Milagros Nakary Nolasco v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 25, 2008
THOMAS K. KAHN
No. 07-13774
CLERK
Non-Argument Calendar
________________________
BIA No. A98-396-853
MILAGROS NAKARY NOLASCO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 25, 2008)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Milagros Nakary Nolasco, a native and citizen of Venezuela, petitions this
Court for review of the decision of the Board of Immigration Appeals that denied
her application for asylum and withholding of removal under the Immigration and
Nationality Act and the United Nations Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment. The Board found that
Nolasco failed to prove that she suffered “past prosecution,” a probability of future
persecution, or she was “more likely than not” to be tortured when she returns to
Venezuela. We deny Nolasco’s petition.
I. BACKGROUND
Nolasco entered the United States on January 11, 2003, as a nonimmigrant
visitor. Over a year later, Nolasco filed an application for asylum and withholding
of removal. At her removal hearing, Nolasco testified about the incidents that led
her to leave Venezuela.
Nolasco taught at “the basic national school” where she opposed political
changes to the educational program. Nolasco was also a member of Un Nuevo
Tiempo, a group that worked to defend democracy and human rights and opposed
the regime of Hugo Chavez. Nolasco received notes in her office and on her car
that referred to her as a “traitor.” The school principal asked Nolasco to resign.
She refused, but was not fired. On one occasion, all of her car tires were flat and a
note on her car said, “this is your last opportunity, get away, do not come back.”
The notes were unsigned and contained the words “the revolution.”
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On another occasion, a group of women confronted Nolasco. One of the
women brandished a knife and told Nolasco “it looks like you did not understand
the message.” As Nolasco drove home, a man riding a motorcycle and wearing a
red t-shirt slowed as he approached Nolasco’s car, “shot once,” and sped away.
Nolasco did not know any of her assailants, but she recalled that the man on the
motorcycle wore a type of shirt common to members of the Bolivarian Circles, a
group that supported Chavez.
Nolasco also received calls on her home and cellular telephone that
threatened to harm her and her relatives. The callers did not identify themselves,
but used the words “the revolution” and Nolasco believed they were members of
the Bolivarian Circles. Nolasco explained that she did not move to a different
location inside Venezuela because members of the Bolivarian Circles lived
throughout the country. After Nolasco resided in the United States, her family told
her that conditions had worsened and cautioned her to not return to Venezuela.
The immigration judge ruled that Nolasco’s application for asylum was
untimely and denied Nolasco’s application for withholding of removal and relief
under the Convention. The judge found that Nolasco failed to show either that her
life or freedom would be threatened due to her political opinion or that she was a
victim of past persecution. The judge found that Nolasco was unable either to
identify the individuals who threatened or attempted to harm her as members of the
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Bolivarian Circles or establish that she was threatened based on her political
activities.
The Board of Immigration Appeals affirmed. The Board decided that
Nolasco was ineligible for asylum and she did not establish she was subject to past
persecution or a well-founded fear of future persecution. The Board also decided
that Nolasco failed to establish that she would, more likely than not, be tortured
when she returned to Venezuela.
II. STANDARD OF REVIEW
We review the decision of the Board to determine whether it is “‘supported
by reasonable, substantial, and probative evidence on the record considered as a
whole.’” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (quoting
Lorisme v. INS, 129 F.3d 1441, 1444–45 (11th Cir. 1997)). “To reverse [those]
fact findings, 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) (citing
Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002)).
III. DISCUSSION
Nolasco challenges two of the three decisions of the Board. Nolasco
challenges the denial of her application for withholding of removal and her
argument for relief under the Convention. Nolasco does not challenge the finding
that her application for asylum was untimely, which we lack jurisdiction to review.
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Mendoza, 327 F.3d at 1287.
Nolasco’s burden is well-established. To qualify for withholding of
removal, an alien must prove that her “life or freedom would be threatened on
account of race, religion, nationality, membership in a particular social group, or
political opinion.” Mendoza, 327 F.3d at 1287 (citing 8 U.S.C. § 1231(b)(3)(A)).
The alien must establish that she “more-likely-than-not would be persecuted . . .
upon [her] return to the country in question.” Id. (citing Fahim, 278 F.3d at 1218).
An applicant for relief under the Convention must “establish that it is more likely
than not that . . . she would be tortured if removed to the proposed country of
removal.” Al Najjar, 257 F.3d at 1303 (quoting 8 C.F.R. § 208.16(c)(2)) (internal
quotation marks omitted). Torture is confined to those acts inflicting “severe pain
and suffering, whether physical or mental” committed at the hands, under the
direction, or with the acquiescence of “a public official or other person acting in an
official capacity.” 8 C.F.R. § 208.18(a)(1).
Substantial evidence supports the decision that Nolasco did not suffer
political persecution. The anonymous telephone calls and notes constitute
harassment but do not rise to the level of persecution. See Silva v. U.S. Att’y Gen.,
448 F.3d 1229, 1238 (11th Cir. 2006); Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1231 (11th Cir. 2005). Nolasco was not present when her tires were
flattened, and she did not even testify that her tires were damaged. See Sepulveda,
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401 F.3d at 1231. In the incidents that involved the group of women and the
motorcycle gunman, Nolasco could not identify either the individuals involved or
establish that their attacks were politically motivated. Nolasco also was not
harmed in any incident. See Silva, 448 F.3d at 1234, 1238.
Nolasco also is not entitled to a presumption of a well-founded fear of future
persecution because she failed to establish that she suffered past persecution and
she offered no proof that she would be singled out due to her political beliefs if she
returned to Venezuela. See 8 C.F.R. § 208.16(b)(1); Sepulveda, 401 F.3d at 1231.
Nolasco did not allege that the Venezuelan authorities engaged in a pattern or
practice to persecute members of Un Nuevo Tiempo. See 8 C.F.R. § 208.16(b)(2).
She testified that she has family 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).
Substantial evidence also supports the finding that Nolasco will not likely be
tortured upon her return to Venezuela. “The burden of proof for an applicant
seeking withholding of removal under the Convention, like that for an applicant
seeking withholding of removal under the statute, is higher than the burden
imposed on an asylum applicant.” Al Najjar, 257 F.3d at 1303; see 8 C.F.R. §
208.16(c)(2). Because Nolasco failed to establish a well-founded fear of
persecution, she also cannot establish that she would suffer “torture.” See Al
Najjar, 257 F.3d at 1303–04.
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IV. CONCLUSION
Nolasco’s petition for review is DENIED.
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