Vilela v. Holder, Jr.

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Kermit V. Lipez, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. [10-1037]

Case: 10-1037 Document: 00116108732 Page: 1

Date Filed: 09/09/2010

Entry ID: 5479470

United States Court of Appeals
For the First Circuit

No. 10-1037
ANTONIO ALVES VILELA,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Susan
Sunah
Tony West,
G. Latour,

E. Zak was on brief for petitioner.
Lee, Trial Attorney, Office of Immigration Litigation,
Assistant Attorney General, Civil Division, and Michelle
Assistant Director, were on brief for respondent.

September 9, 2010

Case: 10-1037 Document: 00116108732 Page: 2

LYNCH, Chief Judge.

Date Filed: 09/09/2010

Entry ID: 5479470

Antonio Alves Vilela, of Brazil,

entered the United States on January 26, 1997 on a six-month nonimmigrant visa and overstayed.

He petitions for review of a

December 7, 2009 final order of removal by the Board of Immigration
Appeals (BIA).

The BIA, affirming the April 3, 2008 opinion of an

Immigration Judge (IJ), denied Vilela's applications for asylum,
withholding of removal, protection under the Convention Against
Torture (CAT), and voluntary departure in the alternative.

Vilela

petitions for review of only the BIA's denial of withholding of
removal.
claims.

For that reason we omit mention of his asylum and CAT
We deny the petition.
I.
Vilela was issued a Notice to Appear on September 30,

2004.

Conceding

removability,

Vilela

applied

for

asylum,

withholding of removal, and protection under the CAT, or voluntary
departure in the alternative, before an IJ on February 7, 2006.

He

appeared before an IJ for an evidentiary hearing on April 3, 2008.
We summarize Vilela's testimony before the IJ. Beginning
in the 1970s, Vilela engaged in what he called "social work" with
other

members

of

his

church

in

impoverished

parts

of

Belo

Horizonte, a city in the Brazilian state of Minas Gerais.

The

group provided food, toys, and medicine to the poor.

In 1985,

Vilela and about twenty members of his church founded AMISE, an

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Date Filed: 09/09/2010

Entry ID: 5479470

acronym he explained stood for "Friends of the Neighborhood of
Santa Efigenia and Sao Lucas," to formalize their work.
Vilela testified that AMISE grew to about one hundred
members and became the most active community organization in the
state.

He said that his own connections to local politicians and

his familiarity with government bureaucracy, gained from his former
employment in local and state government, helped AMISE attract
significant government support for its projects.

Among AMISE's

many accomplishments were upgrading roads, lighting, sewers, and
utility

lines,

increasing

the

number

of

buses

serving

the

neighborhoods, increasing policing, and providing training and
craft fairs to combat unemployment.
Vilela

claimed

that

as

AMISE

grew

more

successful,

Communist activists began to see it as a drain on the political
support

they

would

otherwise

receive

from

the

neighborhoods.

Vilela thought that AMISE's success cost the Communists electoral
support.

Vilela also testified that, as the leader of AMISE, he

was a well-known figure in the community, and he appeared on local
television and radio broadcasts speaking out against Communism.
Vilela testified that in 1990, he visited a neighborhood
near Santa Efigenia to distribute informational flyers about AMISE.
On a street called the Avenida Memdesa, a group of four people he
knew to be Communists approached him, told him he could not
distribute his flyers in that neighborhood, and said that he should

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Entry ID: 5479470

leave the region because their leader, Francisco Luciano, was angry
at him for refusing to join the Communists' cause.
Vilela

testified

that

within

a

month

of

the

1990

encounter, he began to receive phone calls from unidentified
callers.

Sometimes the callers would remain on the line in

silence, sometimes they would laugh into the phone, and sometimes
they would tell Vilela that he was "going to become a corpse."

In

the seven years between 1990 and his departure for the United
States in 1997, Vilela said, he received more than 50 such phone
calls. Vilela "only suspect[ed]" that the callers were Communists,
because he was generally respected and well-liked in the community
and so had no other enemies who could be making the calls.

He

never reported any of the calls to the police.
In 1992, an unknown vandal slashed all four of the tires
on Vilela's car and scratched through the paint.

Vilela did not

report the vandalism to the police, and assumed that Communists
were responsible, because he could not think of anyone else who
would want to vandalize his car.
In 1996, an unknown vandal painted "death to Antonio" on
the high fence surrounding Vilela's home.
vandalism

to

the

police

or

photograph

He did not report the
the

damage;

he

simply

repainted the fence.
Also in 1996, Vilela was walking to work down a straight
section of the Avenida Memdesa when a car drove up onto the curb

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and nearly hit him.

Date Filed: 09/09/2010

Entry ID: 5479470

Vilela thought the car looked like an unmarked

police car; did not recognize either the driver or the passenger,
who were laughing; but assumed they must be Communists.

They did

not make any further attempt to pursue him, and he did not know
whether they were trying to kill him.

He did not take down the

car's license plate number or report the incident to the police.
On cross-examination, Vilela added that for a time after
the car incident his wife thought there was someone following her
wherever she went, but neither Vilela nor his wife reported this to
the police.
As to why he did not report any of these incidents to the
police, Vilela explained that retired police officers who were
members of AMISE told him the police would do nothing in response
and he thought the car looked like a police car.
Vilela testified that since his arrival in the United
States, leftist politicians had come to power in Brazil, and
political violence had broken out.

Communists were suspected in

the deaths of three people in the state of Rondônia, and these
deaths, more than a thousand miles from Belo Horizonte, made Vilela
feel like he would not be safe from the Communists anywhere in
Brazil.

He felt that he would be a "marked man" in Brazil because

he had always been an outspoken anti-Communist in the church
community and in the media.

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Entry ID: 5479470

Vilela was asked how he had obtained a United States
Social Security card and work authorization card when he was, as he
knew, ineligible for both.

Vilela maintained that he was a

"victim" of a scam in which he paid $2500 in "legal fees" to obtain
a "legitimate card." In 2004, Immigrations and Customs Enforcement
(ICE)

discovered

the

scam--an

attempt

by

a

Social

Security

Administration employee to sell actual Social Security cards to
illegal immigrants--and interviewed Vilela as a client of the
scheme.

Vilela testified that he still had the fake Social

Security card, and claimed it was only during cross-examination
that he was first made aware that the card was invalid.

He also

claimed not to know what a work authorization card was, but
eventually said that he had received one from a former employer who
told him it was legitimate.
The IJ denied Vilela relief.

The IJ noted that Vilela's

testimony was plausible and internally consistent, but highlighted
her concern that he had "embellish[ed]" his story.

She found

Vilela undermined his own credibility by using fraudulent documents
and by either battering his wife or accepting her filing of a
fraudulent police report.1

As a result, the IJ held that she would

1

On cross-examination, Vilela testified that a restraining
order his wife had taken out against him in the United States in
June 2007 was based on a knowingly false report of domestic
violence. He claimed she filed it as part of her plan to obtain
legal status in the United States as a victim of domestic abuse.
Vilela stated that his wife later told him that the restraining
order was a mistake, and that she apologized to him.
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Entry ID: 5479470

deny withholding of removal and voluntary departure as a matter of
discretion, even if Vilela had established eligibility for relief,
which he had not.
The IJ found that Vilela had not established eligibility
for

withholding

of

removal,

because

he

had

not

shown

past

persecution or a well-founded fear of future persecution. Further,
he had been unable to identify any of his antagonists, to establish
a nexus between any of the harms he suffered and a protected
ground, or to establish that those harms, including the phone
threats, amounted to more than harassment.

The IJ concluded that

in a poor neighborhood like Vilela's, it was plausible that the
property vandalism and car incident Vilela described were isolated
and unrelated incidents.
The

IJ

also

found

that

Vilela

had

not

established

government involvement or acquiescence. The IJ found that he could
relocate safely within Brazil.
The BIA dismissed the appeal, upholding the IJ.

The BIA

treated Vilela's testimony as presumptively true. Even so, the BIA
affirmed the IJ's findings that Vilela had failed to show harm
rising to the level of persecution, nexus sufficient to support a

Vilela also testified that an assault and battery charge
against him in October 2007 was based on his wife's mistaken
impression that he was going to attack his daughter, who he was
confronting about conduct reports from school. Vilela claimed that
he, his wife, and his daughter had all gone before the judge in the
case to state that he had not struck his daughter. The charge was
dismissed for failure to prosecute in March 2008.
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Entry ID: 5479470

finding of past persecution or a well-founded fear of future
persecution, country-wide future danger, or eligibility under CAT.
II.
Where, as here, the BIA has issued its own opinion, we
review the BIA's opinion, as well as any portion of the IJ's
opinion adopted by the BIA.2
(1st Cir. 2008).
the

deferential

Bonilla v. Mukasey, 539 F.3d 72, 76

We review the BIA's determinations according to
substantial

evidence

standard,

upholding

them

unless "any reasonable adjudicator would be compelled to conclude
to the contrary."

Budiono v. Mukasey, 548 F.3d 44, 48 (1st Cir.

2008) (quoting 8 U.S.C. § 1252(b)(4)(B)).

Vilela does not raise

any pure questions of law.
Only Vilela's withholding of removal claim is before us.3
Withholding of removal protects an alien from removal to
a country where "the alien's life or freedom would be threatened in

2

The BIA did not adopt the IJ's alternative holding, that
she would deny Vilela withholding of removal as a matter of
discretion. "When the BIA does not consider an IJ's alternative
ground for denying relief, that ground is not before us." Bonilla
v. Mukasey, 539 F.3d 72, 81-82 (1st Cir. 2008). This case does not
implicate the provision of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA) that denies judicial
review of decisions committed to the Attorney General's discretion
by statute. See id.; 8 U.S.C. § 1252(a)(2)(B)(ii); cf. Kucana v.
Holder, 130 S. Ct. 827 (2010) (interpreting IIRIRA jurisdictionstripping provision).
3

Vilela did not challenge the IJ's findings denying his
claims for asylum, protection under the CAT, and voluntary
departure before the BIA, and he does not attempt to challenge them
here.
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Entry ID: 5479470

that country because of the alien's race, religion, nationality,
membership in a particular social group, or political opinion."
U.S.C. § 1231(b)(3)(A).

8

Vilela bears the burden of demonstrating

that it is "more likely than not" that he will be persecuted on
account of a protected ground if he returns to Brazil.

See Makalo

v. Holder, No. 09-2034, 2010 WL 2802642, at *2 (1st Cir. Jul. 19,
2010).

A

showing

of

past

persecution

creates

a

rebuttable

presumption that future persecution is likely. Pulisir v. Mukasey,
524 F.3d 302, 308 (1st Cir. 2008).

Because Vilela has not argued

in this court that he has established likely future persecution, he
has waived that argument and his withholding of removal claim is
based solely on the presumption of future persecution that would
attach if he prevailed on his claim of past persecution.

See Diaz-

Garcia v. Holder, 609 F.3d 21, 30 n.8 (1st Cir. 2010).
We rest on the BIA's and IJ's rulings. Substantial
evidence
establish

supported
a

nexus

their
between

conclusions
the

harm

that
he

had

Vilela

failed

suffered

and

to
any

protected ground, and failed to establish that what he suffered
rose to the level of persecution.
Vilela insists that the harms he suffered were inflicted
on account of his anti-Communist political views.4

But he failed

to produce convincing evidence of a causal connection between the

4

While Vilela originally claimed to have been persecuted
on grounds of both political opinion and membership in a social
group--AMISE--he abandoned his social group claim before the BIA.
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Date Filed: 09/09/2010

harm he suffered and his political views.
586 F.3d 90, 95 (1st Cir. 2009).

Entry ID: 5479470

See Sugiarto v. Holder,

Vilela did not identify the

perpetrators in any of the incidents he described in his testimony,
except to state that he knew the four people who approached him in
Paradaiso,

in

Communists.

1990

when

he

was

distributing

flyers,

to

be

There was no evidence connecting this incident to any

of the other incidents he described.

Vilela suspected that the

perpetrators of the other events he described were Communists
because he assumed that he had angered the Communists, and because
he could not think of any other personal "enemies."
The IJ and BIA were free to reject Vilela's speculation
that Communists were behind every event because he assumed that he
had angered the Communists, and because he could not think of any
other personal "enemies."
Cir. 2005).

Ziu v. Gonzales, 412 F.3d 202, 204 (1st

It is a rare self-proclaimed public leader or social

activist who garners no enemies.
events

were

motivated

by

his

Nor did Vilela show that the
political

views.

"While

the

petitioner was not required to identify [his] antagonists with
absolute certainty, [he] was required . . . to furnish some
credible evidence of the motivation underlying" their treatment of
him.

Lopez de Hincapie v. Gonzales, 494 F.3d 213, 219 (1st Cir.

2007); see also Sugiarto, 586 F.3d at 95.
Vilela also insists that the phone threats he described
constituted

persecution,

particularly

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when

combined

with

the

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Date Filed: 09/09/2010

Entry ID: 5479470

vandalism and the incident in which he was nearly struck by a car.
The BIA was not compelled to find these events to be persecution.
"[U]npleasantness, harassment, and even basic suffering" do not
rise to the level of persecution.

Sihombing v. Holder, 581 F.3d

43, 45 (1st Cir. 2009) (quoting Jorgji v. Mukasey, 514 F.3d 53, 57
(1st Cir. 2008)) (internal quotation mark omitted).

And while

"credible verbal death threats may fall within the meaning of
'persecution,'" Un v. Gonzales, 415 F.3d 205, 210 (1st Cir. 2005),
this is only when the threats are "so menacing as to cause
significant actual suffering or harm."

Bonilla, 539 F.3d at 77

(quoting Tobon-Marin v. Mukasey, 512 F.3d 28, 32 (1st Cir. 2008))
(internal quotation marks omitted).
The IJ found the threats the "most troubling" aspect of
Vilela's case, but still found them to constitute harassment rather
than persecution.

The IJ found the threats not credible as death

threats because it appeared that Vilela was "never in serious
danger."

The threats were not "sufficiently credible or imminent

to rise to the level of persecution."
42, 46 (1st Cir. 2009).

Ravix v. Mukasey, 552 F.3d

Vilela was only even arguably in danger of

physical harm when he was nearly struck by a car.

And there is no

evidence connecting his nearly being struck by a car with the
threats.
The petition is denied.

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So ordered.