Orlando Castellanos 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[DO NOT PUBLISH]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
FEB 9, 2007
No. 06-13499 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

Agency Nos. A97-925-671
A97-925-672

ORLANDO CASTELLANOS,
CARMENZA GABY CASTELLANOS,
DAVID ALEJANDRO PENA-OROZCO,
DIEGO FERNANDO CASTELLANOS,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(February 9, 2007)

Before ANDERSON, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
 Orlando Castellanos, on behalf of himself, his wife, Carmenza Gaby

Castellanos, and their two sons, David Alejandro Pena Orozco and Diego Fernando

Castellanos, all citizens of Venezuela, petitions for review of the order of the

Board of Immigration Appeals that affirmed the decision of an Immigration Judge

to deny his application for asylum and withholding of removal under the

Immigration and Nationality Act and relief under the United Nations Convention

Against Torture, 8 U.S.C. § 1231(b)(3). The Board of Immigration Appeals denied

Castellanos’s application because it concluded that he had not suffered past

persecution and did not have a well-founded fear of future persecution if he

returned to Venezuela because relocation was possible. Because substantial

evidence supports the decision of the Board of Immigration Appeals, we deny the

petition.

I. BACKGROUND

On May 19, 2004, Castellanos and his family were served with notices to

appear for having remained in the United States for a period longer than

authorized. On October 22, 2004, Castellanos and his family appeared before an

Immigration Judge, admitted the allegations in the notices to appear and conceded

removability. Castellanos requested asylum, withholding of removal, and relief

under the Convention Against Torture.

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 Castellanos was the only witness at the hearing before the Immigration

Judge. Castellanos testified that he was born in Venezuela and had last entered the

United States on August 18, 2003. He testified that he had come to the United

States to seek asylum because he had been persecuted in Venezuela on account of

his political opinion. In support of his claim for asylum, Castellanos testified that

he was a businessman involved in international trade and he openly opposed the

regime of Hugo Chavez. Castellanos testified that as a result of his participation in

marches, strikes, and meetings in opposition to the Chavez government, he was

persecuted by members of the Bolivarian Circles, which Castellanos testified were

pro-Chavez organizations.

The alleged persecution about which Castellanos testified consisted of three

incidents. First, during a national strike in which Castellanos participated that

began in December 2002 and lasted for 63 days, Castellanos received threatening

telephone calls from members of the Bolivarian Circles who stated that Castellanos

would have to change his political ways or face the consequences. Castellanos

testified that he received these calls almost daily during December and that he

understood the consequences to be death. Second, on January 8, 2003, Castellanos

testified that his business was vandalized by members of the Bolivarian Circles.

The vandals attempted to force Castellanos to open the business during the strike,

called Castellanos a traitor, and referred to him by name. The vandals did not
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physically harm Castellanos because his neighbors intervened. Third, Castellanos

testified that, on August 10, 2003, he was intercepted on his way home from the

office by three armed members of the Bolivarian Circles. He was forced to exit his

car, was beaten, and was warned to cease his activities or he would be killed. On

each occasion, Castellanos’s harassers threatened that Castellanos’s family would

also pay the consequences. Although Castellanos reported the incidents to the

authorities, no action was taken. He came to the United States eight days after the

August 10, 2003, beating.

The Immigration Judge denied the application for relief. The Immigration

Judge specifically found that Castellanos had not suffered persecution in the past

and did not have a well-founded fear of persecution if he returned to Venezuela.

On appeal, the Board of Immigration Appeals affirmed the decision of the

Immigration Judge. In a separate opinion, the Board concluded that Castellanos

had not suffered past persecution and had not established that he could not relocate

within Venezuela.

II. STANDARD OF REVIEW

We review only the decision of the Board of Immigration Appeals, except to

the extent that it expressly adopts the opinion of the Immigration Judge. See Al

Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Insofar as the Board

adopts the reasoning of the Immigration Judge, we also review that decision. See
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Prado-Gonzalez v. INS, 75 F.3d 631, 632 (11th Cir. 1996). We review factual

determinations under the substantial evidence test. Sepulveda v. U.S. Att’y Gen.,

401 F.3d 1226, 1230 (11th Cir. 2005). We must affirm the decision of the Board

of Immigration Appeals if it is “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Id. “Under this highly deferential

standard of review, the [Board]’s decision can be reversed only if the evidence

‘compels’ a reasonable fact finder to find otherwise.” Id. (citation omitted).

III. DISCUSSION

Castellanos makes two arguments on appeal. He argues first that he

established past persecution on account of a protected ground. He argues second

that he established a well-founded fear of persecution if he returned to Venezuela.

Each argument fails.

“[P]ersecution is an extreme concept, requiring more than few isolated

incidents of verbal harassment or intimidation.” Id. at 1231 (quotation omitted).

“[M]ere harassment does not amount to persecution.” Id. The Board of

Immigration Appeals concluded that the incidents of which Castellanos

complained did not rise to the level of persecution. To grant Castellanos’s petition

on the ground that he established past persecution, we must conclude that the

evidence compels the opposite conclusion. See id. at 1230.

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 Substantial evidence supports the conclusion of the Board of Immigration

Appeals that Castellanos did not suffer past persecution. The threatening telephone

calls and vandalism to Castellanos’s business do not amount to more than

harassment. Castellanos was not injured, and he admitted that “the events were not

that bad.” Although Castellanos suffered a physical attack and injury, the record

does not compel the conclusion that this attack amounted to persecution.

Substantial evidence supports the conclusion of the Board of Immigration Appeals

that this one incident of abuse was not so severe that it required medical attention.

Substantial evidence also supports the conclusion of the Board of

Immigration Appeals that Castellanos did not have an objectively reasonable fear

of future persecution because Castellanos could relocate to another part of

Venezuela. See 8 C.F.R. § 208.13(b)(2). Castellanos asserts that he would be

persecuted wherever he resided in Venezuela, but there is substantial evidence to

the contrary. The record contains evidence that the Bolivarian Circles, which

Castellanos alleges were responsible for his mistreatment, are small, autonomous

groups who would not have the desire or capability of coordinating efforts to track

him throughout Venezuela.

Although the record contains evidence of some national promotion of the

Bolivarian Circles through a toll-free number established to disseminate

information on forming new groups and an Assistant National Coordinator, the
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evidence does not compel the conclusion that anyone exercises central control of

the Bolivarian Circles. Each Circle is a grassroots organization with typically

seven to eleven members led by First and Second Coordinators. There were more

than 7000 Circles in 2001. There is even substantial evidence that most Bolivarian

Circles are engaged primarily in humanitarian work. The record contains evidence

that approximately 200 Bolivarian Circle leaders met on one occasion to rally in

support of President Chavez, but that evidence does not compel the conclusion that

Castellanos would be unable to relocate in Venezuela. Although the record

establishes that Castellanos was mistreated by several members of one or more

local Circles, the record does not establish that his “notoriety as an activist would

outlast” his lengthy absence from Venezuela such that he would be singled out for

persecution wherever he relocated. Sepulveda, 401 F.3d at 1232.

Castellanos’s claims for withholding of removal and relief under the

Convention Against Torture also fail. Because Castellanos did not “meet the

‘well-founded fear’ standard for asylum, it is a fortiori that he cannot meet the

withholding of removal standard.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814,

819 (11th Cir. 2004) (citations omitted). Likewise, Castellanos did not establish

that it was “more likely than not” that he would be tortured if he were returned to

Venezuela. 8 C.F.R. § 208.16(c)(2).

PETITION DENIED.
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