Jose Luis Contreras Rosales v. U.S. Attorney General , 522 F. App'x 477 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13751
Non-Argument Calendar
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Agency No. A088-799-454
JOSE LUIS CONTRERAS ROSALES,
BETSSY G. IBANEZ BARRIOS,
Petitioners,
versus
US ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 13, 2013)
Before BARKETT, MARCUS, and PRYOR, Circuit Judges.
PER CURIAM:
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Jose Contreras Rosales (“Contreras”) and Betssy Ibanez Barrios (“Ibanez”),
both natives and citizens of Venezuela, petition for review of the Board of
Immigration Appeals’ (“BIA”) final order dismissing the appeal of the
Immigration Judge’s (“IJ”) denial of their applications for withholding of removal
under the Immigration and Nationality Act (“INA”) § 241(b)(3), 8 U.S.C.
§ 1231(b)(3), and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 C.F.R.
§ 208.16(c).
After the Department of Homeland Security (“DHS”) issued Contreras and
Ibanez notices to appear alleging removability under INA § 237(a)(1)(B), 8 U.S.C.
§ 1227(a)(1)(B), Contreras and Ibanez conceded removability and filed separate
but substantially identical applications for withholding of removal and relief under
CAT. At the removal hearing, Contreras testified on behalf of himself and Ibanez.1
The IJ found that Contreras’s testimony was credible as far as it went, but
concluded that Contreras and Ibanez failed to provide sufficient evidence in
1
He testified that he is a member of the Democratic Action party, a political party in
Venezuela that is opposed to the current government. In 2002, he signed a petition seeking a
recall referendum against then-President Hugo Chavez, and in 2008, while living in the United
States, he signed a list of Venezuelans expressing opposition to the Chavez government. He
described numerous robberies, kidnappings, and other crimes that happened to various friends
and relatives. As to himself and Ibanez, he testified that in 2007 or 2008 a group attempted to
invade Contreras and Ibanez’s Venezuelan home before being turned away by neighbors and the
police, and that the Venezuelan Consul stated that Venezuelans who signed the 2008 list
expressing opposition to the government would not have their passports renewed.
2
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support of certain key facts necessary to establish eligibility for withholding of
removal. On appeal, the BIA agreed with the IJ. This appeal followed. 2
We review the decision of the BIA, as well as the decision of the IJ to the
extent that the BIA expressly adopted the opinion of the IJ. Ayala v. U.S. Att’y
Gen., 605 F.3d 941, 947-48 (11th Cir. 2010). We review factual determinations
under the substantial evidence test, which means “we must affirm the BIA’s
decision if it is supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1332
(11th Cir. 2010).
Under the INA, an alien shall not be removed to a country if her life or
freedom would be threatened in such 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). To qualify for withholding of removal, “[t]he
alien bears the burden of demonstrating that it is more likely than not 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) (quotation marks and citation
2
On appeal, Contreras and Ibanez argue that the IJ and BIA erred in requiring
corroborating evidence because Contreras’s testimony was found to be credible and, therefore,
sufficient to sustain their burden of proof. It is true that under the REAL ID Act, “[t]he
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 § 258(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii). However, here, the testimony
was insufficient to demonstrate that Contreras is a refugee.
3
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omitted). An applicant for withholding of removal may establish 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. (quotation marks and brackets omitted). Second, an alien who has
not shown past persecution “is entitled to withholding of removal if she establishes
that it is more likely than not that she would be persecuted on account of race,
religion, nationality, membership in a particular social group, or political opinion
upon removal to that country.” Id. (quotation marks and brackets omitted).
Here, Contreras and Ibanez’s claim regarding past persecution is predicated
on the Venezuelan Consul’s statement that those who signed against the
government, as Contreras and Ibanez allegedly did, would not have their passports
renewed. However, they failed to demonstrate that they were in fact unable to get
their passports renewed. The IJ asked Contreras directly whether he had tried to
renew his passport, and Contreras replied, “I’m going to, I’m going to try to go
tomorrow.”
As to a clear probability of future persecution, Contreras and Ibanez
provided evidence related to other people and no evidence directly related to
them. 3 They provided evidence of kidnappings, robberies, assaults, shootings, and
3
Contreras and Ibanez argue, for the first time on appeal, that they established a pattern
or practice of persecution of similarly situated individuals by showing that they are opponents of
the Chavez government and the Chavez government has persecuted its opponents. They failed to
4
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drunk driving accidents, which all fall under the umbrella of “criminal activity” or”
“private violence” that “does not constitute evidence of persecution based on a
statutorily protected ground.” See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258
(11th Cir. 2006). They presented no evidence suggesting that they would be
singled out for persecution, and they were not harassed in any way while in
Venezuela after signing the petition for the recall referendum in 2002. Contreras
stated that his brother lives in Venezuela and is on the Tascon List, but admitted
that his brother has never been harmed or threatened. There is no evidence that
Contreras and Ibanez are on the Tascon List other than Contreras’s uncorroborated
assumption that they are on the list because they signed the recall referendum
petition in 2002 and the list expressing opposition to the Venezuelan government
in 2008. But they were not persecuted in Venezuela after the signing the petition
in 2002. Accordingly, substantial evidence supports the IJ and BIA’s conclusion
that Contreras and Ibanez failed to establish statutory entitlement to withholding of
removal based on past persecution or a clear probability of future persecution.
For the foregoing reasons, we deny the petition as to withholding of removal
and dismiss the petition for lack of jurisdiction as to the CAT claim. 4
argue that there was a pattern or practice of persecution of similarly situated individuals to the
BIA, and, therefore, we lack jurisdiction to review the pattern or practice argument because it is
unexhausted. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
4
Although Contreras and Ibanez did not raise the issue before the BIA, the BIA sua
sponte affirmed the IJ’s denial of the claim for CAT relief. We lack jurisdiction to review
Contreras and Ibanez’s CAT claim, because Contreras and Ibanez failed to raise the issue before
5
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PETITION DENIED IN PART AND DISMISSED IN PART.
the BIA, and, thus, it is unexhausted. See Amaya-Artunduaga, 463 F.3d at 1250 (holding that
the Court of Appeals lacks jurisdiction to consider a claim not raised before the BIA, even when
the BIA sua sponte considers the claim).
6