                                                  [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                            No. 08-11465                  ELEVENTH CIRCUIT
                                                          DECEMBER 31, 2008
                        Non-Argument Calendar
                                                           THOMAS K. KAHN
                      ________________________
                                                                CLERK

                        Agency Nos. A95-890-985,
                              A95-890-986

CESAR CELESTINO-CONTRERAS,
FRANCY ELENA CONTRERAS,
CESAR ANDRES CONTRERAS-YANEZ,
DIANA MELISSA CONTRERAS-YANEZ,

                                                                  Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                 Respondent.


                      ________________________

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

                            (December 31, 2008)

Before CARNES, WILSON, and PRYOR, Circuit Judges.

PER CURIAM:
       Cesar Celestino-Contreras, his wife, Francy Elena Contreras, and their

children, Cesar Contreras-Yanez and Diana Contreras-Yanez, appeal the Board of

Immigration Appeals’ judgment dismissing their appeal from the immigration

judge’s denial of their applications for asylum and withholding of removal under

the Immigration and Nationality Act, INA §§ 208, 241, 8 U.S.C. §§ 1158, 1231.1

Celestino-Contreras2 contends that the BIA erred when it affirmed the IJ’s

judgment because he presented enough evidence to establish: (1) changed

circumstances sufficient to waive the one-year filing requirement for an asylum

application; and (2) that he is entitled to withholding of removal because he has

shown that it is more likely than not he will be persecuted if he returns to

Colombia.

       Celestino-Contreras, Contreras, and their two children, are natives and

citizens of Colombia, and were admitted to the United States in March 2000 as



       1
         The IJ also denied relief under the Convention Against Torture. Because Celestino-
Contreras did not present any argument to the BIA or this Court for CAT relief, he has
abandoned that claim. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005) (holding that a party abandons an issue when it fails to offer any argument about that issue
on appeal).
       2
           In his initial application for asylum and withholding of removal, Celestino-Contreras
listed his wife and children as derivative applicants. Later, each family member submitted a
separate application that included a copy of Celestino-Contreras’ Application for Asylum and
Withholding of Removal (Form I-589). The BIA considered the claims of all four family
members in one judgment, identifying Celestino-Contreras as the “lead respondent.” Similarly,
in reviewing the BIA’s judgment as to all four respondents, for convenience we refer mostly to
Celestino-Contreras, unless context requires otherwise.

                                                2
nonimmigrant visitors with authorization to remain for six months. In January

2004, Celestino-Contreras filed an application for asylum and withholding of

removal under the INA, which stated that he feared returning to Colombia because

of his political opinion and membership in a particular social group. The asylum

officer referred the matter to an immigration judge. In July 2005 the Department

of Homeland Security issued Celestino-Contreras, his wife, and two children

notices to appear, charging them with removability under INA § 237(a)(1)(B), 8

U.S.C. § 1227(a)(1)(B), as aliens who remained in the United States for a longer

time than permitted. Celestino-Contreras, Contreras, and their two children

admitted the allegations in the notices to appear and conceded removability.

       During removal proceedings, both Celestino-Contreras and Contreras

testified. They explained that their fear of returning to Colombia stemmed from

Celestino-Contreras’ involvement with the Liberal Party. Celestino-Contreras was

politically active in Colombia for ten years, starting in 1990 when he began

working on his uncle’s senate campaign and ending in 2000 when he left Colombia

for the United States. During that time, Celestino-Contreras became concerned

that the 30th Front of the Revolutionary Armed Forces of Colombia3 would try to




       3
         The 30th Front is a division of the FARC that operates in the area surrounding
Celestino-Contreras’ hometown.

                                               3
harm him and his family. As a result, Celestino-Contreras, Contreras, and their

two children left for the United States.

      After the removal proceedings, the IJ determined that Celestino-Contreras

and his wife and children were ineligible for asylum because Celestino-Contreras

did not file his application for asylum within one year of the date he and his family

entered the United States. The IJ also determined that they had failed to establish a

basis for withholding of removal because the events Celestino-Contreras described

did not establish persecution. Celestino-Contreras appealed the IJ’s decision to the

BIA. The BIA dismissed the appeal, agreeing with the IJ that Celestino-Contreras

and his family were ineligible for asylum and that they had failed to demonstrate

eligibility for withholding of removal. Celestino-Contreras appeals that judgment.

                                           I.

      Members of the FARC began contacting Celestino-Contreras and other

members of his politically active family in 1992. In the first encounter, a man

identifying himself as commander of the 30th Front of the FARC called Celestino-

Contreras and told him to stop working in areas controlled by the FARC. At the

time, Celestino-Contreras was working on his uncle’s senate campaign, and his co-

workers had already received similar calls. Later that year, members of the FARC




                                           4
visited Celestino-Contreras’ parents at home and told them that their family should

stop all political activity if they wanted to live a “normal life.”

       Celestino-Contreras next heard from the FARC after his brother’s death in

1995. Celestino-Contreras’ brother, who worked on their uncle’s campaign as a

finance director, was shot and killed at his university. Shortly after that, the FARC

contacted Celestino-Contreras and told him that if he continued his political work

he would “have the same luck” as his brother. Celestino-Contreras “thought that

things would change” and continued to be politically active and participate in

community outreach work. A few years later the FARC kidnapped Celestino-

Contreras’ uncle, then a former senator, and held him for five months, prompting

his uncle to leave politics altogether. Celestino-Contreras continued his political

campaign work, in part for another uncle who was a city councilman. Later that

same year, Celestino-Contreras’ other brother was “torn apart, with a knife.” The

FARC left a note attached to the body claiming responsibility and warning that

such a death “would be the fate of all that did not work with them.”

       In 1999 while Celestino-Contreras was traveling with a political campaign,

his wife received a call from someone threatening to harm their children. The

caller told her that he knew who her children were and where they went to school,

and that Celestino-Contreras should stop working for a “senseless” cause. The



                                            5
caller told her that her husband would know who was calling because he had

received similar calls before. After that threat, Contreras, who already had a visa

to visit the United States because of a planned trip to Disneyland, went to the

United States and the children joined her shortly thereafter. They stayed in the

United States for about five months before returning to Colombia to “organize and

to gather money.” Back in Colombia, in early 2000, Contreras received a phone

call at work from a FARC member who again stated that he knew how to get to the

children.

      Around the same time, members of the FARC went to a political party

meeting attended by Celestino-Contreras. Five hooded men arrived, locked the

doors, put the attendees on the ground, and “gave [them] an ultimatum to give up

the struggle on behalf of [their] country.” They presented a condolence note sent

by their commander listing sixteen “departed” political leaders. Celestino-

Contreras’ name was on that list. The FARC members said that the list was their

commander’s way of showing how seriously he took the matter. After that

meeting, the attendees received multiple threatening phone calls and notes.

      Several months later three people in military uniforms went to Celestino-

Contreras’ workplace, identifying themselves as FARC members. They assaulted

and insulted him, and asked him if he wanted to live. They also told him that “this



                                          6
was the last chance.” Again, they followed up with phone calls. After that,

Celestino-Contreras, Contreras, and their two children fled to the United States.

       Celestino-Contreras’ uncle, the councilman, fled to the United States with

his family that year after FARC members told him to resign if he wanted his family

to live. Within the next two years, the FARC killed another councilman from the

same city and killed the leader of Celestino-Contreras’ political group.

                                          II.

      Celestino-Contreras first contends that we have jurisdiction to review the

BIA’s denial of his asylum application. After reviewing de novo whether we have

subject matter jurisdiction, Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007),

we disagree.

      Celestino-Contreras entered the United States in 2000 and applied for asylum

over a year later. The BIA determined that Celestino-Contreras’ asylum application

was untimely and that he did not demonstrate changed circumstances affecting his

eligibility or extraordinary circumstances to justify the delay in filing. Because the

BIA did not explicitly adopt the IJ’s reasoning, we review only the BIA’s decision.

See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).

      An asylum application may be considered if it is “filed within [one] year after

the date of the alien’s arrival in the United States,” 8 U.S.C. § 1158(a)(2)(B). There



                                           7
is an exception to that time limit “if the alien demonstrates . . . 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

within the period specified . . . .” 8 U.S.C. § 1158(a)(2)(D). Whether an alien can

apply for asylum is a determination left exclusively to the Attorney General, and

“[n]o court shall have jurisdiction to review any determination of the Attorney

General under [§ 1158(a)(2)].” 8 U.S.C. § 1158(a)(3).

      Celestino-Contreras argues that the REAL ID Act of 2005, 8 U.S.C. §

1252(a)(2)(D), extends our jurisdiction to include review of his asylum claim. The

REAL ID Act provides, in pertinent part:

       Nothing in subparagraph (B) or (C), or in any other provision of this
       chapter (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.

8 U.S.C. § 1252(a)(2)(D). Celestino-Contreras argues that we have jurisdiction

over his asylum appeal because he presents a question of law and a constitutional

violation and that both challenges fall within the Act. More specifically, he argues

that the BIA erred by (1) affirming the IJ’s legally erroneous conclusion that the

evidence he presented did not establish the “changed circumstances” exception to

the one-year filing requirement and (2) violating his due process rights when it



                                             8
“ignored the agency’s own law” in finding that he failed to establish changed

circumstances.

      However, as we have previously explained, “the timeliness of an asylum

application is not a constitutional claim or question of law covered by the Real ID

Act’s changes.” See Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th

Cir. 2005). Included in that non-reviewable timeliness determination is the question

of whether the exceptions to the one-year requirement apply.4 See Mendoza v.

United States Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003) (finding that §

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”); Chacon-Botero, 427 F.3d at

957 (adhering to same after enactment of the Real ID Act). Therefore, we lack

jurisdiction to review the denial of Celestino-Contreras’ asylum claim as time-

barred.

                                               III.



          4
          Further, with respect to the alleged constitutional violation, Celestino-Contreras argues
that we have jurisdiction because the BIA’s decision raises a due process issue by “ignor[ing] the
agency’s own law” relating to the exceptions to the one-year filing requirement. However,
because he has failed to specify what law the BIA allegedly ignored Celestino-Contreras has
abandoned that issue on appeal. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th
Cir. 2003) (noting that passing references to an issue are insufficient to raise an issue for appeal
and that such issues are deemed abandoned).


                                                 9
      Celestino-Contreras next contends that he is entitled to withholding of

removal because he has established past persecution based on his political opinion

and is therefore entitled to the presumption that his life or freedom would be

threatened upon return to Colombia.5 Further, he argues that the government failed

to rebut that presumption.

      The IJ determined that Celestino-Contreras did not demonstrate eligibility for

withholding of removal. The BIA agreed. In its opinion, the BIA drew on some of

the IJ’s findings, and to the extent it adopted the IJ’s reasoning, we consider both

the IJ and BIA decisions. See Al Najjar, 257 F.3d at 1284. When considering a

petition to review a final order issued by the BIA, we review de novo legal issues,

see Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001), but we review

factual findings under the substantial evidence test. See Al Najjar, 257 F.3d at 1283

(11th Cir. 2001). Under the substantial evidence test, we must affirm the decision if

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

considered as a whole.” Id. at 1284 (internal quotation marks and citation omitted).

“To reverse a factual finding by the BIA, [we] must find not only that the evidence

supports a contrary conclusion, but that it compels one.” Farquharson v. U.S. Att’y


       5
          Because we determine that the record compels a conclusion of past persecution based
on his political opinion, we need not consider whether Celestino-Contreras has also established
that he “very likely will suffer future persecution at the hands of the FARC guerillas if forced to
return to Colombia.”

                                                10
Gen., 246 F.3d 1317, 1320 (11th Cir. 2001). The fact that evidence in the record

may also support a conclusion contrary to the administrative findings is not enough

to justify a reversal. See Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.

2004) (en banc).

      An alien seeking withholding of removal under the INA must show that his

“life or freedom would be threatened . . . because of the alien’s race, religion,

nationality, membership in a particular social group, or political opinion” if he

returned to the country in question. 8 U.S.C. § 1231(b)(3)(A). To do so, he must

demonstrate that “he more-likely-than-not would be persecuted or tortured upon his

return to the country.” Mendoza, 327 F.3d at 1287.

      If an alien establishes past persecution in his country based on a protected

ground, it is presumed that his life or freedom would be threatened upon return to

his country unless the government shows by a preponderance of the evidence that

(1) the country’s conditions have changed so that the applicant’s life or freedom

would no longer be threatened upon his removal; or (2) the alien could avoid a

future threat to his life or freedom by relocating to another part of his country and it

would be reasonable to expect him to do so. See 8 C.F.R. § 208.16(b)(1)(i);

Mendoza, 327 F.3d at 1287.




                                           11
      Persecution is an “extreme concept, requiring more than a few isolated

incidents of verbal harassment or intimidation, and . . . mere harassment does not

amount to persecution” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th

Cir. 2005) (internal quotation marks and citation omitted). Determining whether an

alien has suffered past persecution requires a consideration of the cumulative effect

of the events on the record. See Ruiz v. U.S. Att’y Gen., 479 F.3d 762, 766 (11th

Cir. 2007). The cumulative effect of the events in this record compel the conclusion

that Celestino-Contreras suffered past persecution and is entitled to the presumption

that his life and freedom would be threatened upon return to Colombia.

      As the BIA observed and accepted, the IJ did not make an explicit adverse

credibility determination. Therefore, we must accept Celestino-Contreras’

testimony as true.6 Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1255, n.2 (11th Cir.

2007). Further, “uncorroborated but credible testimony from the applicant may be

sufficient alone to sustain the burden of proof for . . . withholding of removal.” D-

Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818–19 (11th Cir. 2004).




       6
          The IJ had “some problems with the respondent’s credibility” because Celestino-
Contreras testified to “important and highly relevant events” that did not appear in his
application. Those events include: (1) members of the FARC visiting his parents in 1992; (2) his
wife and children going to the United States in 1999 and the reason for that visit; and (3)
members of the FARC going to a meeting of Celestino-Contreras’ political party. The BIA
determined the IJ had “questioned portions of the respondent’s testimony,” but that the IJ had
“not issue[d] a specific adverse credibility finding.”

                                              12
      Celestino-Contreras did not suffer severe physical harm, but that is not a

requirement for past persecution where the record contains repeated threats

combined with other forms of severe mistreatment. See De Santamaria v. U.S.

Att’y Gen., 525 F.3d 999, 1009–1010 (11th Cir. 2008) (explaining that no serious

physical injury is required to establish past persecution where an applicant

demonstrates repeated threats combined with other forms of serious mistreatment

like attempted murder, kidnapping, or assault with a firearm resulting in a broken

nose). We conclude that there was serious mistreatment here. The FARC killed

two of Celestino-Contreras’ brothers.7 Although not direct attacks on Celestino-

Contreras, the murders “concomitantly threaten[ed] the petitioner.” See id. at 1009

n.7 (considering the murder of the applicant’s groundskeeper who had refused to

reveal the applicant’s whereabouts as evidence of persecution); see also Delgado v.

U.S. Att’y Gen., 487 F.3d 855, 861–62 (11th Cir. 2007) (considering the severe

beating of applicant’s son as evidence that applicant suffered persecution). After

killing one brother, members of the FARC specifically used that death as a threat to



       7
          The BIA stated that Celestino-Contreras “suspected that the FARC killed two of his
brothers, but he could not corroborate these assertions.” Corroboration, however, is not
required. See 8 C.F.R. § 208.16(b) (“[t]he testimony of the applicant, if credible, may be
sufficient to sustain the burden of proof [in a withholding of removal case] without
corroboration.”); Niftaliev v. Att’y Gen., 504 F.3d 1211, 1217 (11th Cir. 2007). According to
Celestino-Contreras’ credible testimony, he “suspected” that the FARC killed his brothers
because members of the FARC themselves took credit for both killings. Additionally, Celestino-
Contreras produced death certificates for both brothers.

                                             13
Celestino-Contreras by calling him and telling him that he was next. After killing

the other brother, members of the FARC left a note identifying themselves and

explaining precisely how the death was to be interpreted—as a warning to others,

like Celestino-Contreras, who opposed the FARC.

      Here the violent and intimidating acts that threatened Celestino-Contreras,

taken as a whole, include: multiple phone calls threatening Celestino-Contreras and

his family; two face-to-face encounters between Celestino-Contreras and members

of the FARC, one in which he was assaulted, insulted, and threatened and the other

in which he was identified as a “departed” leader; and the killing of Celestino-

Contreras’ two brothers. Those events amount to more than a few isolated incidents

of harassment or intimidation, see Sepulveda, 401 F.3d at 1231, and the BIA’s

determination that the events Celestino-Contreras described did not rise to the level

of persecution is not supported by substantial evidence on the record. See Al

Najjar, 257 F.3d at 1283. The events on the record amount to past persecution and

indicate a future threat to Celestino-Contreras’ life or freedom in Colombia. See

Mendoza, 327 F.3d at 1287. Thus, Celestino-Contreras has met his burden of

proving that if he returns to Colombia it is more likely than not that he will be

persecuted for his political opinion. Id.




                                            14
      The government has neither proffered evidence nor raised any argument that

relocation was a reasonable option or that country conditions have changed to

diminish the threat facing Celestino-Contreras in Colombia. Therefore, the

government has waived those arguments. See Montano Cisneros v. U.S. Att’y

Gen., 514 F.3d 1224, 1226 n.1 (11th Cir. 2008) (“The Government’s argument here

was not raised in their brief and is therefore waived.”); Sanchez Jimenez v. U.S.

Att’y Gen., 492 F.3d 1223 (11th Cir. 2007) (remanding applicant’s case “to allow

the IJ to determine whether [applicant] can relocate within Colombia” where the IJ

overlooked substantial evidence on the issue, but making no instruction to the IJ to

consider changed country conditions where “the government does not argue, and

there is no evidence in this record, that conditions in Colombia have changed to the

extent that the FARC would no longer target [applicant] if he returned to

Colombia.”). We conclude that Cesar Celestino-Contreras is entitled to withholding

of removal.

      We do not, however, decide whether his wife, Francy Contreras, or their two

children, Cesar Contreras-Yanez and Diana Contreras-Yanez, are entitled to

withholding of removal. The BIA decided that they were not, but that decision was

based on its conclusion, which we are setting aside, that Celestino-Contreras

himself was not entitled to it. The remaining issue is whether, in light of the fact



                                           15
that Celestino-Contreras is entitled to withholding of removal, his wife and two

children are as well. That, however, is a different question. The BIA has not

answered that question yet, and it should do so in the first instance. See INS v.

Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353 (2002) (“A court of appeals is not

generally empowered to conduct a de novo inquiry into the matter being reviewed

and to reach its own conclusions based on such an inquiry. Rather, the proper

course, except in rare circumstances, is to remand to the agency for additional

investigation or explanation.” (internal quotation marks and citations omitted)).

      PETITION DISMISSED IN PART, GRANTED IN PART, AND

REMANDED IN PART.




                                          16
