Oswaldo Cabas v. Eric H. Holder, Jr., United States Attorney General

United States Court of Appeals
For the First Circuit
No. 11-2174
OSWALDO CABAS,
Petitioner,
v.
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Ripple and Selya, *
Circuit Judges.
Kevin MacMurray and MacMurray & Associates on brief for
petitioner.
Tony West, Assistant Attorney General, Civil Division, Blair
T. O'Connor, Assistant Director and R. Alexander Goring, Attorney,
Office of Immigration Litigation, Civil Division, United States
Department of Justice, on brief for appellant.
September 25, 2012
Of the Seventh Circuit, sitting by designation. *

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HOWARD, Circuit Judge. Petitioner Oswaldo Cabas, a
native and citizen of Venezuela, seeks review of a final order of
the Board of Immigration Appeals ("BIA"). The order upheld both an
immigration judge's ("IJ") determination that Cabas's asylum
application was time-barred and the IJ's denial of his application
for withholding of removal on the merits. We lack jurisdiction
over the asylum claim and, discerning no error in the BIA's ruling
on the withholding of removal claim, we deny the remainder of the
petition.
I.
Cabas first entered the United States in April 2002. The
record does not disclose whether he entered lawfully. Roughly six
months later, he returned to Venezuela and stayed there for a
month. In November of the same year, Cabas reentered the United
States as a non-immigrant visitor permitted to remain in the
country for one month. He has remained here ever since. Federal
authorities initiated removal proceedings against him in December
2007 for overstaying his visa. Cabas conceded removability but
applied for asylum, withholding of removal, and protection under
the Convention Against Torture ("CAT").
Cabas, the only witness at the removal hearing, testified
to the following facts. He was born in Maracaibo, Venezuela, and
lived there until he came to the United States in 2002. After
graduating from high school in 1992, he became a political
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activist. As a member of an opposition group known as "Acción
Democrática," he organized meetings, distributed fliers, and spoke
to people about vices of the government. He also had a small
segment on a political opinion show that aired on a local radio
station. After Hugo Chavez came to power in 1998, Cabas joined a
rival political party and began speaking out against the Chavez
administration. His troubles began shortly thereafter.
In December 1999, Cabas was at a party with some friends
when he heard gunshots and his name being called. He fled the
scene and hid in a nearby house until it was safe for him to go
home. The next incident occurred in March 2000, when he was
kidnapped at gunpoint in the daytime while buying auto parts.
Based on their apparel and the fact that they called themselves
"the defenders of the government," Cabas believed his kidnappers
were members of the Bolivarian Circle, a group associated with
Chavez. The kidnappers beat Cabas and demanded that he cease his
political activities. At one point he was struck on the head with
a gun and lost consciousness. He awoke in a remote location,
covered in blood. Cabas went to the nearest police station to
report the attack, but he did not seek medical attention for his
injuries. The police did not investigate the incident.
Cabas resumed his political activities several months
after the attack. After his father was kidnapped and beaten in a
similar fashion, Cabas decided to come to the United States. He
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arrived here in April 2002. Six months later, he returned to
Venezuela because he thought that the situation there had calmed.
Shortly after his arrival, two men came to his parents' house
looking for him. They beat his brothers to coerce them to reveal
Cabas's whereabouts. His mother and sister, who witnessed the
incident, received threats as well. Around the same time, several
men forcibly broke into his parents' house and issued threats.1
With his family's encouragement, Cabas returned to the
United States in November 2002. After his departure, his family
received threats that he would be harmed or killed if he returned
to the country. His family remained living in Venezuela unharmed.
Cabas testified that he did not seek asylum until 2009
because he was "ill-advised" and had planned to return home after
Chavez left office. In February 2009, Cabas became convinced that
Chavez would remain in power indefinitely because the country
eliminated presidential term limits.
At the close of the hearing, the IJ issued an oral
decision finding Cabas removable as charged. The IJ ruled that
Cabas's asylum application was untimely because he had filed it
more than six years after his November 2002 arrival, and he did not
prove changed country conditions to qualify for an exception to the
one-year filing deadline. The IJ also denied Cabas's application
It is unclear from Cabas's testimony whether the break-in 1
occurred at the time his brothers were beaten or on a separate
occasion.
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for withholding of removal, in which Cabas claimed a likelihood of
persecution on the basis of the statutorily protected ground of
political opinion. The IJ concluded that Cabas failed to
demonstrate either past persecution or a likelihood of future
persecution. The IJ found Cabas's testimony to be generally
credible, but discounted his testimony that men forcibly broke into
his parents' house because Cabas never mentioned the incident in
his affidavit filed in support of his application. The IJ then
determined that the kidnapping and beating that Cabas suffered and
the threats to his safety were not so severe as to constitute
persecution, reasoning that Cabas was physically harmed on only a
single occasion and did not seek medical attention following the
incident. Further, the IJ concluded that Cabas's return to
Venezuela after the attack and the fact that his family continued
to live there unharmed undermined his claim of future persecution.
Lastly, the IJ denied Cabas's CAT claim.
Cabas appealed the IJ's decision, save for its ruling on
the CAT claim, and the BIA affirmed. The BIA agreed with the IJ
that Cabas failed to prove changed country conditions or
exceptional circumstances to excuse the late filing of his asylum
application. With respect to withholding of removal, the BIA
echoed the IJ's reasoning that Cabas was physically harmed only on
one occasion; he did not seek medical attention for his injuries;
and he returned to Venezuela following the incident. Accordingly,
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the BIA concluded that he did not establish past persecution, and
it agreed with the IJ's determination that the evidence did not
otherwise support a finding of a likelihood of future persecution.
This petition followed.
II.
Cabas challenges both the BIA's decision that his asylum
application was time-barred and its denial on the merits of his
request for withholding of removal. We address the challenges in
turn.
A. Timeliness of the Asylum Application
To qualify for asylum, an applicant ordinarily must make
his request within one year of his arrival in the United States.
8 U.S.C. § 1158(a)(2)(B). Late applications may be accepted,
however, if the applicant shows "changed circumstances which
materially affect [his] eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application." Id.
§ 1158(a)(2)(D). The applicant bears the burden of establishing
that the application was timely or that an exception to the filing
deadline applies. Oroh v. Holder, 561 F.3d 62, 66 (1st Cir. 2009).
Cabas concedes that he filed his asylum application more
than six years after his last arrival in the United States. In his
petition for review, he argues that the BIA and the IJ "abused
their discretion" in finding that he did not establish changed
circumstances that could support an exception to the filing
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deadline. This challenge is a quintessentially fact-based attack,
and it is thus doomed to fail. We are without jurisdiction to
review agency findings regarding timeliness of an asylum
application or applicability of exceptions to the one-year rule,
unless the petitioner challenges the decision on constitutional or
legal grounds. Rashad v. Mukasey, 554 F.3d 1, 5 (1st Cir. 2009).
Cabas is plainly challenging the BIA's factfinding about changed
circumstances vel non. We lack jurisdiction to review that
decision.
B. Withholding of Removal
Because the BIA adopted in part the IJ's decision denying
Cabas's request for withholding of removal but also provided
additional analysis, we review both decisions. Uruci v. Holder,
558 F.3d 14, 18 (1st Cir. 2009). We review the decisions under the
deferential "substantial evidence" standard, reversing only if a
"reasonable adjudicator would be compelled to conclude to the
contrary." Khan v. Mukasey, 549 F.3d 573, 576 (1st Cir. 2008)
(internal quotation marks omitted). Under this standard, we uphold
the agency action so long as it is "supported by reasonable,
substantial, and probative evidence on the record considered as a
whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal
quotation marks omitted).
To qualify for withholding of removal, an alien must show
that, if repatriated, he faces "a clear probability of future
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persecution" on account of one of five protected grounds, namely,
race, religion, nationality, membership in a particular social
group, or political opinion. Palma-Mazariegos v. Gonzales, 428
F.3d 30, 37 (1st Cir. 2005); see 8 U.S.C. § 1101(a)(42). To
satisfy this burden, the alien must show that it is "more likely
that not" that he will face future persecution, a burden that may
be met by proof that he suffered persecution in the past, which
gives rise to a rebuttable presumption of future persecution.
Khan, 549 F.3d at 576.
Before considering whether Cabas has satisfied this
burden, we address his challenge to the IJ's credibility
determination. He argues that the IJ's decision is internally
inconsistent because the IJ found his testimony to be generally
credible and yet discredited his testimony that at one point men
broke into his parents' house. The argument lacks merit. Even
though the IJ found Cabas to be generally credible, this did not
require the IJ to accept every specific aspect of Cabas's
testimony. See Carcamo-Recinos v. Ashcroft, 389 F.3d 253, 258-59
(1st Cir. 2004) (IJ's finding that applicant was "generally"
credible does not mandate a conclusion that he was "credible in all
respects"). The IJ discounted the event because Cabas failed to
mention it in his affidavit. The record does not compel a contrary
conclusion. Moreover, even if the IJ read too much into the
omission, the IJ's decision to discount the event was not pivotal.
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The record makes clear that even if the discredited incident is
taken into account, the outcome remains the same.
Substantial evidence in the record supports the
determinations by the BIA and the IJ that Cabas proved neither past
persecution nor a likelihood of future persecution on account of
his political opinion. In determining whether alleged incidents
rise to the level of persecution, one important factor is whether
"the mistreatment can be said to be systematic rather than
reflective of a series of isolated incidents." Bocova v. Gonzales,
412 F.3d 257, 263 (1st Cir. 2005). Moreover, "[t]o qualify as
persecution, a person's experience must rise above unpleasantness,
harassment, and even basic suffering." Nelson v. INS, 232 F.3d
258, 263 (1st Cir. 2000).
The record supports a conclusion that the mistreatment
Cabas suffered was not sufficiently severe to constitute
persecution. We accept for purposes of analysis that on one
occasion he was kidnapped, beaten, and left unconscious in a remote
location; and on other occasions Cabas and his family received
threats to his safety, including threats following a break-in at
his parents’ home. As objectionable as the mistreatment was, it
does not compel a conclusion that Cabas suffered systematic abuse.
The single incident of physical harm was an isolated event and the
resulting injuries were not sufficiently severe to require medical
attention. See Topalli v. Gonzales, 417 F.3d 128, 133 (1st Cir.
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2005) ("The BIA took into account, as do we, the absence of the
need for medical attention after the beatings as but one factor in
the analysis."). In addition, nothing suggests that the threats to
Cabas's safety were anything but sporadic. We have numerous times
affirmed BIA determinations that maltreatment did not rise to the
level of persecution in cases presenting comparable, if not more
egregious, facts. See, e.g., Khan, 549 F.3d at 575 (finding of
persecution not compelled where petitioner was beaten with wooden
sticks and shocked with electrical wires while in prison for ten
days); Topalli, 417 F.3d at 132 (finding of persecution not
compelled where petitioner was arrested, beaten, and detained on
seven occasions in a two-year period); Bocova, 412 F.3d at 263
(finding of persecution not compelled where petitioner was
arrested, threatened with death twice over an eight-year period,
and was so severely beaten that he lost consciousness and was
hospitalized); Guzman v. INS, 327 F.3d 11, 15-16 (1st Cir. 2003)
(finding of persecution not compelled where petitioner was
kidnapped, beaten, and held captive for three hours).
Nor has Cabas otherwise shown a clear probability of
future persecution. As noted by the BIA and the IJ, the fact that
Cabas's family continued to live in Venezuela unharmed undercuts
his claim that persecution awaits him upon return. See Khan, 549
F.3d at 577 (continued safety of petitioner's family undermined
claim of future persecution). Cabas's claim is further undermined
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by the fact that he returned to Venezuela for a month in 2002,
after the prior beating and threats to his safety. See Pakasi v.
Holder, 577 F.3d 44, 47-48 (1st Cir. 2009) (voluntary return to the
native country following mistreatment undermined petitioner's claim
of future persecution). Accordingly, substantial evidence supports
the BIA's determination that Cabas failed to establish his
entitlement to withholding of removal.
The petition for review is dismissed as to the asylum
claim and denied as to the claim for withholding of removal.
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