                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                 July 22, 2008
                               No. 07-15873                    THOMAS K. KAHN
                           Non-Argument Calendar                   CLERK
                         ________________________

                            BIA No. A98-561-367

MARIANO SERVO REYNOSO,
a.k.a. Mariano Servo Reynoso Fuentes,

                                                                      Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.


                         ________________________

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

                                (July 22, 2008)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Mariano Servo Reynoso, a native and citizen of Peru, seeks, through

counsel, review of the Board of Immigration Appeals’s (“BIA”) decision affirming

the Immigration Judge’s (“IJ”) order of removal and denial of asylum and

withholding of removal under the Immigration and Nationality Act (“INA”), 8

U.S.C. §§ 1158, 1231(b)(3), and relief under the United Nations Convention

Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

(“CAT”), 8 C.F.R. § 208.16(c). The IJ and BIA found that Reynoso’s application

for asylum was untimely and that Reynoso had not demonstrated exceptional

circumstances to justify this untimeliness. The IJ and BIA also found that Reynoso

had not demonstrated that it was more likely than not that he would be persecuted

or tortured if returned to Peru. For the reasons discussed more fully below, we

dismiss the petition in part and deny the petition in part.

                                        I. Facts

      Reynoso entered the United States on October 21, 2002. On March 29,

2005, he filed an application for asylum, withholding of removal, and CAT relief,

claiming that he had been or would be persecuted or tortured on account of his

imputed political opinion.

      In his application and at his asylum hearing, Reynoso claimed the following.

He was the public accountant and auditor for the Peruvian Defense Department.

Because of his position as auditor, he was required to remain politically neutral. In
                                           2
the course of his auditing employment, he discovered evidence of fraudulent

activity by high-level officials within the administration of former President

Alberto Fujimori. He documented his findings in a written report. The report was

classified and not intended for public disclosure. His supervisor, Colonel Limber

Almonte, however, asked Reynoso to publicly disclose the findings. His

supervisor reasoned that the report’s incrimination of high-ranking officials loyal

to the former president would accelerate the replacement of these individuals with

others who were loyal to then-current President Alejandro Toledo. Reynoso

refused, citing the classified nature of his report. Following his refusal, Reynoso

and his family were persecuted.

      Specifically, Reynoso began receiving threatening telephone calls from

people promising harm to him and his family. He continued to receive these

threats on a weekly basis for three years. He and his wife both suffered physical

stress and illness as a result of these threats. Also, Reynoso’s house was

burglarized. The burglars stole two television sets. His niece reported the burglary

to the police, but the police did not take action or maintain any records of the

incident. Furthermore, Reynoso was demoted and transferred to a different

division in March 2000.

      Eventually, Reynoso and his wife both were forced to resign their jobs and

flee to the United States. He also brought his 19-year-old daughter to the United
                                           3
States. His 22-year-old daughter, a daughter from a previous marriage, and his

mother, however, remained in Peru without incident. Reynoso feared returning to

Peru, though, because Toledo’s supporters remained. He was unable to relocate

within Peru because he was well-known by many people in the military throughout

the country.

      Reynoso explained that his application for asylum was not filed within one

year of his arrival in the United States because it originally was being prepared by

people at his church and he was expelled from the church before the application

was complete. Reynoso also explained that, while his partially completed

application was sent to him by the church, he never filed the paperwork on his own

because he was ill at the time.

                                     II. Asylum

      We review our subject-matter jurisdiction de novo. Gonzalez-Oropeza v.

U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). An alien can apply for

asylum if he “demonstrates by clear and convincing evidence that the application

has been filed within 1 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). An application filed after

one year may also be considered “if the alien demonstrates to the satisfaction of the

Attorney General either the existence of changed circumstances which materially

affect the applicant’s eligibility for asylum or extraordinary circumstances relating
                                           4
to the delay in filing an application within the period specified . . . .” INA

§ 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). Nevertheless, § 1158(a)(3) provides that

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

General under paragraph (2).” 8 U.S.C. § 1158(a)(3); Alim v. Gonzales, 446 F.3d

1239, 1253 (11th Cir. 2006) (holding that, because the IJ denied an asylum

application as untimely, we lacked subject-matter jurisdiction to review the final

order of removal as it pertained to the asylum claim). This jurisdiction stripping

provision remains in effect after the REAL ID Act of 2005, Pub. L. No. 109-13,

119 Stat. 231, 310 (2005). Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957

(11th Cir. 2005).1

       Both the IJ and the BIA found that Reynoso’s asylum application was

untimely and that he failed to establish changed or extraordinary circumstances

that excused the untimely application. Accordingly, we lack jurisdiction to

consider Reynoso’s asylum arguments on appeal and dismiss his petition in this

respect. See Alim, 446 F.3d at 1253.




       1
         Although Reynoso’s case commenced before the enactment of the REAL ID Act of
2005, the jurisdictional provisions do apply to his case. See REAL ID Act of 2005, § 106(b),
Pub. L. No. 109-13, 119 Stat. 231, 311 (stating that the jurisdictional provisions of 8 U.S.C.
§ 1252(a)(2)(D) “shall take effect upon the date of the enactment” and shall apply to any case “in
which the final administrative order of removal . . . was issued before, on, or after the date of the
enactment”).
                                                 5
                     III. Withholding of Removal and CAT Relief2

       When, as here, the BIA affirms the IJ’s conclusion but issues its own

reasoning, we review the BIA’s decision, “except to the extent that [the BIA]

expressly adopts the IJ’s opinion.” Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d

1239, 1242 (11th Cir. 2004) (quotation omitted). “Insofar as the [BIA] adopts the

IJ’s reasoning, we review the IJ’s decision as well.” Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). In conducting our review, we apply the

substantial evidence test to the BIA’s and IJ’s factual determinations. Id. at 1283.

Under this test, which is “highly deferential,” 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 1284 (quotation omitted). In order to reverse, “we

must find that the record not only supports reversal, but compels it.” Mendoza v.

U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).

       An applicant for withholding of removal and CAT relief is not subject to the

one-year time limitation placed on asylum applicants under INA § 208(a)(2)(B).

See 8 C.F.R.§ 208.16(b), (c) (describing the standards for awarding withholding of



       2
        The government argues on appeal that Reynoso abandoned his withholding-of-removal
and/or CAT-relief challenges by failing to raise arguments to this effect in his brief. However,
Reynoso clearly argued in his brief that he established his eligibility for withholding of removal
and CAT relief, such that he did not abandon these issues, and we will address them.
                                                 6
removal and CAT relief and not mentioning a one-year, or other, deadline for

seeking such relief).

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

more likely than not that his life or freedom would be threatened on account of his

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

opinion. 8 C.F.R. § 208.16(b). We have held that this list of protected grounds

also encompasses an “imputed political opinion,” or a political opinion falsely

attributed to the alien by his persecutors. Sanchez v. U.S. Att’y Gen., 392 F.3d

434, 438 (11th Cir. 2004). The alien can satisfy this burden by demonstrating that

he suffered past persecution on account of a protected ground, which gives rise to a

rebuttable presumption that his life or freedom would be threatened in the future if

he were to return. 8 C.F.R. § 208.16(b)(1). We have held, however, that “an alien

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

protected ground if the [IJ and/or BIA] finds that the alien could avoid a future

threat by relocating to another part of [his] country.” Tan v. U.S. Att’y Gen., 446

F.3d 1369, 1375 (11th Cir. 2006). Also, an alien’s allegations of a future threat are

less persuasive if the alien’s family remains in his country without incident. See

Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006).

      Furthermore, while the INA does not expressly define “persecution,” we

have recognized that it is “an extreme concept, requiring more than a few isolated
                                           7
incidents of verbal harassment or intimidation, and that [m]ere harassment does not

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

Cir. 2005) (quotations omitted) (finding that “menacing” telephone calls and

threats to the alien and her brother did not constitute past persecution). We

specifically have held that “employment discrimination” on account of an alien’s

political opinion, “which stops short of depriving an individual of a means of

earning a living[,] does not constitute persecution.” Barreto-Claro v. U.S. Att’y

Gen., 275 F.3d 1334, 1340 (11th Cir. 2001). We likewise have held that “evidence

that either is consistent with acts of private violence . . . , or that merely shows that

a person has been the victim of criminal activity, does not constitute evidence of

persecution based on a statutorily protected ground.” Ruiz, 440 F.3d at 1258.

      An alien seeking CAT relief must show that it is more likely than not that he

would be tortured if returned to the proposed country of removal. Reyes-Sanchez,

369 F.3d at 1242. The alien also must demonstrate that the feared torture would be

by the government or with the government’s awareness and failure to intervene.

Id. The CAT defines torture as:

      any act by which severe pain or suffering, whether physical or mental,
      is intentionally inflicted on a person for such purposes as obtaining
      from him or a third person information or a confession, punishing him
      or her for an act he or she or a third person has committed or is
      suspected of having committed, or intimidating or coercing him or her
      or a third person, or for any reason based on discrimination of any
      kind, when such pain or suffering is inflicted by or at the instigation of
                                            8
      or with the consent or acquiescence of a public official or other person
      acting in an official capacity.

See 8 C.F.R. § 208.18(a)(1). To constitute torture, an act must be specifically

intended to inflict severe physical or mental pain or suffering. 8 C.F.R.

§ 208.18(a)(5).

      Substantial evidence supports the IJ’s and BIA’s denial of withholding of

removal. See Al Najjar, 257 F.3d at 1284. The record does not compel a finding

that it is more likely than not that Reynoso will suffer future persecution. See 8

C.F.R. § 208.16(b). First, nothing that he experienced in the past, namely,

threatening telephone calls, a home burglary, and a demotion, rose to the level of

persecution. There is nothing to suggest that the telephone calls were anything

beyond mere harassment. See Sepulveda, 401 F.3d at 1231. Also, the limited

details provided by Reynoso regarding the home burglary suggest that it merely

was a criminal act not related to Reynoso’s imputed political opinion, as the

burglars stole two television sets. See Ruiz, 440 F.3d at 1258. Likewise, the

limited details provided by Reynoso regarding his demotion suggest that it merely

was, at most, an act of employment discrimination that did not strip him of his

ability to earn a living. See Barreto-Claro, 275 F.3d at 1340.

      Similarly, nothing demonstrates that Reynoso’s alleged attackers still will be

interested in him if he were returned to Peru. Indeed, Reynoso no longer holds the

                                          9
auditor position and more than four years had passed since he left Peru when he

appealed the BIA’s denial of relief. Also, Reynoso has offered no evidence that his

alleged persecutors are still seeking to cause him harm and actually testified that

his daughters and mother remain in Peru without harm. See Ruiz, 440 F.3d at

1259. Furthermore, the fact that his alleged persecutors harassed him for several

years without any attempts to make good on their threats or cause him physical

harm indicates they never intended to physically harm or torture him. Therefore,

Reynoso has not established that it is more likely than not that he would be harmed

if returned to Peru. See 8 C.F.R. § 208.16(b).

      Substantial evidence also supports the IJ’s and BIA’s denial of CAT relief.

See Al Najjar, 257 F.3d at 1284. The record does not compel a finding that it is

more likely than not that Reynoso will suffer torture if returned to Peru. See

Reyes-Sanchez, 369 F.3d at 1242; Mendoza, 327 F.3d at 1287. For the same

reasons that Reynoso has not demonstrated that his alleged persecutors still will be

seeking to harm him if he were returned to Peru, he also has not demonstrated that

these people, or others, will seek to inflict the sort of pain and suffering that

constitutes torture if he were returned to Peru. See 8 C.F.R. § 208.18(a)(1), (5).

Therefore, Reynoso has not established that it is more likely than not that he will

suffer torture if returned to Peru. See Reyes-Sanchez, 369 F.3d at 1242.



                                           10
Accordingly, because Reynoso has not demonstrated eligibility for withholding of

removal or CAT relief, we deny his petition in this respect.

      PETITION DISMISSED IN PART, DENIED IN PART.




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