De Oliveira v. Mukasey (1st Cir. 3/19/08)

HOWARD Boudin Wallace

The 1st Cir upheld a Brazilian asylum denial: (a) past threats were not escalating in nature or accompanied by overt action, so did not rise to level of past persecution; (b) fact that threats subsided after relocation, no harm to family in Brazil, undercut future fears. 

Read Opinion Here:

Brazilian corruption case, where Petitioner was threatened after he ran for mayor. 

1.  Substantial evidence supported finding that past threats did not rise to past persecution where no overt action, not escalating in nature.

   Substantial evidence in the record supports the IJ's determination that de Oliveira has proved neither past persecution nor a likelihood of future persecution. In particular, the IJ found that the death threats were never accompanied by overt action, that they were not escalating in nature, and that they stopped both for the "couple months" that de Oliveira left town after the election, and for the four months that he was winding up his affairs and preparing to move to the United States.

2.  Substantial likelihood supported future fear findings, where family is peacefully residing in Brazil, possibility of internal relocation.

   As for a likelihood of future persecution, the IJ noted that another son of de Oliveira has been living in Brazil since April 2005 without harm. That son was active in de Oliveira's campaign. Similarly, de Oliveira's wife and two of their other children had remained in Brazil throughout this time and were not harmed. "[T]he fact that close relatives continue to live peacefully in the alien's homeland undercuts the alien's claim that persecution awaits his return." Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir. 1999), cited by Romilus, 385 F.3d at 8. This is particularly true, where, as here, the threats explicitly contemplated harm to the children. Also, the IJ found that the cessation of threats while de Oliveira was visiting his brother in another town meant that he could indeed safely return to Brazil, even if persecution awaited him in the single town of Cuparaque. Finally, the IJ found that Cuparaque has a new mayor, who would presumably not have the same interest in prosecuting a vendetta on behalf of the old mayor, if indeed one existed. This substantial evidence in support of the IJ's decision ends the matter.

Atty: Jose A. Espinosa

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