NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ N os. 13

- 3365 and 13

- 4505

_____________ FELIPE SOARES DE PAULA; JANE MARA ALVES GOMES,

Petitioners

v. ATTORNEY GENERAL OF THE U NITED STATES OF AMERICA, Respondent

_______________ On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA 1:A089

- 255

- 937; BIA 1:A089

- 255

- 938) Immigration Judge: Honorable Michael W. Straus

_______________ Submitted Under Third Circuit LAR 34.1(a)

September 9, 2014 Before: FISHER, JORDAN, and HARDIMAN, Circuit Judges

.

(Filed: September 16, 2014 )

_______________ OPINION OF THE COU RT

_______________ JORDAN, Circuit Judge

. Felipe Soares De P aula and Jane Mara Alves Gomes petition for review of the denial by the Board of Immigration Appeals (“BIA”) of their applications for asylum,2

withholding of removal, and protection under the Co nvention Against Torture (“CAT”).
W e will grant in part and deny in part the ir petition s for review.
I. Background 1
De Paula and Alves , husband and wife, 2 entered the United States without inspection from their native Brazil around July 4, 2004 , and Jun e 22, 2005, respectively. In 2007, De Paula filed a n I

- 589 application seeking asylum , withholding of removal, and relief under the CAT, listing Alves as a dependent spouse. 3 T he government commenced removal proceedings against De Paula and Alves in 2008

. At a hearing before an immigration judge (“IJ”) on October 8, 2009 , Alves filed her own application for relief , listing De Paula as a dependent spouse

. De Paula and Alves based their application s for reli e f on membership in a parti cular social group

– De Paula’s family. They expressed fear of future persecution by

a gang in Brazil dating back to a physical altercation between De Paula and a gang leader

. The alter c ation occurred in 2004, as De Paula and Alves were walkin g down a

1 Neither the immigration judge nor the BIA made any express credibility determinations. Because, “[f]or the purposes of our review the credibility of [De Paula and Alves] has not b een determined[,] ... we must proceed as if [the] testimony were credible

. ” Kayembe v. Ashcroft , 334 F.3d 231, 235 (3d Cir. 2003) . We thus recount the background facts from the perspective provided by the petitioners.

2 De Paula and Alves were legally marr ied in 2009 but have held themselves out to be married since March 2001, before the incidents in question occurred in Brazil.

3 De Paula tried to file the application on his own in 2006 but was unsuccessful until he obtained the help of a lawyer in 2007

. Although De Paula failed to file his application for relief within one year of his arrival in the United States, pursuant to 8 U.S.C. § 1158(a)(2)(B), the immigration judge found that De Paula merited an exception to that time requirement

.3

street in Brazil

. D uring the incident, the gang leader stabbed De Paula, and , in self

defense, De Paula knock ed the man unconscious. M embers of the gang started search ing
for De Paula , asking his parents where he was because they wanted to make him “pay for what [he] did.” ( A.R. at 408 .) 4 A t the urging of his parents , De Paula left the country a few weeks later for the United States. The gang subsequently harassed Alves and
threatened to hurt her unless she divulged De Paula’s whereabouts, which prompted her
to leave Braz il for the United States as well

. More than a year later, in August 2006, De Paula’s fat her was killed by a gang
member after he filed complaint s with the Brazilian police about gang
- related drug and weapons sales occurring at a local bar

. An eye wit nes s told De Paula’s mother that the gang member who killed his father had “put the revolver under [ his father’s] nose and told [him] that [‘]this was because of [your] son and this is for you [ ’ ] ” before pulling the trigger. (A.R. at 411.) De Paula cla ims t hat “only the police could have told” the gang
that his father was behind the complaint

. ( A.R. at 414. ) About one week later , a shooting

at th e same local bar killed a gang member and injured the bar owne r , who also belonged

to the gang . The bar owner a ccused De Paula of being the shooter , even though De Paula

was in the United State s at the time

. De Paula testified that gang members continued to harass his family in Brazil at
least through early 2011. In August 2007, for instance, gang members fired shots at
De Paula’s sisters while they were walking down a street. Despite pleas to do so, the

4 We will us e “A.R.” to refer to the certified administrative record that was filed in connection with the petitions before us.4

police never investigated the killing of De Paula’s father or the harassment of De Paula’s
mother and sisters. In her testimony, Alves expressed confidence th a t the gang had not forgotten the incidents invol ving De Paula and his father , even though she testified that De Paula’s family was no longer being persecuted

. Following a hearing on November 14, 2011, the IJ issued an oral decision on De Paula ’s and Alve s’s applications for relief

. The IJ rejected De Paula’s arguments for asylum and withholding of removal , findin g that he had not shown “past persecution based on what happened to his father ” and t hat the gang member that De Paula knocked
unconscious “ was after [De Paula] for vengeance , ” which was not a protected ground. ( App. at 11.) The IJ thus held that there was no basis for De Paula’s purported fear that he would be persecuted in Brazil on a protected ground

. The IJ further denied him relief
under t he CAT f

or f ailure to show “that officials in the Brazilian government, including police, [we]re willfully blind to any torture of [ him ] by th[e] gang.” (App. at 12.) With respect to Alves, the IJ cited her testimony “ that on a couple of occasions, the g ang members asked her where [De Paula] was and threatened her on o ne occasion.” (App. at 7.) Without further discussion, the IJ also denied her application for relief

. De Paula and Alves appealed to the BIA , which dismissed the appeal. T he BIA
held th at the IJ made reasonable inferences from the record to find that De Paula had
failed to es tablish t hat a protected ground was a “ central reason ” for his fear of persecution

. (App. at 2.) Regarding Alv es, the BIA stated that her “testimony and asylum app lication focused on events which arose based upon her marriage to [De Paula], and she did not describe any mistreatment unrelated to the dispute between the gang5

members and her husband and his father.” (App. at 3 (citation omitted) .) De Paula and
Alves then filed a motion to reconsider on various grounds , which t he BIA also denied

. The BIA credited their argument for reconsideration insofar as the IJ had failed to
consider the purported connection between De Paula’s altercation and the death of his
fath er. However, the BIA held that the error was harmless because the IJ had reached the
conclusion that the killing of De Paula’s father was unrelated to De Paula

. The BIA
stated that its failure to review De Paula ’s request for relief under the CAT was als o harmless error, as the IJ had analyzed that claim and De Paula had not met his burden of proof

. Finally, t he B IA held that it did not have to separate ly consider Alves’s applicati on because “her claims were based on [De Paula’s] claims.” (Supp. App. at 3.) Having failed to obtain relief, De Paula and Alves timely petitioned our Court for
review

. 5
II. Discussion 6 De Paula and Alves raise several issues that were rejected by the BIA on
reconsideration. With respect to the denial of relief to De Paula, th ey submit that the
evidence does not substantially support th at decision . Specifically, they seek remand to

5 De Paula and Alves filed a petition for review after the BIA issued its decision denying their appeal. Following the BIA’s denial of thei r motion for reconsideration, they filed another petition for review, which we consolidated for purposes of the responsive brief and disposition. We ordered De Paula and Alves to file supplemental briefing and will cite to the supplemental appendix attach ed to that briefing as “Supp. App.”

6 We have jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 1252(a)(1).6

the IJ for the f

ailure to consider the connection between De Paula’s activities and his
father’s death as evidence s upport ing persecution on the gr ound of family membership. They also ask us to vacate and remand the denial of CAT relief to De Paula , arguing that
the BIA engaged in “impermissible fact

- finding” regarding the likelihood that he would
be tortured and that it “ignore[d] evidence reflecti ng a cooperative relationship between the gangs and the police in Brazil.” ( Petitioners’ Supp. Opening Br. at 11.) In addition, they contend that the failure to separately consider A l ve s’s application de prived her of due process. 7

7 De Paula and Alves also argue that they were “deprived ... of a meaningful opportunity to present their entire claims for relief ” because the IJ denied their motion to accept late

- filed documents and motion for a continuance to present expert testimony about conditions in Brazil. ( Petitioners’ Opening Br. at 24.) The BIA held that the IJ did not err in either regard. We review t he denial of a motion for a continuance for abuse of discretion. Khan v. Att’y Gen. , 448 F.3d 226, 233 (3d Cir. 2006). As noted infra , we review de novo whether a petitioner’s due process rights were violated. Cabrera

- Perez v. Gonzales , 456 F.3d 109, 11 5 (3d Cir. 2006). At the November 14, 2011, hearing, counsel for De Paula and Alves asked the IJ to accept about 200 pages of late

- filed documents and requested a continuance to present expert testimony about conditi ons in Brazil. The IJ had previously to ld counsel that he would “not accept any material within ten days of the merits hearing ... unless good cause is shown.” (A.R. at 378.) C ounsel for De Paula and Alves did not provide any explanation for the eleventh

- hour requests, except to cite internal l aw firm delay. With respect to the potential expert witness, th e BIA took into account that De Paula and Alves had not located a specific expert witness, submitted a witness list, or presented an expert report to support their request for a continuance. Under those circumstances, t he denial of the motion for continuance was not an abuse of discretion. As for the late

- filed documents, many of those were redundant of testimonial or documentary evidence already of record, such as background materials on Br azil or the harassment against De Paula’s relatives. Moreover, the IJ allowed counsel to identify and submit about 40 pages of those documents by fax, despite the failure to show good cause for the delay. We therefore do not discern any due process viola tion stemming from the denial of the evidentiary motions.7

We “review the admini strative record on which t he final removal order is based. ” Zhang v. Gonzales , 405 F.3d 150, 155 (3d Cir. 2005). “The ‘final order’ to be reviewed is usually that of the [BIA], ” unless “ the BIA simply states ‘that it affirms the IJ’s
decision for the rea sons set forth in that decision .’” Id. (citation omitted). In that case,

“ the IJ’s opinion effectively becomes the BIA’s, and, accordingly, a court must review
the IJ’s decision. ” Id. (citation omitted) (internal quotation marks omitted) . As the BIA
di d not defer to or merely adopt the IJ’s decision in either denying De Paula and Alves’s appeal or denying their motion to reconsider , we will review the BIA’s decision s here

. A. Substantial Evidence 8
1. Asylum and w ithholding of r emoval
De Paula and Alves ar gue that proper consideration of the evidence connecting
De Paula’s activities with his father’s death could afford them relief in the form of asylum or withholding of removal on account of f amily ties. Specifically, they argue that
it is “im possible to r econcile ” the BIA’s initial decision reviewing the IJ’s
characterization of evidence with the BIA’s decision on reconsideration, which held that
the IJ’s characterization of evidence was in error yet harmless . (Petitioners’ Supp. Opening Br. at 9.)

8 “Our review of factual findings, including findings of persecution and fear of persecution, is for substantial evidence, which means we must uphold findings of fact unless the record evidence comp els a contrary finding.” Li Hua Yuan v. Att’y Gen. , 642 F.3d 420, 425 (3d Cir. 2011) . In addition, “we will view an error as harmless and not necessitating a remand to the BIA when it is highly probable that the error did not affect the outcome of the ca se.” Id. at 427; see also NLRB v. Wyman

- Gordon Co. , 394 U.S. 759, 766 n.6 (1969) (noting that remand to an agency is not necessary when it “would be an idle and useless formality”).8

Pu r sua nt to the Immigrati on and Naturalization Act (“INA”), 8 U.S.C. § 1158(b)(1), the Attorney General has the discretionary power to grant asylum to an alien who qualifies as a “refugee” under 8 U.S.C. § 1101(a)(42) (A). To make out a case for refugee status u nder § 1101(a)(42) (A) , an applicant must show “ either past persecution or a well

- founded fear of future persecution if returned to her prior country of
residence based on ‘ race, religion, nationality, membership in a particular soci al group, or political o pinion.’” Kayembe v. Ashcroft , 334 F.3d 231, 234 (3d Cir. 2003) (quoting 8 U.S.C. § 1101(a)(42)(A)). An asylum applicant must establish that one of those protected categories was or will be “at least one central reason” for persecuti on . 8 U.S.C. § 1158( b)(1)(B)(i). “[ A ] persecutor may have more than one central motivation for his or her actions; whether one of those central reasons is more or less important than another is
irrelevant.” Ndayshimiye v. Att’y Gen. , 557 F.3d 124, 129 (3d Cir. 2009). Howev er, “asylum may not be granted if a protected ground is only an ‘incidental, tangential, or superficial’ reason for persecution of an asylum applicant.” Id. at 130. Unlike asylum,
which is discretionary, “ withholding of removal under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), is mandatory

. ” Singh v. Gonzales , 406 F.3d 191, 196 (3d Cir. 2005) (citation omitted). To succeed on an application for withholding of removal, the applicant must “ meet[] a more stringent standard ” that “ ‘more likely than not’ ... he or she will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion if deported to his or her home country.” Id. (citation omitted).9

We have “accepted the definition for a ‘particular soci al group’ developed by the BIA,” i.e. , “‘a group of persons all of whom share a common, immutable characteristic.’” Lukwago v. Ashcroft , 329 F.3d 157, 171 (3d Cir. 2003) (quoting Matter of Acosta , 19 I. & N. Dec. 211, 233 (B.I.A. 1985), overruled in part as stated in Matter of Mogharrabi , 19 I. & N. Dec. 439 (B.I.A. 1987)). “[W]hatever the common characteristic that defines the group, it must be one that members of the group either cannot change, or should not be required to change because it is fundament al to their individual identities or consciences.”
Id. (quoting Acosta , 19 I. & N. Dec. at 233) (internal quotation marks omitted). W e have
further acknowledg ed that the BIA considers “membership in a particular social group”

to include “kinship ties.” Singh , 406 F.3d at 196 n.5 (noting “that the BIA has identified kinship ties as an innate, sha red characteristic”); see also Fa t in v. INS , 12 F.3d 1233,
1239 (3d Cir. 1993) ( same ). As the BIA acknowledged on reconsideration, t he IJ did not consider the evi dence that, just before De Paula’s father was killed, the gang member who pulled the trigger
had told him “this was because of [your] son and this is for you

. ” (A.R. at 411.) T he
BIA decided that the remark should have been considered but dismissed th e e rror as harmless, based on the IJ’s conclusion that the killing of De Paula’s father was unrelated
to De Paula. We agree that the failure to consider a possible nexus between De Paula and
his father’s death was erroneous , but it cannot be that such error was harmless simply
because the IJ decided that De Paula was the victim of criminal revenge. The alleged
harmfulness of the error lies in the incomplete consideration of the record , which cannot be assumed away by referring to the conclusion reached by th e infirm process. The IJ’s10

oversight may indeed turn out to be harmless because, even if it is found that the persecution of De Paula’s father was partially based on a family relationship, that finding
would not necessarily support the converse conclusion that any persecution against
De Paula would be on account of his kinship tie to his father. Nevertheless, because we will , for reasons explained below, remand for independent consideration of Alves’s application, w e will also remand for proper considerat ion of the possibility of a nexus between De Paula ’s alleged fear of persecution and his father’s death

. 9

2. Relief u nder the CAT
De Paula and Alves also argue that we should remand the denial of De Paula’s request for relief under the CAT because , “[t]hou gh the [BIA] addressed the CAT issue in its [reconsideration] decision, it disposed of the claim on a basis other than that relied upon by the IJ.” (Petitioners’ Reply Br. at 5.) They claim that the BIA “impermissibly acted as the trier of fact” ( id. ) an d “ignore[d] evidence reflecting a cooperative relationship between the gangs and the police in Brazil,” including the refusal of the

9 As the BIA cannot conduct its own fact

- finding, 8 C.F.R. § 1003.1(d)(3) (i), (iv), we will remand with instructions to allow the IJ to consider such nexus in the first instance

. We note, however, the logical difficulty presented by such a nexus, even if it exists. It is odd to think that, although someone who is the victim o f a purely crimi nal act cannot rely on that act as a basis for asylum, a relative of the victim can rely on kinship to claim membership in a protected class and thereby seek asylum. The relative stands in a better position than does the victim. That oddi ty is further compounded by the circularity evident in this case. De Paula was the v ictim of purely criminal acts

– the stabbing and later efforts at revenge by the gang

– which, the IJ concluded, do not constitute a basis for asylum. Yet, because his fa ther was killed in another criminal act during which the murderer mentioned De Paula, simple criminality was perhaps conv erted into a basis for asylum. Whether that alchemy is legally sound has not been briefed or argued before us, but it may be worth exp loring with the parties once this matter is before the IJ and BIA again.11

police to investigate the killing of De Paula’s father, the failure of the police to investigate the attack on De Paula’s sisters, and the State Department’s report regarding alleged corruption of Brazilian police

. (Petitioners’ Supp. Opening Br. at 11

- 12).
Under the CAT, “it became the policy of the United States not to expel ... or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to
torture.” Silva

- Rengifo v. Att’y Gen. , 473 F.3d 58, 64 (3d Cir. 2007) ( omission in original) (citation omitted) (internal quot ation marks omitted). An alien seeking relief under the CAT “bears the burden of establishing that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 10 Id. (citation omitted) (internal quotation mar ks omitted). T he applicant “ can satisfy the burden established for CAT relief by producing sufficient evidence that the government in question i s willfully blind to such activities.” Id. at 65. Contrary to the De Paula and Alves’s position, the BIA did n ot ignore the
evidence regarding the alleged relationship between gangs and police in Brazil. On reconsideration, it reviewed the reasoning provided by the IJ , who expressly considered
that evidence and held that De Paula had failed to carry his burden

. The evidence here
was not “ so compelling that no reasonable factfinder could conclude as the BIA did” on

10 “Unlike with asylum or withholding or removal, an alien seeking relief under the CAT need not establish that he/she is a ‘refugee’ and therefore need not establish that torture is i nflicted ‘on account of’ any protected status.” Silva

- Rengifo , 473 F.3d at 64 (citation omitted).12

De Paula’s request for CAT relief. Kayembe , 334 F.3d at 234

. Accordingly, we will deny the petition for review on De Paula’s request for relief under the CAT.
C
. Due Process 11 Alves, meanwhile, raises a separate claim, arguing that she was denied due process when the IJ and BIA failed to independently consider her application for relief.

“ In the removal cont ext, due process requires that ‘ an alien be p rovided with a full and fair hearing and a reasonable o pportunity to present evidence.’” Castro v. Att’y Gen. , 671 F.3d 356, 365 (3d Cir. 2012) (quoting Romanishyn v. Att’y Gen. , 455 F.3d 175, 185 (3d
Cir. 2006 )). That includes “ the right to ‘an individu alized determination of [her]
interests. ’ ” Abdulai v. Ashcroft , 239 F.3d 542, 549 (3d Cir. 2001) (citation omitted)

. The BIA ’s conclusion that Alv es ’s application did not require a separate determination because “her claims were based on [De Paula’s] clai ms” was erroneous. (Supp. App. at 3.) Alt hough their applications for relief were based on the same gang

related in cidents, Alves may be situated differently than De Paula. For instance, w hereas
De Paula may not have shown that his fear of persecution u ltimately arises from anything but personal retribution , Alves may be able to show a nexus between her past persecution
and her spousal relationship to De Paula

. 12 Alves also claims that evidence could establish that she would face more persecution in Braz il than De Paula because of her gender. We do not reach that argument. Insofar as the IJ and the BIA presumed that

11 We review de novo the legal question of whether a petitioner’s due process rights were violated. Cabrera

- Perez , 456 F.3d at 115.

12 See supra note 9.13

Alves was situated similarly to De Paula, that deprived Alves of an individualized determination on her application

. We will thus vacate a nd remand for a consideration of Alves’s application that comports with due process

. III. Conclusion For the foregoing reasons, w e will grant in part and deny in part De Paula ’s and
Alves’ s petitions for review

. The petitions will be remanded to the BIA for further remand to an IJ for proceedings consistent with this opinion.