                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                              Nos. 13-3365 and 13-4505
                                   _____________

                           FELIPE SOARES DE PAULA;
                           JANE MARA ALVES GOMES,
                                            Petitioners

                                           v.

         ATTORNEY GENERAL OF THE UNITED 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 COURT
                                  _______________

JORDAN, Circuit Judge.

      Felipe Soares De Paula and Jane Mara Alves Gomes petition for review of the

denial by the Board of Immigration Appeals (“BIA”) of their applications for asylum,
withholding of removal, and protection under the Convention Against Torture (“CAT”).

We will grant in part and deny in part their petitions for review.

I.     Background1

       De Paula and Alves, husband and wife,2 entered the United States without

inspection from their native Brazil around July 4, 2004, and June 22, 2005, respectively.

In 2007, De Paula filed an I-589 application seeking asylum, withholding of removal, and

relief under the CAT, listing Alves as a dependent spouse.3 The 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 applications for relief on membership in a

particular 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 altercation occurred in 2004, as De Paula and Alves were walking 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 been 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 married 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.

                                              2
street in Brazil. During the incident, the gang leader stabbed De Paula, and, in self-

defense, De Paula knocked the man unconscious. Members of the gang started searching

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 At 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 Brazil for the United States as well.

       More than a year later, in August 2006, De Paula’s father was killed by a gang

member after he filed complaints with the Brazilian police about gang-related drug and

weapons sales occurring at a local bar. An eye witness 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 claims that “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 the same local bar killed a gang member and injured the bar owner, who also belonged

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

was in the United States 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 use “A.R.” to refer to the certified administrative record that was filed in
connection with the petitions before us.

                                                 3
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 that the gang had not

forgotten the incidents involving 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 Alves’s applications for relief. The IJ rejected De Paula’s arguments for

asylum and withholding of removal, finding that he had not shown “past persecution

based on what happened to his father” and that 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 the CAT for failure 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 gang

members asked her where [De Paula] was and threatened her on one 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. The BIA

held that the IJ made reasonable inferences from the record to find that De Paula had

failed to establish that a protected ground was a “central reason” for his fear of

persecution. (App. at 2.) Regarding Alves, the BIA stated that her “testimony and

asylum application 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 gang

                                              4
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 the 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

father. 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 also

harmless error, as the IJ had analyzed that claim and De Paula had not met his burden of

proof. Finally, the BIA held that it did not have to separately consider Alves’s

application 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.    Discussion6

       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, they submit that the

evidence does not substantially support that 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 their 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 attached 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).

                                             5
the IJ for the failure to consider the connection between De Paula’s activities and his

father’s death as evidence supporting persecution on the ground 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 reflecting 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 Alves’s application deprived 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 the 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, 115 (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 conditions in Brazil. The IJ had previously told counsel that he
would “not accept any material within ten days of the merits hearing … unless good
cause is shown.” (A.R. at 378.) Counsel for De Paula and Alves did not provide any
explanation for the eleventh-hour requests, except to cite internal law firm delay.
        With respect to the potential expert witness, the 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, the 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 Brazil 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 violation stemming
from the denial of the evidentiary motions.

                                             6
       We “review the administrative record on which the 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 reasons 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

did 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 decisions here.

       A.     Substantial Evidence8

              1.     Asylum and withholding of removal

       De Paula and Alves argue 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 family ties. Specifically, they argue that

it is “impossible to reconcile” 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 compels 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 case.” 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”).

                                              7
       Pursuant to the Immigration 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 under § 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 social group, or

political opinion.’” 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 persecution. 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). However,

“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).



                                             8
       We have “accepted the definition for a ‘particular social 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 fundamental to their individual identities or consciences.”

Id. (quoting Acosta, 19 I. & N. Dec. at 233) (internal quotation marks omitted). We have

further acknowledged 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, shared characteristic”); see also Fatin v. INS, 12 F.3d 1233,

1239 (3d Cir. 1993) (same).

       As the BIA acknowledged on reconsideration, the IJ did not consider the evidence

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.) The

BIA decided that the remark should have been considered but dismissed the error 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 the infirm process. The IJ’s

                                              9
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, we will also remand for proper consideration of the possibility of a nexus

between De Paula’s alleged fear of persecution and his father’s death.9

              2.     Relief under 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]hough 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.) and “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 of a purely criminal 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 oddity is further compounded by the circularity
evident in this case. De Paula was the victim 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 father was killed in another criminal act during which the
murderer mentioned De Paula, simple criminality was perhaps converted into a basis for
asylum. Whether that alchemy is legally sound has not been briefed or argued before us,
but it may be worth exploring with the parties once this matter is before the IJ and BIA
again.

                                              10
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 quotation 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 marks omitted). The applicant “can satisfy the burden

established for CAT relief by producing sufficient evidence that the government in

question is willfully blind to such activities.” Id. at 65.

       Contrary to the De Paula and Alves’s position, the BIA did not 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 inflicted ‘on account of’ any protected status.” Silva-Rengifo, 473 F.3d at 64
(citation omitted).

                                              11
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 Process11

       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 context, due process requires that ‘an alien be provided with a full and

fair hearing and a reasonable opportunity 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 individualized determination of [her]

interests.’” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (citation omitted).

       The BIA’s conclusion that Alves’s application did not require a separate

determination because “her claims were based on [De Paula’s] claims” was erroneous.

(Supp. App. at 3.) Although their applications for relief were based on the same gang-

related incidents, Alves may be situated differently than De Paula. For instance, whereas

De Paula may not have shown that his fear of persecution ultimately 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 Brazil 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.

                                            12
Alves was situated similarly to De Paula, that deprived Alves of an individualized

determination on her application. We will thus vacate and remand for a consideration of

Alves’s application that comports with due process.

III.   Conclusion

       For the foregoing reasons, we 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.




                                            13
