2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-22-2008

Navarro-Celis v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2572

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-2572

 

RICHARD ALEXANDER NAVARRO-CELIS,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

 

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A97-452-570)

Immigration Judge: Honorable Henry S. Dogin

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 22, 2008

Before: FUENTES, WEIS and GARTH, Circuit Judges.

(Opinion filed: October 22, 2008)

 

OPINION

 

PER CURIAM.

Richard Navarro-Celis, a native and citizen of Venezuela, arrived in the

United States in October 2003 on a non-immigrant B-2 visa. He overstayed his admission
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period and, in March 2004, was charged with removability pursuant to Immigration and

Nationality Act (“INA”) § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B)]. Navarro-Celis

conceded his removability but applied for asylum, withholding of removal, and protection

under the United Nations Convention Against Torture (“CAT”), claiming persecution on

account of political opinion. 

In his asylum application and testimony before the Immigration Judge

(“IJ”), Navarro-Celis claimed that he was an active member of a political party known as

COPEI from the early 1990s until his arrival in the United States. As a party member, he

would transport local candidates, coordinate meetings, distribute flyers, and participate in

demonstrations and marches. He started experiencing problems as a result of his political

affiliation following the ascendancy of Venezuela’s President Hugo Chavez, who is the

leader of a rival party known as the Fifth Republic Movement. Navarro-Celis alleged that

in April 2002 he attended a large anti-government demonstration in Caracas, Venezuela,

at which time opposition leaders were nearly successful in seizing power from President

Chavez. Navarro-Celis asserted that, after order was restored, the government began

targeting members of opposition parties who participated in the demonstration. He

alleged that in June 2002 he started receiving threatening phone calls from anonymous

individuals. He also claimed that individuals working for the government attempted to

intimidate him by throwing rocks at the windows of his house, vandalizing his car,

confronting him on the street, and threatening his life. Fearing for his safety, he decided

to flee Venezuela in October 2003. He believes that he would be persecuted if removed
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to Venezuela because his party membership is well-known, his name is on an official list

of government dissidents, and other members of opposition parties in Venezuela continue

to suffer due to their political affiliation.

The IJ found Navarro-Celis’ testimony credible but denied relief on the

ground that he had not met his burden of proving eligibility for asylum, withholding of

removal, or CAT protection. The IJ stated in his oral decision that none of the events

recounted by Navarro-Celis in his testimony rose to the level of persecution and that the

evidence did not establish that his fear of future persecution was well founded. The

Board of Immigration Appeals (“BIA”) affirmed and adopted the decision of the IJ. The

BIA further explained that Navarro-Celis had not shown past persecution because neither

he nor anyone in his family was arrested or physically harmed as a result of his party

membership, and that he had not shown a well-founded fear of persecution because he

chose to remain in his hometown for approximately sixteen months after the alleged

harassment began. Navarro-Celis filed a petition for review of the BIA’s decision.

We exercise jurisdiction to review the BIA’s final order of removal under

INA § 242(a) [8 U.S.C. § 1252(a)]. Because the BIA adopted the findings of the IJ and

also commented on the sufficiency of the IJ’s determinations, we review the decisions of

both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). Our

review of these decisions is for substantial evidence, considering whether they are

“supported by reasonable, substantial, and probative evidence on the record considered as

a whole.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998). The decisions
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must be affirmed “unless the evidence not only supports a contrary conclusion, but

compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (quoting Abdille v.

Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001)). 

An applicant for asylum has the burden of establishing that she is unable or

unwilling to return to her home country “because of [past] persecution or a well-founded

fear of future 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)]; see 8 C.F.R. 208.13(a). Persecution under INA § 101(a)(42)(A)

“connotes extreme behavior, including threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft,

341 F.3d 214, 217 (3d Cir. 2003) (internal quotations omitted). Mere threats generally do

not amount to persecution unless “they are of a highly imminent and menacing nature.” 

Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir. 2005). 

Navarro-Celis testified that he received an unspecified number of

anonymous threats in the months following his attendance at the April 2002 antigovernment demonstration. Nothing in the record, however, compels a finding that the

threats were sufficiently serious to rise to the level of persecution. Navarro-Celis was

neither arrested nor physically harmed at any time after the threats commenced. In

addition, throwing rocks at Navarro-Celis’ home and vandalizing his car do not constitute

persecution. Thus, the BIA properly concluded that Navarro-Celis did not show past

persecution on account of political opinion. 
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Substantial evidence also supports the BIA’s conclusion that Navarro-Celis

failed to demonstrate a well-founded fear of persecution. An applicant claiming a wellfounded fear of persecution must “show that he has a subjective fear of persecution that is

supported by objective evidence that persecution is a reasonable possibility.” Abdille,

242 F.3d at 496 (internal quotations omitted). Navarro-Celis gave credible testimony as

to his subjective fear that he will be jailed or harmed if removed to Venezuela. He also

submitted documentary evidence indicating that political persecution currently exists

against certain individuals who oppose the present government. Nevertheless, the record

does not compel a finding that Navarro-Celis has an objectively reasonable fear that he

will be singled out for persecution. As suggested by the BIA, the fact that he lived openly

in his hometown for over one year without being arrested or physically harmed after

participating in the anti-Chavez march demonstrates that his fear of future persecution is

not well founded. See Lie v. Ashcroft, 396 F.3d 530, 536-37 (3d Cir. 2005) (holding that

alien’s subjective fear of persecution was undermined where she remained in home

country for two years after incident of alleged persecution). There is no indication from

Navarro-Celis’ testimony or from any of the documents in the record that the inclusion of

his name on an official list of dissidents signifies that he faces a likelihood of future

persecution. 

Finally, because Navarro-Celis failed to establish a well-founded fear of

future persecution, he also failed to satisfy the higher standard for withholding of

removal. See Kibinda v. Attorney General, 477 F.3d 113, 123 (3d Cir. 2007). The BIA
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properly denied Navarro-Celis’ CAT claim because the record evidence does not compel

the conclusion that he is “more likely than not” to be tortured if returned to Venezuela. 

See Tarrawally v. Ashcroft, 338 F.3d 180, 187-88 (3d Cir. 2003); 8 C.F.R. § 208.16(c)(2).

For the foregoing reasons, we will deny the petition for review.