[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
___________________________ ELEVENTH CIRCUIT
May 11, 2005
No. 04-10767 THOMAS K. KAHN
Non-Argument Calendar CLERK
__________________________
BIA No. A79-469-947
LUZ MARINA LESAMA DE RODRIGUEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
_______________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_______________________________
(May 11, 2005)
Before EDMONDSON, Chief Judge, HULL and WILSON, Circuit Judges.
PER CURIAM:
Luz Marina Lesama de Rodriguez, a native and citizen of Colombia,
petitions for review of the final order of the Board of Immigration Appeals (BIA),
which affirmed the immigration judge’s denial of asylum, denial of withholding of
removal, and denial of relief under the United Nations Convention Against
Torture (CAT).1 Removal proceedings commenced after 1 April 1997; the
permanent provisions of the Immigration and Nationality Act, as amended by the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009 (1996), govern this petition. We deny the petition
and affirm the BIA’s decision.
At the hearing before the IJ, Petitioner testified that she was a catechist at a
church in Bucamaranga, Santander province, Colombia. As a catechist, she taught
catechism and “Christian doctrine” to groups of 10 to 12 children aged 9 to 12
years old. Petitioner taught catechism from 1997 until February 2000, with a four-
month break at some point before that time. She claimed that she had been
persecuted by guerillas, particularly the ELN (Ejercito de Liberacion Nacional),
1
Petitioner offers no substantive argument on the IJ’s and BIA’s denial of CAT relief. This
issue is abandoned. See Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1286 n.3 (11th Cir. 2003)
(deeming an issue waived where a party fails to include argument and only makes a passing
reference to the order appealed from).
2
because of her religious beliefs and her teaching. Petitioner indicated that she
encouraged the children to resist the recruiting efforts of the ELN: she told them
not to do “anything that was against their family or against the country” and
characterized the ELN as “criminals” and “assassins.”
According to Petitioner, beginning in March 1999, the ELN contacted her
daily by telephone and (1) demanded that she stop teaching the children about
religion, (2) told her to leave the country, (3) threatened to kidnap her and make
her “disappear”, and (4) threatened to “put an end” to her and her family.
Petitioner claimed that several times the callers identified themselves as ELN
members, and on a couple of occasions, the callers indicated that they were calling
on behalf of ELN commanders.
Petitioner testified that she tried to avoid the ELN by moving in with her
sister in a small town 15 minutes away from Bucamaranga. She later returned to
work at the church, and the threatening calls resumed. She asked for help from the
parish priests, but they told her they could do nothing and that their lives were at
risk. She also reported the threatening calls to the police, who were unhelpful.
Petitioner attempted to relocate within Colombia, but stated that none of her
friends took her because they were afraid to get involved with her. Petitioner
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feared that the ELN could find her anywhere because it has cells throughout
Colombia.
In March 2000, Petitioner moved in with her sister for two months and came
to the United States in May 2000. Petitioner received the last threatening calls
immediately before she moved in with her sister. Petitioner has three adult
children: two daughters living in Cartagena, Colombia, and one son believed to be
in Venezuela. Petitioner submitted a letter from a priest at her church verifying
that she had worked as a catechist from 1997 to 2000.
The IJ denied asylum, withholding of removal, and CAT relief: Petitioner’s
testimony was not sufficiently detailed to provide a plausible account of the basis
of her fears. The IJ acknowledged that Petitioner’s testimony was consistent with
her asylum application, but stated that the asylum application and addendum
contained significantly more detail than her testimony. The IJ concluded that
Petitioner’s testimony lacked specific detail about (1) the name, organizers, and
place and time of the catechism meetings, and whether others involved received
threats, (2) the students she taught, (3) the advice she gave the children on the
attempted recruitment by guerillas, and (4) the substance of the threatening calls.
The IJ also noted that Petitioner failed to mention when she took the four
month break from teaching. And, the IJ expressed concern about (1) why
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Petitioner continued with her work, despite the threatening calls, (2) why the ELN
did not follow through with its threats and act against her, (3) why Petitioner wrote
in her addendum that her daughters had been mentioned in the threatening calls,
but then failed to mention this fact at the hearing, (4) why Petitioner could not
relocate within Colombia and why her daughters were not in danger, (5) why
Petitioner did not attempt to move or change her phone number immediately after
the threats began, and (6) why the priest did not mention the threatening calls in
his letter, despite Petitioner’s testimony that the parish priests were aware of the
threats. And the IJ pointed to the U.S. State Department’s Asylum Profile and
Country Report on Colombia: the IJ noted that these documents mentioned that
religious personnel occasionally were targeted for persecution, but that it
necessarily did not follow that Petitioner was targeted.
Petitioner argues that her asylum application, her hearing testimony, and the
Asylum Profile and Country Report, contain enough evidence to compel a finding
that she had a well-founded fear of persecution based on her religious beliefs.2 We
cannot agree.
2
Petitioner argues that the IJ departed from the Federal Rules of Evidence in determining that
her testimony was not credible. But the record does not show that the IJ “impeached” her testimony
or found it wholly incredible: the IJ determined that Petitioner’s testimony lacked the requisite detail
and corroboration to establish asylum eligibility. We need not further address this claim.
5
“The BIA’s factual determination that [an alien] is removable and not
entitled to asylum must be upheld if it is supported by substantial evidence.”
Mazariegos v. Office of the U.S. Attorney Gen., 241 F.3d 1320, 1323 (11th Cir.
2001). The substantial evidence standard is “highly deferential”: 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 v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001) (citation and internal quotation marks omitted).
The BIA adopted the IJ’s reasons for denying Petitioner’s requests for asylum and
withholding of removal: we review the IJ’s decision as if it were the BIA’s. See
id.
An alien may obtain asylum if she is a “refugee”: a person unwilling to
return to his country of nationality “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.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(a)(1),
(b)(1). To establish asylum eligibility, Petitioner must show (1) past persecution
(in this case on account of religion), or (2) a “well-founded fear” that her religion
will cause future persecution. 8 C.F.R. § 208.13(a), (b)(1). A showing of past
persecution creates a presumption of a “well founded fear” of persecution. 8
C.F.R. § 208.13(b)(1).
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Substantial evidence supports the BIA’s determination that Petitioner failed
to demonstrate asylum eligibility. First, the IJ did not err in determining that
Petitioner failed to prove that she showed past persecution. Petitioner testified
only that she received threatening phone calls from persons identifying themselves
as ELN members. She did not allege that she was visited in person or that the
ELN attempted to follow through on these threats. These unfulfilled threats do not
rise to the level of “persecution.” See Sepulveda v. U.S. Attorney Gen., 401
F.3d 1226, 1231 (11th Cir. 2005) (writing that persecution is an “extreme
concept”: it requires “more than a few isolated incidents of verbal harassment or
intimidation,” and “mere harassment does not amount to persecution”) (citation
omitted).
Second, the evidence does not compel the conclusion that Petitioner has a
well-founded fear of future persecution based on her religious beliefs. The IJ
correctly noted that Petitioner’s testimony lacked detail. And given Petitioner’s
allegations, the IJ elicited valid and reasonable concerns about the improbability
of (1) Petitioner’s daughters not having received threats while continuing to live in
Colombia, (2) Petitioner’s failure to attempt to move or change her phone number
after the threats began, and (3) the ELN’s failure to follow through on its threats.
See Al Najjar, 257 F.3d at 1287 (stating that alien must present “specific, detailed
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facts” showing reasonable fear that she will be targeted for persecution on account
of protected ground) (citations omitted).
Petitioner contends that, if the IJ was not satisfied with the level of detail
she provided in her testimony, the IJ had a duty to elicit the necessary details. But
Petitioner -- not the IJ -- bears the burden of proving eligibility for asylum. See 8
C.F.R. § 208.13(a).
Petitioner maintains that the INA does not require an asylum applicant to
present corroborating evidence: the IJ erred in requiring her to present evidence
corroborating her testimony. But when an alien presents testimony lacking in
detail, the need for corroborative evidence is great. See In re Y-B-, 21 I&N Dec.
1136, 1139 (1998). And the only evidence Petitioner presented to corroborate her
claims was the letter from the priest, which did not mention the threats to
Petitioner. Petitioner argues that the priest did not mention the threats because he
told Petitioner he was worried that his letter would end up in the ELN’s
possession. But Petitioner did not advance this position to the IJ: it is outside the
scope of the evidence we may review. See 8 U.S.C. § 1252(b)(4)(A) (court of
appeals may decide petition “only on the administrative record on which the order
of removal is based”).
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Also, the Asylum Profile provided scant support for Petitioner’s claims: that
document indicated that religious-based asylum claims are rare. And while the
Country Report stated that religious personnel often are threatened by guerillas,
this does not compel a conclusion that Petitioner herself was threatened.
In sum, we affirm the denial of asylum relief and withholding of removal.3
PETITION DENIED.
3
Substantial evidence supports the IJ’s determination that Petitioner did not establish asylum
eligibility: she offers no reason why she has met the higher standard for showing that the IJ’s denial
of withholding of removal was in error. See Al Najjar, 257 F.3d at 1292-93.
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