     Case: 10-60781     Document: 00511568872         Page: 1     Date Filed: 08/11/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 11, 2011
                                     No. 10-60781
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

KIRTSTEN SANJOSE VELASCO; CARMEN SAN JOSE VELASCO; VIDAL
MANAGO VELASCO,

                                                  Petitioners

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A088 064 486
                                BIA No. A088 064 487
                                BIA No. A088 064 489


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
        Vidal Manago Velasco, his wife Carmen San Jose Velasco, and their son
Kirtsten SanJose Velasco (the Velascos) are natives and citizens of the
Philippines. They seek review of the decision of the Board of Immigration
Appeals (BIA) dismissing their appeal from the Immigration Judge’s (IJ’s) denial
of their applications for withholding of removal and protection under the

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-60781

Convention Against Torture (CAT). They contend that they are entitled to
withholding of removal and CAT protection because Vidal participated in rallies
opposing the government of then President Gloria Arroyo and supporting past
President Joseph Estrada.      They testified that they received three letters
threatening their lives, that another participant in the rallies (whose name they
did not know) disappeared, that Kirtsten was followed when he returned to the
Philippines for school, that they saw cars with no plates driving around their
neighborhood, that their car window was smashed, and that Vidal’s brother
overheard people saying they would “take care of” the Estrada supporters.
      Despite finding that the Velascos’ credibility had been “shaken by
inconsistencies and lack of specificity in their testimony,” the IJ declined to find
that they were not credible. The IJ reviewed their applications and found that
the Velascos had failed to meet their burden of proving that they had suffered
past persecution on account of their political opinions or that there was a clear
probability that they would suffer future persecution if returned to the
Philippines. With regard to the Velascos’ application for protection under the
CAT, the IJ found that they had failed to show that it was more likely than not
that they would be tortured if removed to the Philippines and that they would
be tortured with the acquiescence of a public official.
      The BIA dismissed the appeal, erroneously stating that the IJ found the
respondents not credible and concluding that the Velascos had not established
that this determination was clearly erroneous. However, the BIA also found
that the IJ provided an alternative decision on the merits, and it went on to
review that decision. It found that the Velascos’ testimony referred only to
vague threats from unidentified sources and that there was no corroborative
evidence to support their allegations. The BIA adopted and affirmed the IJ’s
conclusion that the Velascos failed to meet their burden of proof.
      Notwithstanding the BIA’s erroneous discussion of credibility, its
remaining grounds for dismissing the appeal, i.e., those provided by the IJ,

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                                  No. 10-60781

provide a sufficient basis for this court to review the Velascos’ petition. See
Beltran-Resendez v. INS, 207 F.3d 284, 287 (5th Cir. 2000).
      The BIA’s denial of the Velascos’ applications for withholding of removal
is supported by substantial evidence. See Chen v. Gonzales, 470 F.3d 1131, 1134
(5th Cir. 2006). The IJ correctly reasoned that the events described by the
Velascos did not rise to the level of persecution, that they had failed to connect
the threats to the Arroyo government, and that they failed to present any
corroborating evidence to bolster their claims. See Roy v. Ashcroft, 389 F.3d 132,
138 (5th Cir. 2004). As the IJ noted, the Velascos failed to present any evidence
to corroborate their testimony. In addition, they failed to show a connection
between the threats they received and members of the Arroyo government. The
record does not compel the conclusion that the Velascos suffered past
persecution in the Philippines. See Eduard v. Ashcroft, 379 F.3d 182, 187-88
(5th Cir. 2004). Therefore, the BIA reasonably concluded that the Velascos had
failed to carry their burden of proof. See id.; Tesfamichael v. Gonzales, 469 F.3d
109, 116 (5th Cir. 2006).
      The Velascos did not present to the BIA their argument that they were
part of a particular group being persecuted in the Philippines. This court
therefore lacks jurisdiction to review this claim. See Kane v. Holder, 581 F.3d
231, 239 (5th Cir. 2009).
      The Velascos’ CAT claims are also without merit. They have not shown
that the alleged death threats contained in the letters amounted to torture in
that they have not shown “severe pain or suffering,” either physical or mental,
and they have not shown that the government issued the alleged death threats.
See Chen, 470 F.3d at 1139; Zhang v. Gonzales, 432 F.3d 339, 345; (5th Cir.
2005); see 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). Accordingly, the Velascos
have not satisfied their burden of demonstrating that it is more likely than not
that they would be tortured if removed to the Philippines. See Chen, 470 F.3d



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at 1139; 8 C.F.R. §§ 1208.16(c)(2); see also, Hongyok v. Gonzales, 492 F.3d 547,
551 (5th Cir. 2007).
      Finally, this court lacks jurisdiction to review the Velascos’ due process
claims because they failed to exhaust those claims. Wang v. Ashcroft, 260 F.3d
448, 452-53 (5th Cir. 2001); Roy, 389 F.3d at 137.
      The petition for review is DENIED.




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