Background
Claudivian Gomes-Batista, a Brazilian citizen who entered the United States without documentation in 2010, sought asylum, withholding of removal, protection under the Convention Against Torture, and cancellation of removal. He testified that supporters of Brazil’s Workers’ Party threatened and twice severely beat him because he recruited supporters for the opposing Brazilian Social Democrat Party.
An immigration judge denied relief, finding Gomes-Batista not credible and alternatively concluding that he had not shown the Brazilian government was unable or unwilling to protect him or that he could not safely relocate within Brazil. The Board of Immigration Appeals assumed he was credible but affirmed because he had not meaningfully challenged those dispositive findings. It also treated his CAT and cancellation arguments as waived.
While his BIA appeal was pending, Gomes-Batista sought administrative closure so he could pursue immigration relief based on an approved visa petition filed by his U.S.-citizen wife. The BIA denied closure because he had not shown a likelihood of satisfying the required extreme-hardship standard, the requested closure was of uncertain duration, and a removal order would not prevent him from pursuing a provisional unlawful-presence waiver.
The Court’s Holding
The Sixth Circuit denied Gomes-Batista’s petition for review. His challenge to the immigration judge’s adverse credibility finding was moot because the BIA assumed his testimony was credible and resolved his claims on other grounds. The court also rejected his claim of immigration-judge bias, concluding that focusing his testimony on events in Brazil rather than his journey to the United States did not make the hearing fundamentally unfair.
Substantial evidence supported the agency’s determination that Gomes-Batista failed to show Brazilian authorities were unable or unwilling to protect him. He did not establish that he reported the May 2009 beating, and the police reports described his attackers only as unknown persons. He also failed to rebut the finding that he could relocate elsewhere in Brazil beyond his alleged persecutors’ reach. Those conclusions defeated his asylum claim and necessarily his withholding claim, which carried a higher burden.
The BIA did not abuse its discretion by denying administrative closure. Gomes-Batista’s initial motion offered no argument or evidence that his wife would suffer the extreme hardship needed for the contemplated waiver, and the BIA permissibly considered both his uncertain likelihood of success and the unknown duration of closure. Evidence obtained after the BIA’s decision belonged in a motion to reopen before the agency, not in a request for remand from the Sixth Circuit.
Key Takeaways
- An appellate challenge to an immigration judge’s credibility finding is moot when the BIA assumes credibility and denies relief on independent grounds.
- Claims of persecution by private actors require proof that the home government was unable or unwilling to provide protection, and a reasonable ability to relocate within the country defeats a claimed fear of future persecution.
- The BIA may deny administrative closure when the applicant has not supported the likelihood of obtaining collateral relief and the proposed closure would last for an uncertain period.
Why It Matters
The decision underscores that asylum applicants must confront every independently dispositive agency finding on appeal. Evidence of threats and serious physical attacks alone may not establish eligibility when the record does not compel findings that the government failed to provide protection or that internal relocation was unreasonable.
It also shows that an approved family-based visa petition does not by itself require administrative closure of removal proceedings. Applicants seeking closure to pursue a waiver should provide evidence supporting each prerequisite for that relief, including qualifying-relative hardship, while the matter remains before the agency.