Establishing Persecution and Acquiescence Standards in Asylum and CAT Claims: Nascimento v. AG

1. Introduction

Case Name: Vandecarlos Ferreira do Nascimento, et al. v. Attorney General of the United States of America
Court: United States Court of Appeals for the Third Circuit
Docket No.: 24-1788
Decision Date: April 7, 2025
Procedural Posture: Petition for review of a final removal order by the Board of Immigration Appeals (BIA), which affirmed the Immigration Judge’s (IJ’s) denial of asylum, withholding of removal, and relief under the Convention Against Torture (CAT).

Background: Petitioner Vandecarlos Ferreira do Nascimento (“Ferreira”), his spouse, and their minor children fled Brazil in mid-2021 after Ferreira was physically assaulted and threatened by a political opponent. He sought asylum, withholding of removal, and CAT protection, claiming past persecution and a well-founded fear of future harm if returned. The IJ denied relief, the BIA affirmed, and Ferreira appealed.

Key Issues:

1. Whether the harm Ferreira suffered—punching, threats, and menacing gestures—“rose to the level of persecution” under the asylum statute.
2. Whether he established a well-founded fear of future persecution on account of his political opinion.
3. Whether he met the more stringent “more likely than not” standard for withholding of removal.
4. Whether he satisfied the Myrie two-step test for CAT relief, including government “acquiescence” to torture.

2. Summary of the Judgment

The Third Circuit denied Ferreira’s petition for review in all respects:

• Asylum: The court held that a single punch, vague threats, and intermittent pointing did not constitute “past persecution” on account of political opinion. It also found no well-founded fear of future persecution: Ferreira remained in his hometown for eight more months without further incident, and he produced no corroborating evidence of ongoing threats or harm.
• Withholding of Removal: Because Ferreira failed the lower asylum standard, he necessarily failed the higher “more likely than not” standard for withholding of removal.
• CAT Relief: Applying Myrie v. Attorney General (855 F.3d 509), the court found that Ferreira did not show it was more likely than not he would be tortured and that public officials would acquiesce. Routine police investigations did not amount to government acquiescence in torture.

3. Analysis

3.1 Precedents Cited

• Voci v. Gonzales, 409 F.3d 607 (3d Cir. 2005): Defined the elements of asylum—past persecution or well-founded fear of future persecution on account of a protected ground.
• Saravia v. Attorney General, 905 F.3d 729 (3d Cir. 2018): Clarified standards of appellate review (deferential for facts under the substantial evidence standard; de novo for legal questions) and the requirement that the BIA’s decision be reasoned.
• Sunuwar v. Attorney General, 989 F.3d 239 (3d Cir. 2021): Reaffirmed the highly deferential “substantial evidence” standard for factual findings in immigration proceedings.
• Gomez-Zuluaga v. Attorney General, 527 F.3d 330 (3d Cir. 2008): Explained that withholding of removal requires proof that persecution is “more likely than not” to occur, a more stringent standard than asylum.
• Hernandez Garmendia v. Attorney General, 28 F.4th 476 (3d Cir. 2022): Set forth the standard for CAT relief—requiring “more likely than not” torture and acquiescence by state actors.
• Myrie v. Attorney General, 855 F.3d 509 (3d Cir. 2017): Established a two-step framework for CAT claims: (1) likelihood of torture; (2) government acquiescence.
• Kibinda v. Attorney General, 477 F.3d 113 (3d Cir. 2007): Held that limited detention and minor injury did not amount to persecution.
• Galeas Figueroa v. Attorney General, 998 F.3d 77 (3d Cir. 2021): Confirmed that ordinary police investigations do not constitute acquiescence to torture.

3.2 Legal Reasoning

Persecution Analysis: Under Voci, an applicant must show (1) harm rising to the level of persecution; (2) on account of a protected ground; (3) by actors the government cannot or will not control. The court upheld the BIA’s finding that Ferreira’s single punch and generalized threats, even when aggregated with non-violent menacing gestures, fell short of “persecution”—a threshold requiring more severe, repeated, or targeted actions.

Well-Founded Fear: The BIA’s reliance on Ferreira’s eight-month, incident-free residence in the same town undermined the notion that a reasonable person would fear future persecution. His testimony regarding his assailant’s alleged power as a drug dealer lacked corroboration.

Withholding of Removal: Having failed asylum, Ferreira could not meet the “more likely than not” standard required for withholding of removal (Gomez-Zuluaga).

CAT Relief and Myrie Framework: The court confirmed that:

1. Ferreira did not show that torture was more likely than not on return; his past harm was below the CAT threshold.
2. He failed to demonstrate government acquiescence. As in Galeas Figueroa, routine law enforcement response—taking a report and investigating—does not equate to consent or acquiescence in torture.

3.3 Impact

This decision reinforces and clarifies several important principles for immigration practitioners and adjudicators:

• Incidents of isolated violence and vague threats, without pattern or severity, will generally not qualify as persecution.
• Long-term residence in the same locale without additional harm weakens a claimed well-founded fear of future persecution.
• The Myrie two-step CAT test is mandatory; asylum applicants must address both the likelihood of torture and government acquiescence.
• Routine or even inadequate police responses do not constitute state acquiescence in torture.

Future claims will likely confront this rigorous framework, emphasizing objective evidence, corroboration, and case-specific analysis of harm and government control.

4. Complex Concepts Simplified

• Asylum vs. Withholding of Removal: Asylum requires proof of past persecution or a “well-founded fear” of future persecution—a lower threshold. Withholding of removal demands showing that persecution is “more likely than not.”
• Protected Grounds: Race, religion, nationality, political opinion, or membership in a particular social group. Ferreira alleged political opinion but did not link the harm adequately to it.
• Persecution: Severe harm or threats on account of a protected ground. Courts look for repeated, targeted, or life-threatening acts.
• Convention Against Torture (CAT) Relief: Requires showing (1) more likely than not one will be tortured, and (2) government agents will consent to or willfully ignore the torture.
• Substantial Evidence Standard: Courts defer to the agency’s factual findings unless no reasonable adjudicator could reach the same conclusion.

5. Conclusion

Nascimento v. Attorney General sharply delineates the threshold for persecution in asylum and withholding claims and underscores the exacting standards for CAT protection. Isolated incidents of violence—even when politically motivated—must be sufficiently severe, frequent, or systemic to qualify as persecution. Likewise, routine state responses do not amount to acquiescence in torture. This decision provides a clear, structured roadmap for adjudicating future claims and reinforces the principle that both factual depth and legal precision are essential to prevail in asylum and CAT proceedings.