          United States Court of Appeals
                      For the First Circuit


No. 05-2134

                      BERTHA TOLOZA-JIMÉNEZ,

                           Petitioner,

                                v.

                       ALBERTO R. GONZÁLES,
                 UNITED STATES ATTORNEY GENERAL,

                           Respondent.



              ON PETITION FOR REVIEW OF AN ORDER OF
                 THE BOARD OF IMMIGRATION APPEALS


                              Before

                   Torruella, Lynch, and Lipez,
                          Circuit Judges.



     Gregory M. Sullivan, on brief for petitioner.
     Thomas L. Holzman, Special Attorney, U.S. Department of
Justice, Civil Division, Office of Immigration Litigation, Peter D.
Keisler, Assistant Attorney General, Civil Division, and Greg D.
Mack, Senior Litigation Counsel, on brief for respondent.



                         August 11, 2006
            TORRUELLA, Circuit Judge.                Petitioner Bertha Toloza-

Jiménez ("Toloza") asks us to review the Board of Immigration

Appeals' ("BIA") denial of her application for asylum, withholding

of   removal,   and   relief     under    the       Convention   Against   Torture

("CAT").    After careful review, we affirm the decision of the BIA

and deny the petition for review.

                                 I.   Background

            Toloza is a native and citizen of Colombia who entered

the United States at Miami, Florida on July 6, 2002 as a non-

immigrant with authorization to remain in the United States until

January 5, 2003.      Her husband and son, both natives and citizens of

Colombia, had previously been admitted into the United States on

tourist visas.     All three overstayed.

            On January 9, 2003, Toloza filed an application for

asylum, withholding of removal, and relief under the Convention

Against Torture ("CAT"). In her application for asylum, Toloza

alleged that in 1975, she lived with her husband and daughter in

the Aranjuez ward in Medellín, Colombia.1                   According to Toloza,

some members of the Escobar crime family sexually harassed her

daughter, threatened to kill Toloza if she reported them to the

police, and forced her to hide weapons for them.                 In 1979, Toloza

purchased   a   farm.      She    stated       in    her   application   that   the



1
   Toloza's daughter is currently living in the United States and
was not included in the application for asylum.

                                         -2-
Revolutionary Armed Forces of Colombia ("FARC"), a guerilla group,

took possession of the farm in 1985 to use as a military base. In

1986, Toloza and her family moved to the San Cristóbal ward in

Medellín because of threats from the Escobar crime family.2     At

this new location, Toloza's husband, who owned a repair shop, was

allegedly forced to contribute money to the FARC. In one instance,

Toloza claimed that the FARC stopped her and her husband at a

checkpoint and forced them to transport FARC members in their

truck.   In 1989, Toloza purchased another farm where she allegedly

offered assistance to victims of the civil war.

           The asylum officer found that the alleged harm did not

rise to the level of persecution on the basis of any of the

statutory grounds3 and that Toloza had failed to establish a well-

founded fear of future persecution.    The asylum officer referred

the matter to an Immigration Judge ("IJ").

           On January 28, 2003, the Immigration and Naturalization

Service ("INS")4 served Notices to Appear charging that Toloza, her


2
  Toloza does not allege any connections between the Escobar crime
family and the FARC guerillas.
3
    The five protected characteristics are "race, religion,
nationality, membership in a particular social group, [and]
political opinion." 8 U.S.C. § 1158(b)(1)(B)(i).
4
   In March 2003, all of the relevant functions of the INS were
transferred to the new Department of Homeland Security, where they
were reorganized as the Bureau of Immigration and Customs
Enforcement ("BICE"). See Homeland Security Act of 2002, Pub. L.
No. 107-296, § 471, 116 Stat. 2135, 2205 (codified as amended at 6
U.S.C. § 291(a)). Throughout the opinion we will refer to the

                                -3-
husband, and her son were subject to removal for overstaying their

visas pursuant to section 237(a)(1)(B) of the Immigration and

Nationality Act ("INA"),   8 U.S.C. § 1227(a)(1)(B).

          On March 9, 2003, a hearing was held before an IJ.          At

the hearing, Toloza, her husband, and her son admitted the factual

allegations in the Notice to Appear, conceded removability, and

asked for asylum, withholding of removal, relief under the CAT, and

voluntary departure in the alternative.      Toloza then testified in

support of her application.5

          She testified that she had visited the United States on

two previous occasions, in 1996 and 2001, before requesting asylum.

Toloza stated that the FARC threatened and persecuted her and her

family because she was a member of the Liberal Party.                She

testified that the FARC threatened her in March 2002 ("the March

2002 incident"),6 that the FARC regularly extorted money from her

husband, and that she was stopped at a FARC checkpoint and forced

to transport guerilla troops in 1999.

          On   cross-examination,   Toloza   admitted   that   she   had

omitted the March 2002 incident from her application for asylum.

When asked to explain this omission, Toloza first intimated that


agency as the INS.
5
   Toloza was the only applicant who testified at the hearing.
Therefore, she is considered the lead petitioner.
6
  Toloza initially could remember neither the month when the event
occurred, nor how many FARC members threatened her.

                                -4-
she had forgotten about the incident, then stated that she had

remembered the incident but did not include it in the application.

Toloza also stated that the only incident that she mentioned at the

interview    at the asylum office was the 1999 checkpoint incident.7

María Mahia ("Mahia")8, a friend of Toloza's from Colombia, also

testified for her.          Mahia stated that Toloza had told her of the

problems with the guerillas. However, Mahia did not witness any of

the harms alleged by Toloza.

            The    IJ    found     that    Toloza's       testimony   was   "general,

meager, weak, and superficial."              More specifically, the IJ found

that the testimony about the March 2002 incident was not credible.

The   IJ   based   his    finding     on    the    fact     that   Toloza   initially

remembered neither the month when the event happened nor how many

FARC members threatened her, and that she did not include the March

2002 incident in her asylum application or mention it in her

interview with the asylum officer.                In the light of the fact that

the March 2002 incident purportedly "precipitated the [Toloza's]

flight to the United States," the IJ noted that Toloza's meager

testimony was "disingenuous at best."                 Further, the IJ found that

the 1985 incident had no connection to her present situation

because    she    visited    the    United       States    twice   after    the   event



7
   The asylum officer's Assessment to Refer does not mention the
March 2002 incident.
8
    Mahia has political refugee status in the United States.

                                           -5-
occurred     and    each   time   she   returned    to   her   country,   thus

demonstrating that she did not fear persecution.                 The IJ also

concluded that the alleged harm experienced by Toloza was caused by

"pervasive criminality" in her country and not by persecution on

account of "race, religion, nationality, membership in a particular

social group, or political opinion."               Therefore the IJ denied

Toloza's claims for asylum, withholding for removal, and relief

under CAT.    The IJ also concluded that Toloza was not eligible for

voluntary departure, but that her husband and her son were.

             Toloza appealed the IJ's decision to the BIA. On July 8,

2005, the BIA rendered a decision affirming the order of the IJ.

Toloza now petitions for review of this decision.9

                                  II.   Analysis

             A.    Standard of Review

             In reviewing BIA decisions, we give substantial deference

to its findings of fact, which include credibility determinations.

Nikijuluw v. Gonzáles, 427 F.3d 115, 120 (1st Cir. 2005); Bocova v.

Gonzáles, 412 F.3d 257, 262 (1st Cir. 2005); Da Silva v. Ashcroft,

394 F.3d 1, 4 (1st Cir. 2005).          We will uphold the BIA's findings

of fact if they are "supported by reasonable, substantial, and

probative evidence on the record considered as a whole." INS v.


9
   Toloza did not make any argument about CAT relief in her brief.
Because an argument not raised in an appellate brief is deemed
waived, see Mediouni v. INS, 314 F.3d 24, 28 n.5 (1st Cir. 2002),
we find that Toloza has waived any argument for relief under the
CAT.

                                        -6-
Elías-Zacarías, 502 U.S. 478, 481 (1992) (citation and internal

quotation marks omitted). The BIA decision can be reversed only if

the evidence presented by the asylum seeker is such as would compel

a reasonable trier of fact to make a contrary determination.          Id.;

see also   Aguilar-Solís v. INS, 168 F.3d 565, 569 (1st Cir. 1999).

Nonetheless, "credibility findings resting on analysis of testimony

rather than on demeanor may deserve less than usual deference."

Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st Cir. 1994) (citation

and internal quotation marks omitted).         The BIA's rulings of law

are reviewed under a de novo standard.        Da Silva, 394 F.3d at 5.

           B.   Asylum

           Under the INA, the Attorney General or the Secretary of

Homeland Security may grant asylum to a "refugee." 8 U.S.C. § 1158

(b)(1)(A).      The asylum applicant has the burden of proof to

establish that she is a "refugee."         Id. § 1158(b)(1)(B)(i).      Her

testimony must be credible, persuasive, and refer to specific

facts.   Id. § 1158(b)(1)(B)(ii).       A "refugee" refers to any person

who is unable or unwilling to return to her country of residence

"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."          Id. § 1101(a)(42)(A).      By

establishing     past    persecution,    an   applicant   establishes     a

rebuttable presumption of a well-founded fear of persecution.             8

C.F.R. § 208.13(b)(1).      We have previously held that "persecution


                                   -7-
requires that the totality of a petitioner's experiences add up to

more than mere discomfiture, unpleasantness, harassment, or unfair

treatment."        Nikijuluw, 427 F.3d at 120.             We analyze the adverse

credibility determination, together with Toloza's claims of past

persecution and a well-founded fear of persecution.

                      1.     Credibility

             In her brief, Toloza does not challenge the adverse

credibility determination.             She has therefore waived any argument

on this issue.       See Mediouni v. INS, 314 F.3d 24, 28 n.5 (1st Cir.

2002).

                      2.     Past Persecution

             The     adverse     credibility        determination      disposes     of

Toloza's claim of past persecution.                See Olujoke v. Gonzáles, 411

F.3d   16,   22     (1st     Cir.     2005)    ("[A]   fully      supported    adverse

credibility determination, without more, can sustain a denial of

asylum."); cf. 8 U.S.C. § 1158(b)(1)(B).                  Even assuming Toloza was

credible, she failed to establish past persecution for two reasons.

             First,     persecution           is   more    than    "unpleasantness,

harassment, and even basic suffering."                    Nelson v. INS, 232 F.3d

258, 263 (1st Cir. 2000).             Even assuming that Toloza was credible,

none of the incidents described by Toloza rises to the level of

persecution. See id. at 264 (finding no persecution where the

asylum   applicant         testified     about     three    episodes    of    solitary

confinement    of     less     than    72     hours,   physical     abuse,    periodic


                                            -8-
surveillance, threatening phone calls, and occasional stops and

searches).

           Second, persecution must be motivated by one of five

statutory grounds: "race, religion, nationality, membership in a

particular social group, or political opinion."         8 U.S.C. § 1158

(b)(1)(B)(i).   Although Toloza alleges that she is a member of the

Liberal Party, encouraged her fellow citizens to vote for the

"democratic parties," and provided assistance to orphans and drug

addicts, she fails to establish any connection between these

activities and the alleged persecution. Therefore, the record does

not compel us to overturn the IJ's finding that the harm allegedly

experienced by Toloza was not politically motivated.

           Because she failed to show that her experiences rise to

the level of persecution, and because she could not provide a

causal   connection    between   these   experiences   and   any   of   the

statutory grounds for persecution, we find that Toloza, even if

credible, cannot establish past persecution.

                  3.    Future Persecution

           An alien can show her eligibility for asylum not only by

demonstrating past persecution but also by demonstrating a "well-

founded fear of persecution."     Id. § 1101(a)(42)(A).      The test for

a well-founded fear of persecution has both a subjective component

and an objective one.      Nikijuluw, 427 F.3d at 121.       In order to

show a well-founded fear of persecution, "an applicant must not


                                   -9-
only harbor a genuine fear of future persecution, but also must

establish an objectively reasonable basis for that fear."            Laurent

v. Ashcroft, 359 F.3d 59, 65 (1st Cir. 2004).

            Toloza failed to satisfy the subjective component because

she could not show that she has a genuine fear of persecution.

First,    she   was   found   not    credible   regarding   the   March   2002

incident. Second, she traveled twice to the United States, in 1996

and 2001, and yet she returned to Colombia each time, strongly

indicating that she has no fear of persecution.             In the light of

this consideration, we affirm the BIA's finding that Toloza did not

establish a well-founded fear of persecution.

            Because she could show neither past persecution, nor a

well-founded fear of persecution, Toloza is not eligible for

asylum.10

                              III.    Conclusion

            For the reasons stated above, the petition for review is

denied.

            DENIED.



10
   Having failed to establish eligibility for asylum, Toloza cannot
meet the standard for withholding of removal. In order to be
eligible for withholding of removal to a country, the applicant
must "establish that it is more likely than not that he or she
would be persecuted on account of race, religion, nationality,
membership in a particular social group, or political opinion upon
removal to that country." 8 C.F.R. § 1208.16(b)(2). This standard
is more stringent than the standard for asylum.       See Afful v.
Ashcroft, 380 F.3d 1, 6 (1st Cir. 2004). Therefore, we find that
Toloza failed to establish eligibility for withholding of removal.

                                      -10-
