                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT           FILED
                    ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               DEC 30, 2008
                           No. 08-11549
                                                             THOMAS K. KAHN
                       Non-Argument Calendar
                                                                 CLERK
                     ________________________

                       Agency Nos. A97-194-154
                            A97-194-155

JORGE LUIS PINTO-PACHECO,
GLADYS MARIELA ARNAEZ DE PINTO,
JOANMARY VANESSA PINTO-ARNAEZ,
ANDREINA VANESSA PINTO-ARNAEZ,

                                                                    Petitioners,

                                 versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.

                     ________________________

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

                          (December 30, 2008)

Before BLACK, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:
       Jorge Luis Pinto-Pacheco, his wife, and two of their children petition this

court for review of the Bureau of Immigration Appeals’ (the “BIA”) affirmance of

the Immigration Judge’s (the “IJ”) decision denying their application for asylum,

withholding of removal under the Immigration and Nationality Act (“INA”), and

requesting relief under the United Nations Convention Against Torture and Other

Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”).1 For the

reasons stated below, we deny their petition.

                                     BACKGROUND

       The petitioners are a Venezuelan family who entered the United States on

different dates between 2000 and 2002. They lived in Miami, Florida while Pinto-

Pacheo worked in the Miami recruiting office of the Venezuelan Air Force from

August 2000 to October 2002. The family remained in the United States after the

assignment—and their authorization to remain here—ended. They were issued

notices to appear by the Department of Homeland Security, charging them with

removability as aliens who remained in the United States for a time longer than

permitted, pursuant to 8 U.S.C. § 1227(a)(1)(B). Pinto-Pacheco filed an

application for asylum and withholding of removal under the INA and CAT in


       1
          Petitioners failed to raise any arguments in their brief concerning the denial of CAT
relief; they have therefore abandoned that issue. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005). Thus this opinion does not discuss matters relevant to the CAT claim.

                                               2
April 2003, naming his wife and two daughters as derivative beneficiaries.2

       In his application, Pinto-Pacheco asserted that he sought asylum and

withholding of removal based on his political opinion and membership in a

particular social group; he stated he was a member of a group of Venezuelan

military personnel protesting the presidency of Hugo Chavez. Because of his

involvement with this group, Pinto-Pacheco and his family had received death

threats and he had been beaten by two Venezuelan groups, the Bolivarian Circles

and the National Guard. He feared returning to Venezuela because he had

participated in the military group’s protest against Chavez at the Plaza Altamira, a

public square in Caracas and had been identified as an enemy of the Chavez

government. He feared that he and his family would be persecuted, and possibly

killed or tortured, if they returned to Venezuela.

       In support of his application, Pinto-Pacheco submitted several documents,

including a December 2002 article from El Nuevo Herald newspaper describing

his participation in the Plaza Altamira protest and stating, “[Pinto-Pacheco’s]

request for asylum was made directly by his wife . . . who . . . presented to lawyers

a video and documents as proof of the political persecution of which her husband


       2
         His daughter Andreina turned 21 during the immigration court proceedings and
consequently filed her own application for asylum and withholding of removal. Her application
repeated the allegations contained in her father’s application.

                                              3
is a victim.” The article stated that Pinto-Pacheco participated in the protest,

feared arrest by the army or a strike against the protestors by the Bolivarian

Circles. The article also reported that Pinto-Pacheco had told his superiors he

disagreed with Chavez and had resigned from the military. Other articles

described the deaths of three Venezuelan soldiers who had protested the Chavez

government, the arrest of a dissident general, and the “massacre of citizens” in

December 2002 at the Plaza Altamira. A 2002 letter from the Venezuelan

Department of Defense to Pinto-Pacheco requested he return the service passports

issued to the petitioners because Pinto-Pacheco violated administrative procedures

by failing to return the passports after his mission abroad was completed. Pinto-

Pacheco also submitted a printout of an internet list of military personnel

announcing their formal resistance to Chavez. Pinto-Pacheco’s name and picture

appear on the list. A 2003 Human Rights Watch document demanded that

Chavez’s government investigate the abductions and murders of four opposition

supporters—three of whom had participated in the Plaza Altamira protest.

      Pinto-Pacheco’s written statement identified him as a member of the

Venezuela Armed Forces for twenty-four years and stated that he declared his

opposition to Chavez’s government on December 14, 2002. After participating in

the Plaza Altamira protest from December to February, he returned to the United

                                          4
States because his life was in danger and Chavez had threatened to detain all

military engaged in disobedience at Plaza Altamira. He asserted that Plaza

Altamira was threatened by the Bolivarian Circles on several occasions “in which

we were attacked with gun shots and stones.” He accused Chavez-hired assassins

of killing three people at the plaza and stated that one person arrested for the

killings was being protected. The record also contained the U.S. State

Department’s Venezuela Country Report on Human Rights Practices for 2005,

which noted the ongoing existence of harassment, official intimidation, and

attacks on political opposition members. The report stated that the government

and its agents were not suspected of politically motivated killings, but that security

forces committed unlawful killings and were responsible for approximately 6,000

deaths over the previous 5 years. It also noted that “[u]nlike in the previous year,

no deaths resulted from security force intervention in antigovernment

demonstrations.”

      An asylum officer’s report, prepared after an interview with Pinto-Pacheco,

stated that Pinto-Pacheco feared he would be harmed by the government and the

Bolivarian Circles because of his political opinion. He testified that he had been

apolitical and not a member of any political organization until he returned to

Venezuela in October 2002 after his job in the United States ended. Because he

                                          5
disagreed with Chavez’s leadership, he protested at Plaza Altamira from

December 2002 until February 2003, when he returned to Miami. He stated that

he was never physically harmed, but that National Guard and Bolivarian Circles

members threatened him and sought to use violence to disperse the Plaza Altamira

protestors. The asylum officer found Pinto-Pacheco’s testimony not credible

because it was “internally inconsistent.” The officer noted that Pinto-Pacheco

orally testified that he was not physically harmed in Venezuela and explained that

when he wrote in his application that he was “beaten,” he meant beaten mentally,

not physically. He testified that he and his family were not threatened, despite

having stated in his written application that they received death threats in

Venezuela. Additionally, he stated that he was retired from the military by the

government, in contrast to the news article reporting that he had resigned and

announced his disagreement with Chavez to his superiors. Pinto-Pacheco also

stated that he returned to Venezuela in October 2002 to find housing for his

family, but the asylum officer concluded that the purpose of that trip was to find a

way to stay lawfully in the United States.

      At the removal hearing before the IJ, Pinto-Pacheco testified that he left the

United States in November 2002 to find housing and schools in Caracas, and that

he and his family did not intend to stay permanently in the United States prior to

                                          6
that time. He re-entered the United States in February 2003 and applied for

asylum because his life was in danger in Venezuela. He was not a member of any

political organization before 2002 or 2003. He rebelled against the Chavez

government by participating, along with “hundreds of people,” in the protest at the

Plaza Altamira, during which the protestors were “battered, ambushed” by

government supporters, many protestors were arrested, and a rock hit his hand. He

also testified that he was threatened by members of the military while he was

demonstrating and via calls to his cellular telephone. He stated that he was

discharged from the military. He also testified that his wife was threatened by a

“commission” of Venezuelans in Miami, who went to their house to get their

passports and “did many threats [and] told her you are the wife of a traitor.” He

stated that he would be killed if he returned to Venezuela.

      On cross-examination, Pinto-Pacheco testified he did not contact his father

or siblings, who resided in Venezuela, for help with his family’s relocation; he

looked for an apartment there for a month, but could not find one because they

were too expensive; and he found two schools, but did not enroll his children

because he was waiting for their documents. He was asked about unused airline

tickets in his family members’ names to return to Venezuela on October 27, 2002

and explained that he had received permission from the Venezuelan government

                                         7
for his family to remain in the United States for an additional six months and that

their airline tickets were “open” tickets. The family did not leave the United

States in October as required because his daughters had to stay in school. He

acknowledged that he learned in August 2002 that his job in the United States

would be ending in October. He testified that he decided in November—before

joining the Altamira protest—that “at the moment” his family should stay in the

U.S. because of the upheaval and “constant political problems” in Venezuela,

including businesses not operating. Pinto-Pacheco stated that the rock incident

was the only physical harm he suffered, but also testified that he was physically

attacked during ambushes by Chavez supporters. He said he began fearing for his

life in January and made the decision to seek asylum in February. He also testified

that his wife was interested in filing an asylum claim as early as December 2002,

when she was interviewed by El Nuevo Herald for the article. He also explained

that he did not tell the asylum officer about the rock incident because it was too

difficult to do so through the translator.3 He testified that he was discharged from

the military and acknowledged that he received a pension, but was “fighting that

pension” with the government. At one point during the hearing, the IJ noted on



       3
            Neither he nor the translator mentioned having difficulty communicating to the officer at
the time.

                                                   8
the record that Pinto-Pacheco was not directly answering questions.

      The IJ denied the petitioners’ application for asylum, withholding of

removal, and CAT relief, and ordered them removed to Venezuela. The IJ found

that the acts in question—receiving threatening telephone calls and being hit on

the wrist by a rock during a mass demonstration—did not rise to the level of

persecution. The IJ also noted that in response to Pinto-Pacheco’s participation in

the Plaza Altamira protest, the “government has responded by politely asking for

the military passports back, retiring him and sending him a monthly pension.”

      Additionally, the IJ found that Pinto-Pacheco was not credible, based on his

non-responsiveness and the “massive inconsistences” between his application, his

asylum interview, and his hearing testimony. Specifically, the IJ found that Pinto-

Pacheco told the asylum officer he had been beaten, yet testified during the

hearing that his only physical mistreatment was a rock thrown by an unknown

person that hit his wrist. The IJ acknowledged Pinto-Pacheco’s argument that

interpretation problems existed during the asylum interview, but found that Pinto-

Pacheco was able to communicate accurately with the asylum officer “all essential

elements of his claim[,] including his age, where he was born, the fact that he had

served in the Air Force.” The IJ noted that Pinto-Pacheco disputed only one part

of the interview, that dealing with whether he had resigned, retired, or was

                                         9
discharged from the military. The IJ also questioned Pinto-Pacheco’s account of

the timing of his fear of persecution, because Pinto-Pacheco testified that he feared

for his life beginning in January 2003, but the El Nuevo Herald article describing

his asylum application and fear was published in December of 2002. The IJ also

questioned whether Pinto-Pacheco and his family ever intended to return to

Venezuela, since after learning in August 2002 that his job in the United States

was ending, he nonetheless enrolled his children in a U.S. school for the fall and

demonstrated a “lack of diligence in seeking living arrangements” back in

Venezuela. Also, the IJ found inconsistencies between Pinto-Pacheco’s alleged

fear of persecution developing in January 2003, the family’s unused airline tickets

from October 2002, and evidence of his wife’s concern about strikes and closings

of schools and businesses in Venezuela before Pinto-Pacheco participated in the

Altamira protest.4 The IJ also found that Pinto-Pacheco’s testimony included the

repetition of “catch phrases” and sounded rehearsed and memorized.

       The IJ further found that the documentary evidence weakened rather than

supported the petitioners’ claim, as it demonstrated that Pinto-Pacheco’s wife and

       4
         The IJ appears to have conflated two parts of Pinto-Pacheco’s testimony here. Pinto-
Pacheco testified that his wife was interested in filing an asylum claim as early as December
2002. He also testified that in November, when he stopped looking for housing and schools in
Venezuela, he did so because of “constant strife” and businesses not operating, as well as
“constant political problems[.]” But there is no reference in the transcript to his wife’s concern
about strikes and closings.

                                                 10
their attorney “were utilizing the news media to, in essence, build a claim for

asylum.” The website listing of military dissidents did not help his claim, because

Pinto-Pacheco was the next-to-last person and the only non-officer on the list.

The IJ concluded that Pinto-Pacheco added his photo to the website after arriving

in the United States. Based on this evidence, the IJ found that it was not clear

whether Pinto-Pacheco even participated in the Altamira protest. Finally, the IJ

found that conditions in Venezuela had improved and incidents involving the

Bolivarian Circles had decreased in recent years. Because the IJ found that Pinto-

Pacheco did not qualify for asylum, he also denied withholding of removal.

      On appeal, the BIA dismissed the petitioners’ appeal from the IJ’s denial of

their claims. The BIA found that the IJ did not clearly err when it determined that

Pinto-Pacheco was not credible, based on his demeanor and the inconsistencies

between his written application, asylum interview, and testimony as to whether

and what type of harm he suffered in Venezuela, when and why he feared for his

life, and whether he and his family intended to return to Venezuela. The notice of

appeal failed to explain the inconsistencies identified by the IJ. Second, the BIA

found that the petitioners failed to satisfy their burden of proof for asylum,

because being hit on the wrist by a rock did not rise to the level of past persecution

and Pinto-Pacheco’s testimony that he did not know if the Venezuelan government

                                          11
was seeking him did not support a finding of a well-founded fear of future

persecution. Finally, the BIA found that because the petitioners had not met their

burden of proof for asylum, they also did not qualify for withholding of removal.

                            STANDARD OF REVIEW

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

adopts the IJ’s opinion. Insofar as the Board adopts the IJ’s reasoning, we will

review the IJ’s decision as well.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284

(11th Cir. 2001) (citations omitted). Here, the BIA issued its own opinion and

also adopted some of the IJ’s reasoning. We therefore review the decisions of

both the IJ and the BIA in this case.

       We review de novo legal determinations of the IJ and BIA. D-Muhumed v.

U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). Factual determinations,

however, are reviewed under the substantial-evidence test, which requires us to

“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, 1026-27 (11th Cir. 2004) (en banc). We must affirm the BIA’s

decision “if it is supported by reasonable, substantial, and probative evidence on

the record considered as a whole.” D-Muhumed, 388 F.3d at 818 (quotation

omitted). “To reverse the . . . fact findings, we must find that the record not only

                                          12
supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283,

1287 (11th Cir. 2003).

                                   DISCUSSION

      An alien present in the United States may apply for asylum under 8 U.S.C.

§ 1158(a)(1). The Attorney General or Secretary of the Department of Homeland

Security has discretion to grant asylum if the alien meets the statutory definition of

a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is:

      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[.]

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); Al Najjar, 257 F.3d at 1284. To

establish eligibility, the alien must, with specific and credible evidence, establish

(1) past persecution on account of a statutorily listed factor, or (2) a well-founded

fear that the statutorily listed factor will cause future persecution. 8 C.F.R.

§ 208.13(a) and (b); Al Najjar, 257 F.3d at 1287. Furthermore, “persecution is an

extreme concept, requiring more than a few isolated incidents of verbal



                                          13
harassment or intimidation, and . . . mere harassment does not amount to

persecution.” Sepulveda, 401 F.3d at 1231 (quotations and alteration omitted).

      To establish a well-founded fear of persecution, the applicant must show

that there is a “reasonable possibility” of suffering persecution if he returns to his

home country. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007).

The fear of persecution must be “subjectively genuine and objectively reasonable.”

Al Najjar, 257 F.3d at 1289. The alien must show a nexus between a statutorily

protected ground and the feared persecution, and he can do so by presenting

“specific, detailed facts showing a good reason to fear that he or she will be

singled out for persecution on account of” the statutorily listed factor. Forgue v.

U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (quotation omitted). The

alien does not, however, need to prove that he would be “singled out” for

persecution if (1) there is a “pattern or practice” of persecution against similarly

situated individuals and (2) his or her inclusion within that group of individuals

makes fear of persecution reasonable. See 8 C.F.R. § 208.13(b)(2)(iii).

      An adverse credibility determination alone may be sufficient to support

denial of an asylum application. D-Muhumed, 388 F.3d at 819. The IJ, however,

must still consider all of the evidence introduced by the applicant. Forgue, 401

F.3d at 1287. The IJ must also offer specific, cogent reasons for an adverse

                                          14
credibility finding. D-Muhumed, 388 F.3d at 819. Once an adverse credibility

finding is made, the burden is on the alien to show that the credibility decision was

not supported by “specific, cogent reasons” or was not based on substantial

evidence. A credibility determination, like any fact finding, is reviewed under the

substantial-evidence test and “may not be overturned unless the record compels

it.” Id. Finally, “we may not substitute our judgment for that of the fact-finder

with respect to credibility findings.” Yang v. U.S. Att’y Gen., 418 F.3d 1198,

1201 (11th Cir. 2005).

      Considering these factors, substantial evidence supports the IJ’s and the

BIA’s conclusions that Pinto-Pacheco’s testimony was not credible. In particular,

Pinto-Pacheco’s accounts of whether and what type of physical harm he suffered

varied widely, from “beaten” and “attacked with gun shots and stones” in his

written application, to beaten mentally but suffering no physical harm in his

interview with the asylum officer, to being hit on the hand with a rock in his

testimony at the IJ hearing. Also, the El Nuevo Herald article, discussing Pinto-

Pacheco’s asylum claim, was published on December 18—just four days after he

joined the Plaza Altamira protest and a month before, according to his testimony,

his fear of living in Venezuela even developed. His testimony about the

circumstances of his departure from the Venezuelan military—whether he

                                         15
resigned, retired, or was forced out—was also inconsistent, and his statement

about “fighting” the government for his pension was unsupported by corroborating

evidence. Pinto-Pacheco’s argument that translation errors affected his testimony

and were responsible for some of the inconsistencies also fails because he faults

only the translations during his asylum interview and does not address the

inconsistencies between his written application and his testimony before the IJ.

He also failed to specify which translations were incorrect or provide details to

support this argument. Additionally, almost two months before Pinto-Pacheco

joined the Plaza Altamira protest, his family chose to overstay their visas in the

United States rather than use the airplane tickets already in their possession. This

fact, coupled with their lack of preparation for a return to Venezuela, supports the

IJ’s conclusion that Pinto-Pacheco and his family intended to remain in the United

States even before his participation in the protest that allegedly created his fear of

persecution, and, therefore, that his current assertions of fear are less than genuine.

      This court will not substitute its judgment for that of the fact-finder with

respect to credibility findings, Yang, 418 F.3d at 1201, and here Pinto-Pacheco

failed to show that the BIA’s credibility decision was not supported by “specific,

cogent reasons” or was not based on substantial evidence. D-Muhumed, 388 F.3d

at 819. Thus, we conclude that substantial evidence supports the IJ’s and the

                                          16
BIA’s determinations that Pinto-Pacheco was not credible in his assertions that he

experienced past persecution.

      Although an adverse credibility determination alone may be sufficient to

support denial of an asylum application, we note that Pinto-Pacheco also failed to

meet his burden of proving a well-founded fear of future persecution by failing to

establish either past persecution or a good reason to fear future persecution.

D-Muhumed, 388 F.3d at 819; 8 C.F.R. § 208.13(a) and (b); Al Najjar, 257 F.3d at

1284, 1287, 1289. Substantial evidence supports the findings of the IJ and BIA

that Pinto-Pacheco failed to show past persecution because “persecution is an

extreme concept.” Sepulveda, 401 F.3d at 1231 (quotation omitted) (holding that

menacing phone calls and threats made to alien, her brother, and members of

group to which alien belonged were not past persecution). The allegations Pinto-

Pacheco relies upon consisted of threatening telephone calls, threats made to his

wife in the United States, a rock thrown by an unknown assailant that hit his wrist,

and attacks on the group of protestors at the Plaza Altamira. This conduct does

not rise to the level of persecution and certainly does not compel this court to

conclude that he suffered past persecution, particularly in light of his inconsistent

testimony about the threats and whether he suffered any physical attacks.

      Second, substantial evidence supports the findings of the IJ and the BIA that

                                          17
Pinto-Pacheco failed to demonstrate a well-founded fear of future persecution.

The evidence suggests that petitioners decided to stay in the United States before

Pinto-Pacheco allegedly participated in the Plaza Altamira protest and informed

his superiors that he wished to resign in protest against Chavez’s presidency: his

family did not use airplane tickets to return home in October 2002, Pinto-Pacheco

made minimal efforts to relocate there despite the termination of his U.S.

assignment, and the El Nuevo Herald article discussed his fear of living in

Venezuela at a time before his oral testimony indicated he developed this fear.

This evidence casts doubt on the subjective genuineness of his fear.

      Substantial evidence also supports the finding that his fear was not

objectively reasonable. Pinto-Pacheco did not suffer past persecution, as

discussed above, and the only bases for his claim of fear of future persecution

were his inconsistent testimony and the Country Report, which concedely noted

the existence of ongoing harassment, intimidation, and attacks on political

opposition members. The Country Report alone is not sufficient to demonstrate

future persecution absent evidence that Pinto-Pacheco would be singled out. See

Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006) (holding that

substantial evidence supported the IJ’s determination that petitioners were not

eligible for asylum or withholding of removal, despite the Country Report’s

                                         18
recognition of widespread violence, because petitioners failed to prove they would

be singled out). Nor did Pinto-Pacheco present evidence of a “pattern or practice”

of persecution against military dissidents which would support his fear of future

persecution despite a lack of evidence that he would be singled out. 8 C.F.R.

§ 208.13(b)(2)(iii). Pinto-Pacheco offered only an internet listing of military

resisters to Chavez without evidence that those individuals are being targeted or

persecuted. Pinto-Pachedo presented articles discussing the deaths of protestors

during the protest at Plaza Altamira but offered no evidence that participants had

continued to be persecuted after leaving the protest. Thus, Pinto-Pacheco did not

meet his burden of showing refugee status on the basis of a well-founded fear of

future persecution.

      Finally, to qualify for withholding of removal, an alien must establish

standards more stringent that those for asylum eligibility. Because Pinto-Pacheco

could not establish eligibility for asylum relief, he necessarily failed to

demonstrate that it was “more likely than not” that he would be persecuted in

Venezuela, which is the standard applicable to a withholding of removal claim.

Sepulveda, 401 F.3d at 1232




                                           19
                                  CONCLUSION

      For the foregoing reasons, we find no reversible error. Accordingly, we

deny the petitioners’ petition for review.

      PETITION DENIED.




                                             20
