                                                              [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________          FILED
                                                 U.S. COURT OF APPEALS
                              No. 09-15642         ELEVENTH CIRCUIT
                                                       JULY 9, 2010
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                         CLERK

                 Agency Nos. A099-548-125, A099-548-126

ILIANNA EVANGELINA GUTIERREZ-GRANDA,
JOSE GREGORIO ALVAREZ-ALDANA,

                                                                     Petitioners,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.


                        ________________________

                   Petition for Review of a Decision of the
                        Board of Immigration Appeals
                        _________________________

                                (July 9, 2010)

Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

     Ilianna Evangelina Gutierrez-Granda and Jose Gregorio Alvarez-Aldana,
citizens of Venezuela, petition this court for review of the Board of Immigration

Appeal (BIA’s) order affirming the Immigration Judge’s (IJ’s) denial of

Gutierrez-Granda’s application for asylum, 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). We deny the petition.

I. Background

       In December 2005, Gutierrez-Granda filed an affirmative application for

asylum, withholding of removal, and CAT relief with the Department of Homeland

Security, naming Alvarez-Aldana, her husband, as a derivative beneficiary.1 In a

statement attached to her application, Gutierrez-Granda explained that she had

been persecuted by the Bolivarian Circles—a pro-Chavez group—for her

opposition to Venezuelan President Hugo Chavez’s educational curriculum.

       At an asylum hearing, Gutierrez-Granda testified to the following. As an

active member of the anti-Chavez Accion Democratica political party, she had

supported an August 2004 national referendum to recall Chavez. After the


       1
          For ease of reference, our opinion will refer only to Gutierrez-Granda, although she did
name her husband as a derivative beneficiary. Our discussion of Gutierrez-Granda’s asylum claim
applies equally to Alvarez-Aldana. He is not entitled to derivative benefits with respect to
Gutierrez-Granda’s requests for withholding of removal and CAT relief because those forms of
relief do not include derivative rights. See Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir.
2007) (withholding of removal statute does not create derivative rights); 8 C.F.R. § 208.16(c)
(regulation governing claims for CAT relief does not mention derivative rights).
                                                  2
referendum failed, she and her husband were placed on the “Tascon List,” a list

reportedly used by the Chavez regime to retaliate against supporters of the recall.

      In November 2004, Gutierrez-Granda was hired as an English teacher at a

public high school. Later that month, she refused to attend a workshop about a

new Chavez-sponsored study plan that was to be implemented in the school. A

few days later, two women got into Gutierrez-Granda’s car and told her that her

opposition was not welcome. The women pulled her hair, called her “nasty and

vulgar” names, and told her that the Bolivarian Circles would not put up with her

disobedience. The women eventually got out of the car and ordered

Gutierrez-Granda to drive away.

      In March 2005, after she missed a mandatory meeting at the school, three

men claiming to have weapons forced Gutierrez-Granda into her car, made her

drive for half an hour, and then ordered her out of the vehicle. They explained that

the Zone Chief for Education would not allow her to oppose the government in that

district. One of the men held Gutierrez-Granda by her elbows while the second

man tore her blouse and touched her breasts. The second man told

Gutierrez-Granda that there were other things that she could provide if she was not

ready to work for the revolution. At that point, the third man stated that it was time

to leave and the men walked away.

      Finally, in May 2005, Gutierrez-Granda received a phone call from a woman
                                          3
who told her that the government would not tolerate her opposition. The woman

told Gutierrez-Granda that she could “go on living far from there or die.” Instead

of returning to the school, Gutierrez-Granda left for the United States in June 2005.

      After hearing her testimony, the IJ denied her application. The IJ found

Gutierrez-Granda’s testimony credible but concluded that she had not shown past

persecution because the incidents were “harassment.” The IJ made no explicit

finding whether Gutierrez-Granda had a well-founded fear of future persecution.

The IJ also concluded that she could not satisfy the higher standard for withholding

of removal. Finally, the IJ concluded that Gutierrez-Granda was not entitled to

CAT relief because there was no evidence that a government official had

acquiesced in her mistreatment.

      On appeal, the BIA agreed with the IJ that the incidents described by

Gutierrez-Granda were not severe enough to constitute past persecution. The BIA

also rejected Gutierrez-Granda’s contention that she had a well-founded fear of

future persecution because her name was on the Tascon List. The BIA stated that

the documentary evidence did not establish a practice of persecution against pro-

democracy Venezuelans who are opposed to President Chavez’s policies. Because

Gutierrez-Granda had not established her eligibility for asylum, the BIA concluded

that she was likewise unable to meet the higher standard for withholding of

removal. Finally, the BIA agreed with the IJ’s conclusion that Gutierrez-Granda
                                          4
was not eligible for CAT relief. Gutierrez-Granda petitions this court for review.

II. Discussion

      Because the BIA issued its own opinion, we review only the BIA’s decision.

Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1332 (11th Cir. 2010). We review the

BIA’s factual findings to determine whether they are supported by substantial

evidence. Id. We “view the record evidence in the light most favorable to the

agency’s decision and draw all reasonable inferences in favor of that decision.”

Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). We may

reverse the BIA’s factual findings only when the record compels a reversal.

Diallo, 596 F.3d at 1332.

1. Asylum and withholding of removal

       Under the INA, the Attorney General or Secretary of Homeland Security

may grant asylum to a petitioner, see 8 U.S.C. § 1158(b)(1)(A), if the alien can

prove that “he or she has suffered past persecution or because he or she has a

well-founded fear of future persecution.” 8 C.F.R. § 208.13(b). In determining

whether an applicant has suffered past persecution, we examine the cumulative

effect of all the incidents described by the applicant. Diallo, 596 F.3d at 1333.

      To establish eligibility for withholding of removal, an applicant must

establish that her life or freedom would be threatened in her country of origin on

account of a statutorily protected ground. 8 U.S.C. § 1231(b)(3)(A). The applicant
                                          5
must demonstrate that she would more likely than not be persecuted if returned to

her country of origin. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir.

2005). The standard for withholding of removal is more stringent than the

standard for asylum. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1292 (11th Cir.

2006).

         Here, Gutierrez-Granda first argues that the BIA erred in failing to find that

she suffered past persecution. She contends that the three incidents of

mistreatment she suffered were “serious and imminent death threats.” In support,

she argues that her case is similar to Mejia v. U.S. Attorney General, 498 F.3d 1253

(11th Cir. 2007).

         We must determine whether the record compels a finding of past

persecution. “[P]ersecution is an extreme concept, requiring more than a few

isolated incidents of verbal harassment or intimidation, and . . . mere harassment

does not amount to persecution.” Sepulveda, 401 F.3d at 1231(quotations and

alteration omitted). We are more likely to conclude that the record compels a

finding of past persecution when an applicant faced imminent and credible death

threats. Compare Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1237 (11th Cir. 2006)

(written death threat “was an example of harassment and intimidation, but not

persecution”), with Diallo, 596 F.3d at 1333-34 (“A credible death threat by a

person who has the immediate ability to act on it constitutes persecution regardless
                                             6
of whether the threat is successfully carried out.”). We are also more likely to

conclude that the record compels a finding of past persecution when the applicant

has suffered physical injury along with death threats. Compare Sepulveda, 401

F.3d at 1231(repeated death threats and a bombing at the alien’s place of

employment, which did not injure her, did not constitute past persecution), with

Delgado v. U. S. Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007) (threats at

gunpoint and severe beating constituted past persecution) and Ruiz v. Gonzales,

479 F.3d 762, 766 (11th Cir. 2007) (past persecution found where guerilla group

“beat [the alien] on two occasions, telephoned threats to him, and held him against

his will for 18 days”).

      In this case, Gutierrez-Granda faced one explicit death threat and two

incidents of mistreatment over a seven-month period. We must decide whether

these three incidents compel a finding of past persecution. Standing alone, none of

these incidents rises to the level of persecution. Neither the incident in which the

women entered her car nor the kidnaping incident constitute past persecution

because brief detentions and minor physical attacks do not satisfy the requirement.

See Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1171, 1174 (11th Cir. 2008)

(upholding BIA’s finding of no persecution where alien was detained for 36 hours

and beaten by police officers but suffered only scratches and bruises).

Furthermore, the anonymous death threat did not have the credibility or imminence
                                           7
necessary to rise to the level of past persecution. See Silva, 448 F.3d at 1237

(holding that a written death threat “was an example of harassment and

intimidation, but not persecution”).

      Taking these incidents cumulatively, it is not clear from the record that these

incidents were extreme enough to constitute persecution. There was no evidence

that any of the people who harassed or threatened her had ever killed or injured

anyone. Furthermore, none of these incidents involved serious physical injury.

Although the conduct of the men who abducted her was reprehensible, her

attackers released her without injury. This case, therefore, is distinguishable from

Mejia, in which the petitioner suffered a broken nose as well as repeated and

specific death threats. See Mejia, 498 F.3d at 1257. Thus, although clearly

disturbing, these incidents were not extreme enough to compel the conclusion that

Gutierrez-Granda suffered past persecution.

      Second, Gutierrez-Granda argues that she has a well-founded fear of future

persecution because it is reasonably probable that she will suffer both economic

persecution and death threats if she returns to Venezuela. Gutierrez-Granda’s fear

of future persecution must be both subjectively genuine and objectively reasonable.

De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1007 (11th Cir. 2008). “The

subjective component is generally satisfied by the applicant’s credible testimony

that he or she genuinely fears persecution.” Id. (quotation marks omitted). “The
                                          8
objective prong can be fulfilled by establishing that the applicant has a good reason

to fear future persecution.” Id. (quotation marks omitted).

      Although Gutierrez-Granda may have a subjective fear that she will be

persecuted if she returns to Venezuela, the record does not compel the conclusion

that she has an objectively reasonable fear of persecution. First, there is no

evidence in the record suggesting that the individuals who threatened

Gutierrez-Granda would follow through with those threats if she returned to

Venezuela. Thus, there is substantial evidence supporting the BIA’s conclusion

that she did not have an objectively reasonable fear of physical persecution.

Second, the record does not compel the conclusion that Gutierrez-Granda would

suffer economic persecution if she returned to Venezuela: she was hired as a public

school teacher despite her placement on the Tascon List and was not fired from this

job despite her persistent opposition to the new pro-Chavez curriculum.

      Finally, Gutierrez-Granda argues that she qualifies for withholding of

removal. Because the record does not compel a reversal of the BIA’s order

denying her petition for asylum, this withholding-of-removal claim fails as well.

See Zheng, 451 F.3d 1287.

2. CAT relief

      To establish eligibility for CAT relief, the applicant must demonstrate that it

is more likely than not that she would be tortured if she were removed to the
                                           9
designated country of removal. 8 C.F.R. § 208.16(c)(2). Gutierrez-Granda

contends that she is entitled to CAT relief because threats of imminent death

constitute a form of torture under the Convention and the relevant Country Reports

establish that the Venezuelan government has committed severe human rights

violations.

      Gutierrez-Granda’s argument is meritless. Because Gutierrez-Granda was

unable to demonstrate a well-founded fear of persecution, she cannot satisfy the

standard warranting relief under CAT. See Al Najjar v. Ashcroft, 257 F.3d 1262,

1303 (11th Cir. 2001) (“The burden of proof for an applicant seeking withholding

of removal under the Convention, like that for an applicant seeking withholding of

removal under the statute, is higher than the burden imposed on an asylum

applicant.”).

3. Remand for new evidence

      Gutierrez-Granda argues that we should remand her case to allow her to

present new evidence that her sister has served in the United States Navy and has

filed an I-130 visa petition on her behalf. She contends that Kucana v. Holder, 130

S.Ct. 827 (2010), supports her request for a remand.

      We may not remand a final order of removal for consideration of new

evidence that was not presented to the IJ or the BIA. 8 U.S.C. § 1252(b)(4)(A).

Kucana does not hold otherwise; it holds that a court of appeals has jurisdiction to
                                          10
review the BIA’s denial of a motion to reopen. Because Gutierrez-Granda did not

file a motion to reopen, we cannot remand her case under Kucana.

      Accordingly, we deny Gutierrez-Granda’s petition for review.

PETITION DENIED.




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