               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 14-1554

                      ROBSON ALVES FERREIRA,

                              Petitioner,

                                    v.

              LORETTA E. LYNCH,* Attorney General,*

                              Respondent.


                PETITION FOR REVIEW OF AN ORDER
              OF THE BOARD OF IMMIGRATION APPEALS


                                 Before

                Torruella, Thompson, and Barron,
                         Circuit Judges.


     Nina J. Froes on brief for petitioner.
     Lisa Morinelli, Trial Attorney, Office of Immigration
Litigation, Joyce R. Branda, Assistant Attorney General, Civil
Division, and Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, on brief for respondent.


                           October 9, 2015




*
 Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Loretta
E. Lynch has been substituted for former Attorney General Eric
H. Holder, Jr. as the respondent.
              THOMPSON,      Circuit    Judge.      Petitioner     Robson      Alves

Ferreira ("Alves Ferreira"), a native and citizen of Brazil, asks

this Court to review a decision from the Board of Immigration

Appeals ("BIA") affirming an Immigration Judge's ("IJ") denial of

his application for asylum.            For the reasons that follow, we deny

Ferreira's petition for judicial review.

                                      BACKGROUND

              In May 2002, Alves Ferreira entered the United States on

a   visitor    visa,    and    then    remained    beyond   the   time   the    visa

permitted.     In 2006, he got married, and the marriage lasted about

two years.      After his marriage ended, Alves Ferreira learned that

his wife, who was also a native of Brazil, had been working as an

informant for Immigration and Customs Enforcement ("ICE"), and

that she was providing information about Brazilians to ICE, which

caused others in the Brazilian community to be angry at both of

them.   On at least one occasion, a woman named Carmen threatened

Alves Ferreira because of his wife's actions.

              Eventually, in October 2008, Alves Ferreira himself was

apprehended     by     ICE    agent    Craig   DeLuzo.      According    to    Alves

Ferreira, DeLuzo made a deal with him: if he provided information

as to the whereabouts of certain Brazilian nationals of interest

to ICE, DeLuzo would "help" him.               Alves Ferreira kept up his end

of the bargain, and, as a result of information he provided, a

woman named Ana Maria was deported to Brazil.                  When Ana Maria's


                                           - 2 -
nephew, Oziel, found out his aunt had been deported, he told Alves

Ferreira that if he learned who had informed on his aunt, the

informant would be killed upon return to Brazil.                   Alves Ferreira

believed this death threat was serious because he knew Oziel to be

involved    in    the   drug   trafficking     trade   and    in   the   death   of

individuals in Brazil.

            It is also around this time that Alves Ferreira's car

was vandalized, he noticed people sitting in cars outside his home

(on one occasion someone took a picture of his license plate), and

he began to receive hang-up phone calls -- all of which he believed

to be related to his activities as an informant.                    As a result,

Alves Ferreira sought psychological care, and was diagnosed with

depression and prescribed medication.

            Meanwhile, despite the assistance he had provided ICE,

removal proceedings continued against Alves Ferreira, with DeLuzo

apparently unable or unwilling to do anything to help.                      Alves

Ferreira conceded removability and sought asylum, withholding of

removal,    and    protection    under   the     Convention    Against    Torture

("CAT").1

            After granting several continuances for reasons not

relevant to this appeal, the IJ held a hearing on February 2, 2012,

at which Alves Ferreira, represented by counsel, was the sole




     1   He did not apply for voluntary departure.


                                         - 3 -
witness.     In addition to his testimony, Alves Ferreira submitted

a news article and country conditions reports describing corrupt

police practices in Brazil, photographs and records demonstrating

the damage to his car, a restraining order he had taken out against

his wife, and his mental health records.

             The IJ issued an oral ruling at the hearing in which she

did not make an adverse credibility finding against Alves Ferreira,

but expressed "some doubts about the credibility of his testimony."

Specifically, the IJ found it suspect that the submitted medical

records    reflected   only   depression    associated   with   traumatic

separation from his wife and concerns regarding his immigration

status, and made no mention of the threats Alves Ferreira had

received or his fears for his safety related to his role as an ICE

informant.     And, she noted, his original application for asylum

made no mention of his cooperation with ICE.

             The IJ then went on to deny asylum on these grounds:

(1) that Alves Ferreira (who was not entitled to a presumption of

future persecution because he conceded he had not suffered past

persecution) had failed to meet his burden of establishing a well-

founded fear of persecution on account of either political opinion2

or membership in a social group, in that he had failed to identify


     2 Alves Ferreira did not raise this issue of his eligibility
for asylum on account of political opinion in his appeal to the
BIA, and does not raise it before this Court, so we say no more of
it.


                                    - 4 -
a viable social group; (2) that he had not met the government

action element of his claim, as he had not made any showing that

the    private       individuals    he   feared      were    in    league    with     the

government or not controllable by the government; and (3) that

even if he had been able to corroborate his testimony, the single

direct threat he testified to receiving was insufficient to form

the basis of well-founded fear of persecution.                        Having denied

asylum, the IJ also denied eligibility for withholding of removal,

which is subject to a higher burden of proof, and denied protection

under the CAT, as he had not demonstrated that he would be subject

to torture by or with the acquiescence of a public official.

               Alves    Ferreira    timely    appealed      the    IJ's     rulings    on

asylum and withholding of removal (but not the denial of protection

under the CAT) to the BIA, which dismissed his appeal and affirmed

the denials.         In its review, the BIA "agree[d] with the [IJ] that

even    if     the     respondent    satisfied       the    credibility       and     the

corroboration requirements of the REAL ID Act, he did not meet his

burden of proof to establish that he was persecuted, or faces a

well-founded fear of future persecution . . . on account of his

purported membership in a particular social group."                       By the way,

the REAL ID Act of 2005 (the "REAL ID Act"), Pub. L. No. 109-13,

119    Stat.    302,     concerns    "among    other       things,    the    standards

governing        credibility        determinations          and     the     need      for

corroboration of testimony in asylum cases."                      Dhima v. Gonzales,


                                             - 5 -
416 F.3d 92, 95 n.3 (1st Cir. 2005).          The BIA also agreed with the

IJ’s determination that Alves Ferreira failed to establish a

connection to government action or inaction, and that he had failed

to show that the "private citizens" he feared are "either aligned

with the government or that the government is unable or unwilling

to control" them.     The BIA affirmed the IJ's denial of withholding

of removal.    Finally, the BIA found no due process violation where

the IJ initially stated the incorrect standard for asylum but later

corrected the record to apply the correct standard.

           This petition followed.        Alves Ferreira's arguments on

appeal can be distilled into two errors that he claims the BIA

committed in denying his application for asylum:3 first, that it

should   not   have   affirmed   the   IJ's    ruling   that   he   failed   to

establish membership in a social group; and second, that it should

have found that his due process rights were violated when the IJ

did not give him an opportunity to corroborate his testimony.4               For


     3 Alves Ferreira raises no argument relating to the BIA's
decision affirming denial of withholding of removal, and so has
abandoned any challenge to that ruling.

     4 Alves Ferreira also again contends that the IJ made a legal
error when she misspoke during her oral ruling and stated the
incorrect burden of proof, an error she later corrected for the
record. Specifically, he says that on the recording, the IJ said,
"The respondent has not established that it is more likely than
not that his life or freedom would be threatened on account of
either of the grounds he identifies in his application." But to
be eligible for asylum, applicants do not need to show that
persecution is more likely than not, only that they have a well-
founded fear of the event happening. See INS v. Cardoza-Fonseca,


                                       - 6 -
the reasons below, both arguments fail, so we affirm the denial of

asylum.

                               DISCUSSION

I. Standard of Review

              We usually focus our review on the BIA's decision, but

where "the BIA adopts portions of the IJ's findings while adding

its own gloss, we review both the IJ's and the BIA's decisions as

a unit."      Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012).    This

Court upholds decisions of the BIA with respect to asylum if

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole."          INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992) (citation omitted).           Where the issue is

whether the BIA was justified in finding that the petitioner failed

to carry his burden of proof, review permits reversal "only if the

petitioner's evidence would compel a reasonable factfinder to

conclude that relief was warranted."         Settenda v. Ashcroft, 377

F.3d 89, 93 (1st Cir. 2004).      Legal conclusions are reviewed de

novo.   Id.




480 U.S. 421, 440 (1987).     On appeal, the BIA rejected Alves
Ferreira's argument that this was reversible error, noting that
the IJ had corrected herself soon after, that the transcript of
the IJ's ruling reflects that she applied the correct burden of
proof for asylum, and that, in any case, "the dispositive issue in
this case is particular social group." We reject his arguments
for the same reasons.


                                    - 7 -
II. Analysis

            A.   Social Group

            We address the social group issue first.        An asylum

applicant must prove that he is unable or unwilling to return to

his country of nationality either due to past "persecution or a

well-founded fear of [future] persecution on account of race,

religion, nationality, membership in a particular social group, or

political    opinion."5         8   U.S.C.   §   1101(a)(42)(A);   id.

§ 1158(b)(1)(B)(i).   Here, the IJ ruled that Alves Ferreira failed

to identify a social group at all, and that, even if she assumed

the group he intended to identify was informants cooperating with

law enforcement, this would not be a viable social group under

immigration law.

            On appeal to the BIA, Alves Ferreira contended for the

first time that his purported social group was not voluntary

informants, but informants cooperating under duress, and argued

that, despite his failure to designate it as his social group, as

much should have been obvious to the IJ based on his written and

oral testimony.     The BIA declined to consider this argument,

explaining that Alves Ferreira "did not present, as was his burden,


     5 Alves Ferreira does not claim that he suffered past
persecution, which gives rise to a rebuttable presumption of future
persecution, so the burden in this case was on him to affirmatively
prove a well-founded fear of future persecution based on one of
the enumerated grounds. Palma-Mazariegos v. Gonzales, 428 F.3d
30, 34-35 (1st Cir. 2005).


                                     - 8 -
this argument during his proceedings before the [IJ], and it

therefore is waived on appeal."          Alves Ferreira now wants us to

remand the case back to the IJ for consideration so that he can

better lay out his intended social group as those "known in the

Brazilian community as an ICE informant, whose assistance, under

duress, resulted in the deportation of at least one person to

Brazil."       We decline to do so because we find that the BIA was

correct to find this argument waived.            See Kechichian v. Mukasey,

535 F.3d 15, 21-22 (1st Cir. 2008) (finding no error where the BIA

refused to address a claim that had not been properly raised before

the IJ). It was Alves Ferreira's burden to identify the particular

social group or groups in which he claimed membership, and he

failed    to    meet   this   burden.   The     record   indicates   he   never

identified his particular social group in his asylum application,

written affidavit, or testimony before the IJ.

               Furthermore, the government argues, and we agree, that

it does not matter whether the BIA erred in upholding the IJ's

ruling on the social group issue because Alves Ferreira develops

no argument challenging the IJ's additional ruling that he failed

to establish any connection to government action or inaction -- an

issue that is dispositive of whether asylum should have been

denied.     Recall that it was Alves Ferreira's burden to establish

a well-founded fear of persecution on account of a protected

category.       Persecution "necessarily implies some connection to


                                        - 9 -
government action or inaction," meaning that the government "must

practice, encourage, or countenance it, or at least prove itself

unable or unwilling to combat it."                    Lopez Perez v. Holder, 587

F.3d 456, 461-62 (1st Cir. 2009) (citation omitted).                          Here, the

BIA   affirmed        the    IJ's   ruling    that        Alves   Ferreira    failed    to

establish such a connection to government action because he failed

to establish that the private individuals he feared were either

connected to the government or not controllable by the government,

and Alves Ferreira does not appeal that ruling before this Court.

            To       the     extent   that        Alves     Ferreira   addresses       the

government action issue in his petition, he does so only to make

the pitch that the IJ's ruling on the government action issue was

based on her social group ruling (which he contends was erroneous),

and therefore should automatically be remanded along with it for

reevaluation in light of a better-defined social group.                          But he

does not provide any argument or additional evidence to indicate

a basis on which the IJ -- even if she found this new social group

posited by him to be viable -- would find that the Brazilian

government       is     unwilling      or     unable        to    protect     informants

cooperating under duress, as opposed to voluntary informants.

Furthermore, although Alves Ferreira argues that the "country

conditions reports submitted in this case made it clear that

witnesses      are     not    protected      by    the     government,"      referencing

reports   of     Brazil's      problem      protecting       witnesses      involved   in


                                             - 10 -
criminal cases, and "that police are corrupt and operate with

impunity," he neither explains how he is such a "witness" in either

iteration of his purported social group, nor has he articulated an

argument for why he could not seek protection from the Brazilian

government against private individuals like Oziel.6      We would thus

be hard-pressed to read this as an appeal of the government action

issue.   See Vallejo Piedrahita v. Mukasey, 524 F.3d 142, 144 (1st

Cir. 2008) ("Issues adverted to on appeal in a perfunctory manner,

unaccompanied by some developed argumentation, are deemed to have

been abandoned.") (citation omitted).       On that basis alone, then,

we need go no further to uphold the BIA's decision affirming denial

of asylum.

             B.   Due Process

             As for Alves Ferreira's due process challenge, which we

review de novo, see Ticoalu v. Gonzales, 472 F.3d 8, 11 (1st Cir.

2006), it also fails.     Alves Ferreira argues that the BIA should

have found that the IJ violated his due process rights to a full

and fair hearing by not giving him a chance to corroborate his

testimony after stating in her oral ruling that, though she did

not make an adverse credibility finding, she did not wholly believe

his testimony.     But "before a petitioner in an immigration case

may advance a procedural due process claim, he must allege some


     6 Oziel himself was deported to Brazil sometime during the
pendency of the proceedings.


                                   - 11 -
cognizable     prejudice   fairly    attributable   to    the   challenged

process."    Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004).        He

does not do so here.

             The IJ ruled, and the BIA affirmed, that even if Alves

Ferreira     had   satisfied   the    credibility   and     corroboration

requirements, he would still have been denied asylum because he

failed to meet his burden of proof to establish either membership

in a viable social group or that any persecution he feared was

connected to a government action or inaction.            Because he would

have been denied asylum even if he had been given an opportunity

to further corroborate his testimony, there is no cognizable

prejudice and Alves Ferreira's attempt to raise a due process claim

fails.

                               CONCLUSION

             For the reasons above, we deny the petition for judicial

review.




                                     - 12 -
