United States Court of Appeals For the First Circuit
No. 23-1894
EUCINEIA SOARES DA SILVA PAZINE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Thompson, and Montecalvo, Circuit Judges.
Caitlyn Burgess, with whom Kevin P. MacMurray and MacMurray & Associates were on brief, for petitioner. Neelam Ihsanullah, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, United States Department of Justice, Civil Division, and Anthony C. Payne, Assistant Director, United States Department of Justice, Civil Division, Office of Immigration Litigation, were on brief, for respondent.
August 27, 2024 THOMPSON, Circuit Judge. Not all harm that a noncitizen
suffered or fears suffering in their home country entitles them to
asylum. Part of the reason for that is asylum law's nexus
requirement. Here's what we mean by that. By statute, a
successful asylum applicant must demonstrate that they are a
"refugee." 8 U.S.C. § 1101(a)(42)(A). This in turn requires that
they demonstrate they suffered or have a well-founded fear of
suffering harm in their home country that amounts to "persecution"
and that persecution is "on account of" at least one of five
statutorily protected grounds: "race, religion, nationality,
membership in a particular social group [("PSG")], or political
opinion." Id. (emphasis added). This "on account of" language
requires a causal connection (or nexus, as it is most commonly
dubbed) between the harm the noncitizen suffered or fears suffering
and one of the five statutorily protected grounds. Without a
sufficient showing as to nexus, the harm the noncitizen suffered
or fears suffering isn't a ground for asylum and their asylum claim
will fail right out of the gate. And this nexus requirement is
what today's case is all about.
Before us, we have an immigration appeal, which rises or
falls on whether Petitioner Eucineia Soares da Silva Pazine
("Soares da Silva Pazine") made a sufficient showing as to nexus.
An Immigration Judge ("IJ") didn't think so, citing a lack of
evidence in the record. The Board of Immigration Appeals ("BIA"
- 2 - and, collectively with the IJ, "the agency") agreed with that
assessment. Viewing the record quite differently than the agency
did and hoping to prevent her removal to her home country of
Brazil, Soares da Silva Pazine filed a petition for review with
this court. After taking a look ourselves, however, we conclude
that the agency's no-nexus finding is sufficiently supported by
the record and, therefore, we must deny the petition.
THE WHO, WHAT, WHERE, WHEN, AND WHY
To start off today's appeal, we lay out the who, what,
where, when, and why of Soares da Silva Pazine's journey to the
United States, her case, and its path to our bench. In doing so,
we gather our information from the administrative record,
including Soares da Silva Pazine's in-court testimony, see Caz v.
Garland, 84 F.4th 22, 25 n.2 (1st Cir. 2023), which the IJ found
"generally credib[le]."
Life in Brazil
Soares da Silva Pazine was born and raised in Resplendor,
Brazil "and had a good childhood." Around March 2003, when she
was about sixteen years old, she met Lucas Luiz Pazine ("Pazine"),
who she married later that year in November. Their first child,
a boy who we'll refer to as L.E.D.S.P., was born on October 14,
2004. The three of them lived together in Brazil and, during that
time, Pazine, while not physically abusive, "was very
temperamental and would often be aggressive towards" Soares da
- 3 - Silva Pazine. He would at times "make punching motions" in her
direction "but stop just before coming into contact with" her,
which she found "terrifying." In 2009, Pazine moved to the United
States, and, in February 2011, Soares da Silva Pazine followed
suit with L.E.D.S.P. in tow "to study," "to be with [her] husband,"
and "to have a stable family."
Life in the United States
Upon Soares da Silva Pazine's arrival to the United
States, Pazine "became much more abusive." As she was now "going
to school and meeting new people," he became very jealous and
"would often take [her] phone away and check it, search through
[her] bag and belongings, and generally tr[y] to keep track of
everything [she] did."
One night in or around November 2011, Pazine attacked
Soares da Silva Pazine for the first time. After she came home
from class, he "grabbed [her] by the throat aggressively,"
"repeatedly hit [her] in the face with a closed fist," and "tried
to strangle [her]." Soares da Silva Pazine managed to get away
from him and locked herself in a room, during which time he
"grabbed a knife and pursued [her] and broke a wall trying to get
to [her]." While locked in the room, she called his employer, who
came to their home, "saw the chaos," "protected [her] from
[Pazine,] and escorted [her] to the hospital." Pazine "insisted
- 4 - on coming to the hospital," which made Soares da Silva Pazine "not
feel safe to report [him] for attacking [her]."
A few months later, in or around February 2012, Soares
da Silva Pazine decided to leave Pazine and bought herself an
airplane ticket back to Brazil. He, however, found out about her
plan and "contacted both of [their] families, who contacted [her],
and convinced [her] to give him a second chance." That second
chance, it turned out, didn't lead to any lasting change in
Pazine's behavior.
To the contrary, while he "was a better husband" for
about a year and a half, "he returned to his abusive ways" by
September 2013, after their second child, a girl, was born. For
example, Pazine "became controlling and began to treat [Soares da
Silva Pazine] cruelly again," such as by "tak[ing] [her] phone and
look[ing] through it, forbid[ding] [her] from going out of the
house, and search[ing] [her] belongings." That wasn't even the
extent of it. He "also began drinking every day," often "com[ing]
home from a night of drinking and break[ing] items in [their]
home." To make matters worse, he would also "brag to [her] that
he was having sexual relations with other women," because she was
"not fulfill[ing] [her] duties as a wife." Along these same lines,
he would tell her that she "ha[d] to submit to what he wanted" and
would sometimes sexually assault her.
- 5 - Wanting to escape this torment but financially unable to
leave Pazine, Soares da Silva Pazine "decided to start saving money
to build a home for [her] and [her] children in Brazil." Noticing
that she was working hard and making a decent amount of money,
Pazine "temporarily changed his ways," only to revert back to his
abusive tendencies after their third child, another boy, was born
in October 2017.
Things reached a boiling point in or around May 2020,
when Soares da Silva Pazine asked Pazine "to leave [their] house
for good." This request enraged Pazine, who, on May 28, 2020,
attacked Soares da Silva Pazine again. That night, he chased her
throughout their home, forcing her to lock herself in a bedroom to
get away from him. Pazine, nevertheless, broke into the room and
"began to punch and attack" Soares da Silva Pazine until their
eldest son L.E.D.S.P. got in between them to protect her.
L.E.D.S.P. was accidentally hit in the process, prompting Pazine
to flee their home. Although the Woburn, Massachusetts Police
Department was eventually called, Soares da Silva Pazine told them
that she wasn't physically harmed during the attack because she
feared Pazine would be deported.
Following this attack, Soares da Silva Pazine moved to
a different apartment with their three children, but Pazine
continued to call, text, and threaten her. His cousin, Dulce,
would also call and threaten Soares da Silva Pazine "that [Soares
- 6 - da Silva Pazine] had to see [Pazine] and support [Pazine] or else
she would make [Soares da Silva Pazine's] life difficult."
Ultimately, these continued threats convinced Soares da Silva
Pazine that she had to be as far away from Pazine as possible, so
she decided to return to Brazil with her three children. After
receiving written authorization from Pazine to bring the children
to Brazil, Soares da Silva Pazine and the three children left the
United States on or around March 15, 2021.
Return to Brazil
Things didn't really improve much for Soares da Silva
Pazine in Brazil. Although she "reconnected with [her] family and
[Pazine's] family who [she] was familiar with," he "called his
family and told them that he would not support [her] financially"
and "told [their] families that [she] had mental disorders and was
incapable of watching [their] children." Enraged that Soares da
Silva Pazine left the United States with their children (even
though he supposedly gave her written permission to do just that),
Pazine told her over the phone that he "would do something to take
the kids" and that he "would harm or kill [her] if he could."
While in Brazil, Soares da Silva Pazine would at times
allow Pazine's parents to visit the children. During some of these
visits, Pazine's parents would bring Dulce along, but Soares da
Silva Pazine never approved of her coming to visit because of
Dulce's prior threats to her. According to Soares da Silva Pazine,
- 7 - Dulce came to these visits "on behalf of [Pazine] to monitor the
situation and report on [her]." Dulce would also "threaten" her
during these visits "that [Dulce] was not satisfied that [Soares
da Silva Pazine and the children] were there" and "[t]hat [Dulce]
will remove [their] children."
Over the next two months, Dulce began to surveil Soares
da Silva Pazine's home, though she never harmed her physically.
Dulce "would walk around the block [Soares da Silva Pazine's] home
was on and take pictures" and then "would wait outside and monitor
[her] schedule trying to memorize when and where [she] would be."
This surveillance took place nearly every day and Dulce frequently
told Soares da Silva Pazine that she "would not have peace."
Soares da Silva Pazine also began receiving phone calls from
someone threatening to kill her and take her children. Although
she did not recognize the voice on the other line, she believed
they were connected to Dulce.
These were not the only calls Soares da Silva Pazine
received during her time in Brazil. She also received calls "every
day" from lawyers in Brazil who Pazine had hired to "harass" her.
"One [lawyer] was more threatening and did not identify himself
while the other was only coercive and would try and pursue [her]
to sign [her] home [in Brazil which she owns] over to [Pazine]."
These lawyers also threatened to "accuse [her] of being unfit to
raise [their] children in an attempt to take [her] home away from
- 8 - [her]." Ultimately, these lawyers wanted her "to sign the
paperwork for divorce and giv[e] up [her] children and [her]
house."
"[V]ery fearful" of what would happen to her, Soares da
Silva Pazine reported all of these calls and threats to the
Brazilian police who told her that "these were conjugal problems"
so nothing could be done about them. In light of these continued
threats, Soares da Silva Pazine, along with L.E.D.S.P., fled Brazil
on or about July 12, 2021 to return to the United States.1
Return to the United States
On or about July 16, 2021, Soares da Silva Pazine and
L.E.D.S.P. entered the United States. Less than a month later, on
August 5, 2021, the Department of Homeland Security ("DHS")
initiated removal proceedings against them both. Over the next
year or so, Soares da Silva Pazine continued to receive threats
from Pazine's family and Pazine himself, who had since obtained a
divorce against her in the United States. While Soares da Silva
Pazine was unsure of Pazine's exact location, she knew he remained
in the United States.
The IJ's Decision
Not too long after, on September 14, 2022, Soares da
Silva Pazine and L.E.D.S.P. went before the IJ to seek immigration
1 The other two children joined Soares da Silva Pazine and L.E.D.S.P. in the United States a few weeks later in August 2021.
- 9 - relief and avoid removal back to Brazil. Soares da Silva Pazine
sought immigration relief through applications for asylum,
withholding of removal, and protection under the Convention
Against Torture ("CAT"), whereas L.E.D.S.P. only sought
immigration relief through an application for derivative asylum.2
To corroborate their claims and applications, they filed a trove
of documents, including a sworn, written affidavit from Soares da
Silva Pazine, her wedding certificate, L.E.D.S.P.'s birth
certificate, various letters of support, including one from
L.E.D.S.P. himself, a report on the effects of trauma, several
country conditions reports, and a legal memorandum.
2 To paint a crystal-clear picture of what went down at this hearing, we offer a few additional points of clarification. First, derivative asylum refers to the fact that certain family members of asylees can be granted asylum as derivatives (or "riders" as they are also sometimes called) of their family member's asylum application. Cabrera v. Garland, 100 F.4th 312, 315 n.1 (1st Cir. 2024). On the other hand, noncitizens cannot derive withholding of removal or CAT protection, so in order to apply for those forms of relief, they must submit an application in their own name. Id. L.E.D.S.P., though, did not submit any applications in his own name, so his only path to immigration relief was derivative asylum. Second, the IJ also considered two motions at the hearing: a motion to sever L.E.D.S.P.'s case from Soares da Silva Pazine's and a motion for administrative closure on behalf of both individuals. Administrative closure is a procedural mechanism that temporarily removes a noncitizen's case from an IJ's calendar and the BIA's docket but does not constitute a final order. Lopez-Reyes v. Gonzales, 496 F.3d 20, 21 (1st Cir. 2007). For reasons not ultimately relevant to the issues on appeal, both motions were denied.
- 10 - After Soares da Silva Pazine was done testifying in
accordance with everything detailed above,3 the IJ denied all forms
of immigration relief and ordered their removal to Brazil in an
oral decision issued that day. The IJ started off his decision
with credibility and corroboration. He noted that, even though he
found Soares da Silva Pazine's testimony "generally credib[le],"
she failed to provide certain evidence that he "deem[ed] to be
reasonable, available corroborative evidence"4 and she did "not
adequately explain[]" the failure to produce such evidence. "Even
if the[se] corroborative deficiencies . . . did not undermine
[Soares da Silva Pazine's] ability to meet [her] burden of proof,"
the IJ explained, her asylum claim failed on the merits.
Per the IJ, Soares da Silva Pazine's asylum claim failed
for several reasons. First, while the IJ lamented "the heinous
acts of violence and mistreatment that [Pazine] inflicted against
both [Soares da Silva Pazine] and [L.E.D.S.P.]," he noted that
that harm occurred in the United States and the "refugee"
definition outlined above "necessarily requires that the
Soares da Silva Pazine was the sole witness to testify 3
before the IJ. Specifically, the IJ determined that she failed to provide 4
four relevant and reasonably available pieces of evidence: (1) the medical records from her hospitalization in 2011, (2) the police report from the Woburn Police Department, (3) the written authorization Pazine supposedly gave her to take the children to Brazil, and (4) the divorce paperwork.
- 11 - persecution occur or that an applicant have a well-founded fear of
persecution on account of a protected ground in the applicant's
country of nationality or country of last habitual residence."
According to the IJ then, "the mistreatment that [Soares da Silva
Pazine] and [L.E.D.S.P.] suffered at the hand[s] of [Pazine] does
not constitute past persecution since it occurred in the United
States." And because Pazine was still in the United States, the
IJ similarly concluded that Soares da Silva Pazine did not have a
well-founded fear of future persecution at the hands of Pazine in
Brazil as the IJ "would only be speculating as to whether or not
[Pazine] would be returning to Brazil."
Second, the IJ concluded that Soares da Silva Pazine did
not suffer past persecution nor did she have a well-founded fear
of future persecution on account of a protected ground by way of
the threats she received from Dulce and Pazine's lawyers. In
reaching that conclusion, he first looked to the statutorily
protected grounds Soares da Silva Pazine advanced in her briefing,
her membership in three PSGs: "Brazilian Women," "Brazilian
Females," and "Single Brazilian Mothers." The IJ acknowledged
that these PSGs "could be legally cognizable and that it appears
that [Soares da Silva Pazine] may belong to such groups" but
explained that there was "[in]sufficient evidence in the record
that a central reason for the harm [from Dulce and Pazine's
lawyers] was on account of these proposed [PSGs] as opposed to a
- 12 - personal dispute." Rather, the IJ maintained, "the harm directed
against [her] from [Dulce] and the attorneys appears to be rooted
in a custody dispute regarding the children and a property
dispute." Laying it all out on the table, the IJ pointed out that
"there is no evidence that [Dulce] was motivated to harm [her]
because of her statuses of Brazilian women or female or as a status
of a single Brazilian mother as opposed to her taking up a personal
dispute between her and her husband [Pazine]." Likewise, the IJ
highlighted that "the attorneys . . . appear to have been motivated
to carry out [Pazine's] wishes as their client to gain custody of
the children and [Soares da Silva Pazine's] property."
While the IJ considered the possibility of "any
potential transferred intent" and noted that Pazine himself may
have been motivated to harm Soares da Silva Pazine on account of
her membership in her proposed PSGs, "the key issue," the IJ
emphasized, was "whether the people that [she] fears, specifically
[Dulce] or the attorneys of [Pazine], were motivated on account of
the [PSGs] proposed." And on that key issue, the IJ concluded
"that the intent of [Dulce] and the attorneys is rooted in their
desire to help [Pazine] gain custody of the children successfully
in the divorce and also gain a successful divorce and gain
property." Without a nexus to a protected ground, the IJ found
that Soares da Silva Pazine's asylum claim "fail[ed]."
- 13 - Trudging along to the other forms of immigration relief,
the IJ quickly denied withholding of removal because, like asylum,
it requires a nexus to a statutorily protected ground but, unlike
asylum, it has a higher burden of proof, which all meant that
Soares da Silva Pazine's application for withholding of removal
necessarily failed too. As for CAT protection, the IJ explained
that there was insufficient evidence in the record that Soares da
Silva Pazine would more likely than not be tortured in Brazil at
the hands of or with the consent, acquiescence, or willful
blindness of a public official. The IJ thought this was especially
true here, where Soares da Silva Pazine had never been tortured in
Brazil and "remained in Brazil for a number of months without any
type of actual physical harm or mistreatment." In light of this
absence of evidence, the IJ denied CAT protection and ordered
Soares da Silva Pazine and L.E.D.S.P. removed to Brazil.
Soares da Silva Pazine followed up with an appeal to the
BIA.5
The BIA Decision
The BIA dismissed the appeal a year later, on September
27, 2023. Starting off with what wasn't being challenged on
appeal, the BIA noted that Soares da Silva Pazine had not
For reasons unclear from the record, L.E.D.S.P. was not 5
included in his mother's appeal to the BIA (nor, for that matter, in her petition for review to us). As such, the balance of our opinion today will focus on just Soares da Silva Pazine's case.
- 14 - challenged the IJ's denial of CAT protection6 nor the IJ's
conclusion that the harm Pazine subjected her to did not fall
within the definition of "refugee" because it occurred in the
United States, and not in Brazil. It then shifted its focus to
Soares da Silva Pazine's challenge to the IJ's no-nexus finding as
it related to Dulce and Pazine's lawyers. It "discern[ed] no clear
error" in that no-nexus finding, which it found "plausible in light
of the record." The BIA explained that "[w]hile [Soares da Silva
Pazine] interprets her evidence differently, her interpretation
alone is not sufficient to show clear factual error in the [IJ's]
motive finding." In the absence of any clear error, it agreed
with the IJ that she had not established the nexus required for
asylum or withholding of removal.7 Furthermore, the BIA noted
that, for the first time on appeal, Soares da Silva Pazine raised
a "pattern or practice" theory of persecution,8 which it refused
to address because she had not presented the theory to the IJ.
6 In fact, Soares da Silva Pazine doesn't challenge the denial of CAT protection in her briefing to us either. This failure to challenge the denial of CAT protection before the BIA and this court means she (to the extent she is even still pursuing this relief) both failed to administratively exhaust her claim and waived it. See Caz, 84 F.4th at 30 n.7 (waiver); Odei v. Garland, 71 F.4th 75, 78 n.1 (1st Cir. 2023) (administrative exhaustion). 7 Because the no-nexus finding was dispositive of her claims, the BIA explicitly declined to address any other findings made by the IJ. 8 A "pattern or practice" theory of persecution is a fallback for noncitizens who cannot prove that they will personally be singled out for persecution on account of a protected ground in
- 15 - A timely petition for review with this court followed
and, with that, we're all up to date on the relevant goings-on and
need-to-knows.
THE HOW
Up top we previewed that today's appeal will end with a
denial of Soares da Silva Pazine's petition for review. What
follows is how we get to that particular outcome. With CAT
protection both unexhausted and waived, all we have left to review
is the agency's denial of asylum and withholding of removal. And
since "the BIA did not say that it was adopting the IJ's decision,
only that the IJ's findings were not clearly erroneous," we limit
our review to the BIA's decision, Aguilar-Escoto v. Garland, 59
F.4th 510, 515 (1st Cir. 2023), starting off with asylum and ending
with withholding.
Asylum
On the asylum front, Soares da Silva Pazine makes many
arguments on appeal: (1) the harm she suffered in Brazil rose to
the level of persecution; (2) her proposed PSGs of "Brazilian
Women," "Brazilian Females," and "Single Brazilian Mothers" are
their home country or country of last habitual residence. See Balachandran v. Holder, 566 F.3d 269, 272 (1st Cir. 2009). Instead, under such a theory, noncitizens can be granted asylum if they demonstrate "that there is a pattern or practice . . . of persecution of a group of persons similarly situated to the [noncitizen] on account of" at least one of the statutorily protected grounds and the noncitizen is a member of that group. 8 C.F.R. § 1208.13(b)(2)(iii)(A)-(B).
- 16 - legally cognizable PSGs; (3) the BIA erred in refusing to address
her "pattern or practice" theory of persecution; (4) the IJ erred
in his determination that she failed to provide reasonably
available corroborative evidence, which undermined her ability to
meet her burden of proof; and (5) the agency erred in concluding
she had not demonstrated a nexus to a statutorily protected ground.
We need not reach most of these arguments.
The agency's no-nexus finding was outcome-determinative
and it is black-letter law that "agencies are not required to make
findings on issues the decision of which is unnecessary to the
results they reach," so the agency did not need to address Soares
da Silva Pazine's harm-amounting-to-persecution argument or the
validity of her PSGs. Immigr. & Naturalization Serv. v.
Bagamasbad, 429 U.S. 24, 25 (1976) (citing Hirabayashi v. United
States, 320 U.S. 81, 85 (1943)). As for the BIA's alleged error
in declining to address her "pattern or practice" theory of
persecution, nowhere in Soares da Silva Pazine's briefing does she
challenge the BIA's assertion that she failed to raise this theory
to the IJ, which constitutes waiver. See Caz, 84 F.4th at 30 n.7.
And, importantly, a "pattern or practice" theory of persecution
also requires a nexus showing, so the agency's no-nexus finding
was, again, outcome-determinative. See Balachandran, 566 F.3d at
272. Lastly, besides the no-nexus finding, the BIA explicitly
declined to address the IJ's other findings, including the
- 17 - determination that Soares da Silva Pazine failed to provide
reasonably available corroborative evidence. And where the BIA
declines to address an IJ's alternative finding, that finding "is
not before us." Bonilla v. Mukasey, 539 F.3d 72, 81-82 (1st Cir.
2008) (citing Immigr. & Naturalization Serv. v. Ventura, 537 U.S.
12 (2002)).
All that leaves us with just one argument to address
regarding asylum: Soares da Silva Pazine's challenge to the
no-nexus finding. And that challenge has two parts to it. First,
she contends that the agency didn't engage in the proper
mixed-motive analysis. Second, she contends that the record
compelled the conclusion that her membership in the aforementioned
PSGs was one central reason for the harm she suffered and fears
suffering in the future. These contentions are essentially two
sides of the same coin, which some background on nexus will help
put in context.
As we mentioned above, asylum law's definition of
"refugee" requires a showing of past persecution or a well-founded
fear of future persecution "on account of" one of the statutorily
protected grounds, 8 U.S.C. § 1101(a)(42)(A), and, without that
on-account-of (or nexus) showing, an asylum claim won't make it
very far, see Lopez de Hincapie v. Gonzales, 494 F.3d 213, 217-18
(1st Cir. 2007). A noncitizen satisfies their burden as to nexus
by demonstrating that a statutorily protected ground "was or will
- 18 - be at least one central reason" for the harm they suffered or fear
suffering. 8 U.S.C. § 1158(b)(1)(B)(i). This does not require
the noncitizen to demonstrate that they were or will be targeted
only because of their protected characteristic. Ordonez-Quino v.
Holder, 760 F.3d 80, 90 (1st Cir. 2014). Rather, this capacious
"at least one central reason" language recognizes the universal
truth that it is common for persecutors to have mixed motivations.
See id. The upshot of all this is that "the presence of a
non-protected motivation" does not defeat a noncitizen's asylum
claim. Aldana-Ramos v. Holder, 757 F.3d 9, 19 (1st Cir. 2014).
Instead, all that is required of a noncitizen is a sufficient
showing that the protected motivation was not "incidental,
tangential, superficial, or subordinate to another reason for
[the] harm." Sánchez-Vásquez v. Garland, 994 F.3d 40, 47 (1st
Cir. 2021) (quoting Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir.
2008)).
With that legal framework in place, we turn back to
Soares da Silva Pazine's arguments. She essentially argues that
(1) the BIA didn't properly consider the possibility of mixed
motives, and (2) the record adequately showed that her membership
in her PSGs was "at least one central reason" for the harm. But
before getting to the meat of our analysis of those arguments,
there are several important clarifications we must make regarding
- 19 - which PSGs are at issue here and which persecutor's motivations
are relevant to our nexus analysis.
First, while Soares da Silva Pazine proffered three PSGs
to the IJ and the BIA -- namely, "Brazilian Women," "Brazilian
Females," and "Single Brazilian Mothers" -- the substance of her
briefing only addresses "Brazilian Women" with mere passing
references to the other two PSGs. We, therefore, deem those other
two PSGs waived, see Martínez-Pérez v. Sessions, 897 F.3d 33, 40
n.5 (1st Cir. 2018), and consider her nexus arguments vis-à-vis
only her "Brazilian Women" PSG. Second, Soares da Silva Pazine
never challenged in her briefing to us or to the BIA the IJ's
conclusion that the abuse Pazine subjected her to in the United
States could not be a basis for asylum because the "refugee"
definition necessarily contemplates harm in the noncitizen's home
country. With no argumentation on that point at all, we deem it
waived and unexhausted, see id. (waiver); Odei, 71 F.4th at 78 n.1
(administrative exhaustion), and do not consider Pazine's
United-States-based actions in our nexus analysis. Third, Soares
da Silva Pazine makes a passing argument in her briefing to us
that "the form of verbal abuse from [Pazine] while they lived
together in Brazil" amounted to past persecution -- an argument
which makes its debut before us (not before the IJ and not before
the BIA). Her failure to properly develop this argument on appeal
to us and her failure to present this argument to the agency at
- 20 - all -- once again -- means the argument is waived and unexhausted.
See Martínez-Pérez, 897 F.3d at 40 n.5 (waiver); Odei, 79 F.4th at
78 n.1 (administrative exhaustion).
What this all means for our purposes here today is that
the only actors whose motivations are relevant are Dulce and
Pazine's lawyers and what matters is whether the record
sufficiently shows that "at least one central reason" for their
actions against Soares da Silva Pazine was her membership in the
"Brazilian Women" PSG.
With these important clarifications squared away, we at
long last finally turn to the nitty-gritty of our analysis of
Soares da Silva Pazine's appellate arguments. Her first argument
-- that the BIA failed to engage in a mixed-motive analysis --
boils down to a contention that it applied the wrong legal
standard, which is an argument we review de novo (or, more simply
put, with fresh eyes). Jimenez-Portillo v. Garland, 56 F.4th 162,
166 (1st Cir. 2022). With our de-novo glasses on, we hardly see
any merit to this argument. The BIA repeatedly cited the "at least
one central reason" standard in its decision and then ran through
specific facts in the record that supported the no-nexus finding.
By doing so, it "necessarily 'acknowledged the possibility of a
mixed-motive case, but based on the evidence presented, made a
fact-specific determination that [Soares da Silva Pazine] had not
shown that the persecution was motivated'" by a protected ground.
- 21 - Barnica-Lopez v. Garland, 59 F.4th 520, 529-30 (1st Cir. 2023)
(quoting Villalta-Martinez v. Sessions, 882 F.3d 20, 24 (1st Cir.
2018)). The BIA's decision, therefore, readily reflects that it
"repeatedly cited to and correctly applied the 'one central reason'
standard in examining the nexus between that protected ground and
the harm [Soares da Silva Pazine] suffered."9 Id. at 529.
Finding her first argument unpersuasive, all that
remains for our review is her second argument that, even assuming
the agency applied the correct "at least one central reason"
standard, it erred in determining that her membership in the
"Brazilian Women" PSG was not "at least one central reason" for
the harm she suffered and fears suffering from Dulce and Pazine's
lawyers. This is an argument we review under the substantial
evidence standard, because whether a protected characteristic is
a central reason for a noncitizen's persecution is generally a
question of fact. Singh, 543 F.3d at 4. And under the substantial
evidence standard, which is not "petitioner-friendly," Ruiz v.
Mukasey, 526 F.3d 31, 35 (1st Cir. 2008), we reverse only if any
reasonable fact-finder would be compelled to the opposite
9 To the extent Soares da Silva Pazine argues that the IJ did not properly apply the mixed-motive standard and the BIA erred by failing to correct that error on appeal, we see no merit to that contention either for the same exact reasons. The IJ's decision reflects multiple invocations of the correct "at least one central reason" standard and a careful review of the record evidence as to Dulce's and Pazine's lawyers' intentions.
- 22 - conclusion, Immigr. & Naturalization Serv. v. Elias-Zacarias, 502
U.S. 478, 483-84 (1992). For reasons we'll explain, we do not
think the record compels the conclusion that Dulce and Pazine's
lawyers targeted or will target Soares da Silva Pazine on account
of her membership in the "Brazilian Women" PSG.
Soares da Silva Pazine seems to contend that Pazine
himself was motivated to harm her on account of her gender and,
because he "coordinated" the harm Dulce and his lawyers subjected
her to, their actions are inextricably linked to his own
motivations. In this way, she appears to be arguing that Pazine's
motivations are either transferred or imputed to Dulce and his
lawyers. Setting aside the fact that Soares da Silva Pazine offers
no caselaw (nor are we aware of any) greenlighting the transferring
of or imputing of one actor's motivations to another, we'll assume
(favorably to her, but without deciding) that Pazine was indeed
motivated to harm her on account of her gender and assume (again
favorably to her, but without deciding) that such motivations can
be transferred or imputed to Dulce and his lawyers, because her
argument fails regardless. See Cabrera, 100 F.4th at 321 (assuming
"favorably to Petitioners" the viability of their asylum argument
because the "claim fails anyway").
To explain, even if Dulce and Pazine's lawyers were
motivated to harm Soares da Silva Pazine at least in part due to
her gender, she must nevertheless prove that the record compels
- 23 - the conclusion that her gender was not "incidental, tangential,
superficial, or subordinate to another reason for [the] harm."
Sánchez-Vásquez, 994 F.3d at 47 (quoting Singh, 543 F.3d at 5).
And that she cannot do. Let's start off with Dulce. Nothing in
the record compels the conclusion that she was more than
incidentally or tangentially motivated (if that) by Soares da Silva
Pazine's gender as opposed to her desire to help her cousin Pazine
obtain custody of the children -- as the agency concluded. For
example, every threat Dulce made against her occurred when Soares
da Silva Pazine was separated from Pazine and had taken their
children. Moreover, none of the threats referenced her gender or
used similar gender-based derogatory language that Pazine had
previously used. There's also nothing in the record to suggest
Dulce had previously targeted other Brazilian women due to their
gender. Importantly, Soares da Silva Pazine testified herself
that Dulce threatened her because "she wanted to do things bad to
[her], take [her] children, [and] take [her] house," because Dulce
was "[i]nfluenced by [Pazine]," who "wanted custody of [her]
children and to take everything [she] had." Nothing in this
explanation even references her gender as a motivating factor
behind Dulce's actions. Ultimately, the agency reasonably
concluded that Dulce was motivated to help her cousin in his
personal dispute against Soares da Silva Pazine for custody and
property and we've long recognized that "personal disputes are
- 24 - generally not enough to show the required nexus." Sompotan v.
Mukasey, 533 F.3d 63, 71 (1st Cir. 2008).
We reach the same conclusion as to the motivations of
Pazine's lawyers. The only information in Soares da Silva Pazine's
sworn, written affidavit about the lawyers is the following:
[Pazine] hired two attorneys to harass me while I lived in Brazil. Both would call me every day. One was more threatening and did not identify himself while the other was only coercive and would try and pursue me to sign my home over to [Pazine]. [Pazine] wanted these lawyers to take my home and money from me.
I own a home in Brazil and [Pazine], and his attorneys, have threatened to try and take my home from me by any means necessary. The lawyers were going to accuse me of being unfit to raise our children in an attempt to take my home away from me. They also were going to attempt to take my home through divorce proceedings, if those were to proceed.
Needless to say, nothing there even remotely suggests the lawyers'
were motivated by Soares da Silva Pazine's gender. The same is
true of her in-court testimony. Indeed, her in-court testimony
strongly suggests the lawyers were motivated by their
attorney-client relationship and obligation to do what their
client, Pazine, hired them to do. She testified that their "calls
were essentially about custody and money" and "sign[ing] the
paperwork for divorce and giving up [her] children and [her]
house." There's also nothing in the record from which we could
even infer any gender-based motivation on the lawyers' part. For
- 25 - example, nothing in their actions or behavior suggests that they
only take male clients or that they would not have engaged in such
hard-boiled tactics had their client been Soares da Silva Pazine
and not Pazine. As such, the agency's conclusion that the lawyers
were similarly motivated by a personal dispute is well-supported
by the record.
The only comeback Soares da Silva Pazine offers is that
the boatload of country conditions evidence in the record
demonstrates that Brazil is rife with impunity for gender-based
violence, which (in her mind) supports her contention that Dulce
and Pazine's lawyers had gender-based motivations. While this
characterization of life in Brazil may well be true, that
generalized country conditions evidence hardly illuminates Dulce's
or the lawyers' specific motivations. See Laurent v. Ashcroft,
359 F.3d 59, 65 n.4 (1st Cir. 2004) ("But such generalized
information cannot be allowed to trump the IJ's specific,
well-substantiated finding . . . ."). This is especially true
where neither Dulce nor the lawyers outwardly expressed any
misogynist views.10
Other than the country conditions evidence, the only other 10
relevant evidence is the aforementioned letters of support from various individuals, including L.E.D.S.P. and others familiar with what Soares da Silva Pazine and her children lived through. These letters, however, provide no insight as to Dulce's or the lawyers' motivations as the only reference to them at all in any of these letters is the following: "However, while [Soares da Silva Pazine
- 26 - To recap, the agency concluded that there was no nexus
between Soares da Silva Pazine's membership in the "Brazilian
Women" PSG and the harm she suffered from Dulce and Pazine's
lawyers. For the reasons explained above, we believe substantial
evidence supports that conclusion and, therefore, the agency did
not err in denying asylum.
Withholding of Removal
Neither did the agency err in denying withholding of
removal, which also requires a nexus showing but imposes a higher
standard of proof than asylum. Lopez de Hincapie, 494 F.3d at
220. Having failed to satisfy asylum's standard of proof, Soares
da Silva Pazine necessarily failed to satisfy withholding's
standard of proof.11 See Cabrera, 100 F.4th at 324.
and the children] were [in Brazil], [Pazine] sent people who threatened her and her family with death." We take a beat to note that some of our sister circuits 11
disagree as to whether the "one central reason" standard -- as opposed to a less stringent "a reason" standard -- applies to withholding of removal. Compare Barajas-Romero v. Lynch, 846 F.3d 351, 359-60 (9th Cir. 2017) (endorsing "a reason" standard); Guzman-Vasquez v. Barr, 959 F.3d 253, 272 (6th Cir. 2020) (same) with Gonzalez-Posadas v. Att'y Gen. U.S., 781 F.3d 677, 685 n.6 (3d Cir. 2015) (endorsing the "one central reason" standard); Vazquez-Guerra v. Garland, 7 F.4th 265, 271 (5th Cir. 2021) (same); Quituizaca v. Garland, 52 F.4th 103, 108-14 (2d Cir. 2022) (same). See also Durakovic v. Garland, 101 F.4th 989, 996, 996 n.3 (8th Cir. 2024) (noting the circuit split and listing cases but declining to resolve the issue); Pineda-Maldonado v. Garland, 91 F.4th 76, 90 n.5 (1st Cir. 2024) (same); Chavez v. Garland, 51 F.4th 424, 430 n.4 (1st Cir. 2022) (same). As we've routinely applied the "one central reason" standard to withholding of removal claims, see, e.g., Barnica-Lopez, 59 F.4th at 528; Marquez-Paz v. Barr, 983 F.3d 564, 565 (1st Cir. 2020); Costa v. Holder, 733 F.3d
- 27 - THE WRAP-UP
As we wrap up, we wish to note that nothing in today's
opinion is meant to discount the gravity of what Soares da Silva
Pazine has lived through both in Brazil and the United States.
That said, the record-related deficiencies as to nexus require
that we deny the petition.
13, 16 (1st Cir. 2013), and neither party asks us to resolve the issue, we apply the "one central reason" standard here and leave the issue for another day.
- 28 -