FILED

United States Court of Appeals

Tenth Circuit

August 14, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MARCELO HALMENSCHLAGER,

Petitioner,

v.

ERIC H. HOLDER, JR., 

United States Attorney General,

Respondent.

No. 08-9514

(Petition for Review)

ORDER AMENDING DECISION 

Before O’BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.

This matter is before the court on Respondent Eric H. Holder, Jr’s Motion

For Technical Correction of Decision. In the motion, the government correctly 

identifies an error in the Order & Judgment filed in this matter on July 31, 2009. 

Specifically, the decision improperly referred to the BIA’s review as a single

judge review when, in fact, a three member panel reviewed the appeal from an

IJ’s decision. Respondent seeks correction of that error, and also seeks deletion

and amendment of other language used in the Order & Judgment.

Upon careful consideration, the motion is granted in part and denied in

part. We grant that portion of the request seeking correction of the language used

to reference the Board’s review. We deny that portion of the motion seeking to

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amend this court’s statement: “We acknowledge a facially apparent disparity

between the BIA’s view and our view of its appellate role with regard to factual

determinations and legal conclusions in persecution cases.” We add, however, at

the end of the paragraph immediately preceding the quoted language the

following: “Compelling as it may be, that dictum cannot resolve the dilemma

because it is in tension with our precedents.”

An amended decision is attached to, and incorporated in, this order. The

clerk is directed to issue the amended Order & Judgment nunc pro tunc to our

original July 31, 2009, filing date. 

 Entered for the Court

 ELISABETH A. SHUMAKER

Clerk of Court 

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* Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for

Michael B. Mukasey as the respondent in this appeal.

** After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

July 31, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MARCELO HALMENSCHLAGER,

Petitioner,

v.

ERIC H. HOLDER, JR.,*

United States Attorney General,

Respondent.

No. 08-9514

(Petition for Review)

ORDER AND JUDGMENT**

Before O’BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.

An Immigration Judge (IJ) granted Marcelo Halmenschlager’s petition for

asylum, finding him to be a refugee based upon incidents of mistreatment and his

fears of future persecution because of his homosexuality. The Board of

Immigration Appeals (BIA) accepted the factual findings of the IJ but concluded

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“the evidence of record does not establish an objective well-founded fear of

persecution.” Admin. R. at 2. It vacated the grant of asylum and ordered

Halmenschlager removed to Brazil. He petitioned for judicial review of the order

of removal. We deny the petition. 

Background

Halmenschlager, a self-described homosexual with effeminate traits, was

apprehended in 2004 when he attempted to enter this country illegally. He

conceded the charge of removability and sought asylum based on his sexual

orientation. 

At the hearing before the Immigration Judge (IJ), Halmenschlager was the

only witness. He testified at length concerning his experiences in Brazil. By his

first year in school, he realized he was different from other boys. Schoolmates

called him names, laughed at him, and beat him. Other children, especially boys,

would not play with him. He changed schools in the third grade but he was still

harassed and beat by other children. He was afraid to tell the teachers because he

believed the more people who knew of his problems, the more he would be

subjected to mistreatment. Most of his friends in high school were girls. He had a

troubled relationship with his stepfather who said Halmenschlager was not the

type of son he expected. 

Two adverse incidents occurred by the time Halmenschlager was seven

years old. At age five or six, teenagers exposed themselves to him and at age

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seven a man exposed himself and fondled him. Adults were of little assistance--

his teachers did not help him and his stepfather ignored him. 

In a later incident, when he was sixteen, a male neighbor exposed himself

to Halmenschlager and a female friend. They reported the incident to a police

officer who lived in the neighborhood. The officer brought the neighbor to the

police station. The neighbor blamed Halmenschlager for the incident because he

was effeminate and the neighbor was never punished.

Self-conscious and fearful, Halmenschlager tried to avoid going out in

public. But when he began working at the airport and attending university

classes, he needed to commute by public transportation. Every day people called

him names and he was worried that someone would follow him. At work he and a

homosexual co-worker were isolated from the public because his boss was

ashamed of the way he gestured when dealing with people.

Because of depression he quit the airport job, but five months later the

airport hired him back. He was required to register for military service, but was

excused because he had rheumatic fever as a child. When he went to register

soldiers called him names and said they would have some fun with him once he

was in the army. A boyfriend broke off their relationship for fear of being

identified as a homosexual. Halmenschlager was miserable and pretty much

restricted himself to his home to avoid unpleasant interactions. He went to a

psychiatrist who treated him for depression and anxiety disorder. He took Prozac. 

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A friend told him of another homosexual who had been murdered due to his

sexual orientation. He no longer wishes to hide his sexual orientation and believes

he would not be safe anywhere in Brazil. Halmenschlager left Brazil and entered

the United States illegally when he was 26 years old. 

For documentary evidence, the record contained State Department reports

from 2002 to 2004. Admin. R., Vol. I at 21. The reports paint a picture of

violence in the country on a number of fronts. The most recent report, based on

2004 events (2004 report), mentioned police “killings for hire and death squad

executions of suspected criminals, persons considered undesirable, indigenous

people, and labor activists.” Id. “Violence and discrimination against women;

child abuse and prostitution; and trafficking in persons, particularly women and

children for the purpose of prostitution and slavery, remained problems.” Id.

“Rural violence, including the killings of land reform and rural labor activists

persisted.” Id. The report contained accounts of discrimination against the

elderly. 

Specifically concerning homosexuals, the 2004 report said “[t]here was a

history of societal violence against homosexuals. Although the Constitution does

not prohibit discrimination based on sexual orientation, state and federal laws do

prohibit such discrimination, and the federal and state governments remained

committed to combating it. According to the Ministry of Health, there were

approximately 180 killings of homosexuals during the year.” Id. at 42 Brazil,

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which occupies an area slightly smaller than the continental United States (not

counting Alaska and Hawaii) had a population of over 180 million in 2004. No

reasons were given for the homosexual murders. Other instances of violence were

reported. “[Non-governmental organizations] confirmed that police committed

abuse and extortion directed against transvestite prostitutes in the cities. . . .” Id.

at 43. The report mentioned high profile prosecutions and civil suits brought

against government officials, gang members, and others for homosexual relatedviolence. The report went on to say:

The Secretariat of State Security in Rio de Janeiro, in partnership

with [non-governmental organizations], operated a hotline and

offered professional counseling services to victims of antihomosexual crimes.

In November, Rio de Janeiro state lawmakers reversed the governor’s

veto on a bill that gives same-sex partner benefits to government

employees. The state’s 70-member assembly voted 37 to 21 to

override the veto and the law went into effect. In July, a Sao Paulo

state court ordered 15 health insurance companies to recognize

same-sex couples in their coverage.

In April, the Special Secretariat for Human Rights launched the

“Brazil Without Homophobia” program, which sought to stop

violence against homosexuals, provide legal counsel to victims of

violence, and prevent anti-homosexual sentiment by providing

tolerance training for school-aged children. According to the

National Secretariat for Human Rights, the program aims to

strengthen public institutions and [non-governmental organizations]

that promote homosexual rights and combat homophobia; offers

training to professionals and representatives in the homosexual

community; creates publicity campaigns to raise awareness and

disseminate information about homosexual rights and to promote

homosexual self-esteem; and encourages reporting of violence

against homosexuals.

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Id. at 42.

In addition to the State Department reports, Halmenschlager submitted

accounts compiled by human-rights organizations, newspaper articles, advisories

from gay-activist groups, and a report by an anthropology professor. As related

to the human rights of homosexuals, these exhibits provided significant anecdotal

evidence of discriminatory conditions, violent incidents, and police corruption.

After reviewing the documentary evidence and listening to the testimony,

the IJ granted asylum. In his decision, the IJ recounted Halmenschlager’s

testimony and expressed a belief that he is homosexual and “very feminine.” 

Admin. R., Vol. II at 408. Noting that “in some cases the only available evidence

of an alien’s subjective fears may [be] the alien’s own testimony,” the IJ found

Halmenschlager gave a “sufficiently detailed, consistent, and believable” report

of his experiences in Brazil, thus “provid[ing] a plausible and coherent account of

the basis for his fears [without] further corroboration of any further evidence.” 

Id. at 407. 

From the documentary exhibits, the IJ decided “that even though Brazil is

making some progress . . . homosexuals still in that particular country have

problems.” Id. at 412. They “are subject to persecution by other individuals”

and “the government hasn’t done a lot in the past.” Id. at 412-13. In the IJ’s

view, “when you are with a group of people that are like you in large number,

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you are okay, but I think once you go [to] your separate city and so forth, that

there are problems in Brazil, and the Court has read those articles indicating that

Brazil is one of the worst countries in the world for this particular problem.” 

Id. at 413. 

Although the IJ recounted Halmenschlager’s testimony and found it

credible, he did not make specific findings on past persecution or the probability

of future persecution. One might infer, however, he found the presence of past

persecution, a reasonable fear of future persecution, or both. 

The Department of Homeland Security appealed to the BIA. In a

three-member decision, the BIA disposed of the matter without extensive

analysis. Unlike the IJ, it determined that Halmenschlager was not eligible for

asylum relief. In reversing the IJ’s decision, the BIA first determined

Halmenschlager had failed to establish past persecution, in that the most serious

incident happened when he was seven years old and “there is no evidence that the

event occurred on account of the respondent’s sexual orientation (assuming it

could have been discerned at that time) or that had the authorities been informed,

they would not have punished the perpetrator.” Admin. R., Vol. I at 2. The same

was true of other incidents occurring in Halmenschlager’s childhood. Id. And

subsequent events, “while abhorrent in many respects, do not rise individually or

cumulatively to the level of persecution.” Id. 

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1 Initially the parties agreed that our review was limited to determining

whether substantial evidence supported the BIA’s decision. Not satisfied, we

ordered supplemental briefing. The parties were instructed to discuss “[w]hether

this court should review de novo the BIA’s reversal of the IJ’s determination to

grant Halmenschlager’s request for asylum,” based on the statement in Kabba v.

(continued...)

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Reviewing the exhibits in the record, the BIA recognized Brazil’s “history

of problems with violence against homosexuals.” Id. at 2-3. The latest State

Department report, however, indicated to the BIA that Brazil had taken steps to

protect the rights of homosexuals. Though “societal discrimination and

occasional violence exist, without more, this does not establish an objective basis

for a well-founded fear of persecution.” Id. at 3. The BIA vacated the IJ’s grant

of asylum and entered a final order of removal. Halmenschlager then filed his

petition for review in this court. Our task is to review the decision of the BIA,

not that of the IJ. See Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th Cir.

2007); Awolesi v. Ashcroft, 341 F.3d 227, 231 (3d Cir. 2003). Halmenschlager

claims the BIA erred in concluding: 1) the level of harm he suffered because of

his homosexuality does not rise to the level of persecution; 2 he has not

demonstrated a well founded fear of future persecution; and 3) country conditions

in Brazil have changed.

Standard of Review

As a threshold matter, we must determine the standard of review to be

applied to Halmenschlager’s arguments.1

 In doing so, we recognize the difference

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1

(...continued)

Mukasey, 530 F.3d 1239, 1245 (10th Cir. 2008), that we “‘consider de novo

whether the BIA, in making its own factual findings, actually reviewed the IJ’s

decision only for clear error,’” as required by § 1003.1(d)(3)(I). Nov. 24, 2008,

Order at 1. 

In response Halmenschlager now challenges the BIA’s evaluation of the

evidence under a de novo standard. But he did not raise that issue before the BIA

and we therefore lack jurisdiction to consider it. See Sidabutar, 503 F.3d at 1122.

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in the approaches taken by this court and the BIA. This court has long held “‘the

ultimate determination whether an alien has demonstrated persecution is a

question of fact, even if the underlying factual circumstances are not in dispute

and the only issue is whether those circumstances qualify as persecution.’” 

Hayrapetyan v. Mukasey, 534 F.3d 1330, 1335 (10th Cir. 2008) (quoting

Vicente-Elias v. Mukasey, 532 F.3d 1086, 1091 (10th Cir. 2008)). Although

“[s]ome circuits deem this a mixed question calling for de novo review,” Tenth

Circuit “precedent forecloses any argument that the application of a correct legal

definition for persecution to the facts of a specific case is a mixed question of law

and fact, to be reviewed under some standard less deferential than substantial

evidence.” Vincente-Elias, 532 F.3d at 1091 & n.5 (quotation and alteration

omitted). 

The BIA, however, takes a different view. It is an appellate body charged

with reviewing agency decisions. 8 C.F.R. § 1003.1(d)(1). The Attorney General

has delegated to it the authority “to prescribe procedures governing proceedings

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2 (3) Scope of review. 

(i) The Board will not engage in de novo review of findings of fact

determined by an immigration judge. Facts determined by the

immigration judge, including findings as to the credibility of

testimony, shall be reviewed only to determine whether the findings

of the immigration judge are clearly erroneous. 

(ii) The Board may review questions of law, discretion, and judgment

and all other issues in appeals from decisions of immigration judges

de novo. 

(iii) The Board may review all questions arising in appeals from

decisions issued by Service officers de novo. 

(iv) Except for taking administrative notice of commonly known

facts such as current events or the contents of official documents, the

Board will not engage in factfinding in the course of deciding

appeals. A party asserting that the Board cannot properly resolve an

appeal without further factfinding must file a motion for remand. If

further factfinding is needed in a particular case, the Board may

remand the proceeding to the immigration judge or, as appropriate, to

the Service.

(4) Rules of practice. The Board shall have authority, with the

approval of the Director, EOIR, to prescribe procedures governing

proceedings before it. 

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before it.” Id., § 1003.1(d)(4). And it has done so. The BIA does not engage in de

novo review of the IJ’s factual findings. It may take administrative notice of

commonly known facts but may not otherwise engage in fact finding. If the facts

have not been adequately developed it must remand to the IJ to make a record. On

the other hand, the BIA conducts de novo review of questions of law, discretion,

and judgment and all other issues. 8 C.F.R. § 1003.1(d)(3).2

 In adopting the

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regulations governing the BIA the Attorney General made a detailed response to

comments about the (then) proposed rule and explained the final version and

offered reasons for his approach. Board of Immigration Appeals: Procedural

Reforms to Improve Case Management, 67 Fed. Reg. 54878 (Aug. 26, 2002).

Under its regulatory scheme, the BIA must accept an IJ’s factual findings

unless they are clearly erroneous; it may not overturn them “‘simply because the

[BIA] would have weighed the evidence differently or decided the facts differently

had it been the factfinder.’” Id. at 54889. The “clearly erroneous” standard “does

not apply” to “judgments as to whether the facts established by a particular alien

amount to ‘past persecution’ or a ‘well-founded fear of future persecution.’” Id. at

54890. That is so because “immigration judges are better positioned to discern

credibility and assess the facts with the witnesses before them; the Board is better

positioned to review the decisions from the perspective of legal standards and the

exercise of discretion.” Id. 

In asylum cases, “[t]he immigration judge’s determination of ‘what

happened’ to the individual is a factual determination” reviewed for clear error. 

Id. “The immigration judge’s determinations of whether these facts demonstrate

harm that rises to the level of ‘persecution,’ and whether the harm inflicted was

‘on account of’ a protected ground, are questions that will not be limited by the

‘clearly erroneous’ standard.” Id. 

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“[A]n agency’s interpretation of [its own regulations] is . . . controlling

unless plainly erroneous or inconsistent with the regulation.” Auer v.

Robbins, 519 U.S. 452, 461 (1997) (quotation omitted). The Executive Office

for Immigration Review included the persecution classification in its

notice-and-comment rulemaking process and later applied it in a formal

adjudication. See BIA: Procedural Reforms, 67 Fed. Reg. at 54879; Matter of

A-S-B-, 24 I. & N. Dec. 493, 497 (BIA 2008) (“The question whether these

uncontested facts were sufficient to establish a well-founded fear of persecution,

however, was a legal determination that was not subject to the clearly erroneous

standard of review.”). The BIA’s interpretation thus warrants full deference under

the principles expressed in Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). See Been v. O.K. Indus., Inc., 495 F.3d 1217,

1226-27 (10th Cir. 2007). 

In dicta, this court recognized the BIA’s rules and procedures classifying the

persecution determination as a question of law. Sidabutar, 503 F.3d at 1122, n.6

(stating that the BIA suggests that it is “not limited to the IJ’s determinations of

‘past persecution’” and that it “may reach these decisions de novo under its

plenary review of legal decisions”). Compelling as it may be, that dictum cannot

resolve the dilemma because it is in tension with our precedents.

We acknowledge a facially apparent disparity between the BIA’s view and

our view of its appellate role with regard to factual determinations and legal

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conclusions in persecution cases. Had the differences been brought to the

attention of the BIA and thereby properly preserved it would be an issue subject to

our review. Since the issue was not exhausted we lack jurisdiction to consider it. 

Sidabutar, 503 F.3d at 1122. We now turn to the issues properly before us.

Discussion

Statutory, regulatory, and judicial law specify the essential components of

eligibility for asylum relief. An applicant must demonstrate that he is a refugee,

meaning that “he is outside” the country of his nationality and “is unable or

unwilling to return to . . . that country because of persecution or a well-founded

fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).

Although persecution has no statutory definition, “we have held that a

finding of persecution requires the infliction of suffering or harm upon those who

differ . . . in a way regarded as offensive.’” Hayrapetyan, 534 F.3d at 1337

(quotation omitted). It “must entail more than just restrictions or threats to life

and liberty.” Id. (quotation omitted). Of equal concern is the source of the

persecution, if established. It is not sufficient for an applicant to be persecuted in

some undifferentiated way or by disparate individuals or groups. The persecution

must have been inflicted by the government or by a non-governmental individual

or group the government is unwilling or unable to control.” Id. (quotation

omitted); see also In re Acosta, 19 I. & N. Dec. 211, 222-23 (BIA 1985) (holding

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that persecution encompasses only harm inflicted “either by the government of a

country or by persons or an organization that the government was unable or

unwilling to control”), overruled in part on other grounds by INS v.

Cardoza-Fonseca, 480 U.S. 421, 449 (1987). Accord Ramos Barrios v. Holder,

___ F.3d ___, 2009 WL 1813469 (9th Cir. June 26, 2009); Burbiene v. Holder,

568 F.3d 251, 255 (1st Cir. 2009); Khalili v. Holder, 557 F.3d 429, 436 (6th Cir.

2009); Niang v. Gonzales, 422 F.3d 1187, 1194 (10th Cir. 2005); Wiransane v.

Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004). 

An applicant may establish refugee status with a showing of “past

persecution” or a “well-founded fear of future persecution.” 8 C.F.R.

§ 1208.13(b). “An applicant who has been found to have established . . . past

persecution shall also be presumed to have a well-founded fear of persecution on

the basis of the original claim.” 8 C.F.R. § 1208.13(b)(1). For a “well-founded

fear of persecution, ‘it need not be shown that the situation will probably result in

persecution, but it is enough that persecution is a reasonable possibility.’” 

Hayrapetyan, 534 F.3d at 1335 (quoting Cardoza-Fonseca, 480 U.S. at 440).

“‘[P]ersecution on account of membership in a particular social group’”

is “directed toward an individual who is a member of a group of persons all of

whom share a common, immutable characteristic . . . that the members of the

group either cannot change, or should not be required to change because it is

fundamental to their individual identities or consciences.” Niang, 422 F.3d at 

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1199 (quoting In re Acosta, 19 I. & N. Dec. at 233). The agency has “formally

adopted the position that homosexuals do constitute a particular social group.” 

Karouni v. Gonzales, 399 F.3d 1163, 1171 (9th Cir. 2005) (alteration and

quotation omitted). 

“Although always deferential to agency fact-finding, we must ensure that

BIA conclusions are sufficiently supported by the available evidence.” Uanreroro

v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). “‘Our duty is to guarantee that

factual determinations are supported by reasonable, substantial and probative

evidence considering the record as a whole.” Id. (alteration and quotation

omitted). “[W]here the BIA determines a petitioner is not eligible for relief,

we review the decision to determine whether the record on the whole provides

substantial support for that determination.” Id.

The record indicates that Halmenschlager relied mostly on childhood events

and the cumulative effects of discrimination and harassment by diverse individuals

in his adulthood. The most troubling incidents occurred before Halmenschlager’s

homosexuality was apparent to others and without any connection to action or

inaction by the government or entities or individuals it is unable or unwilling to

control. He testified credibly as to the bleak nature of his life in Brazil and is

deserving of sympathy. But other than childhood “beatings” at the hands of other

children, he related no instance of violence directed toward him because of his

sexual preference. Nor is there evidence of credible threats to his safety or well

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3 The IJ recounted his testimony about the most ominous threats made

against him: “He indicated that when he went to register [for military service] that

the soldiers were hassling him. They were calling him names and they said the[y]

would have a lot of fun with him once he got into the army.” Admin. R. at 468

Such taunts, unaccompanied by more serious acts, are insufficient to show

persecution. See Witjaksono v. Holder, No. 08-9540, 2009 WL 2192657, *6

(10th Cir. July 17, 2009) (“Verbal taunts, while offensive, fall within the bounds

of harassment and discrimination, not persecution.”). In any event he was excused

from military service because he had rheumatic fever as a child.

4 Conclusions drawn from State Department country reports as well as

reports from non-governmental organizations and other entities and individuals

are subject to de novo review by the BIA, and with good reason. “The most

common facts about country conditions appropriate for administrative notice are

those contained in country reports and profiles prepared by experienced foreign

service officers in the Department of State who are experts on specific regions

and countries.” As the courts have recognized, they, the immigration judges, and

the Board owe deference to the Department of State on such matters of foreign

intelligence as assessments of conditions. BIA: Procedural Reforms, 67 Fed.

Reg. at 54892 (discussing administrative notice of facts).

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being.3

 Moreover, there is no evidence the unpleasantness he experienced came

from the government or individuals or entities it was unable or unwilling to

control. The isolated failure of teachers to respond adequately to childhood

bullying (particularly if the problems were not called to their attention) or one

police officer’s failure to respond appropriately to improper sexual conduct is not

necessarily sufficient to show “persecution” even when accompanied by evidence

of general intolerance of homosexuals in Brazil, particularly when the State

Department reports government policies and efforts to restrain such attitudes.4

The BIA denied Halmenschlager’s asylum request for failure to demonstrate

“persecution” on account of his homosexuality. The BIA’s decision was terse but

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“contains a discernible substantive discussion” and is therefore sufficient for our

principled review. Uanreroro, 443 F.3d at 1204. The BIA gave considered,

supported reasons for its determination that Halmenschlager’s experiences did not

add up to past persecution. Under our standard of review, we do not disturb the

BIA’s finding. See Sidabutar, 503 F.3d at 1124 (holding substantial evidence

supported absence-of-persecution finding in spite of evidence of repeated beatings,

confrontations accompanied by money demands, and burning of a motorcycle). 

Without a credible showing of past persecution based on his homosexuality,

Halmenschlager was not entitled to a presumption of future persecution. 8 C.F.R.

§§ 208.13(b)(1), 1208.13(b)(1). Instead, as an alien “basing [his] asylum claim[]

 upon a well-founded fear of future persecution,” he “must show both a genuine,

subjective fear of persecution, and an objective basis by credible, direct, and

specific evidence in the record, of facts that would support a reasonable fear of

persecution.” Yan v. Gonzales, 438 F.3d 1249, 1251 (10th Cir. 2006) (quotation

omitted).

Evidence relating to Halmenschlager’s fear of future persecution included

State Department reports on the status of human rights in Brazil and publications

of nongovernmental organizations. Halmenschlager argues that the BIA erred by

relying on only the latest state department country report and failing to credit

exhibits describing harm done to homosexuals. 

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5 As the agency states, “reports by NGOs are simply not as reliable as those

of the Department of State because the mission of those organizations is to

advocate specific ideas and views, their positions are often based on anecdotal

experiences of identified and unidentified persons, and their opinions tend to lack

the discernment and expertise of those provided by the Department of State.” 

BIA: Procedural Reforms, 67 Fed. Reg. at 54892 (discussing administrative

notice of facts). “The important, complicated, delicate, and manifold problems of

assessing conditions in a foreign country warrant deference to those whose

expertise the United States tasks with that duty.” Id.

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“A state department report on country conditions may be probative in a

well-founded fear case.” Yuk v. Ashcroft, 355 F.3d 1222, 1236 (10th Cir. 2004)

(alteration and quotation omitted). Indeed, these reports are “generally deemed

authoritative for purposes of immigration proceedings.” Pulisir v. Mukasey,

524 F.3d 302, 310 (1st Cir. 2008). “In certain circumstances,” the BIA may “give

the contents of such reports appreciable--even determinative--weight.” Id.

“[C]onflicting reports, for all their insights, may have drawbacks of their own.” 

Gonahasa v. U.S. INS, 181 F.3d 538, 542 (4th Cir. 1999). Private entities have

done important work “‘in exposing inhumane practices,’” but “‘these organizations

may have their own agendas and concerns, and their condemnations are virtually

omni present.’” Id. (quoting M.A. v. U.S. INS, 899 F.2d 304, 313 (4th Cir. 1990)

(statutorily superseded on other grounds).5

Unquestionably, Halmenschlager showed that homosexuals may be

mistreated in Brazil. But neither his testimony nor the documentary evidence

requires a finding that he faces persecution if returned to Brazil. “[I]t is not our

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prerogative to reweigh the evidence, but only to decide if substantial evidence

supports the [agency’s] decision.” Yuk, 355 F.3d at 1236. We find that the

BIA acted reasonably in choosing to give greater weight to the 2005 assessment

of the State Department. 

And that report does not compel a finding that Halmenschlager

demonstrated a reasonable fear of future persecution. The unvarnished fact that

180 homosexuals were killed in one year is not remarkable in a country of over

180 million, particularly when the report does not identify the killings as murder,

contains no mention of the reason for the killings or any description of the

perpetrators (by type, not by name). The reader is left to speculate--were they

homophobic killings or were they motivated by other factors (jilted lovers, drug

dealing, prostitution, etc.) and only coincidently involved homosexuals. 

The record does not demonstrate that the BIA wrongly rejected

Halmenschlager’s claim. It is fair to infer, even from its cryptic remarks, that the

BIA put the killings of homosexuals in context, considering the diverse area and

population of Brazil; the ambiguity surrounding the killings; and the lingering

problems affecting the human rights of many citizens, not just homosexuals. 

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Further, the report describes governmental efforts to combat violence, curb

homophobia, and promote nondiscrimination.

The petition for review is DENIED.

Entered for the Court

Terrence L. O’Brien

Circuit Judge

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