Venturini v. Mukasey , 272 F. App'x 397 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 3, 2008
No. 06-60926
Summary Calendar Charles R. Fulbruge III
Clerk
GILBERTO JOSE VENTURINI
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A97 926 232
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gilberto Jose Venturini (“Venturini”), a native and citizen of Venezuela,
has filed a petition for review of an order by the Board of Immigration Appeals
(BIA). The BIA denied his motion to remand to the immigration judge (IJ), and
affirmed and adopted the IJ’s opinion finding Venturini ineligible for asylum or
withholding of removal.1 The BIA also determined that the hearing before the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
The BIA’s order also mentioned the Convention Against Torture (“CAT”). However, Venturini
did not request relief under CAT in his application, and the IJ did not address the CAT. As it appears
that Venturini never requested relief under the CAT, and because he has not argued for relief under
the CAT in his briefing before us, we do not address the applicability of the Convention to Venturini’s
No. 06-60926
IJ did not violate Venturini’s right to due process. For the following reasons, we
deny the petition.
I
Venturini claims that the Venezuelan government under President Hugo
Chavez persecuted him based on his involvement in a political party that
opposes Chavez. Because Chavez is still in power, he also claims a fear of future
persecution based on his political beliefs. The IJ found that Venturini was not
entitled to asylum relief or withholding of removal based on past persecution or
a fear of future persecution. The following summarizes the facts underlying
Venturini’s claims of persecution.
Prior to coming to the United States, Venturini worked as a petroleum
engineer for Petroleos de Venezuela S.A. (“PDVSA”), the government-owned oil
company of Venezuela. Venturini was also a member of Accion Democratica, a
Venezuelan democratic political party that opposes the policies of President
Chavez. In order to pressure Chavez to resign, Venturini and a number of
workers at PDVSA engaged in a strike. Venturini also participated in efforts to
hold a recall election in hopes of removing Chavez. Within the next two months
PDVSA fired the workers who participated in the strike, including Venturini.
In December 2002, Venturini and other workers gathered in a public
square to protest Chavez. During the protest, National Guard troops arrived
and violence ensued. National Guard troops beat Venturini with billy clubs and
fired tear gas to dispel the protestors. Venturini was hospitalized for one night
with bruises, a broken rib, and breathing problems stemming from the Guard’s
use of tear gas. Six days after this attack Venturini left Venezuela for the
United States, but returned to Venezuela shortly thereafter without seeking
asylum. After returning to Venezuela in December 2002, a group of individuals
case. See Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986) (noting that we do not
examine issues a party fails to raise on appeal “absent the possibility of injustice so grave as to warrant
disregard of usual procedural rules”).
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No. 06-60926
believed by Venturini to be members of the Bolivarian Circles gathered in front
of Venturini’s home, shot weapons into the air, beat his car with steel pipes, and
threatened him. Venturini claims that the Bolivarian Circles are para-military
groups who support Chavez. Venturini testified that he was attacked again by
the National Guard in January 2003, as he participated in a protest against
Chavez and Chavez’s decision to fire the striking PDVSA workers. Venturini
testified that the National Guard beat him about the legs with a club, and that
he again suffered breathing problems as a result of tear gas. In February 2003,
a fourth incident occurred. According to Venturini, he and other members of
Accion Democratica were preparing for a rally when members of the Bolivarian
Circles entered the room and began beating people with steel pipes. Venturini
stated that he remembered one of the attackers calling him by name during the
fighting, but that he eventually lost consciousness. He later awoke in his home.
Venturini did not seek medical attention. He did, however, decide to leave the
country.
Venturini admitted to his removability and sought relief in the form of
asylum and withholding of removal. As noted above, the IJ found that Venturini
had not established past persecution or a well founded fear of future persecution
based on his political beliefs. In reaching this conclusion, the IJ found that
Venturini’s claims of threats and mistreatment, while credible, did not amount
to persecution. In finding Venturini’s fear of future persecution to be
unreasonable, the IJ relied on the record but also took notice of recently changed
conditions in Venezuela which he felt calmed the political situation: specifically
the resolution of the PDVSA strike, and Chavez’s overcoming the recall effort.
Venturini appealed the decision to the BIA. The BIA adopted and affirmed the
IJ’s conclusion as to asylum and withholding of removal. Before the BIA,
Venturini argued that the hearing before the IJ was unfair. He also sought to
have the BIA remand his asylum determination to the IJ based on new evidence.
The BIA denied both of these claims and dismissed his appeal.
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II
Venturini asserts again on appeal that the hearing before the IJ was not
fair, and thus that the BIA erred in denying his due process claims. He also
contends that the IJ and the BIA erred in finding him ineligible for asylum.
Finally, he argues that the BIA erred in denying his motion to remand.
We review an immigration court’s rulings of law de novo and its findings
of fact to determine if they are supported by substantial evidence in the record.
Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). We review Venturini’s due
process challenge de novo. Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997). The
decision that an alien is ineligible for asylum is a finding of fact, which we will
reverse only if the evidence compels a conclusion contrary to that reached by the
BIA. Abdel-Masieh v. INS, 73 F.3d 579, 583 (5th Cir. 1996). We review the
BIA’s decision to deny a motion to remand or reopen “under a highly deferential
abuse-of- discretion standard.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.
2006). We will affirm the BIA’s decision denying such a motion as long as it is
not arbitrary, capricious, racially invidious, or utterly without foundation in the
evidence. See id. The BIA denied Venturini’s application for asylum and
withholding of removal and ordered Venturini removed by adopting the IJ’s
opinion and supplementing that with its own opinion. Accordingly, we review
the decisions of the BIA and the IJ. See Zhu, 493 F.3d at 593 (noting that we
review the IJ’s decision when it affects the BIA’s decision).
III
A
Venturini has not shown that the BIA erred in denying relief based on his
due process arguments. Venturini argues that he was denied due process of law
because the IJ: (1) pressured him to forego the use of a Spanish translator at his
immigration hearing; (2) evinced bias against him by cross-examining him,
calling him a “big coward”; (3) and improperly took official notice of changes that
took place in Venezuela after the immigration hearing, but prior to the entry of
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No. 06-60926
his decision. An alien’s right to procedural due process is violated only if he is
substantially prejudiced by an immigration court’s actions. See Calderon-
Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986). Each of Venturini’s due
process arguments is without merit.
First, the record does not support Venturini’s claim that the IJ pressured
him to proceed in English. Prior to beginning his hearing, Venturini stated that
he had no problem proceeding in English, and that he did not need an
interpreter. Venturini never requested the interpreter return, despite the IJ’s
statement that any time Venturini felt uncomfortable proceeding in English, the
interpreter could return. Venturini argues that he was “at a deficit in
explaining the events that led up to his application for asylum” because Spanish
is his native language. Venturini has identified no fact or legal argument not
communicated that would have compelled the granting of relief had it been
communicated. Absent a showing to that effect, Venturini cannot show
substantial prejudice and his due process challenge fails. See Paraham v. INS,
No. 94-41021, 1995 WL 371091 at *2-*3 (5th Cir. June 6, 1995); 5TH CIR. R.
47.5.3 (stating that unpublished opinions issued prior to January 1, 1996 have
precedential value).
Second, Venturini claims bias on the part of the IJ. To show bias sufficient
to undermine the fairness of an asylum hearing, the BIA has recognized that an
alien must show the IJ has a “personal bias” stemming from an “extrajudicial
source” or that the IJ’s conduct demonstrates “pervasive bias and prejudice.”
Matter of Exame, 18 I & N Dec. 303, 306 (BIA 1982). The IJ questioned
Venturini directly with regard to his political convictions and his leaving
Venezuela. See 8 U.S.C. § 1229a(b)(1) (authorizing IJ to “interrogate, examine,
and cross-examine the alien”). In response to Venturini’s testimony, the IJ
stated rhetorically to Venturini’s counsel that “it does seem like he’s a big
coward or he is not genuine when he says he wants to fight for the party but
then leaves the country.” The judge’s statement was isolated and appears to
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have been an attempt to clarify Venturini’s motivations for leaving the country.
Any prejudice exhibited by this statement was not pervasive, and it did not arise
from an extrajudicial source. As such, Venturini has not established a due
process violation based on bias of the IJ.
As to Venturini’s third due process claim, we have recognized that
agencies are given “wide latitude in taking official notice” of “commonly
acknowledged facts” such as a change in government or country conditions in an
alien’s country of origin. See Rivera-Cruz v. INS, 948 F.2d 962, 966-67 (5th Cir.
1991) (recognizing BIA’s ability to take official notice of numerous facts,
including changed country conditions). Facts such as the end of the PDVSA
strike and the result of the 2004 recall referendum are the sorts of “commonly
acknowledged facts” of which official notice may be taken. See id. Despite the
fact that Venturini could not challenge before the IJ the facts of which the IJ
took official notice, he could challenge those facts before the BIA. And he also
had the ability to file a motion to reopen the BIA’s decision and a subsequent
right to appeal. These mechanisms are sufficient to satisfy Venturini’s right to
a fair asylum hearing. Id. at 968. Further, based on the other findings made by
the IJ and BIA in support of the asylum determination, Venturini cannot show
substantial prejudice based on the noticed facts. Therefore, Venturini’s due
process rights were not violated when the IJ took official notice of changed
conditions in Venezuela.
B
The IJ found that Venturini had not established past persecution or a well-
founded fear of future persecution based on his political opinion, and thus that
he was not eligible for asylum or withholding of removal.
To qualify for asylum, an alien must be a “refugee.” See 8 C.F.R.
§ 1208.13(a). The Immigration and Naturalization Act defines a
refugee as a person unable to return to his or her country “because
of persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group,
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or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Past persecution
entails harm inflicted on the alien on account of a statutorily
enumerated ground by the government or forces that a government
is unable or unwilling to control. 8 C.F.R. § 1208.13(b)(1). The
alternative asylum ground, a well-founded fear of persecution,
results when a reasonable person in the same circumstances would
fear persecution if deported. Jukic v. INS, 40 F.3d 747, 749 (5th
Cir.1994).
Tesfamichael v. Gonzales, 469 F.3d 109, 114 (5th Cir. 2006).
The record does not compel a contrary conclusion to that reached by the
IJ regarding past persecution. Venturini claimed persecution because he was
fired as a result of his political opinion. The government fired Venturini and a
number of other workers at PDVSA for engaging in a strike))Venturini claims
the workers struck to protest the Chavez regime. He testified that he believes
he will be blacklisted from working in Venezuela’s oil industry as a result of his
participation in the strike. He also stated that he would not be able to work as
a professional despite his holding a number of advanced degrees. Persecution
“does not encompass all treatment that our society regards as unfair, unjust or
even unlawful or unconstitutional.” Id. While the “deliberate imposition of
severe economic disadvantage” may constitute persecution, Venturini’s being
prevented from working in the oil industry does not amount to such extreme
conduct. Id. Therefore, the IJ’s finding that Venturini’s firing did not amount
to persecution is supported by substantial evidence.
Venturini also testified that he was beaten by members of the National
Guard during two protests. The IJ found that the injuries Venturini suffered
were not severe enough to amount to persecution. Venturini testified that he
received bruises, a broken rib, and had trouble breathing as a result of tear gas
being used to dispel the protestors. However, after being hospitalized overnight
for these injuries, he traveled to the United States some six days later. He did
not seek asylum at that time, and in fact returned to Venezuela shortly
thereafter. See Mikhael v. INS, 115 F.3d 299, 304 & n.4 (5th Cir. 1997) (listing
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cases where poor treatment was found insufficient to establish persecution).
The IJ also found that Venturini had not suffered harm at the hands of the
National Guard on account of his political beliefs. He concluded that Venturini’s
injuries were suffered when the National Guard was forced quell the dangerous,
mob-like situations created when demonstrations involving members of multiple
political parties became violent. The State Department’s 2003 Country Report
on Human Rights Practices, as well as other documentary evidence in the record,
supports the IJ’s finding that the violence carried out against protestors by
National Guard members resulted from the general unrest and violent situations
surrounding protests rather than any particular protestor’s political beliefs. See
Abdel-Masieh, 73 F.3d at 584 (noting that no evidence contradicted the finding
that alien was arrested “simply because he was at the front of the crowd” during
a demonstration). The record does not compel a contrary conclusion as to
Venturini’s injuries suffered at the hands of the National Guard.
Venturini also testified that he was beaten and harassed by members of
the Bolivarian Circles, a group that supports President Chavez, on account of his
anti-Chavez involvement. However, the IJ found that Venturini had not credibly
identified his attackers as part of the Bolivarian Circles. Venturini identified his
attackers as members of the Bolivarian Circles merely based on his own
assessment that they “are violent people and they have guns most of the time
and they’re in support of Chavez.” The IJ also found that Venturini had not
established that the actions alleged to have been taken by the Bolivarian Circles
were sanctioned by the government, or that the government was unable or
unwilling to control the Bolivarian Circles. See Tesfamichael, 469 F.3d at 113
(noting that persecution must be inflicted by the government or forces the
government is unwilling or unable to control). Based on Venturini’s testimony,
the attacks by the Bolivarian Circles were reported to the police who undertook
investigations))Venturini never indicated that the police were unwilling to
protect him. The 2003 Country Report, included in the original record before the
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IJ, does not identify the Bolivarian Circles, nor does it indicate that any pro-
Chavez groups carried out violence that the government was unwilling or unable
to control. The record does not compel the conclusion that Venturini suffered
persecution at the hands of violent groups that the government was unable or
unwilling to control.2
Neither does the record compel a conclusion contrary to the IJ’s finding
regarding Venturini’s fear of future persecution. Because Venturini had not
established past persecution, he was not entitled to a presumption of future
persecution. See 8 C.F.R. § 208.13. To prove a well-founded fear of persecution,
a petitioner must show that a “reasonable person in the same circumstances
would fear persecution if deported.” Mikhael,115 F.3d at 304. The IJ found that
the record did not establish a reasonable fear of future persecution on the part
of Venturini. The following evidence undermines Venturini’s claim of future
persecution, such that we are not compelled to find his fear reasonable.
Venturini testified that his political party is one of the largest in Venezuela, that
members of his political party serve in the national government, and that he
receives near-daily e-mail communication from party members. Also, his family
remains in Venezuela unharmed. See Eduard v. Ashcroft, 379 F.3d 182, 193 (5th
Cir. 2004); Matter of A-E-M, 21 I. & N. Dec. 1157, 1160 (BIA 1998). We need not
consider whether the facts of which the IJ took official notice support this
conclusion. Even ignoring these facts, the record does not compel us to reach a
conclusion different than that reached by the IJ as to Venturini’s fear of future
persecution.
2
Venturini also argues on appeal that the IJ failed to take into account the cumulative effect
of the multiple beatings he received, the loss of his job, and the threats and harassment toward him.
We have recognized, at least implicitly, that past persecution may be established based on the
cumulative effect of multiple threats and attacks, even if no single incident is sufficient. See Eduard
v. Ashcroft, 379 F.3d 182, 188 (5th Cir. 2004) (citing Matter of O-Z- & I-Z-, 22 I. & N. Dec. 23, 26 (BIA
1998). Venturini bears the burden of showing that the IJ improperly analyzed each incident in
isolation. Id. The IJ’s decision indicates that the IJ evaluated each of the individual incidents, as well
as the impact of the incidents as a whole in making a determination as to past persecution. Therefore,
the IJ did not err in this regard.
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In conclusion, we find the denial of Venturini’s application for asylum to
be supported by substantial evidence. As he cannot satisfy the standard for
asylum, Venturini cannot meet the more demanding standard for withholding
of removal based on a likelihood of future persecution. See Faddoul v. INS, 37
F.3d 185, 188 (5th Cir. 1994).
C
Before the BIA, Venturini filed a motion to remand accompanied by
further documentary evidence to support his claim for asylum. When a motion
to remand challenges an IJ’s ruling based on new evidence, it is to be treated as
a motion to reopen. See Ramchandani v .Gonzales, 434 F.3d 337, 340 n. 6 (5th
Cir. 2005). The BIA must deny a motion to reopen if it finds that the movant has
not introduced previously unavailable , material evidence or if the movant has
not established a prima facie case for the underlying substantive relief sought.
See Ogbemudia v. INS, 988 F.2d 595, 599-600 (5th Cir. 1993). Even if a movant
establishes these threshold requirements, the BIA may deny a motion to reopen
if the BIA determines that “the movant would not be entitled to the discretionary
grant of relief.” Id. at 600 (internal quotation marks and citation omitted).
Venturini submitted three documents dated prior to his hearing before the
IJ. Venturini has provided no explanation as to why he could not have obtained
and presented these reports at his removal hearing. The remaining documents
of which Venturini sought review on remand, including the 2005 Country
Report, do not contain information materially different from that considered by
the IJ. In fact, the 2005 Country Report can easily be read to support the IJ’s
conclusion that the situation is Venezuela is less volatile than when Venturini
left the country. Accordingly, the BIA did not abuse its discretion in denying
Venturini’s motion to remand based on this new evidence.
For the foregoing reasons, we DENY the petition for review.
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