De Oliveira v. Garland

112 F.4th 12

Jozelia Maria DE OLIVEIRA Rodrigues; E.C.D.O.R., Petitioners, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 23-2081

United States Court of Appeals, First Circuit

August 8, 2024

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Lidice D. Samper and Samper Law on brief for petitioners.

Adriana Lafaille and Julian Bava on brief for the American Civil Liberties Union Foundation of Massachusetts, Inc., amicus curiae.

Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, Dawn S. Conrad, Senior Litigation Counsel, Office of Immigration Litigation, and Christopher G. Geiger, Trial Attorney, United States Department of Justice, Office of Immigration Litigation, on brief for respondent.

Before Barron, Chief Judge, Thompson and Gelpí, Circuit Judges.

THOMPSON, Circuit Judge.

An adverse credibility finding (or adverse credibility determination, as it is also commonly called) is a factual finding that a noncitizen's testimony during their removal proceedings was not credible. We've repeatedly explained (and find ourselves in the position to reiterate today) that such a finding can defeat a noncitizen's claim for immigration relief. See, e.g., Mashilingi v. Garland, 16 F.4th 971, 977 (1st Cir. 2021); Zaruma-Guaman v. Wilkinson, 988 F.3d 1, 5-6 (1st Cir. 2021). Today's immigration appeal is a prime example of an adverse credibility finding doing just that.

To explain, at the center of today's immigration appeal we have Jozelia Maria De Oliveira Rodrigues ("De Oliveira") and her minor daughter E.C.D.O.R. (collectively, "Petitioners"), Brazilian citizens who fled to the United States after their neighbor, a drug dealer named Joao Carlos ("J.C."), began to threaten them. Once here in the United States, they applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"), but an Immigration Judge ("IJ") denied their applications primarily because she found De Oliveira's in-court testimony not credible. Petitioners thereafter appealed to the Board of Immigration Appeals ("BIA" and, collectively with the IJ, "the agency"), which ultimately affirmed the IJ's adverse credibility finding. Fearing what might happen to them if removed to Brazil, Petitioners appealed once more and brought their case to us through a petition for review, urging us to reverse the agency's adverse credibility finding. For reasons we'll explain in due course, however, we find the adverse credibility finding is sufficiently supported by the record and, accordingly, we must deny the petition.

GETTING UP TO SPEED

As always, we begin by getting up to speed with a summary of the facts and of how Petitioners' case made its way to us. (Bear with us, as we do plunge into the particulars.) In laying out the facts and procedural history, we draw from the administrative record, including De Oliveira's testimony, which the IJ found not credible.¹ M.S.C. v. Garland, 85 F.4th 582, 585 n.2 (1st Cir. 2023).

Credible Fear Interview

On or about November 22, 2017, Petitioners entered the United States and applied for admission into the country. Upon arrival, De Oliveira expressed a fear of returning to Brazil so the Department of Homeland Security ("DHS") referred her to an asylum officer ("AO") for a credible fear interview ("CFI").² De Oliveira's CFI took place over the course of two days, December 4 and December 6, 2017, with the help of a Portuguese interpreter. The AO took notes during the course of the interview, but those notes include the following disclaimer:

The following notes are not a verbatim transcript of this interview. These notes are recorded to assist the individual officer in making a credible fear determination and the supervisory [AO] in reviewing the determination. There may be areas of the individual's claim that were not explored or documented for purposes of this threshold screening.

According to those notes, the AO started off the interview by gathering some basic personal information about De Oliveira, including that her last address in Brazil was in Santa Rita do Itueto. He also asked her several questions about her family, such as whether she was married and whether she had children. To the marriage question, De Oliveira responded that she was "[l]egally married but in real life [she was] not with [her] partner any[more]" and the "[l]ast time [she] heard of him he [was] in Brazil." To the children question, she responded that she had two children, E.C.D.O.R., who had entered the United States with her, and a son, who was still in Brazil.

With De Oliveira's basic personal information squared away, the AO shifted the focus of the interview to De Oliveira's fear of returning to Brazil. She explained that in Brazil she was threatened by three to five different "drug users" with weapons near her house. This all started, De Oliveira went on, after she saw them "using and selling drugs" and "report[ed] them to the police." Although these individuals were arrested by the Brazilian police, they were soon released from custody and began threatening De Oliveira and her family. These individuals, De Oliveira explained, would "pass by [her] house and scratch the tip of [a] gun on [her] window."

The AO asked several follow-up questions to tease out if there were any other reasons these individuals (or anyone else) would harm De Oliveira if removed back to Brazil. For example, the AO asked her whether "being a member of [her] family" had "anything to do with" why these individuals targeted her. De Oliveira stated that she believed it did "[b]ecause [she] [no] longer live[d] with [her] husband, [she] live[d] alone with [her] daughter, being a single mother was easier for [her] to be targeted." The AO also asked her whether she had any problems in Brazil "because of [her] race, being indigenous." De Oliveira expressed that she "fe[lt] abused" in Brazil because "[w]hite people" would "call [her] bad names, that [she] came from the forest, the jungle." When asked who might harm her in Brazil because of her indigenous ethnicity, she responded "[p]eople from other race groups, people who like to despise indigenous people."

At the end of interview, the AO asked De Oliveira if the following summary of her testimony was correct:

You testified that you were threatened by drug dealers in Brazil because you informed the police on them, ... and you are a single mother. You fear that if you return to Brazil the gang members will kill you because of these same reasons....

De Oliveira indicated that the AO's summary was correct. Nowhere in the interview notes does it reflect that De Oliveira ever specifically mentioned an individual by the name J.C. (we'll get to his relevance to De Oliveira's narrative shortly).

Ultimately, the AO deemed De Oliveira's fear credible and referred Petitioners to the immigration court for removal proceedings, during which they could seek asylum and related relief.

I-589 Applications and Written Affidavit

Less than a year later on October 23, 2018, De Oliveira filed with the Boston Immigration Court her I-589 application for asylum, withholding of removal, and CAT protection, listing E.C.D.O.R. as a derivative.³ To support their I-589 applications for asylum and related relief, Petitioners filed several additional documents, including a three-page written affidavit from De Oliveira drafted with the help of Petitioners' lawyer, seven country conditions reports, a copy of De Oliveira's passport, and copies of E.C.D.O.R.'s and her brother's birth certificates.

One piece of supporting evidence worth getting into the weeds of is De Oliveira's written affidavit. In it, she stated that her neighbors in Brazil were having a loud party one night and she could see that they were drinking and doing drugs. Although she asked them to keep it down, they refused and "[e]ventually the police showed up and arrests were made [due] to the drug use." One of the arrestees was her neighbor J.C., who De Oliveira did not know at that time "was a well[-]know[n] drug dealer."

The day after the party, J.C. was released from police custody and began calling her house and threatening her family because J.C. believed she called the police on him, notwithstanding her denials to the contrary. Thereafter, J.C. frequently called De Oliveira, sometimes "yelling and screaming" at her, sometimes "just breath[ing] heavily into the phone," sometimes "calling [her] horrible names," and sometimes threatening "to rape [her]." Despite De Oliveira reporting J.C.'s threats to the police "multiple times," the police "did nothing to stop him."

In fact, things worsened. J.C. began showing up at De Oliveira's work to follow her home. She became so concerned that J.C. would do something to her on her way home that she had a co-worker start walking her home. One day, J.C. slashed De Oliveira's tires and that night he called her to ask her if she liked having her tires slashed. She "pleaded with him to leave [her] and [her] family alone," but J.C. just "laughed and said that he was going to kill one of [her] children as punishment." This interaction really frightened De Oliveira so she packed up her family's things and "went to stay with one of [her] cousin[s]" in a different town. De Oliveira's efforts, it turns out, were all for naught because J.C. "found out where [they] were." This convinced her that J.C. "would continue to hunt [them] down there in Brazil," so she fled to the United States with E.C.D.O.R. in tow.

That was the extent of the information included in De Oliveira's written affidavit.

Direct Examination

Chugging along, on September 9, 2019, Petitioners appeared with their lawyer before the IJ for their merits hearing, seeking to avoid removal through their applications for asylum, withholding of removal, and CAT protection. At the hearing, De Oliveira took the stand, first for direct examination by her lawyer, through the help of a Portuguese interpreter.

After some...