                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                     FILED
                          ________________________         U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                               September 28, 2005
                                No. 05-11792                    THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK
                          ________________________

                            Agency No. A95-546-201

JHANER JAHIR GARRIDO,


                                                                        Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                          _________________________
                               (September 28, 2005)

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

      Jhaner Jahir Garrido petitions for review of the Board of Immigration

Appeals’s (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order of
removal and denial of his application for asylum. For the following reasons, we

deny the petition.

       Garrido, a native and citizen of Colombia, was admitted to the United States

on a non-immigrant visitor for business visa with a termination date of May 13,

2002. He remained beyond that date and on September 4, 2002, the Immigration

and Naturalization Service (“INS”)1 issued a Notice to Appear charging him with

removability under INA § 237 (a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).

       Garrido filed, inter alia, an application for asylum, alleging that he had been

kidnaped on two occasions by members of the Front for Revolutionary Armed

Forces in Colombia (“FARC”) because of his political activities in the Liberal

Party and told that if he did not obey FARC’s orders, he or a member of his family

would be killed.2 He stated that he feared torture and death if he returned to

Colombia.

       At the hearing before the IJ, Garrido conceded his removability and testified

as follows. Garrido was born in Colombia, where his parents, aunt, son, and


       1
         On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002 (“HSA”), Pub. L. No. 107-296, 116 Stat. 2125. The HSA created a new Department of
Homeland Security (“DHS”), abolished the INS, and transferred its functions into the new
department. Because this case initiated while the INS was still in existence, this opinion refers to
the agency as the INS.
       2
          In support of his asylum application, Garrido submitted letters from Colombian National
Police indicating the threat FARC posed. He further submitted written notes he had received from
FARC warning him to either obey or leave the country. He also attached information from the
United Nations and the government on asylum and terrorist activities in Colombia.
                                                 2
eleven siblings remained. Garrido worked as a truck driver for his father in Iroka,

Colombia, and had been involved with the Liberal Party since 1995. In 1998,

while driving a truck in Iroka, he was stopped at a roadblock and kidnaped by

FARC members because of his political affiliation. FARC held him for three days,

during which FARC threatened him, tried to brainwash him, and warned him that

he or his family would be killed if he disobeyed FARC’s orders. They eventually

released him because they wanted to use him to transport guerilla members. In

January 1999, he was kidnaped again under similar circumstances and held for two

days during which he was threatened and beaten and instructed to cease his

political work or he would not be forgiven. This time, he was released because

FARC needed his services to transport gasoline. That same year, FARC members

called his family and made threats.

       To avoid FARC, Garrido relocated to Bogota, which was 22 hours away

from Iroka. In Bogota, Garrido received no calls or threats from FARC. Although

his parents received threats while Garrido was in the United States in 2000, there

were no other problems.3 Thereafter, Garrido made several trips to the United

States, each time returning to Bogota where he thought he would be safe from

FARC. FARC members, however, mailed threatening letters to Garrido’s



       3
          Garrido’s father had been detained by the government for over one year, and it appeared
that neither Garrido’s mother or siblings had received threats during his father’s incarceration.
                                                 3
parents’s home in Iroka, and Garrido’s name was on FARC’s “list.” When another

driver working in Iroka was stopped at a roadblock, FARC members threatened the

driver as a warning to Garrido. Thus, Garrido determined that he could not return

to Colombia.

       The IJ denied asylum and ordered Garrido removed based on clear and

convincing evidence. Without specifically explaining whether he found Garrido

credible, the IJ nevertheless found that Garrido had not stated a threat of

persecution based on a protected activity, as the testimony established that FARC

targeted Garrido for his transportation access rather than his political activities.

The IJ noted that Garrido was not tortured in Colombia and that he had relocated to

Bogota with no problems. Garrido appealed the IJ’s determination, and the BIA

summarily affirmed. Garrido now petitions this court for review.

       Garrido argues that the BIA erred because the evidence established that he

suffered past persecution and had a well-founded fear of future persecution based

on his political activities should he return to Colombia.4

       Because the BIA affirmed the IJ’s decision without opinion, pursuant to 8

C.F.R. § 3.1(e)(4) (2002), the IJ’s decision became the final agency decision




       4
         Garrido does not argue that the IJ erred by denying his request for withholding of removal.
Accordingly, he has abandoned the issue, and this court need not address it. Al Najjar v. Ashcroft,
257 F.3d 1262, 1283 (11th Cir. 2001).
                                                  4
subject to review.5 See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). Factual determinations are reviewed under the substantial evidence test,

and we “must affirm the [IJ’s] decision if it is ‘supported by reasonable,

substantial, and probative evidence on the record considered as a whole.’” 6 Id. at

1283-84 (internal citation omitted). This court must defer to the IJ’s decision as

supported by substantial evidence, unless the evidence compels a reasonable fact

finder to find otherwise. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812,

815, 117 L.Ed.2d 38 (1992).

           The Attorney General has discretion to grant asylum if an alien is a

“refugee” as defined by the Immigration and Nationality Act (“INA”), INA

§ 208(b)(1), 8 U.S.C. § 1158(b)(1). The INA defines “refugee” as follows:

       [A]ny person who is outside any country of such person’s
       nationality . . . and who is unable or unwilling to return to, and is


       5
        Because Garrido’s removal proceedings commenced after April 1, 1997, the effective date
of IIRIRA, this case is governed by the permanent provisions of the INA, as amended by IIRIRA.
Gonzalez-Oropeza v. U.S. Attorney Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).
       6
         Congress recently passed the Real ID Act, which altered this court’s review of immigration
appeals. This court has not issued an opinion on the application of the Act; however, other circuits
have held that the REAL ID Act had altered the standards governing credibility determinations and
the need for corroboration of testimony in asylum applications, but that these new provisions did
not apply if the alien had filed his application prior to the effective date of the amendments. See,
e.g., Kaur v. Gonzales, 418 F.3d 1061 (9th Cir. 2005); Zheng v. Gonzales, 417 F.3d 379 (3d Cir.
2005); Dhima v. Gonzales, 416 F.3d 92 (1st Cir. 2005). Cf. Rodriguez Galicia v. Gonzales, 2005
WL 2108688 (7th Cir. 2005) (following other circuits and declining to apply REAL ID Act changes
to credibility determinations, but applying new standard of review regarding availability of
corroborating evidence). Because the application of the Act to this case would not change the
outcome, we decline to address the issue.
                                                   5
      unable or unwilling to avail himself or herself of the protection of,
      that country 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 . . . .


8 U.S.C. § 1101(a)(42)(A) & (B). The asylum applicant bears the burden of

proving refugee status. Al Najjar, 257 F.3d at 1284.

      To establish asylum eligibility, the alien must, with specific and credible

evidence, establish “(1) past persecution on account of a statutorily listed factor, or

(2) a well-founded fear that the statutorily listed factor will cause such future

persecution.” 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287.

“Demonstrating such a connection requires the alien to present specific, detailed

facts showing a good reason to fear that he or she will be singled out for

persecution on account of such an opinion.” Al Najjar, 257 F.3d at 1287 (internal

quotation omitted) (emphasis in original). An asylum applicant can not show

merely that he has a political opinion, but must show that he was persecuted

because of that opinion. Elias-Zacarias, 502 U.S. at 483. The alien’s testimony, if

credible, may be sufficient to sustain the burden of proof. 8 C.F.R. §§ 208.13(a),

208.16(b). “However, the weaker the applicant’s testimony, the greater the need

for corroborative evidence.” In re Y-B, 21 I&N Dec. 1136, 1139 (BIA 1998).

      In Sanchez v. U.S. Attorney Gen., 392 F.3d 434 (11th Cir. 2004), this court

set forth the criteria for an alien seeking asylum: “An alien seeking withholding of
                                           6
removal under the INA must show that his life or freedom would be threatened on

account of . . . political opinion.”7 The burden of proof rests with the alien, and he

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

return to the country in question.” Id. at 437.

       If the alien can establish past persecution, the presumption is that he would

be threatened upon return unless “the INS shows by a preponderance of the

evidence that, among other things . . . the alien could avoid a future threat to his

life or freedom by relocating to another part of the proposed country of removal,

and it would be reasonable to expect him to do so.” Id. Even if an alien cannot

show past persecution, he may be entitled to asylum relief if he can establish a

future threat to his life or freedom based on the protected ground. Id. “An alien

cannot demonstrate that he more-likely-than-not would be persecuted on a

protected ground if the IJ finds that the alien could avoid a future threat by

relocating to another part of his country.” Id.

       Asylum is available if an alien establishes persecution by the government or

by “nongovernmental groups that the government cannot control.” Id. at 437-38.

As this court has explained, to qualify for withholding of removal based on

persecution by a guerilla group on account of a political opinion, Garrido must


       7
          “Persecution on account of . . . political opinion . . . is persecution on account of the
victim’s political opinion, not the persecutor’s.” Id. (quoting Elias-Zacarias, 502 U.S. at 482).
                                                   7
establish that FARC persecuted him or will seek to persecute him in the future

because of his political opinion. Id. Persecution based on his refusal to cooperate

with the guerillas is not sufficient. Id.

      Here, we conclude under Sanchez that the BIA properly affirmed the IJ’s

denial of asylum relief. Garrido failed to establish that he was persecuted because

of his political opinion, or that relocating within Colombia would not remove his

fear of future persecution. Garrido’s own testimony established that FARC

threatened him to use his access to transportation. Additionally, the fact that he

was stopped at a roadblock suggests that the threat was more random and that

FARC did not target Garrido. See Rodriguez v. Attorney Gen., 2005 WL 2090638

(11th Cir. Aug. 31, 2005) (unpublished). Moreover, Garrido was able to avoid

FARC’s threats by relocating to Bogota, 22 hours away from Iroka where he had

been kidnaped. According to Garrido’s own testimony, FARC never carried out

the threats, and his family has had no problems since the kidnaping several years

ago. Finally, given that Garrido returned to Bogota several times, the IJ properly

concluded that relocation was a viable option. Therefore, substantial evidence

supports the IJ’s determination that Garrido failed to establish past persecution or a

well-grounded fear of future persecution. Accordingly, we DENY the petition.




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