[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-11799

________________________

Agency No. A201-258-411

SOLCILET DEL MAR LUCENA VASQUEZ, 

LEONARDO JOSE PENALOZA HEREDIA, 

a.k.a. Leonardo Pendalosa Heretia, 

MARIA JOSE PENALOZA LUCENA, 

a.k.a. Maria Jose Pendalosa Lucena, 

 Petitioners,

versus

U.S. ATTORNEY GENERAL, 

 Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(May 20, 2014)

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Before MARTIN and FAY, Circuit Judges, and DUFFY,∗ District Judge.

PER CURIAM: 

Solcilet Del Mar Lucena Vasquez, a native and citizen of Venezuela, 

petitions for review of the Board of Immigration Appeal’s (“BIA”) order affirming 

the Immigration Judge’s (“IJ”) denial of Lucena Vasquez’s application for asylum, 

withholding of removal, and relief under the United Nations Convention Against 

Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment 

(“CAT”). We grant the petition and reverse.

I. BACKGROUND

A. Factual Background

Lucena Vasquez was born in Caracas, Venezuela, in September 1978. In 

2003, she became involved actively with the political party “Primero Justicia,” or 

“Justice First,” which supported democracy and opposed Venezuela’s president, 

Hugo Chavez. Lucena Vasquez served on a party committee, attended monthly 

meetings, worked to promote the party’s candidates, and encouraged citizens to 

participate in the democratic process. Her political beliefs were known to others; 

consequently, she became the target of a pro-Chavez group, the Bolivarian Circles.

Lucena Vasquez first was threatened in June 2007. While in a university 

classroom, two men with guns came in and said to Lucena Vasquez: “Stop talking 

 ∗ Honorable Patrick Michael Duffy, United States District Judge for the District of South 

Carolina, sitting by designation.

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about our commander, you damned squalid. Otherwise we’re going to kill you and 

your puppets.”1

 ROA at 113. Before leaving, the men indicated they would be 

watching Lucena Vasquez. She reported this incident to the police. At first, the 

police were helpful, but they became irritated upon learning she was a member of 

Justice First. When Lucena Vasquez mentioned the Bolivarian Circles, the police 

told her she could not accuse them. Rather than take her complaint, a police 

officer threatened to arrest her, because she did not know her attackers’ names.

The threats continued in 2008, when her car was vandalized twice. First, in 

July 2008, Lucena Vasquez found her bumper had been kicked in and the words 

“squalid” and “dog” had been scratched onto her car. She reported this incident to

the police but did not mention the Bolivarian Circles, because she remembered 

how the police had threatened her, when she had previously identified attackers as

members of the group. Her car again was vandalized in November 2008. She had

borrowed her husband’s car because she was afraid the Bolivarian Circles would 

recognize hers. She went to a store in an area where a pro-Chavez group was 

holding a demonstration. When she came out, the car was completely scratched 

and the words “country,” “socialism,” and “death” were written on the windows in

shoe polish. ROA at 118.

 1 A “squalid” is a term for an “oligarch” or “puppet of the empire.” ROA at 75, 111.

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The next threat occurred on July 28, 2009. Lucena Vasquez was returning 

from a Justice First event when she realized an SUV was following her, and it 

rammed the back of her car. When Lucena Vasquez pulled off the road, three men

got out and told her, “[Y]ou’re going to see what’s going to happen to you, you 

damned squalid, you and your daughter.” ROA at 122. Lucena Vasquez was able 

to drive away. While the men initially followed her, she eventually evaded them 

by taking side roads home. She attempted to report this incident to police the next 

day, but they would not investigate because she could not to provide a license plate 

number or some other type of identification.

Almost a year later, Lucena Vasquez was leaving a meeting and had her 

four-year-old daughter with her. When she arrived home, two men wearing the 

typical attire of the Bolivarian Circles forced their way through her gate. The men 

were there to kidnap her daughter. One of them pushed her against the wall and 

tried to grab the child. Lucena Vasquez, holding her daughter with one arm, 

attempted to fight off the man with her other arm. The man stated, “[N]ow we’re 

going to really, really . . . fuck you up . . . you and your baby.” ROA at 124. She 

told him to take the car and money, but the man called her a “damned, stupid 

woman,” and hit her. ROA at 124. Fortunately, a neighbor saw the kidnapping in 

progress and intervened. The man attacking Lucena Vasquez pushed her and said:

“[T]his will not stay like this. . . . Now you’re going to see . . . what’s going to 

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happen to you.” ROA at 125. The neighbor called the police, but the police 

refused to take her complaint because there had not been a robbery or kidnapping.

This incident left Lucena Vasquez severely frightened, and she sought 

psychological help.

The last two incidents occurred in September 2010. First, as Lucena 

Vasquez was leaving her psychologist’s office, a friend told her that two men were 

there asking for her at the reception desk. As Lucena Vasquez was leaving the 

clinic, she noticed these men had scratched her car and left a note saying “we’re 

going to kill you and your family.” ROA at 127. Later that month, Lucena 

Vasquez had been working with other people to drive voters to polling booths. 

After she had voted in the election, a man on a motorcycle shouted, “[W]e told you 

that we’re going to . . . fuck you up, you and your daughter.” ROA at 130. This 

statement caused Lucena Vasquez to recall the attempted kidnapping, and she 

rushed to pick up her daughter.

Following these incidents, Lucena Vasquez told her husband she could no 

longer live in Venezuela. Lucena Vasquez and her family entered the United 

States on May 17, 2011. They were admitted as non-immigrant visitors and were 

authorized to remain until November 16, 2011.

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B. Procedural Background

On June 28, 2011, Lucena Vasquez applied for asylum pursuant to the 

Immigration and Nationality Act (“INA”) § 208(a), 8 U.S.C. § 1158(a), and 

withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), based on 

her political opinion and membership in a social group, and sought protection 

under CAT, 8 C.F.R. § 208.16(c).

2

 On December 6, 2011, the Department of 

Homeland Security filed Notices to Appear with the immigration court and alleged 

Lucena Vasquez, along with her husband and daughter, were removable pursuant 

to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), because they remained in the 

United States for a time longer than permitted.

At a hearing before the IJ, Lucena Vasquez testified to the events described 

above in support of her application. She also testified that by returning to 

Venezuela, she believed she would be either tortured or killed. The IJ found 

Lucena Vasquez’s testimony was credible, and the “alleged persecutory acts 

happened to her on account of her political opinion, her involvement in Justice 

First, and her opposition to the Hugo Chavez government and the Bolivarian 

Circles.” ROA at 80. The IJ characterized this as “a very, very close case,” but 

ultimately determined Lucena Vasquez had not established past persecution and 

 2 Lucena Vasquez’s application listed her husband and daughter as derivative 

beneficiaries. Although our opinion refers only to Lucena Vasquez, our holding as to the asylum 

claim applies equally to her husband and daughter. In view of our ruling on the asylum claim, 

we need not discuss the issues of withholding of removal or CAT relief.

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denied her application. ROA at 81. The IJ also denied her CAT claim, because 

there had “been no testimony . . . that [Lucena Vasquez] would be tortured by or at 

the hands or with the acquiescence of a Venezuelan government official if she 

were returned to Venezuela.” ROA at 83-84.

Lucena Vasquez appealed to the BIA, which dismissed her appeal. The BIA 

summarized the facts and cited to the IJ’s decision. The BIA “agree[d] with the 

Immigration Judge that [Lucena Vasquez] did not suffer past persecution.” ROA 

at 4. The BIA cited precedent from this court and explained previous cases finding 

past persecution “contain[ed] at least one incident involving serious physical harm 

and a number of other incidents, not as severe,” which “combine[d] to constitute 

past persecution.” ROA at 4 (citing Mejia v. U.S. Att’y Gen., 498 F.3d 1253 (11th 

Cir. 2007); Niftaliev v. U.S. Att’y Gen., 504 F.3d 1211 (11th Cir. 2007); Ruiz v. 

Gonzales, 479 F.3d 762 (11th Cir. 2007)). It found Lucena Vasquez’s “claims do 

not contain an incident of significant harm, notwithstanding the attempted 

kidnapping,” and held Lucena Vasquez did not suffer the “degree [of] harm” 

required to establish past persecution. ROA at 4.

II. DISCUSSION

“We review only the BIA’s decision, except to the extent the BIA expressly 

adopts the IJ’s decision.” Mu Ying Wu v. U.S. Att’y Gen., 745 F.3d 1140, 1153

(11th Cir. 2014) (alterations, citation, and internal quotations marks omitted). We 

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must affirm if the BIA’s decision is supported by reasonable, substantial, and 

probative evidence when the record is considered as a whole. Ruiz, 479 F.3d at 

765. In order to reverse, “we must find that the record not only supports the 

conclusion, but compels it.” Id. (citation and internal quotation marks omitted).

The Attorney General may grant asylum to an alien who qualifies as a 

“refugee” within the meaning of INA. Sepulveda v. U.S. Att’y Gen., 401 F.3d 

1226, 1230 (11th Cir. 2005). A “refugee” is defined as one who is unable or 

unwilling to return to her home 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.” INA § 101(a)(42)(A), 8 U.S.C. 

§ 1101(a)(42)(A). “[P]ersecution is an extreme concept, requiring more than a few 

isolated incidents of verbal harassment or intimidation.” Sepulveda, 401 F.3d at 

1231 (citation and internal quotation marks omitted). 

Looking at the cumulative effect of all the incidents, the BIA must determine 

whether a petitioner has suffered treatment rising to the level of persecution. 

Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007). “[E]ven though 

each instance of mistreatment, when considered alone, may not amount to 

persecution, the record may still compel a finding of past persecution when 

considered as a whole.” De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008 

(11th Cir. 2008). Where a petitioner demonstrates repeated threats combined with 

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other forms of severe mistreatment, our precedent does not require serious physical 

injury in order to demonstrate past persecution. Id. at 1008-10.

A “well-founded fear” of future persecution may be established by showing 

(1) past persecution, which creates a presumption of a “well-founded fear” of 

future persecution, (2) a reasonable possibility of personal persecution that cannot 

be avoided by relocating within the subject country, or (3) a pattern or practice in 

the subject country of persecuting members of a statutorily defined group of which 

the petitioner is a part. 8 C.F.R. § 208.13(b)(1), (2). If the petitioner demonstrates 

past persecution, a rebuttable presumption arises that her “life or freedom” would 

again be threatened upon removal. 8 C.F.R. § 208.16(b)(1)(i). “This presumption 

arises ‘on the basis of the original claim’; it does not require any showing on the 

part of the applicant of a likelihood of future persecution.” Antipova v. U.S. Att’y 

Gen., 392 F.3d 1259, 1264 (11th Cir. 2004) (quoting 8 C.F.R. § 208.16(b)(1)(i)). 

Once the petitioner demonstrates a “well-founded fear,” the burden shifts to the 

government to show, by a preponderance of the evidence, (1) there is a 

fundamental change in circumstance such that the petitioner no longer has a wellfounded fear of future persecution, or (2) the petitioner could avoid future 

persecution by relocating to another part of her country or place of last habitual 

residence and, under all the circumstances, it would be reasonable to do so. 8 

C.F.R. § 208.13(b)(1)(i).

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As the IJ recognized and the BIA noted, Lucena Vasquez presented 

testimony that was believable, consistent, and sufficiently detailed. See Yang v. 

U.S. Att’y Gen., 418 F.3d 1198, 1202 (11th Cir. 2005) (noting the applicant “must, 

with specific and credible evidence, establish past persecution”). Upon review of

Lucena Vasquez’s detailed testimony, and with great respect to the IJ who believed 

this case to be “very, very close,” ROA at 81, we find this case demonstrates past 

persecution.

The series of events culminating in the attempted kidnapping of her young

child and the continued threats against her child’s life establish Lucena Vasquez 

suffered past persecution because of her political opinion. Two men tried to rip 

Lucena Vasquez’s young daughter from her arms and were stopped only by a 

neighbor’s intervention. We can imagine little worse than being subjected to such

a horrifying attempt as the kidnapping of a young child. Most parents would 

gladly subject themselves to kidnapping, torture, and even death, rather than to 

have their child kidnapped by evildoers. 

This is not a case of a “few isolated incidents of verbal harassment or 

intimidation.” Sepulveda, 401 F.3d at 1231 (citation and internal quotation marks 

omitted). Lucena Vasquez was attacked twice: once when her car was rammed by 

an SUV and once when a member of the Bolivarian Circles hit her in his attempt to 

kidnap her daughter. Given these assaults as well as the multiple verbal and 

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written threats Lucena Vasquez received, the perpetrators’ acts cannot be 

considered “isolated.” See Mejia, 498 F.3d at 1257-58 (concluding threats and 

attacks over an 18-month period that culminated in an attack at gunpoint 

constituted persecution). 

In finding no past persecution, the BIA reasoned Lucena Vasquez had not 

suffered “significant physical harm,” and therefore her case did not parallel our 

prior cases where there had been “at least one incident involving serious physical 

harm.” ROA at 4. De Santamaria, however, has established that serious physical 

injury is not required to demonstrate past persecution, when there are physical 

threats combined with other forms of mistreatment such as kidnapping. 525 F.3d 

at 1008-10. The BIA failed to consider the cumulative effect of the attempted 

kidnapping of Lucena Vasquez’s daughter, the attack while Lucena Vasquez was 

driving home with her daughter, and the multiple verbal and written threats Lucena 

Vasquez received. Considering the cumulative impact Lucena Vasquez suffered, 

we conclude past persecution was established, and the IJ and BIA erred in their 

conclusions to the contrary.3

 Delgado, 487 F.3d at 861-62 (finding that while the 

incidents including threatening phone calls, car vandalism, detention by masked 

men who pointed and mock fired unloaded guns at petitioners, and beatings, were 

 3 While Lucena Vasquez also raises the argument that she demonstrated a well-founded 

fear of future persecution, we need not address this argument because we find she has 

demonstrated past persecution and is entitled to a rebuttable presumption of a “well-founded 

fear.” 8 C.F.R. § 208.13(b)(1).

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not individually enough to establish persecution, when considered together they

did establish past persecution).

Because Lucena Vasquez has established past persecution, she is entitled to 

the rebuttable presumption of a well-founded fear of persecution in Venezuela. 

Antipova, 392 F.3d at 1264. On remand, the government can decide whether or 

not to attempt to rebut this presumption. 8 C.F.R. § 208.13(b)(1)(ii).

III. CONCLUSION

We grant the petition, vacate all the rulings made in these proceedings, and 

remand to the BIA for remand to the IJ for further proceedings consistent with this 

opinion.

PETITION GRANTED; VACATED and REMANDED.

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