Monica Josefina Rosales v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11062 FEB 6, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK

Agency No. A098-379-427

MONICA JOSEFINA ROSALES
ANDRES EDUARDO VASQUEZ,
DAVID JAVIER VASQUEZ,
JOSE ANTONIO VASQUEZ,

llllllllllllllllllllllllllllllllllllllll Petitioners,

versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll Respondent.

________________________

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

(February 6, 2012)
Before WILSON, MARTIN, and KRAVITCH, Circuit Judges.

PER CURIAM:

Monica Josefina Rosales and her three sons, as derivative applicants,

petition us for review of the Board of Immigration Appeals’ (BIA) decision

affirming the Immigration Judge’s (IJ) order denying her applications for asylum

under the Immigration and Nationality Act (INA) § 208(a), 8 U.S.C. § 1158(a),

withholding of removal, INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief under

the United Nations Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (CAT), 8 C.F.R. § 208.16(c). Rosales argues

the BIA incorrectly found that she did not qualify for withholding of removal

because she established that she suffered past persecution on account of her

political activities in Venezuela and because she established a well-founded fear

of future persecution.

Rosales failed to dispute the denial of asylum and CAT relief in her appeal

to the BIA; therefore, she failed to exhaust these issues below and waives them on

review. See Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861 n.5 (11th Cir. 2007)

(per curiam) (holding that an applicant failed to exhaust an issue because he did

not raise the issue before the BIA). Rosales’s sons are ineligible for relief under

INA § 241(b)(3) because aliens cannot receive derivative eligibility for

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withholding of removal. See Delgado, 487 F.3d at 862 (holding that the

withholding-of-removal statute, unlike the asylum statute, confers no derivative

benefits). Thus, the only issue on review is Rosales’s application for withholding

of removal.

I.

We review the BIA’s legal determinations de novo and factual

determinations under the substantial evidence test. Al Najjar v. Ashcroft, 257 F.3d

1262, 1283–84 (11th Cir. 2001). Under the highly deferential substantial evidence

test, we affirm the BIA’s factual determination that an alien is statutorily ineligible

for withholding of removal if the determination is “supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Id. at

1284 (quotation omitted). We reverse the BIA’s finding of facts only if the record

compels it, but “the mere fact that the record may support a contrary conclusion is

not enough to justify a reversal of the [BIA’s] findings.” Adefemi v. Ashcroft, 386

F.3d 1022, 1027 (11th Cir. 2004) (en banc). We review “only the Board’s

decision, except to the extent that it expressly adopts the IJ’s opinion.” Al Najjar,

257 F.3d at 1284. Here, the BIA issued its own opinion and relied on the IJ’s

reasoning without expressly adopting the IJ’s opinion; therefore, we “review the

BIA’s decision, with regard to those matters on which it rendered its own opinion

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and reasoning.” Tang v. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009).

Withholding of removal is granted if an applicant establishes that more

likely than not the applicant’s life or freedom would be threatened in the country

of removal because of the applicant’s race, religion, nationality, membership in a

particular social group, or political opinion. INA § 241(b)(3), 8 U.S.C.

§ 1231(b)(3)(A). The applicant has the burden to show that he or she meets the

requirements for withholding of removal. 8 C.F.R. § 1208.16(b). “[P]ersecution

is an extreme concept, requiring more than a few isolated incidents of verbal

harassment or intimidation.” Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1331

(11th Cir. 2011) (per curiam) (quotation omitted). “If the applicant can show that

the persecution was, at least in part, motivated by a protected ground, then the

applicant can establish eligibility for withholding of removal.” Tan v. U.S. Att’y

Gen., 446 F.3d 1369, 1375 (11th Cir. 2006).

Rosales argues that the IJ erroneously applied the standard required by the

REAL ID Act, and the BIA relied on this incorrect reasoning. Although it is clear

from the IJ’s decision that he applied the incorrect standard, the BIA cured this

defect by applying the correct pre-REAL ID Act standard in its opinion.

Specifically, the BIA found that Rosales failed to establish that she was persecuted

on account of any of the protected grounds. Substantial evidence supported the

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finding that any harm that Rosales experienced resulted from the efforts of the

Venezuelan government to confiscate her husband’s property, not from her

political activities. Finally, substantial evidence supported the BIA’s conclusion

that the harm against Rosales did not rise to the level of persecution because she

only suffered property damage, threatening notes, and threatening telephone calls.

See, e.g., Sepulveda v. U. S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (per

curiam) (holding that the bombing of a restaurant where the applicant worked,

along with threats, did not constitute past persecution that would require reversal

of an IJ decision); Silva v. U. S. Att’y Gen., 448 F.3d 1229, 1237 (11th Cir. 2006)

(concluding that a threatening note and telephone calls were mere harassment

rather than persecution).

II.

An applicant who has not suffered past persecution may demonstrate that

her life or freedom would be threatened in the future by establishing future

persecution, by a preponderance of the evidence, on account of a protected

ground. 8 C.F.R. § 1208.16(b)(2); see also Imelda v. U.S. Att’y Gen., 611 F.3d

724, 728 n.3 (11th Cir. 2010).

There is substantial evidence in the record to support the BIA’s conclusion

that there is no likelihood of future persecution. The BIA found that Rosales’s

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return trips to Venezuela were not the actions of an individual who is genuinely

fearful for her life. Moreover, during both of the return trips home no harm came

to Rosales, and during the most recent return trip home no one threatened Rosales.

See De Santamaria v. Att’y Gen., 525 F.3d 999, 1011 (11th Cir. 2008) (finding

that voluntary returns to a home country may weaken or undermine an applicant’s

claim of persecution).

Upon review of the record and the parties’ briefs, we deny Rosales’s

petition.

PETITION DENIED.

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