                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                     MARCH 6, 2008
                                                  THOMAS K. KAHN
                            No. 07-12339
                                                       CLERK
                       Non-Argument Calendar
                     ________________________

                         BIA No. A95-263-330

OFIR ALIRIO BARRERA,

                                                            Petitioner,

                                 versus

U.S. ATTORNEY GENERAL,

                                                            Respondent.

                     ________________________

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

                            (March 6, 2008)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
       Ofir Alirio Barrera, a native and citizen of Colombia seeks review of the

Board of Immigration Appeals’s (“BIA”) decision, affirming the immigration

judge’s (“IJ”) order of removal and denial of his application for asylum and

withholding of removal under the Immigration and Nationality Act (“INA”), INA

§§ 208, 241(b)(3), 8 U.S.C. §§ U.S.C. § 1158, 1231(b)(3), and relief under the

United Nations Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158, 1231; 8 C.F.R.

§ 208.16(c). On appeal, Barrera argues that we have jurisdiction to review the

denial of his asylum application as time-barred and to consider whether he met one

of the exceptions to the one-year filing deadline. He also argues that the BIA erred

by finding that he failed to show that he was a victim of past persecution by the

National Liberation Army (“ELN”) or that he had a well-founded fear of future

persecution. After thorough review of the record, we dismiss the petition as to the

asylum claim, and deny the petition as to the claim for withholding of removal.1

       We have jurisdiction to determine whether jurisdiction exists.                      Sosa-

Martinez v. U.S. Att’y Gen., 420 F.3d 1338, 1340 (11th Cir. 2005).                           We

consider de novo the issue of whether we have subject matter jurisdiction.

Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).

       1
             Barrera abandoned his CAT claim by not arguing it on appeal, so we will not address
this claim. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (“[w]hen an
appellant fails to offer argument on an issue, that issue is abandoned.”).
                                                  2
      An asylum application must be “filed within [one] year after the date of the

alien’s arrival in the United States.”          INA   § 208(a)(2)(B); 8 U.S.C.

§ 1158(a)(2)(B). An untimely application “may be considered . . . if the alien

demonstrates to the satisfaction of the Attorney General either the existence of

changed circumstances which materially affect the applicant’s eligibility for

asylum or extraordinary circumstances relating to the delay in filing an application

. . . .” INA § 208(a)(2)(D); 8 U.S.C. § 1158(a)(2)(D). Section 1158(a)(3) “divests

[us] of jurisdiction to review a decision regarding whether an alien complied with

the one-year time limit or established extraordinary circumstances that would

excuse his untimely filing.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287

(11th Cir. 2003). Further, we have held that the REAL ID Act of 2005, Pub. L.

No. 109-13, 119 Stat. 231 (2005) (“REAL ID Act”), does not change this

conclusion. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005)

(explaining that we “cannot review the IJ’s and BIA’s denial of [petitioner’s]

asylum claim, even considering the changes in the Real ID Act” because “[t]he

timeliness of an asylum application is not a constitutional claim or question of law

covered by the Real ID Act’s changes”).

      Pursuant to § 1158(a)(3), we lack jurisdiction to consider Barrera’s argument

that the BIA erred in denying his asylum claim as time-barred. See id.; Mendoza,

327 F.3d at 1287. We also lack jurisdiction to review Barrera’s argument that the
                                          3
BIA erred, constitutionally or as a matter of law, by failing to find the existence of

changed circumstances to justify the untimely filing. See Chacon-Botero, 427 F.3d

at 957; Mendoza, 327 F.3d at 1287. Therefore, we are compelled to dismiss the

petition for review as to Barrera’s claim for asylum.

      We turn then to Barrera’s appeal from the denial of his application for

withholding of removal.      Because the BIA did not expressly adopt the IJ’s

reasoning in denying his application, we review only the BIA’s decision. See Al

Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). “To the extent that the

BIA’s decision was 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). We review

the BIA’s factual findings under the substantial evidence test, and must affirm

findings that are “supported by reasonable, substantial, and probative evidence on

the record considered as a whole.”        Al Najjar, 257 F.3d at 1284 (quotation

omitted). “To reverse a factual finding by the BIA, [we] must find not only that

the evidence supports a contrary conclusion, but that it compels one.” Adefemi v.

Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc) (quotation omitted).

      Withholding of removal may be granted if the alien establishes that it is

more likely than not that, if returned to his country, his life or freedom would be

threatened on account of his race, religion, nationality, membership in a particular

social group, or political opinion. INA § 241(b)(3); 8 U.S.C. § 1231(b)(3)(A).
                                          4
The burden of proof is on the alien, and he is entitled to withholding of removal if

he can establish, with specific and credible evidence: (1) a past threat to life or

freedom through proof of past persecution on account of a protected ground; or (2)

a future threat to life or freedom if it “is more likely than not” that the protected

ground will cause future persecution. 8 C.F.R. § 208.16(b)(1), (2). “A showing of

past persecution creates a presumption of a well-founded fear, subject to rebuttal

by the [government].” Sepulveda, 401 F.3d at 1231 (quotation omitted). If an alien

does not establish past persecution, he cannot demonstrate that his “life or freedom

would be threatened if the asylum officer or immigration judge finds that the

applicant could avoid a future threat to his . . . life or freedom by relocating to

another part of the proposed country of removal and, under all the circumstances, it

would be reasonable to expect the applicant to do so.” 8 C.F.R. § 208.16(b)(2).

      The petitioner’s well-founded fear of persecution must be on account of one

of the statutorily listed factors. To establish the necessary causal connection, the

alien 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 statutorily listed factor.

Sepulveda, 401 F.3d at 1231 (quotation and emphasis omitted). Although the INA

does not expressly define “persecution,” we have stated that “persecution is an

extreme concept, requiring more than a few isolated incidents of verbal harassment

or intimidation,” and “[m]ere harassment does not amount to persecution.” Id.
                                         5
(quotations omitted). “[E]vidence that either is consistent with acts of private

violence or the petitioner’s failure to cooperate with guerillas, or that merely shows

that a person has been the victim of criminal activity, does not constitute evidence

of persecution based on a statutorily protected ground.” Ruiz v. U.S. Att’y Gen.,

440 F.3d 1247, 1258 (11th Cir. 2006).

       Substantial evidence supports the BIA’s findings that Barrera was not

eligible for withholding of removal because he failed to establish that he was either

persecuted in the past on account of a statutorily protected ground or will “more

likely than not” suffer persecution on this ground in the future. Barrera argues that

he met this standard, establishing persecution on account of his political opinion,

by presenting evidence regarding threatening telephone calls and letters he and his

wife received, his involvement with the Liberal Party, the deaths of several of his

relatives, and the country conditions in Colombia. As for past persecution, the

record shows that Barrera received threatening telephone calls and letters in the

mail, but he was never physically harmed, nor did the ELN ever attempt to carry

through on its threats.       Threats like these alone are insufficient to establish

persecution. See Sepulveda, 401 F.3d at 1231 (“menacing telephone calls and

threats . . . do not rise to the level of past persecution.”).

       Moreover, although several of Barrera’s relatives were killed, the record

does not compel the conclusion that his relatives were killed in order to punish
                                              6
Barrera for an actual or imputed political opinion. Even if Barrera could establish

persecution on the basis of his relatives’ deaths, he did not establish the necessary

nexus between the persecution and his political opinion. See 8 U.S.C. § 1231(b)(3).

Barrera did not present any evidence to show that the ELN targeted him because he

was a member of the Liberal Party.       Rather, substantial evidence supports the

conclusion that it targeted him for extortion based on his income level, and not for

persecution based on political opinion. See Ruiz, 440 F.3d at 1258.

      Because Barrera did not establish the necessary nexus, he also could not

show that it “is more likely than not” that the protected ground would cause future

persecution. See 8 C.F.R. § 208.16(b)(2). Therefore, there is substantial evidence

to support the BIA’s finding that Barrera did not suffer past persecution and would

not more likely than not suffer persecution if returned to Colombia. See Mendoza,

327 F.3d at 1287. Accordingly, we deny Barrera’s petition as to the withholding-

of-removal claim.

      PETITION DISMISSED IN PART AND DENIED IN PART.




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