Myrna Coromoto Olivo De Aviles v. U.S. Atty. Gen.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

________________________ .U .S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 21, 2006

No. 06-11733

THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

BIA No. A97-638-610

MYRNA COROMOTO OLIVO DE AVILES,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(December 21, 2006)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

Petitioner Myrna Coromoto Olivo de Aviles (“Olivo”) petitions for review

of a final order of the Board of Immigration Appeals (“BIA”), which affirmed,

without opinion, the decision of the Immigration Judge (“IJ”) denying Olivo’s

claims for asylum and withholding of removal under the Immigration and

Nationality Act (“INA”), and relief under the United Nations Convention Against

Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

(“CAT”). For the reasons discussed below, we DENY Olivo’s petition.

I. BACKGROUND

Olivo, a native and citizen of Venezuela, was admitted to the United States

on 7 March 2003 as a non-immigrant visitor with authorization to remain in the

United States until 6 September 2003. After she remained in the United States

beyond that date, the former Immigration and Naturalization Service (“INS”)

issued a Notice to Appear (“NTA”) to Olivo, charging that she was removable

pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). Olivo appeared before

the Immigration Court, admitted to all of the facts and allegations contained in the

NTA, and conceded removability. She then filed an application seeking asylum

and withholding of removal, as well as protection under CAT.

Olivo’s claims for asylum and withholding of removal were based upon both

her political opinions and her membership in a particular social group.1 In the

1

Olivo’s written application only mentioned her political opinion as a basis for asylum or

withholding of removal. At the removal hearing before the IJ, however, both Olivo and her

counsel raised the additional prospect of asylum or withholding of removal based upon her

2

written addendum that accompanied her application, Olivo indicated that certain

middle and upper class zones in Caracas, where she resided, suffered frequent

abuse at the hands of a group known as the “Circulos Bolivarianos,” or “Bolivarian

Circles.” Olivo stated that the Bolivarian Circles were “gangs on motorized

vehicles, armed with automatic weapons,” who repeatedly “abuse[d], both verbally

and physically, all the citizens who, in some way, tr[ied] to express their rejection

and disagreement with the government” of Hugo Chavez, the President of

Venezuela. R at 157. Olivo asserted that because the Montalban region of

Caracas– where Olivo resided– was “one of the biggest middle class zones in

Caracas,” the Bolivarian Circles frequently terrorized and intimidated citizens

living in that area. Id.

Olivo’s written application also recounted an incident involving her son,

Carlos Gabriel Aviles, who served in the Venezuelan military from 1997 to 2003.

According to her application, in August 2002 the citizens of Caracas organized a

march to protest the policies of the Chavez government. She claimed that Carlos

was ordered to use lethal force, if necessary, to prevent the citizens from marching.

Olivo asserted that because Carlos refused to use any force against the citizens, he

membership in a particular social group, the Lady’s Committee of the National Guard of

Venezuela. Because the IJ considered both of these grounds in reaching a decision on Olivo’s

application, we will likewise construe her application as positing two separate bases for asylum

or withholding of removal.

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was targeted by the Chavez government as being disloyal; that he was “persecuted”

by his military superiors; and that his military career suffered as a result. Id. at

158. Olivo stated that the situation was so dire that Carlos eventually resigned

from the Venezuelan military. He sought, and was granted, asylum in the United

States. Olivo indicated that she was seeking asylum so that she could be close to

her son. In addition, Olivo noted that she had resided in the United States from

1976 to 1982, during her marriage to her first husband, and that consequently she

had “adapted to the American culture and this country.” Id.

At the removal hearing before the IJ, Olivo testified in support of her

application. She first indicated that she had been a member of the Lady’s

Committee of the National Guard of Venezuela, although she went on to clarify

that she stopped being a member of that group after she and her husband divorced

twelve years earlier. Olivo did not state that she belonged to any other social

organizations, nor did she indicate that she was particularly politically active. She

testified that she was seeking asylum in the United States because she was afraid of

both the Chavez government and the Bolivarian Circles. Olivo stated that the

Bolivarian Circles “persecute[d] those people who [were] not in agreement with

the present government,” id. at 59, and that, because she lived in a middle class

area where there was “great opposition” to the Chavez government, she had been

labeled an “enem[y] of the regime,” and had suffered oral insults and threatening

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telephone calls. Id. at 60-62.

When questioned further, Olivo recounted being followed by motorcycle-

riding members of the Bolivarian Circles, who shouted at her and attempted to

scare her when she left her home. She described how a Bolivarian Circle member

had crossed in front of her with his motorcycle while she was driving her car. She

stated on cross-examination that this was the “the worst” attempt the Bolivarian

Circles had made to cause her harm. Id. at 63. Olivo also testified that this

persecution started in December 2001, and continued through early 2003. Olivo

offered further testimony about the experience of her son, Carlos. She recounted

the incident with his military superiors that caused him to be allegedly blacklisted

by the Chavez government. She also testified that her family members suffered

constant persecution at the hands of the Bolivarian Circles, all as a result of Carlos’

actions.

In his oral decision, the IJ reviewed both the evidence presented in Olivo’s

application and her testimony. The IJ found Olivo’s testimony to be fully credible,

and found that the documentary evidence in the record buttressed her testimony.

Despite her credibility, however, the IJ determined that there was “nothing in the

record to show that [Olivo] suffered any serious harm.” Id. at 33. He found that

Olivo had complained of only “occasional and sporadic” telephone calls from the

Bolivarian Circles, but intimated that this harm was not particularly severe. Id.

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The IJ also failed to find any evidence that Olivo had suffered “physical or

psychological trauma” as a result of the Bolivarian Circles’ actions, other than

ordinary harassment as a citizen. Id. at 34. He further found that the specific

actions of the Bolivarian Circles of which Olivo complained– “driving around

neighborhoods on motorcycles intimidating civilians”– were common in

Venezuela. Id. at 33. The IJ therefore determined that Olivo’s complaints

pertained to “general conditions” that affected “the populace as a whole.” Id. at 34.

Nor was the IJ convinced, even assuming Olivo had suffered harm, that she

had shown such harm was connected to either her membership in a particular

social group or to her political views. He observed, in a short colloquy with

Olivo’s counsel, that Olivo had failed to connect her membership in the pro-

National Guard women’s organization to her subsequent mistreatment by the

Bolivarian Circles. He also found that Olivo had failed to show that her

mistreatment was due to her own political opinions, or the imputed opinions of

another. In discussing the experience of her son, Carlos, the IJ found that Olivo

had failed to produce “any testimony at all to show why the political stance taken

by her son would have been imputed to her.” Id. The IJ stated that Olivo had

failed to “tell [him] that anything happened to her as a result of what happened to

her son.” Id. at 65. Due to the lack of a clear connection between Carlos’ conduct

and the persecution of which she complained, the IJ concluded that there was

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insufficient evidence to impute the political stance taken by Carlos to Olivo.

In light of these findings, the IJ concluded that Olivo had failed to show

eligibility for asylum. In addition, the IJ found that Olivo had failed to show that

she was entitled to withholding of removal under the INA, since she has not shown

that it was more likely than not that she would suffer persecution if she returned to

Venezuela. Finally, the IJ concluded that Olivo was not entitled to protection

under CAT, since there was no evidence that Olivo had been tortured or would

likely be subject to torture in the future. Accordingly, the IJ issued an order

denying Olivo’s application on all grounds, and ordering her removal pursuant to

the NTA. The BIA affirmed the IJ’s order, without comment. Olivo filed a timely

petition for review with this court.

II. DISCUSSION

A. Standard of Review

We review legal issues de novo, Mohammed v. Ashcroft, 261 F.3d 1244,

1247-48 (11th Cir. 2001), and “administrative fact findings under the highly

deferential substantial evidence test,” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-

27 (11th Cir. 2004) (en banc) (citations omitted), cert. denied, 544 U.S. 1035, 125

S. Ct. 2245 (2005). Under that standard, we “must affirm the BIA’s decision if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

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2001) (internal quotations and citation omitted). “To reverse a factual finding by

the BIA, this Court must find not only that the evidence supports a contrary

conclusion, but that it compels one.” Farquharson v. U.S. Att’y. Gen., 246 F.3d

1317, 1320 (11th Cir. 2001) (citation omitted). Indeed, “the mere fact that the

record may support a contrary conclusion is not enough to justify a reversal of the

administrative findings.” Adefemi, 386 F.3d at 1027 (citation omitted). Rather,

we will reverse a BIA’s findings of fact “only if the evidence presented by the

applicant is so powerful that a reasonable fact finder would have to conclude”

otherwise. Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d 1320, 1323-24 (11th

Cir. 2001).

We review only the BIA’s decision, “except to the extent that it expressly

adopts the IJ’s opinion.” Al Najjar, 257 F.3d at 1284 (citation omitted). “Insofar

as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well.”

Id. (Citation omitted). In Olivo’s case, the BIA expressly adopted the IJ’s

decision, without further comment. Therefore, we will review the analysis set

forth in the IJ’s opinion as if it were the BIA’s. See Al Najjar, 257 F.3d at 1284.

B. Asylum

Section 208 of the INA provides that “[a]ny alien who is physically present

in the United States . . . irrespective of such alien’s status, may apply for asylum.”

INA § 208(a)(1), 8 U.S.C. § 1158(a)(1) (2002). “The Attorney General may grant

8

asylum to an alien . . . if the Attorney General determines that such alien is a

refugee within the meaning of section 101(a)(42)(A) of [the INA].” INA §

208(b)(1), 8 U.S.C. § 1158(b)(1). In turn, a “refugee” is defined in section 101 as

any person who is outside any country of such person’s

nationality or, in the case of a person having no nationality, is

outside any country in which such person last habitually

resided, and who is unable or unwilling to return to, and is

unable or unwilling to avail himself or herself of the protection

of, that country because of 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). The asylum applicant carries the

burden of proving statutory “refugee” status. 8 C.F.R. § 208.13(a). To prove

asylum eligibility, “the alien must establish a ‘well-founded fear’ that his or her

political opinion (or other statutorily listed factor) will cause harm or suffering that

rises to the level of ‘persecution.’” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814,

818 (11th Cir. 2004) (citation omitted). A well-founded fear of persecution may be

established by showing either: “(1) past persecution on account of her political

opinion or any other protected ground; or (2) a ‘well-founded fear’ that her

political opinion or any other protected ground will cause future persecution.”

Sepulveda v. U.S. Att’y. Gen., 402 F.3d 1236, 1230-31 (11th Cir. 2005) (per

curiam) (citing 8 C.F.R. § 208.13(a),(b)).

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1. Past Persecution

“To establish asylum based on past persecution, the applicant must prove (1)

that she was persecuted, and (2) that the persecution was on account of a protected

ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (citing

Sepulveda, 401 F.3d at 1230-31). As to the former, while the INA does not define

the term “persecution,” we have observed that “persecution is an extreme concept,

requiring more than a few isolated incidents of verbal harassment or intimidation.”

Id. at 1237 (citing Sepulveda, 401 F.3d at 1231) (alteration omitted). “Not all

exceptional treatment is persecution.” Gonzalez v. Reno, 212 F.3d 1338, 1355

(11th Cir. 2000). Indeed, as our sister circuit has noted, it is a “hard truth that

unpleasant and even dangerous conditions do not necessarily rise to the level of

persecution.” Bhatt v. Reno, 172 F.3d 978, 982 (7th Cir. 1999) (citation omitted).

Olivo contends that “[t]he record clearly shows that Olivo was persecuted by

Venezuelan security and intelligence authorities as well as the Bolivarian Circles,”

Brief of the Petitioner at 29, but that assertion is belied by both the written and oral

evidence submitted in connection with her application. Olivo testified that

members of the Bolivarian Circles made threatening phone calls, insulted her in

public and, in one instance, crossed in front of her car with a motorcycle while she

was driving. She conceded on cross-examination, however, that the motorcycle

incident was “the worst” attempt that the Bolivarian Circles ever made on her life.

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R at 62-63. Olivo did not mention any physical harm, and, when she was pressed

to recount what else had happened to her while she was in Venezuela, she

referenced only insults and the threats from the Bolivarian Circle group.

The IJ found that Olivo had failed to show severe harm sufficient meet the

threshold showing of past persecution. We agree. In fact, we previously have

found that written threats and threatening telephone calls – similar to the ones

borne by Olivo in this case – constituted mere harassment rather than persecution.

See Silva, 448 F.3d at 1237-38. See also Sepulveda, 401 F.3d at 1231 (stating that

“menacing telephone calls and threats . . . do not rise to the level of past

persecution that would compel reversal of the IJ’s decision”).

Moreover, even if we were to find that the harm Olivo suffered in Venezuela

rose to the level of past persecution, she still failed show that the persecution was

carried out because of a statutorily protected ground. See Mazariegos, 241 F.3d at

1323 (“[A]n alien must do more than merely show that he was physically harmed

or that his civil or human rights were violated; he must provide evidence that he

was mistreated because of his political opinion, or one of the other grounds, rather

than for some other reason.”). Olivo failed to show a causal connection between

her claimed persecution and her political opinion or her membership in a social

group. While Olivo stated that she belonged to a group of Venezuelan citizens

who were “not in agreement with the present government,” R at 59, she failed to

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show any causal connection between her anti-Chavez opinions and the treatment

she received from the Bolivarian Circles. Furthermore, while she cited her

membership in the Lady’s Committee of the National Guard, she never once

posited that she had been mistreated because of her membership in that group. In

fact, she conceded that she had ceased participating in the group approximately

twelve years earlier. At the removal hearing, Olivo’s counsel attempted to broadly

characterize her social group as being the mother of a military member, but Olivo

likewise failed to establish that she was mistreated as a result that status; on the

contrary, she testified that the harassment at the hands of the Bolivarian Circles

commenced in 2001, well before her son’s run-in with his military superiors. If

anything, the record suggests that the Bolivarian Circles taunted and harassed

Olivo because she happened to live in an urban, middle class neighborhood in

Caracas where the gang tended to congregate its efforts to harass citizens. But

there was no showing that Olivo suffered any particularized mistreatment due to

her political views or membership in a social group. In light of these facts, the IJ

concluded that Olivo’s complaints were based upon general conditions that more

or less affected all of the residents of her neighborhood, Montalban. There was

substantial evidence to support such a conclusion, and we are not compelled to

reach a different result.

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2. Well-Founded Fear of Future Persecution

Substantial evidence also supports the IJ’s finding that Olivo failed to

demonstrate a well-founded fear of future persecution. To demonstrate a well-

founded fear of future persecution, an applicant must show: (1) a “subjectively

genuine and objectively reasonable” fear of persecution; (2) based upon a

statutorily protected ground. Silva, 448 F.3d at 1236 (internal citations omitted).

Olivo’s application falls short on both of these grounds.

As to the first, we have held that the well-founded fear has both subjective

and objective components. “The subjective component is generally satisfied by the

applicant’s credible testimony that he or she genuinely fears persecution.” Al

Najjar, 257 F.3d at 1289 (citation omitted). The objective prong, however,

requires that the applicant’s fear be “objectively reasonable.” Id. (citations

omitted). The applicant is required to present “specific, detailed facts showing a

good reason to fear that he or she will be singled out for persecution.” Forgue v.

U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (citation and internal

quotations omitted).

Here, the subjective component of the well-founded fear inquiry clearly has

been satisfied by Olivo’s testimony that she genuinely fears persecution. The IJ

13

found her testimony to be credible,2 and we do not doubt the genuineness of her

fear of future mistreatment by the Bolivarian Circles. Olivo, however, failed to

present evidence to show that her fear of future persecution was objectively

reasonable, or that there was a “good reason to fear that she would be singled out

for persecution.” See Forgue, 401 F.3d at at 1286. While Olivo contends on

appeal that “President Chavez has resolved to eliminate all opposition to his regime

through government security organs and the Bolivarian Circles,” Brief of the

Petitioner at 32, the evidence does not compel the conclusion that she would be

singled out as a specific target of persecution. As in Sepulveda, the evidence Olivo

presented “does not indicate her notoriety” as an opponent of the Chavez regime.

401 F.3d at 1232. Rather, substantial evidence supports the conclusion that her

fear is general, rather than individualized, and is based on conditions that affect a

much larger subset of the population. As we previously have held, the INA “does

not extend eligibility to asylum to anyone who fears the general danger that

inevitably accompanies political ferment and strife.” Mazariegos, 214 F.3d at 1328

(quoting Huaman-Cornelio v. BIA, 979 F.2d 995, 1000 (4th Cir. 1992)).

2

Olivo has suggested in her arguments that the IJ erred because he found her testimony

to be fully credible, but then went on to conclude that she had failed to present adequate

evidence to warrant a grant of asylum. There is nothing inconsistent, however, about finding an

asylum applicant to be fully credible, but nevertheless denying her application due to a paucity

of evidence. See, e.g., Silva, 448 F.3d at 1240 (affirming a denial of asylum despite the fact that

the applicant’s testimony was deemed to be credible); Huang v. U.S. Att’y Gen., 429 F.3d 1002,

1007 (11th Cir. 2005) (per curiam) (same).

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Furthermore, even assuming Olivo had established a well-founded fear,

substantial evidence supports the finding that Olivo’s application failed on the

second prong of the analysis, that is, the requirement that the well-founded fear of

persecution be based upon a statutorily protected ground. As discussed previously,

Olivo failed to show any causal connection between her fear of future persecution

and her own political opinions or her membership in a particular social group. To

circumvent this requirement, Olivo attempts to argue on appeal that the political

opinions of her son Carlos have been imputed to her by the Bolivarian Circles,

such that the sins of Carlos will likely be visited upon her in the event she returns

to Venezuela.

We previously have recognized that “an imputed political opinion, whether

correctly or incorrectly attributed, may constitute a ground for a well-founded fear

of political persecution within the meaning of the INA.” Al Najjar, 257 F.3d at

1289 (citations and alteration omitted). But even if a political opinion is imputed

to the asylum applicant, the applicant is still required to show that he or she has a

fear of future persecution because of that imputed political opinion. Al Najjar, 257

F.3d at 1289. Even if we were to attribute Carlos’ political stance to Olivo, Olivo

would still have the burden of showing that the harassment she will likely receive

from the Bolivarian Circles would be based on Carlos’ political views. This she

has failed to do; as discussed previously, not only did her mistreatment at the hands

15

of the Bolivarian Circles commence before Carlos’ act of defiance, but her fear of

future harm has more to do with the fact that she lives in an upper middle class

neighborhood and less with the fact that Carlos’ anti-Chavez views have been

attributed to her. The IJ observed that the Bolivarian Circles’ actions “affect[ed]

everyone in the middle class neighborhood,” and that there was no showing that

they were “after her because her son refused to follow [an] order.” R at 67.

Substantial evidence supports that finding. Thus, we conclude that Olivo failed to

show that Carlos’ political opinions would likely be imputed to her.

C. Withholding of Removal

Substantial evidence also supports the IJ’s finding that Olivo failed to

quality for withholding of removal under the INA. “An applicant for withholding

of deportation must show a ‘clear probability of persecution,’ or that he will more

likely than not be persecuted if deported.” Nkacoang v. INS, 83 F.3d 353, 355

(11th Cir. 1996) (citing INS v. Stevic, 467 U.S. 407, 413, 104 S. Ct. 2489, 2492

(1984)). This is a more stringent standard than the “well-founded fear” standard

required for asylum eligibility. Al Najjar, 257 F.3d at 1292-93. Thus, “[i]f an

applicant is unable to meet the ‘well-founded fear’ standard for asylum, he is

generally precluded from qualifying for either asylum or withholding of

deportation.” Nkacoang, 83 F.3d at 355 (citation omitted). Because Olivo failed

to demonstrate a well-founded fear of persecution sufficient to support an asylum

16

claim, the IJ properly found that she was unable to satisfy the greater burden

attending a request for withholding of removal.

D. Protection Under CAT

In making out a claim under CAT, “[t]he burden of proof is on the applicant

. . . to establish that it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). In turn,

“torture” is defined as:

[A]ny act by which severe pain or suffering, whether physical or

mental, is intentionally inflicted on a person for such purposes as

obtaining from him or her or a third person information or a

confession, punishing him or her for an act he or she or a third person

has committed or is suspected of having committed, or intimidating or

coercing him or her or a third person, or for any reason based on

discrimination of any kind, when such pain or suffering is inflicted by

or at the instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.

8 C.F. R. § 208.18(a)(1). Relief under CAT includes the mandatory remedy of

withholding of removal. See 8 C.F.R. § 208.16(c)(4).

Olivo has not submitted any evidence that she suffered, or is likely to suffer,

“severe pain or suffering” rising to the level of torture. See 8 C.F.R. §

208.18(a)(1). Although the addendum to her application references extrajudicial

killings, kidnappings, and torture undertaken with the implicit support of the

Chavez government, the majority of these alleged incidents, while loathsome,

involved acts against political dissidents, opposition party members, and anti-

17

Chavez demonstrators. Olivo failed to show how similar mistreatment was “more

likely than not” to befall her. See 8 C.F.R. § 208.16(c)(2). Indeed, as previously

discussed, there was hardly any evidence presented to show why she would be

singled out for harm by the Chavez government. Accordingly, substantial

evidence supports the IJ’s denial of Olivo’s application for protection under CAT.

III. CONCLUSION

Olivo has petitioned this court for a review of the IJ’s order denying her

applications for asylum and withholding of removal under the INA and denying

her petition for protection under CAT. Substantial evidence supports the IJ’s

conclusion that Olivo did not suffer past persecution on the basis of a statutorily

protected ground. Nor does Olivo have a “well-founded fear of future persecution”

as our precedents have interpreted that standard. Substantial evidence further

supports the IJ’s decision that Olivo failed to show that it is more likely than not

that she will be persecuted in the future, or that it is more likely than not that she

will be tortured if she is removed to Venezuela. Accordingly, the IJ did not err in

denying Olivo’s application. PETITION DENIED.

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