Santiago Beltran v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 20, 2005
No. 04-13383 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

Agency Docket Nos. A95-898-546 and A95-899-673

SANTIAGO BELTRAN,
NORA JACQUELINE QUIROGA,
JUAN CAMILO BELTRAN QUIROGA,
FEDERICO BELTRAN QUIROGA,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

__________________________

Appeal from a Decision of
the Board of Immigration Appeals
_________________________

(April 20, 2005)

Before CARNES, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
 Santiago Beltran, his wife, Nora Jacqueline Quiroga, and their children,

Juan Camilo Beltran Quiroga, and Federico Beltran Quiroga, petition this Court

pro se for review of the final order of the Board of Immigration Appeals (BIA)

that affirmed the order of removal by the Immigration Judge (IJ). The permanent

rules of the Illegal Immigration Reform and Immigrant Responsibility Act of

1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996), govern the petition for review.

See Al Najjar v. Ashcroft, 257 F.3d 1262, 1276 (11th Cir. 2001). For the reasons

explained below, we dismiss the petition in part for lack of jurisdiction and deny

the remainder of the petition.

I. BACKGROUND

On November 27, 1999, Beltran, a native and citizen of Columbia, his wife,

and their children, left Columbia and entered the United States as visitors, with

permission to remain until January 3, 2001. On July 29, 2002, Beltran filed an

application for asylum, withholding of removal, and relief under the United

Nations Convention Against Torture (CAT) and alleged persecution on account of

his political opinion and membership in a particular social group. On September

18, 2002, the INS served Beltran and his family with notices to appear, charging

them with removability for remaining in the United States beyond the time

permitted, in violation of INA section 237(a)(1)(B). Beltran, through counsel,

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admitted the allegations of the notices to appear and conceded removability. He

again requested asylum, withholding of removal, and relief under CAT.

The IJ found Beltran ineligible for asylum based on untimeliness and denied

withholding of removal and relief under CAT. The BIA affirmed. The BIA

agreed that the application for asylum was untimely. The BIA also agreed that

Beltran failed to show a clear probability of persecution for withholding of

removal or that it was more likely than not that he would be tortured, because

Beltran’s brief detention and later death threats did not rise to the level of

persecution or torture and Beltran failed to submit corroborating evidence.

Accordingly, the BIA dismissed the appeal, and this petition for review followed.

II. DISCUSSION

Beltran makes three arguments: (1) that he is excused for the late filing of

his asylum application; (2) that his confrontation with FARC, a Colombian

guerilla group, in December 1997, and later death threats establish past

persecution, a well-founded fear of persecution, and a clear probability of future

persecution; and (3) that he is entitled to relief under CAT because FARC

continues to exhibit influence in Colombia and he established that he was more

likely than not to be tortured if he returned to Colombia. We address each

argument in turn.

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 1. Asylum

We review subject matter jurisdiction de novo. See Brooks v. Ashcroft, 283

F.3d 1268, 1272 (11th Cir. 2002). It is undisputed that Beltran’s asylum

application was untimely. Although an untimely asylum application may be

considered if the alien demonstrates extraordinary circumstances relating to the

delay, see 8 U.S.C. § 1158(a)(2)(D), “[n]o court shall have jurisdiction to review

any determination [of timeliness or extraordinary circumstances].” 8 U.S.C. §

1158(a)(3). This Court, therefore, does not have jurisdiction to review a decision

regarding whether an alien complied with the one-year time limit or established

extraordinary circumstances that would excuse his untimely filing. See Mendoza

v. U.S. Attorney Gen., 327 F.3d 1283, 1286-87 (11th Cir. 2003); Fahim v. U.S.

Attorney Gen., 278 F.3d 1216, 1217-18 (11th Cir. 2002). Accordingly, we lack

jurisdiction to consider Beltran’s argument regarding the timeliness of his asylum

application.

2. Withholding of Removal

We review factual determinations of the BIA under the substantial evidence

test. See Al Najjar, 257 F.3d at 1283-84. This Court “must affirm the BIA’s

decision if it is ‘supported by reasonable, substantial, and probative evidence on

the record considered as a whole.’” Id. (citation omitted). Under this highly

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deferential standard, we must defer to the decision of the BIA unless the evidence

“compels” a reasonable factfinder to find otherwise. INS v. Elias-Zacarias, 502

U.S. 478, 481 n.1, 112 S. Ct. 812, 815 n.1 (1992). We review only the decision of

the BIA, except to the extent that it expressly adopts the opinion of the IJ. See Al

Najjar, 257 F.3d at 1284. Insofar as the BIA adopts the reasoning of the IJ, we

also review the decision of the IJ. See Prado-Gonzalez v. INS, 75 F.3d 631, 632

(11th Cir. 1996).

An alien is entitled to withholding of removal if he can show that his life or

freedom would be threatened on account of 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). A showing of past persecution creates a rebuttable presumption

that the “life or freedom” of an alien would again be threatened upon removal.

See Antipova v. U.S. Attorney Gen., 392 F.3d 1259, 1264 (11th Cir. 2004).

Where an alien has not suffered past persecution, the alien bears the burden of

showing that it is “more likely than not” that he would suffer persecution upon

removal. See id.

Neither the INA or the regulations define persecution. “[W]e have

discussed other circuits’ holdings that ‘persecution’ is an ‘extreme concept,’

requiring ‘more than a few isolated incidents of verbal harassment or

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intimidation,’ and that ‘[m]ere harassment does not amount to persecution.’”

Sepulveda v. U.S. Attorney Gen., __ F.3d __, 2005 WL 477878, at *3 (11th Cir.

March 2, 2005) (citing Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000)

(quotation marks and citations omitted)). Although in Sepulveda we discussed

persecution in the asylum context, the definition of persecution also applies in the

withholding of removal context. See Borca v. INS, 77 F.3d 210, 215 (7th Cir.

1996).

The IJ did not make a specific finding on Beltran’s credibility. Rather, the

IJ found that Beltran failed to present corroborating evidence in support of his

claim. If Beltran’s testimony was credible, however, his testimony “may be

sufficient to sustain the burden of proof without corroboration.” Mendoza, 327

F.3d at 1287 (citation omitted).

Even if we assume that Beltran’s testimony was credible and ignore the lack

of corroborating evidence, substantial evidence supports the finding of the IJ that

Beltran’s life or freedom would not be threatened on account of any protected

ground if returned to Colombia. Beltran testified that, during his only face-to face

encounter with FARC, which lasted approximately three hours, Beltran was

insulted, pushed around, beaten up, and “pestered.” Although his testimony was

not specific as to the extent or severity of any beating or physical harm, that

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Beltran walked back to Acandi after he was released shows he was not

substantially harmed. Moreover, Beltran did not mention any beating or physical

harm in his application for asylum; he only mentioned that FARC seized his

political literature, insulted him, and threatened him. Beltran’s testimony also

evidenced that the death threats by FARC through notes and telephone calls were

sparse. We, therefore, conclude that substantial evidence supports the finding of

the BIA that Beltran failed to meet his burden to show that it was more likely than

not that he suffered past persecution. Substantial evidence also supports the

finding of the BIA that Beltran also failed to show that it was more likely than not

that he would suffer future persecution.

3. Relief under CAT

To obtain relief under CAT, the burden is on the applicant to establish that

it is “more likely than not” he will be tortured in the country of removal. 8 C.F.R.

§ 208.16(c)(2). During the only face-to-face encounter with FARC, Beltran was,

at the worst, beaten up during a three-hour detention. Such an encounter does not

rise to the level of torture. See 8 C.F.R. § 208.18(a)(1). Additionally, there is no

evidence in the record that any such torture would be inflicted by the Colombian

government or with its consent or acquiescence. Beltran, therefore, failed to

establish eligibility for CAT relief.

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 III. CONCLUSION

Based on the foregoing, we dismiss Beltran’s petition as to his asylum claim

for lack of jurisdiction and deny the remainder of Beltran’s petition.

PETITION DISMISSED IN PART and DENIED IN PART.

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