Omaira Mora De Lobo v. U.S. Attorney General , 598 F. App'x 726 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10095
Non-Argument Calendar
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Agency No. A088-246-755
OMAIRA MORA DE LOBO,
LUIS ALFONSO LOBO QUINTERO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 13, 2015)
Before MARCUS, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Petitioners Omaira Mora De Lobo (“Mora”), a native and citizen of
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Venezuela, and her husband Luis Alfonso Lobo Quintero (“Lobo”) 1 (collectively
“Petitioners”), proceeding pro se, seek review of the Board of Immigration
Appeals’s (“BIA”) order, affirming the Immigration Judge’s (“IJ”) denial of
asylum based on a finding of no past persecution and no well-founded fear of
future persecution. After review, we deny the petition for review.
I. Factual Background
In January 2007, while in the United States on a visitor’s visa, Mora applied
for asylum, withholding of removal, and relief under the United Nations
Convention Against Torture (“CAT”), listing Lobo as a derivative beneficiary.
The Department of Homeland Security subsequently issued Petitioners’ notices to
appear, charging them with removability pursuant to Immigration and Nationality
Act (“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for having remained in the
United States for a time longer than permitted.
The IJ conducted a merits hearing on Mora’s asylum application at which
she and one of her sons testified. According to the credible hearing testimony,
Petitioners were active members of the anti-Chavez Democratic Action Party. In
July 2003, people whom Petitioners think may have been “Chavistas”2 broke into
Petitioners’ home, damaging the roof, refrigerator, kitchen, and living room
1
Lobo is a citizen of Venezuela and a native of Colombia.
2
The term “Chavista” indicates a person supportive of the Chavez regime in Venezuela.
2
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furniture; defacing family pictures; and writing graffiti on the kitchen wall.
Petitioners then began receiving threatening phone calls.
In September 2003, Petitioners’ son Frank, a priest and a chaplain with the
Venezuelan military, was riding in a helicopter with several high-ranking military
personnel when it crashed. Mora and Frank both testified that they believed that
the crash was the result of sabotage targeting Frank and the other military officials
for their anti-Chavez beliefs. The official government report following the crash
concluded that it was an accident. Later that month, Petitioners’ home was broken
into a second time and the intruders took dishes, emptied drawers, and again wrote
graffiti on the walls.
In January 2004, as he was leaving their home, Petitioners’ son William was
assaulted by people Petitioners believed to be Chavistas. The Chavistas hit
William really hard, but ran off when the neighbors came outside. William did not
go to the hospital for medical treatment, but his bruises and hematomas were
treated at home. Petitioners continued to receive harassing phone calls and people
they believed to be Chavistas often drove motorcycles by Petitioners’ home at
night.
In October 2004, Petitioners opened a video rental store, and, in January
2005, presumed Chavistas came into the store asking why Petitioners only carried
American films. In February 2005, the windows of the Petitioners’ car were
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broken while it was parked in the video store’s parking lot.
In October 2006, Lobo was in a car accident after he turned in the proceeds
of a raffle held to benefit Petitioners’ political party and the parties’ presidential
candidate. Lobo got nervous because he thought he was being following by
Chavistas, and he lost control of the vehicle and crashed. Later that month,
Petitioners decided to leave the country.
After the hearing, the IJ denied Mora’s application and ordered Petitioners
removed to Venezuela. The BIA affirmed the IJ’s decision. Before this Court,
Petitioners do not dispute that they are removable as charged, but contend that the
BIA erred in finding that Mora did not establish past persecution or a well-founded
fear of future persecution.
II. Discussion
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). When the BIA explicitly agrees with the
findings of the IJ, we review the decisions of both the BIA and IJ as to those
issues. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010). Here,
because the BIA agreed with the IJ’s findings regarding past persecution and well-
founded fear of future persecution, we review both decisions.
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In a petition for review of a BIA decision, we review factual determinations
under the substantial evidence test. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1350 (11th Cir. 2009). Under the substantial evidence test, we draw every
reasonable inference from the evidence in favor of the decision, and reverse a
finding of fact only if the record compels a reversal. Id. at 1351. We must affirm
if the BIA’s decision is “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Id. The fact that the record may
support a contrary conclusion is insufficient to reverse. Adefemi v. Ashcroft, 386
F.3d 1022, 1027 (11th Cir. 2004) (en banc).
An applicant for asylum must meet the INA’s definition of a refugee. INA
§ 208(b)(1), 8 U.S.C. § 1158(b)(1). The INA defines a refugee as a person who
cannot return to his or her home country due to “persecution or a well-founded fear
of persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.” INA § 101(a)(42)(A), 8 U.S.C.
§ 1101(a)(42)(A). To establish eligibility for asylum, an applicant must
demonstrate either past persecution, or a well-founded fear of future persecution,
based on a statutorily listed factor. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257
(11th Cir. 2006). If the applicant demonstrates past persecution, there is a
rebutable presumption that she has a well-founded fear of future persecution. Id.
If the applicant cannot demonstrate past persecution, she must demonstrate that her
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well-founded fear of future persecution is subjectively genuine and objectively
reasonable. Id.
We have held that “persecution is an extreme concept, requiring more than a
few isolated incidents of verbal harassment or intimidation, and that mere
harassment does not amount to persecution.” Sanchez Jimenez v. U.S. Att’y Gen.,
492 F.3d 1223, 1232 (11th Cir. 2007). In determining whether the petitioner has
suffered persecution, we consider the cumulative effects of the incidents. De
Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008 (11th Cir. 2008).
We have previously concluded that circumstances involving only minimal
violence do not compel a conclusion of persecution. See Kazemzadeh, 577 F.3d at
1353 (upholding the BIA’s determination of no past persecution where the
petitioner was “arrested while participating in a student demonstration,
interrogated and beaten for five hours, and detained for four days, but . . . did not
prove that he suffered any physical harm,” and state authorities monitored him
after his release and ordered him to appear before a university disciplinary
committee and a state court); Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th
Cir. 2008) (upholding the BIA’s determination of no past persecution where the
petitioner was threatened with arrest by students who lacked the power to carry out
that threat, “in conjunction with [a] minor beating” that merely resulted in
“scratches and bruises”).
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On the other hand, we have held that repeated death threats accompanied by
the attempted kidnapping of the petitioner’s daughter and the attempted murder of
the petitioner whose moving vehicle was shot at multiple times, but he was not
struck by the bullets or physically injured, constituted persecution. See Sanchez
Jimenez, 492 F.3d at 1233. We have also held that the petitioner suffered past
persecution based on the totality of the verbal death threats, an attempted attack,
and one attack by three gunmen who threw the petitioner to the ground, hit him
with the butt of a rifle, and broke his nose that occurred over an 18-month period.
Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1257-58 (11th Cir. 2007). In addition to
in-person threats or violence against the petitioner, we have held that threats
against others can support a claim of past persecution where the threat
“concomitantly threatens the petitioner.” De Santamaria, 525 F.3d at 1009 & n.7
(finding past persecution where the applicant suffered “repeated death threats, two
physical attacks [which resulted in minor physical injuries], the murder of a family
friend, and a kidnapping cut short only by a harrowing escape”).
Here, substantial evidence supports the BIA’s determination that Mora failed
to establish past persecution. Mora’s testimony established that, over an
approximately three-year period, her family’s home was broken into and
vandalized twice, she received an unspecified number of threatening and harassing
phone calls, people suspected of being Chavistas drove past her home on
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motorcycles at night, her car windows were broken, one son was assaulted, her
other son was in a helicopter crash, and her husband was in a car accident. Even
when viewed cumulatively, we cannot conclude that these incidents compel a
finding that Mora suffered persecution.
Unlike De Santamaria, Sanchez Jimenez, and Mejia, this is not a case where
the threats were accompanied by attacks or attempted attacks on Mora or her
family members. While Mora asserts that the helicopter crash was an attempt on
her son Frank’s life based on his political activity, neither she nor Frank offer
anything more than their own speculation that the crash was the result of sabotage
or that Frank, who was in the company of high-ranking military officials, was
specifically targeted for his anti-Chavez beliefs. Moreover, the official report on
the helicopter crash concluded that it was an accident. Likewise, there is no
evidence that Lobo’s accident was an attempt on his life. Mora’s own testimony
reflects that Lobo got nervous because he believed he was being followed, lost
control of his vehicle, and drove off the road into a telephone box, not that
Chavistas intentionally forced him off the road. Thus, we are left with the
threatening phone calls, the house and car being broken into, motorcycles driving
past the home, and the assault of Petitioners’ other son that resulted in nothing
more than bruises. When compared to our precedent, these remaining incidents do
not compel the finding that these incidents were anything more than isolated
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incidents of verbal harassment or intimidation. See Kazemzadeh, 577 F.3d at 1353;
Djonda, 514 F.3d at 1174. Because Mora did not establish past persecution, there
is no presumption that she has a well-founded fear of future persecution. See Ruiz,
440 F.3d at 1257.3 Therefore, the BIA did not err in denying Mora’s asylum
application, and we deny the petition for review. 4
PETITION DENIED.
3
To the extent that Petitioners’ appellate brief is construed as raising an argument that
she established a well-founded fear of future persecution based on a pattern or practice of
persecution, we lack jurisdiction to review this argument because she is raising it for the first
time on appeal. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006)
(stating if a petitioner has failed to exhaust her administrative remedies, we lack jurisdiction to
consider the claim).
4
Petitioners’ petition for review does not challenge the BIA’s denial of Mora’s claim for
withholding of removal and CAT relief, and thus, these claims are deemed abandoned. See
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2006).
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