NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 18-1420

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VARLEY RAMOS COSTA, AKA Varley Costa;

SUELI GOMES CORREA COSTA, AKA Sueli Costa,

 Petitioners

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

 Respondent

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On Petition for Review of a Decision of the

United States Department of Justice

Board of Immigration Appeals

(Agency Nos. A213-090-873 & A213-090-874)

Immigration Judge: Honorable Kuyomars Q. Golparvar

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Submitted Under Third Circuit L.A.R. 34.1(a)

on November 14, 2018

Before: GREENAWAY, JR., SHWARTZ, and BIBAS, Circuit Judges

(Filed: December 12, 2018)

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OPINION*

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* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not 

constitute binding precedent.
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BIBAS, Circuit Judge.

Though aliens may reasonably fear foreign prisons, ordinarily they may not invoke that 

fear as a ground to remain here. Varley and Sueli Costa entered the United States illegally 

and are removable. They both applied for asylum, withholding of removal, and relief under 

the Convention Against Torture. They have shown that they will likely be imprisoned in 

Brazil and that Brazilian prisoners are often abused. But they cannot show that they belong 

to a particular social group. Their claimed group (Brazilian prisoners and detainees) does 

not qualify because it is neither socially distinct nor defined by a shared immutable characteristic. And the Costas cannot show that they are more likely than not to be tortured. So 

we will deny the petition.

I. BACKGROUND

Because its findings are plausible (indeed, persuasive), we accept the facts as found by 

the agency under 8 U.S.C. §1252(b)(4)(B). The Costas are a married couple and are Brazilian citizens by birth. They entered the United States illegally. More than a decade later, 

Immigration and Customs Enforcement agents detained them and charged them as removable because they entered illegally.

The Costas learned to their surprise that they are wanted for murder in Brazil. Brazilian 

authorities had issued arrest warrants and Interpol red notices for both of them. The Costas 

deny any involvement in the murder. But they fear that, upon returning to Brazil, they will 

be imprisoned and tortured.

So the Costas applied for asylum, withholding of removal, and protection under the 

Convention Against Torture. In a joint decision that addressed the claims of both Costas, 
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the Immigration Judge denied the Costas’ applications. They appealed to the Board of Immigration Appeals, raising the same claims and also claiming that the Judge erred by considering their applications jointly. The Board dismissed their appeal, reasoning that the 

Costas were not members of a particular social group, had not shown a likelihood of persecution, and had not shown that Brazil would likely torture them. And the Board held that, 

while the Judge had erred by considering their applications jointly, that error was harmless.

The Costas now petition for review, raising the same arguments. We have jurisdiction 

under 8 U.S.C. §1252. We review the Board’s legal conclusions de novo while according 

them Chevron deference. Huang v. Att’y Gen. of the U.S., 620 F.3d 372, 379 (3d Cir. 2010). 

And we review the Board’s factual findingsfor substantial evidence, overturning them only 

if the evidence “compels” a “contrary conclusion.” Abdille v. Ashcroft, 242 F.3d 477, 483-

84 (3d Cir. 2001).

II. THE COSTAS ARE NOT PART OF A PARTICULAR SOCIAL GROUP AND HAVE NOT 

SHOWN THAT BRAZIL WILL LIKELY TORTURE THEM

A. Asylum and withholding of removal

To qualify for asylum or withholding of removal, the Costas must show that they credibly fear persecution based on their “race, religion, nationality, membership in a particular 

social group, or political opinion.” 8 U.S.C. §§1101(a)(42)(A), 1231(b)(3)(A) (emphasis 

added). In defining a particular social group, a key question is whether people in that country perceive that group “as a distinct segment of the population.” S.E.R.L. v. Att’y Gen., 

894 F.3d 535, 545, 556 (3d Cir. 2018). To answer that question, we ask whether the “group 

is (1) composed of members who share a common immutable characteristic, (2) defined 
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with particularity, and (3) socially distinct within the society in question.” Id. at 547, 549 

(quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)).

The Costas claim that they satisfy this test. They define their group as Brazilian police 

detainees and prisoners. And they assert that the Judge and Board failed to address that 

group.

But both the Judge and the Board rejected the group of those detained or wanted by 

Brazilian police as lacking immutable characteristics, particularity, or social distinction. 

See AR 4-5, 128. And rightly so. Those arrested for murder in Brazil may be acquitted and 

released. And the Costas maintain their innocence. Detainees come from all walks of life. 

And the Costas offer no proof that Brazilians see prisoners or detainees as a separate social 

group. So their claims for asylum and withholding of removal fail.

Plus, substantial evidence supports the finding that the Costas do not have a wellfounded fear of persecution. They “assert[ ] that arrest warrants were issued by corrupt 

police who seek to extort them,” but that assertion “is entirely speculative.” AR 6. And 

Brazilian officials have tried to fight corruption.

B. Convention Against Torture

The Costas’ Convention claim likewise fails. For relief under the Convention, the Costas bear the burden of proving that, if removed to Brazil, they will “more likely than not” 

be tortured. Shardar v. Ashcroft, 382 F.3d 318, 325 (3d Cir. 2004) (distinguishing “legitimate prosecution” from “persecution”); 8 C.F.R. §208.16(c)(2). They must also prove that 

Brazilian officials will “consent to or acquiesce in” their torture. Roye v. Att’y Gen. of the 

U.S., 693 F.3d 333, 343 (3d Cir. 2012). The Board found that the Costas failed to prove
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either requirement. To prevail on their petition, the Costas must show that the Board lacked 

sufficient evidence for both those findings and that the evidence “compels” a “contrary 

conclusion.” Abdille, 242 at 483-84. They have not done so. 

To show a likelihood of torture, the Costas rely on a State Department human-rights 

report, which states: “Credible testimony from [Brazilian] inmates ... pointed to the frequent use of torture and mistreatment, varying in methods and the severity of the pain and 

suffering inflicted.” AR 323. Both police and prison guards take part. But an act can be 

frequent without happening a majority of the time. The Costas offer no proof that torture 

is so frequent that it is more likely than not.

Nor have the Costas shown that Brazil consents to or acquiesces in torture. The same 

State Department report explains that Brazil has investigated inhumane prison conditions

and let nongovernmental observers monitor them. Given Brazil’s efforts, the Board had 

sufficient evidence that Brazil does not acquiesce in torturing its prisoners.

C. Severance

Grasping at a final straw, the Costas claim that the Judge and Board erred by considering their applications together. But the Board found that this error was harmless. In their 

opening brief, the Costas simply assert in passing that the Board’s conclusion was wrong 

but offer no argument against it. So they have waived their argument. See Kost v. Kozakiewicz, 1 F.3d 176, 182 & n.3 (3d Cir. 1993).

We will thus deny the petition for review.