United States Court of Appeals For the First Circuit
No. 23-1776
WILLIAM REGINALDO RODRIGUES; DEBORA SOARES GOMES RODRIGUES; W.T.S.R.,
Petitioners,
v.
MERRICK B. GARLAND, United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Thompson, and Rikelman Circuit Judges.
Robert F. Weber, with whom Randy Olen was on brief, for petitioners.
Ilana J. Snyder, Senior Litigation Counsel, Office of Immigration Litigation, with whom Sheri R. Glaser, Senior Litigation Counsel, and Brian Boynton, Principal Deputy Assistant Attorney General, U.S. Department of Justice, were on brief, for respondent.
December 27, 2024 GELPÍ, Circuit Judge. This immigration case involves a
Brazilian family of three seeking relief from removal. William
Reginaldo Rodrigues, along with his wife, Debra Soares Rodrigues,
and their son, W.T.S.R., (collectively, the "Petitioners") seek
judicial review of a final order issued by the Board of Immigration
Appeals ("BIA"). That order affirmed the Immigration Judge's ("IJ"
and, together with the BIA, "the Agency") denial of Petitioners'
request for asylum and withholding of removal.
We find no error. The IJ applied the correct legal
standard in assessing Petitioners' claim for asylum and
withholding of removal. And we find no reasonable adjudicator
would be compelled to reach a different outcome. We accordingly
deny the petition for review.
I. BACKGROUND
We "draw our background 'from the administrative record,
including [Mr. Rodrigues's] testimony before the IJ, which [he]
found credible.'" Gonzalez-Arevalo v. Garland, 112 F.4th 1, 6
(1st Cir. 2024) (quoting Chun Mendez v. Garland, 96 F.4th 58, 61
(1st Cir. 2024)).
A. Underlying Facts
Petitioners, who are natives and citizens of Brazil,
entered the United States without inspection via the Mexican
border. Shortly thereafter, the U.S. Department of Homeland
Security served Petitioners with Notices to Appear, charging them
- 2 - with being in the United States without being admitted or paroled
under the Immigration and Nationality Act ("INA") §
212(a)(6)(A)(i). As a result, Petitioners appeared before the IJ.
During the proceedings, Petitioners acknowledged their
removability. Mr. Rodrigues, however, applied for asylum under
INA § 208 as a primary asylum applicant, including his wife and
child as derivative applicants. Mr. Rodrigues also sought
withholding of removal under INA § 241(b)(3) and withholding of
removal under Article 3 of the United Nations Convention Against
Torture ("CAT"). In support of his application, Mr. Rodrigues
offered his testimony, which included an explanation of why he
left Brazil.
Mr. Rodrigues stated that he and his family fled Brazil
for fear of persecution stemming from two sources: (1) drug
traffickers seeking to collect a debt from his brother-in-law,
Daniel, who is involved in drug trafficking in Brazil, and (2) his
employer, the Gardingo family.
Fear of Drug Traffickers. First, Mr. Rodrigues
testified that he fears returning to Brazil because Daniel has
been arrested for drug trafficking. Daniel owes large sums of
money to his drug suppliers in Brazil, who have threatened him.
Although the suppliers' threats were specifically directed at
Daniel, Mr. Rodrigues testified that Petitioners are also in danger
because it is common for drug dealers to target the families of
- 3 - those who owe them money. Mr. Rodrigues also testified that the
police officers "involved in the trafficking" might also seek to
harm his family. This is why Petitioners believe their familial
ties to Daniel will expose them to persecution as members in a
particular social group, to wit, the Rodrigues family.
Fear of the Gardingo Family. Petitioners also seek
asylum based on their fear of persecution for their political
opinion. This is where the Gardingo family enters the scene.
Mr. Rodrigues worked for the Gardingos, a powerful and
influential family in the town of Matipo, Brazil, Mr. Rodrigues's
hometown. The Gardingo family owns a food distribution and
supermarket chain in Matipo. They are not only involved in
commercial activities, but also in local politics. According to
Mr. Rodrigues, the Gardingo family controls Matipo, with different
members of the family in succession serving as its mayor. The
Gardingo family strong arms their employees into voting for their
candidate of choice. If an employee refuses to do so, then the
family fires them and makes it impossible for the employee to work
in Matipo. Mr. Rodrigues has also suggested that the Gardingo
family will protect its political interests with violence. In
particular, Mr. Rodrigues testified that the Gardingo family once
ordered the killing of an opposition party candidate who had been
elected to office.
- 4 - Relevant here, Mr. Rodrigues does not support the
Gardingo family's political party, and so while working for them,
he felt he could not express his political beliefs freely. On the
other hand, Mr. Rodrigues admitted that the Gardingo family never
harmed nor personally threatened him nor his family. Indeed, there
is no evidence that the Gardingo family was even aware of Mr.
Rodrigues's political thinking. Against this backdrop, we now
turn to the Agency's decision, focusing only on those portions
thereof relevant to the instant petition for review.
B. Procedural History
The IJ found Mr. Rodrigues's testimony credible. In
assessing Petitioners' fear of persecution, the IJ determined the
evidence was insufficient for a finding of past persecution or a
well-founded fear of future persecution. Because Petitioners were
never harmed, the IJ concluded that no past persecution took place.
As to future persecution, the IJ next found that Petitioners had
failed to demonstrate that their subjective fear was objectively
reasonable. The IJ explained that Petitioners did not evidence
how they would be singled out individually for persecution by
either the drug traffickers or the Gardingo family, as neither
group ever harmed nor threatened the Petitioners in the past. As
- 5 - a result of his findings, he denied the Petitioners' applications
for asylum.1
Given that Petitioners did not establish eligibility for
asylum, Mr. Rodrigues did not meet the higher standard required to
prevail on his individual claim for withholding of removal under
INA § 241(b)(3). Nor, according to the IJ, did he produce
sufficient evidence to meet his burden of proof for withholding of
removal under the CAT.2
Petitioners appealed to the BIA. The BIA, in turn,
adopted and affirmed the IJ's decision, explaining briefly that
Petitioners had not identified any clear error of fact, and made
no argument that would justify disturbing the IJ's decision. The
petition for judicial review to this court followed. We have
jurisdiction to entertain the same pursuant to 8 U.S.C. §
1252(a)(1).
1 The IJ also analyzed two other independent grounds for denying asylum, which Petitioners also challenge in their brief, namely the reasonableness of relocation in Brazil and the Brazilian government's willingness and ability to protect Petitioners from persecution. We recount in detail only the IJ's decision as to the objective reasonableness of Petitioners' fear of persecution, because it is the focus of our instant opinion. 2Petitioners do not challenge the IJ's decision on their claim under the CAT. Thus, we say no more about this claim.
- 6 - II. DISCUSSION
A. Standard of Review
"When the BIA summarily affirms the IJ's opinion, as
here, the court reviews the decision of the IJ." Quevedo v.
Ashcroft, 336 F.3d 39, 43 (1st Cir. 2003) (first citing Herbert v.
Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003); and then citing
Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003)). We review
de novo the IJ's legal conclusions, but defer to the IJ's factual
determinations if the same are supported by substantial evidence.
Ahmed v. Holder, 611 F.3d 90, 94 (1st Cir. 2010).
The substantial evidence standard "requires us to accept
the [IJ's] factual findings . . . unless the record is such as to
compel a reasonable factfinder to reach a contrary conclusion."
Ramos-Gutierrez v. Garland, 110 F.4th 1, 6 (1st Cir. 2024)
(alterations in original) (quoting Dorce v. Garland, 50 F.4th 207,
212 (1st Cir. 2022)). "This is not a petitioner-friendly standard
of review." Dong v. Holder, 696 F.3d 121, 125 (1st Cir. 2012)
(quoting Ruiz v. Mukasey, 526 F.3d 31, 35 (1st Cir. 2008)).
Indeed, "we may not reverse the [IJ's decision] simply because we
disagree with [his] evaluation of the evidence; if the [IJ]'s
conclusion is substantially reasonable, we must affirm it."
Ravindran v. INS, 976 F.2d 754, 758 (1st Cir. 1992).
- 7 - B. Asylum Claim
To be eligible for asylum, an applicant must show that
he or she is a refugee under the INA, 8 U.S.C. § 1158(b)(1). The
INA defines refugee as a person who is unable or unwilling to
return to a home country "because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion."
Id. § 1101(a)(42)(A). In this context, persecution requires
evidence of a "certain level of serious harm (whether past or
anticipated), a sufficient nexus between that harm and government
action or inaction, and a causal connection to one of th[ose]
statutorily protected grounds." Gonzalez-Arevalo, 112 F.4th at 8
(quoting Barnica-Lopez v. Garland, 59 F.4th 520, 527 (1st Cir.
2023) (alteration in original)).
A showing of past persecution on account of a protected
ground establishes a rebuttable presumption that the applicant has
a well-founded fear of future persecution. Palma-Mazariegos v.
Gonzales, 428 F.3d 30, 34 (1st Cir. 2005). But if the applicant
fails to prove past persecution, then he or she must evidence a
well-founded fear of future persecution. Esteban-Garcia v.
Garland, 94 F.4th 186, 191 (1st Cir. 2024).
"An applicant has a 'well-founded fear of persecution'
in [his or] her country [upon] establish[ing] that [his or] her
fear is both (1) subjectively genuine and (2) objectively
- 8 - reasonable, meaning that a reasonable person in the applicant's
circumstances would fear persecution." Sugiarto v. Holder, 586
F.3d 90, 94 (1st Cir. 2009) (quoting Castillo-Diaz v. Holder, 562
F.3d 23, 26 (1st Cir. 2009)). The objective prong is satisfied
only where there is "'credible, direct, and specific' evidence
supporting a fear of individualized persecution in the future" or
evidence to support a "pattern or practice . . . of persecution of
a group of persons similarly situated to the applicant." Decky v.
Holder, 587 F.3d 104, 112 (1st Cir. 2009) (first quoting Guzmán v.
INS, 327 F.3d 11, 16 (1st Cir. 2003); and then quoting 8 C.F.R.
§ 1208.13(b)(2)(iii)(A)). As Petitioners argue, a well-founded
fear of future persecution requires only a reasonable possibility
that asylum applicants may be subject to persecution upon returning
to their home country, which can be as low as a 10% chance. INS
v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987).3
3 During oral argument, Petitioners suggested that the IJ "elevate[d] the percentage chance necessary for reasonable possibility to exist." We see no indication that the IJ misunderstood the reasonable possibility standard. The IJ's decision expressly applied the "reasonable possibility" standard, and cited to this court's binding case law requiring objective evidence of the applicant's fear of persecution. In any event, this claim of error was never articulated in Petitioners' brief and is thus waived. United States v. Pizarro-Berríos, 448 F.3d 1, 5 (1st Cir. 2006) ("We have consistently held that, except in extraordinary circumstances, arguments not raised in a party's initial brief and instead raised for the first time at oral argument are considered waived.").
- 9 - Here, Petitioners do not assert that they demonstrated
past persecution. Thus Petitioners bear the burden of proving a
well-founded fear of future persecution. For its part, the
Government does not dispute that Petitioners established their
subjective fear of persecution. As such, the crux of this appeal
is the objective component of the two-part test; that is, whether
Petitioners' have a well-founded fear of future persecution that
is objectively reasonable.
Because Petitioners seek asylum based on two different
protected classes (particular social group and political opinion)
and adduce different evidence in support of each, we address
Petitioners' arguments regarding their well-founded fear of
persecution separately for each protected class. As we explain
below, substantial evidence supports the IJ's conclusion that
Petitioners failed to show an objectively reasonable fear of
persecution.
1. Membership in a Particular Social Group
Petitioners seek asylum based on their membership in a
particular social group: that is, the Rodrigues family. As the
government does not challenge whether Petitioners' family
membership can be a protected class, we assume for the purposes of
this opinion that the Rodrigues family qualifies as a viable
particular social group. As we described above, Petitioners' fear
stems from Mr. Rodrigues's brother-in-law, Daniel, who was
- 10 - involved in drug trafficking and owes a debt to his suppliers. As
his relatives, Petitioners fear the drug suppliers may in turn
target them for the money Daniel owes -- an alleged common practice
in Brazil.
Petitioners contend that their fear of future
persecution is objectively reasonable and supported by sufficient
evidence. First, they offer country conditions reports depicting
Brazil as a violent and dangerous country, dealing with violence
associated with drug trafficking and organized crime, as well as
police engaging in unlawful and arbitrary killings. Second, they
offer Mr. Rodrigues's testimony that drug traffickers threatened
Daniel that "if he didn't pay the debt that he owed," the drug
traffickers were going to get their money back "no matter what."4
In describing the history of this case, Petitioners' 4
brief also refers to an encounter between Mr. Rodrigues's son, W.T.S.R., and police. Mr. Rodrigues testified that his son's physical resemblance to Daniel could lead either the drug traffickers themselves, or corrupt police officers working with the drug traffickers, to mistake W.T.S.R. for Daniel. The IJ explained that "this fear is unfounded" because on the one occasion in which police stopped W.T.S.R. after mistaking him for Daniel, the police let W.T.S.R. go without incident after confirming his identity. Petitioners do not advance any argument, in their brief or at oral argument, as to why the IJ's analysis of Mr. Rodrigues's testimony was erroneous. As such, we deem this issue waived. See Calandro v. Sedgwick Claims Mgmt. Servs., Inc., 919 F.3d 26, 38 n.8 (1st Cir. 2019) (deeming argument waived where appellant "denigrate[d]" lower court's finding, but made "no developed argument that the court below committed clear error in this respect").
- 11 - Generalized country conditions reports that do not shed
light on the asylum applicant's particular situation are
ordinarily not enough to establish fear of future persecution.
"[E]vidence of widespread violence and human rights violations
affecting all citizens is insufficient to establish persecution."
Ravindran, 976 F.2d at 759; see also Amouri v. Holder, 572 F.3d
29, 35 (1st Cir. 2009) (explaining that although "country
conditions reports are deemed generally authoritative in
immigration proceedings, the contents of such reports do not
necessarily override petitioner-specific facts -- nor do they
always supplant the need for particularized evidence in particular
cases." (citing Zarouite v. Gonzales, 424 F.3d 60, 63-64 (1st
Cir. 2005)). Much of Petitioners' country conditions evidence
relates to violence by criminal organizations, including drug
traffickers, and police officers. However, the country conditions
reports do not demonstrate a pattern wherein drug dealers retaliate
against, or single out the family members of those indebted to
them, as opposed to violence related to gang recruitment or
robbery. Nor do the reports of police killings of civilians
suggest that such killings are driven by a collaboration between
police and drug traffickers to help collect on the drug
traffickers' debts. Given the lack of a direct connection with
the Petitioners' asserted fear, the country conditions evidence
would not compel a factfinder to conclude that a reasonable
- 12 - possibility of persecution exists. See Dong, 696 F.3d at 126-27
(concluding that country conditions evidence showing "generalized
trends" of religious persecution that were not "specific to
[petitioner's] own circumstances" were "too speculative to compel
a finding of persecution" (quoting Seng v. Holder, 584 F.3d 13,
19-20 (1st Cir. 2009))).
Turning to Mr. Rodrigues's testimony about the drug
traffickers' threats, Mr. Rodrigues himself admitted that
Petitioners have had no interactions with, let alone been harmed
or threatened by, the Brazilian drug dealers who threatened Daniel.
Mr. Rodrigues acknowledged that drug traffickers never harmed
Petitioners in the past, and that no specific threats were made
against them if they return to Brazil. Specifically, Mr. Rodrigues
testified that if Daniel "didn't pay the debt that he owed" the
drug trafficker would collect on their debt "no matter what." This
testimony does not, on its face, establish that the drug
traffickers knew of or intended to target Daniel's sister, brother-
in-law, or nephew. We have denied petitions for review in similar
asylum cases involving threats against family members rather than
directly against petitioners. See Orelien v. Gonzales, 467 F.3d
67, 69 (1st Cir. 2006) (concluding the petitioner could not
establish either past persecution nor sufficient fear of future
persecution based on threats and violence against his cousin);
Lumanauw v. Mukasey, 258 F. App'x 351, 351 (1st Cir. 2007) (per
- 13 - curiam) (holding that threats against petitioner's sister, and not
petitioner herself, did not support a fear of persecution).
Petitioners have also failed to "validate the
'well-foundedness' of [their] fear" by "set[ting] forth specific,
concrete facts." Alvarez-Flores v. INS, 909 F.2d 1, 5 (1st Cir.
1990) (quoting M.A. v. INS, 899 F.2d 304, 311 (4th Cir. 1990) (en
banc)). While Mr. Rodrigues testified as to his potential
persecutors' motives, he could not provide other concrete details,
such as the drug traffickers' identities or how much money they
were owed. Petitioners may wish that the IJ had inferred, based
on Mr. Rodrigues's testimony and the country conditions reports,
that the drug traffickers did intend to harm Daniel's family
members and thus there was a reasonable possibility of future
persecution. Where, as here, the IJ drew a different, but still
plausible, inference that there was no threat against the
Petitioners, that decision is supported by substantial evidence.
See Hincapie v. Gonzales, 494 F.3d 213, 219 (1st Cir. 2007) ("Where
the record supports plausible but conflicting inferences in an
immigration case, the IJ's choice between those inferences is, a
fortiori, supported by substantial evidence."); see also Aguilar-
Solis v. INS, 168 F.3d 565, 573 (1st Cir. 1999) (finding
Petitioner's testimony failed objective prong because it lacked
information regarding "nature of any danger, the identity of any
- 14 - potential malefactors, or the reasons why people might wish to
harm the petitioner").
Accordingly, the IJ's finding that Petitioners failed to
show a well-founded fear of persecution based on their membership
in a particular social group is supported by substantial evidence.
2. Political Opinion
Finally, Petitioners argue that they have established a
reasonable possibility of future persecution based on their
political opinion. They stress that the Gardingo family -- who is
politically and economically powerful -- prohibits its employees
from freely expressing their political beliefs. Because Mr.
Rodrigues worked for the Gardingo family, he could not express his
political opinions freely. As further evidence of the extent of
the Gardingos' influence, Mr. Rodrigues testified that the
Gardingos ordered the assassination of a rival political candidate
who was elected as mayor. In sum, Petitioners fear they will face
persecution if they return to Brazil because they do not
politically support the Gardingo family.
It is not enough, however, that Mr. Rodrigues holds
certain political beliefs in opposition to the Gardingos.
Mendez-Barrera v. Holder, 602 F.3d 21, 27 (1st Cir. 2010) ("Holding
particular religious or political beliefs, without more, is not
sufficient to show persecution on account of those beliefs."). To
prevail on a political asylum claim, Petitioners must provide - 15 - "evidence that the would-be persecutors knew of the beliefs and
targeted [Mr. Rodrigues] for that reason." Id. at 27; see Zhakira
v. Barr, 977 F.3d 60, 67 (1st Cir. 2020) (concluding that BIA
correctly rejected political asylum claim where petitioner had
"taken 'no actual political action'" and "identifie[d] no evidence
indicating that [persecutors] would be aware of his political
views"). Here, there is no evidence that the Gardingos are aware,
or will become aware, of Mr. Rodrigues's political opinion. Nor
did Petitioners provide any evidence that the Gardingo family had
harmed them in the past, or had threatened to harm them if they
return to Brazil. The absence of such evidence provides
substantial support for the IJ's denial of Petitioners' political
asylum claim.5 See Makhoul v. Ashcroft, 387 F.3d 75, 81-82 (1st
Cir. 2004) (concluding that petitioner lacked a well-founded fear
of persecution where he had never himself been arrested, detained
or harmed by alleged persecutors and had only engaged in relatively
anonymous political activities); Ravindran, 976 F.2d at 759
(upholding BIA's determination that petitioner was not singled out
for political persecution where petitioner had "never encountered
trouble" distributing political material, local authorities did
Given the absence of evidence that the Gardingos would 5
target Mr. Rodrigues over his political opinion, we need not resolve the question of whether the potential economic reprisal amounted to persecution. See Caz v. Garland, 84 F.4th 22, 30 (1st Cir. 2023).
- 16 - not know petitioner was involved with opposition party, and
petitioner's sole arrest may have been due to a curfew violation).
Nor does Mr. Rodrigues's testimony about the
assassination of the elected opposition candidate change the
calculus. For one, the IJ found that Mr. Rodrigues's testimony
did not establish the Gardingos' involvement in the assassination
of the political opponent, citing to a lack of external
corroborating evidence. The IJ found Mr. Rodrigues's testimony
credible. But that does not mean that the IJ must accept as true
everything Mr. Rodrigues testified at the hearing. This is so
because "even if the [IJ] treats an alien's evidence as credible,
the agency need not find his evidence persuasive or sufficient to
meet the burden of proof." Garland v. Dai, 593 U.S. 357, 371
(2021).
Even if we overlooked the deference due to the IJ's
factual determination and credited the truth of Mr. Rodrigues's
account, the incident does little to support the well-foundedness
of Petitioners' fear. To begin with, the assassination occurred
more than thirty years ago. The IJ was not compelled to find that
Petitioners would face the reasonable possibility of similar
violence based on a three-decade-old incident. See Jorgji v.
Mukasey, 514 F.3d 53, 58 (1st Cir. 2008) (upholding IJ's
determination that evidence of persecution of family members more
than thirty-five years ago failed to show sufficient pattern of
- 17 - persecution relevant to petitioner); Mediouni v. INS, 314 F.3d 24,
28 (1st Cir. 2002) (concluding that although petitioner provided
evidence from which BIA could have inferred that petitioner's
father's service as police officer four decades ago could result
in terrorists targeting the petitioner, BIA was not compelled to
make such an inference).
Moreover, the violence faced by a highly visible
political leader, like a successful opposition candidate, lacks
any apparent connection to the harm Petitioners themselves fear.
See Makhoul, 387 F.3d at 82 (concluding that petitioner's
"diminutive political profile tends to make the petitioner's
asserted fear of persecution less reasonable" despite supporting
documentation showing alleged persecutors "have targeted political
dissidents"). At most, Mr. Rodrigues testified that he was a
supporter of the opposition party, but offered no evidence of any
activities he took in support of the party. In short, Petitioners
have offered no evidence they have participated in activities that
would put them on the Gardingos' radar. See Bunthan v. Gonzales,
239 F. App'x 615, 618 (1st Cir. 2007) (per curiam) (concluding
that petitioner was "unlikely target" despite claiming to be active
in political party because "she did not organize others or play a
leadership role"); Morales v. INS, 208 F.3d 323, 330-31 (1st Cir.
2000) (concluding that evidence of persecution of union leaders
and active members did not corroborate petitioner's assertion that
- 18 - he would face persecution because he was neither a leader or active
participant).
This court has considered cases supported by a more
compelling record of threatened harm, but nevertheless concluded
those petitioners had not demonstrated a well-founded fear of
future persecution. See de Abarca v. Holder, 757 F.3d 334, 335,
337 (1st Cir. 2014) (reasoning that neither death threats directed
at petitioner's children nor general conditions about violent
crime were sufficient to establish a well-founded fear of future
persecution). Against that backdrop, we cannot find that
Petitioners have provided any reasoning to compel a different
result. Their evidence and arguments simply lack the impetus to
tilt the substantial evidence scale in their favor.
Because we uphold the IJ's conclusion that the
Petitioners lacked an objectively reasonable, well-founded fear of
persecution, we need not address Petitioners' arguments regarding
the IJ's alternative bases for denying asylum, namely, the
reasonableness of relocation elsewhere in Brazil and the Brazilian
government's willingness and ability to confront political
corruption and drug trafficking. And since Petitioners failed to
carry "the devoir of persuasion" to show that they are refugees
within the meaning of the statute, Petitioners' remaining claim
for withholding of removal under the INA also fails. Makhoul, 387
F.3d at 82 (explaining that if a petitioner "cannot establish
- 19 - asylum eligibility, his claim for withholding of [removal] fails
a fortiori" because a withholding claim requires "a more stringent
burden of proof than does an asylum claim").
III. CONCLUSION
For these reasons, the petition is denied.
- 20 -