[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15024 ELEVENTH CIRCUIT
APRIL 22, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A098-710-751
CARLOS GIOVANNY SARMIENTO ULLOA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 22, 2009)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Petitioner Carlos Sarmiento-Ulloa, a native and citizen of Colombia,
petitions our court to review an order of the Board of Immigration Appeals
(“BIA”) dismissing his appeal of the Immigration Judge’s (“IJ’s”) order of removal
and denial of asylum and withholding of removal under the Immigration and
Nationality Act (“INA”) and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”), 8 U.S.C. § 1158, 8 U.S.C. § 1231, 8 C.F.R. § 208.16. On review,
Sarmiento-Ulloa argues that the BIA and IJ erred in finding him not credible on the
basis of a discrepancy in his testimony regarding the year of his cousin’s death. He
explained the discrepancy by stating that the year of death did not go to the heart of
his claim, and he did not intend to deceive the immigration court, but felt
“pressured and nervous.” In addition, he argues that the cumulative effect of the
evidence was to show that he experienced past persecution and had a well-founded
fear of countrywide future persecution, and, therefore, he established eligibility for
asylum and withholding of removal. Although he states that the BIA and IJ erred
in denying CAT relief, he presents no related arguments on review.
“We review only the [BIA’s] decision, except to the extent that it expressly
adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). To the extent the BIA adopts the IJ’s reasoning, we also review the IJ’s
decision. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230 (11th Cir. 2006). We
review the BIA’s factual determinations under the substantial evidence test, which
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requires us to “view the record evidence in the light most favorable to the agency’s
decision and draw all reasonable inferences in favor of that decision.” Adefemi v.
Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We will affirm the
BIA’s decision “if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” D-Muhumed v. U.S. Att’y Gen.,
388 F.3d 814, 818 (11th Cir. 2004) (quotation omitted). “To reverse the . . . fact
findings, we must find that the record not only supports reversal, but compels it.”
Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The U.S. Attorney General
or the Secretary of the Department of Homeland Security has discretion to grant
asylum if the alien meets the INA’s definition of “refugee.” See INA § 208(b)(1),
8 U.S.C. § 1158(b)(1). A “refugee” is
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that 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).
To establish asylum eligibility, the alien must, with specific and credible
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evidence, establish (1) past persecution on account of a statutorily listed factor, or
(2) a “well-founded fear” that the statutorily listed factor will cause such future
persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. An applicant
may not show merely that he can establish a listed factor, but must show a causal
connection between the persecution, or feared persecution, and a listed factor.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (citing 8 C.F.R.
§ 208.13(a), (b)). We have held that not all “exceptional treatment” constitutes
persecution. Zheng v. U.S. Att’y General, 451 F.3d 1287, 1290 (11th Cir. 2006).
We have described persecution “as an extreme concept, requiring more than a few
isolated incidents of verbal harassment or intimidation, and that mere harassment
does not amount to persecution.” Id. (quotation omitted). “In determining whether
an alien has suffered past persecution, the IJ [and the BIA] must consider the
cumulative effects of the incidents.” Delgado v. U.S. Att’y Gen., 487 F.3d 855,
861 (11th Cir. 2007).
To establish a “well-founded fear” of future persecution, “an applicant must
demonstrate that his or her fear of persecution is subjectively genuine and
objectively reasonable.” Al Najjar, 257 F.3d at 1289. An asylum applicant can
establish a well-founded fear of future persecution by presenting “specific, detailed
facts showing a good reason to fear that he or she will be singled out for
persecution on account of” the statutorily listed factor. Id. at 1287 (quotation
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omitted). Alternatively, an applicant can establish a well-founded fear of
persecution by establishing that there is a pattern or practice of persecution of
persons similarly situated on account of the statutorily listed factor. 8 C.F.R.
§ 208.13(b)(2)(iii).
Under the INA’s provisions for withholding of removal, the Attorney
General “may not remove an alien to a country if the Attorney General decides that
the alien’s life or freedom would be threatened in that country because of the
alien’s race, religion, nationality, membership in a particular social group, or
political opinion.” INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). “An alien bears
the burden of demonstrating that he more-likely-than-not would be persecuted or
tortured upon his return to the country in question.” Mendoza, 327 F.3d at 1287; 8
C.F.R. § 1208.16(b). Because the evidentiary burden for withholding of removal is
greater than that imposed for asylum, if an alien has not met the well-founded fear
standard for asylum, he generally cannot meet the standard for withholding of
removal. Al Najjar, 257 F.3d at 1292-93.
We review credibility determinations under the substantial evidence test and
will not substitute our judgment for that of the IJ or BIA. D-Muhumed, 388 F.3d at
818.
[T]he IJ [or BIA] must offer specific, cogent reasons for an adverse
credibility finding. Once an adverse credibility finding is made, the
burden is on the applicant alien to show that the IJ’s [or BIA’s]
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credibility decision was not supported by specific, cogent reasons or
was not based on substantial evidence. A credibility determination,
like any fact finding, may not be overturned unless the record compels
it.
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (citations and
quotations omitted).
If an alien fails to challenge or argue a determination in his appeal to the
BIA, we lack jurisdiction to consider the challenge upon a petition to review.
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006); see 8
U.S.C. § 1252(d)(1).
After reviewing the record and the briefs of the parties, we conclude that
substantial evidence supports the BIA’s and IJ’s determinations that Sarmiento-
Ulloa (1) was not credible, (2) did not show past persecution or a well-founded fear
of future persecution, and (3) therefore, was not eligible for asylum. The record
does not compel a contrary conclusion. Because Sarmiento-Ulloa did not establish
eligibility for asylum, he also did not meet the higher burden of establishing
eligibility for withholding of removal. We lack jurisdiction to review Sarmiento-
Ulloa’s CAT claim because he failed to argue the issue to the BIA. Accordingly,
we dismiss the petition in part and deny the petition in part.
PETITION DISMISSED IN PART; DENIED IN PART.
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