Luiz Claudio Francisco v. U.S. Attorney General

579 F. App'x 892
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 12, 2014
Docket13-14300
StatusUnpublished

This text of 579 F. App'x 892 (Luiz Claudio Francisco v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Luiz Claudio Francisco v. U.S. Attorney General, 579 F. App'x 892 (11th Cir. 2014).

Opinion

PER CURIAM:

Luiz Claudio Francisco, a native and citizen of Brazil, seeks review of the Board of Immigration Appeals (“BIA”)’s dismissal of his appeal from the Immigration Judge (“IJ”)’s denial of his application for withholding of removal and for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). We deny Francisco’s petition for review.

I. BACKGROUND

A. Background Facts

Francisco testified he began working as a driver for one of the directors of a candidate for the presidency of the Metalworkers Union in Rio de Janeiro in 1998. He was paid only part of his wages and was told he would be completely paid, when the campaign ended. In April 1998, the candidate was elected as union president; Francisco still was not paid his full wages and was told to be patient. During a May 1998 union meeting, Francisco told the Union president he had not yet been paid and, if he was not paid, he would denounce the Union on the radio. The president warned Francisco against following through with his threat and ejected him from the meeting.

Approximately one week later, while he was walking home from a soccer match, three men he did not know called him by name and confronted him about his threat. The men cursed at Francisco, beat him, *894 and kicked him for approximately three or four minutes. As the men left, they told Francisco “this was only a message and ... next time ... [his] family would be lighting candles for [him].” ROA at 89. Francisco reported the incident to the police, who did not seem to take him seriously-

In June 1998, he called a radio program and spoke about how the Union had not paid him and had sent men to assault him, when he complained. He identified himself on the radio, and approximately two days later, he began receiving threatening phone calls. Callers cursed at him and said he “had just signed [his] death sentence.” ROA at 92. Francisco received approximately 15 calls over the next month or two.

In September 1998, Francisco and his brother opened a store in a small town approximately 200 kilometers from Rio de Janeiro. That December, the store was broken into and most of the merchandise was stolen. An unidentified man later telephoned Francisco and told him, next time, he would not only lose his merchandise, but also would lose his life. Francisco believed this man was associated with the union, because a common thief would not call him and threaten his life. He reported the break-in to police. Approximately three days after the break-in, Francisco moved in with his aunt, where he hid until he left the country. His aunt lived approximately 50 kilometers from the city in which his store had been located. He continued to receive anonymous telephone calls while living with his aunt. Francisco entered the United States on March 1, 1999, with permission to stay until September 1,1999.

B. Course of Proceedings

In September 2011, Francisco was issued a Notice to Appear (“NTA”) charging him with removability under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for being an alien who, having been admitted as a non-immigrant, remained in the United States for a longer time than permitted. Francisco applied for withholding of removal under the Immigration and Nationality Act (“INA”) based on political opinion and membership in a particular social group and CAT relief. 1

During a hearing before an IJ, Francisco admitted the factual allegations in the NTA, conceded removability, and identified his social group as “Brazilians who express a disapproval of union practices.” ROA at 109. Francisco testified to the facts above. He could not recall the names of the Union candidate and director for whom he had worked as a driver, although he had worked in that job for 8-20 hours per day, 5-6 days per week, for 2 months. Francisco did, however, identify by name and frequency the radio station on which he had denounced the Union.

Francisco testified he was afraid to return to Brazil, because he feared for his life from the union. He would not be safe anywhere in Brazil, because the union has a presence throughout the country. According to Francisco, the previous Brazilian president had served as president of the steel union in Sao Paulo, and the current Brazilian president previously had worked in the union with the previous Brazilian president.

Francisco testified he had asked his brothers to seek corroborating documents from the police, the radio station, and the union. They had been unsuccessful, because 14 years had passed, and the entities could not find any of the information they requested. One brother had written a let *895 ter explaining their efforts and why they had not succeeded, but Francisco had not received it, and he had not asked for another letter.

Francisco could not confirm whether any of the people involved in his prior union incidents were still alive. He explained he did not fear the union members but “the union itself.” ROA at 104. But he had not received a threatening phone call since he had lived with his aunt in Brazil. He had not asked his aunt to provide him with a statement.

The parties submitted the 2010 and 2011 U.S. Department of State’s Human Rights Reports for Brazil (“Country Reports”). The references to union activities in the Country Reports noted authorities in Brazil at times did not effectively enforce laws protecting union members from discrimination.

The IJ denied Francisco’s requests for relief and ordered him to be removed to Brazil. The IJ concluded Francisco’s testimony was not credible, because: (1) he could not remember the names of the union members for whom he had worked; (2) his testimony was vague; and (3) he could not identify anyone in the Union, who would want to harm him. Moreover, Francisco had failed to provide corroborating evidence, as required by the REAL ID Act of 2005. The IJ alternatively determined Francisco had not established a right to relief on the merits of his claims.

Francisco appealed to the BIA. The BIA considered Francisco credible for purposes of review and dismissed his appeal for lack of corroboration. In his petition for review, Francisco argues his testimony sustained his burden of proof, regardless of his inability to obtain corroborating records. 2

II. DISCUSSION

Where the BIA issues its own opinion, without expressly adopting the IJ’s opinion, but affirms and relies upon the IJ’s decision and reasoning, we first review the IJ’s opinion, to the extent the BIA found the IJ’s reasons were supported by the record. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir.2009). We then review the BIA’s decision as to those matters on which it rendered its own opinion and reasoning. Id. We review factual determinations under the substantial-evidence test. Carrizo v. U.S. Att’y Gen.,

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Bluebook (online)
579 F. App'x 892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luiz-claudio-francisco-v-us-attorney-general-ca11-2014.