                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                       Nos. 05-16660 and 06-10756         SEPTEMBER 6, 2006
                         Non-Argument Calendar             THOMAS K. KAHN
                                                               CLERK
                       ________________________

                  BIA Nos. A95-240-792 & A95-240-793

ESTEBAN FERNANDO ANTONI PARRA,
ROSA HELENA CHAPARRO,
SAMARA HELENA PARRA,

                                                          Petitioners,

                                   versus

U.S. ATTORNEY GENERAL,

                                                          Respondent.


                       ________________________

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

                            (September 6, 2006)

Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:
      Esteban Fernando Antoni Parra, his wife, Rosa Helena Chaparro, and his

daughter, Samara Helena Parra, petition for review of (1) the Board of Immigration

Appeals’ (“BIA’s”) decision adopting and affirming the immigration judge’s

(“IJ’s”) order, which found them removable and denied their application for

asylum, withholding of removal under the Immigration and Nationality Act

(“INA”) and relief under the United Nations Convention Against Torture (“CAT”),

8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 208.16(c); and (2) the BIA’s order

denying their motion to reopen, 8 C.F.R. § 1003.2(c). After review, we dismiss in

part and deny in part the petitions for review.

                                I. BACKGROUND

A.    The Petitioners’ Arrival

      Parra last arrived in the United States on May 7, 1999, and his wife and

daughter arrived later that year, on December 2, 1999. The petitioners, who are all

natives and citizens of Colombia, were admitted as nonimmigrant visitors for

pleasure but overstayed their visas and are subject to removal under INA

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

B.    The Petitioners’ Claims

      On March 6, 2002, Parra filed an application for asylum, withholding of

removal and CAT relief, alleging that he had been persecuted on account of his

political opinion by members of the Revolutionary Armed Forces of Colombia
                                           2
(“FARC”).1 Parra owned and managed multiple companies in Colombia.

According to Parra, the FARC began threatening him in November 1997 because

he had “records in the Liberal Party.”2 The FARC first contacted Parra at his office

by calling and requesting that he pay a “vacuna,” or a monthly quota of money, in

support of the FARC’s cause. Parra tried to delay, telling the caller that he needed

time to gather the money. Parra later received two more telephone calls reminding

him of his promise. As a result of these calls, in 1998, Parra decided to close his

office and work directly in the warehouses. Later, in February 1998, Parra

received a telephone call from the FARC at his home, in which the caller, in an

aggressive manner, indicated that the money they were asking for was a tax. The

caller advised that if Parra continued to hide from them, they knew where he and

his family lived. Parra moved in March 1998 in order to avoid the FARC’s pursuit

because he was not willing to contribute to their “terrorist cause,” because of his

involvement with politics and because he did not have the ability to pay the




       1
           Parra’s wife and daughter were included in the application.
       2
         Parra stated that he had been a member of the Liberal Party since the 1970s and helped
coordinate meetings for the party until 1998. Parra also supported the New Liberalism political
movement starting in1980, but withdrew from active membership in the movement in 1989
because of threats. There is no indication that these threats came from the FARC, however, and
Parra stated that these threats stopped once he withdrew from the movement.
                                                  3
requested quota.3 After moving, Parra did not have any other contact with the

FARC until October 1998.

       In October 1998, while Parra was assisting his son, Daniel Fernando Parra

(“Daniel”), with his business, three men came to Daniel’s business in the morning

asking for Parra. These men forced Parra to get in their car by identifying

themselves as members of the FARC and showing him a weapon. As they were

driving around, the men mistreated Parra and slapped him in the face. According

to Parra, their intention was to frighten him and give him an ultimatum so that he

would make the requested payments in exchange for his peace. The men let Parra

go around 7:30 p.m. that evening, leaving him in a town about an hour away from

his home.

       As a result of this event, Parra relocated to Ecuador for two months, returned

to Colombia, and in February 1999, moved in with his mother while his wife and

children moved in with another relative. In May 1999, Parra left Colombia to live

in the United States temporarily until conditions improved. Because conditions did

not improve, his family joined him in the United States in December 1999, but his

two sons, Daniel and Esteban Dario Parra (“Esteban”), later returned to Colombia

to finish school. His two sons eventually came back to the United States after



       3
        At the asylum hearing, Parra testified that he had the money to pay the FARC, but that
he did not do so because his “political ideology does not go[] with their thinking.”
                                                 4
Esteban received a threatening telephone call in August 2001, instructing him to

tell Parra to report to the FARC unless he “wanted to receive [his] child in a coffin

in pieces.” At that point, Parra decided to seek political asylum in the United

States because he feared that he would be kidnaped, tortured or even killed if he

returned to Colombia.

C.    Immigration Proceedings

      The record contained several documents in support of Parra’s asylum

application, including a letter indicating that his son Esteban had been granted

asylum in the United States on March 11, 2002. At the asylum hearing, the

government objected to the introduction of this evidence, noting that Esteban’s

asylum application was not included in the record. Parra stated that he had

requested a copy of Esteban’s asylum application but had not received it yet, and

that Esteban was present and available to testify regarding his asylum application if

necessary.

      The IJ allowed the letter, but cautioned that her decision on the petitioners’

application would be based on the merits of their case, and not on the fact that

Esteban had been granted asylum. Esteban did testify at the petitioners’ asylum

hearing, and his testimony was consistent with Parra’s claims.




                                          5
      The IJ ultimately denied the petitioners’ applications for asylum,

withholding of removal and CAT relief, and ordered them removed to Colombia.

Specifically, the IJ denied the petitioners’ asylum application as untimely, finding

no extraordinary circumstances to excuse its late filing. The IJ also denied the

petitioners’ application for withholding of removal, finding that the FARC’s

request that Parra pay a war tax, the threatening telephone calls, and Parra’s

detention without being physically harmed, did not amount to past persecution or

establish by a clear probability that it would be more likely than not that the

petitioners would suffer if returned to Colombia. The IJ also noted that these acts

demonstrated extortion, but found that there was insufficient evidence to

demonstrate a mixed motive based in part on Parra’s political opinion. Finally, the

IJ denied the petitioners’ request for CAT relief, finding that the petitioners had not

been tortured, and that the FARC was not a governmental entity. The petitioners

appealed the IJ’s decision to the BIA, which adopted and affirmed the IJ’s

decision, and dismissed the petitioners’ appeal.

      In addition to filing a timely petition for review with this Court, the

petitioners also filed a motion to reopen with the BIA. Petitioners’ motion stated

that they now were in possession of Esteban’s asylum application, which they

claimed was a crucial and material piece of evidence that would have “significantly

increased the likelihood” that they would have prevailed. The petitioners also
                                           6
alleged due process and equal protection violations. The BIA denied the motion to

reopen, finding that Esteban’s asylum application did not represent new facts.

Specifically, the BIA noted that the IJ already had considered the fact that Esteban

was granted asylum and the facts underlying his claim, but had concluded that

these facts did not excuse the petitioners’ untimely asylum application or

demonstrate that they had experienced persecution.

      The petitioners filed another timely petition for review from the BIA’s

decision denying their motion to reopen. The two petitions for review in our Court

have now been consolidated.

                                II. BACKGROUND

A.    Asylum Application

      Petitioners’ brief argues that the IJ erred in denying their asylum application.

We lack jurisdiction to review this decision because the IJ determined that the

petitioners’ asylum application was untimely. See INA § 208(a)(3); 8 U.S.C.

§ 1158(a)(3); see also Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir.

2003) (noting that 8 U.S.C. § 1158(a)(3) “divests our Court 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”).

Accordingly, to the extent that the petitioners seek review of the denial of their

asylum application, we dismiss the petition.
                                           7
B.     CAT Relief

       Because the petitioners do not challenge the denial of their application for

CAT relief, they have abandoned that issue. See Sepulveda v. U.S. Att’y Gen., 401

F.3d 1226, 1228 n.2 (11th Cir. 2005).

C.     Withholding of Removal Claim Based on Membership in a Particular
       Social Group

       We also lack jurisdiction to review the petitioners’ claim for withholding of

removal based on their membership in a particular social group because the

petitioners failed to exhaust this claim before the BIA. See INA § 242(d), 8 U.S.C.

§ 1252(d) (“A court may review a final order of removal only if . . . the alien has

exhausted all administrative remedies available to the alien as of right.”); see also

Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001)

(explaining that the exhaustion requirement is jurisdictional and precludes review

of a claim that was not presented to the BIA). The petitioners’ brief to the BIA

contained no substantive argument or discussion concerning persecution on

account of their membership in a particular social group. Moreover, this issue was

not raised in Parra’s asylum application or before the IJ. Accordingly, we dismiss

the petition in part.




                                           8
D.    Withholding of Removal Claim Based on Political Opinion

      The government argues that the petitioners also failed to exhaust their claim

for withholding of removal based on their political opinion. We disagree. The

petitioners’ brief to the BIA sufficiently raised this claim. See Alim v. Gonzales,

446 F.3d 1239, 1253-54 (11th Cir. 2006). Accordingly, we have jurisdiction to

review that claim and now do so.

      An alien is entitled to withholding of removal under the INA if he can show

that his “life or freedom would be threatened in that country because of the alien’s

race, religion, nationality, membership in a particular social group, or political

opinion.” INA § 241(b)(3), 8 U.S.C. § 1231(b)(3)(A). “The alien bears the burden

of demonstrating that it is ‘more likely than not’ [he] will be persecuted or tortured

upon being returned to [his] country.” Sepulveda, 401 F.3d at 1232. This standard

is more stringent than the “well-founded fear of future persecution” required for

asylum. Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1324 n.2 (11th Cir. 2001).

      An alien can meet his burden of proof in either of two ways. First, an alien

can show past persecution in his country that was motivated, at least in part, by a

protected ground, in which case a rebuttable presumption is created that his life or

freedom would be threatened if he returned to his country. See Tan v. U.S. Att’y

Gen., 446 F.3d 1369, 1375 (11th Cir. 2006); Mendoza, 327 F.3d at 1287. If the

alien makes such a showing, then the burden shifts to the government to show that
                                           9
the conditions in the country have changed, or that the alien could avoid a future

threat by relocating within the country. Tan, 446 F.3d at 1375; Mendoza, 327 F.3d

at 1287. Second, the alien can meet his burden of proof by showing that it is more

likely than not that he would be persecuted in the future on account of a protected

ground. Tan, 446 F.3d at 1375. The alien cannot make this showing, however, if

the IJ finds that the alien could avoid a future threat by relocating to another part of

his country. Id.

       We conclude that substantial evidence supports the IJ’s denial of the

petitioners’ application for withholding of removal.4 First, the petitioners failed to

establish that they suffered past persecution. See Sepulveda, 401 F.3d at 1231

(stating that “persecution is an extreme concept, requiring more than a few isolated

incidents of verbal harassment or intimidation”) (quotation marks omitted).

Although Parra received threatening telephone calls from the FARC and was

detained but not harmed for part of one day, these events do not compel a finding

that Parra suffered past persecution. Id. (concluding that menacing telephone calls



       4
          Because the BIA expressly adopted and affirmed the IJ’s decision, we review the IJ’s
decision in this case. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). The IJ’s
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.” Id. at 1283-84 (quotation marks omitted). Under this highly deferential
standard of review, the IJ’s factual determinations can be reversed “only when the record
compels a reversal; the mere fact that the record may support a contrary conclusion is not
enough to justify a reversal . . . .” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004)
(en banc), cert. denied, 544 U.S. 1035, 125 S. Ct. 2245 (2005).
                                                   10
and threats did not compel a finding of past persecution); Zheng v. U.S. Att’y

Gen., 451 F.3d 1287, 1290-91 (11th Cir. 2006) (concluding that a five-day

detention where there was no evidence of harm did not compel a finding of past

persecution).

      Second, the record does not compel a finding that this alleged persecution

was on account of Parra’s political opinion, as opposed to his refusal to cooperate

with the FARC and give them money. See Sanchez v. U.S. Att’y Gen., 392 F.3d

434, 438 (11th Cir. 2004). There is little, if any, evidence in the record showing

that the FARC was even aware of Parra’s political opinion. Further, Parra cannot

demonstrate persecution on account of his political opinion, actual or imputed,

simply by showing that he was threatened for refusing to cooperate with the

FARC’s extortionate demands. As this Court has explained:

      To qualify for withholding of removal based on persecution by a
      guerilla group on account of a political opinion, [the petitioner] must
      establish that the guerillas persecuted [him] or will seek to persecute
      [him] in the future because of [his] actual or imputed political opinion.
      It is not enough to show that [he] was or will be persecuted or tortured
      due to [his] refusal to cooperate with the guerillas.

Id. (citation omitted). Finally, there is nothing in the record to compel a reversal of

the IJ’s determination that the petitioners failed to show that they would more

likely than not suffer persecution if they returned to Colombia.




                                          11
E.     Denial of Motion to Reopen

       A petitioner may file a motion to reopen with the BIA which “shall state the

new facts that will be proven at a hearing to be held if the motion is granted and

shall be supported by affidavits or other evidentiary material.” 8 C.F.R.

§ 1003.2(c)(1). “A motion to reopen proceedings shall not be granted unless it

appears to the [BIA] that evidence sought to be offered is material and was not

available and could not have been discovered or presented at the former hearing.”

Id.

       The BIA did not abuse its discretion by denying the petitioners’ motion to

reopen.5 The petitioners’ motion was based on the fact that they had obtained a

copy of Esteban’s asylum application, which was not available at the time of their

asylum hearing. We agree with the BIA that this evidence did not constitute new

facts sufficient to justify reopening the proceedings given that (1) the IJ already

was aware that Esteban had been granted asylum, and (2) Esteban had testified

regarding his asylum claims at the petitioners’ hearing. Furthermore, based on

these same reasons, we conclude that there was no due process or equal protection




       5
        We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. U.S.
Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). This review is “limited to determining whether
there has been an exercise of administrative discretion and whether the matter of exercise has
been arbitrary or capricious.” Id. (quotation marks omitted). The petitioners’ constitutional
claims are reviewed de novo. Id.
                                                12
violation as a result of the IJ’s decision to conduct the petitioners’ hearing without

a copy of Esteban’s asylum application.

                                III. CONCLUSION

      For the above reasons, we dismiss in part and deny in part the petitions for

review.

      PETITIONS DISMISSED in part; DENIED in part.




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