                                                                   [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS
                                                                           FILED
                              FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                       U.S.
                               ________________________ ELEVENTH CIRCUIT
                                                                       AUG 18, 2011
                                      No. 10-10877                      JOHN LEY
                                  Non-Argument Calendar                   CLERK
                                ________________________

                                  Agency No. A097-663-376


MODUPE DELE WANGBOJE,

lllllllllllllllllllll                                                           Petitioner,

                                            versus

U.S. ATTORNEY GENERAL,

                                                             lllllllllllllllllllllRespondent.

                                ________________________

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

                                      (August 18, 2011)

Before HULL, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

         Modupe Dele Wangboje, a native and citizen of Nigeria, petitions for
review of the Board of Immigration Appeals’ (“BIA”) final order affirming the

Immigration Judge’s (“IJ”) denial of asylum pursuant to the Immigration and

Nationality Act (“INA”) § 208, 8 U.S.C. § 1158, withholding of removal under

INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief under the United Nations

Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment

or Punishment (“CAT”), 8 C.F.R. § 208.16(c). In her petition, Wangboje argues

that the BIA and IJ erred by denying her asylum application as untimely, as she

alleges that she established an exception to the one-year time limit. She also

argues that the BIA and IJ erred by denying her application for withholding of

removal and CAT relief. She contends that she demonstrated past persecution and

showed that she had a well-founded fear of future persecution.

                                          I.

      An asylum application must be “filed within 1 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). Nevertheless, 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). However,

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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).

      Because we lack jurisdiction to review the determination that an asylum

application is untimely, that portion of the instant petition seeking review of

Wangboje’s claim for asylum is dismissed. See INA § 208(a)(3), 8 U.S.C.

§ 1158(a)(3); see also Mendoza, 327 F.3d at 1287.

                                         II.

      Where the BIA issues a decision, we review that decision, except to the

extent that the BIA expressly adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA issued its own decision that did

not expressly adopt the opinion of the IJ, so we review only the BIA’s decision.

We review de novo conclusions of law by the BIA, but review findings of fact for

substantial evidence. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th

Cir. 2009). Under the substantial evidence test, we must affirm the BIA’s decision

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

considered as a whole.” Al Najjar, 257 F.3d at 1284.

      To qualify for withholding of removal, an alien must show that, if returned

                                          3
to her country, her life or freedom would be threatened on account of 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). An applicant for withholding of

removal may satisfy this burden of proof by establishing either (1) past

persecution on account of a protected ground, or (2) demonstrating that it would

be more likely than not that she would be persecuted on account of a protected

ground were she removed. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir.

2006). A showing of past persecution gives rise to a rebuttable presumption that

the applicant’s life or freedom will be threatened upon return to her country. Id.

This presumption may be rebutted if the government shows that the conditions in

the country have changed or that the alien could avoid a future threat through

relocation within the country. Id.

      To be eligible for relief under the Convention Against Torture, an applicant

must “establish that it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.” 8 C.F.R. §§ 208.16(c)(2).

      Persecution is not defined in the INA, but it is “an extreme concept,”

requiring more than mere harassment. De Santamaria v. U.S. Att’y Gen., 525 F.3d

999, 1008 (11th Cir. 2008). In assessing persecution we consider all the evidence

of mistreatment as a whole, and are “required to consider the cumulative impact of

                                          4
the mistreatment the petitioner[ ] suffered.” Mejia v. U.S. Att’y. Gen., 498 F.3d

1253, 1258 (11th Cir. 2007). Mere threats do not constitute persecution. See Silva

v. U.S. Att’y Gen., 448 F.3d 1229, 1237 (11th Cir. 2006) (holding that a

“condolence note” and threatening phone calls, without more, were mere

harassment, rather than persecution).

      Substantial evidence supports the BIA’s conclusion that Wangboje did not

suffer past persecution. Looked at individually, none of the incidents alleged by

Wangboje constituted persecution on account of a protected ground. There is also

no indication that the BIA did not consider the totality of the circumstances in

evaluating Wangboje’s alleged persecution. Rather, the incidents suffered by

Wangboje, taken cumulatively, do not rise to the level at which we have found

persecution.

      Because Wangboje has not shown past persecution, she has not created a

presumption that her life or freedom will be threatened upon return to Nigeria.

See Tan, 446 F.3d at 1375. Wangboje has also not demonstrated directly either a

well-founded fear of persecution or that her life or freedom will be threatened

upon return to Nigeria. From the record, it seems clear that Wangboje could avoid

any potential persecution by relocating within Nigeria. See Mazariegos v. U.S.

Att’y Gen., 241 F.3d 1320, 1325-27 (11th Cir. 2001) (holding that a well-founded

                                          5
fear of persecution does not exist where a petitioner can safely relocate within a

country).

      Additionally, Wangboje presented no evidence that the Nigerian authorities

were unable or unwilling to protect her. She presented no evidence that she ever

informed the authorities of the crimes or threats committed against her, most

notably the attack that injured her leg. See id. at 1327 (holding that a failure to

contact law enforcement regarding alleged persecution supported a BIA finding

that an applicant did not face a threat of persecution). Because Wangboje never

contacted the authorities, she cannot convincingly argue that the government of

Nigeria was unable or unwilling to protect her.

      Because Wangboje failed to meet her burden of showing past persecution or

that it was more likely than not that she would be persecuted if removed, she does

not meet her burden of showing eligibility for withholding of removal. See Tan,

446 F.3d at 1375.

      Wangboje’s claim for CAT relief also fails. Because Wangboje failed to

establish a well-founded fear of persecution, she is not entitled to CAT relief. See

Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1201 (11th Cir. 2009) (providing that

“[i]f an alien cannot establish a well-founded fear of persecution, the alien also

cannot establish that it is more likely than not that he will be tortured based on a

                                           6
protected factor”).

      Upon review of the record and consideration of the parties’ briefs, we

dismiss her petition in part, and deny in part.

      PETITION DISMISSED in part, DENIED in part.




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