Avelino Antonio Quiceno Lopez v. U.S. Atty. Gen.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 1, 2005
No. 04-15146 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

BIA Nos. A79-475-744 & A79-475-745

AVELINO ANTONIO QUICENO LOPEZ,
MARIA ESPERANZA RODRIGUEZ DE QUICENO,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of an Order of the
Board of Immigration Appeals
_________________________

(August 1, 2005)

Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

Avelino Antonio Quiceno Lopez and his wife Maria Esperanza Rodriguez de
Quiceno are natives and citizens of Colombia. Through counsel, they seek review

of the Board of Immigration Appeals’ decision affirming the immigration judge’s

order denying their application for asylum and withholding of removal under the

Immigration and Nationality Act and for relief under the United Nations

Convention Against Torture (CAT).

Because the BIA issued its own decision in this case, we review only that

decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). To the

extent that the BIA’s decision was based on a legal determination, our review is de

novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247–48 (11th Cir. 2001). The

BIA’s factual determinations are reviewed under the substantial-evidence test; we

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

probative evidence on the record considered as a whole.” Al Najjar, 257 F.3d at

1283–84 (internal quotation omitted). The substantial-evidence test is

“deferential” and does not allow us to “re-weigh the evidence from scratch.”

Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001) (internal

quotation omitted).

The petitioners first contend that they are entitled to asylum because,

according to them, they have shown that Lopez suffered past persecution on

account of his political opinion or his imputed political opinion.1 They argue that

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Quiceno’s petition is tied to the facts of her husband’s.
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Lopez was subjected to threats by the Revolutionary Armed Forces of Colombia

(FARC) because of his involvement with a religious outreach group that sought to

recruit youths out of gangs.

In order to be eligible for asylum, an alien must establish with specific and

credible evidence: (1) past persecution on account of his race, religion, nationality,

membership in a particular social group, or political opinion; or (2) a “well-

founded fear” that he will suffer persecution in the future on the basis of one of the

enumerated grounds. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287.

“Not all exceptional treatment is persecution.” Gonzalez v. Reno, 212 F.3d

1338, 1355 (11th Cir. 2000). “[P]ersecution is an extreme concept, requiring more

than a few isolated incidents of verbal harassment or intimidation, and . . . mere

harassment does not amount to persecution.” Sepulveda v. U.S. Attorney Gen.,

401 F.3d 1226, 1231 (11th Cir. 2005) (internal quotations and markings omitted).

“Threats alone generally do not constitute actual persecution; only rarely, when

they are so immediate and menacing as to cause significant suffering or harm in

themselves, do threats per se qualify as persecution.” Vatulev v. Ashcroft, 354

F.3d 1207, 1210 (10th Cir. 2003).

Here, substantial evidence supports the BIA’s factual conclusion that Lopez

has not suffered past persecution. Lopez’s experiences in Colombia do not rise to

the level of persecution. His allegations of persecution include: (1) a warning that
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Lopez considered to be a joke; (2) a three- to four-minute encounter with four men

on motorcycles who verbally harassed and threatened him; and (3) several

threatening phone calls, which he received at various locations. Neither Lopez nor

his family was ever physically harmed. These things are nothing more than “a few

isolated incidents of verbal harassment or intimidation,” which is insufficient to

establish eligibility for asylum. See Sepulveda, 401 F.3d at 1231.

Substantial evidence also supports the BIA’s conclusion that petitioners

failed to demonstrate a well-founded fear of future persecution. As we have just

noted, Lopez has never suffered more than threats, and there is no evidence to

suggest that those threats will escalate into anything more serious in the future.

And, the fact that Lopez’s daughters have remained in Colombia casts doubt on

Lopez’s fears of persecution.

Because the petitioners did not establish eligibility for asylum, their claim

for withholding of removal also fails. The standard for obtaining withholding of

removal is more stringent than that for asylum. Thus, if an applicant cannot show

the well-founded fear of persecution necessary for asylum, he generally is unable

to qualify for withholding of removal. Al Najjar, 257 F.3d at 1292–93.

Finally, the petitioners’ claim for relief under CAT also fails. In order to

obtain withholding of removal under CAT, the applicant must prove that it is

“more likely than not that he or she would be tortured if removed to the proposed
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country of removal.” 8 C.F.R. § 208.16(c)(2). The petitioners have not met that

heavy burden. The evidence shows that they were threatened, but never physically

harmed, when they lived in Colombia. That the petitioners’ daughters have safely

remained in Colombia suggests that will continue to be the case. Finally, while the

threatening telephone calls that Lopez received suggest the possibility that FARC

may seek to harm him, those calls fall far short of showing that possibility is more

likely than not.

PETITION DENIED.

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