[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Nov. 13, 2009
No. 09-11811 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A098-858-963
ADRIANA OSORIO SERPA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 13, 2009)
Before EDMONDSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Adriana Osorio Serpa, a native and citizen of Colombia, seeks review of the
Board of Immigration Appeals’ (BIA’s) decision affirming the Immigration
Judge’s (IJ’s) order denying her application for asylum and withholding of removal
under the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1158, 1231(b)(3).
Osorio Serpa asserts two issues on appeal, which we address in turn. After review,
we deny her petition.1
I.
Osorio Serpa contends the IJ erred in determining her asylum application
was time-barred. Although she admitted she filed her asylum application over one
year after entering into the United States, Osorio Serpa contends for the first time
on appeal she qualified for the “exceptional circumstances” exception to the time
limitation.
We “may review a final order of removal only if . . . the alien has exhausted
all administrative remedies available to the alien as of right.” 8 U.S.C.
§ 1252(d)(1). An alien must raise a claim before the BIA in order to exhaust her
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Where, as here, the BIA issues its own decision, we review the BIA’s decision only.
See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review the BIA’s factual
determinations under the substantial evidence test and will affirm if the decision “is supported by
reasonable, substantial, and probative evidence on the record considered as a whole.” Mejia v.
U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007). Under the substantial evidence test, we
can reverse a finding of fact by the BIA “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.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
The BIA’s legal determinations are reviewed de novo. Mejia, 498 F.3d at 1256.
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administrative remedies. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247,
1250 (11th Cir. 2006).
The IJ determined Osorio Serpa’s application for asylum was untimely
because she filed it more than one year after she entered the United States. Osorio
Serpa failed to appeal this ruling to the BIA; therefore, we lack jurisdiction and
dismiss this claim.
II.
Osorio Serpa further contends she established past persecution or a fear of
future persecution sufficient to qualify for withholding of removal. In a
withholding of removal claim, an alien shall not be removed to a country if her life
or freedom would be threatened on account of political opinion. 8 U.S.C.
§ 1231(b)(3)(A). The alien must show it is “more likely than not she will be
persecuted or tortured upon being returned to her country.” Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1232 (11th Cir. 2005) (quotations omitted). This standard is
more stringent than the standard for asylum. Id. While the INA does not define
persecution, we have held that persecution is an “extreme” concept, that mere
harassment is not persecution, and that persecution requires “more than a few
isolated incidents of verbal harassment or intimidation.” Id. at 1231.
An alien may make this showing in one of two ways. First, an alien may
establish past persecution based on a protected ground, in which case a rebuttable
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presumption is created that her life or freedom would be threatened if she returned
to her country. Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
Second, an alien may qualify for withholding of removal if she “can demonstrate a
future threat to h[er] life or freedom” based on a protected ground. Id.
Substantial evidence supports the BIA’s decision affirming the denial of
Osorio Serpa’s application for withholding of removal. First, the BIA did not err
in concluding the July 2000 incidents described by Osorio Serpa did not constitute
past persecution. The 2006 Country Report indicates illegal roadblocks are a
common place for kidnappings, but there is no evidence Osorio Serpa was shot at
during the police blockade, or the motivations behind stopping her. Cf. Sanchez-
Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1233-34 (11th Cir. 2007) (stating alien
asserted he was repeatedly threatened based on his political activities by FARC
guerillas who shot at his moving vehicle and later took responsibility for the
shooting). In addition, Osorio Serpa did not know the identities of the vandals, or
their motivations. While it is possible Osorio Serpa was being specifically
targeted, it is also possible she was the victim of random criminal activity;
therefore, the record does not compel reversal of the BIA’s finding. See Adefemi v.
Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004) (en banc) (“even if the evidence
could support multiple conclusions, we must affirm the agency’s decision.”).
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Because Osorio Serpa did not establish past persecution, she is not entitled
to a presumption of future persecution. As such, she must demonstrate a future
threat to her life based on political opinion. See Mendoza, 327 F.3d at 1287. This
she failed to do. Osorio Serpa again relies on the two July 2000 incidents as proof
she would suffer future persecution on account of her last name and familial
connection to Horatio Serpa. Again, this evidence does not compel such a
conclusion. Also, Osorio Serpa did not identify the reasons why her neighbor was
murdered, whether it was due to political motivations, random criminal activity, or
mistaken identity with a Serpa. As the BIA found, Osorio Serpa’s evidence
amounts to speculation, and the record does not compel a reversal of that finding.
Accordingly, we deny the petition as to withholding of removal.
PETITION DISMISSED IN PART, DENIED IN PART.
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