                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                               APR 30, 2007
                            No. 06-15497                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                        Agency Nos. A78-611-077
                             A78-611-078

KITHSIRI SUMITH PREMARATNA,
MUNIHENA AYK PREMARATNA,
MALIN P. PREMARATNA,
YAHANI C. PREMARATNA,

                                                                   Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                  Respondent.

                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                             (April 30, 2007)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
       Lead petitioner, Kithsiri Sumith Premaratna, and his wife, Munihena Ayk

Premaratna, and two minor children, all natives and citizens of Sri Lanka

proceeding pro se,1 petition for review of the final decision of the Board of

Immigration Appeals (“BIA”) which affirmed the immigration judge’s (“IJ”)

denial of asylum under the Immigration and Nationality Act (“INA”).2                        In his

application, Premaratna alleged both past persecution and a fear of future

persecution by members of the People’s Alliance (“PA”) based on his status as a

coordinator for the United National Party (“UNP”). On appeal, Premaratna argues

that there was insufficient evidence to support that IJ’s finding that the harm he

alleged did not rise to the level of persecution, and that the BIA failed to

independently assess the evidence in support of asylum. After careful review, we

deny the petition for review.

       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). Because the BIA adopted the IJ’s decision, and

made some findings of its own, we will review both. To the extent that those


       1
           Although proceeding pro se on appeal, Premaratna was counseled in the proceedings below.
       2
        Because we conclude Petitioners have not met their burden to establish their eligibility for
asylum, we also conclude that they failed to meet the higher standards for withholding of removal
under the INA and relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment, 8 U.S.C. § 1231(b)(3), 8 C.F.R. § 208.16(c). See
Al Najjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th Cir. 2001).
                                                2
decisions were based on a legal determination, our review is de novo.

D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). Factual

determinations are reviewed under the substantial evidence test, and we must

affirm the BIA’s and the IJ’s findings of fact “if [they are] supported by

reasonable, substantial, and probative evidence in the record considered as a

whole.”   Al Najjar, 257 F.3d at 1284 (citation and quotations 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). Rather, “[t]o 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). The fact that evidence in the record may also support

a conclusion contrary to the administrative findings is not enough to justify a

reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004)(en banc).

      An alien who arrives in or is present in the United States may apply for

asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has

discretion to grant asylum if the alien meets the INA’s definition of a “refugee.”

See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is any person who is

unwilling to return to his home country or to avail himself of that country’s

protection “because of persecution or a well-founded fear of persecution on



                                          3
account of race, religion, nationality, membership in a particular social group, or

political opinion . . . .” 8 U.S.C. § 1101(a)(42)(A).

      The asylum applicant carries the burden of proving statutory “refugee”

status. See Al Najjar, 257 F.3d at 1284; 8 C.F.R. § 208.13(a). The applicant

satisfies this burden by showing, with specific and credible evidence: (1) past

persecution on account of a statutorily listed factor, or (2) a “well-founded fear”

that his statutorily listed factor will cause future persecution. Al Najjar, 257 F.3d

at 1287; 8 C.F.R. § 208.13(a), (b).        “To establish   asylum    based on    past

persecution, the applicant must prove (1) that she was persecuted, and (2) that the

persecution was on account of a protected ground.” Silva v. U.S. Att’y Gen., 448

F.3d 1229, 1236 (11th Cir. 2006) (citations omitted). “To establish eligibility for

asylum based on a well-founded fear of future persecution, the applicant must

prove (1) a ‘subjectively genuine and objectively reasonable’ fear of persecution,

that is (2) on account of a protected ground.” Id. (citations omitted).

      After an evidentiary hearing, the IJ found that while in Sri Lanka,

Premaratna had received phone calls urging him to leave politics and on one

occasion, unknown assailants had broken into his house, vandalized it, and

attempted to physically harm Premaratna’s wife but were deterred when a neighbor

arrived on the scene and told them to leave. Before leaving, the intruders warned

that Premaratna should cease his involvement in politics. Premaratna believed that
                                           4
the phone calls and break-in were the work of the opposition party, the PA, so he

did not go to the police for fear that he would be arrested or killed. About two

months after the break-in, Premaratna and his family left Sri Lanka. If Premaratna

returns to Sri Lanka, he described his fear of future persecution as follows: “They

definitely know. They know very well of, of what I can do and my skills and how

I organized things so they, they will not like . . . that.   Like me doing that.

Therefore, they would harm my life to stop those.” He acknowledged that the rest

of his family, including his two brothers and his mother, remain in Sri Lanka and

have never been harmed.

      The IJ found that although his testimony was credible, Premaratna

nevertheless had not met his burden to show past persecution or a fear of future

persecution. The BIA affirmed, concluding: “The respondents’ allegations, in that

the lead respondent received telephone threats and a death threat, his house was

broken into and vandalized, and his wife was nearly ‘hurt,’ do not allege facts

which rise to the level of persecution even when considered cumulatively.” The

BIA also determined that Premaratna had not shown an objectively reasonable fear

of future persecution.

      “[P]ersecution is an extreme concept, requiring more than a few isolated

incidents of verbal harassment or intimidation[.]” Sepulveda v. U.S. Att’y Gen.,

401 F.3d 1226, 1231 (11th Cir. 2005) (internal quotations and citation omitted).
                                        5
We have held that harassment, such as threats and acts of intimidation, particularly

those that result in no physical harm, do not rise to the level of persecution. Id.;

see also Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290-91 (11th Cir. 2007)

(concluding that petitioner’s 5-day detention during which he was not harmed did

not compel a finding of past persecution).         Based on our controlling precedent,

and from our review of the record, we cannot say the evidence of threatening

phone calls and the break-in and an attempt that the BIA characterized as “nearly

hurting” Premaratna’s wife, in concert, compels a finding of past persecution.

Therefore, neither the IJ nor the BIA erred in denying asylum based on past

persecution.

       As for future persecution, there is no evidence that Premaratna had an

objective fear of persecution if he returns to Sri Lanka.3 Sepulveda, 401 F.3d at

1232. As the IJ noted, the 2004 Country Report stated that the political situation in

Sri Lanka is improving, namely, that: (1) the government generally respects the

rights of its citizens; (2) the last elections were free and fair; and (3) there were no

extra-judicial killings or disappearances. Moreover, the UPN candidate for whom

Premaratna had campaigned is serving as a leader in Sri Lanka’s parliament,



       3
           Because substantial evidence supports the finding that Premaratna does not face a
reasonable possibility of personal persecution, we do not address his arguments regarding
whether he showed he could avoid persecution by relocating within Indonesia. See 8 C.F.R.
§ 208.13(b)(2).
                                                 6
Premaratna’s cousin still resides in Sri Lanka, and other family members who

remain in Sri Lanka, although not politically active, have suffered no harm as a

result of from Premaratna’s political activity. Premaratna challenges the BIA’s

reliance on the 2004 Country Report, but we have held that the BIA may rely

heavily on such reports, particularly the most recent one (here, the 2004 report), to

assess current country conditions for purposes of making an asylum decision. See

Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1243 (11th Cir. 2004) (denying

petition to review BIA’s decision, including its reliance on State Department

reports to find that the government of Peru would not acquiesce in the harm that

the petitioner feared that he would suffer). Moreover, we also have approved an

IJ’s reliance on the fact that family members remain in the country unharmed as

evidence that petitioner failed to meet his burden to established a well-founded fear

of future persecution. See, e.g., Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259

(11th Cir. 2006). On this record, we cannot say that the IJ clearly erred by denying

asylum or that the BIA reversibly erred by affirming that decision. Accordingly,

we deny the petition for review.

      PETITION DENIED.




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