Solcilet Del Mar Lucena Vasquez v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11799
________________________
Agency No. A201-258-411
SOLCILET DEL MAR LUCENA VASQUEZ,
LEONARDO JOSE PENALOZA HEREDIA,
a.k.a. Leonardo Pendalosa Heretia,
MARIA JOSE PENALOZA LUCENA,
a.k.a. Maria Jose Pendalosa Lucena,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 20, 2014)
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Before MARTIN and FAY, Circuit Judges, and DUFFY, ∗ District Judge.
PER CURIAM:
Solcilet Del Mar Lucena Vasquez, a native and citizen of Venezuela,
petitions for review of the Board of Immigration Appeal’s (“BIA”) order affirming
the Immigration Judge’s (“IJ”) denial of Lucena Vasquez’s application for asylum,
withholding of removal, and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”). We grant the petition and reverse.
I. BACKGROUND
A. Factual Background
Lucena Vasquez was born in Caracas, Venezuela, in September 1978. In
2003, she became involved actively with the political party “Primero Justicia,” or
“Justice First,” which supported democracy and opposed Venezuela’s president,
Hugo Chavez. Lucena Vasquez served on a party committee, attended monthly
meetings, worked to promote the party’s candidates, and encouraged citizens to
participate in the democratic process. Her political beliefs were known to others;
consequently, she became the target of a pro-Chavez group, the Bolivarian Circles.
Lucena Vasquez first was threatened in June 2007. While in a university
classroom, two men with guns came in and said to Lucena Vasquez: “Stop talking
∗
Honorable Patrick Michael Duffy, United States District Judge for the District of South
Carolina, sitting by designation.
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about our commander, you damned squalid. Otherwise we’re going to kill you and
your puppets.”1 ROA at 113. Before leaving, the men indicated they would be
watching Lucena Vasquez. She reported this incident to the police. At first, the
police were helpful, but they became irritated upon learning she was a member of
Justice First. When Lucena Vasquez mentioned the Bolivarian Circles, the police
told her she could not accuse them. Rather than take her complaint, a police
officer threatened to arrest her, because she did not know her attackers’ names.
The threats continued in 2008, when her car was vandalized twice. First, in
July 2008, Lucena Vasquez found her bumper had been kicked in and the words
“squalid” and “dog” had been scratched onto her car. She reported this incident to
the police but did not mention the Bolivarian Circles, because she remembered
how the police had threatened her, when she had previously identified attackers as
members of the group. Her car again was vandalized in November 2008. She had
borrowed her husband’s car because she was afraid the Bolivarian Circles would
recognize hers. She went to a store in an area where a pro-Chavez group was
holding a demonstration. When she came out, the car was completely scratched
and the words “country,” “socialism,” and “death” were written on the windows in
shoe polish. ROA at 118.
1
A “squalid” is a term for an “oligarch” or “puppet of the empire.” ROA at 75, 111.
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The next threat occurred on July 28, 2009. Lucena Vasquez was returning
from a Justice First event when she realized an SUV was following her, and it
rammed the back of her car. When Lucena Vasquez pulled off the road, three men
got out and told her, “[Y]ou’re going to see what’s going to happen to you, you
damned squalid, you and your daughter.” ROA at 122. Lucena Vasquez was able
to drive away. While the men initially followed her, she eventually evaded them
by taking side roads home. She attempted to report this incident to police the next
day, but they would not investigate because she could not to provide a license plate
number or some other type of identification.
Almost a year later, Lucena Vasquez was leaving a meeting and had her
four-year-old daughter with her. When she arrived home, two men wearing the
typical attire of the Bolivarian Circles forced their way through her gate. The men
were there to kidnap her daughter. One of them pushed her against the wall and
tried to grab the child. Lucena Vasquez, holding her daughter with one arm,
attempted to fight off the man with her other arm. The man stated, “[N]ow we’re
going to really, really . . . fuck you up . . . you and your baby.” ROA at 124. She
told him to take the car and money, but the man called her a “damned, stupid
woman,” and hit her. ROA at 124. Fortunately, a neighbor saw the kidnapping in
progress and intervened. The man attacking Lucena Vasquez pushed her and said:
“[T]his will not stay like this. . . . Now you’re going to see . . . what’s going to
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happen to you.” ROA at 125. The neighbor called the police, but the police
refused to take her complaint because there had not been a robbery or kidnapping.
This incident left Lucena Vasquez severely frightened, and she sought
psychological help.
The last two incidents occurred in September 2010. First, as Lucena
Vasquez was leaving her psychologist’s office, a friend told her that two men were
there asking for her at the reception desk. As Lucena Vasquez was leaving the
clinic, she noticed these men had scratched her car and left a note saying “we’re
going to kill you and your family.” ROA at 127. Later that month, Lucena
Vasquez had been working with other people to drive voters to polling booths.
After she had voted in the election, a man on a motorcycle shouted, “[W]e told you
that we’re going to . . . fuck you up, you and your daughter.” ROA at 130. This
statement caused Lucena Vasquez to recall the attempted kidnapping, and she
rushed to pick up her daughter.
Following these incidents, Lucena Vasquez told her husband she could no
longer live in Venezuela. Lucena Vasquez and her family entered the United
States on May 17, 2011. They were admitted as non-immigrant visitors and were
authorized to remain until November 16, 2011.
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B. Procedural Background
On June 28, 2011, Lucena Vasquez applied for asylum pursuant to the
Immigration and Nationality Act (“INA”) § 208(a), 8 U.S.C. § 1158(a), and
withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), based on
her political opinion and membership in a social group, and sought protection
under CAT, 8 C.F.R. § 208.16(c). 2 On December 6, 2011, the Department of
Homeland Security filed Notices to Appear with the immigration court and alleged
Lucena Vasquez, along with her husband and daughter, were removable pursuant
to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), because they remained in the
United States for a time longer than permitted.
At a hearing before the IJ, Lucena Vasquez testified to the events described
above in support of her application. She also testified that by returning to
Venezuela, she believed she would be either tortured or killed. The IJ found
Lucena Vasquez’s testimony was credible, and the “alleged persecutory acts
happened to her on account of her political opinion, her involvement in Justice
First, and her opposition to the Hugo Chavez government and the Bolivarian
Circles.” ROA at 80. The IJ characterized this as “a very, very close case,” but
ultimately determined Lucena Vasquez had not established past persecution and
2
Lucena Vasquez’s application listed her husband and daughter as derivative
beneficiaries. Although our opinion refers only to Lucena Vasquez, our holding as to the asylum
claim applies equally to her husband and daughter. In view of our ruling on the asylum claim,
we need not discuss the issues of withholding of removal or CAT relief.
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denied her application. ROA at 81. The IJ also denied her CAT claim, because
there had “been no testimony . . . that [Lucena Vasquez] would be tortured by or at
the hands or with the acquiescence of a Venezuelan government official if she
were returned to Venezuela.” ROA at 83-84.
Lucena Vasquez appealed to the BIA, which dismissed her appeal. The BIA
summarized the facts and cited to the IJ’s decision. The BIA “agree[d] with the
Immigration Judge that [Lucena Vasquez] did not suffer past persecution.” ROA
at 4. The BIA cited precedent from this court and explained previous cases finding
past persecution “contain[ed] at least one incident involving serious physical harm
and a number of other incidents, not as severe,” which “combine[d] to constitute
past persecution.” ROA at 4 (citing Mejia v. U.S. Att’y Gen., 498 F.3d 1253 (11th
Cir. 2007); Niftaliev v. U.S. Att’y Gen., 504 F.3d 1211 (11th Cir. 2007); Ruiz v.
Gonzales, 479 F.3d 762 (11th Cir. 2007)). It found Lucena Vasquez’s “claims do
not contain an incident of significant harm, notwithstanding the attempted
kidnapping,” and held Lucena Vasquez did not suffer the “degree [of] harm”
required to establish past persecution. ROA at 4.
II. DISCUSSION
“We review only the BIA’s decision, except to the extent the BIA expressly
adopts the IJ’s decision.” Mu Ying Wu v. U.S. Att’y Gen., 745 F.3d 1140, 1153
(11th Cir. 2014) (alterations, citation, and internal quotations marks omitted). We
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must affirm if the BIA’s decision is supported by reasonable, substantial, and
probative evidence when the record is considered as a whole. Ruiz, 479 F.3d at
765. In order to reverse, “we must find that the record not only supports the
conclusion, but compels it.” Id. (citation and internal quotation marks omitted).
The Attorney General may grant asylum to an alien who qualifies as a
“refugee” within the meaning of INA. Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1230 (11th Cir. 2005). A “refugee” is defined as one who is unable or
unwilling to return to her home country, because of “persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” INA § 101(a)(42)(A), 8 U.S.C.
§ 1101(a)(42)(A). “[P]ersecution is an extreme concept, requiring more than a few
isolated incidents of verbal harassment or intimidation.” Sepulveda, 401 F.3d at
1231 (citation and internal quotation marks omitted).
Looking at the cumulative effect of all the incidents, the BIA must determine
whether a petitioner has suffered treatment rising to the level of persecution.
Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007). “[E]ven though
each instance of mistreatment, when considered alone, may not amount to
persecution, the record may still compel a finding of past persecution when
considered as a whole.” De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008
(11th Cir. 2008). Where a petitioner demonstrates repeated threats combined with
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other forms of severe mistreatment, our precedent does not require serious physical
injury in order to demonstrate past persecution. Id. at 1008-10.
A “well-founded fear” of future persecution may be established by showing
(1) past persecution, which creates a presumption of a “well-founded fear” of
future persecution, (2) a reasonable possibility of personal persecution that cannot
be avoided by relocating within the subject country, or (3) a pattern or practice in
the subject country of persecuting members of a statutorily defined group of which
the petitioner is a part. 8 C.F.R. § 208.13(b)(1), (2). If the petitioner demonstrates
past persecution, a rebuttable presumption arises that her “life or freedom” would
again be threatened upon removal. 8 C.F.R. § 208.16(b)(1)(i). “This presumption
arises ‘on the basis of the original claim’; it does not require any showing on the
part of the applicant of a likelihood of future persecution.” Antipova v. U.S. Att’y
Gen., 392 F.3d 1259, 1264 (11th Cir. 2004) (quoting 8 C.F.R. § 208.16(b)(1)(i)).
Once the petitioner demonstrates a “well-founded fear,” the burden shifts to the
government to show, by a preponderance of the evidence, (1) there is a
fundamental change in circumstance such that the petitioner no longer has a well-
founded fear of future persecution, or (2) the petitioner could avoid future
persecution by relocating to another part of her country or place of last habitual
residence and, under all the circumstances, it would be reasonable to do so. 8
C.F.R. § 208.13(b)(1)(i).
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As the IJ recognized and the BIA noted, Lucena Vasquez presented
testimony that was believable, consistent, and sufficiently detailed. See Yang v.
U.S. Att’y Gen., 418 F.3d 1198, 1202 (11th Cir. 2005) (noting the applicant “must,
with specific and credible evidence, establish past persecution”). Upon review of
Lucena Vasquez’s detailed testimony, and with great respect to the IJ who believed
this case to be “very, very close,” ROA at 81, we find this case demonstrates past
persecution.
The series of events culminating in the attempted kidnapping of her young
child and the continued threats against her child’s life establish Lucena Vasquez
suffered past persecution because of her political opinion. Two men tried to rip
Lucena Vasquez’s young daughter from her arms and were stopped only by a
neighbor’s intervention. We can imagine little worse than being subjected to such
a horrifying attempt as the kidnapping of a young child. Most parents would
gladly subject themselves to kidnapping, torture, and even death, rather than to
have their child kidnapped by evildoers.
This is not a case of a “few isolated incidents of verbal harassment or
intimidation.” Sepulveda, 401 F.3d at 1231 (citation and internal quotation marks
omitted). Lucena Vasquez was attacked twice: once when her car was rammed by
an SUV and once when a member of the Bolivarian Circles hit her in his attempt to
kidnap her daughter. Given these assaults as well as the multiple verbal and
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written threats Lucena Vasquez received, the perpetrators’ acts cannot be
considered “isolated.” See Mejia, 498 F.3d at 1257-58 (concluding threats and
attacks over an 18-month period that culminated in an attack at gunpoint
constituted persecution).
In finding no past persecution, the BIA reasoned Lucena Vasquez had not
suffered “significant physical harm,” and therefore her case did not parallel our
prior cases where there had been “at least one incident involving serious physical
harm.” ROA at 4. De Santamaria, however, has established that serious physical
injury is not required to demonstrate past persecution, when there are physical
threats combined with other forms of mistreatment such as kidnapping. 525 F.3d
at 1008-10. The BIA failed to consider the cumulative effect of the attempted
kidnapping of Lucena Vasquez’s daughter, the attack while Lucena Vasquez was
driving home with her daughter, and the multiple verbal and written threats Lucena
Vasquez received. Considering the cumulative impact Lucena Vasquez suffered,
we conclude past persecution was established, and the IJ and BIA erred in their
conclusions to the contrary. 3 Delgado, 487 F.3d at 861-62 (finding that while the
incidents including threatening phone calls, car vandalism, detention by masked
men who pointed and mock fired unloaded guns at petitioners, and beatings, were
3
While Lucena Vasquez also raises the argument that she demonstrated a well-founded
fear of future persecution, we need not address this argument because we find she has
demonstrated past persecution and is entitled to a rebuttable presumption of a “well-founded
fear.” 8 C.F.R. § 208.13(b)(1).
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not individually enough to establish persecution, when considered together they
did establish past persecution).
Because Lucena Vasquez has established past persecution, she is entitled to
the rebuttable presumption of a well-founded fear of persecution in Venezuela.
Antipova, 392 F.3d at 1264. On remand, the government can decide whether or
not to attempt to rebut this presumption. 8 C.F.R. § 208.13(b)(1)(ii).
III. CONCLUSION
We grant the petition, vacate all the rulings made in these proceedings, and
remand to the BIA for remand to the IJ for further proceedings consistent with this
opinion.
PETITION GRANTED; VACATED and REMANDED.
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