[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 30, 2008
No. 08-12653 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A98-736-504 & A98-736-505
MARIA EUGENIA COLIMODIO DE VALDERRAMA,
AARON ALI VALDERRAMA ALVAREZ,
EDUARDO AARON VALDERRAMA COLIMODIO,
JUAN ANDRES VALDERRAMA COLIMODIO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 30, 2008)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Petitioner Maria Eugenia Colimodio De Valderrama,1 is a native and citizen
of Venezuela. She entered the United States in July 2002, with permission to
remain in the United States for six months. She failed to leave, and on April 18,
2005, she filed an application for asylum. On May 25, 2005, the Department of
Homeland Security (“DHS”) initiated removal proceedings, and on September 13,
2005, Petitioner appeared before an Immigration Judge (“IJ”) and conceded that
she was removable.
On August 2, 2006, the IJ heard her application for asylum and her
applications for withholding of removal under the Immigration and Nationality Act
(“INA”) and relief under the U. N. Convention Against Torture (“CAT”).
Petitioner testified that she belonged to a political party, Accion Democratica, in
Venezuela. The party opposed the government of President Hugo Chavez, chiefly
in party assemblies and marches. She participated in approximately ten of these
marches in February and March of 2002, during which she “expressed loudly that
[she] did not want Chavez in power.” The Chavistas were part of Chavez’s
government. Because she was involved with Accion Democratica and her
step-mother was mayor of San Cristobal,Venezuela, and a cousin of ex-president
1
This petition includes three other members of Valderrama’s family, Aaron Ali
Valderrama, Juan Aldez Valderrama, and Eduardo Ramon Valderrama. Maria Valderrama is the
lead petitioner. The three other members of her family have adopted her positions and
arguments. We therefore refer only to Petitioner Maria Valderrama in this opinion.
2
Carlos Andres Perez, the Chavistas targeted her and, she believed, would kill her if
she were returned to Venezuela. She based her belief on the following: (1) 13 to
20 anonymous telephone calls she received from the Chavistas, beginning in
January 2002. The callers threatened to harm her husband and children if she did
not stop opposing Hugo Chavez; (2) in April 2002, during a protest march
involving nearly a million protesters, she was attacked by the Chavistas (she
recognized them from the red berets they wore), grabbed by the arm, thrown to the
ground and kicked.2 She was hospitalized for two days as a result; and (3) on July
7, 2002, two masked men on motorcycles fired shots at her car and fled. The men
were Chavistas because they were wearing red berets.
Petitioner reported none of these events – the phone calls, the attack in Mira
Flores, or the shooting – to the police.
The IJ issued an oral decision at the conclusion of the hearing. Addressing
Petitioner’s asylum application, the IJ concluded that Petitioner “failed to establish
that her delay in filing [the application] was due to extraordinary circumstances
beyond her control or due to changed circumstances which materially affect her
eligibility for asylum.” He therefore held the application time-barred. Turning to
her application for withholding of removal, the IJ concluded that she “failed to
2
On cross-examination, she said that during the march fighting broke out between
different political parties and that over 100 people were injured.
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establish a clear probability that [she would] be persecuted on account of a
protected group upon . . . return to Venezuela.” That is, she failed to submit any
evidence to corroborate her claim that she was an “active participant” of Accion
Democratica aside from a registration list. Additionally, she failed to submit
medical records to document the injury she said she received in the April 2002
demonstration. Due to the lack of corroborative evidence, the IJ found that
Petitioner failed to establish it was more likely than not her life or freedom
would be threatened on account of a protected ground if she were returned to
Venezuela. The attack she suffered during the April 2002 protest march did not
amount to past persecution. Neither did the July 7, 2002 shooting incident; it
appeared to be nothing more than a random criminal act. As for CAT relief, the IJ
noted that “[t]here [was] no reason to believe that a low-level opponent of Hugo
Chavez would be singled out for torture by the Venezuelan government. After
announcing his findings and conclusions, the IJ ordered Petitioner removed to
Venezuela.
Petitioner appealed the IJ’s decision to the Board of Immigration Appeals
(“BIA”). Petitioner challenged the IJ’s asylum and withholding of removal
rulings; she did not contest the IJ’s denial of CAT relief. On April 14, 2008, the
BIA issued its decision. It dismissed the appeal of the asylum ruling because
Petitioner did not contest the IJ’s finding that her asylum application was time-
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barred in that she failed to establish extraordinary circumstances for not meeting
the one-year deadline for seeking asylum after entering the United States. See INA
§ 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). The BIA upheld the IJ’s denial of
withholding of removal and CAT relief on the grounds that the incidents Petitioner
cited as past persecution (at the hands of the Chavistas) were insufficient to make
such showing, and that she failed to establish that she is likely to be tortured if
returned to Venezuela. Petitioner now petitions this court for review of the BIA’s
decision.
In her petition, she argues that: (1) the BIA’s opinion did not disturb the IJ’s
finding that she was credible, and (2) the incidents that she described in her
testimony established past persecution “based on a protected ground of political
opinion.” She also contends that the IJ failed to take into account a Country Report
detailing various human rights abuses in Venezuela.
The BIA’s decision did not expressly adopt the IJ’s decision. Our review is
therefore limited to the BIA’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262,
1284 (11th Cir. 2001) (noting that we review only the BIA’s decision; but, to the
extent that the BIA adopts the IJ’s reasoning, we will review the IJ’s decision as
well).
As noted above, the BIA agreed with the IJ that Petitioner’s asylum
application was time-barred and thus affirmed the denial of asylum. We lack
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jurisdiction to review that ruling. Mendoza v. U. S. Att’y Gen., 327 F.3d 1283,
1287 (11th Cir. 2003). We also lack jurisdiction to review the denial of CAT relief,
even though the BIA reviewed it, because Petitioner did not challenge the IJ’s CAT
decision in her appeal to the BIA. Amaya-Artunduaga v. U. S. Att’y Gen., 463
F.3d 1247 1250 (11th Cir. 2006). What remains for our decision, then, is the BIA’s
denial of withholding of removal.
“An alien seeking withholding of removal under the INA must show 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 “bears the burden of
demonstrating that [she] more-likely-than-not would be persecuted or tortured
upon [her] return to the country in question.” Mendoza, 327 F.3d at 1287. This
burden of proof can be satisfied through credible testimony by the alien. Id. “If
the alien establishes past persecution in [her] country based on a protected
ground,” a rebuttable presumption is created that the alien’s “life or freedom would
be threatened upon return to [her] country.” Id. “An alien who has not shown past
persecution, though, may still be entitled to withholding of removal if [she] can
demonstrate a future threat to [her] life or freedom on a protected ground in [her]
country.” Id.
In Silva v. United States Att’y Gen., 448 F.3d 1229, 1234 (11th Cir. 2006),
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an alien sought asylum after: (1) receiving a written death threat while working on
a political campaign; (2) receiving repeated anonymous telephone threats; (3)
being fired at by unidentified men on motorcycles; and then (4) receiving
subsequent telephone threats that referenced the motorcycle shooting. We found
that, due to the anonymous nature of the telephone threats and the shooting, we
could not determine whether these events occurred on account of the alien’s
political opinion. Id. at 1237-39. We then determined that the only event that was
linked to the alien’s political opinion was the political campaign threat. Id. at 1237
We conclude, after careful examination of the record, that substantial
evidence supports the BIA’s conclusion that Petitioner failed to demonstrate that
she had been persecuted, or would be persecuted if removed, on account of her
political opinion, specifically her activity with Accion Democratica.
PETITION DENIED.
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