Marlen Rosmira Perez v. U.S. Atty. Gen.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15690 October 29, 2008
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK

BIA Nos. A79-489-088 & A79-483-769

MARLEN ROSMIRA PEREZ,
MARIA ANGELICA CASTRO,

Petitioner,

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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(October 29, 2008)

Before EDMONDSON, Chief Judge, ANDERSON and PRYOR, Circuit Judges.

PER CURIAM:
Marlen Rosmira Perez and her daughter Maria Angelica Castro1, 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 and withholding of removal.2 No reversible error has

been shown; we deny the petition.

We review the BIA’s decision in this case because the BIA did not

expressly adopt the IJ’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284

(11th Cir. 2001) (noting that we review the BIA’s decision; but “[i]nsofar as the

[BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well”). We

review the BIA’s legal determinations de novo. Id. Factual determinations are

reviewed under the “highly deferential” substantial evidence test; and we must

“affirm the . . . decision if it is supported by reasonable, substantial, and probative

evidence on the record considered as whole.” Forgue v. U.S. Attorney Gen., 401

F.3d 1282, 1286 (11th Cir. 2005) (internal citation omitted). Therefore, a finding

1
Perez included her daughter as a derivative beneficiary in her asylum application; so our decision
about Perez also applies to her daughter.
2
The decision also denied relief under the United Nations Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment. But on appeal, Perez does not offer
argument on this claim; and thus, it is abandoned. See Sepulveda v. U.S. Attorney Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005) (explaining that petitioner abandons an issue by failing to offer
argument on that issue).

2
of fact will be reversed only when the record compels, instead of merely supports,

a reversal. Alim v. Gonzales, 446 F.3d 1239, 1254 (11th Cir. 2006).

An alien may obtain asylum if she is a “refugee,” that is, a person unable or

unwilling to return to her country of nationality “because of persecution or a well-

founded fear of persecution on account of” a protected ground, including political

opinion or membership in a particular social group. 8 U.S.C. §§ 1101(a)(42)(A);

1158(a)(1), (b)(1). The asylum applicant bears the burden of proving statutory

“refugee” status with specific and credible evidence. Forgue, 401 F.3d at 1286-87.

Here, Perez claimed that she was persecuted by the Revolutionary Armed

Forces of Colombia (“FARC”) because of her political opinion and her

membership in a particular social group. Her problems with the FARC began

when she sold a farm she had inherited from her parents to the government. She

had abandoned the farm because she was living in Bogota, and the FARC

apparently had taken over the farm because of its location, which allowed for an

unobstructed view of the neighboring town. After the sale, she had a face-to-face

encounter with a FARC member at the farm; the member threatened her because

she had taken the farm from them and opposed the FARC’s ideals.

Perez also claimed persecution because of her membership in “Atardecer”

(Sunset) -- a group of about 100 members that encouraged displaced farmers and

3
their children in the Bogota area to continue farming instead of joining guerilla

forces. The group met about once a week at a local church. The FARC became

aware of Atardecer and started threatening its members. Perez had a second face-

to-face meeting with a FARC member after an Atardecer meeting, where the

member told her to stop attending the meetings and that she should not advocate

ideas favorable to the government. Perez also testified that she received at least

eight letters and two to three phone calls a week for over five years from the

FARC threatening her and telling her to leave Atardecer.

To avoid the threats, Perez moved to a remote location. But the FARC still

sent her a death threat letter at this location. The night she received the letter, the

FARC bombed the mayor’s office and the police station in the town. This incident

prompted her to leave Colombia for the United States.

The IJ determined that Perez had not met her burden of proof in establishing

eligibility for asylum or withholding of removal. The BIA agreed, noting that the

harassment and intimidation Perez endured at the hands of the FARC did not rise

to the level of persecution.3

3
The IJ also denied Perez’s asylum application on credibility grounds. The BIA determined that
the IJ’s adverse credibility determination was not clearly erroneous, but also determined that, even
if Perez was credible, she still failed to establish eligibility for relief. Because the BIA denied
Perez’s application for reasons other than credibility and we deny the petition for those reasons, we
need not address the adverse credibility determination. Yang v. U.S. Attorney Gen., 418 F.3d 1198,
1201 (11th Cir. 2005) (explaining that we will assume adverse credibility determinations are not

4
On appeal, Perez argues that she suffered past persecution and demonstrated

a well-founded fear of future persecution because of her political opinion and

membership in Atardecer. After review, we conclude that the evidence does not

compel the conclusion that Perez was entitled to asylum. We 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 and internal quotation

omitted). The threatening phone calls, letters, and two face-to-face encounters

with the FARC alleged by Perez do not rise to the level of past persecution, no

matter whether the FARC’s acts were because of Perez’s political opinion or

membership in Atardecer; in addition, Perez testified at her asylum hearing that

she never was arrested or jailed or physically harmed by 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).4

dispositive if the BIA chiefly focuses on other problems with the application).
4
In her asylum application, Perez indicated that her brother and two of her nephews who were in
the army experienced problems with the FARC; but, she provided no evidence that their incidents
with the FARC were related to her own encounters with the FARC.

5
And the record does not compel the conclusion that Perez demonstrated a

well-founded fear of future persecution if she returns to Colombia, especially in

the light of her several-year absence from the country. In addition, she still has

family members living in Colombia, and she provided no indication that other

members of Atardecer were ever harmed or have been harmed by the FARC since

she left Colombia. See Ruiz v. U.S. Attorney Gen., 440 F.3d 1247, 1258

(11th Cir. 2006) (a well-founded fear of persecution can be established by

“specific, detailed facts showing a good reason to fear that [the alien] will be

singled out for persecution” because of a protected ground) (emphasis added).

Substantial evidence supports the BIA’s decision that Perez was unentitled

to asylum; and we are not compelled to reverse the BIA’s decision. Because we

conclude that Perez did not meet her burden of establishing her eligibility for

asylum, she also has failed to meet the more difficult standards for withholding of

removal. See Forgue, 401 F.3d at 1288 n.4. We deny Perez’s petition for review.5

PETITION DENIED.

5
On appeal, Perez raises several potential problems with the IJ’s decision. But the BIA issued its
own separate order, and we consider only that order on appeal. See Al Najjar, 257 F.3d at 1284.