Elaine Da Silva-Queiroga v. PAMELA J. BONDI, Attorney General

United States Court of Appeals
For the First Circuit
No. 25-1137
ELAINE DA SILVA-QUEIROGA,
Petitioner,
v.
PAMELA J. BONDI,
Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Lynch, and Howard,
Circuit Judges.
Rachel L. Rado, Elizabeth Shaw, and Law Offices of Rachel L.
Rado, LLC, on brief for petitioner.
C. Frederick Sheffield, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Brett A. Shumate,
Assistant Attorney General, Civil Division, and Erica B. Mile,
Assistant Director, Office of Immigration Litigation, on brief for
respondent.
February 27, 2026

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HOWARD, Circuit Judge. Elaine Da Silva-Queiroga ("Da
Silva") petitions for review of an order of the Board of
Immigration Appeals ("BIA"). The BIA affirmed the denial by an
Immigration Judge ("IJ") of Da Silva's applications for asylum,
withholding of removal, and protection under the U.S.
implementation of the Convention Against Torture ("CAT"). Because
we do not disturb the determination of the IJ and BIA (together,
the "agency") that Da Silva failed to demonstrate persecution, and
because such a demonstration is an essential element of any asylum
claim, we deny the petition.1
I. BACKGROUND
In 2021, Da Silva left her native Brazil and entered the
United States. She was apprehended by U.S. Customs and Border
Protection and charged with removability under Section
212(a)(6)(A)(i) of the Immigration and Nationality Act. Da Silva
applied for relief in the forms of asylum, withholding of removal,
and protection under the CAT. She supported her application with
a written affidavit and with testimony (offered through an
interpreter) that the IJ found to be generally credible. We
summarize relevant aspects of this testimony below.
1 As discussed below, Da Silva has abandoned any argument
related to withholding of removal or CAT protection.

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A. Da Silva's Life in Brazil
Around 2010, when Da Silva was fourteen years old, she
met a man named Lucas De Oliveira Custodio. The pair moved in
together two years later when Da Silva became pregnant, and their
son was born in November 2013.
From that point onwards, De Oliveira began a pattern of
"aggressions" toward Da Silva that were "psychological and
physical[]" in nature. Da Silva recounted two instances of
physical aggression in her affidavit and testimony before the IJ.
First, in 2014, De Oliveira "wanted to throw a chair" at
Da Silva while he was drunk and under the influence of drugs. De
Oliveira's brother intervened and protected Da Silva from harm.
The second incident took place about four months after the first.2
2 Despite finding Da Silva's testimony to be generally
credible, the IJ noted that "[t]here is an inconsistency in her
testimony regarding when the second instance of physical harm
occurred." The basis for this observation is Da Silva's testimony
that she separated from De Oliveira soon after ("within months"
of) the second incident, and also that the separation took place
when she was twenty years old. But Da Silva wrote in her supporting
affidavit that the second incident took place only four months
after the first incident, which took place around 2014 -- when Da
Silva would have been seventeen or eighteen years old. Da Silva
also wrote that she began living in Resplendor, Brazil (away from
De Oliveira) in 2016, but testified that the move occurred "in
2018 or 2019 if I'm not mistaken."
Da Silva gave the following explanation when counsel for the
Department of Homeland Security ("DHS") raised the timeline
discrepancy: "A lot of things have happened. I don't remember
everything. If sometimes things don't match -- don't mesh is

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Da Silva locked an intoxicated De Oliveira out of their house -- in
which their son was sleeping -- and called the police for help.
After getting no response from the police, Da Silva unlocked the
gate and let De Oliveira in. De Oliveira then jumped on Da Silva,
grabbed her by the neck and warned her "never to lock him out
again." De Oliveira's brother intervened after hearing the
disturbance from downstairs, seemingly repeating his conduct from
the first incident with the chair.3
Da Silva separated from De Oliveira after the second
incident and moved about twenty minutes away to Resplendor,
Brazil.4 De Oliveira's attempts to physically harm Da Silva ceased
because it's been a while and I apologize if I don't know the exact
dates but everything happened as I described."
The BIA, meanwhile, appears to have adopted a version of
events in which the two incidents took place within four months of
each other in 2014, and Da Silva separated from De Oliveira in
2016.
3 According to the Government, this repetition suggests that
Da Silva conflated the first incident with the second. But DHS
counsel did not raise the issue during the hearing, and neither
the IJ nor the BIA referenced it in their respective opinions.
4 Da Silva testified that she and De Oliveira share custody
of their son, but that no existing document formalizes that
arrangement. When she left Brazil for the United States, Da Silva
left her son in her sister's care, whereupon De Oliveira "went
over there" and "took the child." Da Silva is also the mother of
three children of whom De Oliveira is not the father: two were
born in Brazil and lived there as of Da Silva's asylum application,
and one was born in (and is a citizen and resident of) the United
States.

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at that point, but he continued to "bother" her with calls and
messages -- telling Da Silva that she (in Da Silva's words) "would
not live if I did not live with him," and that she "would never
see [her] son again." On one occasion, De Oliveira jumped over Da
Silva's fence in Resplendor and knocked on her window.
In response to this ongoing conduct by De Oliveira, Da
Silva left Brazil for the United States in 2021. Da Silva stated
at her removal hearing that De Oliveira's conduct is the sole
reason why she fears returning to Brazil.
B. Decisions of the IJ and BIA
The IJ denied Da Silva's applications for asylum and
withholding of removal on the ground that she failed to demonstrate
either past persecution or a well-founded fear of future
persecution. The IJ also determined that Da Silva is ineligible
for CAT protection because "any harm that the respondent
experienced does not rise to the level of torture . . . ."5
The BIA affirmed the IJ's denial of Da Silva's
applications on the same grounds, observing that Da Silva "has not
demonstrated that the physical harm she suffered from her
ex-partner was sufficiently frequent and severe to constitute
persecution." The BIA noted Da Silva's "testimony that she was
5 Although Da Silva is now the petitioner, she was the
respondent in the agency proceedings.

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physically harmed on only two occasions over the course of a 4-year
relationship and did not seek medical treatment or experience any
serious or long-lasting injuries following either incident." The
BIA also concluded -- reaching an issue that the IJ did not -- that
Da Silva's proposed "particular social groups" of "Brazilian
women," "Brazilian women unable to leave a domestic partnership,"
and "Brazilian women lacking effective governmental protection"
were too amorphous to support her asylum and withholding claims.
See 8 U.S.C. § 1101(a)(42)(A).
This petition followed.
II. DISCUSSION
Da Silva argues in her petition that the agency erred in
concluding that she did not establish past persecution or a
well-founded fear of future persecution.
Da Silva also raises arguments that, for the reasons
explained below, we do not address in this opinion: She argues
that the agency erred in determining that her proposed particular
social groups were not cognizable, and that the agency erroneously
failed to address her arguments related to (1) the possibility of
relocation within Brazil and (2) humanitarian asylum.
A. Standard of Review
"[W]here, as here, the BIA accepts the IJ's findings and
reasoning yet adds its own gloss, we review the two decisions as

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a unit." Xian Tong Dong v. Holder, 696 F.3d 121, 123 (1st Cir.
2012). "In immigration cases, our review typically focuses on the
final decision of the BIA." Rosa v. Garland, 114 F.4th 1, 8 (1st
Cir. 2024) (internal quotation marks and citations omitted).
Although we review the agency's legal conclusions de
novo, see Fleurimond v. Bondi, 157 F.4th 1, 5 & n.1 (1st Cir.
2025), we review its findings of fact under a substantial-evidence
standard, see Hernandez-Mendez v. Garland, 86 F.4th 482, 486 (1st
Cir. 2023). Under this standard, "we must accept the findings as
long as they are supported by reasonable, substantial and probative
evidence on the record considered as a whole," and "we will only
disturb the agency's findings if . . . any reasonable adjudicator
would be compelled to conclude to the contrary." Urias-Orellana
v. Garland, 121 F.4th 327, 335 (1st Cir. 2024) (internal quotation
marks, citations, and alterations omitted), cert. granted sub nom.
Urias-Orellana v. Bondi, 145 S. Ct. 2842 (2025).
B. Asylum
An applicant is not eligible for asylum unless she
establishes that she is a refugee. 8 U.S.C. § 1158(b)(1). As
relevant here, a "refugee" is someone "who is unable or unwilling
to return to . . . [her] country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion." Id. § 1101(a)(42)(A). An applicant "'can meet this

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burden through proof of past persecution, which creates a
rebuttable presumption of a well-founded fear of future
persecution[,]' or by demonstrating 'a well-founded fear of
persecution through an offer of specific proof that [her] fear is
both subjectively genuine and objectively reasonable.'" Chen v.
Lynch, 814 F.3d 40, 45 (1st Cir. 2016) (quoting Singh v. Holder,
750 F.3d 84, 86 (1st Cir. 2014)). "To constitute
persecution, . . . harm 'must rise above unpleasantness,
harassment, and even basic suffering.'" Cano-Gutierrez v. Bondi,
146 F.4th 26, 32 (1st Cir. 2025) (quoting Villafranca v. Lynch,
797 F.3d 91, 95 (1st Cir. 2015)).
Under this standard, the agency correctly determined
that Da Silva did not carry her burden of establishing that she
(1) experienced past persecution or (2) has a well-founded fear of
future persecution upon removal to Brazil.
1. Past Persecution
Da Silva argues that she suffered persecution in Brazil
when "she was physically harmed on multiple occasions and
threatened with death, where her perpetrator had the immediate
ability to act on his threats." She also highlights the fact that
she was only sixteen years old when De Oliveira began mistreating
her, and argues that the agency should have considered her young
age in determining whether she was persecuted. See Ordonez-Quino
v. Holder, 760 F.3d 80, 91 (1st Cir. 2014) ("[A]ge can be a critical

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factor in determining whether a petitioner's experiences cross
this [persecution] threshold." (internal quotation marks and
citation omitted)).
We cannot conclude that the agency erred in determining
that De Oliveira's treatment of Da Silva does not qualify as past
persecution under § 1101(a)(42)(A). The record supports the
agency's observations that Da Silva recounted at most two instances
of De Oliveira's physical aggression toward her. The record also
supports the agency's finding that none of this aggression resulted
in lasting injury or a need for immediate medical treatment. These
findings support a conclusion that Da Silva was not persecuted
under the meaning of the statute. "[T]he severity and frequency
of the harassment identified by the applicant are intertwined
factors that bear on 'the nature and extent of an applicant's
injuries . . . .'" Martínez-Pérez v. Sessions, 897 F.3d 33, 40
(1st Cir. 2018) (quoting Vasili v. Holder, 732 F.3d 83, 89 (1st
Cir. 2013)).
Our cases confirm that the agency did not err in applying
this principle to the circumstances of Da Silva's case. In
Ramos-Hernandez v. Bondi, we sustained the agency's determination
of no past persecution where "the evidence consist[ed] of two to
three relatively vague threats and one physical attack that may or
may not have been connected to those threats," and cited instances
of "even more severe situations [that] did not constitute

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persecution." 163 F.4th 44, 53 (1st Cir. 2025). In Vargas-Salazar
v. Garland, we sustained the agency's denial of relief on
no-persecution grounds even where the petitioner alleged that gang
members made death threats and delivered an injury to his head
that required stitches and left a permanent scar. See 119 F.4th
167, 170-71 (1st Cir. 2024). And in Martínez-Pérez, we held that
"three incidents" offered "as evidence of past persecution -- the
single death threat and bottle-throw from Charlie, and the home
invasion by an unknown assailant -- while undoubtedly scary, do
not compel us to find they were serious enough to constitute
persecution." 897 F.3d at 40.
We are not persuaded by Da Silva's argument that her
young age at the time that De Oliveira mistreated her compels a
determination of past persecution. Contrary to the argument to us
the BIA expressly considered the matter of Da Silva's age -- even
citing Ordonez-Quino -- and concluded that the IJ "reasonably
determined that the respondent did not suffer harm rising to the
level of persecution, given that the respondent's physical harm
was isolated in nature and did not result in serious injuries, and
the threats she received from her ex-partner were unfulfilled and
not specific." Da Silva does not engage with this part of the
BIA's analysis beyond offering her own citation to Ordonez-Quino
and reciting that case's holding on the age of a victim.

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2. Well-Founded Fear of Future Persecution
Substantial evidence also supports the agency's
determination that Da Silva did not establish a well-founded fear
of future persecution in Brazil. Because Da Silva did not
adequately show past persecution, she was required to
"independently demonstrate a well-founded fear of future
persecution that is 'both subjectively genuine and objectively
reasonable.'" Esteban-Garcia v. Garland, 94 F.4th 186, 191 (1st
Cir. 2024) (quoting Sunarto Ang v. Holder, 723 F.3d 6, 10-11 (1st
Cir. 2013)). Da Silva did not do so, and that bars her eligibility
for relief.
The BIA rested its determination on two observations.
First, that Da Silva "remained in Brazil for roughly 5 years
following her last incident of physical harm without experiencing
any further physical harm from her ex-partner." And second, that
"while [Da Silva] testified that she has received threatening
messages from her ex-partner as recently as 2023, she also
testified that she does not necessarily fear any direct harm from
her ex-partner upon return to Brazil."
These observations find support in the record. On
cross-examination, DHS counsel asked Da Silva, "in the approximate
five-year period after your breakup from Lucas, while you lived in
Brazil, did he harm you -- physically harm you in any way during
the time when -- in which you lived there?" Da Silva responded,

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"[p]hysically, no." And on redirect, when asked to explain her
fear of future harm at the hands of De Oliveira, Da Silva responded
as follows:
He's never accepted the breakup; the
separation and he's told me over and over that
if I didn't stay with him -- wouldn't stay
with him I wouldn't be able to stay with
anybody else. I don't fear as much that he
will harm me or do something to me per se but
I fear that he could harm me or do things that
would affect me by hurting or harming my
children.
These statements -- and a corresponding lack of
countervailing evidence -- formed an adequate basis for the
agency's finding of no well-founded fear of future persecution.
As respondent notes, the passage of about five years
between the last incident of physical harm and Da Silva's departure
for the United States undercuts her assertion of a well-founded
fear of persecution upon return. Even "[t]he ability to
live . . . in the country for two years without incident weakens
[a claim of] alleged fear of future persecution." Phal v. Mukasey,
524 F.3d 85, 90 (1st Cir. 2008) (emphasis added); see also
Ramos-Hernandez, 163 F.4th at 53 ("Given that the petitioners
closed their store and remained in Guatemala for approximately two
years after receiving the threats with no further incidents, they
have not presented credible, direct, and specific evidence
supporting a fear of individualized future persecution.").

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It is also significant that Da Silva disclaimed a
specific fear that De Oliveira might harm her upon her return to
Brazil. Her burden was to "demonstrat[e] a 'well-founded fear of
future persecution through an offer of specific proof.'"
Cano-Gutierrez, 146 F.4th at 32 (emphasis added) (quoting
Montoya-Lopez v. Garland, 80 F.4th 71, 80 (1st Cir. 2023)). Da
Silva stated that she does not fear for her own safety, and offered
no "specific proof" to support her fear of the harm that might
befall her children. At the very least, then, the record does not
"compel a reasonable factfinder to reach a contrary conclusion" to
the agency's. Dorce v. Garland, 50 F.4th 207, 212 (1st Cir. 2022)
(emphasis in original) (internal quotation marks and citation
omitted).
3. Particular Social Groups and Relocation
Da Silva argues that the agency committed two further
legal errors when it evaluated her asylum claim. First, she argues
that the agency improperly concluded that her proposed "particular
social groups" are not cognizable. Second, she argues that the
BIA erroneously ignored her challenge to the IJ's finding that
relocation within Brazil was a viable option, and thus an
alternative bar to asylum.
We have no occasion to reach these arguments. A showing
of persecution is a necessary element of an asylum claim. See 8
U.S.C. § 1101(a)(42)(A); see also De La Cruz-Quispe v. Bondi, 161

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F.4th 17, 24 n.4 (1st Cir. 2025) ("Because the nexus determination
is dispositive, we need not address De La Cruz's remaining
arguments as to asylum."); Carvalho-Frois v. Holder, 667 F.3d 69,
73 (1st Cir. 2012) ("An inability to establish any one of the three
elements of persecution will result in a denial of [an] asylum
application."). Because the agency supportably concluded that Da
Silva failed to make this showing, Da Silva is ineligible for
asylum even if she can establish both (1) membership in a
cognizable particular social group and (2) the impossibility of
relocating within Brazil. Any error the agency may have committed
on these points, and we don't suggest that there was error, is
therefore harmless. See Cruz v. Garland, 106 F.4th 141, 146–47
(1st Cir. 2024).
C. Other Forms of Relief
No other form of relief is available to Da Silva on
account of her petition for review.
1. Humanitarian Asylum
Da Silva argues that the agency ought to have granted
her humanitarian asylum, which is a discretionary form of relief
that may issue upon a showing of "past persecution so severe that
repatriation would be inhumane." Ordonez-Quino, 760 F.3d at 94
(internal quotation marks and citation omitted). This argument is
unavailing. Humanitarian asylum is "a last-resort form of relief
that is difficult to obtain and rarely granted." Precetaj v.

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Holder, 649 F.3d 72, 78 (1st Cir. 2011). Da Silva is categorically
ineligible for it here because she has not demonstrated
persecution. See 8 C.F.R. § 1208.13(b)(1)(iii); see also
Martínez-Pérez, 897 F.3d at 42 ("Having failed to show past (or
any) persecution, subsection (b)(1)(iii) does not apply to
Martínez-Pérez, and thus this argument fails.").
2. Withholding of Removal and CAT Protection
Nor has Da Silva demonstrated her entitlement to either
withholding of removal or protection under the CAT. The "Statement
of the Issues" in her opening brief refers to an issue of
"[w]hether the Agency erred in finding that the Respondent is not
eligible for withholding of removal or protection under the
Convention Against Torture." But the brief makes no further
reference to either form of relief, and Da Silva has thus abandoned
any argument on the issue. See Alvarado-Reyes v. Garland, 118
F.4th 462, 475 (1st Cir. 2024).6
III. CONCLUSION
The petition for review is denied.
6 We also note that where a petitioner "fail[s] to carry his
asylum burden, he also fail[s] to carry his withholding burden."
Id. at 474.

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