                                                                   [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                               ________________________                   FILED
                                                                 U.S. COURT OF APPEALS
                                      No. 10-10616                 ELEVENTH CIRCUIT
                                  Non-Argument Calendar             SEPTEMBER 8, 2010
                                ________________________                JOHN LEY
                                                                         CLERK
                                  Agency No. A088-123-215


NICOLAS CRUZ-SOLIS,

lllllllllllllllllllll                                                     Petitioner,

                                            versus

U.S. ATTORNEY GENERAL,

lllllllllllllllllllll                                                     Respondent.

                                ________________________

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

                                     (September 8, 2010)

Before BARKETT, HULL and WILSON, Circuit Judges.

PER CURIAM:

         Nicolas Cruz-Solis, a native and citizen of Guatemala, appeals the denial of
his application for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). He argues pro se that the Board of

Immigration Appeals (“BIA”) and Immigration Judge (“IJ”) erred by finding his

asylum application untimely. Further, Cruz-Solis contends that the IJ erred in its

credibility determination. Finally, he argues that the record compels granting his

application for withholding of removal or CAT relief because he established that

his father was persecuted by the Ladinos guerilla based on his Mayan ancestry.

Upon review of the parties’ briefs and the record, we deny the petition.

                                         I.

      Cruz-Solis, a native and citizen of Guatemala, entered into the United States

without inspection at an unknown place around January 1, 1995. In April 2008,

the Department of Homeland Security (“DHS”) issued him a Notice to Appear

(“NTA”), charging him as removable pursuant to INA § 212(a)(6)(A)(i) and 8

U.S.C. § 1227(a)(1)(A) due to being a citizen of Guatemala and lacking U.S.

citizenship.

      On February 15, 2008, Cruz-Solis filed his application for asylum,

withholding of removal, and CAT relief. According to his application, Cruz-Solis

was born on June 19, 1984, in the village of Patzalan. Cruz-Solis claimed that he

feared persecution by the Ladinos who created problems for indigenous people in

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Guatemala, specifically Mayans.

      In January 2009, Cruz-Solis appeared before an Immigration Judge with an

attorney and conceded removability. At a removal hearing in March 2009, Cruz-

Solis testified that he came from Guatemala and originally spoke Awakateko. He

left on December 20, 1994, and arrived in the United States on January 1, 1995.

He testified that he left Guatemala because the Ladinos guerrillas made threats

against his family when he was eleven years old. Specifically, on December 5,

1994, the Ladinos attempted to recruit Cruz-Solis’ father to join their guerrillas

even though he was a member of the Civil Patrol. When his father refused, the

Ladinos beat him. The Ladinos did not harm Cruz-Solis or his mother. Cruz-Solis

claims that his father paid someone to bring him to the United States at the

beginning of 1995.

      His father now lives in El Salvador, but his mother remains in Guatemala,

Huehuetenango—an urban province approximately a half hour to one hour from

where they used to live when the Ladinos beat his father. She left in 2002 because

the neighbors “bother[ed] her,” but he did not elaborate on why. Cruz-Solis

indicated that his brother moved to Mexico. Cruz-Solis further testified that he

did not file his asylum application until 2008 because he was arrested, although it

is unclear when precisely this occurred or how long he spent in jail. Cruz-Solis

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also testified that he was afraid to return to Guatemala because of the Ladinos

incident with his father and their threat against his family.

      Cruz-Solis submitted exhibits as well. He included a Wikipedia article from

March 2009 on “Aguacatán,” which is a municipality in Guatemala, in the

province of Huehuetenango. It is the only municipality in the world where

Awakateko is the native language. The article also stated that the municipality

suffered much violence during the civil war in the 1980’s.

      Cruz-Solis also submitted a 2008 Country Report on Guatemala from the

U.S. State Department. The report noted that, as a general matter, widespread

social violence, including killings, and discrimination against indigenous

communities. The IJ also noted that there were no reports that the government or

its agents committed any politically-motivated killings. With respect to

discrimination against indigenous people, the report stated that some people in

those communities attained high positions, but they were generally

underrepresented in mainstream society. It did not detail specific instances or

discuss general patterns of violence presently threatening these groups. Finally,

Cruz-Solis submitted a declaration, recounting the Ladinos’ attack on his father.

He asserts that the group always attacked Mayans.

      On March 18, 2009, the IJ rendered an oral decision denying Cruz-Solis’

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application. With respect to asylum, the IJ indicated that Cruz-Solis turned

twenty-one in 2005, however, Cruz-Solis did not file an application for asylum

until three years later. The IJ then reasoned that there was no adequate

explanation for his failure to file an application for asylum sooner, particularly

when he lived in a community with a number of Guatemalans who could assist

him. The IJ explained that even if the one-year period to file began when he

turned twenty-one, the application was still significantly late. The IJ invoked the

pretermitted aspect of Section 208 of the INA. Thus, the IJ only analyzed Cruz-

Solis’ withholding of removal claim.

      The IJ concluded that there was little evidence to support Cruz-Solis’ claim

other than his testimony and the Country Report. The Country Report showed that

indigenous Guatemalans had a presence with some political awareness and

prominence. With respect to Cruz-Solis’ testimony, the IJ found him not credible

because he left aspects of his testimony unexplained. The IJ noted Cruz-Solis

provided few details on how he supported himself as a child in this country, and

other than his own admission, it was not possible to verify when he entered the

into the United States. In sum, the IJ found that Cruz-Solis did not prove that he

would be tortured if he was to return to his home country, and that he did not meet

the standard for withholding of removal or CAT relief.

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      In a pro se appeal to the BIA, Cruz-Solis reiterated that he fled Guatemala

in 1994 because his father was beaten by the Ladinos. He argued that the IJ erred

by not taking into account the harms he suffered in Guatemala by the Ladinos and

the cumulative effect of the harm. He did not challenge the IJ’s credibility

finding.

      On January 14, 2010, the BIA affirmed the IJ’s decision and dismissed his

appeal. The BIA explained that Cruz-Solis failed to carry his burden to establish

that his life or freedom would be threatened in Guatemala. The BIA also found

Cruz-Solis’ application for asylum untimely. Cruz-Solis did not challenge this

determination on appeal. The BIA reasoned that the threats directed at Cruz-Solis

were not based on a protected ground such as his Mayan heritage. Rather, the

threats were based on the father’s membership in the Civil Patrol and

unwillingness to join the Ladinos guerillas. Thus, the BIA concluded that the

abuse of Cruz-Solis’ father, without more, is insufficient to meet the heightened

burden for withholding of removal. With respect to the CAT, the BIA found that

he did not establish that it was more likely than not that he would be tortured by

the government or those acting with its acquiescence. Cruz-Solis’ pro se petition

to this Court followed.

                                         II.

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      This Court liberally construes briefs filed by pro se aliens. See Lorisme v.

INS, 129 F.3d 1441, 1444 n.3 (11th Cir. 1997). We review de novo our subject-

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

       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). “Insofar as the Board adopts the IJ’s

reasoning, we will review the IJ’s decision as well.” Id. In this case, the BIA

agreed with the IJ’s reasoning. Therefore, we will review both the IJ’s and the

BIA’s decision. Id.

      We review the IJ and the BIA’s legal conclusions de novo, and their factual

findings under the substantial evidence test. Hernandez v. U.S. Att’y Gen., 513

F.3d 1336, 1339 (11th Cir. 2008) (per curiam). Under this highly deferential

standard, we view the record in the light most favorable to the BIA’s decision

unless the record compels it; “the mere fact that the record may support a contrary

conclusion is not enough to justify a reversal of the administrative findings.”

Rivera v. U.S. Att’y Gen., 487 F.3d 815, 820 (11th Cir. 2007) (citation and

quotation omitted).

                                         III.
A. Asylum



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      An application for asylum must be “filed within [one] 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). The lone exception applies when the alien proves “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.” INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). With

respect to whether an application is timely, “[n]o court shall have jurisdiction to

review any determination of the Attorney General.” INA § 208(a)(3), 8 U.S.C. §

1158(a)(3). We have held that this provision deprives us of jurisdiction to

determine “whether an alien filed within one year or established extraordinary

circumstances to excuse an untimely filing.” Sanchez Jiminez v. U.S. Att’y Gen.,

492 F.3d 1223, 1231 (11th Cir. 2007) (citation omitted). In addition, we lack

jurisdiction to review any issue that is not administratively exhausted, including

matters not raised before the BIA. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1);

Camacho-Salinas v. U.S. Att’y Gen., 460 F.3d 1343, 1346–47 n.1 (11th Cir. 2007)

(per curiam).

      In this case, we are statutorily precluded from determining whether Cruz-

Solis’ asylum application was timely or whether its untimely filing was justified

by extraordinary circumstances. INA § 208(a)(3), 8 U.S.C. § 1158(a)(3). In any

                                          8
event, Cruz-Solis did not challenge the denial of asylum or the finding of

untimeliness before the BIA. Because Cruz-Solis did not exhaust his

administrative remedies, we do not have jurisdiction to hear this claim.

Accordingly, we dismiss this claim.

B. Credibility Determination and Withholding of Removal

      Adverse credibility determinations are factual findings and are also “subject

to the substantial evidence test, and may not be overturned unless the record

compels that result.” Alim v. Gonzales, 446 F.3d 1239, 1254 (11th Cir. 2006).

      An alien is entitled to withholding of removal under the INA, if he can 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.”

8 U.S.C. § 1231(b)(3)(A). An applicant seeking such relief bears the burden to

show either: (1) past persecution in his country based on a protected ground, or (2)

that it is more likely than not that he would be persecuted on account of the

protected ground if he returned to his country. Tan v. U.S. Att’y Gen., 446 F.3d

1369, 1375 (11th Cir. 2006). This standard is more stringent than the standard for

asylum. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (per

curiam).

       “[P]ersecution is an extreme concept, requiring more than a few isolated

                                           9
incidents of verbal harassment or intimidation, and []mere harassment does not

amount to persecution.” Id. at 1231 (alteration omitted) (citation and quotation

omitted). We are more likely to conclude that the record compels a finding of past

persecution when the applicant has suffered physical injury along with death

threats. Compare Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007)

(per curiam) (threats at gunpoint and severe beating constituted past persecution);

with Sepulveda, 401 F.3d at 1232–33 (death threats without injury did not

constitute past persecution).

      Further, any persecution must be “on account of” a protected ground, which

in the present case, would be Cruz-Solis’ political beliefs or his Mayan ancestry.

INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S. Ct. 812, 816 (1992). Evidence

consistent with private acts of violence or failure to cooperate with guerillas does

not constitute persecution on account of a protected ground. Ruiz v. U.S. Att’y

Gen., 440 F.3d 1247, 1258 (11th Cir. 2006) (per curiam). In addition, where a

petitioner’s family remains in the country or region unharmed, it may contradict

claims of a well-founded fear of future persecution. See id. at 1259.

      Cruz-Solis did not challenge the IJ’s adverse credibility determination

before the BIA. Therefore, we lack jurisdiction to consider it. See Camacho-

Salinas, 460 F.3d at 1346–47 n.1. However, even if the IJ had not made an

                                         10
explicit adverse credibility determination, Cruz-Solis was not harmed, and an

isolated threat by the Ladinos is not extreme enough to be considered persecution,

neither was the threat of harm based on a protected status. See Ruiz, 440 F.3d at

1258. Accordingly, Cruz-Solis has not demonstrated eligibility for withholding of

removal.

C. CAT Relief

      To qualify for CAT relief, an applicant carries the burden of proof to

“establish that it is more likely than not that he [] would be tortured if removed to

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

intentional infliction of “severe pain or suffering, whether physical or mental.” 8

C.F.R. § 208.18(a)(1). The regulations require the applicant to demonstrate that

the torture would be 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.’”

Sanchez Jimenez, 492 F.3d at 1239 (quoting 8 C.F.R. § 208.18(a)(1)).

      Here, the record reflects that Cruz-Solis’ mother remains unharmed in

Guatemala, approximately a half hour to one hour from where they used to live.

AR at 78. Although Cruz-Solis presented evidence of an isolated threat, the

incident involved his father, which does not establish that it is more likely than not

that Cruz-Solis will suffer torture if he returned. Finally, Cruz-Solis has not met

                                          11
his burden to demonstrate he would be tortured by the government or by those

acting with its acquiescence in Guatemala. Thus, he is not entitled to CAT relief.

Accordingly, the petition is denied.

      DISMISSED IN PART, DENIED IN PART.




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