                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-2798
                                  ___________

Gloria Bernal-Rendon, et al.,          *
                                       *
            Petitioners,               *
                                       * Petition for Review of an Order
      v.                               * of the Board of Immigration Appeals.
                                       *
Alberto R. Gonzales,                   *
United States Attorney General,        *
                                       *
            Respondent.                *
                                  ___________

                            Submitted: June 22, 2005
                               Filed: August 23, 2005
                                ___________

Before MURPHY, BYE, and SMITH, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

       Gloria Bernal-Rendon, her husband Jairo Rios-Giraldo, and her two daughters
(petitioners) appeal from a decision of the Board of Immigration Appeals (BIA). The
BIA affirmed and adopted the decision of the immigration judge (IJ), denying
petitioners' asylum claim, request for withholding of removal, and request for
protection under the Convention Against Torture (CAT), but granted petitioners
voluntary departure. Petitioners seek reversal and remand of the BIA's decision. We
affirm.
                                  I. Background
      Petitioners are citizens of Colombia who resided in the city of Armenia,
Colombia. Petitioners entered the United States as visitors and overstayed their
departure date. They were arrested by the former Immigration and Naturalization
Service and charged with being subject to removal under 8 U.S.C. § 1227(a)(1)(B)
(2000) (staying beyond a departure date). Additionally, Bernal-Rendon and Rios-
Giraldo were charged with removal under 8 U.S.C. § 1227(a)(1)(C)(i) (failing to
maintain or comply with the conditions of a person's non-immigrant status).

       Petitioners applied for asylum, withholding of removal, protection under CAT,
or in the alternative, voluntary departure. Petitioners fear that if they return to
Colombia, they would be targeted for persecution by the Fuerzas Armadas
Revelutionarios de Colombia-Ejercito Popular (FARC). Bernal-Rendon claims that
petitioners were targeted because of her imputed political opinion and/or her
membership in a social group consisting of her family.

       At a hearing before an IJ, Bernal-Rendon testified that her sister, Maribel
Bernal-Rendon, a government engineer, was kidnapped, held for three days, and
interrogated by the FARC. The interrogation included questions about the daily
movements of Bernal-Rendon's family, including their residence, work location, and
where the daughters went to school. Prior to Maribel Bernal-Rendon's kidnapping,
another government engineer disappeared.

      Bernal-Rendon testified that four months after her sister was kidnapped, a
female from FARC controlled territory arrived unsolicited at petitioners's house
seeking employment. Bernal-Rendon employed her as a maid. Maribel Bernal-
Rendon warned Bernal-Rendon that the maid could be a FARC spy. Later, Bernal-
Rendon fired this woman for offering to take her daughters to the park, the
supermarket, or for a walk. The maid also asked on several occasions whether Bernal-



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Rendon thought she might kidnap her daughters. Following the firing, Bernal-Rendon
and her husband received several threatening anonymous telephone calls. The callers
indicated that they knew Maribel Bernal-Rendon worked for the government, that
Bernal-Rendon's family "[has] enough money," and that at any time she could
"receive some scare . . . with regard to [her] daughters." Bernal-Rendon and Rios-
Giraldo did not report the telephone calls, change their telephone number, or hire a
security guard. Bernal-Rendon claimed that they lived in a secure area.

       Bernal-Rendon also testified that her daughters were driven to school by Rios-
Giraldo and picked up for lunch. Bernal-Rendon stated that she did not go into the
streets very often because of fear for her daughters. Petitioners received no other
threats than the telephone calls. Bernal-Rendon's mother, father, and one sister still
live in Armenia, Colombia. Her two other siblings live in Florencia, Colombia.

       Bernal-Rendon submitted an affidavit executed by Maribel Bernal-Rendon,
stating that Maribel Bernal-Rendon was an engineer, that several co-workers were
kidnapped by FARC, held for three days and released, and that she was briefly
kidnapped by FARC. She stated that her husband was briefly taken by FARC, but
soon returned. The affidavit also indicated that Maribel Bernal-Rendon was
concerned about the security of her family when Bernal-Rendon hired a maid who
appeared to be a FARC spy. Maribel Bernal-Rendon also indicated that she received
frequent blackmail telephone calls that she reported to the authorities.

                                    II. Discussion
      We review questions of law de novo and accord substantial deference to the
BIA's interpretation of immigration law and agency regulations. Tang v. INS, 223
F.3d 713, 718–19 (8th Cir. 2000); Ikenokwalu-White v. INS, 316 F.3d 798, 804 (8th
Cir. 2003) (holding that the BIA's interpretation of immigration law is entitled to
deference). We review an IJ's fact determinations under the substantial evidence test.
Melecio-Saquil v. Ashcroft, 337 F.3d 983, 986–87 (8th Cir. 2003); Perinpanathan v.


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INS, 310 F.3d 594, 597 (8th Cir. 2002). Under that test, we will affirm if the IJ's
decision is supported by reasonable, substantial, and probative evidence. Melecio-
Saquil, 337 F.3d at 986–97; Perinpanathan, 310 F.3d at 597. We will reverse only
if the petitioner demonstrates that the evidence is so compelling that no reasonable
factfinder could fail to find in favor of the petitioner. Melecio-Saquil, 337 F.3d at
986; Perinpanathan, 310 F.3d at 597. Where the BIA adopts and affirms the IJ's
opinion, we review the IJ's decision directly. Loulou v. Ashcroft, 354 F.3d 706, 708
(8th Cir. 2003); Hassanein v. Ashcroft, 380 F.3d 324, 327–28 (8th Cir. 2004).

                                      A. Asylum
       Petitioners contend that we should review their asylum claim because they
subjectively and objectively demonstrated a well found fear of persecution upon
return to Columbia. Asylum applicants must demonstrate by clear and convincing
evidence that they filed an application within one year of arrival in the United States.
8 U.S.C. § 1158(a)(2)(B). Petitioners failed to do this. There are exceptions to this
rule, see 8 U.S.C. § 1158(a)(2)(D) (changed circumstances materially affecting an
applicant's eligibility of asylum or extraordinary circumstances relating to the filing
delay), but the petitioners have not raised them. Consequently, we lack jurisdiction
to review the IJ's decision. 8 U.S.C. § 1158(a)(3) ("No court shall have jurisdiction
to review any determination of the Attorney General" regarding the timeliness of an
asylum application); Ismailov v. Reno, 263 F.3d 851, 855 (8th Cir. 2001) (finding §
1158(a)(3) to be an absolute bar to judicial review).

       Relying on El Himri v. Ashcroft, 378 F.3d 932 (9th Cir. 2004), petitioners
argue that the IJ erred in denying their minor daughter's application for asylum. In El
Himri, the Ninth Circuit agreed with the IJ that the one-year filing requirement does
not apply to minors. We have declined to adopt the Ninth Circuit's position. See
Begna v. Ashcroft, 392 F.3d 301, 303 (8th Cir. 2004); Ismailov, 263 F.3d at 855.




                                          -4-
                             B. Withholding of Removal
       An alien who shows there is a clear probability that her "life, or freedom would
be threatened in [her] country because of [her] race, religion, nationality, membership
in a particular social group or political opinion," is eligible for withholding of
removal. 8 U.S.C. § 1231(b)(3)(A)(1999); Ngure v. Ashcroft, 367 F.3d 975, 989 (8th
Cir. 2004). The alien "must establish that it is more likely than not that [she] will
suffer persecution." Id.

       Petitioners contend that they are "members of a family that has suffered
persecution at the hands of the guerillas who are everywhere." However, petitioners's
evidence does not meet the high standard of being "so compelling that no reasonable
factfinder could fail to find" in their favor. Hassan v. Ashcroft, 388 F.3d 661, 666 (8th
Cir. 2004). Petitioners rely heavily upon Maribel Bernal-Rendon's kidnapping.
However, the evidence does not show that Maribel Bernal-Rendon's kidnapping made
persecution of Bernal-Rendon more likely. Rather, the kidnapping appeared to be
connected to Maribel Bernal-Rendon's specific government employment. Further,
although petitioners claim a threat based on their political opinion, they fail to discuss
their political opinion or indicate how it differs from FARC.

        While petitioners correctly contend that a nuclear family can constitute a social
group, Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993) ("There can, in fact, be
no plainer example of a social group based on common, identifiable and immutable
characteristics than that of the nuclear family."); see also Sanchez-Trujillo v. INS, 801
F.2d 1571, 1576 (9th Cir. 1986) (the prototype of a social group would consist of "the
immediate members of a certain family"), petitioners fail to prove that a specific
threat exists to their family as a social group. Moreover, petitioners's extended family
still lives without incident in the cities of Armenia and Florencia, Columbia. An
alien's fear of persecution is reduced when her family remains unharmed in her native
country. In re A-E-M, 21 I&N Dec. 1157 (BIA 1998).



                                           -5-
Petitioners cannot show that there is a clear probability that their lives would be
threatened based on membership in a social group or political opinion.

                                        C. CAT
       Under CAT, an alien must show that "it is more likely than not that [she] would
be tortured if returned to the proposed country of removal." Ngure, 367 F.3d at 992
(citing Perinpanathan, 310 F.3d at 599); 8 C.F.R. § 208.16(c)(2). In determining
eligibility under CAT, "all evidence relevant to the possibility of future torture should
be considered, including but not limited to: past torture inflicted upon the applicant;
the applicant's ability to relocate to another area of the country where torture is
unlikely; and gross, flagrant, or mass violations of human rights." Ngure, 367 F.3d
at 992; 8 C.F.R. § 208.16(c)(3). To sustain a CAT claim, petitioners must show that
the government of Colombia is the agent of torture. See In re S-V-, 22 I&N Dec. 1306
(BIA 2000) (holding that third party actors are not covered by CAT). Petitioners
failed to make such a showing as the claimed fear of torture was from FARC, not
from the government of Colombia.

                                 III. Conclusion
      For the foregoing reasons we affirm the decision of the BIA.
                      ______________________________




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