Alvarez-Guardia, How v. Mukasey, Michael B.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2487
HOWARD H. ALVAREZ GUARDIA and
ISABEL C. MONTESINOS BALLESTEROS,
Petitioners,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petitions for Review of an Order of
the Board of Immigration Appeals.
Nos. A97 597 128 & No. A97 597 129
____________
ARGUED APRIL 2, 2008—DECIDED MAY 2, 2008
____________
Before EASTERBROOK, Chief Judge, and BAUER and EVANS,
Circuit Judges.
EVANS, Circuit Judge. Howard Hildemar Alvarez Guardia
and his wife Isabel Cleotilde Montesinos Ballesteros
petition for review of a final order of the Board of Immi-
gration Appeals, which affirmed a final order of removal.
The petitioners are reasonably well-to-do citizens of
Venezuela, who lived in Caracas. After previous sepa-
rate visits to the United States—Ballesteros spent a
2 No. 07-2487
week here (we don’t know where) in October of 2001, and
Alvarez, a month later, spent a week vacationing in
Miami—both returned to their home in Caracas. They
came here again, this time together, on February 16,
2002, on a 6-month visa that allowed them to stay until
August 15, 2002. Although August 15, 2002, came and
went, the petitioners didn’t do the latter: they overstayed
their visa and, 14 months later, on October 22, 2003,
filed an application for asylum. This was followed,
2 months later, by their receipt of a Notice to Appear
filed by the Department of Homeland Security (the suc-
cessor to the old Immigration and Naturalization Service)
which required their presence before an immigration
judge to show cause why they should not be ordered
removed from the country. The “political situation” in
Venezuela, say the petitioners, motivated their desire not
to return there, so a brief look back at that “situation,”
which for our purposes began in the early 1990s, is in
order.
After staging an unsuccessful coup d’etat in 1992 and
spending two years in prison as a result, Hugo Chavez
was elected President of Venezuela in 1998. In 2001,
Chavez formed a group called the Bolivarian Circles; by
2002, its membership was estimated to be 700,000. Mem-
bers of the organization allegedly verbally and physically
attack opponents of the President. They also break up anti-
Chavez marches. The petitioners said they joined three
such opposition marches during 2001 and 2002. In addi-
tion, the petitioners were supporters of Accion
Democratica, the principal party in opposition to President
Chavez in the Venezuelan Assembly. The petitioners
themselves are not “card carrying” members of the party,
though Mr. Alvarez’s grandparents are.
No. 07-2487 3
The petitioners tell of a time, on February 2, 2002, when
they were attacked by members of the Bolivarian Circles,
who tried to flip over the taxi in which they were riding.
Mr. Alvarez got out of the taxi to ask the attackers to let
them pass. Instead, he was beaten so badly that he could
not work for two weeks. He filed a police report and was
referred for medical treatment. Soon after the attack the
petitioners left Venezuela and came to the United States.
They arrived, as we said, on February 16, 2002.
The application for asylum, filed on October 22, 2003,
was untimely. Under 8 U.S.C. § 1158(a)(2)(B), an alien
must establish “by clear and convincing evidence that
the application has been filed within 1 year after the date of
the alien’s arrival in the United States.” Petitioners at-
tempted to fit within possible exceptions to the one-year
deadline, but they have now acknowledged that our
decision in Jimenez Viracacha v. Mukasey, 519 F.3d 388 (7th
Cir. 2008), precludes the claim, and they are no longer
pursuing it.
Petitioners also sought withholding of removal, a claim
respondent argues is waived on appeal. The primary
focus of petitioners’ main brief, which was filed before
our decision in Viracacha, was on the asylum application.
The respondent argues that, by their failure to argue that
they are also entitled to withholding of removal, peti-
tioners waived any appeal of the denial of that claim. See
Huang v. Gonzales, 403 F.3d 945 (7th Cir. 2005). It is a close
question. But because the petitioners’ main brief makes
occasional, though very perfunctory mention of with-
holding of removal, we will consider the claim.
When the Board of Immigration Appeals adopts the
immigration judge’s decision while supplementing it
with its own reasons, we review the decision of the IJ as
4 No. 07-2487
supplemented. Gjerazi v. Gonzales, 435 F.3d 800 (7th Cir.
2006). We review factual determinations under a “highly
deferential version of the substantial evidence test . . . .”
Karapetian v. INS, 162 F.3d 933, 936 (7th Cir. 1998).
A withholding of removal claim is more difficult to
sustain than a claim for asylum. To qualify for withholding
of removal under 8 U.S.C. § 1231(b)(3), petitioners must
establish that a “clear probability” exists that their lives
or freedom would be threatened in Venezuela because
of their race, religion, nationality, membership in a partic-
ular social group, or political opinions. Tesfu v. Ashcroft,
322 F.3d 477, 481 (7th Cir. 2003). They must prove that it
is more likely than not that they will be subjected to
persecution upon removal. INS v. Cardoza-Fonseca, 480
U.S. 421 (1987).
There are two ways to establish the claim for with-
holding of removal. If an applicant can show that he
suffered past persecution in the country of removal, “it
shall be presumed that the applicant’s life or freedom
would be threatened in the future in the country of re-
moval . . . .” 8 C.F.R. § 1208.16(b)(1); Firmansjah v. Gonzales,
424 F.3d 598, 605 (7th Cir. 2005). Failing that, an appli-
cant may offer evidence of a clear probability of future
persecution. BinRashed v. Gonzales, 502 F.3d 666 (7th
Cir. 2007). The IJ and the Board ruled that the peti-
tioners failed to establish either.
There is an absence of substantial evidence in the record
to support a finding that the petitioners suffered past
persecution in Venezuela because of membership in a
particular group or because of their political opinions.
Mr. Alvarez says he was a member of Accion Democratica,
but he admits that he was not an active member and
No. 07-2487 5
attended meetings only when his grandparents took him
when he was a child. He participated in two opposition
marches, but so did thousands of other people. He admit-
ted that he was not harmed during the marches. The
only evidence of his ever being harmed is the taxi cab
incident. He argues that only the higher classes take taxis
in Venezuela, and therefore he was attacked because he
was a member of a group with high social standing. The
IJ rejected the contention and found that there was no
evidence that the attack was anything other than a ran-
dom act of violence. In fact, Mr. Alvarez admitted that
he made a mistake in getting out of the taxi when it was
near an ongoing demonstration being held by the
Bolivarian Circles. The mob which attacked him did not
seem to know who he was. Mr. Alvarez testified that he
was attacked simply because people in the mob have
aggressive natures and “resolve everything with fights.”
Furthermore, the police assisted him at the scene and
referred him for medical treatment. The evidence sup-
ports the IJ’s finding that the incident falls short of show-
ing past persecution.
The claim of past persecution is further undermined
because of petitioners’ previous return to Venezuela
after other visits to the United States. There is nothing
in the record which would compel us to come to a con-
clusion contrary to that reached by the IJ and the Board.
The Board also found that the petitioners failed to
establish that it was more likely than not that they
would face future persecution if they were required to
return to Venezuela. That Mr. Alvarez voted against
President Chavez does not show that he will suffer future
persecution; as the IJ noted, so did three million other
people. Nor does the simple fact that the petitioners have
6 No. 07-2487
been living in the United States establish that it is more
likely than not that they will be persecuted if they return
to Venezuela. The record is devoid of evidence re-
garding the likelihood of persecution.
The petitioners contend that the likelihood that they
will be persecuted is heightened by the fact that their
families began to receive telephone threats in 2005. But
petitioners are unable to identify the source or purpose
of the threats. A petitioner must be able to identify the
individual or group responsible for a particular threat
and the purpose of the threat. Further, the claim must
rise above the level of harassment to be evidence of perse-
cution. See Mitev v. INS, 67 F.3d 1325 (7th Cir. 1995).
Furthermore, petitioners’ parents, who are the ones
who received the threats, continue to live in Venezuela,
going about their normal activities with their social demo-
cratic friends. Evidence that an applicant’s family members
remain unharmed in their home country may support a
finding that the applicant is unlikely to suffer future
persecution. Ambati v. Reno, 233 F.3d 1054 (7th Cir. 2000). In
fact, some of the threats have been reported to the
police along with requests for help. One of the families
has changed their telephone number, which caused the
threats to stop. The evidence falls short: “Threats can
constitute past persecution only in the most extreme
circumstances, such as where they are of a most immedi-
ate or menacing nature or if the perpetrators attempt to
follow through on the threat.” Bejko v. Gonzales, 468
F.3d 482, 486 (7th Cir. 2006).
In short, there is insufficient evidence in the record to
show a clear probability that petitioners would suffer
persecution if they returned to Venezuela.
No. 07-2487 7
Accordingly, the petition for review is DISMISSED IN PART
and DENIED IN PART.
USCA-02-C-0072—5-2-08