Varley Ramos Costa v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: December 12, 2018
• Docket: 18-1420
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 18-1420 _______________

VARLEY RAMOS COSTA, AKA Varley Costa; SUELI GOMES CORREA COSTA, AKA Sueli Costa, Petitioners

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _______________

On Petition for Review of a Decision of the United States Department of Justice Board of Immigration Appeals (Agency Nos. A213-090-873 & A213-090-874) Immigration Judge: Honorable Kuyomars Q. Golparvar _______________

Submitted Under Third Circuit L.A.R. 34.1(a) on November 14, 2018

Before: GREENAWAY, JR., SHWARTZ, and BIBAS, Circuit Judges

(Filed: December 12, 2018) _______________

OPINION* _______________

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not constitute binding precedent. BIBAS, Circuit Judge.

Though aliens may reasonably fear foreign prisons, ordinarily they may not invoke that

fear as a ground to remain here. Varley and Sueli Costa entered the United States illegally

and are removable. They both applied for asylum, withholding of removal, and relief under

the Convention Against Torture. They have shown that they will likely be imprisoned in

Brazil and that Brazilian prisoners are often abused. But they cannot show that they belong

to a particular social group. Their claimed group (Brazilian prisoners and detainees) does

not qualify because it is neither socially distinct nor defined by a shared immutable char-

acteristic. And the Costas cannot show that they are more likely than not to be tortured. So

we will deny the petition.

I. BACKGROUND

Because its findings are plausible (indeed, persuasive), we accept the facts as found by

the agency under 8 U.S.C. § 1252(b)(4)(B). The Costas are a married couple and are Bra-

zilian citizens by birth. They entered the United States illegally. More than a decade later,

Immigration and Customs Enforcement agents detained them and charged them as remov-

able because they entered illegally.

The Costas learned to their surprise that they are wanted for murder in Brazil. Brazilian

authorities had issued arrest warrants and Interpol red notices for both of them. The Costas

deny any involvement in the murder. But they fear that, upon returning to Brazil, they will

be imprisoned and tortured.

So the Costas applied for asylum, withholding of removal, and protection under the

Convention Against Torture. In a joint decision that addressed the claims of both Costas,

2 the Immigration Judge denied the Costas’ applications. They appealed to the Board of Im-

migration Appeals, raising the same claims and also claiming that the Judge erred by con-

sidering their applications jointly. The Board dismissed their appeal, reasoning that the

Costas were not members of a particular social group, had not shown a likelihood of per-

secution, and had not shown that Brazil would likely torture them. And the Board held that,

while the Judge had erred by considering their applications jointly, that error was harmless.

The Costas now petition for review, raising the same arguments. We have jurisdiction

under 8 U.S.C. § 1252. We review the Board’s legal conclusions de novo while according

them Chevron deference. Huang v. Att’y Gen. of the U.S., 620 F.3d 372, 379 (3d Cir. 2010).

And we review the Board’s factual findings for substantial evidence, overturning them only

if the evidence “compels” a “contrary conclusion.” Abdille v. Ashcroft, 242 F.3d 477, 483-

84 (3d Cir. 2001).

II. THE COSTAS ARE NOT PART OF A PARTICULAR SOCIAL GROUP AND HAVE NOT SHOWN THAT BRAZIL WILL LIKELY TORTURE THEM

A. Asylum and withholding of removal

To qualify for asylum or withholding of removal, the Costas must show that they cred-

ibly fear persecution based on their “race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1231(b)(3)(A) (emphasis

added). In defining a particular social group, a key question is whether people in that coun-

try perceive that group “as a distinct segment of the population.” S.E.R.L. v. Att’y Gen.,

894 F.3d 535, 545, 556 (3d Cir. 2018). To answer that question, we ask whether the “group

is (1) composed of members who share a common immutable characteristic, (2) defined

3 with particularity, and (3) socially distinct within the society in question.” Id. at 547, 549

(quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)).

The Costas claim that they satisfy this test. They define their group as Brazilian police

detainees and prisoners. And they assert that the Judge and Board failed to address that

group.

But both the Judge and the Board rejected the group of those detained or wanted by

Brazilian police as lacking immutable characteristics, particularity, or social distinction.

See AR 4-5, 128. And rightly so. Those arrested for murder in Brazil may be acquitted and

released. And the Costas maintain their innocence. Detainees come from all walks of life.

And the Costas offer no proof that Brazilians see prisoners or detainees as a separate social

group. So their claims for asylum and withholding of removal fail.

Plus, substantial evidence supports the finding that the Costas do not have a well-

founded fear of persecution. They “assert[ ] that arrest warrants were issued by corrupt

police who seek to extort them,” but that assertion “is entirely speculative.” AR 6. And

Brazilian officials have tried to fight corruption.

B. Convention Against Torture

The Costas’ Convention claim likewise fails. For relief under the Convention, the Cos-

tas bear the burden of proving that, if removed to Brazil, they will “more likely than not”

be tortured. Shardar v. Ashcroft, 382 F.3d 318, 325 (3d Cir. 2004) (distinguishing “legiti-

mate prosecution” from “persecution”); 8 C.F.R. § 208.16(c)(2). They must also prove that

Brazilian officials will “consent to or acquiesce in” their torture. Roye v. Att’y Gen. of the

U.S., 693 F.3d 333, 343 (3d Cir. 2012). The Board found that the Costas failed to prove

4 either requirement. To prevail on their petition, the Costas must show that the Board lacked

sufficient evidence for both those findings and that the evidence “compels” a “contrary

conclusion.” Abdille, 242 at 483-84. They have not done so.

To show a likelihood of torture, the Costas rely on a State Department human-rights

report, which states: “Credible testimony from [Brazilian] inmates . . . pointed to the fre-

quent use of torture and mistreatment, varying in methods and the severity of the pain and

suffering inflicted.” AR 323. Both police and prison guards take part. But an act can be

frequent without happening a majority of the time. The Costas offer no proof that torture

is so frequent that it is more likely than not.

Nor have the Costas shown that Brazil consents to or acquiesces in torture. The same

State Department report explains that Brazil has investigated inhumane prison conditions

and let nongovernmental observers monitor them. Given Brazil’s efforts, the Board had

sufficient evidence that Brazil does not acquiesce in torturing its prisoners.

C. Severance

Grasping at a final straw, the Costas claim that the Judge and Board erred by consider-

ing their applications together. But the Board found that this error was harmless. In their

opening brief, the Costas simply assert in passing that the Board’s conclusion was wrong

but offer no argument against it. So they have waived their argument. See Kost v. Kozakie-

wicz, 1 F.3d 176, 182 & n.3 (3d Cir. 1993).

We will thus deny the petition for review.