Leidys M. Valera Martinez v. U.S. Atty. Gen. ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 28, 2008
No. 07-14950 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A88-244-345 &A88-244-346
LEIDYS MERCEDES VALERA MARTINEZ,
GABRIEL EDUARDO DAMALIS VALERA,
DANIEL EDUARDO DAMALIS VALERA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 28, 2008)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Leidys Mercedes Valera Martinez and her sons, Daniel Eduardo Damalis
Valera and Gabriel Eduardo Damalis Valera (hereinafter collectively “Martinez”),
petition for review of the Board of Immigration Appeals’ (“BIA”) final order
affirming the Immigration Judge’s (“IJ”) denial of her claims for asylum,
withholding of removal, and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”). After review, we dismiss in part and deny in part Martinez’s petition for
review.
Martinez and her sons, natives and citizens of Venezuela, arrived in Miami,
Florida on November 11, 2004 as non-immigrant visitors authorized to stay until
August 21, 2005. In January 2007, Martinez filed an asylum application claiming
she was persecuted in Venezuela based on her political opinion and membership in
a particular social group. The Department of Homeland Security charged Martinez
and her sons with removability for remaining in the United States beyond the
authorized period, in violation of the Immigration and Nationality Act (“INA”)
§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).
Following a hearing at which Martinez testified and conceded removability,
the IJ denied all requested relief. The IJ concluded that Martinez’s asylum
application was untimely. Further, the IJ found Martinez’s testimony was not
credible, gave no weight to a letter from her Venezuelan neighbor because it was
too vague and general, and concluded that Martinez was ineligible for asylum,
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withholding of removal and CAT relief.
The BIA dismissed Martinez’s appeal, noting she had argued only that she
suffered past persecution and had a well-founded fear of future persecution and
had not challenged either the IJ’s adverse credibility finding or the untimeliness of
her asylum application. The BIA concluded that Martinez’s failure to challenge
these bases for the IJ’s denial of the application meant there was no error in the IJ’s
decision. Martinez filed this petition for review.1
To the extent Martinez challenges the IJ’s adverse credibility determination,
we lack jurisdiction to review this claim because Martinez did not exhaust it in her
appeal to the BIA. See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Amaya-
Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006).
Likewise, we lack jurisdiction to review Martinez’s newly-raised claim that her
due process rights were violated by the IJ’s alleged bias. See Amaya-Artunduaga,
463 F.3d at 1251. Thus, we dismiss Martinez’s petition as to these claims.
As to Martinez’s claims for withholding of removal and CAT relief,
1
We review only the BIA’s decision except to the extent the BIA expressly adopts the
IJ’s opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Here,
the BIA issued its own opinion upholding the IJ’s adverse credibility determination and the
untimeliness of Martinez’s asylum application and rejecting the rest of her appeal. Thus, we
review only the BIA’s decision. We review legal issues de novo. Mohammed v. Ashcroft, 261
F.3d 1244, 1247 (11th Cir. 2001). The BIA’s factual findings are reviewed under the substantial
evidence test. Al Najjar, 257 F.3d at 1283. Under the substantial evidence test, “we must find
that the record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327
F.3d 1283, 1287 (11th Cir. 2003).
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substantial evidence supports the BIA’s decision.2 While the 2006 United States
Country Report on Venezuela indicates that some protestors against the
Venezuelan government have been harmed by security forces during
demonstrations, the only evidence that Martinez participated in these protests came
from her discredited testimony. A letter from her neighbor stated in conclusory
fashion that the neighbor had “personally witnessed the persecution and multiple
threats” Martinez was subjected to “by persons unknown, forcing [Martinez] to
change houses with all her family.” The letter did not provide any details of the
persecution or threats or identify who made the threats or the reasons for them.
The neighbor’s letter and the 2006 Country Report do not compel a conclusion that
Martinez personally suffered past persecution or has a well-founded fear of
persecution should she return to Venezuela or that she is entitled to CAT relief.3
PETITION DISMISSED IN PART AND DENIED IN PART.
2
An alien is entitled to withholding of removal if she can show that her life or freedom
would be threatened on account of a protected ground. INA § 241(b)(3)(A), 8 U.S.C.
§ 1231(b)(3)(A); Mendoza, 327 F.3d at 1287. The alien bears the burden to show either that she
suffered past persecution or that she has a well-founded fear of future persecution. Mendoza,
327 F.3d at 1287; see also 8 C.F.R. § 208.16(b)(1)-(2). To be eligible for CAT relief, an alien
must prove that she more likely than not would be tortured if returned to the country in question.
Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004); see also 8 C.F.R. §
208.16(c)(2).
3
On appeal, Martinez does not challenge the denial of her asylum petition as untimely.
Therefore, we do not address this claim further. See Mendoza, 327 F.3d at 1286 n.3.
4