[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
.U .S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-13812
DECEMBER 22, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
Agency Nos. A98-395-412 &
A98-395-413
AURA EMILSE ZAPATA-PORRAS,
ISABEL CRISTINA OLAYA-ZAPATA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 22, 2006)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Petitioners Aura Emilse Zapata-Porras (“Zapata”) and her daughter, Isabel
Cristina Zapata, natives and citizens of Colombia, S.A., arrived in the United
States on June 16, 2002, and August 10, 2002, respectively, and were admitted as
non-immigrant visitors for pleasure, with authorization to remain for a period not
to exceed February 9, 2003. They did not leave within that period, and on June 24,
2002, Zapata, on behalf of herself and her daughter, filed an application for
asylum, withholding of removal under the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1158, 1231, and relief under the Convention Against Torture
(“CAT”), 8 C.F.R. § 208.16).
In the asylum application, Zapata asserted that she was persecuted by the
Revolutionary Armed Forces of Colombia (FARC) on account of her political
opinion. She represented that she was a member of the Community Mother of the
Welfare Association in Bello, Colombia, and had to leave the association because
she received death threats from the FARC. When she refused to collaborate with
the FARC, the FARC, on June 1, 2002, declared her a military target and a political
enemy. During her last two months in Colombia, in the City of Medellin, the
FARC threatened her daily via the telephone; to escape the threats, she came to the
United States. She did not file her asylum application within one year after
arriving because she planned to return to Colombia. But, when the FARC
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continued to ask about her1 and conditions in Colombia worsened, she decided to
seek asylum.
Petitioners were placed in removal proceedings, and on January 12, 2005,
and Immigration Judge (IJ) held an evidentiary hearing on their application for
asylum, withholding of removal and CAT relief. The IJ denied the application in
full. Petitioners appealed the ruling to the Board of Immigration Appeals (BIA),
challenging the denial of asylum and withholding of removal. On June 12, 2006,
the BIA adopted the IJ’s decision and affirmed. On July 11, 2006, they petitioned
this court for review.
I.
The Government contends that we lack jurisdiction to review the IJ’s finding
that the Petitioners failed to satisfy an exception to the one-year filing requirement
for asylum applications. The Petitioners do not address this issue in their brief;
rather, they focus on the merits of the asylum claim.
An asylum application must be “filed within one year after the date of the
alien’s arrival in the United States.” INA § 208(a)(2)(B); 8 U.S.C. §
1158(a)(2)(B). An untimely application “may be considered . . . if the alien
demonstrates . . . either the existence of changed circumstances which materially
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Zapata rented her Colombian residence before she left for the United States, and after
she left Colombia, the person occupying the house began to receive phone calls once or twice a
day asking for her.
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affect the applicant’s eligibility for asylum or extraordinary circumstances relating
to the delay in filing an application. . . .” INA § 208(a)(2)(D); 8 U.S.C.
§ 1158(a)(2)(D). No court has jurisdiction to review the IJ’s determination that the
alien failed to demonstrate changed circumstances or extraordinary circumstances
that would excuse the untimely filing of her asylum application. See INA
§ 208(a)(3); 8 U.S.C. § 1158(a)(3) (providing that “[n]o court shall have
jurisdiction to review any determination of the Attorney General under paragraph
(2)”); see also Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th Cir.
2003) (noting that 8 U.S.C. § 1158(a)(3) “divests our Court of jurisdiction to
review a decision regarding whether an alien complied with the one-year time limit
or established extraordinary circumstances that would excuse [her] untimely
filing”). This jurisdictional bar applies even after the enactment of the Real ID Act
of 2005, Pub.L. No. 109-13, 119 Stat. 231. See Chacon-Botero v. U.S. Attorney
Gen., 427 F.3d 954, 957 (11th Cir. 2005) (holding that “we cannot review the IJ’s
and BIA’s denial of Chacon-Botero’s asylum claim, even considering the changes
in the Real ID Act” because “[t]he timeliness of an asylum application is not a
constitutional claim or question of law covered by the Real ID Act’s changes”).
Petitioners concede that they failed to seek asylum within one year after
arrival in the United States, and the IJ, and thus the BIA, found that they failed to
satisfy an exception to the one-year filing requirement. We therefore lack
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jurisdiction to review that finding, and the petition is dismissed to the extent that it
seeks review of the denial of Petitioners’ asylum application. We turn, then, to
whether Petitioners should have been afforded withholding of removal or CAT
relief.
II.
When the BIA issues a decision, we review only that 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). “Insofar as the Board adopts the IJ’s reasoning, we
review the IJ’s decision as well.” Id. The BIA did so in this case; hence, we
review the IJ’s decision.
To the extent that the IJ’s decision was based on a legal determination, our
review is de novo. D-Muhumed v. U.S. Attorney Gen., 388 F.3d 814, 817 (11th
Cir. 2004). The IJ’s factual determinations are reviewed under the substantial
evidence test, and we should “affirm the [IJ's] decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Forgue v. United States Attorney Gen., 401 F.3d 1282, 1286 (11th Cir.
2005) (internal quotations and citations omitted). The fact that evidence in the
record may also support a conclusion contrary to the IJ’s findings is not enough to
justify a reversal. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006).
An alien is entitled to withholding of removal under the INA if she can show
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that her life or freedom would be threatened on account of her race, religion,
nationality, membership in a particular social group, or political opinion.
Mendoza, 327 F.3d at 1287; see also INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). “An
alien bears the burden of demonstrating that [she] more-likely-than-not would be
persecuted or tortured upon [her] return to the country in question.” Mendoza, 327
F.3d at 1287.
If the alien demonstrates past persecution, it is presumed that her life or
freedom would be threatened in the future unless the government can rebut the
presumption. 8 C.F.R. § 208.16(b)(1)(I). If, however, the alien does not establish
past persecution, she bears the burden of showing that it is more likely than not
that (1) she would be persecuted on account of race, religion, nationality,
membership in a particular social group, or political opinion; and (2) she could not
avoid a future threat to her life or freedom by relocating to another part of her
country, if under all the circumstances it would be reasonable to expect relocation.
See 8 C.F.R. § 208.16(b)(2); see also Mendoza, 327 F.3d at 1287 (finding that
“[a]n alien who has not shown past persecution, though, may still be entitled to
withholding of removal if [she] can demonstrate a future threat to [her] life or
freedom on a protected ground in [her] country”).
In discussing an alien’s alleged persecution by the FARC on account of
political opinion, we have held:
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To qualify for withholding of removal based on persecution by a
guerilla group on account of a political opinion, [a petitioner] must
establish that the guerillas persecuted her or will seek to persecute her
in the future because of her actual or imputed political opinion. It is
not enough to show that she was or will be persecuted or tortured due
to her refusal to cooperate with the guerillas.
Sanchez v. U.S. Attorney Gen., 392 F.3d 434, 438 (11th Cir. 2004) (citations
omitted). To establish the necessary causal connection between the political
opinion and the feared persecution, the alien must present “specific, detailed facts
showing a good reason to fear that . . . she will be singled out for persecution on
account of such an opinion.” Al Najjar, 257 F.3d at 1287 (quotations omitted).
Although the INA does not expressly define “persecution,” we recognize
that “‘persecution’ is an ‘extreme concept,’ requiring ‘more than a few isolated
incidents of verbal harassment or intimidation,’ and that ‘[m]ere harassment does
not amount to persecution.’” Sepulveda v. U.S. Atty. Gen., 401 F.3d 1226, 1231
(11th Cir. 2005) (citation omitted). In Sepulveda, we held that menacing telephone
calls and threats to the alien, her family members, and colleagues did not rise to the
level of past persecution. Id.
In this case, we find that substantial evidence supports the IJ’s determination
that Petitioners were not entitled to withholding of removal under the INA because
they had not shown that Zapata had suffered past persecution or that it was more
likely than not that Zapata would be subject to future persecution on account of one
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of the five statutorily protected grounds.
First, substantial evidence supports the IJ’s finding that Zapata did not
experience past persecution because (1) she testified that she was never physically
harmed by the FARC; (2) there was no evidence that her husband and daughters
were ever harmed; (3) although the store where her daughter worked was robbed,
Petitioners could point to no evidence connecting the robbery to the FARC; and (4)
the threatening phone calls do not compel the finding (contrary to the IJ’s finding)
that Zapata experienced past persecution.
Second, substantial evidence supports the IJ’s BIA’s finding that Petitioners
failed to meet their burden of proving that it was more likely than not that they –
specifically, Zapata, would be persecuted in Colombia because (1) Zapata’s
husband and seven siblings continue to reside in Medellin and have not been
harmed; (2) Zapata testified that, after she traveled to the United States for the first
time in 1997, she returned to Colombia several times; and (3) although Zapata and
her family moved several times, they always remained within the Medellin
metropolitan area, and, therefore, did not attempt to relocate within the country.
Finally, substantial evidence supports the IJ’s conclusion that Zapata failed
to establish a nexus between the feared harm and a protected ground. The evidence
is consistent with a finding that the FARC harassed Zapata due to her refusal to
cooperate with them, rather than any actual or imputed political opinion. Although
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the evidence may permit a finding that the FARC was partially motivated by
Zapata’s imputed political opinion, it does not compel such a finding.
Accordingly, we deny the petition as to this issue because the evidence does not
compel reversal.
III.
In their brief, Petitioners state in one line that the IJ erred by denying their
application for CAT relief, but they do not address this issue in any other part of
their brief. We therefore consider the CAT issue abandoned.
PETITION DISMISSED, in part; DENIED, in part.
.
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