                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                               Nov. 17, 2009
                            No. 09-11496                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                        Agency No. A070-089-825

PRUDENCIO RUILEMO CAMPOSECO GUILLEN,


                                                                     Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                      ________________________

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

                           (November 17, 2009)

Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
      Petitioner Prudencio Ruilemo Camposeco Guillen, a native and citizen of

Guatemala, through counsel, seeks review of the decision of the Board of

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

finding him removable and denying his application for asylum, withholding of

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

United Nations Convention Against Torture and Other Cruel, Inhuman and

Degrading Treatment or Punishment (“CAT”), INA §§ 208, 241, 8 U.S.C. §§ 1158,

1231; 8 C.F.R. § 208.16(c).

      In his petition, Camposeco Guillen argues that the IJ erred in denying him

asylum relief and withholding of removal because he experienced past persecution

and established a well-founded fear of future persecution. He further argues that

the IJ erred in denying him CAT relief because it is more likely than not that he

will be tortured if he returns to Guatemala.

      When the BIA issues a decision, we review only that decision, except to the

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

F.3d 1262, 1284 (11th Cir. 2001). Because the BIA agreed with the IJ’s findings

as to Camposeco Guillen’s eligibility for asylum, withholding of removal, and

relief under CAT, and made additional observations, we will review both

decisions.



                                          2
      The IJ’s and BIA’s factual determinations are reviewed under the substantial

evidence test, and we should “affirm the [IJ's] decision if it is supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.” Forgue v. United States Attorney Gen., 401 F.3d 1282, 1286 (11th Cir.

2005) (internal quotation marks omitted). The substantial evidence test is

“deferential” and does not allow “re-weigh[ing] the evidence from scratch.”

Mazariegos v. United States Attorney Gen., 241 F.3d 1320, 1323 (11th Cir. 2001)

(citing Lorisme v. I.N.S., 129 F.3d 1441, 1444–45 (11th Cir. 1997)). “To reverse

the IJ’s fact findings, we must find that the record not only supports reversal, but

compels it.” Mendoza v. United States Attorney Gen., 327 F.3d 1283, 1287 (11th

Cir. 2003) (considering withholding-of-removal claim). The fact that evidence in

the record may also support a conclusion contrary to the administrative findings is

not enough to justify a reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th

Cir. 2004).

                                      A. Asylum

      An alien who arrives in or is present in the United States may apply for

asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General or

Secretary of the DHS has discretion to grant asylum if the alien meets the INA’s

definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is

defined in the INA as
                                           3
      any person who is outside any country of such person’s nationality . . .
      and who is unable or unwilling to return to, and is unable or unwilling
      to avail himself or herself of the protection of, that country because of
      persecution or a well-founded fear of persecution on account of race,
      religion, nationality, membership in a particular social group, or
      political opinion.

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the

burden of proving statutory “refugee” status. Al Najjar, 257 F.3d at 1284. To

establish asylum eligibility, the alien must, with specific and credible evidence,

establish (1) past persecution on account of a statutorily listed factor, or (2) a

“well-founded fear” that the statutorily listed factor will cause such future

persecution. 8 C.F.R. § 208.13(a), (b); see Al Najjar, 257 F.3d at 1287.

“Demonstrating such a connection requires the alien to present specific, detailed

facts showing a good reason to fear that he or she will be singled out for

persecution on account of [a statutory factor].” Al Najjar, 257 F.3d at 1287

(internal quotation marks omitted). A refusal to take sides or fight with a political

faction does not constitute an “affirmative expression of a political opinion” for

purposes of establishing that a petitioner has been persecuted or has a well-founded

fear of persecution because of a political opinion. I.N.S. v. Elias-Zacarias, 502

U.S. 478, 483, 112 S.Ct. 812, 816, 117 L.Ed.2d 38 (1992).

      If the alien establishes past persecution, it is presumed that her life or

freedom would be threatened upon a return to that country unless the government

                                            4
shows by a preponderance of the evidence that the country’s conditions have

changed such that the applicant’s life or freedom would no longer be threatened

upon his removal or that the alien could relocate within the country and it would be

reasonable to expect him to do so. 8 C.F.R. § 208.13(b)(1). An alien who has not

shown past persecution may still be entitled to asylum or withholding of removal if

he can demonstrate a future threat in his country to his life or freedom based on a

protected ground. 8 C.F.R. § 208.13(b)(2). To establish a well-founded fear, “an

applicant must demonstrate that his or her fear of persecution is subjectively

genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289.

      We recognize that “‘persecution’ is an ‘extreme concept,’ requiring ‘more

than a few isolated incidents of verbal harassment or intimidation,’ and that

‘[m]ere harassment does not amount to persecution.’” Sepulveda v. United States

Attorney Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (quoting Gonzalez v. Reno,

212 F.3d 1338, 1355 (11th Cir. 2000)). In Sepulveda, we held that menacing

telephone calls and threats to the alien, her family members, and colleagues did not

rise to the level of past persecution. Id. “In assessing past persecution we are

required to consider the cumulative impact of the mistreatment the petitioners

suffered.” Mejia v. United States Attorney Gen., 498 F.3d 1253, 1258 (11th Cir.

2007) (emphasis added).



                                          5
       We conclude from the record that substantial evidence supports the IJ’s and

BIA’s findings that Camposeco Guillen did not suffer past persecution because he

was never physically harmed, and the verbal threats he received did not constitute

persecution. Further, the BIA’s conclusion that Camposeco Guillen failed to

establish a nexus between the feared harm and a protected ground is supported by

substantial evidence. The guerrillas threatened him because he would not join their

cause, not because of a protected political opinion. See Elias-Zacarias, 502 U.S. at

483, 112 S.Ct. at 816. Further, Camposeco Guillen was not the target of any

alleged persecution that was directed at his father because of his father’s religious

activity.

       As Camposeco Guillen has not established past persecution, he is not

entitled to a presumption of a well-founded fear of future persecution. In addition,

the record shows that even if Camposeco Guillen’s testimony was true, after the

regime change, his parents and seven siblings have remained in Guatemala

unharmed.

                            B. Withholding of Removal

       To qualify for withholding of removal under the INA, an alien must show

that his or 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), 8 U.S.C. § 1231(b)(3). Because the standard for establishing
                                           6
eligibility for asylum is less stringent than the standard for withholding of removal,

an alien’s withholding of removal claim must fail if his asylum claim fails on the

merits. See Zheng v. United States Attorney Gen., 451 F.3d 1287, 1292 (11th Cir.

2006).

         We conclude from the record that Camposeco Guillen failed to carry his

burden of establishing past persecution or a well-founded fear of future

persecution, which precludes him from being granted asylum. The BIA and IJ

properly found that he likewise could not satisfy the greater “more-likely-than-not”

burden applicable to requests for withholding of removal.

                                      C. CAT Relief

         To be entitled to relief under the CAT, 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). “Torture” is defined as

               any act by which severe pain or suffering, whether
               physical or mental, is intentionally inflicted on a person
               for such purposes as obtaining from him or her or a third
               person information or a confession, punishing him or her
               for an act he or she or a third person has committed or is
               suspected of having committed, or intimidating or
               coercing him or her or a third person, or for any reason
               based on discrimination of any kind, when such pain or
               suffering is inflicted by or at the instigation of or with the
               consent or acquiescence of a public official or other
               person acting in an official capacity.



                                             7
8 C.F.R. § 208.18(a)(1). The burden of proof for an applicant seeking relief under

the CAT, like that for an applicant seeking withholding of removal under the INA,

“is higher than the burden imposed on an asylum applicant.” Al Najjar, 257 F.3d

at 1303.

      We conclude from the record that substantial evidence supports the IJ’s and

BIA’s finding that Camposeco Guillen is not entitled to relief under CAT because

even if all his testimony were true, he has not established that it is more likely than

not that he would be tortured by or with the acquiescence of the government.

Accordingly, we deny Camposeco Guillen’s petition for review.

      PETITION DENIED.




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