Elaine Da Silva-Queiroga, a native of Brazil, entered the United States in 2021 after fleeing an abusive relationship with a former partner, Lucas De Oliveira Custodio. She sought relief from removal by applying for asylum, withholding of removal, and protection under the Convention Against Torture. Da Silva testified that she suffered two instances of physical aggression in 2014 when she was a teenager, including an incident where her partner threatened to throw a chair at her and another where he grabbed her by the neck. Although the Immigration Judge found her testimony generally credible, he noted inconsistencies in her timeline regarding the dates of the incidents. The Immigration Judge denied her applications, finding that the harm she suffered did not rise to the level of persecution and that she was ineligible for Convention Against Torture protection. The Board of Immigration Appeals affirmed these decisions, adding that her proposed particular social groups were too amorphous to support her claims. Da Silva then petitioned the First Circuit for review of the Board's order.
The First Circuit, in an opinion by Circuit Judge Howard, focused its analysis on whether Da Silva met the burden of proving past persecution or a well-founded fear of future persecution. The court applied the substantial evidence standard to the agency's factual findings and reviewed legal conclusions de novo. Regarding past persecution, the court found that the record supported the agency's determination that Da Silva experienced at most two instances of physical aggression that did not result in lasting injury or require medical treatment. The court cited precedent establishing that the severity and frequency of harassment are intertwined factors, noting that isolated incidents without serious consequences do not constitute persecution. The court rejected Da Silva's argument that her young age at the time of the abuse compelled a finding of persecution, observing that the BIA had already considered her age and found the harm insufficient. On the issue of future persecution, the court emphasized that Da Silva remained in Brazil for approximately five years after the last incident without further physical harm. Furthermore, Da Silva testified that she did not fear direct harm to herself upon return, but rather feared harm to her children. The court held that this lack of specific proof regarding her own safety, combined with the five-year gap in incidents, failed to establish a well-founded fear of persecution. Finally, the court declined to address Da Silva's arguments concerning particular social groups or internal relocation. The court reasoned that because persecution is a necessary element of any asylum claim, and Da Silva failed to prove that element, any potential error regarding social groups or relocation was harmless.
The petition for review is denied, leaving in place the Immigration Judge's and Board of Immigration Appeals' orders denying asylum, withholding of removal, and Convention Against Torture protection. Da Silva remains subject to removal proceedings and must depart the United States unless she can secure other forms of relief. The decision reinforces the First Circuit's standard that isolated incidents of domestic violence, without serious injury or a sustained pattern of harm, generally do not meet the statutory definition of persecution. It also clarifies that a significant passage of time without further incidents can undermine a claim of future fear, even if the petitioner expresses fear for the safety of family members rather than themselves.
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