Myrna Coromoto Olivo De Aviles v. U.S. Atty. Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ .U .S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 21, 2006
No. 06-11733
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A97-638-610
MYRNA COROMOTO OLIVO DE AVILES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 21, 2006)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Petitioner Myrna Coromoto Olivo de Aviles (“Olivo”) petitions for review
of a final order of the Board of Immigration Appeals (“BIA”), which affirmed,
without opinion, the decision of the Immigration Judge (“IJ”) denying Olivo’s
claims for asylum and withholding of removal under the Immigration and
Nationality Act (“INA”), and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”). For the reasons discussed below, we DENY Olivo’s petition.
I. BACKGROUND
Olivo, a native and citizen of Venezuela, was admitted to the United States
on 7 March 2003 as a non-immigrant visitor with authorization to remain in the
United States until 6 September 2003. After she remained in the United States
beyond that date, the former Immigration and Naturalization Service (“INS”)
issued a Notice to Appear (“NTA”) to Olivo, charging that she was removable
pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). Olivo appeared before
the Immigration Court, admitted to all of the facts and allegations contained in the
NTA, and conceded removability. She then filed an application seeking asylum
and withholding of removal, as well as protection under CAT.
Olivo’s claims for asylum and withholding of removal were based upon both
her political opinions and her membership in a particular social group.1 In the
1
Olivo’s written application only mentioned her political opinion as a basis for asylum or
withholding of removal. At the removal hearing before the IJ, however, both Olivo and her
counsel raised the additional prospect of asylum or withholding of removal based upon her
2
written addendum that accompanied her application, Olivo indicated that certain
middle and upper class zones in Caracas, where she resided, suffered frequent
abuse at the hands of a group known as the “Circulos Bolivarianos,” or “Bolivarian
Circles.” Olivo stated that the Bolivarian Circles were “gangs on motorized
vehicles, armed with automatic weapons,” who repeatedly “abuse[d], both verbally
and physically, all the citizens who, in some way, tr[ied] to express their rejection
and disagreement with the government” of Hugo Chavez, the President of
Venezuela. R at 157. Olivo asserted that because the Montalban region of
Caracas– where Olivo resided– was “one of the biggest middle class zones in
Caracas,” the Bolivarian Circles frequently terrorized and intimidated citizens
living in that area. Id.
Olivo’s written application also recounted an incident involving her son,
Carlos Gabriel Aviles, who served in the Venezuelan military from 1997 to 2003.
According to her application, in August 2002 the citizens of Caracas organized a
march to protest the policies of the Chavez government. She claimed that Carlos
was ordered to use lethal force, if necessary, to prevent the citizens from marching.
Olivo asserted that because Carlos refused to use any force against the citizens, he
membership in a particular social group, the Lady’s Committee of the National Guard of
Venezuela. Because the IJ considered both of these grounds in reaching a decision on Olivo’s
application, we will likewise construe her application as positing two separate bases for asylum
or withholding of removal.
3
was targeted by the Chavez government as being disloyal; that he was “persecuted”
by his military superiors; and that his military career suffered as a result. Id. at
158. Olivo stated that the situation was so dire that Carlos eventually resigned
from the Venezuelan military. He sought, and was granted, asylum in the United
States. Olivo indicated that she was seeking asylum so that she could be close to
her son. In addition, Olivo noted that she had resided in the United States from
1976 to 1982, during her marriage to her first husband, and that consequently she
had “adapted to the American culture and this country.” Id.
At the removal hearing before the IJ, Olivo testified in support of her
application. She first indicated that she had been a member of the Lady’s
Committee of the National Guard of Venezuela, although she went on to clarify
that she stopped being a member of that group after she and her husband divorced
twelve years earlier. Olivo did not state that she belonged to any other social
organizations, nor did she indicate that she was particularly politically active. She
testified that she was seeking asylum in the United States because she was afraid of
both the Chavez government and the Bolivarian Circles. Olivo stated that the
Bolivarian Circles “persecute[d] those people who [were] not in agreement with
the present government,” id. at 59, and that, because she lived in a middle class
area where there was “great opposition” to the Chavez government, she had been
labeled an “enem[y] of the regime,” and had suffered oral insults and threatening
4
telephone calls. Id. at 60-62.
When questioned further, Olivo recounted being followed by motorcycle-
riding members of the Bolivarian Circles, who shouted at her and attempted to
scare her when she left her home. She described how a Bolivarian Circle member
had crossed in front of her with his motorcycle while she was driving her car. She
stated on cross-examination that this was the “the worst” attempt the Bolivarian
Circles had made to cause her harm. Id. at 63. Olivo also testified that this
persecution started in December 2001, and continued through early 2003. Olivo
offered further testimony about the experience of her son, Carlos. She recounted
the incident with his military superiors that caused him to be allegedly blacklisted
by the Chavez government. She also testified that her family members suffered
constant persecution at the hands of the Bolivarian Circles, all as a result of Carlos’
actions.
In his oral decision, the IJ reviewed both the evidence presented in Olivo’s
application and her testimony. The IJ found Olivo’s testimony to be fully credible,
and found that the documentary evidence in the record buttressed her testimony.
Despite her credibility, however, the IJ determined that there was “nothing in the
record to show that [Olivo] suffered any serious harm.” Id. at 33. He found that
Olivo had complained of only “occasional and sporadic” telephone calls from the
Bolivarian Circles, but intimated that this harm was not particularly severe. Id.
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The IJ also failed to find any evidence that Olivo had suffered “physical or
psychological trauma” as a result of the Bolivarian Circles’ actions, other than
ordinary harassment as a citizen. Id. at 34. He further found that the specific
actions of the Bolivarian Circles of which Olivo complained– “driving around
neighborhoods on motorcycles intimidating civilians”– were common in
Venezuela. Id. at 33. The IJ therefore determined that Olivo’s complaints
pertained to “general conditions” that affected “the populace as a whole.” Id. at 34.
Nor was the IJ convinced, even assuming Olivo had suffered harm, that she
had shown such harm was connected to either her membership in a particular
social group or to her political views. He observed, in a short colloquy with
Olivo’s counsel, that Olivo had failed to connect her membership in the pro-
National Guard women’s organization to her subsequent mistreatment by the
Bolivarian Circles. He also found that Olivo had failed to show that her
mistreatment was due to her own political opinions, or the imputed opinions of
another. In discussing the experience of her son, Carlos, the IJ found that Olivo
had failed to produce “any testimony at all to show why the political stance taken
by her son would have been imputed to her.” Id. The IJ stated that Olivo had
failed to “tell [him] that anything happened to her as a result of what happened to
her son.” Id. at 65. Due to the lack of a clear connection between Carlos’ conduct
and the persecution of which she complained, the IJ concluded that there was
6
insufficient evidence to impute the political stance taken by Carlos to Olivo.
In light of these findings, the IJ concluded that Olivo had failed to show
eligibility for asylum. In addition, the IJ found that Olivo had failed to show that
she was entitled to withholding of removal under the INA, since she has not shown
that it was more likely than not that she would suffer persecution if she returned to
Venezuela. Finally, the IJ concluded that Olivo was not entitled to protection
under CAT, since there was no evidence that Olivo had been tortured or would
likely be subject to torture in the future. Accordingly, the IJ issued an order
denying Olivo’s application on all grounds, and ordering her removal pursuant to
the NTA. The BIA affirmed the IJ’s order, without comment. Olivo filed a timely
petition for review with this court.
II. DISCUSSION
A. Standard of Review
We review legal issues de novo, Mohammed v. Ashcroft, 261 F.3d 1244,
1247-48 (11th Cir. 2001), and “administrative fact findings under the highly
deferential substantial evidence test,” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-
27 (11th Cir. 2004) (en banc) (citations omitted), cert. denied, 544 U.S. 1035, 125
S. Ct. 2245 (2005). Under that standard, we “must affirm the BIA’s decision if 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.
7
2001) (internal quotations and citation omitted). “To reverse a factual finding by
the BIA, this Court must find not only that the evidence supports a contrary
conclusion, but that it compels one.” Farquharson v. U.S. Att’y. Gen., 246 F.3d
1317, 1320 (11th Cir. 2001) (citation omitted). Indeed, “the mere fact that the
record may support a contrary conclusion is not enough to justify a reversal of the
administrative findings.” Adefemi, 386 F.3d at 1027 (citation omitted). Rather,
we will reverse a BIA’s findings of fact “only if the evidence presented by the
applicant is so powerful that a reasonable fact finder would have to conclude”
otherwise. Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d 1320, 1323-24 (11th
Cir. 2001).
We review only the BIA’s decision, “except to the extent that it expressly
adopts the IJ’s opinion.” Al Najjar, 257 F.3d at 1284 (citation omitted). “Insofar
as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well.”
Id. (Citation omitted). In Olivo’s case, the BIA expressly adopted the IJ’s
decision, without further comment. Therefore, we will review the analysis set
forth in the IJ’s opinion as if it were the BIA’s. See Al Najjar, 257 F.3d at 1284.
B. Asylum
Section 208 of the INA provides that “[a]ny alien who is physically present
in the United States . . . irrespective of such alien’s status, may apply for asylum.”
INA § 208(a)(1), 8 U.S.C. § 1158(a)(1) (2002). “The Attorney General may grant
8
asylum to an alien . . . if the Attorney General determines that such alien is a
refugee within the meaning of section 101(a)(42)(A) of [the INA].” INA §
208(b)(1), 8 U.S.C. § 1158(b)(1). In turn, a “refugee” is defined in section 101 as
any person who is outside any country of such person’s
nationality or, in the case of a person having no nationality, is
outside any country in which such person last habitually
resided, and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protection
of, that 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). The asylum applicant carries the
burden of proving statutory “refugee” status. 8 C.F.R. § 208.13(a). To prove
asylum eligibility, “the alien must establish a ‘well-founded fear’ that his or her
political opinion (or other statutorily listed factor) will cause harm or suffering that
rises to the level of ‘persecution.’” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814,
818 (11th Cir. 2004) (citation omitted). A well-founded fear of persecution may be
established by showing either: “(1) past persecution on account of her political
opinion or any other protected ground; or (2) a ‘well-founded fear’ that her
political opinion or any other protected ground will cause future persecution.”
Sepulveda v. U.S. Att’y. Gen., 402 F.3d 1236, 1230-31 (11th Cir. 2005) (per
curiam) (citing 8 C.F.R. § 208.13(a),(b)).
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1. Past Persecution
“To establish asylum based on past persecution, the applicant must prove (1)
that she was persecuted, and (2) that the persecution was on account of a protected
ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (citing
Sepulveda, 401 F.3d at 1230-31). As to the former, while the INA does not define
the term “persecution,” we have observed that “persecution is an extreme concept,
requiring more than a few isolated incidents of verbal harassment or intimidation.”
Id. at 1237 (citing Sepulveda, 401 F.3d at 1231) (alteration omitted). “Not all
exceptional treatment is persecution.” Gonzalez v. Reno, 212 F.3d 1338, 1355
(11th Cir. 2000). Indeed, as our sister circuit has noted, it is a “hard truth that
unpleasant and even dangerous conditions do not necessarily rise to the level of
persecution.” Bhatt v. Reno, 172 F.3d 978, 982 (7th Cir. 1999) (citation omitted).
Olivo contends that “[t]he record clearly shows that Olivo was persecuted by
Venezuelan security and intelligence authorities as well as the Bolivarian Circles,”
Brief of the Petitioner at 29, but that assertion is belied by both the written and oral
evidence submitted in connection with her application. Olivo testified that
members of the Bolivarian Circles made threatening phone calls, insulted her in
public and, in one instance, crossed in front of her car with a motorcycle while she
was driving. She conceded on cross-examination, however, that the motorcycle
incident was “the worst” attempt that the Bolivarian Circles ever made on her life.
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R at 62-63. Olivo did not mention any physical harm, and, when she was pressed
to recount what else had happened to her while she was in Venezuela, she
referenced only insults and the threats from the Bolivarian Circle group.
The IJ found that Olivo had failed to show severe harm sufficient meet the
threshold showing of past persecution. We agree. In fact, we previously have
found that written threats and threatening telephone calls – similar to the ones
borne by Olivo in this case – constituted mere harassment rather than persecution.
See Silva, 448 F.3d at 1237-38. See also Sepulveda, 401 F.3d at 1231 (stating that
“menacing telephone calls and threats . . . do not rise to the level of past
persecution that would compel reversal of the IJ’s decision”).
Moreover, even if we were to find that the harm Olivo suffered in Venezuela
rose to the level of past persecution, she still failed show that the persecution was
carried out because of a statutorily protected ground. See Mazariegos, 241 F.3d at
1323 (“[A]n alien must do more than merely show that he was physically harmed
or that his civil or human rights were violated; he must provide evidence that he
was mistreated because of his political opinion, or one of the other grounds, rather
than for some other reason.”). Olivo failed to show a causal connection between
her claimed persecution and her political opinion or her membership in a social
group. While Olivo stated that she belonged to a group of Venezuelan citizens
who were “not in agreement with the present government,” R at 59, she failed to
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show any causal connection between her anti-Chavez opinions and the treatment
she received from the Bolivarian Circles. Furthermore, while she cited her
membership in the Lady’s Committee of the National Guard, she never once
posited that she had been mistreated because of her membership in that group. In
fact, she conceded that she had ceased participating in the group approximately
twelve years earlier. At the removal hearing, Olivo’s counsel attempted to broadly
characterize her social group as being the mother of a military member, but Olivo
likewise failed to establish that she was mistreated as a result that status; on the
contrary, she testified that the harassment at the hands of the Bolivarian Circles
commenced in 2001, well before her son’s run-in with his military superiors. If
anything, the record suggests that the Bolivarian Circles taunted and harassed
Olivo because she happened to live in an urban, middle class neighborhood in
Caracas where the gang tended to congregate its efforts to harass citizens. But
there was no showing that Olivo suffered any particularized mistreatment due to
her political views or membership in a social group. In light of these facts, the IJ
concluded that Olivo’s complaints were based upon general conditions that more
or less affected all of the residents of her neighborhood, Montalban. There was
substantial evidence to support such a conclusion, and we are not compelled to
reach a different result.
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2. Well-Founded Fear of Future Persecution
Substantial evidence also supports the IJ’s finding that Olivo failed to
demonstrate a well-founded fear of future persecution. To demonstrate a well-
founded fear of future persecution, an applicant must show: (1) a “subjectively
genuine and objectively reasonable” fear of persecution; (2) based upon a
statutorily protected ground. Silva, 448 F.3d at 1236 (internal citations omitted).
Olivo’s application falls short on both of these grounds.
As to the first, we have held that the well-founded fear has both subjective
and objective components. “The subjective component is generally satisfied by the
applicant’s credible testimony that he or she genuinely fears persecution.” Al
Najjar, 257 F.3d at 1289 (citation omitted). The objective prong, however,
requires that the applicant’s fear be “objectively reasonable.” Id. (citations
omitted). The applicant is required to present “specific, detailed facts showing a
good reason to fear that he or she will be singled out for persecution.” Forgue v.
U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (citation and internal
quotations omitted).
Here, the subjective component of the well-founded fear inquiry clearly has
been satisfied by Olivo’s testimony that she genuinely fears persecution. The IJ
13
found her testimony to be credible,2 and we do not doubt the genuineness of her
fear of future mistreatment by the Bolivarian Circles. Olivo, however, failed to
present evidence to show that her fear of future persecution was objectively
reasonable, or that there was a “good reason to fear that she would be singled out
for persecution.” See Forgue, 401 F.3d at at 1286. While Olivo contends on
appeal that “President Chavez has resolved to eliminate all opposition to his regime
through government security organs and the Bolivarian Circles,” Brief of the
Petitioner at 32, the evidence does not compel the conclusion that she would be
singled out as a specific target of persecution. As in Sepulveda, the evidence Olivo
presented “does not indicate her notoriety” as an opponent of the Chavez regime.
401 F.3d at 1232. Rather, substantial evidence supports the conclusion that her
fear is general, rather than individualized, and is based on conditions that affect a
much larger subset of the population. As we previously have held, the INA “does
not extend eligibility to asylum to anyone who fears the general danger that
inevitably accompanies political ferment and strife.” Mazariegos, 214 F.3d at 1328
(quoting Huaman-Cornelio v. BIA, 979 F.2d 995, 1000 (4th Cir. 1992)).
2
Olivo has suggested in her arguments that the IJ erred because he found her testimony
to be fully credible, but then went on to conclude that she had failed to present adequate
evidence to warrant a grant of asylum. There is nothing inconsistent, however, about finding an
asylum applicant to be fully credible, but nevertheless denying her application due to a paucity
of evidence. See, e.g., Silva, 448 F.3d at 1240 (affirming a denial of asylum despite the fact that
the applicant’s testimony was deemed to be credible); Huang v. U.S. Att’y Gen., 429 F.3d 1002,
1007 (11th Cir. 2005) (per curiam) (same).
14
Furthermore, even assuming Olivo had established a well-founded fear,
substantial evidence supports the finding that Olivo’s application failed on the
second prong of the analysis, that is, the requirement that the well-founded fear of
persecution be based upon a statutorily protected ground. As discussed previously,
Olivo failed to show any causal connection between her fear of future persecution
and her own political opinions or her membership in a particular social group. To
circumvent this requirement, Olivo attempts to argue on appeal that the political
opinions of her son Carlos have been imputed to her by the Bolivarian Circles,
such that the sins of Carlos will likely be visited upon her in the event she returns
to Venezuela.
We previously have recognized that “an imputed political opinion, whether
correctly or incorrectly attributed, may constitute a ground for a well-founded fear
of political persecution within the meaning of the INA.” Al Najjar, 257 F.3d at
1289 (citations and alteration omitted). But even if a political opinion is imputed
to the asylum applicant, the applicant is still required to show that he or she has a
fear of future persecution because of that imputed political opinion. Al Najjar, 257
F.3d at 1289. Even if we were to attribute Carlos’ political stance to Olivo, Olivo
would still have the burden of showing that the harassment she will likely receive
from the Bolivarian Circles would be based on Carlos’ political views. This she
has failed to do; as discussed previously, not only did her mistreatment at the hands
15
of the Bolivarian Circles commence before Carlos’ act of defiance, but her fear of
future harm has more to do with the fact that she lives in an upper middle class
neighborhood and less with the fact that Carlos’ anti-Chavez views have been
attributed to her. The IJ observed that the Bolivarian Circles’ actions “affect[ed]
everyone in the middle class neighborhood,” and that there was no showing that
they were “after her because her son refused to follow [an] order.” R at 67.
Substantial evidence supports that finding. Thus, we conclude that Olivo failed to
show that Carlos’ political opinions would likely be imputed to her.
C. Withholding of Removal
Substantial evidence also supports the IJ’s finding that Olivo failed to
quality for withholding of removal under the INA. “An applicant for withholding
of deportation must show a ‘clear probability of persecution,’ or that he will more
likely than not be persecuted if deported.” Nkacoang v. INS, 83 F.3d 353, 355
(11th Cir. 1996) (citing INS v. Stevic, 467 U.S. 407, 413, 104 S. Ct. 2489, 2492
(1984)). This is a more stringent standard than the “well-founded fear” standard
required for asylum eligibility. Al Najjar, 257 F.3d at 1292-93. Thus, “[i]f an
applicant is unable to meet the ‘well-founded fear’ standard for asylum, he is
generally precluded from qualifying for either asylum or withholding of
deportation.” Nkacoang, 83 F.3d at 355 (citation omitted). Because Olivo failed
to demonstrate a well-founded fear of persecution sufficient to support an asylum
16
claim, the IJ properly found that she was unable to satisfy the greater burden
attending a request for withholding of removal.
D. Protection Under CAT
In making out a claim under CAT, “[t]he burden of proof is on the applicant
. . . to establish that it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). In turn,
“torture” is defined as:
[A]ny act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as
obtaining from him or her or a third person information or a
confession, punishing him or her for an act he or she or a third person
has committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
8 C.F. R. § 208.18(a)(1). Relief under CAT includes the mandatory remedy of
withholding of removal. See 8 C.F.R. § 208.16(c)(4).
Olivo has not submitted any evidence that she suffered, or is likely to suffer,
“severe pain or suffering” rising to the level of torture. See 8 C.F.R. §
208.18(a)(1). Although the addendum to her application references extrajudicial
killings, kidnappings, and torture undertaken with the implicit support of the
Chavez government, the majority of these alleged incidents, while loathsome,
involved acts against political dissidents, opposition party members, and anti-
17
Chavez demonstrators. Olivo failed to show how similar mistreatment was “more
likely than not” to befall her. See 8 C.F.R. § 208.16(c)(2). Indeed, as previously
discussed, there was hardly any evidence presented to show why she would be
singled out for harm by the Chavez government. Accordingly, substantial
evidence supports the IJ’s denial of Olivo’s application for protection under CAT.
III. CONCLUSION
Olivo has petitioned this court for a review of the IJ’s order denying her
applications for asylum and withholding of removal under the INA and denying
her petition for protection under CAT. Substantial evidence supports the IJ’s
conclusion that Olivo did not suffer past persecution on the basis of a statutorily
protected ground. Nor does Olivo have a “well-founded fear of future persecution”
as our precedents have interpreted that standard. Substantial evidence further
supports the IJ’s decision that Olivo failed to show that it is more likely than not
that she will be persecuted in the future, or that it is more likely than not that she
will be tortured if she is removed to Venezuela. Accordingly, the IJ did not err in
denying Olivo’s application. PETITION DENIED.
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