[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 19, 2006
No. 05-16613 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos.
A79-496-194
A79-496-196
DIEGO FERNANDO BORRERO,
ADELE MELAINA LOSANO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 19, 2006)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Diego Fernando Borrero and his wife, Aidee Milena Lozano, natives and
citizens of Colombia, seek review of the Board of Immigration Appeal’s (“BIA”)
decision affirming without opinion the Immigration Judge’s (“IJ”) order finding
them removable and denying their application for asylum and withholding of
removal under the Immigration and Nationality Act (“INA”), and relief under the
United Nations Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment (“CAT”), INA §§ 208, 241, 8 U.S.C. §§ 1158,
1231; 8 C.F.R. § 208.16(c).
The petitioners argue that the IJ erred in finding that Borrero was not
persecuted on account of his political opinion because he was perceived to have a
political opinion as a result of his upper class professional status, his refusal to join
the guerrilla groups, and his support of a capitalist and technological solution to the
problems of Columbian cattle farmers. Further, he argues that he belonged to a
particular social group of veterinarians who helped small farmers improve their
lives by increasing the fertility of their herds, and guerrillas persecuted him on that
basis.
A. Asylum
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). The IJ’s factual determinations are reviewed
2
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 substantial
evidence test is “deferential” and does not allow “re-weigh[ing] the evidence from
scratch.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001).
“To reverse the IJ’s fact findings, we must find that the record not only supports
reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th
Cir. 2003) (considering withholding-of-removal claim). The fact that evidence in
the record may also support a conclusion contrary to the administrative findings is
not enough to justify a reversal. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236
(11th Cir. 2006), citing Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.
2004), cert. denied, 125 S. Ct. 2245 (2005).
Substantial evidence supports the IJ’s finding that Borrero and his wife did
not suffer past persecution because although Borrero worked in an area controlled
by guerrilla groups for almost two years, he was never physically harmed. Borrero
testified that the guerrillas closely monitored him, stopped him and his wife at road
blocks, and threatened him in person and over the telephone, but these incidents
did not rise to the level of persecution. Substantial evidence also supports the IJ’s
conclusion that Borrero failed to establish a nexus between the feared harm and a
3
protected ground. The evidence is consistent with a finding that the guerrilla
groups harassed Borrero due to his refusal to cooperate with them rather than his
actual or imputed political opinion. Moreover, Borrero has not met his burden of
showing that he was targeted on account of his membership in a particular social
group. He claims that his social group consisted of veterinarians who wanted to
improve the lives of small farmers by providing education and technical assistance.
However, he has not established that this association comprises a cognizable group
or that it shares an immutable characteristic.
As Borrero has not established past persecution, he is not entitled to a
presumption of a well-founded fear of future persecution. Substantial evidence
supports the IJ’s conclusion that Borrero does not have a well-founded fear of
future persecution because (1) he was never physically harmed in Colombia; (2) he
returned to Colombia after he entered the United States; (3) he was not harmed
when he returned to Colombia; and (4) his parents and brother live in Bogota and
have not been harmed.
B. Withholding of Removal
To qualify for withholding of removal under the INA, an alien must show
that his or her 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), 8 U.S.C. § 1231(b)(3). The evidentiary burden for withholding of
4
removal is greater than that imposed for asylum, accordingly, if an alien has not
met the well-founded fear standard for asylum, he generally cannot meet the
standard for withholding of removal. Al Najjar, 257 F.3d at 1292-93.
The petitioners failed to carry their burden of establishing past persecution
or a well-founded fear of future persecution, which precludes them from being
granted asylum. The IJ properly found that the petitioners likewise could not
satisfy the greater “more-likely-than-not” burden applicable to requests for
withholding of removal.
C. Transcript Erros
The petitioners also argue that their case should be remanded because the
asylum hearing transcript contains many indiscernible words, and, therefore, it is
prejudicial. The petitioners did not allege in their notice of appeal or brief to the
BIA that the asylum hearing transcript was of such poor quality that it prejudiced
them. They argue for the first time on appeal that the asylum hearing transcript is
prejudicial. Therefore, they have failed to exhaust their administrative remedies
with respect to this claim, and we lack jurisdiction to review it. “The exhaustion
requirement applicable to immigration cases is found in 8 U.S.C. § 1252(d)(1),
which provides that ‘[a] court may review a final order of removal only if . . . the
alien has exhausted all administrative remedies available to the alien as of right.’”
Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003). We have “interpreted that
5
requirement to be jurisdictional, so we lack jurisdiction to consider claims that
have not been raised before the BIA.” Id.
Upon review of the record on appeal and consideration of the parties’ briefs,
se discern no reversible error. Accordingly, we deny petitioners’ petition for
review.
PETITION DENIED.
6