Deliy Pereira Da Silva v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1831
___________
DELIY PEREIRA DA SILVA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A098-496-863)
Immigration Judge: Honorable Frederic G. Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 20, 2010
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed: February 17, 2010)
_________
OPINION
_________
PER CURIAM
Deliy Pereira Da Silva petitions for review of the Board of Immigration Appeals’
(“BIA”) final order of removal. For the reasons that follow, we will deny the petition.

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I.
Da Silva, a native and citizen of Brazil, entered the United States in June 2005.
She was eventually placed in removal proceedings for having entered the United States
without being admitted or paroled. She conceded removability and, in 2007, applied for
withholding of removal and relief under the Convention Against Torture (“CAT”). In
support of her application, she argued that she feared returning to Brazil because of
persecution she had suffered on account of her involvement in a local political campaign.
In an August 2007 hearing before the Immigration Judge (“IJ”), Da Silva testified
that, for approximately six months in 2004, she worked as a canvasser for a politician
who was running for city council. Da Silva explained that, in November 2004 (around
the time of that election), she received threatening phone calls from an unidentified
individual, telling her to stop supporting the politician. In May 2005, after the politician
had won the election, Da Silva returned home from church to find her house ransacked.
One of the walls had writing on it that said “we told you this would happen.” Although
Da Silva contacted the police, who filed a report of the incident, she was unable to name
any possible suspects. Shortly thereafter, she came to the United States.
The IJ concluded that Da Silva’s testimony lacked credibility, highlighting several
inconsistencies amongst Da Silva’s testimony, her application, and materials in the
record. In light of these inconsistencies, as well as the country conditions in Brazil, the IJ
concluded that Da Silva had failed to demonstrate entitlement to withholding of removal.

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The IJ also denied her request for CAT relief, concluding that her claims were not
credible and that she had failed to provide additional evidence indicating that she would
likely be tortured if removed to Brazil. On appeal, the BIA held that the IJ’s adverse
credibility determination was not clearly erroneous. In doing so, the BIA reiterated some
of the inconsistencies cited by the IJ and highlighted two additional points: (1) Da Silva
was not sure who made the threatening phone calls or vandalized her house; and (2) her
children and mother continued to live in Brazil without adverse consequences. The BIA
also concluded that, in light of the adverse credibility determination, Da Silva could not
prevail on her CAT claim. Da Silva now seeks review of the BIA’s decision.
II.
We have jurisdiction over Da Silva’s petition pursuant to 8 U.S.C. § 1252(a)(1).
We review an adverse credibility determination for substantial evidence. See Tarrawally
v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003). Under this deferential standard of review,
we must uphold this finding “unless the evidence not only supports a contrary conclusion,
but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).
The IJ articulated several reasons for concluding that Da Silva lacked credibility.
First, Da Silva’s testimony and the police report indicated that her house was vandalized
in May 2005, whereas her application stated that the incident occurred in March 2005.
Second, although her testimony and the police report indicated that her house was merely

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The police report stated that “a[n] unknown person burglarized her residence and1
stolen [sic] the following objects: [o]ne iron door and one iron window, and other objects
of domestic use.” (Admin. Rec. at 149.)
Da Silva testified that she had informed the politician of these incidents. (See2
Admin. Rec. at 130-31.)
The REAL ID Act governs this case, as Da Silva filed her application after the3
statute’s enactment. Before the Act’s enactment, “discrepancies in a petitioner’s
testimony [had to] involve the ‘heart of the asylum claim’ in order to support an adverse
credibility finding.” Kaita v. Att’y Gen. of the U.S., 522 F.3d 288, 296 (3d Cir. 2008).
Under the Act, however, inconsistencies underlying an adverse credibility determination
need not go to the heart of the alien’s claim. See 8 U.S.C. § 1158(b)(1)(B)(iii). We need
not consider the impact of this statute, for the inconsistencies here go to the heart of Da
Silva’s claim and thus would support an adverse credibility determination even under the
pre-REAL ID Act standard.
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ransacked, she submitted photographs indicating that her house was reduced to rubble.1
Third, the police report did not mention anything about the alleged writing on her wall,
nor did she submit any photographs of this writing. Finally, although the politician
submitted a letter confirming Da Silva’s involvement in his campaign, he did not mention
anything about the threatening phone calls she allegedly received or the alleged damage
to her house – incidents of which he was apparently aware.2
Although Da Silva’s brief attempts to explain the inconsistency concerning the
date her house was allegedly ransacked, the brief makes no attempt to reconcile the other
inconsistencies. Moreover, we are not persuaded by her attempts at the hearing to
neutralize these inconsistencies. As such, we conclude that the substantial evidence
supports the IJ’s adverse credibility determination.3
In light of this adverse credibility finding, the BIA did not err in upholding the IJ’s

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Much of Da Silva’s counseled brief is devoted to a discussion of law that is, at4
most, only tangential to the issues in this case. We note that several lengthy passages
from the brief can be found, verbatim, in other briefs her counsel has recently submitted
to our court. We trust that, going forward, counsel’s filings will be better tailored to the
case in question.
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denial of Da Silva’s withholding of removal claim. Moreover, Da Silva has failed to
show that she would likely be tortured if removed to Brazil. See 8 C.F.R. § 208.16(c)(2).
Her remaining arguments are without merit. Accordingly, we will deny the petition.4

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