Genivaldo Pereira Pimenta; Queitani De Souza Alves; C. E.s. P.a v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA On Petition for Review of an Order…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 24-1354
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GENIVALDO PEREIRA PIMENTA;
QUEITANI DE SOUZA ALVES;
C. E.S. P.A,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
______________
On Petition for Review of an Order of the Board of Immigration Appeals
(Agency Nos. A216-917-338; A216-917-339; A216-917-340)
Immigration Judge: Pallavi Shirole
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Submitted Under Third Circuit L.A.R. 34.1(a)
December 6, 2024
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Before: SHWARTZ, MATEY, and McKEE, Circuit Judges.
(Filed: December 10, 2024)
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OPINION∗
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∗ This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.

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SHWARTZ, Circuit Judge.
Petitioners Genivaldo Pereira Pimenta, his wife Queitiani De Souza Alves, and
their child seek review of an order of the Board of Immigration Appeals (“BIA”) denying
their applications for asylum, withholding of removal under 8 U.S.C. § 1231(b)(3), and
protection under the Convention Against Torture (“CAT”), 8 C.F.R. § 1208.16(c).
Because they fail to demonstrate a nexus between their potential persecution and
membership in a particular social group, and because they have not shown the Brazilian
government would acquiesce in the mistreatment they fear upon removal, we will deny
the petition.
I
A
Petitioners are natives and citizens of Brazil. In Brazil, Pimenta borrowed the
equivalent of about $45,000 from a man named Joao. After the first loan payment came
due, Pimenta and his wife were confronted by individuals who referenced the debt,
pointed a gun at them, and threatened to kill them. That night, Petitioners fled to a
relative’s house, but they did not feel safe because of their belief that Joao is “a man of
power” who will “surely find . . . and kill” them wherever they are in Brazil. AR 206.
Two months later, Petitioners entered the United States without authorization.
Since then, they have received threats via social media, including a threat that someone
would be “waiting for [Genivaldo] when [he] returned to Brazil.” AR 208. Individuals
also found Genivaldo’s brother, who still lives in Brazil, and asked him about Petitioners’

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whereabouts, although they did not threaten or harm him or any other of Petitioners’
relatives.
B
Petitioners received Notices to Appear before an Immigration Judge (“IJ”),
asserting their removability under 8 U.S.C. § 1182(a)(6)(A)(i), and they applied for
asylum, withholding of removal, and CAT relief. The IJ found Petitioners were
removable and denied their applications on all three bases. As to their asylum
applications, the IJ found that the death threats constituted past persecution,1 but
Petitioners were not threatened on account of a protected ground because they were
“targeted by criminals because of their failure to pay back a loan, not on account of,” AR
71, their membership in the particular social group: “family members of Genivaldo
Pereira Pimenta,” AR 69. Because Petitioners did not make the showing required to
obtain asylum, the IJ concluded they necessarily could not meet the higher burden to
obtain withholding of removal. As to their application for CAT relief, the IJ found that
Petitioners failed to establish a likelihood that they would face torture upon removal
because the record does not (1) establish that “they will more likely than not encounter
Joao again,” or (2) support the conclusion that Brazilian officials would acquiesce to
Joao’s criminal activity. AR 76.
1 The IJ also found that, although they subjectively feared future persecution, such
fear was not objectively reasonable because they provided “scant details as to Joao’s
purported resources, affiliations, or influence.” AR 74.

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The BIA affirmed the IJ’s decision, (1) finding no clear error in the IJ’s
determination that Petitioners were targeted for their failure to pay back a loan, rather
than on account of any protected ground, and (2) agreeing that Petitioners failed to
establish that any future harm they might face “would be with the consent or
acquiescence of a public official.” AR 309.
Petitioners seek review.
II2
A
We first address Petitioner’s asylum and withholding of removal claims. To
obtain asylum, Petitioners must show that (1) they are “unable or unwilling to return to,
and [are] unable or unwilling to avail [themselves] of the protection of” the country to
which they would be removed “because of persecution or a well-founded fear of
persecution,” 8 U.S.C. § 1101(a)(42)(A); and (2) their “membership in a particular social
group [(“PSG”)] . . . was or will be at least one central reason” for the persecution, id.
§ 1158(b)(1)(B)(i). A PSG is “(1) composed of members who share a common
2 The IJ had jurisdiction pursuant to 8 C.F.R. § 1240.1(a). The BIA had
jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have jurisdiction to review
final orders of removal under 8 U.S.C. § 1252. “We usually review the BIA’s opinion as
the agency’s ‘final order.’ However, [w]hen, as here, the BIA affirms an IJ’s decision
and adds analysis of its own, we review both the IJ’s and the BIA’s decisions, referring to
the BIA’s opinion generally and to the IJ’s opinion when necessary.” Luziga v. Att’y
Gen., 937 F.3d 244, 251 (3d Cir. 2019) (internal quotation marks, citations, and footnote
omitted) (alteration in original). We review the BIA’s legal determinations de novo, see
Aguilar v. Att’y Gen., 107 F.4th 164, 170 n.3 (3d Cir. 2024), but “administrative findings
of fact are conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary,” 8 U.S.C. § 1252(b)(4)(B).

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immutable characteristic, (2) defined with particularity, and (3) socially distinct within
the society in question.”3 Avila v. Att’y Gen., 82 F.4th 250, 262 (3d Cir. 2023) (quoting
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)). “For a protected
characteristic to qualify as ‘one central reason’, it must be an essential or principal reason
for the persecution,” Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 685 (3d Cir. 2015),
and cannot merely play an “incidental, tangential, or superficial role in [the] persecution,”
id. (quoting Ndayshimiye v. Att’y Gen., 557 F.3d 124, 130 (3d Cir. 2009)). To obtain
withholding of removal relief, Petitioners must also show they fear persecution because
of a protected characteristic, such as membership in a PSG.4 See 8 U.S.C.
§ 1231(b)(3)(A); 8 C.F.R. § 208.16(b).
Petitioners assert that they were and will be persecuted by Joao or his associates
based on their membership in eight PSGs.5 Of these proposed PSGs, the BIA correctly
3 “‘Particularity’ addresses ‘the “outer limits” of a group’s boundaries and is
definitional in nature,’ whereas ‘social distinction’ focuses on ‘whether the people of a
given society would perceive a proposed group as sufficiently separate or distinct.’”
S.E.R.L. v. Att’y Gen., 894 F.3d 535, 548 (3d Cir. 2018) (quoting Matter of M-E-V-G-,
26 I. & N. Dec. 227, 241 (BIA 2014)). “[T]he existence of a cognizable particular social
group presents a mixed question of law and fact.” Id. at 543. We review “the ultimate
legal conclusion as to the existence of a particular social group” de novo, and the factual
findings underlying that conclusion for substantial evidence. Id.
4 The nature of the proof for each type of relief is different. Asylum requires a
showing of a “well-founded fear of persecution,” 8 U.S.C. § 1101(a)(42)(A), whereas
withholding requires that a petitioner show a “clear probability” of persecution if
removed, Carlos Alberto Inestroza-Tosta v. Att’y Gen., 105 F.4th 499, 517 (3d Cir. 2024)
(citation omitted).
5 The proposed PSGs are:
(1) Brazilian citizens who are targeted by a criminal organization in Brazil[;]
(2) Brazilian citizens who are targeted by a criminal organization in Brazil
and cannot get protection from the Brazilian government[;] (3) Brazilian
citizens who are victims of a criminal organization in Brazil[;] (4) Brazilian

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found only one—“family members of Genivaldo Pereira Pimenta”—to be legally
cognizable. AR 70. However, even assuming that Petitioners’ family is a cognizable
PSG, substantial evidence supports the BIA’s conclusion that the purported persecution
was not “on account of” family affiliation because Joao threatened Petitioners’ family as
an incidental means to a non-protected end: collecting a debt.6 See, e.g., Gonzalez-
Posadas, 781 F.3d at 685 (“Conflicts of a personal nature and isolated criminal acts do
not constitute persecution on account of a protected characteristic.”); Shehu v. Att’y
Gen., 482 F.3d 652, 657 (3d Cir. 2007) (holding that petitioner did not face persecution
where he was targeted by a gang for economic reasons, rather than on account of any
protected ground); see also Garcia-Aranda v. Garland, 53 F.4th 752, 758 (2d Cir. 2022)
citizens who are victims of a criminal organization in Brazil and cannot get
protection from the Brazilian government[;] (5) Brazilian citizens who were
threatened at gunpoint by a criminal organization in Brazil[;] (6) Brazilian
citizens who are threatened at gunpoint by a criminal organization in Brazil
and are unable to get protection from the Brazilian government[;] (7)
Brazilian citizens who are threatened to death with a gun while in the United
States by a criminal organization from Brazil[;] and (8) family members of
Genivaldo Pereira Pimenta.
Pet’rs’ Br. at 12. We agree with the BIA that these proposed PSGs are not legally
cognizable because “a social group cannot be created by the alleged underlying
persecution” and “must exist independently of the persecution suffered by the applicant
for asylum.” See Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003).
Before the IJ and BIA, Petitioners also argued that their persecution was on
account of a political opinion they ostensibly held, but they waived this argument by
failing to advance it in their brief before this Court. See Travitz v. Ne. Dep’t ILGWU
Health & Welfare Fund, 13 F.3d 704, 711 (3d Cir. 1994) (“When an issue is not pursued
in the argument section of the brief, the appellant has abandoned and waived that issue on
appeal.”).
6 The fact that Petitioners’ family members continue to live in Brazil without
apparent incident provides further support for the conclusion that Joao and his affiliates
have no particular animus towards the family.

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(upholding agency’s finding of no nexus between persecution and protected status where
petitioner was targeted for extortion based on “her perceived ability to pay” and where
“animus towards [her family] was at most an incidental reason for her targeting”).
Accordingly, their asylum and withholding claims fail.7
B
Petitioners’ request for CAT relief also fails. To obtain CAT relief, Petitioners
must show “that it is more likely than not that [they] would be tortured if removed” to
Brazil. Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017) (quoting 8 C.F.R.
§ 1208.16(c)(2)). Under the CAT, torture is defined as:
(1) an act causing severe physical or mental pain or suffering;
(2) intentionally inflicted; (3) for an illicit or proscribed purpose; (4) by or at
the instigation of or with the consent or acquiescence of a public official who
has custody or physical control of the victim; and (5) not arising from lawful
sanctions.
Id. (quoting Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005)). “[A]ssessing whether
an applicant has established that public officials will acquiesce to the feared tortuous acts
of a non-state actor” requires “a factual finding . . . as to how public officials will likely
act in response to the harm the petitioner fears” and a legal determination as to “whether
the likely response from public officials qualifies as acquiescence,” id. at 516, or
“willful[] blind[ness],” id. (quoting Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 65 (3d Cir.
2007), as amended (Mar. 6, 2007)).
7 See Ying Chen v. Att’y Gen., 676 F.3d 112, 117 (3d Cir. 2011) (noting that a
petitioner’s failure to establish an asylum claim necessarily implies a failure to establish a
withholding claim).

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Substantial evidence supports the IJ’s finding that, although the “country
conditions evidence suggests corruption within the Brazilian government and law
enforcement exists,”8 Petitioners failed to make any particularized showing that the
“Brazilian government would acquiesce or be willfully blind to Joao[’s conduct].” AR
76. A general showing that Brazil struggles with corruption does not provide a basis for
CAT relief where there is no evidence Brazilian authorities would acquiesce to Joao’s
specific conduct toward Petitioners. See, e.g., Valdiviezo-Galdamez v. Att’y Gen., 663
F.3d 582, 592 (3d Cir. 2011) (explaining that even widespread human rights violations
are insufficient to establish a particular person will be in danger of torture absent specific
evidence that the petitioner would personally be at risk); Amanfi v. Ashcroft, 328 F.3d
719, 726 (3d Cir. 2003) (upholding the agency’s denial of CAT protection where
petitioner failed to prove that officials would be aware of feared private conduct and
“breach [their] legal responsibility to intervene” (quoting 8 C.F.R. § 208.18(a)(7))).
Accordingly, Petitioners’ requests for CAT relief fail.
III
For the foregoing reasons, we will deny the petition.
8 See, e.g., AR 103 (noting that “[t]he government prosecute[s] officials who
commit[] abuses or engage[] in corruption”); 118 (“The law provides criminal penalties
for convictions of corruption by officials . . . .”).

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