Costa v. Holder, Jr. , 733 F.3d 13 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1485
ELISABETE COSTA,
Petitioner,
v.
ERIC H. HOLDER., JR., Attorney General,
Respondent.
PETITION FOR REVIEW FROM AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Selya and Thompson,
Circuit Judges.
William E. Graves and Graves & Doyle on brief for petitioner.
Stuart F. Delery, Acting Assistant Attorney General, M.
Jocelyn Lopez Wright, Senior Litigation Counsel, Office of
Immigration Litigation, and Melissa K. Lott, Trial Attorney, Office
of Immigration Litigation, on brief for respondent
October 4, 2013
HOWARD, Circuit Judge. Elisabete Costa, a Brazilian
citizen, petitions for review of the Board of Immigration Appeals'
("BIA") order affirming her removal to Brazil. Costa entered the
United States illegally in 2003. Thereafter, she began working
with Immigration and Customs Enforcement ("ICE") agents to identify
sellers of fraudulent immigration documents. Because of her work,
she faced harassment in the United States and reported threats back
home in Brazil. Eventually, the harassment led Costa to stop
assisting ICE. The government then reinstated a prior removal
order against her. She sought withholding of removal and relief
under the United Nations Convention Against Torture, claiming that
she faced persecution and torture in Brazil because of her work
with ICE. The Immigration Judge ("IJ") denied both applications,
and the BIA affirmed. On review of the record before us, we deny
Costa's petition.
I.
Costa first attempted to enter the United States in early
2003 from Mexico. She was apprehended and removed that May, but
four months later she successfully entered the United States
without inspection and settled in the Boston area. In 2005 Costa
learned from her sisters, who were also living in the United
States, that ICE was looking for informants to help identify
sellers of fraudulent immigration documents. Costa voluntarily
went to ICE and began working as an informant for the agency.
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According to her testimony, in exchange for her work Costa received
assurances that she could remain in the United States and
eventually obtain lawful status. In addition, ICE allegedly stated
that it would help her children, who had joined her in the United
States to procure legal documentation.
In her role as an informant, Costa would receive the name
and telephone number of an individual suspected of selling illegal
documents. She would arrange to purchase these documents from the
seller, sometimes using a fake name, other times using her real
name. Although ICE provided her with a telephone, at times she
used her personal phone to communicate with sellers. Whenever she
went to meet a seller, ICE would videotape or record the
transaction. Among other operations, Costa assisted in a sting
that led to the arrest of an individual identified as "Lelito,"
from whom Costa had previously purchased documents. During
Lelito's arrest, Costa was present but was neither handcuffed nor
detained.
After Lelito's arrest, Costa began receiving threatening
phone calls in July and August of 2008. Based on the telephone
numbers appearing on her cell phone display, she believed that some
of these calls came from Brazil. These callers told Costa that she
would be killed upon her return to Brazil and insulted her for
turning in "her own people" to ICE. Costa and her then-fiancé
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moved to new apartments three times and changed their telephone
numbers as a result of the harassing calls.1
Costa's mother, who lives in Brazil, also received phone
calls making similar threats against Costa. In addition, Costa's
mother told her that two Brazilian police officers, one of whom
identified himself as Lelito's brother, visited her home and told
her that they would find Costa if she returned to Brazil. They
also instructed her to inform the police when Costa was back in
Brazil. When Costa's female cousin returned to Brazil, Lelito's
brother, accompanied by a different police officer, visited Costa's
mother again to determine whether it was actually Costa who had
returned to Brazil. Costa's sisters also began receiving threats
based on their cooperation with ICE, including a call from one
anonymous caller who said that the sisters would be unprotected in
Brazil.
According to Costa, fears about these phone calls and
visits led her to avoid ICE agents, who she says became angry with
her for not assisting them. In September 2008, they asked her to
meet with them at their office, whereupon they arrested her and
informed her that they would reinstate a prior removal order.
While reinstatement of a prior removal order generally precludes
1
At some point during this period Costa got into an
altercation with a woman in a restaurant, who accused Costa of
being a "rat" and a "bitch." Costa recognized this woman as the
girlfriend of a seller of fraudulent immigration documents.
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any further hearing before an IJ, there is an exception for aliens
seeking withholding of removal out of fear of returning to the
country of deportation. See 8 C.F.R. § 241.8(e). Costa claimed a
fear of returning to Brazil due to the threats that she had
received for her work with ICE. Consequently, an asylum officer
transferred her case to an IJ, and Costa filed an application for
withholding of removal, claiming that she would likely face
persecution as a member of a particular social group, namely,
"former ICE informants who have acted against Brazilian citizens
resulting in their deportation." She also sought relief under the
United Nations Convention Against Torture. She included
declarations from her sisters and her mother, as well as a report
on country conditions in Brazil.
The IJ denied both applications. He assumed that Costa
faced a threat from Lelito's family if she returned to Brazil. He
concluded, however, that she was not eligible for withholding of
removal because the harm that she faced was limited to threats from
Lelito's family and was not based on her membership in a social
group. Additionally, the IJ cited Matter of C-A-, 23 I. & N. Dec.
951 (BIA 2006), to support the conclusion that a noncriminal
informant -- that is, an informant who is not part of a criminal
organization -- is not a member of a social group. Finally, the IJ
concluded that Costa faced no fear of torture by or with the
acquiescence of a government official. Instead, he reasoned that
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the Brazilian police officers who visited her mother were acting in
their personal capacities and not as arms of the state or with its
tacit acceptance.
Costa appealed the IJ's order to the BIA, which dismissed
the appeal, largely reiterating the IJ's reasoning. Like the IJ,
the BIA held both that ICE informants lack the requisite social
visibility to constitute a social group and that the persecution
Costa faced was "on account of a personal vendetta and not on
account of her membership in a particular social group." With
respect to the issue of torture by or with the acquiescence of a
government official, the BIA recognized that the threats came from
someone "connected with the police," and that corruption existed
among Brazilian police officers. Nevertheless, the BIA noted that
there is a system in place for complaining about police misconduct,
which has resulted in investigations and prosecutions. Thus, the
BIA concluded, "the evidence does not establish it is more likely
than not that she would be tortured in Brazil by or with the
consent or acquiescence of a government official." Costa
petitioned for review of this order.
II.
Where, as here, the BIA "adopted and affirmed the IJ's
ruling" while "discuss[ing] some of the bases for the IJ's opinion,
we review both the IJ's and BIA's opinions." Weng v. Holder, 593
F.3d 66, 71 (1st Cir. 2010) (quoting Cuko v. Mukasey, 552 F.3d 32,
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37 (1st Cir. 2008)) (internal quotation marks omitted). Our review
covers both the BIA's factual findings and its legal conclusions.
"We review the BIA's findings of fact under the deferential
substantial evidence standard." Scatambuli v. Holder, 558 F.3d 53,
58 (1st Cir. 2009). We will only reverse the BIA's findings if
"the record compels a contrary conclusion." Arévalo-Girón v.
Holder, 667 F.3d 79, 82 (1st Cir. 2012); see 8 U.S.C. §
1252(b)(4)(B). We review legal questions de novo, see Mayorga-
Vidal v. Holder, 675 F.3d 9, 13 (1st Cir. 2012), affording the
requisite deference to the BIA's interpretations of those statutes
and regulations which it administers, see Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). That
deferential standard requires a reviewing court to determine
"whether the statute is silent or ambiguous with respect to the
specific issue before it; if so, the question for the court [is]
whether the agency's answer is based on a permissible construction
of the statute." I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424
(1999) (quoting Chevron, 467 U.S. at 843).
A. Withholding of Removal
The government cannot deport an otherwise removable alien
"if the Attorney General decides that the alien's life or freedom
would be threatened in [the country of removal] because of the
alien's race, religion, nationality, membership in a particular
social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). In
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order to qualify for withholding of removal, the alien must show "a
clear probability of persecution," Tay-Chan v. Holder, 699 F.3d
107, 111 (1st Cir. 2012) (quoting Morgan v. Holder, 634 F.3d 53, 60
(1st Cir. 2011)), or, in other words, that she will "more likely
than not" face persecution in her homeland, Rotinsulu v. Mukasey,
515 F.3d 68, 71 (1st Cir. 2008). In addition, the alien must show
that one of the five protected grounds will be "one central reason"
for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i); see also id. §
1231(b)(3)(C); Beltrand-Alas v. Holder, 689 F.3d 90, 93 (1st Cir.
2012).
Costa alleged that she faced a threat of persecution
based on her membership in a particular social group. The BIA
first articulated a definition of "particular social group" in
Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), overruled in part
on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA
1987), where it classified a "social group" as "a group of persons
all of whom share a common, immutable characteristic," which could
include "sex, color, or kinship ties, or in some circumstances
. . . a shared past experience such as former military leadership
or land ownership," id. at 233. In subsequent cases, the BIA has
recognized social groups based on a variety of shared experiences.
See, e.g., In re Kasinga, 21 I. & N. Dec. 357 (BIA 1996) (women
from a particular tribe in Togo who resisted female genital
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mutilation); In re Fuentes, 19 I. & N. Dec. 658 (BIA 1988) (former
police officers in El Salvador).
The BIA also, however, has established a distinction
between persecution arising out of a shared experience and
persecution that is wholly personal in nature despite being related
to a characteristic shared by others. The BIA has given an example
of this distinction:
Were a situation to develop in which former police
officers were targeted for persecution because of the
fact of having served as police officers, a former police
officer could conceivably demonstrate persecution based
upon membership in a particular social group of former
police officers. On the other hand, if a former police
officer were singled out for reprisal, not because of his
status as a former police officer, but because of his
role in disrupting particular criminal activity, he would
not be considered, without more, to have been targeted as
a member of a particular social group.
Matter of C-A-, 23 I. & N. Dec. at 958-59.
In the present case, substantial evidence supports the
BIA's and IJ's finding that Costa faces a risk of harm from Lelito
and his family arising solely out of a personal dispute. Although
Costa participated in multiple sting operations, the record
indicates that only Lelito's arrest triggered the threats that form
the basis of her application for withholding of removal. Indeed,
the most relevant evidence that Costa faces a risk of persecution
in Brazil is that Lelito's brother twice visited her mother to
threaten Costa if she returned to Brazil. There is little to
suggest that the scope of persecution extends beyond a "personal
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vendetta." Consequently, we cannot overturn the determination that
the risk that Costa faces is personal, and not due to her
membership in a social group.
We need not address the several arguments that Costa
makes regarding the social visibility of former ICE informants.
The BIA's and IJ's decisions rested on two independent rationales:
that the persecution she faces is a personal matter; and that
Costa's proposed group lacked social visibility. Having affirmed
the first rationale, we do not reach the second.
B. Convention Against Torture
Costa also contests the BIA's rejection of her claim for
relief under the United Nations Convention Against Torture ("CAT").
An applicant for protection under CAT bears the burden of proving
that it is more likely than not that she will be tortured if
returned to her country of origin. 8 C.F.R. § 208.16(c)(2); Elien
v. Ashcroft, 364 F.3d 392, 398 (1st Cir. 2004). The torture must
be "inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity." 8 C.F.R. § 1208.18(a)(1). Unlike withholding
of removal, an applicant need not demonstrate that the risk of
torture relates to a protected ground. See Romilus v. Ashcroft,
385 F.3d 1, 8 (1st Cir. 2004) ("The applicant need not prove the
reason for the torture . . . .").
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Both the BIA and the IJ accepted as true Costa's evidence
regarding police visits to her mother's home in Brazil. According
to the record evidence, two uniformed police officers, one of whom
identified himself as Lelito's brother, visited her mother and
asked about Costa's whereabouts. They then told her that "she
needed to inform the police as soon as [Costa] returned to Brazil."
After Costa's cousin had returned to Brazil, Lelito's brother again
visited Costa's mother to ascertain whether it was actually Costa
who had returned. He was accompanied by a different police
officer. This visit occurred the day after Costa's cousin had
returned to Brazil.
The BIA affirmed the IJ's conclusion that "[t]he action
of two rogue police officers does not constitute government
action," and both the BIA and the IJ found that "[t]he applicant
did not present any specific evidence that the Brazilian government
supported the individual's actions." The BIA also discussed
background evidence about conditions in Brazil. While it found
evidence of "a high level of police abuse and impunity," it also
noted that "complaints may be made against police for criminal
behavior, resulting in some investigations and prosecutions."
Based on all of this evidence, the BIA found the evidence
insufficient to establish it more likely than not that Costa faced
torture by a state actor acting in his official capacity.
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Given our deferential review of the BIA's factual
findings, we have no basis for overturning this decision. Although
Lelito's brother may have hoped to project an air of official
authority when he visited Costa's mother, that conclusion rests on
a number of unproven assumptions. All we know from the record is
that he brought two separate police officers with him on these
visits, and that he told Costa's mother to contact "the police"
when Costa returned to Brazil. Perhaps there is a larger group of
police officers willing to assist him in taking action against
Costa, but that inference is not inevitable given the evidence
before the BIA. Moreover, the country reports demonstrate the
Brazilian government's efforts to crack down on police corruption.
Even if Lelito's brother intended to harm Costa upon her return,
the BIA was not required to conclude that the Brazilian government
would fail to respond to complaints about abuse of police
authority. The evidence is speculative no matter how we examine
it. Thus, like Socrates, all we know for certain is that we don't
know what will happen. The standard for overturning the BIA's
factual findings requires more -- that the evidence "compel[s] a
reversal of the [BIA]," Romilus, 385 F.3d at 9, and the record does
not lead to that conclusion.
III.
Petition denied.
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