                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                               NOV 30, 2006
                            No. 06-11699                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                        Agency No. A96-270-299

EDINSON SIERRA-ESPITA,


                                                                    Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                  Respondent.


                      ________________________

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

                          (November 30, 2006)

Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Edinson Sierra-Espitia (Sierra), a native and citizen of Colombia, petitions

this Court for review of the Board of Immigration Appeals’ (BIA’s) order

affirming, without opinion, the immigration judge’s (IJ’s) final order of removal

and denial of asylum, withholding of removal, and relief under the United Nations

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

Punishment (CAT). After review, we deny Sierra’s petition.

                                 I. DISCUSSION

A. BIA’s Summary Affirmance

      On review, Sierra first argues the BIA erred by affirming, without opinion,

the IJ’s decision. Specifically, Sierra contends the BIA’s order does not show

whether the BIA actually considered his claims and deprives him of the chance to

challenge the BIA’s reasoning.

      We review constitutional challenges de novo. Lonyem v. U.S. Att’y Gen.,

352 F.3d 1338, 1341 (11th Cir. 2003). Aliens present in the United States are

entitled to due process under the Fifth Amendment. Bernal v. Att’y Gen., 257 F.3d

1304, 1311 (11th Cir. 2001). To establish a due process violation, an alien must

show he was deprived of liberty without due process of law and the asserted error

caused him substantial prejudice. Lonyem, 352 F.3d at 1341–42.

      Under 8 C.F.R. § 1003.1(e)(4), a single member of the BIA may affirm,

without opinion, the decision of the IJ. We have previously rejected the argument
                                         2
that the BIA’s summary affirmance procedures deprive aliens of due process.

Lonyem, 352 F.3d at 1342; Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1288 (11th

Cir. 2003). We have noted “no entitlement to a full opinion by the BIA exists,”

and the fact “a single BIA member issued an affirmance without opinion (AWO)

does not demonstrate that he did not review the facts” of the case. Lonyem, 352

F.3d at 1342. We have also explained “meaningful review of the INS’s

removability determination is not precluded by the brevity of the BIA’s summary

affirmance decision because an appellate court ‘will continue to have the IJ’s

decision and the record upon which it is based available for review.’” Mendoza,

327 F.3d at 1289 (citing Albathani v. INS, 318 F.3d 365, 377 (1st Cir. 2003)).

      Accordingly, we conclude the BIA did not violate Sierra’s due process rights

by summarily affirming the IJ’s decision.

B. Denial of Asylum, Withholding of Removal, and Relief Under CAT

      Sierra also argues the IJ erred in finding he did not present sufficient

evidence to establish eligibility for the relief sought. He contends that, because the

IJ found Sierra’s testimony credible, the IJ contradicted herself when she found

Sierra failed to show past persecution. Sierra further argues the IJ made an

“unjustified inference” when she suggested Sierra might have been shot at by

“criminals or anybody else.” Sierra also points to cases from other circuits in

                                            3
which death threats by anonymous callers were considered sufficient evidence of

persecution. Additionally, Sierra contends the status of an appellant’s family is

irrelevant to the question of whether the fear of prosecution is valid, and therefore,

the IJ improperly based her conclusion on the fact that Sierra’s wife and daughter

had not been harmed. Sierra also maintains the IJ’s “obsessive insistence” on

corroboration was improper because there are cases in which such evidence is not

necessary or available, and the IJ gave no explanation regarding why it was

necessary in this case. Also, Sierra claims he showed he had at least a ten percent

chance of persecution if he returned to Colombia, which is all that is required to

meet the statutory requirements. Lastly, Sierra points to other circuits that have

held a petitioner can prove a well-founded fear of persecution by pointing to the

treatment of other similarly situated people, and, therefore, the IJ erred in requiring

Sierra to show he would be individually targeted.

      Where, as here, the BIA summarily affirms the IJ’s decision without an

opinion under 8 C.F.R. § 1003.1(e)(4), the IJ’s decision becomes the final agency

determination subject to review. See Mendoza, 327 F.3d at 1284 n.1. To the

extent the IJ’s decision was based on a legal determination, we review the decision

de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). 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
                                           4
probative evidence on the record considered as a whole.” Al Najjar v. Ashcroft,

257 F.3d 1262, 1283–84 (11th Cir. 2001) (internal quotations omitted). We will

reverse a finding of fact “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).

      1. Asylum

      An alien who arrives in or is present in the United States may apply for

asylum. 8 U.S.C. § 1158(a)(1). The Attorney General and the Secretary of

Homeland Security have discretion to grant asylum if the alien meets the INA’s

definition of a “refugee.” 8 U.S.C. § 1158(b)(1).

      A “refugee” is:

      any person who is outside any country of such person’s nationality or,
      in the case of a person having no nationality, is outside any country in
      which such person last habitually resided, and who is unable or
      unwilling to return to, and is 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). The asylum applicant carries the burden of proving

statutory “refugee” status. See Al Najjar, 257 F.3d at 1284.




                                          5
      An alien is entitled to asylum if he can establish, with specific and credible

evidence, (1) past persecution on account of political opinion or other statutorily

listed factor, or (2) a well-founded fear that his political opinion or other statutorily

listed factor will cause future persecution. 8 C.F.R. § 208.13(b); Al Najjar, 257

F.3d at 1287. If a petitioner demonstrates past persecution, he is presumed to have

a well-founded fear of future persecution unless the government can rebut this

presumption by showing a fundamental change in circumstances in the country or

the ability to avoid future persecution by relocating within the country. 8 C.F.R.

§ 208.13(b)(1).

      If a petitioner cannot show past persecution, he must demonstrate a well-

founded fear of future persecution that is both subjectively genuine and objectively

reasonable. See Al Najjar, 257 F.3d at 1289. The subjective component can be

proved “by the applicant’s credible testimony that he or she genuinely fears

persecution,” while the objective component “can be fulfilled either by establishing

past persecution or that he or she has a good reason to fear future persecution.” Id.

(internal quotations omitted). After establishing a well-founded fear of

persecution, a petitioner must also establish the persecution cannot be avoided by

relocating within the country. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231

(11th Cir. 2005). A petitioner’s claim that he cannot safely relocate in his home

country to avoid future persecution is undermined by evidence that his family
                                            6
remained without incident in the same region where the petitioner had allegedly

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

2006).

         Although the INA does not expressly define “persecution” for purposes of

qualifying as a “refugee,” see 8 U.S.C. § 1101(a)(42), we have stated that

“persecution is an extreme concept, requiring more than a few isolated incidents of

verbal harassment or intimidation.” Sepulveda, 401 F.3d at 1231 (internal

quotations omitted).

         Substantial evidence supports the IJ’s finding that Sierra did not show past

persecution. Although Sierra testified he had received threatening phone calls

from members of the Revolutionary Armed Forces of Colombia (FARC) informing

him that he and his family would be killed if he did not cease his political activity,

we have held menacing phone calls and threats do not rise to the level of past

persecution. Id. Likewise, Sierra’s testimony that two FARC members threatened

him once in person is not sufficient evidence of persecution. Sierra also points to

an incident in which he was shot at by two men on a motorbike. Sierra concluded

that the men must have been FARC members because he did not have any other

enemies. Although the timing of the incident permits an inference that the shooters




                                            7
were FARC members targeting Sierra for his political beliefs, the record does not

compel this conclusion.

      Substantial evidence also supports the IJ’s finding that Sierra did not show a

well-founded fear of future persecution. While Sierra may subjectively fear future

prosecution, the evidence in the record does not demonstrate that his fear is

objectively reasonable. The FARC began targeting Sierra in early 2002, when

Sierra began holding meetings at his restaurant in support of the presidential

campaign of Alvaro Uribe, a liberal party candidate who is now the president of

Colombia. In mid 2002, however, Sierra sold his restaurant and left Colombia.

Sierra testified that, prior to campaigning for Uribe, he did not receive any threats

from the FARC. Additionally, although Sierra testified that his wife received

menacing phone calls after he left the country, he also admitted that the phone calls

ceased in 2003 and his wife and daughter remain unharmed in Colombia. Further,

Sierra produced no evidence that he would again be involved in politics if he

returned to Colombia. Because the evidence in the record does not compel the

conclusion that Sierra’s fear is objectively reasonable, the IJ’s decision to deny

asylum is supported by substantial evidence.




                                           8
      2. Withholding of Removal

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

his life or freedom would be threatened on account of race, religion, nationality,

membership in a particular social group, or political opinion. Mendoza, 327 F.3d

at 1287; 8 U.S.C. § 1231(b)(3)(A). As a general rule, however, if “an applicant is

unable to meet the well-founded fear standard for asylum, he is generally

precluded from qualifying for either asylum or withholding of deportation.” Al

Najjar, 257 F.3d at 1292–93 (internal quotations omitted). Because Sierra failed to

establish a well-founded fear of persecution sufficient to support his asylum claim,

he also failed to satisfy his burden for withholding of removal.

      3. Relief Under CAT

      To obtain relief under the CAT, the burden is on the applicant to establish

that it is “more likely than not” he will be tortured in the country of removal. 8

C.F.R. § 208.16(c)(2). Torture is defined 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 her 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 or with the consent or acquiescence of a public
      official or other person acting in an official capacity.

                                           9
Id. § 208.18(a)(1). Because the standard for relief under CAT relief is higher than

the standard for asylum, a petitioner who fails to establish eligibility for asylum is

usually unable to carry his burden for relief under CAT. See Al Najjar, 257 F.3d at

1303–04. Because Sierra failed to establish his eligibility for asylum, his claim for

relief under CAT also fails.

                                  II. CONCLUSION

      The BIA did not violate Sierra’s due process rights by summarily affirming

the IJ’s decision. Additionally, substantial evidence supports the IJ’s finding that

Sierra is not entitled to asylum, withholding of removal, or relief under CAT.

      PETITION DENIED.




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