Himilce R. Barroeta Villavicencio v. US Atty Gen ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13135 ELEVENTH CIRCUIT
APRIL 22, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A98-858-349
HIMILCE ROSA BARROETA VILLAVICENCIO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 22, 2009)
Before TJOFLAT, DUBINA and ANDERSON, Circuit Judges.
PER CURIAM:
Himilce R. Barroeta Villavicencio petitions for review of the Bureau of
Immigration Appeals’s (“BIA’s”) decision affirming the Immigration Judge’s
(“IJ’s”) order finding her removable and denying her application for withholding
of removal.
As an initial matter, when an applicant fails to offer argument on an issue,
that issue is abandoned. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2
(11th Cir. 2005). In her brief, Villavicencio fails to offer argument on her claims
of asylum and CAT relief. Accordingly, she has abandoned these issues, and we
will address only her claim for withholding of removal relief under the INA.
I. Credibility of Villavicencio’s Testimony
Villavicencio argues that the IJ failed to make an express credibility finding
and, as a result, we may assume that any credibility determinations made by the IJ
were not dispositive. She also notes that the BIA failed to address the IJ’s failure
to make an express credibility finding. She asserts that the IJ implicitly made a
favorable credibility finding and argues that, because her testimony was consistent
with her asylum application and supplements, and was internally consistent and
plausible, this favorable credibility finding is entitled to great weight.
When considering a petition to review a BIA final order, we review legal
issues de novo. Hernandez v. U.S. Att’y Gen., 513 F.3d 1336, 1339 (11th Cir.
2008). The BIA’s factual findings are reviewed under the substantial evidence test.
2
Al Najjar v. Ashcroft, 257 F.3d 1262, 1283 (11th Cir. 2001). Under this test, we
must affirm the BIA’s decision if it is “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Id. at 1284. “To reverse
a factual finding by the BIA, we must find not only that the evidence supports a
contrary conclusion, but that it compels one.” Farquharson v. U.S. Att’y Gen., 246
F.3d 1317, 1320 (11th Cir. 2001). We review only the BIA’s decision, except to
the extent the BIA expressly adopts the IJ’s opinion or reasoning. Al Najjar, 257
F.3d at 1284. Here, the BIA did not expressly adopt the IJ’s order, so we review
only the BIA’s order.
We review credibility determinations under the substantial evidence test.
Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230-31 (11th Cir. 2006). “The trier of
fact must determine credibility, and [we] may not substitute [our] judgment for that
of the BIA with respect to credibility findings.” D-Muhumed v. U.S. Att’y Gen.,
388 F.3d 814, 818 (11th Cir. 2004). In fact, we will reverse the IJ’s credibility
findings “only if the evidence compels a reasonable fact finder to find otherwise.”
Chen, 463 F.3d at 1231 (internal quotations omitted). The BIA must make “clean
determinations of credibility,” and, to be considered an adverse credibility
determination, the fact finder must state explicitly that the applicant’s testimony
was not credible. Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005)
(holding that the IJ failed to make an explicit credibility determination, despite her
3
statements that the petitioner’s claims were a “ridiculous fabrication” and were
“extremely inconsistent and [made] absolutely no sense whatsoever.”). If the BIA
fails to make an explicit adverse credibility determination, we accept the
petitioner’s testimony as credible. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1257
(11th Cir. 2007).
Because the BIA, in its order, did not make an explicit credibility
determination, we accept Villavicencio’s testimony as credible. See id.II. Villavicencio’s Withholding of Removal Claim
Villavicencio argues that the kidnaping incident about which she testified
establishes that she suffered past persecution, because her life was threatened and
she was kidnaped at gunpoint. She argues that the BIA erred by requiring a
showing of physical harm, and that the BIA should have considered the cumulative
effect of the kidnaping, death threats, home invasion, and murder of her cousin.
She asserts that because she was persecuted by the Venezuelan State, it is
unreasonable to assume that she could safely relocate to another area of the
country. She also points out that although she was unharmed when she visited her
parents between the summer of 1999 and the summer of 2002, when she returned
to Venezuela to attempt to resume her life there, her parents’ home was invaded,
and death threats were left only four months after her arrival.
4
Under the INA, an alien shall not be removed to her country of origin if her
life or freedom would be threatened in that country on account of race, religion,
nationality, membership in a particular social group, or political opinion. INA
§ 241(b)(3), 8 U.S.C. § 1231(b)(3). “The alien bears the burden of demonstrating
that it is more likely than not that she will be persecuted or tortured upon being
returned to her country. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th
Cir. 2005) (internal quotations omitted). An alien may satisfy her burden of proof
in two ways. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006).
“First, an alien may establish ‘past persecution in [her] country based on a
protected ground.’” Id. Second, “[a]n alien who has not shown past
persecution . . . may still be entitled to withholding of removal if [s]he can
demonstrate a future threat to [her] life or freedom on a protected ground in [her]
country.” Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437 (11th Cir. 2004).
If the petitioner establishes past persecution, it is presumed that her life or
freedom would be threatened upon a return to that country unless the government
shows by a preponderance of the evidence that, among other things, the country’s
conditions have changed such that the applicant’s life or freedom would no longer
be threatened upon her deportation or removal. 8 C.F.R. § 208.16(b); Tan, 446
F.3d at 1375. “The regulations are clear that where an applicant has established
past persecution,” the burden of establishing changed conditions or the possibility
5
of internal relocation “lies with the [DHS].” Antipova v. U.S. Att’y Gen., 392 F.3d
1259, 1264 (11th Cir. 2004).
Neither the INA nor the regulations define “persecution,” but we have
indicated that “persecution is an extreme concept, requiring more than a few
isolated incidents of verbal harassment or intimidation . . . mere harassment does
not amount to persecution.” Sepulveda, 401 F.3d at 1231 (internal quotations
omitted). “Not all exceptional treatment is persecution.” Gonzalez v. Reno, 212
F.3d 1338, 1355 (11th Cir. 2000). For example, menacing telephone threats do not
rise to the level of past persecution. Sepulveda, 401 F.3d at 1231. Furthermore, a
five-day detention during which an alien is not harmed, and the inability to find
employment do not compel a finding of past persecution. Zheng v. U.S. Att’y
Gen., 451 F.3d 1287, 1290 (11th Cir. 2006), cert. denied, 549 U.S. 1166 (2007).
On the other hand, “intentionally being shot at in a moving car multiple times”
constitutes past persecution, regardless of whether the attack is successful.
Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1233 (11th Cir. 2007).
Credible testimony of the applicant “may be sufficient to sustain the
applicant’s burden without corroboration, but only if the applicant satisfies the trier
of fact that the applicant’s testimony is credible, is persuasive, and refers to
specific facts sufficient to demonstrate that the applicant is a refugee.” INA
§ 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii); D-Muhumed, 388 F.3d at 818-19.
6
“The weaker an applicant’s testimony, however, the greater the need for
corroborative evidence.” Yang, 418 F.3d at 1201.
Villavicencio bases her claims of past persecution on the following
incidents: (1) her kidnaping in early 1999, (2) her cousin’s 2006 murder,
perpetrated by a member of the Bolivarian Circle, (3) the 2002 invasion of her
parents’ home, and the threatening letter left behind, (4) having stones thrown at
her and other PV volunteers, (5) her brother’s forced resignation and continued
inability to find work, and (6) the threatening calls she received as recently as a
year ago.
As an initial matter, the murder of Villavicencio’s cousin and her brother’s
resignation do not establish that Villavicencio suffered past persecution, because
there is no evidence that Villavicencio herself was targeted or persecuted.
Similarly, the 2002 invasion of her parents’ home does not establish past
persecution, because Villavicencio testified that the break-in was likely a result of
her brother’s political activities since her brother, at the time, was “part of the
opposition part of the government that was the strongest opposition against the
government.” Thus, the break-in could not be attributed to Villavicencio’s own
political opinions. See INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812,
816, 117 L.Ed.2d 38 (1992) (holding that the relevant inquiry is whether the
persecutor is acting because of the alien’s own political opinion). Furthermore, no
7
one was harmed in the break-in, and it is not clear from the testimony whether any
of Villivicencio’s family’s possessions were destroyed. Accordingly, there is not
enough evidence to establish that the break-in rose to the level of persecution. The
threatening phone calls Villavicencio received also fail to establish past
persecution, because verbal threats alone do not rise to the level of persecution.
See e.g. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1237 (11th Cir. 2006) (holding
that a death threat in the form of a “condolence note” indicating that the petitioner
should “rest in peace for doing what she shouldn’t be doing” constituted
harassment, but not persecution).
Villavicencio next points to the stone-throwing incident to support her
claims for withholding of removal. Villavicencio’s testimony and written
statements regarding the stone-throwing incident are very vague, and she does not
identify the individuals who threw the stones at her and her friends. Furthermore,
although she asserts that some of her friends were injured in the attack, she does
not offer any details regarding the extent of their injuries, or offer any
corroborating evidence. Thus, although this Court must accept her testimony as
credible, the testimony is too vague to establish that this incident rose to the level
of past persecution. See e.g. Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th
Cir. 2008) (holding that a “minor beating” and brief detention did not rise to the
level of persecution).
8
Finally, Villavicencio points to the 2001 kidnaping incident to support her
claim for withholding of removal. According to Villavicencio’s testimony, the
individual who kidnaped her in 2001 was a member of the Bolivarian Circle. She
testified that her kidnaper possessed a gun, threatened her life and the lives of her
family members, detained her for three hours, punched her, and warned her to
cease her political activities. This testimony establishes that there was a nexus
between the kidnaping and Villavicencio’s own political opinion. See Sanchez,
392 F.3d at 438 (holding that an applicant must show a nexus between her political
opinion and the alleged persecution to qualify for withholding of removal).
However, this incident does not rise to the level of persecution. Although
Villavicencio testified that the kidnaper had a gun and kept her in his car for three
hours, she was not severely injured and was eventually released without having to
escape. Furthermore, even though a showing of physical harm is not required, the
petitioner must still meet her burden by showing that the harm she experienced was
severe enough to rise to the level of persecution. See Sepulveda, 401 F.3d at 1231(holding that “persecution is an extreme concept, requiring more than a few
isolated incidents of verbal harassment or intimidation, and . . . mere harassment
does not amount to persecution.”). The cases in which this Court has found
kidnapings to constitute persecution have involved more serious circumstances
than those involved in Villavicencio’s case.
9
Villavicencio also argues that the incidents she experienced, viewed
cumulatively, establish that she suffered past persecution. In support of this
argument, she cites Ruiz v. U.S. Att’y Gen., 479 F.3d 762 (11th Cir. 2007).
Although this Court, in Ruiz, did view the petitioner’s past experiences
cumulatively in determining whether he suffered past persecution, the
circumstances in that case were much more severe, and the evidence presented by
the petitioner was much more compelling. See id. at 763-64, 766. In Ruiz, the
petitioner was severely beaten on several occasions and was held against his will
for 18 days, after which he escaped. Id. at 763-64. He later discovered that his
friend, who had been kidnaped with him, was found dead. Id. at 764. Ruiz also
presented a police report detailing his beating, medical reports documenting his
injuries, a letter certifying that he was an active member of the Liberal party, and
his friend’s death certificate. Id. at 764. Here, although Villavicencio presented a
letter certifying that she was an active member of La Causa Radical, she presented
no evidence to corroborate her claims of kidnaping. Although she testified that she
was too afraid to report her kidnaping to the police and did not require medical
attention, (other than that provided by her sister), she could have obtained
statements from her family or friends, or produced her letter of resignation, which
would have helped to verify her story.
10
Furthermore, even if Villavicencio did suffer past persecution, the
government presented evidence tending to show that Villavicencio could safely
relocate within Venezuela. See 8 C.F.R. § 208.16(b)(1)(i) (providing that a
petitioner fails to qualify for withholding or removal relief, even if she has
established past persecution, if the government presents evidence that a future
threat of persecution can be avoided via relocation). Villavicencio presented no
evidence that the individual who kidnaped her has attempted to contact her since
she left Caracas. Although Villavicencio testified that she did not believe that she
could live with her parents in Trujillo because she “could not just remain with [her]
hands tied like [her parents] are,” she admitted that her family had experienced no
persecution and were living in “tranquility” since moving to Trujillo.
Because Villavicencio has failed to establish that she suffered past
persecution, she is not entitled to withholding of removal relief, unless she can
show that she, more likely than not, would be persecuted upon returning to
Venezuela. See 8 C.F.R. § 208.16(b)(2). Villavicencio’s return visits to
Venezuela after the kidnaping incident, as well as Villavicencio’s testimony that
her family has not been harassed since moving to Trujillo, undercut her claims that
she fears future persecution. Accordingly, because Villavicencio has failed to
establish that she suffered past persecution or would, more likely than not, suffer
future persecution upon returning to Venezuela, she has failed to show that she is
11
entitled to withholding of removal relief, and we affirm the BIA’s denial of her
claim for withholding of removal.
AFFIRMED.
12