Armando Antonio Maguina Baldovino, Daghmar Aracelis Campero Sanabria vs U.S. Attorney General , 398 F. App'x 492 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10350 ELEVENTH CIRCUIT
SEPTEMBER 30, 2010
Non-Argument Calendar
________________________ JOHN LEY
CLERK
Agency No. A099-548-180
ARMANDO ANTONIO MAGUINA BALDOVINO,
DAGHMAR ARACELIS CAMPERO SANABRIA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 30, 2010)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Armando Maguina Baldovino and his wife, Daghmar Aracelis Campero
Sanabria, natives and citizens of Venezuela, petition for review of the decision of
the Board of Immigration Appeals that affirmed the denial of Maguina’s
application for asylum, withholding of removal, and relief under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. 8 U.S.C. §§ 1158(b), 1231(b)(3); 8 C.F.R. § 208.16(c). The Board of
Immigration Appeals and the immigration judge denied Maguina’s application for
asylum as untimely and found that he had failed to establish past persecution or a
probability of future persecution. We dismiss in part and deny in part the petition.
We are without authority to address three matters. Maguina and his wife do
not challenge the finding that their application for asylum was untimely, and we
lack jurisdiction to review that decision. See Chacon-Botero v. U.S. Att’y Gen.,
427 F.3d 954, 957 (11th Cir. 2005). We also lack jurisdiction to consider
Maguina’s application for relief under the Convention because he did not exhaust
his administrative remedies after he was denied relief by the immigration judge.
See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
Because only a claim for withholding of removal remains and the regulations do
not provide for derivative benefits, we also deny the petition of Maguina’s wife.
See Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir. 2007).
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Substantial evidence supports the finding that Maguina failed to establish
that he suffered past persecution. See Sanchez v. U.S. Att’y Gen., 392 F.3d 434,
438 (11th Cir. 2004). Maguina testified that he received two telephone calls in
2002 from members of the Bolivarian Circles who threatened to kill him because
he participated in the Movement Toward Socialism, a political party that opposed
Hugo Chavez. The calls amounted to harassment, not persecution. See Sepulveda
v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005). Maguina also testified
about being thrown to the ground, kicked, and hit by two men that Maguina
believed to be members of the Bolivarian Circles, but Maguina testified that his
injuries did not require medical attention. See Kazemzadeh v. U.S. Att’y Gen.,
577 F.3d 1341, 1353 (11th Cir. 2009) (“Minor physical abuse . . . do[es] not
amount to persecution.”).
Substantial evidence also supports the finding that Maguina’s fear of future
persecution is not well-founded. Maguina argues that he will be persecuted for his
past political activities, but Maguina testified that he ceased his activities with the
Movement after he received the second threatening telephone call and the record
does not compel a conclusion that the Bolivarian Circles “retains an inclination to
single [Maguina] out.” Sepulveda, 401 F.3d at 1231–32. Articles published by
the Bureau of Democracy, Human Rights and Labor state that the political
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influence of the Bolivarian Circles has waned and the Chavez government has not
pursued the persecution of its opponents. Maguina also left family members in
Venezuela who have not been threatened or harmed. See Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247, 1259 (11th Cir. 2006). Maguina complains about the inability of
the government to “control narco-terrorists,” but Maguina is not entitled to
withholding of removal based on fears of general violence within Venezuela.
See Perlera-Escobar v. Exec. Office for Immigr., 894 F.2d 1292, 1297 (11th Cir.
1990). Maguina also contends that he faces future persecution because Ricardo
Lopez, a fellow party member, was murdered when he returned to Venezuela in
2005, but the record does not compel a conclusion that Lopez was killed on
account of his political activities.
We DISMISS the petition for review of the denial of asylum and relief
under the Convention and DENY the petition for review of the denial of
withholding of removal.
PETITION DISMISSED IN PART, DENIED IN PART.
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