[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 8, 2007
No. 06-13755 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A97-201-391 & A97-201-392
BLANCA EMMA LEAL MOJICA,
YENIFER ANDREA MALAVER LEAL,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 8, 2007)
Before DUBINA, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Blanca Emma Leal Mojica, on behalf of herself and her daughter Yenifer
Andrea Malavar Leal,1 petitions this court for review of the Board of Immigration
Appeals’s affirmance of the Immigration Judge’s order of removal and denial of
asylum and withholding of removal.2 After a thorough review of the record, we
conclude the IJ’s determination is supported by substantial evidence, and we deny
the petition.
Mojica and her daughter Yenifer, both natives and citizens of Colombia,
entered the United States on immigrant visas and remained beyond the expiration
period. The Department of Homeland Security (“DHS”) issued notices to appear,
charging them with removability under INA § 237(a)(1)(B); 8 U.S.C.
§ 1227(a)(1)(B). Mojica filed an application seeking asylum and withholding of
removal, alleging that she and her daughter had been persecuted on account of their
religion and political opinion. According to Mojica, her common-law husband’s
son Juan had disappeared in 2002 in an area well known for guerilla activity.
When she and her family attempted to search for him, she was warned to abandon
her search and she received many threatening phone calls.
At the hearing before an IJ, Mojica conceded removability and testified that
1
Yenifer was twenty years old at the time of the removal hearing.
2
Mojica originally requested relief under the United Nations Convention Against Torture,
which the IJ denied. She did not raise this issue on appeal before the BIA. Therefore, she has not
exhausted this issue, and she cannot raise it before this court. Fernandez-Bernal v. U.S. Att’y Gen.,
257 F.3d 1304, 1317 n.13 (11th Cir. 2001).
2
she was active in the Conservative Party, assisted in getting people to vote, and
worked at her church. According to Mojica, her problems started in 2002 when
Juan disappeared with a friend. She explained that she had been told that men
came to the home in which Juan and the friend were staying and took them away,
but she did not know who had taken Juan or why. Mojica and her family looked
for Juan until they were approached by two men, told to stop looking, and
threatened to leave the country. Although Mojica stopped looking, she received
threatening phone calls, which she believed were from Revolutionary Armed
Forces of Colombia (“FARC”) because guerillas controlled the town and the caller
mentioned her political activities. Although Mojica and her daughter had come to
the United States, she had another child who still lived in Colombia.
In support of the asylum application, Mojica submitted the State Department
Country Reports from 2003 and 2004, which acknowledged FARC’s activities in
Colombia. She also submitted a copy of a declaration filed with authorities in
Colombia concerning the disappearance.
The IJ denied relief, finding that although Mojica’s testimony was consistent
and credible, she had not established any nexus between the threats and a protected
ground. The IJ noted that guerilla activity was rampant in Colombia, but there was
no link between FARC and the alleged threats. The IJ further noted that other
family members had remained in Colombia without trouble.
3
Mojica appealed to the BIA, which adopted and affirmed the IJ’s decision.
The BIA noted that there was no physical harm or evidence that the calls were
related to a protected ground. Mojica now petitions this court for review, arguing
that she suffered past persecution and had a well-founded fear of future
persecution, and the IJ failed to consider the extent of the threats from FARC and
Juan’s disappearance.
Where the BIA adopts the IJ’s decision, we review the IJ’s decision as
adopted by the BIA. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1235-36 (11th Cir.
2006). To the extent that the IJ’s decision was based on a legal determination, our
review is de novo. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1254 (11th Cir. 2006).
The IJ’s factual determinations are reviewed under the substantial evidence test,
and we “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) (quotation and internal marks
omitted). Additionally, “we review the record evidence in the light most favorable
to the agency’s decision and draw all reasonable inferences in favor of that
decision.” Ruiz, 440 F.3d at 1255 (citation omitted). Thus, “a finding of fact will
be reversed only when the record compels a reversal; the mere fact that the record
may support a contrary conclusion is not enough to justify a reversal of the
administrative findings.” Id. (quotation omitted).
4
The Attorney General has discretion to grant asylum if an alien meets the
INA’s definition of “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). The INA
defines “refugee” as follows:
[A]ny person who is outside any country of such person’s nationality .
. . 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 . . . religion . . . or political opinion . . . .
8 U.S.C. § 1101(a)(42)(A) & (B). The asylum applicant bears the burden of
proving refugee status. Al Najjar, 257 F.3d at 1284. To meet this burden, the alien
must, with specific and credible evidence, establish (1) past persecution on account
of a statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed
factor will cause such future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257
F.3d at 1287. The applicant must present “specific, detailed facts showing a good
reason to fear that he or she will be singled out for persecution on account of” a
protected ground. Al Najjar, 257 F.3d at 1287 (citation and quotation marks
omitted). Thus, to establish eligibility for relief, Mojica must show the persecution
was on account of her religion or political opinion, whether actual or imputed, and
not the beliefs or opinions of her persecutors. See INS v. Elias-Zacarias, 502 U.S.
478, 482, 112 S.Ct. 812, 816, 117 L.Ed.2d 38 (1992) (holding that persecution on
account of political opinion is “persecution on account of the victim’s political
opinion, not the persecutor’s”); Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438
5
(11th Cir. 2004) (holding that the petitioner must establish past or future
persecution because of his actual or imputed political opinion). As this court
recently explained, “only in a rare case does the record compel the conclusion that
an applicant for asylum has suffered past persecution or has a well-founded fear of
future persecution.” Silva, 448 F.3d at 1239.
If the alien establishes past persecution, she is presumed to have a well-
founded fear of future persecution unless the government can rebut the
presumption. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817, 818 (11th Cir.
2004) (citing 8 C.F.R. § 208.13(b)(1)(i), (ii)). If she cannot show past persecution,
then the petitioner must demonstrate a well-founded fear of future persecution that
is both subjectively genuine and objectively reasonable. Ruiz, 440 F.3d at 1257.
The subjective component can be proved “by the applicant’s credible testimony
that he or she genuinely fears persecution,” while the objective component “can be
fulfilled either by establishing past persecution or that he or she has a good reason
to fear future persecution.” Id. at 1258.
Here, the IJ’s decision is supported by substantial evidence. First, Mojica
did not establish past persecution on account of her religion or political opinion.
The events to which Mojica refers do not amount to persecution. As this court has
explained, “‘persecution’ is an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation, and . . . mere harassment does not
6
amount to persecution.” Sepulveda v. U.S. Att’y Gen, 401 F.3d 1226, 1231 (11th
Cir. 2005) (internal quotations omitted). “[O]nly in a rare case does the record
compel the conclusion that an applicant for asylum suffered past persecution or has
a well-founded fear of future persecution.” Silva, 448 F.3d at 1239. Threatening
phone calls and warnings do not rise to the level of persecution.3
Moreover, there is no evidence that would compel us to conclude that the
alleged persecution was on account of Mojica’s religion or political opinion.
Mojica could not identify the source of the threats even though she believed that
FARC members were responsible. And, although she testified that the caller made
reference to her political activities, her testimony focused on the search for Juan as
the basis for the threats and there was no evidence tying Juan’s disappearance to
Mojica’s religious or political activities or to FARC. Thus, the IJ did not err in
concluding that the alleged threats were not on account of a protected ground.
Furthermore, there was no evidence that the alleged threats were related to
an imputed political opinion. “An asylum applicant may prevail on a theory of
‘imputed political opinion’ if [s]he shows that the ‘[p]ersecutor falsely attribute[d]
an opinion to [her], and then persecute[d][her] because of that mistaken belief
3
In a recent opinion, this court held that the cumulative effect of beatings, threatening phone
calls, and kidnaping would qualify as persecution. Martinez Ruiz v. U.S. Att’y Gen., 2006 WL
3740963, at *4 (11th Cir. Dec. 21, 2006). In contrast, “light beatings” would not qualify as
persecution. Cenolli v. U.S. Att’y Gen., 2006 WL 3422341 (11th Cir. Nov. 29, 2006). Accordingly,
the threatening calls Mojica received, without more, would not rise to the level of persecution.
7
about [her] views.’” Id. (citations and quotation marks omitted). In this case, there
is no evidence that the callers attributed any political opinion to Mojica.
Additionally, Mojica cannot establish that she had a well-founded fear of
future persecution that was objectively reasonable. Mojica ceased her search for
Juan after the warnings, and there is no evidence that she would face further calls
or threats if she returned to Colombia. And, she has other family members,
including her son, who have remained in Colombia without incident. Accordingly,
the IJ properly concluded that there was no objectively reasonable fear of future
persecution.4
Finally, because Mojica cannot establish eligibility for asylum relief, she
cannot meet the more stringent burden for withholding of removal. Zheng v. U.S.
Att’y Gen., 451 F.3d 1287, 1292 (11th Cir. 2006). Accordingly, we DENY the
petition.
4
Because the IJ properly concluded that Mojica failed to meet her burden to show eligibility
for relief, we need not address the IJ’s conclusion that relocation was possible.
8