487 F.3d 855 (11th Cir. 2007), 05-16419, Delgado v. U.S. Atty. Gen.

Docket Nº:05-16419.
Citation:487 F.3d 855
Party Name:Ramon Antonio DELGADO, Carmen Yelitza Delgado, Ramon Antonio Delgado Maza, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.
Case Date:May 25, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 855

487 F.3d 855 (11th Cir. 2007)

Ramon Antonio DELGADO, Carmen Yelitza Delgado, Ramon Antonio Delgado Maza, Petitioners,

v.

U.S. ATTORNEY GENERAL, Respondent.

No. 05-16419.

United States Court of Appeals, Eleventh Circuit.

May 25, 2007

Page 856

[Copyrighted Material Omitted]

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Abe Anselheart Bailey (Court-Appointed), Abe A. Bailey, P.A., Miami, FL, for Petitioners.

Vanessa O. Lefort, Andrew C. MacLachlan, David J. Pettinato, Emily Anne Radford, Liza S. Murcia, U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals BIA Nos. A77-006-166 & A97-209-929

Before BARKETT and KRAVITCH, Circuit Judges, and TRAGER, [*] District Judge.

PER CURIAM

Ramon Antonio Delgado ("Delgado"), his wife Carmen Yelitza Delgado ("Carmen"), and their adult son Ramon Delgado ("Ramon") (collectively "the Delgados"), natives and citizens of Venezuela, petition this court for review of the Board of Immigration Appeals's ("BIA") affirmance of the Immigration Judge's ("IJ") orders of removal and denials of asylum and withholding of removal, 8 U.S.C. §§ 1158, 1231.1 In their petition for review, they challenge (1) the determination that their asylum applications were untimely, (2) the denial of withholding of removal relief, and (3) the denial of derivative benefits for Carmen. After oral argument and a review of the record, we dismiss the petition as to the first issue, and grant the petition as to the second. The final issue before us is one of first impression in this circuit: whether a petitioner's spouse is eligible for derivative benefits under the withholding statute. We conclude that she is not; accordingly, we deny the petition on this ground.

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I. Background

Delgado, Carmen, and Ramon were admitted to the United States on different days in 1999. Each remained beyond the expiration period of his or her visa and received notices to appear charging them with removability. Delgado and Ramon filed separate applications for asylum in 2003. Carmen proceeded as a beneficiary of Delgado's application. The applications were consolidated before the IJ.

The basis for the requested relief is as follows according to Delgado's and Ramon's testimony at the removal hearing: In 1997, Delgado, a former military official, and Ramon participated briefly in an organization supporting Venezuelan Presidential candidate Hugo Chavez led by retired military personnel. After attending three meetings, Delgado learned that the organization planned to use violence to achieve its goals, and he denounced the organization and spoke out against the use of violence. In March 1998, he received several threatening phone calls. Thereafter, two unknown masked men approached Delgado and Ramon, pointed what turned out to be unloaded guns at them, and pulled the triggers. These men warned Delgado and Ramon that they would be dead if they continued to speak out. Delgado reported the incident to the police.

In the following weeks, on two separate occasions, Delgado discovered that the brakes on his car had been cut, his tires were slashed, his windows were broken, and someone vandalized his car with political graffiti. Both of these incidents occurred while the car was parked in his housing complex. Again, Delgado reported these incidents to the police.

Delgado continued to receive threatening calls, and in May 1998, five unknown men attacked Ramon, who was beaten until he was almost unconscious. The men told Ramon that there would be further consequences if Delgado continued his political activities. Ramon received medical treatment, and Delgado reported this incident to the police. Delgado ultimately decided that the family had to leave Venezuela, and he and his family came to the United States in August 1998, but they remained only a short time before Delgado and Carmen returned to Venezuela. Ramon stayed in the United States except for a brief trip back home. Back in Venezuela, Delgado went into hiding but re-entered the United States in October 1998, this time leaving Carmen in Venezuela. Delgado returned to Venezuela in March 1999, where he found another threatening message on his answering machine. Realizing he...

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