                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                     FILED
                       ________________________         U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             December 17, 2007
                             No. 07-11622                    THOMAS K. KAHN
                         Non-Argument Calendar                   CLERK
                       ________________________

                          BIA No. A95-908-393

HENRY ALBERTO ALVARADO MONTOYA,


                                                                    Petitioner,


                                  versus


U.S. ATTORNEY GENERAL,


                                                                  Respondent.


                       ________________________

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

                           (December 17, 2007)

Before BIRCH, DUBINA and HULL, Circuit Judges.

PER CURIAM:
      Henry Alberto Alvarado Montoya (“Alvarado”), petitions for review of the

Board of Immigration Appeals’ (“BIA”) decision affirming the immigration

judge’s (“IJ”) order denying his application for 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

dismiss in part and deny in part Alvarado’s petition.

                                I. BACKGROUND

      Alvarado, a native and citizen of Colombia, arrived in the United States on

February 11, 1999. On July 5, 2002, Alvarado filed an application for asylum,

withholding of removal and CAT relief. In his application, Alvarado claimed that

he was persecuted by the Colombian Revolutionary Armed Forces (“FARC”) in

Colombia on account of his religion. On February 10, 2005, the Immigration and

Naturalization Service (“INS”) issued a notice to appear, charging Alvarado with

removability under the Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8

U.S.C. § 1227(a)(1)(B), for remaining in the United States longer than permitted.

At his initial hearing, Alvarado admitted the charges and conceded removability.

      According to Alvarado’s application and hearing testimony, Alvarado

worked as a missionary with the Cumberland Presbyterian Church (“CPC”), a

church that operates in both Colombia and the United States. Six times a year

Alvarado would go on a mission to work with Colombia’s Indians in remote areas
                                          2
of the country. During one of these trips in September 1998, Alvarado was

speaking to a group of young people when he was approached by the FARC. The

FARC guerillas verbally harassed him and accused him of being a spy for the

“gringos” and using the CPC as his front. One of the guerillas hit Alvarado in the

head with his gun, leaving Alvarado unconscious. During this same month,

Alvarado received a threatening telephone call from a FARC member who accused

Alvarado of being a spy disguised as a missionary and warned Alvarado not to go

on any more missions.

      In November 1998, Alvarado traveled as part of a group of missionaries to a

remote Indian village. FARC guerillas detained the missionary group. The FARC

let the other members of the missionary group go after two days, but held Alvarado

captive for another four days. During that time, the FARC kept Alvarado locked

up, threatened him with their weapons and interrogated him continuously and

accused him of being a spy. The FARC finally let Alvarado go and told him to

carry a message to the CPC that the FARC would not allow any more missions into

the area.

      After Alvarado was released, he received more threatening telephone calls

from FARC members and was told he was a “military objective.” Alvarado left for

the United States after he received another threatening call in January 1999.



                                          3
      Alvarado testified that, if he returned to Colombia, his life would be in

danger because the FARC has designated him to be a military objective. Alvarado

stated that the FARC believe that his “true mission” was to conduct intelligence

tests in the region where his missions took place and that, even if he ceased his

missionary work, the FARC would still come after him because they consider him

to be a spy who was gathering information.

      Alvarado submitted as evidence the 2004 Country Report for Colombia,

which stated, inter alia, that among the FARC’s primary targets are religious

leaders, but that although it sometimes killed, threatened or harassed religious

leaders and activists, this was usually done for political rather than religious

reasons.

      The IJ denied Alvarado all relief. The IJ found that Alvarado’s asylum

application was untimely. As to the withholding claim, the IJ found that Alvarado

had failed to show that it was more likely than not that Alvarado was persecuted or

would be persecuted on account of his religion given that the FARC targeted

Alvarado because it thought he was a spy. The IJ also denied CAT relief because

Alvarado had failed to show that it was more likely than not that a government

official or someone acting under an official would consent to Alvarado’s torture if

he returned to Colombia.



                                           4
       Alvarado appealed to the BIA, challenging only the IJ’s asylum and

withholding of removal rulings. The BIA dismissed Alvarado’s appeal, finding,

inter alia, (1) that the incidents Alvarado described did not rise to the level of

persecution; and (2) that Alvarado had not shown that any alleged persecution was

on account of one of the five protected grounds because the FARC’s interest in

Alvarado was based on its perception that Alvarado was a spy and not a true

evangelist. The BIA agreed with the IJ’s finding that Alvarado did not face a

“clear probability of persecution” if returned to Colombia, and therefore he did not

merit withholding of removal. The BIA noted that Alvarado’s wife remained

“apparently unharmed” in Colombia. Finally, although Alvarado had not

challenged the IJ’s denial of CAT relief, the BIA affirmed the IJ’s conclusion that

Alvarado failed to demonstrate that he more likely than not would be tortured in

Colombia. Alvarado filed this petition for review.

                                    II. DISCUSSION

       On appeal, Alvarado challenges the denial of withholding of removal and

CAT relief.1 We lack jurisdiction to review the merits of Alvarado’s CAT claim

because he failed to raise it before the BIA. See Sundar v. INS, 328 F.3d 1320,

1323 (11th Cir. 2003) (concluding that the exhaustion requirement in 8 U.S.C. §

       1
        Alvarado does not challenge the IJ and the BIA’s determinations that his asylum claim
was untimely. Therefore, we do not address this claim further. See Mendoza v. U.S. Att’y Gen.,
327 F.3d 1283, 1286 n.3 (11th Cir. 2003).
                                                5
1252(d) is jurisdictional and bars review of claims not raised before the BIA);

Amaya-Artunduaga v. U.S. Att’y Gen. 463 F.3d 1247, 1250 (11th Cir. 2006)

(concluding that when a petitioner fails to raise an argument in either his notice of

appeal or brief before the BIA, the petitioner has failed to exhaust his

administrative remedies even if the BIA addressed the issue sua sponte); see also

INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). Thus, we address the merits of only

Alvarado’s withholding of removal claim.2

       An alien is entitled to withholding of removal if he can show that his life or

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

membership in a particular social group or political opinion. Mendoza v. U.S.

Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003); see also INA § 241(b)(3)(A), 8

U.S.C. § 1231(b)(3)(A). To qualify for withholding of removal, an alien must

show that it is more likely than not that he will be persecuted or tortured upon his

return to the country in question. INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107

S. Ct. 1207, 1212 (1987); Mendoza, 327 F.3d at 1287. The alien can meet this

burden by showing either: (1) “past persecution in his country based on a protected

       2
         Because the BIA issued its own decision and did not expressly adopt the IJ’s decision as
to Alvarado’s claim of withholding of removal, we review only the BIA’s decision. See Al
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review legal determinations de
novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001). We review the BIA’s
factual determinations under the substantial evidence test. Adefemi v. Ashcroft, 386 F.3d 1022,
1026-27 (11th Cir. 2004) (en banc). Under this highly deferential test, to reverse the BIA’s
decision “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).
                                                 6
ground,” in which case a rebuttable presumption is created that his life or freedom

would be threatened if he returned to his country; or (2) “a future threat to his life

or freedom on a protected ground in his country.” Mendoza, 327 F.3d at 1287; see

also 8 C.F.R. § 208.16(b)(1), (2).

       Here, the BIA concluded that Alvarado failed to establish that any past

persecution or feared future persecution was “on account of” his religion.3 After

review, we conclude that the record does not compel a finding to the contrary.4

       It is undisputed that the FARC singled out Alvarado while he was doing

missionary work with the Indians in Colombia because it believed Alvarado was a

spy working for the United States, and not because of Alvarado’s religious beliefs.



       3
         For the first time on appeal before this Court, Alvarado contends that he was also
persecuted “on account of” his membership in a particular social group. We agree with the
government that Alvarado did not properly exhaust this claim for several reasons. First,
Alvarado’s application for asylum and withholding of removal indicated that he was claiming
persecution based solely on his religion, and Alvarado did not argue to the IJ that he was
persecuted on account of his membership in a particular social group.
        Second, Alvarado’s brief before the BIA stated in a one-sentence conclusion that
Alvarado had a well-founded fear of “persecution based on membership in a protected class.”
However, Alvarado’s BIA brief did not contain any substantive argument or discussion as to
persecution on account of his membership in a particular social group and did not identify any
particular social group of which he was a member. Alvarado’s conclusory reference to being a
member of a “protected class” was insufficient to raise a claim that he was persecuted on
account of his membership in a particular social group. Because Alvarado did not raise his
social group claim before either the IJ or the BIA, we lack jurisdiction to review this claim. See
Sundar, 328 F.3d at 1323.
       4
         Because we conclude that substantial evidence supports the BIA’s finding that Alvarado
failed to show that any alleged past persecution was, or any feared future persecution would be,
“on account of” his religion, we do not address whether the FARC’s actions rise to the level of
persecution.
                                                 7
In fact, Alvarado testified that the FARC disbelieved that Alvarado was a

missionary and thought that Alvarado was using his missionary work as a cover to

conduct intelligence tests in the region. Furthermore, Alvarado testified that if he

returned to Colombia, even if he ceased his missionary work, he would continue to

be persecuted because of the FARC’s belief that he is a spy.5 Accordingly,

substantial evidence supports the BIA’s findings that Alvarado failed to establish a

sufficient nexus between the FARC’s targeting of him and his religion and that

Alvarado is statutorily ineligible for withholding of removal.

       PETITION DISMISSED IN PART, DENIED IN PART.




       5
        Alvarado does not now and never has argued that the FARC’s belief that he was a spy
constituted an imputed political opinion.
                                              8
