De Carvalho Frois v. Holder
2012 U.S. App. LEXIS 1423
| 1st Cir. | 2012Background
- Petitioner Erika de Carvalho-Frois, a Brazilian national, seeks review of a BIA denial of asylum.
- She entered the United States illegally on December 31, 2006, was apprehended, and removal proceedings were initiated under 8 U.S.C. §1182(a)(7)(A)(i)(I).
- She testified that she witnessed a neighbor’s murder and was later threatened, with a phone call warning her not to talk to police.
- She feared return to Brazil for herself and her son, claiming police corruption and harm from the murderers or police; she submitted country-conditions reports and articles.
- An IJ denied asylum, finding no past persecution or well-founded fear; the BIA affirmed, and petitioners timely sought judicial review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the social group is cognizable | Frois argues the group of witnesses to a serious crime is socially visible | The government contends the group is not socially visible and lacks a common immutable characteristic | Group not cognizable; social visibility lacking; asylum denied on this basis. |
| Whether past persecution or well-founded fear was established independent of the social group | Petitioner asserts past persecution or future fear due to threats | Agency found threats insufficient and no nexus to protected grounds | Even if threats were credited, lack of cognizable social group defeats both claims. |
| Nexus to a statutorily protected ground | Persecution alleged on account of membership in a protected social group | No nexus established due to non-cognizable group | Necessary element unmet; petition denied. |
Key Cases Cited
- Morgan v. Holder, 634 F.3d 53 (1st Cir. 2011) (substantial evidence standard and review framework for asylum decisions)
- Lopez Perez v. Holder, 587 F.3d 456 (1st Cir. 2009) (elements of persecution; nexus to protected ground)
- Mendez-Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010) (well-founded fear standard; past persecution creates presumption of future fear)
- Scatambuli v. Holder, 558 F.3d 53 (1st Cir. 2009) (social visibility analysis; informants example)
- Faye v. Holder, 580 F.3d 37 (1st Cir. 2009) (social visibility and cognizable social groups)
- Elias-Zacarias, 502 U.S. 478 (1992) (standard for reviewing asylum findings under substantial evidence)