                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 June 21, 2007
                               No. 06-15911                    THOMAS K. KAHN
                           Non-Argument Calendar                   CLERK
                         ________________________

                             BIA No. A97-927-591

SERGIO OMAR BELDORATI,


                                                                        Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.


                         ________________________

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

                                (June 21, 2007)

Before ANDERSON, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

     Petitioner Sergio Omar Beldorati (“Beldorati”), a native and citizen of
Argentina, petitions this court to review the Board of Immigration Appeal’s

(“BIA”) order affirming the Immigration Judge’s (“IJ”) order denying his

application for withholding of removal under the Immigration and Naturalization

Act (“INA”).1 On appeal, Beldorati argues that his case should be remanded to the

BIA because the BIA and IJ failed to determine whether Beldorati suffered past

persecution, thus entitling him to a rebuttable presumption that he would suffer

future persecution should he return to Argentina.

           We review the BIA’s decision, except to the extent that the BIA has

expressly adopted the IJ’s decision, in which case, we review the IJ’s decision as

well. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). Here, the BIA

adopted the IJ’s decision, and stated that it agreed that Beldorati had not shown

that he feared future persecution. Accordingly, we review both the BIA and IJ’s

decision.

       An alien is entitled to withholding of removal to a country if “the alien’s life

or freedom would be threatened in that country because of the alien’s race,

religion, nationality, membership in a particular social group, or political opinion.”

INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). In order to be entitled to


       1
          We dismiss his appeal as to the denial of asylum because we do not have jurisdiction to
review the BIA’s and IJ’s discretionary decision not to waive the one-year time limit to apply for
asylum. In his petition, Beldorati does not challenge the IJ and BIA’s finding that he is not
entitled to protection under the CAT. Thus, any argument is waived. Huang v. U.S. Attorney
Gen., 429 F.3d 1002, 1007 n.2 (11th Cir. 2005).
                                                  2
withholding of removal, the alien must demonstrate that it is “more likely than not”

that he would suffer persecution on account of one of the protected grounds should

he be returned to his native country. Ruiz, 479 F.3d at 766. An alien that can

prove he suffered past persecution in his native country “creates a rebuttable

presumption that the alien’s life or freedom would again be threatened upon

removal to the proposed country.” Id. We have defined “persecution” as “an

‘extreme concept’ requiring ‘more than a few isolated incidents of verbal

harassment or intimidation . . . [m]ere harassment is not persecution.” Id. (quoting

Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)).

      The IJ has discretion to determine whether past incidents amount to

persecution; however, where an alien presents evidence that he suffered past

persecution, “the regulations do not give the IJ the discretion to refrain from

making a determination regarding past persecution altogether.” Antipova v. U.S.

Attorney Gen., 392 F.3d 1259, 1265 (11th Cir. 2004). In Antipova, we remanded

the case to the BIA where the BIA left us unable to “undertak[e] meaningful

judicial review of the merits of [the] order” because it failed to detail whether the

petitioner had suffered past persecution. Id. at 1265. We instructed that the IJ had

to make a finding regarding past persecution if the applicant seeking withholding

of removal “sets forth credible evidence” of past persecution. Id. An applicant

that presents sufficient evidence to prove past persecution is entitled to a favorable
                                           3
presumption of future persecution that the government must then rebut. Id.

      After reviewing the record, and reading the parties’ briefs, we conclude that

the BIA and the IJ failed to address whether Beldorati suffered past persecution.

      In his decision, the IJ concluded that Beldorati’s testimony and the

background information submitted prior to the hearing failed to show that it was

“more likely than not” that he would incur future persecution. The IJ did not,

however, discuss whether the mistreatment endured by Beldorati amounted to past

persecution. If Beldorati had suffered past persecution then he was entitled to a

rebuttable presumption in his favor that he was likely to suffer future persecution.

Thus, we grant Beldorati’s petition and remand this case to the BIA to determine

whether Beldorati suffered past persecution and, if so, whether the presumption of

future persecution was rebutted by the government.

      PETITION GRANTED AND CASE REMANDED FOR FURTHER

PROCEEDINGS CONSISTENT WITH THIS OPINION.




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