[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 27, 2005
THOMAS K. KAHN
No. 04-12651 CLERK
________________________
Agency Docket No. A79-494-759
JUAN GONZALO CADAVID JIMENEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
__________________________
Petition for Review of a Decision
of the Board of Immigration Appeals
__________________________
(May 27, 2005)
Before ANDERSON, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Juan Gonzalo Cadavid-Jiminez, through counsel, petitions for review of the
Board of Immigration Appeals’ (“BIA”) decision affirming without opinion the
Immigration Judge’s (“IJ”) order of removal, denial of asylum and withholding of
removal. Because Cadavid’s removal proceedings commenced after April 1, 1997,
the permanent rules of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996)
(“IIRIRA”), apply. Gonzalez-Oropeza v. United States Att’y Gen., 321 F.3d 1331,
1332 (11th Cir. 2003).
Cadavid argues on appeal that he presented substantial evidence to support
a finding of refugee status by demonstrating past persecution and, alternatively, a
well-founded fear of future persecution. Specifically, he argues that past
persecution is evidenced by the threatening letters and phone calls he received
from the AUC, a paramilitary organization. He claims that he demonstrated a well-
founded fear of future persecution by showing that: (1) the AUC was aware of his
activism in anti-guerilla ideology, and retains the ability to carry out its death
threats; (2) the AUC sought to kill him and failed only because he left Colombia;
and (3) the AUC evidenced its desire to punish him, even after his withdrawal
from public life, because it continued to threaten him after he ceased political
activity. Finally, Cadavid argues that there has not been a sufficient change in
circumstances that would allow for his safe return to Colombia because the AUC
2
remains active there.
To the extent that the IJ’s decision was based on a legal determination,
review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.
2001). The IJ’s factual determinations are reviewed under the substantial evidence
test, and this Court “must affirm the [IJ’s] decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Al
Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (citation omitted).
Under this standard of review, this Court may not reverse the IJ’s decision unless
it finds that the evidence compels a contrary finding. Sepulveda v. United States
Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005).
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 Attorney General has
discretion to grant asylum if the alien meets the INA’s definition of a “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 . . . .
3
8 U.S.C. § 1101(a)(42)(A) (emphasis added). The asylum applicant carries the
burden of proving statutory “refugee” status. See Al Najjar, 257 F.3d at 1284.
“To establish asylum eligibility based on . . . group membership, the alien must,
with credible evidence, establish (1) past persecution on account of her . . . group
membership, or (2) a ‘well-founded fear’ that her . . . group membership will cause
future persecution.” Sepulveda, 401 F.3d at 1230-31 (quoting 8 C.F.R.
§ 208.13(a), (b)).
Past persecution is more than mere harassment, and a successful asylum
applicant must present evidence of more than a few isolated incidents of verbal
harassment or intimidation that is unaccompanied by physical punishment,
infliction of harm, or significant deprivation of liberty. See Gonzalez v. Reno, 212
F.3d 1338, 1355.
A “well-founded fear” of persecution may be established by showing (1)
past persecution that creates a presumption of a well-founded fear and overcomes
any rebuttal by the INS, (2) a reasonable possibility of personal persecution that
cannot be avoided by relocating within the subject country, or (3) a pattern or
practice in the subject country of persecuting members of a statutorily defined
group of which the alien is a part. 8 C.F.R. § 208.13(b)(1), (2); see also
Sepulveda, 378 F.3d at 1231. “[A]n applicant must demonstrate that his or her
4
fear of persecution is subjectively genuine and objectively reasonable.” Al
Najjar, 257 F.3d at 1289. “[W]here the alleged persecutors are not affiliated with
the government, it is not unreasonable to require a refugee who has an internal
resettlement alternative in his own country to pursue that option before seeking
permanent resettlement in the United States, or at least to establish that such an
option is unavailable.” Mazariegos v. Office of United States Att’y Gen., 241
F.3d 1320, 1327 (11th Cir. 2001).
An alien seeking withholding of removal under the INA must show that his
life or freedom would “more likely than not” be threatened upon return to his
country because of, among other things, his membership in a particular political
group. See Mendoza, 327 F.3d at 1287. This standard is more stringent than the
“well-founded fear” standard for asylum. See, e.g., Al Najjar, 257 F.3d at 1292-
93.
We conclude that substantial evidence supports the IJ’s conclusion that the
harm Cadavid suffered did not rise to the level of past persecution. He received
two threatening letters and phone calls instructing him to abandon his political
work for the Liberal Party. This evidence does not compel a finding of past
persecution.
Furthermore, substantial evidence supports the IJ’s conclusion that Cadavid
5
did not establish a well-founded fear of future persecution. The fact that
Cadavid’s family remained in Colombia when he came to the United States and
continues to live without further harm supports a finding that his fear of future
persecution is not objectively reasonable. Cadavid testified that he experienced no
problems with the AUC during the time he was at his mother’s home, and there
was no evidence that the mayoral candidate whom Cadavid supported has
experienced problems with the AUC since relocating within Colombia. This
evidence also supports the IJ’s finding that relocation within Colombia is possible
in Cadavid’s case.
Finally, because Cadavid does not satisfy the lower standard form asylum,
he cannot satisfy the higher standard for withholding of removal.
Based upon the foregoing, we deny the petition for review.
PETITION DENIED.
6