                                                              [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                   FILED
                                                         U.S. COURT OF APPEALS
                             No. 08-14654                  ELEVENTH CIRCUIT
                                                               APRIL 1, 2009
                         Non-Argument Calendar
                                                            THOMAS K. KAHN
                       ________________________
                                                                 CLERK

                         Agency Nos. A96-151-130,
                               A96-151-131


GISELA ROSAS SALAS,
EDGAR EDUARDO DUQUE GALVIS,
STEFHANIE GISELLE DUQUE ROSAS,
a.k.a. Stephanie Giselle Duque Rosas,

                                                                     Petitioners,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                       ________________________

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

                               (April 1, 2009)

Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:
        Gisela Rosas Salas petitions for review of the Board of Immigration

Appeals’s (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order (1)

denying as untimely her asylum application and (2) denying withholding of

removal and relief under the United Nations Convention Against Torture (“CAT”).

After review, we dismiss in part and deny in part the petition.

                                     I. BACKGROUND

        On July 3, 2001, Salas and her husband and daughter, citizens of Colombia,

entered the United States on tourist visas with authorization to stay until July 2,

2002. Salas and her family remained in the United States past the authorized 2002

date.

        Approximately three years later, on July 13, 2005, Salas filed her application

for asylum, withholding of removal and CAT relief, asserting that the National

Liberation Army of Colombia (“ELN”) had persecuted her based on her political

opinion and membership in a particular social group.1 On August 19, 2005, the

Department of Homeland Security (“DHS”) issued a Notice to Appear, charging

Salas with removability, pursuant to Immigration and Nationality Act (“INA”) §



        1
         Salas’s husband and daughter are listed in the application as derivative beneficiaries.
Although our opinion refers to Salas, our ruling as to the asylum claim applies equally to Salas’s
husband and daughter. As to the claim of withholding of removal, “there are no derivative
benefits associated with the grant of withholding of removal.” Delgado v. U.S. Att’y Gen., 487
F.3d 855, 862 (11th Cir. 2007). Thus, we deny the petition as to her family’s claim of
withholding of removal on that basis.
                                                 2
237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for remaining in the United States without

authorization.

      Salas appeared before the IJ with counsel and conceded removability.

According to her hearing testimony and application, Salas began receiving

threatening phone calls and letters from the ELN after ELN members stopped her

car. In October 2000, she and her family were on a trip to the beach when they

encountered ELN members at a roadblock. When the ELN members learned Salas

was a dentist, they suggested she assist them by working for them as a dentist in

the mountains. The ELN also noted that Salas’s husband worked for an American

company. Salas and her family were allowed to leave when another car

approached that the ELN wanted to stop.

      In January 2001, upon returning from a family trip to the United States,

Salas discovered a letter delivered to her home. The letter stated that the ELN had

verified personal information about Salas and her family, including where Sala’s

daughters attended school, and invited Salas to join the group and make

contributions to the group. Salas also received numerous telephone calls from the

ELN demanding money and threatening to kidnap, torture and kill her family. In

addition, Salas’s father received a letter from the ELN stating that Salas and her

family were military targets.

      As a result of these threats, on July 3, 2001, Salas and her family entered the
                                          3
United States. Since her departure, Salas has continued to receive calls and letters

at her former home in Colombia from the ELN demanding money and threatening

to harm Salas and her family. In December 2004, Salas’s father, who remains in

Colombia, received a letter from the ELN noting that he had sold his farm and

demanding that he bring the proceeds to a particular location to give to them and

threatening to kill him if he went to the police. Salas’s father could not pay the

money and seldom left his home for fear of being kidnaped or killed. In addition,

Salas’s sister-in-law’s husband was killed for refusing to cooperate with the ELN.

      Salas included in the record copies of letters sent to her and her father from

the ELN, threatening her and her family and demanding money. Also in the record

were numerous reports about Colombia indicating, inter alia, that: (1) as of 2003,

internal armed conflict remained widespread, but peace negotiations were ongoing

between the government and the guerilla groups; (2) guerilla groups target civilians

for kidnaping, killing and extortion; and (3) ransom payments for kidnaped

civilians and “war taxes” are an important source of revenue for guerilla groups.

      After the hearing, the IJ denied all relief. The IJ found that Salas’s asylum

application was untimely and that no changed personal circumstances or

extraordinary circumstances justified her failure to file her asylum application

within one year of her arrival in the United States. As to her claim of withholding

of removal, the IJ concluded that she had not shown past persecution or a well-
                                           4
founded fear of future persecution and had not shown a nexus between the threats

and her political opinion or membership in a particular social group. As for her

CAT claim, the IJ concluded that Salas had not shown that the Colombian

government would torture her if she returned.

      On appeal, the BIA affirmed and adopted the IJ’s order. The BIA agreed

that: (1) Salas’s asylum application was untimely; (2) Salas had not demonstrated

past persecution or a well-founded fear of future persecution because the threats

she received did not rise to the level of persecution; (3) Salas had not shown that

the ELN’s extortionate demands were motivated by one of the statutorily protected

grounds; and (4) Salas had not shown that she would more likely than not be

tortured by the government if she returned to Colombia. Salas filed this petition

for review.

                                 II. DISCUSSION

A.    Timeliness of Asylum Application

      Salas argues that the IJ and the BIA erred in finding that she failed to show

changed or extraordinary circumstances that would waive the one-year time limit

for filing her asylum application. We do not have jurisdiction to review this

determination. See INA § 208(a)(3), 8 U.S.C. § 1158(a)(3); Fahim v. U.S. Att’y

Gen., 278 F.3d 1216, 1218 (11th Cir. 2002).

      Salas argues that we retain jurisdiction to review the determination because
                                          5
INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B), as amended by the REAL ID Act of

2005, Pub. L. No. 109-13, § 106(a), 119 Stat. 231, allows review of constitutional

claims and questions of law. However, this Court has concluded that “[t]he

timeliness of an asylum application is not a constitutional claim or question of law

covered by the REAL ID Act’s changes.” Chacon-Botero v. U.S. Att’y Gen., 427

F.3d 954, 957 (11th Cir. 2005). Accordingly, we dismiss Salas’s petition for

review as to her asylum claim.

B.    Withholding of Removal and CAT Relief

      An alien seeking withholding of removal must show that her “life or

freedom would be threatened in that country because of [her] race, religion,

nationality, membership in a particular social group, or political opinion.” INA §

241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). In other words, the alien bears the burden

to show either that she has suffered past persecution on account of a protected

ground or that she “more likely than not” will be persecuted on account of a

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

1369, 1375 (11th Cir. 2006) (quotation marks omitted).

      “Persecution on account of . . . political opinion . . . is persecution on

account of the victim’s political opinion, not the persecutor’s.” Sanchez v. U.S.

Att’y Gen., 392 F.3d 434, 437-38 (11th Cir. 2004) (quotation marks omitted).

Thus, to establish persecution by a guerilla group on account of political opinion, it
                                           6
is not enough to show that the petitioner has been or will be targeted “due to her

refusal to cooperate with the guerillas”; instead, the alien must show that the

guerillas have targeted or will target her because of her actual or imputed political

opinion. Id. at 438. In addition, evidence of private acts of violence or criminal

activity do not demonstrate persecution on a protected ground. Ruiz v. U.S. Att’y

Gen., 440 F.3d 1247, 1258 (11th Cir. 2006). Thus, persecution by a guerilla group

for refusing to make extortion payments or pay “war taxes” is not persecution on

account of a protected ground. See Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821-

22 (11th Cir. 2007).2

       Here, the record does not compel the conclusion that Salas was or would be

persecuted on account of her political opinion.3 In fact, the record indicates that

Salas was targeted by the ELN because she refused to cooperate with them by

providing dental services or giving them money. Salas’s argument that she refused


       2
         Where, as here, the BIA expressly adopts the IJ’s order, we review the decisions of both
the IJ and the BIA. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review the
factual determinations regarding whether an applicant is eligible for withholding of removal
under the substantial evidence test. Al Najjar, 257 F.3d at 1283-84. Under the substantial
evidence test, we can reverse a fact finding “only when the record compels reversal; the mere
fact that the record may support a contrary conclusion is not enough to justify reversal of the
administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
       3
         We lack jurisdiction to review Salas’s claim that, as a dentist, a wife of an employee of
an American company and a mother of an only child, she was a member of “a particular social
group.” Salas did not exhaust these issues before the BIA. See Amaya-Artunduaga v. U.S.
Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). Thus, we dismiss Salas’s petition with
respect to her claim that she was persecuted on account of her membership in a particular social
group.
                                                 7
to cooperate with the guerillas because she disagrees with their political philosophy

is unavailing. It is not her motivation for refusing to cooperate that matters, but the

ELN’s motive for targeting her. See id. at 822-23 (explaining that an alien’s

refusal to cooperate with guerillas on political grounds is not sufficient to show the

required nexus because it is the guerilla group’s motives and not the alien’s

motives that are relevant). There is no evidence in the record that the ELN knew of

or cared about Salas’s political opinion or imputed a political opinion to her, let

alone were motivated by her political opinion to threaten her.4

       Finally, the evidence does not compel a conclusion that the Colombian

government would torture Salas or acquiesce to her being tortured if she was

returned to Colombia. See Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239,

1242 (11th Cir. 2004). Accordingly, we deny the petition as to Salas’s CAT claim.

       DISMISSED IN PART AND DENIED IN PART.




       4
         Alternatively, substantial evidence supports the IJ’s finding that the ELN’s verbal threats
do not rise to the level of persecution. See Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1237 (11th
Cir. 2006); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005);
                                                  8
