Santa Rita do Itueto, but she testified that she lived in Belo Horizonte before fleeing Brazil and did not include this address in her I-589 application.

• De Oliveira testified that J.C. used to call her ethnic slurs because of her indigenous ethnicity, but neither her written affidavit nor the CFI notes reflected her ever mentioning her ethnicity as a motivating factor behind J.C.'s threats. While the IJ noted that De Oliveira told the AO that she feared harm on account of being indigenous, when asked by the AO who would harm her, she only responded "[p]eople from other race

- 16 - groups, people who like to despise indigenous people."

• De Oliveira told the AO that she was targeted because she was a single woman who no longer lived with her husband and that she was "[l]egally married but in real life [she was] not with [her] partner any[more]." To the IJ, however, this statement was "most troubling" as it "was a far cry from the truth." The IJ explained that, based upon De Oliveira's testimony, De Oliveira, her husband, and both of their children "left Brazil together, entered Mexico together, only split apart to enter the United States, and reunited once within the United States." The IJ further noted that De Oliveira had "repeatedly told the [AO] that she was living alone with just her daughter."

• De Oliveira testified that her son had been threatened, but omitted any mention of this detail during her CFI.

• De Oliveira never mentioned J.C. by name to the AO; rather, she told the AO that she was threatened near her house by drug users who she saw using and selling drugs. Along these same lines, the IJ noted that De Oliveira's written affidavit explained that she did not know J.C. was a drug dealer before she called the police.

• De Oliveira never mentioned Washington's tires being slashed in her CFI, I-589 application, or written affidavit. The IJ further expressed that De Oliveira's explanation for not including that information was not "reasonable."

While these inconsistencies individually may not have

raised concerns, the IJ explained, their cumulative effect casted

doubt on the credibility of Petitioners' entire claim. "Based on

the inconsistencies combined with [De Oliveira's] demeanor and

- 17 - unresponsiveness to questions,"7 the IJ went on, "further

corroborating evidence regarding the past harm [De Oliveira]

allegedly suffered or her fear of future harm" would be required

to support Petitioners' claims. Aside from "generalized country

conditions information," the IJ lamented, Petitioners had offered

no other corroborating evidence. For example, De Oliveira had not

provided police reports from the Brazilian authorities, claiming

that the police demanded she first pay 10,000 Brazilian reals.

The IJ highlighted that De Oliveira did not provide that

explanation until specifically asked, and the omission of that

explanation from her written affidavit was "striking," "given that

her claim [was] hinged upon her assertion that the police will do

nothing to assist her from the threats." Moreover, the IJ noted

that De Oliveira did not provide any corroborating written

statements or testimony from her co-worker, her brother

Washington, her husband's cousins, or, "[m]ost significantly, her

husband" who "is in the United States."

In sum, the IJ denied Petitioners asylum because De

Oliveira "did not present credible testimony, and further that she

ha[d] not adequately corroborated her claim with reasonably

obtainable evidence, and thus ha[d] not met her statutory burden

of proof for asylum." Having denied asylum, the IJ also denied

7 The IJ did not provide any specific examples of De Oliveira's

demeanor or alleged unresponsiveness.

- 18 - withholding of removal, because it has an even higher standard of

proof than asylum.8 As for CAT protection, the IJ denied that form

of relief too because De Oliveira had not demonstrated that J.C.

would subject her to harm that amounted to torture, nor had she

demonstrated that the Brazilian government would acquiesce to her

torture given the fact that the police already arrested him once

at her insistence.

A timely appeal to the BIA followed.

The BIA's Decision

The BIA dismissed Petitioners' appeal on December 7,

2023, upholding the IJ's adverse credibility finding. In its

decision, the BIA adopted and deferred to the IJ's factual

findings, including the adverse credibility finding, because the

IJ "articulated specific, cogent reasons based in the record for

finding that [De Oliveira] was not credible." In reaching that

decision, the BIA highlighted the same inconsistencies outlined by

the IJ in her decision.9 The BIA also agreed with the IJ that

8 In addition, the IJ concluded that, in the alternative and assuming De Oliveira had testified credibly, Petitioners' asylum and withholding of removal claims would still fail because they had not demonstrated past persecution or a well-founded fear of future persecution on account of a protected ground. For those immigration-law beginners, don't fret as we'll explain what this all means in just a few pages. 9 It's worth noting, though, that the BIA did not mention the following two inconsistencies that the IJ highlighted in her decision: (1) the discrepancy about whether it was De Oliveira's or her husband's cousins' home that they stayed at in Belo

- 19 - Petitioners did not submit corroborating evidence, such as police

reports or statements from De Oliveira's brother, her husband's

cousins, or her husband himself. Accordingly, the BIA affirmed

the adverse credibility finding and the denial of asylum and

withholding of removal.10 Finally, as to CAT protection, the BIA

noted that Petitioners had not challenged the IJ's denial of that

form of relief.

A timely appeal to us followed next and that gets us all

the way to present day.

OUR TAKE

Now up to speed on the facts and procedural history, we

turn our attention to our take on Petitioners' appellate arguments

and there's a few things that are clear right out of the gate.

First, Petitioners' brief challenges only the agency's

denial of asylum and withholding of removal and does not "challenge

the BIA's determination to deem waived the issue of CAT

protection." Caz v. Garland, 84 F.4th 22, 30 n.7 (1st Cir. 2023).

"So, to the extent [they] wished to challenge that determination,

Horizonte, and (2) the omission in her I-589 application and written affidavit that her son had been threatened. 10 Because the adverse credibility finding was outcome-determinative of Petitioners' asylum and withholding of removal claims, the BIA declined to address the IJ's alternative conclusions that Petitioners had not suffered past persecution or articulated a well-founded fear of future persecution on account of a protected ground.

- 20 - any arguments [they] had to that effect are waived," id., and that

will be our last mention of anything on the CAT-protection front.

Second, as to asylum and withholding of removal, Petitioners argue

that the agency not only erred as to its adverse credibility

finding, but also that the IJ erred as to her alternative

conclusion that Petitioners had not shown past persecution or a

well-founded fear of future persecution on account of a protected

ground. As explained above, however, the BIA expressly declined

to address the IJ's alternative findings and rested its decisions

solely on the adverse credibility finding. And where the BIA does

not address "an IJ's alternative ground for denying relief, that

ground is not before us." Bonilla v. Mukasey, 539 F.3d 72, 81-82

(1st Cir. 2008). Accordingly, the claims before us are

Petitioners' challenge to the agency's denial of asylum and

withholding of removal vis-à-vis only the adverse credibility

finding, which we turn to now, kicking things off with asylum.

Asylum

A noncitizen is granted asylum only if they prove they

are a "refugee," which is defined, in relevant part, as a person

unable or unwilling to return to their home country "because of

[past] persecution or a well-founded fear of [future] persecution

on account of race, religion, nationality, membership in a

particular social group, or political opinion." 8 U.S.C.

§ 1101(a)(42)(A). Immigration law provides that a noncitizen's

- 21 - "testimony . . . may be sufficient to sustain [this] burden without

corroboration, but only if the [noncitizen] satisfies the trier of

fact that the [noncitizen's] testimony is credible, is persuasive,

and refers to specific facts sufficient to demonstrate that the

[noncitizen] is a refugee." 8 U.S.C. § 1158(b)(1)(B)(ii). In

this way, therefore, a noncitizen's credible testimony can make

their asylum claim, while an adverse credibility finding can break

it. That is so because, if the agency makes such a finding, "that

determination strips the testimony of probative force and permits

the agency to disregard or discount it." Segran v. Mukasey, 511

F.3d 1, 5 (1st Cir. 2007). And once a noncitizen's testimony has

been deemed not credible, "[a] failure either to provide readily

available corroborating evidence or to offer a compelling

explanation for such a failure" can be the straw that breaks the

camel's back. Rivera-Coca v. Lynch, 844 F.3d 374, 379 (1st Cir.

2016).

Additionally, part of the reason why an adverse

credibility finding "can prove fatal" to an asylum claim, Pan v.

Gonzales, 489 F.3d 80, 86 (1st Cir. 2007), is the standard under

which we review such findings. As a factual finding, adverse

credibility findings are reviewed under the deferential

substantial evidence standard. Diaz Ortiz v. Garland, 23 F.4th 1,

14 (1st Cir. 2022). While this standard of review is certainly

not toothless, see Kartasheva v. Holder, 582 F.3d 96, 105 (1st

- 22 - Cir. 2009), "[t]he extent to which this standard is deferential

bears emphasis," Zaruma-Guaman, 988 F.3d at 5. Reversal is

appropriate "only if the record is such as to compel a reasonable

factfinder to reach a contrary determination." Mashilingi, 16

F.4th at 977 (citation omitted). Such deference is afforded to

adverse credibility findings because the IJ has a front-row seat

at the merits hearing and is, therefore, uniquely situated to take

stock of a witness's credibility and demeanor, as opposed to

appellate courts, like ourselves, reviewing a cold record from the

nosebleeds. See Mam v. Holder, 566 F.3d 280, 283 (1st Cir. 2009).

All that said, not every adverse credibility finding

gets a judicial stamp of approval. See Segran, 511 F.3d at 5.

Indeed, "[w]e will not accord deference . . . to the agency's

findings or conclusions that 'are based on inferences or

presumptions that are not reasonably grounded in the record, viewed

as a whole, or are merely personal views of the [agency].'"

M.S.C., 85 F.4th at 594 (quoting Cordero-Trejo v. I.N.S., 40 F.3d

482, 487 (1st Cir. 1994)). Rather, adverse credibility findings

will only be upheld if they are supported by the record and the

agency "has given reasoned consideration to the evidence and has

provided a cogent explanation for [its] finding." Cuesta-Rojas v.

Garland, 991 F.3d 266, 270 (1st Cir. 2021) (quoting Huang v.

Holder, 620 F.3d 33, 37 (1st Cir. 2010)). And Congress has

- 23 - outlined a litany of factors the agency can rely on in assessing

credibility:

[T]he demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii).

Here, in adopting and affirming the adverse credibility

finding, the BIA "relied largely on the IJ's decision," discussing

in its own decision seven of the nine inconsistencies articulated

by the IJ. Zaruma-Guaman, 988 F.3d at 5. As such, we review "the

BIA's decision and the IJ's decision as a unit." Id. At the

outset, we note that the highlighted inconsistencies are plain as

day and Petitioners seem to agree because they repeatedly concede

in their briefing that some inconsistencies between De Oliveira's

statements, both written and oral, do exist. Despite these

multiple concessions, Petitioners offer two main comebacks.

First, they argue that the discrepancies cited by the agency "are

either not supported by the record or [De Oliveira] provided a

- 24 - convincing explanation for the discrepancies." Second, they argue

that "[a]ny omissions in [De Oliveira's] testimonies are

insufficient to call into question the entirety of [Petitioners']

claim." Neither argument withstands scrutiny.

Starting off with their first argument, in contending

that the discrepancies cited by the agency are not supported by

the record, Petitioners spill ink discussing only two

discrepancies: (1) whether De Oliveira was a single mother (which,

to remind, was the discrepancy the IJ found "most troubling" and

"a far cry from the truth"), and (2) whether she knew J.C. was a

drug dealer when she called the police on him.11 As to whether De

Oliveira was a single mother, the inconsistency is readily apparent

from the record. On the one hand, she told the AO that she was

"[l]egally married but in real life [she was] not with [her]

partner any[more]"; that the "[l]ast time [she] heard of him he

[was] in Brazil"; and that she no "longer live[d] with [her]

husband, [she] live[d] alone with [her] daughter, being a single

mother was easier for [her] to be targeted." On the other hand,

she testified that she and her husband lived together in Brazil at

the time she called the police on J.C.; he was threatened by J.C.

Petitioners do spill some ink (two sentences, to be exact) 11

on another discrepancy -- namely, whether it was De Oliveira's husband's cousins, as opposed to her cousins, with whom the family stayed in Belo Horizonte -- but the BIA did not get into this discrepancy in its decision, so neither do we.

- 25 - too; he moved away only for one to two months, not because of any

marital strife, but in hopes J.C. would stop threatening them; she

met up with her husband at his cousins' home in Belo Horizonte;

they left Brazil together;12 and her husband and son entered the

United States a few days before her and E.C.D.O.R. "to find a place

to stay for when [she] arrived with [E.C.D.O.R.]." These

statements are irreconcilably at odds with each other so we need

not dwell.13

As to whether De Oliveira knew J.C. was a drug dealer

when she reported him to the police, the record reflects that,

during her CFI, De Oliveira told the AO that she called the police

12 To be specific, De Oliveira testified that she, her husband,

and their two children left Brazil together. Consequently, this testimony was not just inconsistent with the CFI notes in the sense that she told the AO that her husband was in Brazil, but she also told the AO that their son was still in Brazil, which was also untrue. Petitioners take exception with the IJ's statement that De 13

Oliveira and her husband "left Brazil together, entered Mexico together, only split apart to enter the United States, and reunited once within the United States" because there is supposedly nothing in the record to indicate they entered Mexico together, "only" split apart to enter the United States, or that they reunited in the United States. That, however, is not an accurate representation of the record. De Oliveira testified that the only reason they didn't enter the United States together was because her husband "was going to find a place to stay for when [she] arrived with [E.C.D.O.R.]" (which, contrary to Petitioners' contention, reasonably implies they traveled to the United States together and were planning on reuniting once the place to stay was found) and Petitioners' I-589 applications reflect that De Oliveira remains married to her husband and De Oliveira, her husband, and their two children all live in Massachusetts.

- 26 - on J.C. and his subordinates and they began threatening her because

she "saw them using and selling drugs." In her written affidavit,

however, she stated explicitly that "[a]t the time [she reported

J.C. to the police she] didn't know that [her] neighbor was a

well[-]know[n] drug dealer." While these two statements appear

inconsistent, Petitioners argue any discrepancy can easily be

explained away because her written affidavit can be understood to

be saying De Oliveira knew J.C. was a drug dealer when she reported

him, but didn't know he was a well-known drug dealer. In other

words, "well-known" is, in Petitioners' view, the operative word

in De Oliveira's written affidavit. Setting aside the fact that

the written affidavit places no emphasis on that word, we've

explained before that "[w]hen the facts give rise to competing

inferences, each of which is plausible, the IJ's choice between

those competing inferences cannot be found to be unsupported by

substantial evidence." Mashilingi, 16 F.4th at 978. And here,

the agency reasonably read De Oliveira's written affidavit to say

she did not know J.C. was a drug dealer when she reported him,

which was contrary to her statement to the AO. Accordingly, both

these discrepancies are reasonably supported by the record and the

agency properly relied on them in supporting its adverse

credibility finding.14

14Petitioners make a passing argument that neither of these discrepancies can support the agency's adverse credibility finding

- 27 - Next in line for our consideration is Petitioners'

second argument, which (to refresh) is that any omissions "are

insufficient to call into question the entirety of" Petitioners'

claims. In their briefing, they make arguments only about certain

omissions highlighted by the agency, namely, that De Oliveira did

not mention (1) J.C.'s use of indigenous slurs in her CFI, I-589

application, or written affidavit; (2) J.C.'s name during her CFI;

(3) her son being threatened in her CFI, I-589 application, or

written affidavit; (4) the confrontation between her and J.C. in

Belo Horizonte in her CFI, I-589 application, or written affidavit;

and (5) Washington's tires being slashed in her CFI, I-589

application, or written affidavit. To Petitioners, these

omissions cannot support the agency's adverse credibility finding

for three reasons. None persuade.

First, Petitioners argue that where De Oliveira's

testimonies "consistently describe the presence or absence of

persecution," omissions cannot doom her asylum claim. For example,

they note that De Oliveira testified consistently "about the nature

of the threats she received, how J.C. followed her, and he slashed

her tires." But again, we're aware of no authority (and

because they did "not involve any fraudulent documents" and De Oliveira "remained consistent about the timeline of her victimization." But Petitioners cite no authority (and we are aware of none) that suggests an adverse credibility finding is only proper when the noncitizen submits fraudulent documents or is inconsistent about the timeline of victimization.

- 28 - Petitioners point us to none) that suggests omissions cannot

support an adverse credibility finding where certain other parts

of a noncitizen's story remain consistent. Second, Petitioners

argue that the agency unreasonably relied on omissions in the CFI,

despite the CFI notes' explicit disclaimer that they are not a

verbatim transcript and certain aspects of a noncitizen's claim

might not have been explored. It is true that we have recognized

that an agency may err when it "fails to treat the notes as the

sketch that they represent themselves to be." Cuesta-Rojas, 991

F.3d at 273. But even on that score, these omissions were not

just absent from the CFI notes, but also from the I-589

applications and De Oliveira's written affidavit, which, we

highlight, were prepared with the benefit of counsel's guidance.

Third, Petitioners argue that these omissions were either too

"insignificant" or "tangential" to the harm they endured to call

into question their claims. In making this argument, however,

Petitioners seem to be turning a blind eye to Congress' instruction

that the agency can base its adverse credibility determination on

"any inaccuracies or falsehoods . . . without regard to whether an

inconsistency, inaccuracy, or falsehood goes to the heart of the

applicant's claim." 8 U.S.C. § 1158(b)(1)(B)(iii). It also seems

to ignore our instruction that, "whatever may be said about any

particular inconsistency if that inconsistency is viewed in

splendid isolation," "credibility determinations require a

- 29 - reviewing court to consider the record in its entirety," so "[t]he

whole is frequently greater than the sum of the parts."

Mashilingi, 16 F.4th at 978.15

Ultimately, the bottom line is that the agency

highlighted a smorgasbord of inconsistencies, which "were

specifically identified, well-documented, hard as a group to

reconcile or explain,16 and cumulatively persuasive of a lack of

credibility." Id. Under these circumstances, the agency was well

within its discretion to require further corroborative evidence.

See Avelar Gonzalez v. Whittaker, 908 F.3d 820, 827 (1st Cir.

2018). The agency was also well within its rights to hold against

Petitioners the failure to provide, aside from seven generalized

country conditions reports, any corroborative evidence such as

15 We also dispute the characterization that some of these omissions could be considered "insignificant" or "tangential." Take, for example, the omission of the confrontation between De Oliveira and J.C. in Belo Horizonte. Where immigration law provides that asylum can "be denied if the adjudicator determines that [the noncitizen] could avoid persecution by internally relocating within the country of removal and, under all the circumstances, it would be reasonable to do so," Caz, 84 F.4th at 27, we do not see how Petitioners' persecutor traveling to "[a]nother state" in Brazil, which was a "26[-]hour[]" drive from Santa Rita do Itueto, to threaten De Oliveira and tell her "he was going to kill [her], [and] kill [her] children" could be reasonably viewed as "insignificant" or "tangential." 16 Indeed, some of De Oliveira's explanations for these inconsistencies did little to help her cause. For example, when asked by the IJ why she didn't mention Washington's tires being slashed in her I-589 application or written affidavit, De Oliveira merely responded, "I don't know."

- 30 - police reports or statements from De Oliveira's co-worker,

brother, husband, or husband's cousins. Petitioners respond that

it would have been unreasonable to require her to produce the

Brazilian police reports given "the widespread levels of police

corruption" and the fact that the Brazilian police demanded that

she pay them 10,000 Brazilian reals before giving her the reports.

But the absence of the police reports was not what the agency found

most "striking"; rather, the agency expressed its disbelief that

De Oliveira did not mention this "police misconduct . . . within

the body of her written application and statement," "given that

her claim [wa]s hinged upon her assertion that the police will do

nothing to assist her from the threats." Petitioners also fault

the agency for seemingly requiring live, in-court testimony from

De Oliveira's husband when immigration law imposes no such

requirement on spouses of noncitizens, but the BIA explicitly noted

that he could have also provided a written affidavit, given that

he is in the United States and lives in Massachusetts.

To tie it all together, viewing the inconsistencies as

a whole, a reasonable factfinder could determine that De Oliveira's

testimony wasn't believable. And with no supporting evidence to

corroborate her otherwise incredible testimony, there was a dearth

of proof that Petitioners satisfied immigration law's definition

of a "refugee." In other words, the adverse credibility finding

- 31 - was supported by substantial evidence and the agency's denial of

asylum was proper.

Withholding of Removal

Comparatively speaking, there's much less for us to

write to dispose of Petitioners' withholding of removal claim, as

opposed to their asylum claim. Because Petitioners' burden is

heavier as to withholding of removal than as to asylum,17 Cabrera,

100 F.4th at 324, our resolution of Petitioners' asylum claim

brings their withholding-of-removal house of cards tumbling down

too, see, e.g., Mashilingi, 16 F.4th at 980; Avelar Gonzalez, 908

F.3d at 828.

Loose Thread

With the finish line in sight, we have one loose thread

to address before we end. The American Civil Liberties Union of

Massachusetts, Inc. ("ACLUM") filed an amicus curiae18 brief in

this case regarding some clarifications to our caselaw it hopes we

17Whereas a noncitizen applying for asylum need only show a "reasonable possibility" of persecution in the country of removal, which includes possibilities as low as "10%," I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987) (citation omitted), a noncitizen applying for withholding of removal must show "it is more likely than not that he or she would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion upon removal to [a] country," 8 C.F.R. § 1208.16(b)(2). 18Subbing out the Latin in favor of everyday English, "amicus curiae" refers to a party who "assist[s] the court on matters of law" through briefing and, sometimes, oral argument. Banerjee v. Bd. of Trs., 648 F.2d 61, 65 n.9 (1st Cir. 1981).

- 32 - make in today's decision. In its brief, the ACLUM argues that we

should take today's case as an opportunity to (1) "abandon, or at

the least articulate limits to, the discredited falsus in uno,

falsus in omnibus maxim,"19 and (2) "further clarify that mere

omissions are not inconsistencies." We, however, decline both

invitations because "[t]he customary praxis in this circuit is to

eschew arguments raised only by amici and not by the parties,"

Ryan v. U.S. Immigr. & Customs Enf't, 974 F.3d 9, 33 n.10 (1st

Cir. 2020), and here neither party raised either issue.20

CONCLUSION

As the IJ expressed in her decision, "[i]f what [De

Oliveira] testified to did in fact occur, the Court by no means

condones the reprehensible actions of [J.C.]," but, for the reasons

articulated above, we must deny the petition.

19To set aside the Latin lingo once more in favor of everyday English, falsus in uno, falsus in omnibus means "false in one thing, false in everything." Quezada-Caraballo v. Lynch, 841 F.3d 32, 33 (1st Cir. 2016). That maxim provides that, when a witness lies about one thing, their entire testimony can be deemed false. See Castañeda-Castillo v. Gonzales, 488 F.3d 17, 23 (1st Cir. 2007). 20 Indeed, Petitioners explicitly note in their brief that "the IJ did not make a falsus in uno, falsus in [omnibus] inference." And nowhere do they suggest an omission cannot, nor should not, be considered an inconsistency that can support an adverse credibility finding.

- 33 -