                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-31-2008

Guimaraes v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4967




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-4967


                         DARCY DEDRONHO GUIMARAES,
                                         Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                        Respondent


                   PETITION FOR REVIEW OF A DECISION OF
                    THE BOARD OF IMMIGRATION APPEALS
                            Agency No. A79-136-771
                         Immigration Judge: R. K. Malloy


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 3, 2008


             Before: BARRY, JORDAN and HARDIMAN, Circuit Judges

                            (Opinion Filed: March 31, 2008)


                                       OPINION



BARRY, Circuit Judge

      Darcy Guimaraes, a native and citizen of Brazil, petitions for review of a final

order of removal of the Board of Immigration Appeals (“BIA”), which affirmed a

decision of an immigration judge (“IJ”) denying his claims for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). For the following

reasons, we will deny Guimaraes’s petition.

       Because we write only for the parties, we set out only those facts necessary for our

analysis. Guimaraes’s wife, Mara Cicivizzo, is a native of Brazil who was granted

asylum in the United States in 1997. Cicivizzo was previously married to another

Brazilian national while living in Brazil and for some time while living in the United

States. They later divorced. Cicivizzo, who worked in Brazil as a government social

worker assigned to assist children in the criminal justice system, sought asylum on the

ground that she had been threatened by Brazilian police after she attempted to publicize

the police’s use of the children she worked with to commit various crimes. Guimaraes

seeks relief on the theory that upon his return to Brazil he will be detained and tortured by

the Brazilian government by virtue of his marriage to Cicivizzo, about whom the

Brazilian government and its police force have allegedly not forgotten even though the

activities in which she was involved occurred in 1993 and she has been in the United

States since 1994.

       Guimaraes first argues that the IJ’s and BIA’s denial of his application for asylum

on the ground that he failed to file his application within one year of his arrival, 8 U.S.C.

§ 1158(a)(2)(B), and failed to demonstrate changed circumstances in Brazil warranting an

exception to the one-year filing requirement, id. § 1158(a)(2)(D), violated his right to due

process.1 Due process guarantees an alien in an asylum proceeding “the opportunity to be

1
  Where, as here, the BIA adopts the decision of the IJ and adds additional explanation
for its holding, we review both decisions. He Chun Chen v. Ashcroft, 376 F.3d 215, 222
(3d Cir. 2004). We lack jurisdiction to review the purely factual determination as to


                                              2
heard at a meaningful time and in a meaningful manner.” Mudric v. Atty. Gen., 469 F.3d

94, 100 (3d Cir. 2006) (internal quotation marks and citation omitted). The alien is

entitled to “fact finding produced to the IJ or BIA and disclosed to him,” “the ability to

make arguments on his own behalf,” and “an individualized determination of his

interests.” Id. Guimaraes’s argument, at bottom, is that the IJ’s and BIA’s decisions

were wrong, not that he was precluded from making arguments or having findings of fact

produced to him, or that he did not receive an individualized determination of his claim.

Indeed, we find that all three of these requirements were satisfied. Guimaraes’s due

process claim therefore fails.

       Guimaraes’s only arguable challenge to the denial of his withholding of removal

and CAT claims is that the adverse credibility determination drawn against Cicivizzo by

the IJ is not supported by substantial evidence.2 An adverse credibility determination is a

finding of fact that we must treat as conclusive “unless any reasonable adjudicator would

be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Dia v. Ashcroft,

353 F.3d 228, 247 (3d Cir. 2003) (en banc).

       When asked whether her ex-husband had ever visited or returned to Brazil while

living in the United States, Cicivizzo stated that his mother had told her in 1996 that he


whether there exist changed circumstances that excuse an untimely filed asylum
application. Mudric v. Atty. Gen., 469 F.3d 94, 101 (3d Cir. 2006). Indulging
Guimaraes’s argument that the decisions below raise a constitutional claim, however, we
will assert our jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the alleged error.

2
  We reject without further discussion Guimaraes’s argument that the IJ “deemed [his]
entitlement to relief ameliorated” because he could divorce his wife and/or lie to Brazilian
officials upon his arrival. Reply Br. at 13-14. The IJ “deemed” no such thing.


                                              3
had done so. When asked whether she had any reason to believe that he had been

tortured, harmed, or detained upon his return to Brazil, Cicivizzo answered no. She was

then asked whether she had any reason to believe that her ex-husband’s mother had lied

to her about her son’s trip to Brazil. Cicivizzo began to “backtrack” and answered in the

affirmative because, she said, when the mother said her son was in Brazil it was during

the divorce proceedings and the mother knew that Cicivizzo was seeking child support

from him. The IJ found this line of testimony to be “totally incredible” because, in the

IJ’s view, Cicivizzo only claimed that her ex-husband’s mother had lied after Cicivizzo

had testified that she had no reason to believe that the ex-husband had been tortured,

detained, or otherwise harmed upon returning to Brazil and could travel back and forth to

the United States—an admission wholly undermining Guimaraes’s argument that if

removed to Brazil he would be detained and tortured for having married Cicivizzo.

Indeed, the IJ found that it is “inconceivable” that the Brazilian government would

immediately “pounce[]” on Guimaraes at the airport and hold him responsible for any

activities in which Cicivizzo engaged while living in Brazil so many years ago or any

information the government believes she may have shared with him. It was surely not

unreasonable for the IJ to find that Cicivizzo had changed her position in an effort to

undercut a previous statement that undermined her husband’s claims. The adverse

credibility determination was supported by substantial evidence.

       For these reasons, we will dismiss the petition for review.




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