                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT           FILED
                          ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                 AUGUST 31, 2005
                                 No. 05-10586
                                                                THOMAS K. KAHN
                             Non-Argument Calendar
                                                                    CLERK
                           ________________________

                      BIA Nos. A96-101-609 & A96-102-146

JAVIER MORALES,
CLAUDIA LILIANA JIMENEZ,

                                                         Petitioners,

       versus

U.S. ATTORNEY GENERAL,

                                                         Respondent..

                         __________________________

                      Petition for Review of an Order of the
                          Board of Immigration Appeals
                           ________________________
                                (August 31, 2005)

Before BIRCH, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Javier Morales and his wife, Claudia Liliana Jimenez (collectively the

“petitioners”), petition for review of the Board of Immigration Appeals’s (“BIA’s”)
order affirming the Immigration Judge’s (“IJ’s”) denial of asylum and withholding

of removal under the Immigration and Nationality Act (“INA”). We AFFIRM.

                                     I. BACKGROUND

      On or about 1 May 1999, Morales, a native and citizen of Colombia, was

admitted to the United States as a nonimmigrant visitor for pleasure, with

authorization to remain until 31 October 1999. Jimenez, Morales’s wife and also a

native and citizen of Colombia, was admitted to the Untied States as a

nonimmigrant visitor for pleasure on or about 12 August 1999, with authorization

to remain until 11 February 2000. On 24 December 2002, the petitioners were

served with Notices to Appear, charging them with removability under 8 U.S.C. §

1227(a)(i)(B) for remaining in the United States for a time longer than permitted.

      On 31 October 2002, Morales filed an application on behalf of himself and

Jimenez for asylum and withholding of removal under the INA.1 He alleged that he

had suffered past persecution and harbored a well-founded fear of future

persecution on the basis of his political opinion. Specifically, Morales claimed that

the guerrilla group Fuerzas Armadas Revolucionaries de Colombia (the “FARC”)


       1
         Additionally, Morales claimed in his application that he and Jiminez were eligible for relief
under the United Nations Convention Against Torture and Other Cruel, Inhumane, and Degrading
Treatment or Punishment (“CAT”) , 8 C.F.R. § 208.16(c). However, the petitioners did not raise an
argument on this issue in their appellate brief, and we thus do not consider it here. Mendoza v.
United States Att’y Gen., 327 F.3d 1283, 1286 n.3 (11th Cir. 2003).

                                                 2
threatened him with kidnaping and death because of his prior military service in the

Colombian army and political involvement with the Liberal Party.

      In a hearing before the IJ, Morales testified to the following facts.2 Morales

joined the Colombian army on 7 January 1990. While in the army, he served as a

plain-clothed intelligence agent tasked with collecting information on guerrilla

movements. Morales learned that a guerrilla group was planning to transport

munitions down the El Rageri river in the summer of 1990. Acting on this

information, Morales’s unit seized the munitions and captured fifteen guerrillas.

He was discharged from the army on 28 December 1990.

      In 1995, Morales joined the Colombian Liberal Party. He spent every

Saturday campaigning in the neighborhoods of Bogota to recruit new members. On

6 February 1998, Morales was attending a Liberal Party community hall meeting,

and ten armed guerrillas from the FARC entered the community hall and asked

Morales and his companions for their identification cards. They were held for

three hours while the guerillas checked their IDs against information the FARC had

on file. According to Morales, the guerilla reviewed the IDs because they wanted

to ascertain the identities of those involved in political parties that support



       2
           Morales’s testimony before the IJ closely tracks the facts recited in his application for
asylum.

                                                 3
democracy in Colombia. Before leaving the hall, the guerillas returned Morales’s

ID and informed him that they knew about his 1990 army service.

      On 11 May 1998, Morales received a threatening phone call from the FARC.

The FARC told Morales that they knew that he had participated in the army

operation in the El Rageri and that he was going to pay with his life for his actions

against the guerrillas. Between May and September 1998, Morales received eight

phone calls from the FARC in which they threatened to kidnap and kill him. In

September 1998, Morales traveled alone to the United States and remained for six

months in hopes that his absence would abate the threats. Morales returned to

Colombia on 11 March 1999, and resumed living with his wife in their home in

Bogota. Three days later, FARC guerillas called Morales at his home and told him

that they knew he had returned to Colombia and that he would pay for what he had

done in the army. Morales became “very fearful and very nervous.”

Administrative Record (“AR”) at 69. On 1 May 1999, Morales traveled to the

United States, and his wife joined him in the following August.

      When asked why it had taken them so long to file for asylum, Morales

explained that soon after his wife arrived in the United States, they had consulted

an immigration attorney. According to Morales, the attorney failed to inform them

about the asylum process and instead suggested that they return to Colombia and

                                          4
apply for a professional visa for Jimenez from there. The petitioners located a

company that would sponsor Jimenez for the professional visa. However, when

they returned to the attorney’s office in the fall of 2000, they discovered that

attorney had closed his office. Other than speaking to Morales’s brother about

getting a professional visa, the petitioners did not explore other ways of staying in

the United States legally. Morales first found out about the asylum process when

his wife’s uncle mentioned it to him.3

      The record also contained four documents discussing country conditions in

Colombia generally. First, the record included the Department of State’s 2002

Country Report on Human Rights Practices for Colombia. The Country Report

indicated that Colombia’s human rights record remained poor and that “the internal

armed conflict between the Government and the leftist guerrillas, particularly the

FARC and terrorist organization National Liberation Army (“ELN”)–as well right-

wing paramilitaries . . . caused the deaths of between 5,000 and 6,000 civilians

during the year . . . .” Id. at 86. In 2002, the FARC committed more large-scale

massacres than in the previous year, and 85% of all civilian deaths in massacres

were attributed to guerrillas. Id. at 89. Additionally, “[t]he FARC committed


       3
        The record contained various documents supporting Morales’s factual allegations. As
Morales’s credibility is not at issue, we need not discuss these documents here.

                                            5
numerous politically motivated kidnapings in an attempt to destabilize the

Government and pressure it into a prisoner exchange. . . . [T]here were 208

politically motivated kidnapings during the year.” Id. at 90.

      Second, the record contained the State Department’s Profile of Asylum

Claims and Country Conditions for Colombia for June 1997 (the “Profile”). The

Profile estimates that 10,000 to 15,000 full-time guerillas, organized into more than

100 groups, exercised “some degree of permanent influence in more than half of

the country’s municipalities.” Id. at 105. The Profile states that “[t]he vast

majority (perhaps as high as 90 percent) of asylum claims from Colombia are based

on political grounds even in cases where there is little evidence that the political

views of the applicant were related to the mistreatment alleged.” Id. at 108. The

Profile reports that guerrillas committed many human rights violations, including

killings and kidnapings, and that any guerilla abuse alleged by asylum applicants

“could have occurred or at least would not be inconsistent with the country

conditions,” id. at 110. However, the Profile also states that those fleeing guerilla

persecution in “conflictive zones” of Colombia usually could live peacefully

elsewhere in the country. Id. According to the Profile, Bogota is a particularly

violent region in Colombia.




                                           6
      Third, the record included a 16 June 2003, State Department’s Travel

Warning (the “Warning”) which states that “[t]errorist and criminal violence by

narcotraffickers, guerrillas, illegal self-defense (paramilitary) groups and other

criminal elements continues to affect all parts of the country, urban and rural.” Id.

at 79. It also notes that there were approximate 3,000 reported kidnapings

throughout the country in 2002 and that “[t]here is a greater risk of being kidnaped

in Colombia than in any other country in the world.” Id. Finally, the record

contained a State Department’s Consulate Information Sheet dated 16 April 2003

(“the CIS”). The information provided in the CIS is consistent with that provided

by the Report, the Profile, and the Warning.

      After listening to the testimony at the hearing and considering the evidence,

the IJ denied the petitioners’ asylum and withholding of removal claims and

ordered them removed to Colombia. First, the IJ found that no extraordinary

circumstances existed so as to excuse petitioners’ untimely filing of their asylum

applications. The IJ noted that the petitioners arrived in 1999 but did not apply for

asylum until 31 October 2002. The IJ stated that “[t]he most that the Court has

heard as far as an explanation [for waiting to file the application] is that they did

contact an attorney in the community, that attorney suggested to them that they file

an employment based petition on behalf of the consolidated respondent.” AR at

                                           7
33. The IJ noted that there was no evidence that they had been ill-advised by the

attorney, that they had actually retained the attorney to file an asylum application,

or that there were health or other problems that prevented the petitioners from

filing a timely application. Therefore, the IJ found their claim for relief under

Section 208 was time barred.

      Second, although it determined that Morales’s testimony was credible

overall, the IJ found that Morales had failed to meet his burden of proof in

establishing that it would be more likely than not that his life or freedom would

suffer on account of any of the grounds enumerated under Section 208. The IJ

found that the petitioners were not victims of past persecution because (1) the

petitioners had not been physically or psychologically harmed; (2) Morales had

received just eight threatening phone calls during a brief period in 1998; and (3) at

the 6 February 1998 Liberal Party meeting, Morales suffered no harm and was

released after the FARC checked his papers. Additionally, the IJ wondered why

the FARC would have allowed Morales to leave their presence if they truly had an

interest in him. The IJ also noted that Morales did not apply for political asylum

during his 1998 United States trip after having been contacted by the guerrillas.

      Acting through counsel, the petitioners appealed the IJ’s decision to the BIA.

In their brief before the BIA, the petitioners argued that Morales had shown that he

                                          8
was entitled to withholding of removal because Morales was being persecuted

based on his membership in a protected social group4 because the FARC targeted

Morales on account of his prior military service, the reach of guerillas extended to

all parts of the country, and the Colombian government was unable to control the

guerrillas. Notably, the petitioners did not challenge the IJ’s ruling that the asylum

application was time-barred. The BIA adopted and affirmed the IJ’s decision.

                                      II. DISCUSSION

      On appeal, the petitioners argue that the BIA erred in denying their

application for asylum and withholding of removal because Morales has

established he suffered past persecution and has a well-founded fear of persecution

on the basis of a political opinion imputed upon him by the “FARC” on account of

his prior service with the Colombian army.5

      When the BIA summarily affirms the decision of IJ without an opinion, we

review the IJ’s decision as the final removal order. Sepulveda v. United States

Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005) (per curiam). We review the IJ’s

       4
         In their appellate brief, the petitioners do not raise this enumerated ground, membership in
a protected social group. Instead, the petitioners’ brief relies on the ground of imputed political
opinion, as did the original asylum application.
       5
          Because the petitioners’ removal proceedings commenced after 1 April 1997, the permanent
rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-
208, 110 Stat. 3009 (1996) (“IIRIRA”), govern their petition for review. See Gonzalez-Oropeza v.
United States Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003) (per curiam).

                                                 9
factual determinations under the highly deferential substantial evidence test. Under

this test, we “must affirm the [IJ’s] decision if it is ‘supported by reasonable,

substantial, and probative evidence on the record considered as a whole,’” Al

Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (citation omitted), and

we can reverse the IJ’s decision “only if the evidence ‘compels’ a reasonable fact

finder to find otherwise.” Sepulveda, 401 F.3d at 1230 (citation omitted). To the

extent that the IJ’s ruling is based on the interpretation of applicable statutes, we

review de novo. Mazariegos v. United States Att’y Gen., 241 F.3d 1320, 1324

(11th Cir. 2001).

A.    Jurisdiction over the Petitioners’ Asylum Claim

       Generally, an alien must file an application for asylum within one year of

his arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The IJ may

nevertheless consider an untimely asylum application “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 . . . .”

§ 1158(a)(2)(D). A court may review a final order of removal only if the alien has




                                           10
exhausted all administrative remedies available to the alien as of right.6 8 U.S.C. §

1252 (d)(1).

       In this case, the petitioners failed to raise before the BIA their argument that

their failure to file a timely asylum application should be excused. Accordingly,

the petitioners have failed to exhaust their administrative remedies, and we lack

jurisdiction to hear their argument. § 1252(d)(1). We therefore dismiss the

petition as to the petitioners’ asylum claim.

B.     Withholding of Removal

       To obtain withholding of removal, an alien must “establish that his or her

       6
          The INA provides that “[n]o court shall have jurisdiction to review any determination of
the Attorney General under paragraph (2)” of 8 U.S.C. § 1158(a). § 1158(a)(3). We have recognized
that, pursuant to this section,“the Attorney General’s decision regarding whether an alien complied
with the one-year time limit or established extraordinary circumstances, such that the time limit
should be waived, is not reviewable by any court.” Fahim v. United States Att’y Gen., 278 F.3d
1216, 1218 (11th Cir. 2002) (per curiam).
        Effective 11 May 2005, the REAL ID Act amended portions of 8 U.S.C. § 1252. The REAL
ID Act states, in relevant part:
        (a) IN GENERAL. – Section 242 of the Immigration and Nationality Act (8 U.S.C.
        1252) is amended--
        (1) in subsection (a)--
        ...
        (iii) by adding at the end the following:
        (D) JUDICIAL REVIEW OF CERTAIN LEGAL CLAIMS.--Nothing in
        subparagraph (B) or (C), or in any other provision of this Act (other than this section)
        which limits or eliminates judicial review, shall be construed as precluding review
        of constitutional claims or questions of law raised upon a petition for review filed
        with an appropriate court of appeals in accordance with this section.”
REAL ID Act of 2005, Pub. L. No. 109-13, § 106(a), 119 Stat. 231, 310 (2005). Section 106(a) of
the REAL ID Act may put the continued viability of Fahim and similar cases into question.
However, we need not address this issue here because we dismiss on other grounds the petitioners’
petition as to his asylum claim.

                                               11
life or freedom would be threatened in the proposed country of removal on

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

political opinion.” 8 C.F.R. § 208.16(b). If it is determined that the alien suffered

past persecution in his native country on account of his political opinion, we

presume that his life or freedom would be threatened in the future if he were

removed to his country of origin. § 208.16(b)(1)(i). However, an alien who has

not suffered past persecution still may establish a future threat to his life or

freedom if he can “establish that it is more likely than not that he . . . would be

persecuted on account of race, religion, nationality, membership in a particular

social group, or political opinion upon removal to that country,” and that the threat

cannot be reasonably avoided by relocation within the home country. §

208.16(b)(2).

      Although the INA does not explicitly define “persecution,” we have

recognized that “[n]ot all exceptional treatment is persecution,” Gonzalez v. Reno,

212 F.3d 1338, 1355 (11th Cir. 2000), that “persecution . . . requir[es] more than a

few isolated incidents of verbal harassment or intimidation,” and that “[m]ere

harassment does not amount to persecution.” Sepulveda, 401 F.3d at 1231

(internal quotations omitted). As a general rule, “behavior . . . must threaten

death, imprisonment, or the infliction of substantial harm or suffering” in order to

                                          12
qualify. Sharif v. INS, 87 F.3d 932, 935 (7th Cir. 1996); see Nelson v. INS, 232

F.3d 258, 263 (1st Cir. 2000) (persecution “must rise above unpleasantness,

harassment, and even basic suffering”). “Threats alone generally do not constitute

actual persecution; only rarely, when they are so immediate and menacing as to

cause significant suffering or harm in themselves, do threats per se qualify as

persecution.” Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003); see also

Sepulveda, 401 F.3d at 1232 (menacing telephone calls and threats did not

constitute past persecution). The well-founded fear inquiry requires the alien to

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

objectively reasonable.” Sepulveda, 401 F.3d at 1231.

      In this case, we conclude that substantial evidence supports the IJ’s finding

that the petitioners did not suffer past persecution. The FARC’s threats, consisting

of a total of nine threatening phone calls, while upsetting, does not constitute

persecution. See Sepulveda, 401 F.3d at 1232. Additionally, we hold that

substantial evidence supports the IJ’s finding that the petitioners did not have a

well-founded fear of future persecution because they failed to meet their burden of

establishing that it would be more likely than not that their lives or freedoms

would suffer on account of any of the enumerated grounds. The petitioners failed

to demonstrate that their fear of persecution is subjectively genuine and

                                         13
objectively reasonable. If the FARC had wanted to kidnap or kill Morales, they

could have easily done so at the 6 February 1998 Liberal Party meeting that they

interrupted; however, the FARC chose to release Morales unharmed.

Additionally, the petitioners did not flee immediately after Morales received a

threatening phone call upon his return in March 1999, but instead, took two

months to sell all their belongings before coming to the United States. Because

substantial evidence supports the BIA’s conclusion, we deny the petition for

review as to the petitioners’ claim for withholding of removal.

                              III. CONCLUSION

      Because we lack jurisdiction to hear the petitioners’ challenge as to the IJ’s

denial of their asylum claim as untimely, and because substantial evidence

supports the BIA’s conclusion as to the denial of their withholding of removal

claim, we DISMISS the PETITION IN PART and DENY the PETITION IN

PART.




                                         14
