Montiel Rubio v. Bondi

Case: 24-60392 Document: 55-1 Page: 1 Date Filed: 08/13/2025

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

FILED

No. 24-60392 August 13, 2025

____________

Lyle W. Cayce

Miguel Angel Montiel Rubio, Clerk

Petitioner,

versus

Pamela Bondi, U.S. Attorney General,

Respondent.

______________________________

Petition for Review of an Order of the

Board of Immigration Appeals

Agency No. A213 583 007

______________________________

Before Stewart, Clement, and Wilson, Circuit Judges.

Edith Brown Clement, Circuit Judge:

Miguel Angel Montiel Rubio is a Venezuelan citizen who faces

deportation after overstaying his visa. An Immigration Judge determined

Rubio failed to demonstrate eligibility for asylum, withholding of removal, or

protection from the Convention Against Torture before ordering his removal

from the United States. The Board of Immigration Appeals upheld the

Immigration Judge’s findings.

Rubio filed this petition for review. For the reasons that follow,

Rubio’s petition is DENIED.

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I

Petitioner Miguel Angel Montiel Rubio, a sixty-year-old native and

citizen of Venezuela, entered the United States through Miami, Florida, on

or about June 6, 2019. Rubio received a B-2 visitor visa, which allowed him

to remain in the country with legal status for no longer than six months. He

applied for asylum on October 7, 2019, about sixty days before his visa was

set to expire. Rubio remained in the country after his visa’s expiration,

prompting the Department of Homeland Security to issue a Notice to Appear

alerting him of his removability under Section 237(a)(1)(B) of the

Immigration and Nationality Act, codified at 8 U.S.C. § 1227(a)(1)(B).

In mid-2022, Rubio testified as the sole witness during his

immigration hearing, where he admitted his removability. He stated his

motivation for seeking asylum was his fear of past and future persecution

related to his political affiliation and membership in particular social groups.

Specifically, Rubio identified himself (1) as an opponent of the Revolutionary

Party in Venezuela, (2) as an activist outwardly opposed to the Maduro

regime, and (3) as a member of the Primero Justicia Party. Rubio feared

persecution by a paramilitary group known as the “colectivos” because of his

past political activism against the country’s governing regime. As a member

of the opposition Primero Justicia Party, he participated in approximately

forty protests between 2010 and 2019, as well as other demonstrations.

The protests and demonstrations in which Rubio participated at times

devolved into chaos. Before Venezuela’s national assembly election in late

2015, for example, Rubio was shot in the leg by the colectivos as he chanted

“viva Venezuela libre” and mobilized voters to the polls. When the gunman

pulled the trigger, he yelled “take this so you stop fucking with us,” and

threatened to kill Rubio if he ever reported the shooting to the police. Rubio

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underwent surgery the next day before being confined to a bed in his father’s

home for months to heal. He also underwent physical therapy, resulting in a

year-long recovery.

Rubio returned to his own home in 2017—and to political activism in

protest of an election some observers perceived as an unlawful attempt by the

governing regime to replace the duly-elected national assembly. Mass

demonstrations ensued, including roadblocks set up by protestors like Rubio

“with the goal of stopping that election [viewed as] completely illegal.”

Around this time, one of Rubio’s neighbors suffered a housefire set by the

protestors because of her sympathy toward the ruling Venezuelan political

party. The neighbor accused Rubio of helping set the fire, but Rubio denied

any involvement and instead has blamed a group of younger protestors. The

colectivos later penetrated the roadblocks and threatened to “burn [Rubio]

alive” for his involvement.

Rubio traveled freely between Venezuela and the United States three

times in 2017 and 2018. He testified that he did not request asylum during

those trips because “no other [violent] events ha[d] happened” apart from

the shooting, and he did not want to leave his own country permanently at

the time.

In 2019, Rubio again participated in protests of the Venezuelan

government, where the colectivos took photographs of the protestors, and

the “National Guard and police” twice dropped tear gas to disperse the

crowds.

Months later in May 2019, Rubio’s neighbor relayed to him that an

individual stopped by his home asking about an electric fence. Rubio

suspected the individual was part of the colectivos, causing him to flee to the

United States. Although Rubio concedes he intended to return after a short

time, he changed his mind following a later interaction between his neighbor

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and the colectivos. When Rubio’s neighbor checked on his home that July,

the neighbor encountered suspected members of the colectivos who shot

gunfire into the air and shouted, “we got you, we located you, you damn bald

man!” before realizing the individual was not Rubio. Rubio then decided to

stay in the United States, fearing he could not return to Venezuela without

being killed or relocate elsewhere within the country as an anti-regime

political activist. He also argued he could not obtain employment in

Venezuela because any company he worked for might share his information

with the colectivos.

Rubio acknowledged there were several multi-year periods where he

lived in Venezuela with either his father or his cousin unharmed as a political

activist. His father now has passed away and he does not believe he could live

with his cousin for an extended period. Rubio does not believe his home,

which has been sitting empty since 2019, has been vandalized or otherwise

rendered uninhabitable.

The Immigration Judge found Rubio’s testimony credible but denied

his applications for relief after determining he had not met his burden of

proof. After reviewing his asylum application, the Immigration Judge

determined the harms Rubio experienced at the hands of the colectivos

“individually and in the aggregate[] do not rise to the requisite level of

severity necessary to constitute persecution, particularly when considering

that these events took place over a nine-year period where [Rubio] was

involved in opposing the government.” The Immigration Judge observed

Rubio recovered from his gunshot wound and reasoned that although he was

threatened by the colectivos years later, those events occurred “in the

context of a larger scale protest.” The Immigration Judge also concluded the

“threats were nonspecific[,] . . . lack[ed] immediacy,” and were not

accompanied by any additional serious harm to Rubio.

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The Immigration Judge also determined that Rubio did not have a

well-founded fear of future persecution. The Immigration Judge reasoned

that Rubio “did not believe he was being persecuted, nor did he fear future

persecution” as he traveled to and from the United States, evidenced further

by his continued participation in political protests each time he returned to

Venezuela.

Because Rubio failed to meet the lower burden of proof for asylum,

the Immigration Judge concluded that he necessarily failed to demonstrate

the higher standard of eligibility for withholding of removal.

As for his application for protection based on the Convention Against

Torture (“CAT”), the Immigration Judge acknowledged “widespread

human rights abuses in Venezuela, particularly against opposition leaders and

significant opposition voices.” However, the Immigration Judge concluded

“there [wa]s insufficient evidence in the record to establish that it is more

likely than not that [Rubio] would personally be at risk of torture at the

instigation of or with the consent or acquiescence of the Venezuelan

government.” In support, the Immigration Judge acknowledged Rubio had

been a political activist but concluded there was no record evidence the

“Venezuelan government ever specifically identified him as an opposition

leader, politician, or significant voice such that it [wa]s more likely than not

that he would be tortured if returned to Venezuela.” The Immigration Judge

further noted that Rubio had been able to travel “freely” between Venezuela

and other countries and that he owned a home that had not been “seized” or

“damaged.” Accordingly, the Immigration Judge determined that Rubio had

not demonstrated eligibility for CAT protection.

Rubio faced removal after not obtaining relief, so he appealed the

Immigration Judge’s decision to the Board of Immigration Appeals

(“BIA”).

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The BIA was unpersuaded by Rubio’s argument that the Immigration

Judge erred in finding he had not suffered past persecution, noting that even

considering his encounters with the colectivos cumulatively, the threats and

gunshot wound he suffered “did not rise to the level of severity necessary to

constitute persecution.” The BIA also rejected Rubio’s contention that the

Immigration Judge’s past-persecution determination was based solely on his

eventual recovery from his gunshot wound.

The agency then affirmed the Immigration Judge’s finding that Rubio

had not established an objectively reasonable and well-founded fear of future

persecution. It concluded, inter alia, that the Immigration Judge

“permissibly found that although [Rubio] participated in political activities

over the years, the record did not suggest the Venezuelan government ever

identified him such that he would be targeted for persecution” upon his

return to an environment where background conditions had worsened. The

agency also credited Rubio’s ability to travel to and from the United States

freely, as well as the undamaged condition of his home, with the Venezuelan

government’s lack of interest in harming him.

The BIA therefore declined to disturb the Immigration Judge’s denial

of asylum, and by extension, his application for withholding of removal.

The agency similarly affirmed the Immigration Judge’s denial of

Rubio’s application for CAT protection, concluding he had not shown he

faced an individualized and targeted risk of torture.

It declined to review any other issue on appeal. 1 Rubio then filed a

timely petition for review.

_____________________

1

“As a general rule courts and agencies are not required to make findings on issues

the decision of which is unnecessary to the results they reach.” INS v. Bagamasbad, 429

U.S. 24, 25 (1976) (per curiam).

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II

Our court’s precedent “make[s] clear that we use the ‘substantial

evidence’ standard, even when the agency determines the alien is credible

and accepts his version of the facts.” Gjetani v. Barr, 968 F.3d 393, 396 (5th

Cir. 2020). Under this deferential standard, we will not grant an alien’s

petition unless the evidence “compels” a contrary conclusion to the factual

determinations reached by the Immigration Judge. Zhao v. Gonzales, 404 F.3d

295, 306 (5th Cir. 2005); 8 U.S.C. § 1252(b)(4)(B). As part of an applicant’s

burden, he must show “that the evidence is so compelling that no reasonable

factfinder could reach a contrary conclusion.” Bertrand v. Garland, 36 F.4th

627, 631 (5th Cir. 2022) (quoting Chen v. Gonzales, 470 F.3d 1131, 1134 (5th

Cir. 2006)).

We review de novo the BIA’s legal conclusions. See id. at 631. If the

Immigration Judge’s reasoning influenced the BIA’s decision, we consider

that judge’s decision. Mejia-Alvarenga v. Garland, 95 F.4th 319, 323 (5th Cir.

2024).

III

A

Asylum is reserved for individuals “who are the specific targets of

persecution.” Gjetani, 968 F.3d at 395 (cleaned up); see 8 C.F.R. § 208.13(b).

The scheme created by Congress “vested broad discretion in the Executive

Branch to make asylum determinations, and instructed courts to give

significant deference to [those] decisions.” Gjetani, 968 F.3d at 395. Indeed,

“[t]he Attorney General has complete discretion whether to grant asylum to

eligible individuals.” Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006).

An applicant for asylum must first establish he is a “refugee.” 8

U.S.C. § 1158(b)(1)(B)(i). To qualify as a refugee, the applicant must show

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that “race, religion, nationality, membership in a particular social group, or

political opinion was or will be at least one central reason for persecuting the

applicant.” Id. The refugee must then prove “he suffered past persecution

or has a well-founded fear of future persecution” to qualify for asylum. Dayo

v. Holder, 687 F.3d 653, 657 (5th Cir. 2012).

“[A]sylum is not available to every victim of civil strife, but is

restricted to those persecuted for particular reasons.” Majd, 446 F.3d at 595

(alteration in original) (quotations omitted). Our court has emphasized that

persecution is not a limitless concept . . . . It does not

encompass all treatment that our society regards as unfair,

unjust, or even unlawful or unconstitutional. If persecution

were defined that expansively, a significant percentage of the

world’s population would qualify for asylum in this country—

and it seems most unlikely that Congress intended such a

result.

Id. (cleaned up). As our court recently observed, “[p]ersecution always

requires an ‘extreme’ level of conduct—no matter if the alleged

mistreatment is physical or not.” Rangel v. Garland, 100 F.4th 599, 604 (5th

Cir. 2024). This “means a systematic, sustained pattern of assaults or other

acts of oppression—not individual or even a handful of assaults or threats.”

Gjetani, 968 F.3d at 395.

As a general matter, “[p]ersecution refers to harm inflicted either by

the government or by private actors whom the government ‘is unable or

unwilling to control.’” Bertrand, 36 F.4th at 631 (quoting Sanchez-Amador v.

Garland, 30 F.4th 529, 533 (5th Cir. 2022)). To prove that a government is

unable or unwilling to protect against private persecution, an applicant for

asylum “must show that the government condoned the private violence ‘or

at least demonstrated a complete helplessness to protect the [applicant.]’”

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Id. at 631–32 (alteration in original) (quoting Shehu v. Gonzales, 443 F.3d 435,

437 (5th Cir. 2006)).

The BIA denied Rubio asylum because he failed to establish that his

previous mistreatment rose to the level of past persecution or formed a well-

founded fear of future persecution. After careful review, we conclude the

record does not compel a different conclusion under the substantial evidence

standard.

Past Persecution

An Immigration Judge determined the harms Rubio experienced at

the hands of the colectivos “individually and in the aggregate, [did] not rise

to the requisite level of severity necessary to constitute persecution,

particularly when considering that these events took place [during] a nine-

year period [where Rubio] was involved in opposing the government.”

Rubio’s challenge is twofold. First, according to Rubio, “both his

testimony and the evidence were ignored or minimized” by the BIA “to

discount the suffering he endured and the very real threats he faced.” He

argues that the BIA failed to consider the seriousness of his injury and the

recovery required after being shot by the colectivos in 2015, unduly

minimizing the event because he recovered without experiencing permanent

physical damage. Citing persuasive caselaw, Rubio also contends that “th[e]

series of events that happened to [him]” indicate a broader pattern of being

targeted by state-associated forces. 2 In Rubio’s view, his encounters with

state-associated forces—being shot in the leg by the colectivos, being sprayed

with tear gas during protests by the Venezuelan National Guard, and

_____________________

2

See Kravenchvo v. Gonzales, 158 F. App’x 322, 323 (5th Cir. 2005) (per curiam)

(“In assessing past persecution, the adjudicator must consider the cumulative effect of an

applicant’s experiences.”).

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receiving threats of death—constitute past persecution when each event is

viewed in isolation or considered cumulatively.

The Attorney General counters with three points in response. She

emphasizes the sole instance of targeted physical harm Rubio experienced

was when he was shot a decade ago and argues that the BIA appropriately

considered that he fully recovered from his injury without any lasting

physical damage, a permissible consideration when weighing whether an

event amounted to sufficiently extreme conduct. She next stresses Rubio’s

only other experiences involving physical harm were when he was tear gassed

in a crowd by authorities. Lastly, the Attorney General highlights that Rubio

safely lived in Venezuela with “years-long lulls between incidents” and has

traveled freely in and out of that country without issue as a political dissident.

The Immigration Judge, and the BIA, properly rejected Rubio’s claim

of past persecution. We previously held a single violent event where an

applicant experienced physical harm because of his membership in a

particular social group did not necessarily constitute persecution. Eduard v.

Ashcroft, 379 F.3d 182, 187–88 (5th Cir. 2004) (being struck on the head with

a rock once did not qualify as persecution). Neither did a physical assault by

members of an opposition party followed by a death threat if the applicant

refused to vote a certain way. Gjetani, 968 F.3d at 395–99.

In our court, even those subject to brutal physical attack are not

necessarily victims of past persecution absent a showing of targeted and

sustained attempts of harm. See, e.g., Venturini v. Mukasey, 272 F. App’x 397,

402–03 (5th Cir. 2008) (per curiam) (no persecution when an individual was

twice beaten by the Venezuelan National Guard and hospitalized for bruises,

a broken rib, and trouble breathing from tear gas); Rojas v. INS, 937 F.2d 186,

188, 190 (5th Cir. 1991) (per curiam) (no persecution when an individual was

“arrested, beaten and tortured” by the Nicaraguan Sandinistas). Other

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courts agree. See, e.g., Reyes-Morales v. Gonzales, 435 F.3d 937, 942 (8th Cir.

2006) (no persecution when an individual was beaten unconscious and left

with “a physical deformity and several scars” while his “friend was also

killed during this incident”); Dandan v. Ashcroft, 339 F.3d 567, 573–74 (7th

Cir. 2003) (no persecution when an individual was kidnapped, detained for

three days without food, and extensively beaten, resulting in facial swelling).

The events Rubio endured appear similar to those described in Singh

v. Barr, 818 F. App’x 331 (5th Cir. 2020) (per curiam). Bikramjit Singh, a

member of the minority Mann Party in India, was beaten twice—including

once to the point of losing consciousness—and received death threats by

members of the rival Badal Party. Id. at 332–33. But this court concluded

Singh had not demonstrated he suffered the requisite level of harm to

constitute persecution, even though he experienced physical injuries from

violence on more than one occasion. Id. at 334.

By contrast, “a sustained, systematic effort to target an individual on

the basis of a protected ground” can constitute past persecution. Gjetani, 968

F.3d at 397. The prototypical example is Tamara-Gomez v. Gonzales, 447 F.3d

343 (5th Cir. 2006). Henry Tamara-Gomez—a Colombian helicopter

mechanic—accompanied Colombian National Police (“CNP”) officers on a

retrieval mission to recover the bodies of fallen CNP comrades killed in a

remote jungle village by terrorists in the Fuerzas Armadas Revolucionarias

de Colombia (“FARC”). Id. at 345. Shortly after the mission, Tamara-

Gomez began receiving death threats against him and his family on his cell

phone and then on his home phone. Id. at 346. Fearing for his family’s safety,

Tamara-Gomez moved away. Id. But within weeks, the threatening calls

began again at his new house, along with demands for money in exchange for

safety. Id. Ultimately, a bicycle bomb detonated in his new neighborhood,

killing five individuals. Id. And all the while, FARC systematically hunted

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down and executed Tamara-Gomez’s retrieval team members and their

families. Id.

The kind of extreme conduct in Tamara-Gomez involving “an

organized, relentless campaign of intimidation, extortion, and murder,”

Gjetani, 968 F.3d at 398, is plainly not reflected in Rubio’s case. Although

Rubio indeed suffered physical violence as a political dissident, his

experience appears more a series of standalone incidents than an organized,

systemic, and sustained campaign against him.

As for the death threats levied at Rubio, this court has previously

treated such threats “as a question of future—not past—persecution.”

Qorane v. Barr, 919 F.3d 904, 910 (5th Cir. 2019). Assuming they could

establish past persecution, however, this court has observed that threats

describable as “exaggerated, non-specific, or lacking in immediacy” do not

constitute persecution. Id. (quoting Corado v. Ashcroft, 384 F.3d 945, 947 (8th

Cir. 2004) (per curiam)). Both the colectivos’ threat to kill him if he reported

being shot and their threat to “burn [him] alive” lack immediacy because

they happened years before he fled Venezuela and depend on Rubio

committing some future action. The most recent threat Rubio cites, where a

colectivos member shouted “we got you” mistakenly to his neighbor, is

serious because it involved gunfire into the air. But the vague threat was

uttered approximately six years ago to a third party who did not experience

any physical harm.

Our court separately has recognized when “an alien has endured a

threat or assault but has nevertheless chosen to stay in his home country for

a period of time,” the “choice to stay tends to weaken the claim of

persecution.” Gjetani, 968 F.3d at 399; see also Panmesri v. Holder, 313 F.

App’x 723, 726 (5th Cir. 2009) (per curiam) (asylum denied where applicant

stayed in Thailand for twenty years after alleged past persecution); Diaz

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Flores v. Ashcroft, 104 F. App’x 418, 419 (5th Cir. 2004) (per curiam) (asylum

denied where applicant stayed in Honduras for ten years after receiving death

threats); Hafiz v. Ashcroft, No. 02–60526, 2003 WL 21356048, at *2 (5th Cir.

May 29, 2003) (per curiam) (asylum denied where applicant waited seven

years in Bangladesh before seeking relief).

Similar circumstances weaken Rubio’s claim. He remained in

Venezuela for two years after his first reported encounter with the colectivos,

and he traveled to and from the United States on multiple occasions as he

experienced the violence he construes as persecution before ultimately

seeking asylum in 2019.

Rubio avers only that he sought asylum “when it finally became too

much and he feared he was being actively pursued” as background conditions

continued worsening in Venezuela. But the Immigration Judge concluded

Rubio “did not believe he was being persecuted” during this time, a finding

bolstered by evidence of his resumed participation each time he returned to

Venezuela in the same form of political activity that led to his violent

encounters with the colectivos.

Society indeed would likely regard the events Rubio experienced as

“unfair, unjust, or even unlawful or unconstitutional.” Majd, 446 F.3d at 595

(cleaned up). Given his positive credibility determination, there is little

reason to doubt the sincerity of his account. But a showing of past persecution

requires more. 3 Id.

_____________________

3

Because the BIA concluded Rubio failed to establish past persecution, it rendered

him ineligible for humanitarian asylum. Alvarado-Velasquez v. Sessions, 722 F. App’x 365

(5th Cir. 2018) (per curiam), among other cases, support such a dispositive determination.

Id. at 366. Rubio expends minimal effort briefing this issue on appeal, noting merely that

“this relief should be reconsidered on remand.” The issue therefore has not been briefed

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Fear of Future Persecution

An alien can alternatively demonstrate a well-founded fear of future

persecution by showing that “a reasonable person in [his] circumstances

would fear persecution if [he] were to be returned to [his] native country.”

Rangel, 100 F.4th at 607 (quoting Guevara Flores v. INS, 786 F.2d 1242, 1249

(5th Cir. 1986)). To establish a well-founded fear of persecution, “an alien

must have a subjective fear of persecution, and that fear must be objectively

reasonable.” Eduard, 379 F.3d at 189 (quoting Lopez-Gomez v. Ashcroft, 263

F.3d 442, 445 (5th Cir. 2001)). An alien can establish a subjective fear of

future persecution “in two ways—by showing others would target him for

persecution or by showing a pattern or practice of targeting people like him.”

Qorane, 919 F.3d at 910. Then, to prove a subjective fear is objectively

reasonable, an alien must show

(1) he possesses a belief or characteristic a persecutor seeks to

overcome by means of punishment of some sort; (2) the

persecutor is already aware, or could become aware, that the

alien possesses this belief or characteristic; (3) the persecutor

has the capability of punishing the alien; and (4) the persecutor

has the inclination to punish the alien.

Cabrera v. Sessions, 890 F.3d 153, 160 (5th Cir. 2018) (cleaned up). “[A]n

applicant’s fear of persecution cannot be based solely on general violence and

civil disorder.” Eduard, 379 F.3d at 190

The Immigration Judge determined that Rubio did not have a well-

founded fear of harm first because he had not shown a subjectively genuine

fear of future persecution. In so finding, the Immigration Judge observed that

Rubio suffered the gunshot wound and was forced to move in July 2017 to

_____________________

adequately, so he has waived it. See Gurung v. Holder, 587 F. App’x 834, 836–37 (5th Cir.

2014) (per curiam).

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avoid being framed for the burning of his neighbor’s home but gave weight to

the fact that Rubio entered the United States twice after these incidents

without filing an asylum application. The Immigration Judge reasoned that

Rubio “did not believe he was being persecuted, nor did he fear future

persecution” at the time, evidenced by his continued participation in political

protests.

Additionally, the Immigration Judge found that any harm Rubio

feared in the future was not objectively reasonable and would not be

perpetrated on account of a protected ground. In reaching this conclusion,

the Immigration Judge observed that “[a]lthough [Rubio] participated in

some political activities over the years, the record evidence does not suggest

that the Venezuelan government ever specifically identified him as an

opposition leader, opposition politician, or significant opposition voice such

that he would be targeted for persecution if returned to Venezuela.” The

BIA affirmed, noting that “the record did not suggest the Venezuelan

government ever identified [Rubio] such that he would be targeted for

persecution if he returned.”

The Immigration Judge further noted that even though Rubio believed

members of the colectivos had been seen in his neighborhood, they did not

clearly identify themselves or who they sought to his neighbor. Emphasized

too was the fact that Rubio “still owns his home in Venezuela” and that home

“has not been vandalized by the colectivos, or seized by the [Venezuelan]

government.” Rubio’s past ability to relocate to the nearby homes of family

members indicated his ability to live outside his home—yet still within

Venezuela—safely without a credible fear of being hunted down in the future.

The BIA went a step further, rejecting Rubio’s argument that “country

conditions support the finding that all opposition members are at risk by the

government and security forces.”

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Rubio argues as a threshold matter that the Immigration Judge failed

to apply the proper test to determine if his subjective fear is objectively

reasonable, contending “the [Immigration Judge] neither cited to nor

discussed [the Cabrera] test in her decision and the BIA did not engage in

any substantive analysis” of the four factors. He did not raise this issue before

the BIA, so this court does not have jurisdiction to consider it. Gjetani, 968

F.3d at 397 (“Petitioners fail to exhaust their administrative remedies as to

an issue if they do not first raise the issue before the BIA.” (quoting Omari v.

Holder, 562 F.3d 314, 318 (5th Cir. 2009))).

On substance, Rubio’s challenge largely focuses on background

conditions in Venezuela to show his fear of future harm is objectively

reasonable. He emphasizes the dangers of being a “member of the opposition

party” who “actively opposes the Maduro regime” because the government

“targets political protestors.” Presumably applying Cabrera, Rubio argues

(1) the colectivos want to “stamp out and suppress” people who share his

dissident political beliefs, (2) the government is aware of his beliefs because

it photographed past protests he attended, (3) the government can punish

him if it chooses, and (4) the government is inclined to suppress protestors

like him based on unstable political conditions in Venezuela. Each of these

arguments inextricably depends on a clear connection between the colectivos

and the Venezuelan regime or the Venezuelan regime’s hostility toward him.

Substantial evidence, however, supports the BIA’s determination that

Rubio failed to demonstrate his fear is subjectively well-founded and

objectively reasonable.

As discussed, Rubio has been able to travel freely to the United States

from Venezuela on multiple occasions. This court’s nonbinding caselaw

suggests that the ability to freely travel without experiencing detention,

arrest, or harm undercuts the objective reasonability of an applicant’s fear of

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future harm. Metreveli v. Garland, No. 23-60171, 2024 WL 81573, at *1 (5th

Cir. 2024) (per curiam); Ndulu v. Lynch, 643 F. App’x 345, 347–48 (5th Cir.

2016) (per curiam).

We give this proposition a boost of force. Rubio lived for years within

an hour of his home without experiencing harm and could alternatively

relocate elsewhere in the country because evidence indicates “the

government is not looking for him.” While those who had an interest in him

have largely been confined to his neighborhood, the evidence fails to suggest

he could not live safely and comfortably elsewhere in Venezuela. Further,

Rubio’s most recent encounter with the colectivos occurred six years ago,

undercutting the threat they may pose to his safety upon return.

Finally, Rubio petitions this court for asylum based on harm he

expects to experience by vowing to resume political activism against the

Maduro regime if returned to Venezuela. Legitimizing such an argument

would effectively enable any political dissident who opposes a regime

antagonistic to its political opposition in their home country to qualify for

asylum. Because this would unduly expand the scope of this extraordinary

relief beyond what Congress contemplated, we emphatically reject it.

We ultimately find no reason that compels disturbing the BIA’s

determination that Rubio failed to present a well-founded and objectively

reasonable fear of future persecution.

* * *

Rubio has failed to show past persecution or demonstrate a well-

founded fear of future persecution. He therefore is not entitled to asylum.

B

“Unlike asylum, withholding of removal is not discretionary.” Majd,

446 F.3d at 595. An alien may not be removed to a particular country if it is

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determined that “the alien’s life or freedom would be threatened in that

country because of the alien’s race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). “To

be eligible for withholding of removal, an alien must demonstrate an objective

‘clear probability’ of persecution in the proposed country of removal.” Majd,

446 F.3d at 595 (citing INS v. Stevic, 467 U.S. 407, 413 (1984)).

Withholding of removal is a higher bar to clear than asylum. Rangel,

100 F.4th at 609. When an alien “does not meet the bar for asylum, he also

does not meet the standard for withholding of deportation.” Efe v. Ashcroft,

293 F.3d 899, 906 (5th Cir. 2002); Ghotra v. Whitaker, 912 F.3d 284, 288 (5th

Cir. 2019) (describing the “more likely than not” standard for withholding

of removal as “a higher bar than the ‘well-founded fear’ standard for

asylum”); Eduard, 379 F.3d at 186 n.2 (“[T]he IJ’s dismissal of Petitioners’

asylum claims was dispositive of their withholding of removal claims.”)

Rubio argues only that he succeeded in showing a clear probability of

persecution to justify asylum, so therefore the immigration court erred in

declining to withhold his removal. But because past persecution or a well-

founded fear of persecution in the future is an essential component of a

successful application for withholding of removal, see 8 C.F.R.

§ 1208.16(b)(1)–(2), the Immigration Judge did not err in denying Rubio’s

application.

Rubio therefore is not entitled to withholding of removal.

C

An alien demonstrates eligibility for CAT relief by showing “(1) it is

more likely than not that the alien will be tortured upon return to [his]

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homeland, and (2) there is sufficient state action involved in that torture.” 4

Rangel, 100 F.4th at 609 (cleaned up) (quoting Tamara-Gomez, 447 F.3d at

350–51). To meet this burden, “the alien may produce evidence of past

torture, an inability to relocate to a safer part of the country, human rights

abuses committed within the country, and any other relevant information.”

Majd, 446 F.3d at 595–96 (citing 8 C.F.R. § 208.16(c)(3)). An applicant must,

however, prove more likely than not that any torture is “inflicted by or at the

instigation of or with the consent or acquiescence of a public official acting in

an official capacity or other person acting in an official capacity.” 8 C.F.R.

§ 208.18(a)(1); Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014). “[A]n

official must be aware of the torture and take no action to protect the victim”

to constitute consent or acquiescence. Martinez-Lopez v. Barr, 943 F.3d 766,

772 (5th Cir. 2019). In other words, the torture must take place “under color

of law.” Garcia, 756 F.3d at 892

Rubio argues as an initial matter that the BIA “committed legal

error” by focusing on evidence of worsening background conditions to

determine his likelihood of torture upon return to his homeland. In other

words, Rubio claims that in considering the various evidence offered to

determine his CAT eligibility, the BIA erroneously ignored all other possible

types. He seems to view the four categories of evidence an “alien may

produce,” Majd, 446 F.3d at 595 (emphasis added), as considerations an

immigration court must individually and exhaustively analyze when

explaining its decision.

_____________________

4

“Torture is defined as any act by which severe pain or suffering . . . is intentionally

inflicted on a person . . . for any reason . . . when such pain or suffering is inflicted by or at

the instigation of or with the consent or acquiescence of a public official acting in an official

capacity or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1).

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Rubio contends he offers all possible categories of evidence an alien

may produce to show that “it is more likely than not that [he] will be tortured

upon return to [his] homeland.” Rangel, 100 F.4th at 609.

He first argues the BIA committed legal error by ignoring facts

supporting “[e]vidence of past torture inflicted upon the applicant” as

contemplated by 8 C.F.R. § 1208.16(c)(3)(i). He avers that the weight of

evidence shows the colectivos would torture him upon his return to

Venezuela, citing his past experiences “being shot and gassed” as “physical

pain and suffering,” in addition to receiving death threats. Second, Rubio

argues he provided evidence to show he cannot relocate within Venezuela

given his changed family circumstances. Third, identifying his status as a

dissident in the fraught political environment, Rubio points to evidence

showing “Maduro’s regime” in Venezuela “has only tightened their grip on

the country and that abuses, including extra-judicial killings occurred at

national, state, and municipal levels.” And finally, reiterating his intent to

resume political activism if returned to Venezuela, Rubio avers that the risk

of harm to him is particularized because “there is voluminous evidence of the

continued and even increased targeting of all perceived opponents of the

regime, including street-level protestors.”

To start, our caselaw does not impose a mandatory duty for

immigration courts to evaluate, and explain its reasoning in an exegesis, every

category of evidence an “alien may produce.” Majd, 446 F.3d at 595

(emphasis added). Even if it did, based on the record before us, “substantial

evidence supports the agency’s determination that [Rubio] failed to show

that [he] would more likely than not be tortured by or with the acquiescence

of a Venezuelan public official.” Rubio “never had a warrant for his arrest,”

“has been freely able to depart and return to Venezuela,” and his house “has

not been seized by the government,” facts that all suggest the Venezuelan

government lacks interest in detaining or harming him.

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Under the law’s definition of torture, scant evidence suggests Rubio

experienced it in the past. Nor does the record indicate a particularized risk

of it in the future. The most compelling argument in Rubio’s favor is the

shooting he experienced, but it is the lone instance of targeted physical harm

he endured, and it occurred a decade ago.

As for Rubio’s claim that the immigration court improperly focused

its reasoning solely on Venezuela’s background conditions, we observe that

the agency’s analysis was seemingly in response to Rubio’s rejected

argument that “country conditions [can] establish anyone who is opposed to

the government is likely to be tortured by the government.” Our court

further has emphasized that the BIA need not “write an exegesis on every

contention. What is required is merely that it consider the issues raised, and

announce its decision in terms sufficient to enable a reviewing court to

perceive that it has heard and thought and not merely reacted.” Efe, 293 F.3d

at 908.

In its explanation, the BIA cites to multiple authorities for the

proposition that generalized conditions in a country tell courts little about the

particularized risk of torture to an applicant, including Matter of S-V-, 22 I. &

N. Dec. 1306 (BIA 2000). There, the BIA noted that “[s]pecific grounds

must exist that indicate the individual would be personally at risk” of torture.

Id. at 1313. In evaluating Rubio’s application, the BIA concluded he faces no

specific and particularized risk of torture if returned to Venezuela.

We agree. Rubio is not entitled to CAT relief.

IV

For the reasons detailed above, Rubio’s petition for review is

DENIED.

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