FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 18, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-12229

Non-Argument Calendar

________________________

Agency Nos. A98-736-432

A98-736-433

CARLOS VINCENZO DAMATO-SIFONTES, 

KATIUSKA JOSEFINA DAMATO-PUERTAS, 

KATHRYN ALEJANDRA DAMATO-PUERTAS, 

Petitioners, 

versus

U.S. ATTORNEY GENERAL,

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(November 18, 2008)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

Carlos Damato-Sifontes and his family, natives and citizens of Venezuela,
petition this Court for review of the decision of the Board of Immigration Appeals

that denied Damato-Sifontes’s motion to reconsider. Damato-Sifontes argues that

the Board failed to consider the statements in his written application that he had

been persecuted because he opposed the Hugo Chavez government. We grant the

petition to Damato-Sifontes, but deny the petition to his wife and daughter, vacate

the denial of the motion to reconsider, and remand for further proceedings.

I. BACKGROUND

Damato-Sifontes, his wife, Katiuska Damato-Puertas, and their daughter,

Kathryn Damato-Puertas, were admitted to the United States in December 2003 as

nonimmigrant visitors. In April 2005, Damato-Sifontes, on behalf of himself, his

wife, and their minor daughter, filed an application for asylum and withholding of

removal under the Immigration and Nationality Act and the United Nations

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment

or Punishment. They sought relief based on their political opinion and

membership in a particular social group.

In an addendum to the application, Damato-Sifontes alleged that he was

harassed and later persecuted for his opposition to the Chavez government. 

Damato-Sifontes alleged that, as a sub-inspector of the Venezuelan Intelligence

and Prevention Services, he assisted in the defeat of a coup d’etat by Hugo Chavez

in 1992. After Chavez was elected president in 1998, Damato-Sifontes was

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interrogated, called a traitor, and forced to retire. After retirement, the government

failed to deposit his pension and required him to travel to Caracas to update his

personal information. Later, a police official called Damato-Sifontes and told him

he did not deserve to draw a pension, but that internal regulations required the

police to pay the benefits.

Damato-Sifontes alleged that after his retirement, he became a “militant,”

but not a “member,” of a political organization called Democratic Action that

opposed the Chavez regime. He distributed propaganda and attended six or seven

demonstrations in 2002 and 2003 to oppose the Chavez government. DamatoSifontes participated in the demonstrations without incident.

Damato-Sifontes alleged that his situation changed after he demonstrated at

the Altamira Plaza in Caracas on February 4, 2003. En route home the next day, a

jeep that resembled an official vehicle of the Venezuelan police began to pass his

car. Damato-Sifontes saw a person wearing a balaclava leaning out of the jeep

holding a firearm. Damato-Sifontes slammed on his breaks and made a U-turn,

then heard gunfire. He sped away and rested at a distant gas station for the rest of

the evening. Damato-Sifontes suspected initially that the incident was an

attempted robbery, but the next day he received an anonymous phone call and a

man said, “You were saved, damn ‘escualido’ . . . but next time we will burn down

your family and you, if you keep going to Altamira.” Damato-Sifontes explained

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in the addendum that the term “escualido” was “a term used to allude [to] the

enemies of the government.”

 Damato-Sifontes alleged that he and his family made preparations to leave

the country, but the government refused to give Damato-Sifontes his passport. 

Damato-Sifontes traveled to Caracas and hid in the home of his mother-in-law

until he was able to obtain the passport. After Damato-Sifontes obtained a visa

from the American Embassy, he and his family fled to the United States. After

their arrival, the Venezuelan government ceased paying Damato-Sifontes’s

pension.

At the hearing, Damato-Sifontes did not explain that the anonymous caller

threatened him because of his activities at Altamira. Damato-Sifontes described

the shooting and his escape and blamed the Venezuelan police. When questioned

about the telephone call, Damato-Sifontes testified that he received a call that

registered on his caller identification as “restricted” and that the message

contained death threats.

The immigration judge ruled that Damato-Sifontes’s application for asylum

was untimely and, in the alternative, the application failed on the merits. The

judge did not make an adverse finding about Damato-Sifontes’s credibility, but the

judge stated that a memo from the Venezuelan Ministry of Interior Relations,

which stated that Damato-Sifontes was “given the benefit of retirement by way of

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grace” and conveyed “feelings of consideration and esteem” and gratitude for his

“invaluable services,” suggested that Damato-Sifontes was not “perceived

officially as a traitor . . . .” The immigration judge also found “significant” that

Damato-Sifontes did not “mention any problems” during his demonstrations in

2002 and 2003.

 The immigration judge credited Damato-Sifontes’s testimony that shots

were fired at him and that he received a telephone call the next day from an

unidentified caller, but the judge did not mention the allegations made by DamatoSifontes in his application that the caller attributed the incident to the political

activities at Altamira. The immigration judge ruled that Damato-Sifontes’s

retirement and problems regarding his pension payments constituted harassment. 

The immigration judge found that there was “no hard evidence” to establish that

Damato-Sifontes “ever had any problems in Venezuela for any of the five

previously enumerated grounds.” The judge also found there was “no

corroborating evidence to indicate that any of the statements that [DamatoSifontes] made happened.” In regard to the shooting, the court found that “there

[was] no evidence whatsoever that this had anything to do with one of the five

previously enumerated grounds or of who did it and why.”

The Board of Immigration Appeals dismissed the appeal by DamatoSifontes and his family. The Board affirmed that the application for asylum was

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untimely and found that Damato-Sifontes and his family failed to establish that

conditions had changed in Venezuela to excuse the untimely application. The

Board then considered the merits of Damato-Sifontes’s application for

withholding of removal and relief under the Convention. The Board “assume[d]

for purposes of adjudicating the appeal that [Damato-Sifontes] testified credibly,

and affirm[ed]” the conclusion of the immigration judge that Damato-Sifontes

“failed to meet his burden of proof establishing that it is more likely than not that

he will be persecuted on account of a protected ground if he is returned to

Venezuela.”

The Board considered separately the shooting and the phone call. The

Board “affirm[ed]” the conclusion of the immigration judge that Damato-Sifontes

“failed to establish a nexus between [the shooting] and a protected ground.” The

Board found “there [was] no evidence at all to confirm [Damato-Sifontes’s]

suspicions that the shots were fired by [government] officers” or that “this event

was connected in any way to the demonstration that [Damato-Sifontes] attended in

Caracas the previous day.” The Board found that Damato-Sifontes referred to the

shooting incident as an “attempted robbery” and found “no basis upon which to

disturb the Immigration Judge’s conclusion that ‘there is no evidence whatsoever

this had anything to do with one of the five previously enumerated ground[s] or of

who did it or why.’” In a separate paragraph, the Board “agree[d]” with the

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immigration judge that the “single threatening anonymous phone call” did not

“rise[] to the level of prosecution.” 

Damato-Sifontes and his family moved for reconsideration. DamatoSifontes argued that he was entitled to an exception from the filing deadline

because of changed conditions in Venezuela. He also argued that the Board erred

by finding that he presented no evidence to establish that he was targeted for his

political activities. Damato-Sifontes repeated the statement in his application that

the anonymous caller told him that “we will burn down your family and you, if

you keep going to Altamira.” The Board denied the motion and ruled that

Damato-Sifontes had “not identified any material factual or legal errors in the

prior decision that are supported by pertinent authority.”

II. STANDARD OF REVIEW

We review the denial of a motion to reconsider for abuse of discretion. 

Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007). 

III. DISCUSSION

Damato-Sifontes and his family challenge the denial of their motion to

reconsider factual findings by the Board. The family does not challenge the

finding that their application for asylum was untimely, which we lack jurisdiction

to review. Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). 

Because only claims for withholding of removal and relief under the Convention

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remain, and these regulations do not provide for derivative benefits, we deny the

petition to Damato-Sifontes’s wife and daughter. See 8 C.F.R. § 208.16(c);

Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir. 2007) (per curiam).

An alien may file a motion to reconsider to point out factual errors in the

decision of the Board. That motion must “specify[] the errors of fact or law in the

prior Board decision and . . . be supported by pertinent authority.” 8 C.F.R. §

1003.2(b)(1). The Board abuses its discretion when its decision is arbitrary or

capricious. See Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005).

The Board abused its discretion by denying Damato-Sifontes’s motion to

reconsider. Damato-Sifontes argued that the Board erred by finding that there was

“no evidence at all” to suggest that the shooter was motivated by DamatoSifontes’s political activities. The Board credited Damato-Sifontes’s testimony

that the shooting occurred after he attended a rally opposing the Chavez

government and that he received an anonymous call the next day, but the Board

failed to consider Damato-Sifontes’s statement in his application that the caller

professed responsibility for the shooting and threatened to kill Damato-Sifontes

and his family if he participated in further demonstrations at Altamira Plaza. The

Board also failed to consider whether the caller related the shooting and the

protests.

We vacate the denial of Damato-Sifontes’s motion. When the Board has not

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addressed an issue of fact raised by a petitioner “‘the proper course . . . is to

remand to the agency for additional investigation or explanation.’” Calle, 504 F.3d

at 1329 (quoting INS v. Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355 (2002) (per

curiam)). We remand to the Board to consider whether the shooting and DamatoSifontes’s political activity were related and whether Damato-Sifontes is entitled

to withholding of removal.

IV. CONCLUSION

We DENY the petition to Damato-Sifontes’s wife and daughter. We

GRANT Damato-Sifontes’s petition, VACATE the order that denied DamatoSifontes’s motion to reconsider, and REMAND for further proceedings.

PETITION GRANTED IN PART AND DENIED IN PART. 

VACATED AND REMANDED.

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