Goncalves Carvalho v. Garland

• Court: Court of Appeals for the First Circuit
• Decided: August 13, 2024
• Docket: 23-1250
• Status: Unpublished

Opinion

Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 23-1250

JOAO PAULO GONCALVES CARVALHO; J.V.A.C.,

Petitioners,

v.

MERRICK B. GARLAND, United States Attorney General,

Respondent.

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

Before

Gelpí, Lynch, Rikelman, Circuit Judges.

Saher J. Macarius, Audrey Botros, and Law Offices of Saher J. Macarius LLC on brief for petitioner. Sunah Lee, Senior Trial Attorney, Office of Immigration Litigation, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, and Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice on brief for respondent.

August 13, 2024 LYNCH, Circuit Judge. Joao Paulo Goncalves Carvalho and

his son, Joao Victor Antunez Carvalho, of Brazil, petition for

review of a decision of the Board of Immigration Appeals ("BIA")

affirming an Immigration Judge's ("IJ") order denying their

applications for asylum, and the father petitions for review of

the denial of his application for withholding of removal as well

as relief under the Convention Against Torture ("CAT"). See 8

U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A); 8 C.F.R. §§ 1208.16(c)(2),

1208.18(a)(1); see also Convention Against Torture, art. 3, Dec.

10, 1984, S. Treaty Doc. No. 100-20 (1988).

The IJ found Goncalves Carvalho not to be credible in

his testimony in support of these applications. The BIA upheld

the IJ’s denials of relief, finding, inter alia, that there was no

error in the IJ's finding that the petitioner's testimony was not

credible and, in the alternative, that the petitioner failed to

sustain his burden of proof for asylum and withholding of removal

even if his testimony were found credible. The BIA further found

that there was no error in the IJ's finding that the petitioner

failed to demonstrate eligibility for CAT protection.

We need not reach the BIA's alternative ground for

denial. The BIA and IJ's (collectively, "the agency") adverse

credibility determination is supported by substantial evidence and

is alone sufficient to deny the petitioner's application for asylum

- 2 - and withholding of removal. We also agree with the agency that

the petitioner has not met the standard for protection under CAT.

We deny the petition for review.

I.

The petitioner and his son1 entered the United States on

or around April 5, 2018 without valid entry documents. The next

day, they were served with Notices to Appear, charging them with

removability pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). The

petitioner and his son conceded removability in pleadings

submitted to the IJ and at an initial hearing before the IJ on

September 13, 2018. On October 15, 2018, the petitioner filed an

application for asylum, naming his son as a derivative beneficiary,

and for withholding of removal and protection under CAT. He

submitted a written declaration, dated October 12, 2018, in

support of his claims.

The petitioner appeared before the IJ on September 12,

2019, represented by counsel, where he was the sole witness to

1 We refer to Goncalves Carvalho throughout as the "petitioner," acknowledging that Antunez Carvalho has a derivative claim for asylum. Antunez Carvalho is not, however, eligible for withholding of removal or protection under CAT because these forms of relief do not carry derivative benefits and Antunez Carvalho did not file any separate applications. See Mariko v. Holder, 632 F.3d 1, 1 n.1 (1st Cir. 2011).

- 3 - testify.2 The IJ found the petitioner's testimony to be not

credible.

The IJ denied the petitioner's applications and ordered

the petitioner and his son removed to Brazil. The IJ found that

the petitioner did not qualify for asylum for two independent

reasons, the first being that his testimony was not credible and

lacked sufficient corroborating evidence to meet his burden of

proof. The IJ found the petitioner's testimony to be not credible

because "[t]here were too many inconsistencies between his

testimony and his written statement" and "[t]he omissions [were]

glaring and significant." The petitioner failed to provide a

"satisfactory" explanation for these inconsistencies. The IJ

further found that "there [was] very little corroborating evidence

in the record other than country conditions evidence." The IJ

accordingly found that the petitioner "[had] failed to meet his

statutory burden of proof for asylum." In the alternative, the IJ

also found that even if the petitioner's testimony had been

credible, the petitioner's alleged harms were still insufficient

to demonstrate persecution on account of a protected ground.

The IJ then held that it necessarily followed that the

petitioner "cannot meet the higher burden of proof for withholding

2 While Goncalves Carvalho did not claim protection under CAT in his initial pleadings before the IJ, we consider his claim as made in his asylum application.

- 4 - of removal." The IJ also denied the petitioner's claim for

protection under CAT because the petitioner presented no evidence

showing that "the police in any way acquiesced or turned a blind

eye to the activity going on to harm him."

The petitioner appealed to the BIA, arguing again

through counsel that he: (1) gave credible testimony;

(2) demonstrated past persecution on account of his political

opinion and religion;3 and (3) demonstrated a fear of future

persecution on the same grounds.

The BIA affirmed. First, the BIA "discern[ed] no clear

error in the Immigration Judge's adverse credibility finding."

The BIA agreed with the IJ that the inconsistencies between the

petitioner's testimony and written declaration "go beyond mere

3 The petitioner's brief before the BIA framed this issue as one of "past persecution due to political opinion and membership in a particular social group." (Emphasis added). However, the brief made no arguments as to particular social group, and petitioner's counsel had withdrawn the argument before the IJ. The BIA accordingly found a claim based on particular social group waived. The BIA also found a claim based on race waived because the petitioner did not meaningfully challenge the IJ's finding regarding this claim nor did he "make any meaningful arguments on appeal regarding race." We agree. The petitioner argues before this court that the petitioner's "race is tied to his religious beliefs as well," suggesting that any argument made on account of religion should also be taken as an argument on account of race. But this argument was not properly exhausted before the BIA, and we do not consider it. See Singh v. Garland, 87 F.4th 52, 58-59 (1st Cir. 2023) ("[W]e consistently have held that arguments not made before the BIA may not make their debut in a petition for judicial review of the BIA's final order." (quoting Gomez-Abrego v. Garland, 26 F.4th 39, 47 (1st Cir. 2022))(internal quotation marks omitted in original)).

- 5 - details and relate to whether the [petitioner] suffered

persecution in Brazil, a central aspect of his asylum claim." The

BIA also agreed that the petitioner "did not submit sufficient

corroborating evidence." In the alternative, assuming the

credibility of the petitioner's testimony, the BIA concluded that

the petitioner had failed to establish any nexus between his

alleged harms and a protected ground.

The BIA affirmed the IJ's finding that the petitioner

did not satisfy "the higher standard of a clear probability of

persecution as required for withholding of removal under the INA."

The BIA also affirmed the IJ's finding that the petitioner did not

demonstrate eligibility for CAT protection because the petitioner

failed to meet his burden of proof.

This timely petition for review followed.

II.

"We review the BIA's decision . . . as the agency's

final decision and look to the IJ's decision only 'to the extent

that the BIA deferred to or adopted the IJ's reasoning.'" Mendez

v. Garland, 67 F.4th 474, 481 (1st Cir. 2023) (quoting Chavez v.

Garland, 51 F.4th 424, 429 (1st Cir. 2022)). We apply the

deferential "substantial evidence standard" to the IJ's factual

findings, including adverse credibility determinations, which

"requires us to accept the [IJ's] factual findings . . . unless

the record is such as to compel a reasonable factfinder to reach

- 6 - a contrary conclusion." Dorce v. Garland, 50 F.4th 207, 212 (1st

Cir. 2022) (emphasis and omission in original) (quoting

Mazariegos-Paiz v. Holder, 734 F.3d 57, 64 (1st Cir. 2013)). For

adverse credibility determinations, "we narrowly inquire whether:

(i) the discrepancies articulated by the IJ and/or the BIA are

actually present in the administrative record; (ii) the

discrepancies generate specific and cogent reasons from which to

infer that petitioner or his witnesses provided non-creditworthy

testimony; and (iii) petitioner failed to provide a persuasive

explanation for these discrepancies." Cuko v. Mukasey, 522 F.3d

32, 37 (1st Cir. 2008).

We first turn to the petitioner's asylum application.

In order to succeed on an asylum application, a petitioner must

"'demonstrate a well-founded fear of persecution on one of five

protected grounds' -- race, religion, nationality, political

opinion or membership in a particular social group." Paiz-Morales

v. Lynch, 795 F.3d 238, 243 (1st Cir. 2015) (quoting Singh v.

Holder, 750 F.3d 84, 86 (1st Cir. 2014)); see 8 U.S.C.

§§ 1101(a)(42), 1158(b)(1)(B)(i). A petitioner must demonstrate

that one of the five protected grounds is at least "one central

reason for the harm alleged." Barnica-Lopez v. Garland, 59 F.4th

520, 528 (1st Cir. 2023) (quoting Sanchez-Vasquez v. Garland, 994

F.3d 40, 47 (1st Cir. 2021) (internal quotation marks omitted));

8 U.S.C. § 1158(b)(1)(B)(i). A petitioner's "testimony, if

- 7 - credible, can on its own be sufficient to meet this burden." Jin

Lin v. Holder, 561 F.3d 68, 71 (1st Cir. 2009). However, the

testimony "may be discounted or completely disregarded" if the

agency finds it to be not credible. Id.

The IJ and BIA both concluded that the petitioner's

testimony was not credible and lacked corroborating evidence.

Substantial evidence supports this conclusion. We affirm.

Credibility determinations in cases filed after May 11,

2005, such as the petitioner's, are controlled by the REAL ID Act.

Pub. L. No. 109–13, § 101(a)(3), 119 Stat. 302, 303 (codified at

8 U.S.C. § 1158(b)(1)(B)(iii)); see Mariko, 632 F.3d at 5. Under

that standard, the IJ considers "the totality of the circumstances,

and all relevant factors," including "the consistency between the

applicant's or witness's written and oral statements" and "the

consistency of such statements with other evidence of record." 8

U.S.C. § 1158(b)(1)(B)(iii). "In the event that an applicant is

found not to be entirely credible in [his] testimony, corroborating

evidence may be used to bolster [his] credibility." Jin Lin, 531

F.3d at 72.

The IJ's adverse credibility determinations here rested

on material discrepancies between the petitioner's testimony on

September 12, 2019 and his written declaration dated October 12,

2018. We begin with the unequivocal facts in the record before

turning to these discrepancies. The petitioner was thirty-seven

- 8 - years old at the time of the hearing. The petitioner testified

that in Brazil, he borrowed 80,000 reals from a loan shark, which

he has not repaid and cannot repay, and which he said has spawned

a series of threats to him and his family. In addition, the

petitioner asserts that he is an Evangelical Christian and that he

has been targeted due to his religion and race. This targeting

includes being called racial slurs and some other incidents

discussed below.

As the IJ found, the petitioner's description of the

threats he and his family received in connection with the

outstanding loan are inconsistent with his declaration. In his

declaration, the petitioner referred to a single and unaccompanied

loan shark, stating that "[h]e went to my house on many occasions

to threaten me" and that "[h]e also went to the door of my son's

school to threaten him," and related no other threats. (Emphases

added). His declaration did not state that the loan shark was

armed or that he was accompanied. In contrast, in his testimony,

the petitioner stated that "three guys showed up to my house and

called me outside to talk, and they were armed." (Emphases added).

And the petitioner, in his testimony, added an additional incident:

that they threatened the petitioner outside the hospital after his

second child was born, stating that they would harm his family.

The IJ also properly noted inconsistencies in the

petitioner's various accounts of the harm he said he had incurred

- 9 - on the basis of his race and religion. Absent from his written

declaration, but present in his testimony, he said that he and his

family: (1) were beaten while walking to church and called

religious slurs; (2) were barred by Catholics, using physical

force, from participating in an open-air mass on account of their

Evangelical religion; and (3) were barred from using the bathroom

in a commercial establishment on account of their race and were

called racial slurs. Further, the petitioner testified that he

was robbed of money and jewelry on account of his race and

religion, but in his declaration, he stated only that "[p]eople

attempted to rob me near my house." (Emphasis added). When asked

about these inconsistencies during the hearing, the petitioner

first answered that he "didn't imagine that every detail was

necessary for the entire trajectory of all the threats that

happened." He later gave the different explanation that he "was

interrogated by seven agents for the immigration" and that "[t]he

last one stuck his finger in my face," even though the declaration

at issue was authored months following his entry into the United

States.

The record supports the agency's holding that the

petitioner had not submitted corroborating evidence in support of

his claims. The only corroborating evidence submitted by the

petitioner was a copy of his passport and marriage certificate,

- 10 - country conditions reports, and external reports and articles with

more information on country conditions.

The IJ gave specific and cogent reasons for her adverse

credibility finding, pointing toward inconsistencies that are

replete within the record. The petitioner was given multiple

opportunities to explain the inconsistencies but provided only

conflicting and unreasonable explanations. The petitioner failed

to present any evidence corroborating his testimony, such as any

evidence of the purported loan, any medical documentation of his

injuries, or even evidence of his Evangelical Christian faith. An

adverse credibility determination "dooms [an asylum

application] . . . if the alien's case for asylum rests

exclusively on his testimony," and such is the case here. Ahmed

v. Holder, 765 F.3d 96, 101 (1st Cir. 2014).4

We turn next to the petitioner's application for

withholding of removal under 8 U.S.C. § 1231(b)(3). To succeed,

the petitioner "must show that, if returned to his homeland, he

4 The petitioner argues that the BIA abused its discretion in failing to address the petitioner's "separate ground for relief" based on a well-founded fear of future persecution. Not so. The BIA's adverse credibility determination necessarily reached both petitioner's claim based on past persecution and that based on a well-founded fear of future persecution because his whole case turned on his testimony. See Ahmed, 765 F.3d at 101 (upholding the BIA's denial of petitioner's asylum claim based on fear of future persecution that the BIA found "to be dependent upon the petitioner's incredible testimony and, thus, inadequately supported").

- 11 - would more likely than not be subject to persecution on account of

a statutorily protected ground." Amouri v. Holder, 572 F.3d 29,

35 (1st Cir. 2009). "A petitioner who cannot clear the lower

hurdle for asylum will necessarily fail to meet the higher bar for

withholding of removal." Paiz-Morales, 795 F.3d at 245. Here,

the petitioner's asylum claim fails, so his withholding of removal

claim fails as well.

We turn last to the petitioner's application for

protection under CAT. We agree with the BIA that the petitioner

"has not shown that it is more likely than not he would be tortured

by, or at the instigation of, or with the consent or acquiescence

(including willful blindness) of a public official or other person

acting in an official capacity upon removal to Brazil." See

Hincapie v. Gonzales, 494 F.3d 213, 221 (1st Cir. 2007) ("[T]he

infliction of harm does not constitute torture within the meaning

of the CAT unless that harm is inflicted by, at the direction of,

or with the acquiescence of government officials."); see also 8

C.F.R. § 1208.16(c)(2); 8 C.F.R. § 1208.18(a)(1). The agency

based its conclusion on the fact that the petitioner "testified

that he does not fear any persons in the government of Brazil,"

has "never been physically harmed by anyone from the government of

Brazil," and has "never reported any of [the alleged instances of

persecution] to the police." The agency buttressed its conclusion

with the fact that the petitioner testified that the police

- 12 - "interceded and protected" him and his son "on the one occasion

that they were present." (Emphasis added). Substantial evidence

supports the agency's conclusion based on these facts.

The petition for review of the decision of the BIA is

denied.

- 13 -