NOT P RECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CI RCUIT

________

___

No. 18

- 3 5 4 3

___________

L U I S A N T O N I O R O S A L E S M A N R R I Q U E Z

, P etitioner

v.

ATTORNEY GENERAL U NITED STATES OF AMERICA

______ ______________________________

On Pet iti o n for Revi ew of an Order of the Board of Immigration Appeals (Agenc y N o. A 2 1 6

- 2 6 6

- 8 8 1 ) Immigration Judge: Honorable J o h n P

. E l l i n g t o n

________________

____________________
Submitted Pursuant to Third Circuit LAR 34.1(a)

Before: AM BRO, GREENAWA Y, JR. and PORTER , Circuit J udges

(Op ini o n filed : April 8, 2020 )

___________

OPINION *

___________

PER CURIAM

L u i s A n t o n i o R o s a l e s M a n r r i q u e z ( R o s a l e s ) p e t i t i o n s f o r r e v i e w o f t h e B o a r d o f

I m m i g r a t i o n A p p e a l s ( B I A ) o r d e r d i s m i s s i n g h i s a p p e a l f r o m a n i m m i g r a t i o n j u d g e ’ s ( I J )

d e c i s i o n d e n y i n g h i s a p p l i c a t i o n s f o r asylum , withholding

, a n d r e l i e f u n d e r t h e

* This dispositi o n is not an opinion of the full C ourt and pursuant to I.O.P. 5. 7 does not2

C o n v e n t i o n A g a i n s t T o r t

u r e ( C A T )

. For the reasons that follow, we will d e n y the

p e t i t i o n f o r r e v i e w

.

In Decemb er 201 7, R o s a l e s , a citizen of Venezuela, was placed in remov a l

proc eedings as an applicant f or a d mission wh o lacked a valid entry document, see 8

U.S.C. § 11 8 2 (a)(7)( A)(i)(I). He applied for asylum, w it hholding of removal, and C A T

r e l i e f

. He maintained that he suffered past persecution in Venezuela on account of h is

pol itical opinion, and that he w o uld suffer future persecution and torture should he be

retu rned there

.

At a hearing before the IJ, Rosa les testified that he was a famous professional

boxe r in Venezuela. In October 2013 or 2014, members of the Vene z uelan S ports

A uthority, a gover nmen t body f o r w h i c h Rosales boxed, beat him severely for refusing to

p ubl icly support Venezuela n P r e s i d e n t Nicolas Maduro and his government. Rosales wa s

told that if he did not “fight for Maduro,” they would “finish him o f f.” Rosales took this

as a thr eat t o b o t h his professional career and his life. I n addition to continue d death

threats by phone, his “pad was de stroyed . . . they wrote with paintings . . . on the walls.”

A.R. at 163. He testified that he retired a s a boxer, rather than publicly su ppor t the

govern ment, and that he moved around Venez uela to avoid further harm, including

spending time at his gran dparents’ secluded farm. In 2015, he f lew to Mexico for a

sporting engagement. He remained there, boxing pr o fessionally, until entering the Uni t ed

States i n 2017.

constitute binding precedent.3

The IJ d e c i d e d that Rosales ’ s t e s t i m o n y was cred ible, but that he had n ot

establish ed a sufficient basis for asylum, withh olding, or relief under the CAT

, a n d

o r d e r e d h i m r e m o v e d t o V e n e z u e l a . The B I A c o n d u c t e d its own analysis o f th e legal

issu es a n d dismissed the appeal. Rosa les filed t h i s timely pe tition for review.

We have jurisdiction to review final orde rs of the BIA purs uant to 8 U.S.C.

§ 1252. When, as here, the BIA affirmed a n d partially reiterated the IJ's dis c ussions and

determinations, we review both decisions. See Sandie v. Att'y Gen. , 562 F.3d 246, 250

(3d Cir. 20 09). We review the a gency's findings o f fact for substantial evidence,

considering whether it is “support ed by reasonable, substantial, and pro b ative evide nce

on the record considered as a whole.” Balasubramanri m v. INS , 143 F.3d 157, 161 (3d

Cir. 1998)

. The decisions must be affirmed “unless the evidence not only supports a

contrary conclusion, but compels i t .” Zubeda v. Ashcroft , 333 F.3 d 46 3 , 471 (3d C ir.

2003) ( c i t a t i o n o m i t t e d )

.

A s y l u m & W i t h h o l d i n g o f R e m o v a l

To make out a prima facie case for asylum, R o s a l e s m u s t s h o w t h a t h e w a s

p e r s e c u t e d

, o r h a s a w e l l

- f o u n d e d f e a r o f persecution

, “on acco u nt” of a statutorily

protected grou n d, incl udin g “race, religion, nationality, mem bership in a particu lar social

group, or political opinion.” 8 U.S. C. § 1101(a)(42)(A) ; 8 C

. F

. R

. § 1 2 0 8

. 1 3

. Rosales

sought asylum on the basis of his political opin ion

, i

. e

. , r e f u s i n g t o p ub l i c l y s u

p p o r t

P r e s i d e n t M a d

u r o a n d h i s g o v e r n m e n t

.

With regard to past persecution, R osales testified that, during the attack by the4

government agents , he was kicked in the face and back. He testified that his back was

“twisted or out

, out of line” and his nose was “twi s ted.” A.R. at 160, 177. He did not go

to a hospital for treatment

, b u t he obtained first aid from his trainer, and spent months

heal ing. The Board noted that the incident was isolated, an d that it did not result in

s e rious injury. It the refore agr eed w ith the IJ t hat the harm suffered at the hands of the

sports authorit y members, including the subsequent harassment and threats, did n ot rise to

the level of past persecutio n.

Rosales argue s that the Agency diminish ed and downplay ed the se verity of the

b eating. He claims that he informed the Agency that his nose and back were both broken.

Although he indicated on his asylum applicati on that the assailants “broke my back,” he

did not testify likewise, and his testimon y that the back was me rely “twis ted” and that it

required only “vitamin shots” and “massage[ ] therapy” fr om his grandfather to heal, did

not suggest a severe injury. Fur ther, he provided no statement s nor tes timony indicating

that his nose was broken. T h e Agency’s determi nat ion that t he a s sault did no t rise to the

level of persecution is therefore supported by substantial evidence. See Voci v.

Gonzales , 409 F.3d 607, 61 5 (3d Cir. 2005) (single beati ng that d oes not result in serious

physical injury does not compel reversa l o f the Boar d’s d ecision that alien did not suffer

past persecution).

“The term ‘perse cution’ is not limited to physical harm or threats of physical ha rm

and may include threats of economic harm, so long as the threats, if carried out, w ould be

of suffici ent severity that they amount to past persecution.” In re T

– Z

- , 24 I. & N. Dec.5

163, 1 69 (BIA 2007); s e e Li v. Att’y Gen. , 400 F.3d 157, 169 (3d Cir. 2005) (referring to

“severe economic disadvan tage which could threaten [a] family's fr e edom if not their

lives ” a s an exam pl e of persecu tory harm). While the Board has recognized t hat “a

swee ping limitation of opportunities to continue to work in an established profession or

business may amount to p ersecution even though the applicant coul d otherwise survive,”

it is not “lik el y to qualify as persecution by itself.” In re T

- Z

- , 24 I. & N. D e c

. at 174.

The BIA concluded that the loss of Rosales’s “preferred profession ” is not so severe as to

amount to pers ecution. See Ahmed v. Ashcroft , 34 1 F.3d 214, 218 (3d Cir. 2003)

. The

record does not com pel a contrary conclusion. As the IJ noted, “in a ddition to

professional boxing, respondent has construction skills that were gained in Venezuela.”

A.R. at 9 6 (citing Ex . 3 (the asylum application))

. I n d e e d

, R o s a l e s admitted that he had

done a variety of t ypes of work in Venezuela, including “pro bo xer , painter, construction,

painting, electrical.” A.R. at 393.

N e x t

, the Boar d agreed with the IJ that Rosales had a subjective fear of future

persec u tion bu t c o n c l uded that the obj ect i ve evide nce did not sup port it. The IJ

determined that Rosales’s clai m that the government authorities sought to persecute him

was belied by the ev idence that he was able to procure gove rnment documents in 2015,

includi n g a police clearance ( a crimina l b a ckground check) that we nt to Mexico, an

identification document, and a passport, and was then permitted to leave for Mexico from

the international a irport. For two of these documents, Ro sales went in person to a

governm e nt off

ice in Caracas. Rosales tes t ified th at he was able to obtain these6

government documents and depart the country safely because he used his full legal name

(Luis Antonio Rosales Manrriquez), rather than the abbreviate d name that he uses as a

boxer (L u is Ros ales Valero). On appeal to t he Board , Rosales argue d that the IJ ignored

this testimony in determi ning that his fear of future persecution was not well

- founded.

W e d i s a g r e e t h a t t h e Board d i d n o t meaningfully address t his argument. See

Abdulai v. A shcr oft , 239 F.3d 542, 549 (3d Cir. 2 001) ( recognizing tha t an alien has a

right to an “individualized de termination” of his interests, including meaningful

consideration of his evidenc e and arguments). The IJ did not ignore Rosales’s testimony

on this p o int ; r a t h e r , h e c o n s i d e r e d i t a n d d iscount e d its probativ e value: “The

respondent seems to believe that because he had a professional boxing name, as well as a

given name, that somehow the government was unable to connect the dots and that he

w as allowed to safely get the docum ents and lea ve. Qui te frankly, th e respondent is not

an expert on the government of Venezuela, but looking at the back ground evidence,

including the Department of State Report and d ocuments submitted by the respondent,

th e Court fi n ds this hard to believ e.” IJ O p. a t 8. Th e IJ concluded that Rosales “was

allowed to go to Mexico with the full blessing of his government.” Id. at 10.

O n a p p e a l

, t h e B I A e x p l i c i t l y a c k n o w l e d g e d R o s a l e s ’ s a r g u m e n t : “ A c c o r d i n g t o

r e s p o n d e n t

, h e w a s n o t i m p e d e d i n h i s d e p a r t u r e beca use h e u s e d h i s f u l l l e g a l n a m e t o

o b t a i n t h e d o c u m e n t s , r a t h e r t h a n t h e a b b r e v i a t e d v e r s i o n o f h i s n a m e t h a t h e u s e d a s a

b o x e r

. ” B I A O p

. a t 2

. A n d

, i n d e t e r m i n i n g t h a t “ t h e r e w a s n o b a s i s i n t h e record t o

s u p p o r t [ h i s ] s p e c u l a t i v e f

e a r , ” t h e B I A n o t e d t

h a t R o s a l e s “ r e m a i n e d i n Ve nezuela f o r a7

y e a r o r t w o a f

t e r t h e b e a t i n g a n d e x i t e d t h e country l e g a l l y , having o b t a i n e d a l l n e c e s s a r y

d o c u m e n t s i s s u e d t o the g o v e r n m e n t o f V e n e z u e l a

. ” B I A O p

. a t 3

. “ The Board is not

requir e d to write an exegesis on every con tention, but only to sho w that it has reviewed

the record and grasped the movant’s claims.” Sevoian v. Ashcroft

, 290 F.3d 166, 178 (3d

Cir. 2002) (citat ions omitted). W h i l e t h e B o a r d c o u l d h a v e m a d e c l e a r e r i t s a p p a r e n t

a g r e e m e n t w i t h t h e I J t h a t t h e V e n e z u e l a n g o v e r n m e n t “ kn o w i n g l y ” a p p r o v e d o f

R o s a l e s ’ s d e p a r t

u r e t o M e x i c o , i t p r o v i d e d s u f f i c i e n t i n s i g h t i n t o i t s r e a s o n i n g t o s u p p o r t

m e a n i n g f u l r e v i e w

. S e e A w o l e s i v

. A s h c r o f t

, 3 4 1 F

. 3 d 2 2 7

, 2 3 1

- 3 3 ( 3 d C i r

. 2 0 0 3 )

.

R osales a l s o argue s that the Age ncy did not appreciate th e significance of his

testimony that he was only able to lea ve the country bec ause he was pretending to be a

“retired boxer.” He asserts that, once he started boxing again in Mexico, hi s name was in

the papers in Venezuela. As a resu lt, he m aintains, the Maduro Government would feel

misled and “would d efinitely a ssassinate him, fo r continuing to fight and not represent

the regime.” Although he is correct that he was deemed credible, t he Board concl u ded

that his testimony on this issu e was sp eculative ; th ere was no evidence to corroborate this

aspect of his claim. See Shao v. Muka sey , 546 F.3d 138, 162 (2d Cir. 2008) (o bserving

that while “credible testimony was sufficient to demonstra te a genuine s u bjective fear of

future persecu tion , more w as needed to demonstrate the objective reasonableness of that

fear”). T h e few articles Ros ales presented are not, as he maintains, “evidence that the8

[Venezuelan] government is brutal to athletes.” 1 W e t h e r e f o r e f i n d n o e r r o r

. A n d

b e c a u s e R o s a l e s f

a i l e d t o m e e t h i s b u r d e n t o e s t a b l i s h h i s a s y l u m c l a i m , h e c o u l d n o t

m e e t t h e h e i g h t e n e d b u r d e n t o e s t a b l i s h withholding of removal

. S e e Z u b e d a v

. A s h c r o f t

,

3 3 3 F

. 3 d 4 6 3

, 4 6 9

- 7 0 ( 3 d C i r

. 2 0 0 3 ) ( d e s c r i b i n g r e l a t i o n s h i p b e t w e e n a s y l u m c l a i m s a n d

c l a i m s f o r m a n d a t o r y withholding o f r e m o v a l )

.

C A T C l a i m

T o succeed on his CAT claim, Ro sales had to establish that he is “more likely than

not” to be tortured “by or at the i nstigation of or with the conse n t or acquiescence of” a

Venezue l an p ublic o fficial. 8 C.F.R. § 1208.16(c)(2); § 1208.18(a)(1); Sevoian , 2 90 F.3d

a t 174

– 75

. There is no merit to Rosales ’ s claim that the IJ failed to make a fin ding as to

what is likely to happen to him upon r eturn t o Ven e zuela. T he IJ noted that this was not

an acquiescence case, as Rosales alleged that he would face tortur e at the hands of

Government of

ficials. See Myri e v. Att’y Gen. , 855 F.3d 509, 515

- 16 (3 d Cir. 2017).

The IJ specifically found that Ros ales fa iled t o meet his burden to demonstra t e th at it i s

more likely than not he would be targeted for harm by the gov ernment upon his return.

1 One article fo cused on athletes protesting the Government’s repression, with no
indication of reprisals. A.R. at 259

- 60. A nother article described h ow some professio nal baseball p layers n o longer felt safe ret urning to their native Venezuela becau se of the general “sa fety p roblems and economic distre ss” brought on by the Maduro regime. A.R.

at 2 64

- 68. Although on e article i ndicated that a former wo r ld boxing champio n was kidnappe d along with his family an d la ter killed, there is no indication in the article that
the Venezu elan government was respons ible. A.R. at 245

- 50. Several articles and th e country condition s evidence describe the general brut a lity of the Madur o regime towar ds
dissi dents and anti

- gov ernm ent protestors; however, there is no i ndication it is direc ted

sp ecifically at athletes.9

On appeal, the BIA st ated only that Rosales had “not meaningf ully articulated a

basis upon which he would war rant” re lief u nder the CAT . The Board cit ed In r e J

- F

- F

- ,

23 I. & N. Dec. 912 (A.G. 2006) , in which t h e A t t o r n e y G e n e r a l held that an alien whose

CAT claim is based on a “series of supp ositions” must establish that each link in that

“ hypothetical chain of events ” is m o re l ikely th an not to occur

. I d. a t 9 1 7

- 18 & n.4. The

record supports th e conclusion that Rosales had n ot established by a preponderance that

he would like ly be tortured in Venezuela.

Rosales a l s o alleg es tha t his due process rights were violated becau s e the IJ wa s

biased against him

. See Wang v. A tt’y Gen. , 4 23 F.3d 260, 269 (3d Cir. 2005). He did

not e xhaust this issue before the Board. See Bonhome tre v. Gonzales , 4 14 F.3d 442, 447

(3d Cir. 2005). In any event, the IJ’s questions and statements no t ed by Rosal es do not

support a claim of bias. See Liteky v . United States , 510 U.S. 540, 555 (1994).

F i n a l l y , w e n o t e , w i t h d i s a p p r o v a l

, that R o s a l e s w a s r e m o v e d i n v i o l a t i o n o f t h i s

C o u r t ’ s o r d e r g r a n t i n g h i s m o t i o n f o r a s t a y o f r e m o v a l

. 2 A l t h o u g h R o s a l e s ’ s r e m o v a l

2 In March 2019, t h e case w a s d i s m i s s e d f o r f a i l u r e t o p r o s e c u t e b e c a u s e R o s a l e s f a i l e d

t o t i m e l y f

i l e a b r i e f and appendix

. T he Office of Immigration Litigation (OI L) w a s

n o t i f i e d by email from this C o u r t that the stay of removal “remains in effect ” p e n d i n g R o s a l e s ’ s m o t i o n t o r e o p e n h i s p e t i t i o n f o r r e v i e w

. OIL forward ed the email to agents at

I mmigratio n and Customs Enforcement and th e D epartment of Justice

, including the attorney for Respondent

. Despite this sp ecific notif ication fro m this Court, i n i t s

r e s p o n s e t o t h e m o t i o n t o r e o p e n , Respondent s tated i ts understanding

– t o t h e c o n t r a r

y

– that the s t ay was no longer in place pursu ant to 3d Cir. L.A.R. 107.2(a)

. Rosales wa s removed prio r to the Court ’ s order granting the motion to reopen. We remind the government that until a n order granting a stay entered by this Court is vacated by this Court, the order remai ns in effect . This is especially so when the government is directly notified of the stay

.10

d i d n ot m o o t h i s p e t i ti o n f o r r e v i e w , s e e A m a n f

i v

. Ashcroft

, 3 2 8 F

. 3 d 7 1 9

, 7 2 4 n

. 1 ( 3 d

C i r

. 2 0 0 3 )

, i t h i n d e r e d h i s a b i l i t y t o l i t i g a t e h i s c a s e a n d

, w i t h n o f o r w a r d i n g a d d r e s s , t o

f o l l o w i t s p r o g r e s s

. N e v e r t h e l e s s , b e c a u s e t h e administrat i ve r e c o r d s u p p o r t s t h e

A g e n c y ’ s r

u l i n g s o n R o s a l e s ’ s claims f o r r e l i e f

, w e d e c l i n e t o e x e r c i s e o u r a u t h o r i t y t o

o r d e r t h e G o v e r n m e n t t o r e t u r n R o s a l e s t o t h e U n i t e d S t a t e s

. See g e n e r a l l y Chambers v.

NASCO, Inc. , 501 U.S. 32, 43

- 47 (1991)

. W e f u l l y e x p e c t

, h o we v e r , t h a t s u c h d i s r e g a r d

f o r a s t a y o r d e r i s , a n d w i l l r e m a i n , a n i s o l a t e d i n c i d e n t

.

B a s e d o n t h e f

o r e g o i n g , w e w i l l d e n y t h e p e t i t i o n f o r r e v i e w

. T h e C o u r t ’ s

F e b r u a r y 7

, 2 0 1 9 o r d e r g r a n t i n g a s t a y o f r e m o v a l i s h e r e b y v a c a t e d

.