[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
FEBRUARY 20, 2008
No. 07-11784
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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BIA Nos. A78-602-248 & A78-602-249
PAULA LOPEZ,
JOHON JAVIER LOPEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(February 20, 2008)
Before EDMONDSON, Chief Judge, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Paula Lopez and her husband Johon Javier Lopez (“the Lopezes”), natives
and citizens of Colombia, petition for review of the affirmance by the Board of
Immigration Appeals (“BIA”) of the decision of the Immigration Judge (“IJ”).
The decision denied asylum, withholding of removal, and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (“CAT”).1 No reversible error has been shown; we deny
the petition.
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). “Insofar as the [BIA] adopts the IJ’s reasoning,
we will review the IJ’s decision as well.” Id. We review factual determinations
that an alien is unentitled to relief under the substantial evidence test; and we
affirm the decision if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole. Forgue v. U.S. Attorney Gen., 401
F.3d 1282, 1286 (11th Cir. 2005). The substantial evidence test is “highly
deferential,” and we may reverse the decision below only if the evidence compels,
instead of merely supports, the conclusion that the IJ or BIA erred. Alim v.
Gonzales, 446 F.3d 1239, 1254 (11th Cir. 2006).
1
On appeal, the Lopezes challenge only the denial of withholding of removal, and thus, abandon
asylum and CAT relief claims. See Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1228 n.2 (11th
Cir. 2005) (explaining that a petitioner abandons an issue by failing to offer argument on that issue).
2
An alien seeking withholding of removal must show that his life or freedom
would more likely than not be threatened upon return to his country because of a
protected ground, such as political opinion. Mendoza v. U.S. Attorney Gen., 327
F.3d 1283, 1287 (11th Cir. 2003); see also 8 U.S.C. § 1231(b)(3)(A). Therefore,
an alien bears the burden of demonstrating that he more-likely-than-not would be
persecuted or tortured upon his return to his country of nationality. Mendoza,
327 F.3d at 1287. The alien may satisfy this burden by showing past persecution
on account of a protected ground.2 Id. An alien who has not shown past
persecution may still be entitled to withholding of removal if he can demonstrate a
future threat to his life or freedom on a protected ground. Id.; see also 8 C.F.R. §
208.16(b)(2).
Here, the Lopezes asserted that they3 were active members of the Colombian
Liberal Party from 1996 until 1998, participating in community meetings and
developing health brigades. Because of their political activities, they were
threatened by the Jaime Bateman Canyon guerilla organization, a part of the
2
If the alien establishes past persecution in his country based on a protected ground, it is presumed
that his life or freedom would be threatened upon return to that country unless the government shows
by a preponderance of the evidence that, among other things, (1) the country’s conditions have
changed such that the alien’s life or freedom no longer would be threatened; or (2) it would be
reasonable for the alien to relocate to another part of the country. Id.
3
When the alleged incidents occurred, the Lopezes were engaged; and they later were married,
after coming to the United States.
3
Revolutionary Armed Forces of Colombia (“FARC”). On two occasions in
February 1998, Paula received threatening phone calls from the FARC demanding
that she and her husband stop their political activities or face “serious
consequences.” In May 1998, the Lopezes were on their way home from a
meeting when they were stopped by a guerilla group of 15 men, forced from their
car, thrown on the ground, and threatened with death if they did not stop their
political activities. In addition, Johon was beaten, though details of injuries he
sustained were not included in the record or testified about at the hearing. After
this incident, the Lopezes moved in with Paula’s parents in a town about 45
minutes away but continued to receive threatening phone calls. In July 1998, the
Lopezes left Colombia and came to the United States. Paula testified that her
parents still receive phone calls in Colombia from people asking about her and her
husband.
In denying withholding of removal, the IJ determined that the incidents
alleged did not constitute past persecution and that, based on the Lopezes seven-
year absence from Colombia, they had not demonstrated that they faced a future
threat to their freedom or safety if returned to Colombia. The BIA acknowledged
that the mistreatment suffered by the Lopezes was politically motivated but agreed
with the IJ that the mistreatment did not rise to the level of past persecution and
4
also agreed that the Lopezes had failed to demonstrate that it was more likely than
not that they would be persecuted if returned to Colombia.
On appeal, the Lopezes argue that the BIA erred in concluding that the
incidents alleged did not constitute past persecution and submit that, because the
BIA acknowledged that the incidents were politically motivated, the case should
have been remanded to the IJ to consider the incidents cumulatively.4 After
review, we have determined that the evidence does not compel the conclusion that
the Lopezes were entitled to withholding of removal. It is true that, in the past
persecution analysis, the BIA must consider the cumulative effects of the
incidents, Ruiz v. Gonzales, 479 F.3d 762, 766 (11th Cir. 2007). We, however,
have explained that persecution is an “extreme concept, requiring more than a few
isolated incidents of verbal harassment and intimidation”; and “mere harassment
does not amount to persecution,” Sepulveda, 401 F.3d at 1231 (citation omitted).
Even when considered cumulatively, the threatening phone calls and single face-
to-face encounter with the FARC alleged by the Lopezes do not demonstrate past
4
The Lopezes contend that the IJ did not consider the traffic stop as politically motivated. Even
if this contention is true, the BIA assumed that all the incidents were politically motivated, and thus,
we need not address this argument. See Lopez v. U.S. Attorney Gen., No. 06-12907, man. op. at 6
(11th Cir. October 25, 2007) (explaining that because the IJ finding that petitioner challenged had
not been adopted by the BIA, it did not form part of the order under review); Al Najjar, 257 F.3d at
1284 (noting that, when the BIA issues its own decision, we review only that decision, except to the
extent it expressly adopts the IJ’s decision).
5
persecution; nothing in the record evidences that the Lopezes ever suffered serious
physical harm at the hands of the FARC. Cf. Delgado v. U.S. Attorney Gen.,
487 F.3d 855, 859, 861-62 (11th Cir. 2007) (record compelled a finding of past
persecution where petitioners were threatened at gunpoint, one was severely
beaten until he was nearly unconscious, and brakes on one petitioner’s vehicle
were cut twice, all because of political opinion).
And the record does not compel the conclusion that the Lopezes face a
future threat to their life or freedom if returned to Colombia, especially in the light
of their nearly decade-long absence from the country.5 See Mendoza, 327 F.3d at
1287. Though Paula testified that her parents still received phone calls about her
in Colombia, nothing in the record evidences the frequency of these calls or the
substance of the threats contained therein. Therefore, we deny the Lopezes
petition for review.
PETITION DENIED.
5
We need not address the Lopezes argument on appeal that relocation within Colombia is not an
option because we conclude, as did the BIA, that they failed to establish past persecution. So, the
presumption of future harm did not arise and it was unnecessary for the government to show that
relocation was an option. See Mendoza, 327 F.3d at 1287.
6