[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 25, 2007
No. 05-16419 THOMAS K. KAHN
________________________ CLERK
BIA Nos. A77-006-166 & A97-209-929
RAMON ANTONIO DELGADO,
CARMEN YELITZA DELGADO,
RAMON ANTONIO DELGADO MAZA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 25, 2007)
Before BARKETT and KRAVITCH, Circuit Judges, and TRAGER,* District
Judge.
PER CURIAM:
*
Honorable David G. Trager, United States District Judge for the Eastern District of
New York, sitting by designation.
Ramon Antonio Delgado (“Delgado”), his wife Carmen Yelitza Delgado
(“Carmen”), and their adult son Ramon Delgado (“Ramon”) (collectively “the
Delgados”), natives and citizens of Venezuela, petition this court for review of the
Board of Immigration Appeals’s (“BIA”) affirmance of the Immigration Judge’s
(“IJ”) orders of removal and denials of asylum and withholding of removal, 8
U.S.C. §§ 1158, 1231.1 In their petition for review, they challenge (1) the
determination that their asylum applications were untimely, (2) the denial of
withholding of removal relief, and (3) the denial of derivative benefits for Carmen.
After oral argument and a review of the record, we dismiss the petition as to the
first issue, and grant the petition as to the second. The final issue before us is one
of first impression in this circuit: whether a petitioner’s spouse is eligible for
derivative benefits under the withholding statute. We conclude that she is not;
accordingly, we deny the petition on this ground.
I. Background
Delgado, Carmen, and Ramon were admitted to the United States on
different days in 1999. Each remained beyond the expiration period of his or her
visa and received notices to appear charging them with removability. Delgado and
1
The Delgados initially requested relief under the United Nations Convention Against
Torture (“CAT”). The IJ and BIA denied relief, and the Delgados do not challenge this decision.
Therefore, they have abandoned the issue and we do not discuss it further. Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1228 (11th Cir. 2005).
2
Ramon filed separate applications for asylum in 2003. Carmen proceeded as a
beneficiary of Delgado’s application. The applications were consolidated before
the IJ.
The basis for the requested relief is as follows according to Delgado’s and
Ramon’s testimony at the removal hearing: In 1997, Delgado, a former military
official, and Ramon participated briefly in an organization supporting Venezuelan
Presidential candidate Hugo Chavez led by retired military personnel. After
attending three meetings, Delgado learned that the organization planned to use
violence to achieve its goals, and he denounced the organization and spoke out
against the use of violence. In March 1998, he received several threatening phone
calls. Thereafter, two unknown masked men approached Delgado and Ramon,
pointed what turned out to be unloaded guns at them, and pulled the triggers.
These men warned Delgado and Ramon that they would be dead if they continued
to speak out. Delgado reported the incident to the police.
In the following weeks, on two separate occasions, Delgado discovered that
the brakes on his car had been cut, his tires were slashed, his windows were
broken, and someone vandalized his car with political graffiti. Both of these
incidents occurred while the car was parked in his housing complex. Again,
Delgado reported these incidents to the police.
Delgado continued to receive threatening calls, and in May 1998, five
3
unknown men attacked Ramon, who was beaten until he was almost unconscious.
The men told Ramon that there would be further consequences if Delgado
continued his political activities. Ramon received medical treatment, and Delgado
reported this incident to the police. Delgado ultimately decided that the family had
to leave Venezuela, and he and his family came to the United States in August
1998, but they remained only a short time before Delgado and Carmen returned to
Venezuela. Ramon stayed in the United States except for a brief trip back home.
Back in Venezuela, Delgado went into hiding but re-entered the United States in
October 1998, this time leaving Carmen in Venezuela. Delgado returned to
Venezuela in March 1999, where he found another threatening message on his
answering machine. Realizing he was still in danger, Delgado returned to the
United States in April 1999; Carmen returned in December 1999. Ramon had re-
entered the United States in February 1999.
Delgado did not apply for asylum immediately, in part because immigration
attorneys allegedly had told him that he was not eligible for relief. In 2001,
Delgado received an invitation from the Venezuelan Consulate, which he
interpreted as a reminder that Chavez’s supporters could find him. In 2003,
Delgado’s attorney in Venezuela received a death threat warning Delgado not to
return. The Delgados then filed their applications for asylum, withholding of
removal, and CAT relief, attaching the police reports and reports of Ramon’s
4
medical treatment following the attack on him.
The IJ denied relief, concluding that the consolidated asylum application
was time-barred and that, although Delgado and Ramon were credible, with the
exception of the alleged 2003 threat to Delgado’s attorney, the events had not
established past persecution on account of a protected ground. The BIA affirmed
without comment. The Delgados now petition this court for review.
II. Discussion
The Delgados challenge the IJ and BIA’s conclusion that their asylum
applications were untimely and that they failed to establish past persecution based
on a protected ground. The government responds that we lack jurisdiction to
review the timeliness issue, Delgado and Ramon were not entitled to relief, and
Carmen was not entitled to derivative benefits. We address each of these in turn.
A. Asylum
We review questions of subject-matter jurisdiction de novo. Brooks v.
Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002).
An application for asylum must be filed within one year after the date of the
alien’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). Under § 1158(a)(3),
this court lacks jurisdiction to consider an untimely application unless the alien can
demonstrate extraordinary circumstances relating to the delay in filing an
application within the one-year period. See id. § 1158(a)(2)(D); Mendoza v. U.S.
5
Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). This rule was not altered by the
expansion of jurisdiction in the REAL ID Act.2 See Chacon-Botero v. U.S. Att’y
Gen., 427 F.3d 954, 957 (11th Cir. 2005).
Delgado and his family entered the United States for the last time on
different dates in 1999, but did not file applications for asylum until June 2003.
The IJ determined both that the Delgados failed to comply with the one-year time
limit, and that there were no extraordinary or changed circumstances that would
toll the one-year statute of limitations. See Mendoza, 327 F.3d at 1287. In their
appeal to the BIA, the Delgados did not raise the timeliness issue. Therefore, they
have not exhausted it, and we need not consider it. Fernandez-Bernal v. U.S. Att’y
Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001).3 Even if we were to address the
issue, timeliness is not a question of law. We, therefore, lack jurisdiction to review
the IJ and BIA’s decision. Accordingly, we dismiss the petition as to the asylum
claims.
B. Withholding of Removal
Where the BIA adopts the IJ’s decision, we review the IJ’s decision. Al-
2
The Real ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231.
3
This panel is bound by this decision unless it is overruled by the U.S. Supreme Court or
this court sitting en banc. Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8, 1302-03 (11th Cir.
2001).
6
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Legal determinations
are reviewed de novo, and factual findings are reviewed under the substantial
evidence test. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004).
We must affirm the decision below “if it is supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Antipova v. U.S.
Att’y Gen., 392 F.3d 1259, 1261 (11th Cir. 2004) (quotation omitted). Under this
highly deferential standard of review, denial of relief may be reversed only if the
evidence would compel a reasonable fact finder to conclude that the requisite fear
of persecution exists. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1, 112 S.Ct. 812,
815 n.1, 117 L.Ed.2d 38 (1992).
An alien is entitled to withholding of removal under the INA if he can show
that his life or freedom would be threatened on account of his race, religion,
nationality, membership in a particular social group, or political opinion.
Mendoza, 327 F.3d at 1287; see also INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). “An
alien bears the burden of demonstrating that he more-likely-than-not would be
persecuted or tortured upon his return to the country in question.” Mendoza, 327
F.3d at 1287. The alien can meet his burden by showing either: (1) “past
persecution in his country based on a protected ground,” in which case a rebuttable
presumption is created that his life or freedom would be threatened if he returned
to his country; or (2) “a future threat to his life or freedom on a protected ground in
7
his country.”4 Al Najjar, 257 F.3d at 1287.
“[P]ersecution is an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation.” Sepulveda v. U.S. Attorney Gen.,
401 F.3d 1226, 1231 (11th Cir. 2005) (quotations omitted). In determining
whether an alien has suffered past persecution, the IJ must consider the cumulative
effects of the incidents.5 Ruiz v. U.S. Att’y Gen., 479 F.3d 762, 766 (11th Cir.
2007).
After a thorough review of the record, we are compelled to conclude that the
IJ and BIA erred by denying Delgado and Ramon withholding of removal.
Delgado and Ramon were stopped by masked men who pointed unloaded
weapons at them and pulled the triggers. A few months later, Ramon was attacked
and severely beaten. In both cases, the unknown attackers stated that these events
were warnings and there would be consequences for Delgado’s political
4
Where the Delgados experienced past persecution, there is a rebuttable presumption of
future persecution, and the burden shifts to the government to show both that (1) relocation is
possible within Venezuela, and (2) it is reasonable to expect the Delgados to relocate. See
Arboleda v. U.S. Att’y Gen., 434 F.3d 1220, 1223-24 (11th Cir. 2006). Regarding the
government’s contention that, because Chavez has been elected, there no longer would be any
threats to the Delgados, the Country Report states that there have been at least a dozen politically
motivated killings after Chavez’s election.
5
The IJ explicitly found that Delgado’s claims of threats to his attorney in 2003 were not
credible and the Delgados do not specifically challenge this finding on appeal. Because the
Delgados did not raise the issue before the BIA, they have not exhausted it. INA § 242(d)(1), 8
U.S.C. § 1252(d)(1); Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir.
2001). Notably, the IJ found the remainder of Delgado’s testimony regarding the other incidents
credible. Thus, we consider those events about which Delgado testified credibly.
8
opposition. The undisputed testimony indicated that Ramon was attacked as result
of his and his father’s political opinions. The record therefore compels the
conclusion that the attacks were on account of Delgado’s political opinion, even
though Delgado and Ramon were unable to specifically name or identify the
attackers. Cf. Silva v. U.S. Att’y Gen., 448 F.3d 1229 (11th Cir. 2006) (assuming
without deciding that the incident in which the unknown gunmen shot at Silva
qualified as persecution, but holding that, because Silva testified that she did not
know who the gunmen were, the record did not compel the conclusion that she was
attacked based upon her political opinion).6 Although each of the incidents taken
separately would not establish persecution, see Sepulveda, 401 F.3d at 1231, when
considered together the events compel the conclusion that Ramon and Delgado
suffered past persecution due to their political opinions. Ruiz, 479 F.3d at 766.
Therefore, we conclude that based on the cumulative effect of the two attacks, the
continued threatening calls, and the incidents involving the car, Delgado and
Ramon have met their burden. Accordingly, we grant the petition as to Delgado
and Ramon.
C. Derivative Benefits
The final issue, and one of first impression in this circuit, is whether the
6
Unlike the facts in Silva, in this case, the attackers made statement showing the
motivation of their attacks, and, during the second attack, specifically identified Ramon as
Delgado’s son before beginning to beat him.
9
withholding statute provides for derivative benefits for an alien’s spouse.
In interpreting a statute, our first step “is to determine whether the language
at issue has a plain and unambiguous meaning with regard to the particular dispute
in the case.” D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1235 (11th Cir.
2005). “Where Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or exclusion.”
Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17
(1983) (citation and quotations omitted). Also, “[w]here Congress knows how to
say something but chooses not to, its silence is controlling.” CBS Inc. v.
PrimeTime 24 Joint Venture, 245 F.3d 1217, 1226 (11th Cir. 2001) (citing In re
Griffith, 206 F.3d 1389, 1394 (11th Cir. 2000) (en banc) (citation and quotations
omitted, alteration in original).
Although the asylum statute explicitly creates derivative rights for the
spouse of a petitioner, the withholding statute contains no mention of derivative
rights. Compare 8 U.S.C. § 1158(b)(3)(A) and 8 C.F.R. §§ 207.7 and 208.21, with
8 U.S.C. § 1231. Congress’s silence thus dictates our holding in this case: there
are no derivative benefits associated with a grant of withholding of removal. See
also Huang v. I.N.S., 436 F.3d 89, 95 (2d Cir. 2006) (denying derivative benefits);
Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005) (same).
10
Accordingly, we deny the petition as to Carmen’s claim for withholding of
removal.
III. Conclusion.
Based on the foregoing, we DISMISS the petition in part as to the asylum
claim, we GRANT the petition in part as to Delgado’s and Ramon’s withholding
claims, and we DENY Carmen’s claim for derivative benefits. The BIA’s decision
is VACATED and REMANDED for further proceedings consistent with this
opinion.
11