                                                               [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 NOV 28, 2008
                               No. 08-11269                    THOMAS K. KAHN
                           Non-Argument Calendar                   CLERK
                         ________________________

                          Agency Nos. A21-147-513
                               A96-282-266

HIPOLITO GARAY,
PAUL ALEJANDRO GARAY,

                                                                      Petitioners,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.


                         ________________________

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

                             (November 28, 2008)

Before BIRCH, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

     Petitioner Hipolito Garay (“Garay”) and his son, Petitioner Paul Alejandro
Garay (“Paul”), seek review of the Board of Immigration Appeals’ (“BIA”)

decision affirming the Immigration Judge’s (“IJ”) order of removal and denial of

asylum.1

       On appeal, the petitioners argue that the BIA erred, as three of its findings

were unsupported by substantial evidence: (1) the adverse credibility

determination, (2) the petitioners’ failure to establish past persecution, and (3) the

petitioners’ failure to establish a well-founded fear of future persecution.

                              I. Facts and Procedural History

       Garay, a native of Colombia and dual citizen of Colombia and Venezuela,

was a member of the Liberal Party in Colombia. Through that affiliation his

company, Quantum Ltd., received contracts to provide electrical services to the

Colombian government.2 According to Garay, his political affiliation and

Quantum’s government contracts caused him to become a target of Revolutionary

Armed Forces of Columbia (“FARC”) guerillas.

       Garay entered the United States in August 2000 and Paul entered in January

2001, both pursuant to visitor visas. Garay’s status was later changed to that of a



       1
          The BIA decision also listed Maria Del Pilar Bernal, but she is not included in this
petition for review.
       2
         Paul was also a member of the Liberal Party and the grounds for his petition are the
same as his father’s. The facts of this opinion are therefore formulated largely around events in
Garay’s life, but apply equally to Paul’s petition.
                                                  2
“specialty occupational professional.” Both Garay and Paul, however, overstayed

their visas.3 On November 21, 2002, Garay and Paul filed separate applications for

asylum with Immigration and Naturalization Services, claiming that based on past

incidents involving the FARC, they feared returning to Colombia because of their

political beliefs.4 Their applications were referred to immigration court and the

Department of Homeland Security (“DHS”) issued Garay and Paul Notices to

Appear, charging each with removability.

       A hearing was conducted, at which time the petitioners presented affidavits

and live witnesses. The witness’ varying accounts included allegations of the

following: in November 1999, five armed FARC members came to Garay’s office

while he was away, detained and threatened his employees, interrogated them

about Garay and his wife’s whereabouts, and caused damage to the office and

property contained therein. In February 2000, Garay received a telephone call

warning him that if he did not withdraw Quantum’s bid for a public utility

company, the FARC would “make justice.” A week after Quantum was awarded

the contract, Garay received a phone call from FARC stating that he would be



       3
         Garay’s via expired when his employer became inactive or closed on October 2, 2002.
Paul’s visa expired by its terms on July 13, 2001.
       4
         The IJ noted that Garay’s application was not filed within one year of his arrival in the
United States, but nonetheless considered it because it was filed within a reasonable time after
the expiration of his valid non-immigrant status.
                                                 3
killed. He thereafter left Colombia for the United States in March 2000 out of fear

for his life, but returned three months later in hope that he would no longer be in

danger because enough time had passed. On August 20, 2000, an SUV containing

armed FARC members attempted to stop Garay’s car, but he successfully eluded

them. Paul similarly received death threats over the telephone from FARC and, in

December 2000, a vehicle attempted to block his path, but Paul evaded it.

      Among the evidence presented by petitioners was a document that purported

to be a November 12, 1999 Colombian police report, detailing the alleged break-in

at Quantum. The DHS questioned the authenticity of this document and DHS’s

forensic document examiner testified that because the police station’s letterhead

and seal were made by ink jet technology, which is an uneconomical and unusual

way to make police reports, she believed the document was likely a forgery.

      The IJ denied Garay’s and Paul’s claims, finding that: (1) Garay’s testimony

was not credible, based in part on the finding that the police report was a forgery;

(2) the petitioners had not established past persecution (3) the petitioners had not

established a well-founded fear of future persecution. Both petitioners appealed

this decision, and on February 29, 2008, the BIA dismissed their appeal, but only

on the past and future persecution grounds. The instant petition followed.

                                    II. Discussion



                                           4
      The petitioners seek review of the dismissal of their petitions by the BIA,

arguing that none of the three grounds asserted by the IJ was supported by

substantial evidence. The BIA’s dismissal of the petitioners’ appeal, however, was

only based on the issues of past and future persecution. The BIA did not affirm the

IJ’s credibility finding, and instead assumed credibility and dismissed based on the

substantive merits. We therefore will not consider whether substantial evidence

supports the IJ’s conclusions that Garay lacked credibility and presented a forged

police report. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001)

(“[w]e review only the Board’s decision, except to the extent that it expressly

adopts the IJ’s opinion”).

      The BIA’s factual determinations, including the existence of past

persecution and a well-founded fear of persecution, are reviewed under the

substantial evidence test. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992);

Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). The substantial

evidence test is very deferential and we will affirm the BIA’s decision so long as it

is “supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Forgue, 401 F.3d at 1286 (citation omitted). The record is

reviewed in the light most favorable to the BIA’s decision, and all reasonable

inferences are drawn in favor of that decision. Id.



                                          5
       An alien may establish eligibility for asylum by showing that he has either

suffered past persecution or has a well-founded fear of future persecution. 8 C.F.R.

§ 208.13(b). To establish asylum based on past persecution, the applicant must

prove (1) that he 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).

Mere harassment does not amount to persecution because “persecution 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 citations omitted). This court has rejected a “rigid

requirement of physical injury,” noting that “‘attempted murder is persecution,’

regardless of whether the petitioner was injured.” De Santamaria v. U.S. Att’y

Gen., 525 F.3d 999, 1008 (11th Cir. 2008) (internal quotation omitted).

Nonetheless, menacing telephone calls and threats are insufficient to establish

persecution. See Sepulveda, 401 F.3d at 1231.

       The witness’ testimony indicated that the FARC bound and interrogated

employees at Quantum, but neither of the petitioners were present during this

event.5 Because they were not directly threatened or harmed, this evidence does


       5
         We note that there is no requirement that the petitioners be present for events such as
kidnaping or threats in order to establish past persecution. In De Santamaria, we found past
persecution where, amongst other things, FARC members tortured and killed the petitioner’s
groundskeeper because he would not disclose the petitioner’s location. De Santamaria, 525 F.3d
at 1009. The facts of the instant case, however, fail to rise to this level. None of the employees
                                                  6
not compel a finding of past persecution. See Zheng v. U.S. Att’y Gen., 451 F.3d

1287, 1290 (11th Cir. 2006) (a “five-day detention [where the petitioner was

actually detained but] during which he was not harmed does not compel the

conclusion that he experienced past persecution”). Moreover, although Garay

testified that FARC members attempted to stop his car and were in possession of

guns, they did not point their guns at him or otherwise attempt to injure him.

Similarly, at the most Paul’s testimony indicated that FARC members used their

car to block the road and that he successfully eluded it. Paul did not establish that

he was the target of this roadblock, that FARC thereafter made any further attempts

to stop him, or that they planned to injure him. The BIA was not required to find

that these events arose to the high standard of “persecution.”

       A well-founded fear of future persecution requires that the petitioner

“demonstrate that his or her fear of persecution is subjectively genuine and

objectively reasonable,” Al Najjar, 257 F.3d at 1289, and is at least in part on

account of a protected ground. Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d

1223, 1233 (11th Cir. 2007). “The subjective component is generally satisfied by

the applicant's credible testimony that he or she genuinely fears persecution. In

most cases, the objective prong can be fulfilled either by establishing past




at Quantum were injured and only property was destroyed.
                                              7
persecution or that he or she has a good reason to fear future persecution.” Al

Najjar, 257 F.3d at 1289 (citation and quotation marks omitted).

      As explained above, the petitioners did not establish past persecution, so

they must demonstrate a good reason to fear future persecution. Garay argues that

the reason he became a target of the FARC is because Quantum worked on projects

for the Colombian government. Garay admitted that he no longer has any

communication with Quantum and has not done any work for the Colombian

government since moving to America. Moreover, Garay testified that Quantum is

now likely defunct for failure to pay taxes. As such, substantial evidence supports

the BIA’s determination that the petitioners would no longer be a target of the

FARC as petitioners had broken ties with the Colombian government and a

significant amount of time has passed. Thus, petitioners failed to show a well-

founded fear of future persecution.

      For the reasons stated, the petition is denied.

      DENIED.




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