                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                                FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                          JUNE 22 2007
                                     No. 06-13968                       THOMAS K. KAHN
                               ________________________                     CLERK


                                 Agency No. A95-255-313

CARLOS AUGUSTO ALZATE-ZULETA,
FRANCY TRUJILLO,
JULIAN DAVID ALZATE,
CARLOS AUGUSTO ALZATE-TRUJILLO,
NATALIA ALZATE,

                                                                                   Petitioners,

                                            versus

U.S. ATTORNEY GENERAL,

                                                                                  Respondent.

                               ________________________

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

                                       (June 22, 2007)

Before BIRCH and FAY, Circuit Judges, and DUFFEY,* District Judge.


       *
        Honorable William S. Duffey, Jr., United States District Judge for the Northern District
of Georgia, sitting by designation.
PER CURIAM:

       Petitioner Carlos Augusto Alzate1 seeks review of the decision of the Board

of Immigration Appeals (“BIA”) affirming the Immigration Judge (“IJ”)’s 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”). Alzate alleges that he was

persecuted in his home country of Colombia on account of his membership in

Colombia’s Conservative Party. Because we find that Alzate has successfully

demonstrated past persecution on account of a political opinion, we GRANT his

petition for review, VACATE the decision of the IJ, as affirmed by the BIA, and

REMAND for a determination of whether the government adduced sufficient

evidence to establish, by a preponderance of the evidence, (1) that Alzate could

avoid future persecution by relocating within Colombia, and (2) that, under all the

circumstances, it would be reasonable for him to do so. See 8 C.F.R. §

208.13(b)(1)(i)(B).

                                    I. BACKGROUND

       Alzate is a Colombian citizen and active in that country’s Conservative

Party. He came to the United States in 2001, and timely filed an application for

       1
         Alzate’s petition is derivative on behalf of his wife, Francy Trujillo, and his minor
children, Julian David Alzate, Carlos Augusto Alzate, Jr., and Natalia Alzate. For convenience,
this opinion refers to the petitioners collectively as “Alzate” or “Petitioner.”
                                                   2
asylum, withholding of removal, and relief under the CAT. At a merits hearing in

April 2005, Alzate testified as to the basis of his claims for relief.

      Alzate stated that while he was growing up, his “entire family” was active in

the Conservative Party, and that he had personally been active in the party since his

childhood. After finishing high school in 1976, he obtained his first job through

his involvement with the Conservative Party, and in 1984 he took a job in the

government, which he “support[ed]” by “perform[ing] political activities.” AR at

84-85. He later took another public-sector job that involved supervising “garbage

collection, the cleaning of the streets, [and] the maintenance of vegetation in the

city of Cali.” Id. at 86. He testified that this was a political job connected to the

Conservative Party. Alzate stated that in addition to his duties as a supervisor of

maintenance work, he also worked with youth through sports, social events, and

political activities, as a way to involve them in their communities and prevent them

from becoming involved in “subversive groups.” Id. at 89.

      In 2000, Alzate began to receive threatening calls at his home from people

who identified themselves as members of the guerrilla group known as the FARC.

He testified that his telephone number was publicly listed, and he could not delist it

due to the requirements of his government job. He recounted that the callers

“[t]hreatened” him, and instructed him “to leave the area . . . to stay away from the

youth . . . to get out of there, because [he] was a son of a bitch,” and stated that if
                                            3
he did not do so, “they were going to harm [him] and [his] family.” Id. at 91.

When the calls began, they occurred two to three times a week, but over time, the

frequency of the calls increased. Alzate testified that the caller were pressuring

him “to stay away from the area because [he] was working for democratic ideals”

and because he “was working for one of the traditional parties of Colombia, the

Conservative.” Id. at 92. In addition to the telephone calls, Alzate’s neighbors told

him that “strange and unknown individuals” had been asking about Alzate and his

family, and specifically inquiring as to when Alzate and his family typically came

and went from the house. Id. at 92-93.

      On 16 February 2001, Alzate was riding his motorcycle with his wife, when

they were approached by two people wearing face masks and riding a black

motorcycle. The individuals on the black motorcycle fired two gunshots at Alzate

and his wife, who then dropped their motorcycle and ran into an alley asking for

help. The assailants disappeared into traffic. Alzate used a portable radio to call a

colleague, who then called the police. The police came to investigate, but did not

find the assailants. Alzate did not file a formal police report, because he believed

that doing so would increase his chances of being killed, due to infiltration of the

police department by the FARC.

      After the shooting incident, the threatening calls to Alzate’s home increased.

The callers identified themselves as FARC members, and at least one such call
                                           4
explicitly referred to the shooting incident, telling Alzate that “next time [he is] not

going to survive another attack,” and that if he “didn’t leave the area or district

fast, they were going to kill [him] and [his] family.” Id. at 96.

      As a result of the shooting incident and the constant death threats, Alzate

decided to leave his government job, and formed a private garbage collection

company that contracted with the municipality. He believed that by leaving the

public sector, he was no longer going to be “exposed to the constant danger . . . on

the streets.” Id. at 97. Despite his move to the private sector, however, “the calls

continue[d] and the situation worsen[ed].” Id. Finally, as a result of the shooting

and the constant threats from the FARC, Alzate decided to move his family to the

United States.

      After the hearing, the IJ delivered his opinion. He began by finding that

Alzate’s testimony was credible and consistent with his asylum application.

Despite this finding, however, the IJ stated that Alzate had not established

eligibility for asylum. The IJ relied primarily on two grounds: first, the IJ

observed that the events in question “happened almost five years ago.” Id. at 53.

Second, the IJ stated that Alzate had not proven that he was unable to avoid

persecution by relocating within Colombia. The IJ then reasoned that, because

Alzate did not qualify for asylum, he could not meet the higher threshold

applicable to claims for withholding of removal. Finally, the IJ stated that Alzate
                                            5
had not been subjected to torture and therefore could not receive relief under the

CAT. The BIA summarily affirmed the IJ’s decision.

                                 II. DISCUSSION

       When, as here, the BIA summarily affirms the IJ’s decision without issuing

a separate opinion, “the IJ’s decision becomes the final removal order,” and “[w]e

review the IJ’s decision as if it were the [BIA]’s.” Alim v. Gonzales, 446 F.3d

1239, 1254 (11th Cir. 2006) (internal citations and quotations omitted). “[W]e

must affirm the IJ’s decision if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Sepulveda v. U.S. Att’y

Gen., 401 F.3d 1226, 1230 (11th Cir. 2005) (per curiam) (citation, quotation, and

alteration omitted). This standard of review is highly deferential, and we will

reverse the IJ’s decision only if the evidence compels us to do so. Id.

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

asylum, which the Attorney General has discretion to grant if the alien is a

“refugee” as that term is defined in the Immigration and Nationality Act (“INA”).

Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (per curiam) (citing

INA § 208(a)(1), (b)(1), 8 U.S.C. § 1158(a)(1), (b)(1)). A “refugee” is defined, in

pertinent part, as:

       any person who is outside any country of such person’s nationality . . .
       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
                                           6
       persecution or a well-founded fear of persecution on account of race,
       religion, nationality, membership in a particular social group, or
       political opinion . . . .

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). An asylum applicant “may

qualify as a refugee either because he or she has suffered past persecution or

because he or she has a well-founded fear of future persecution.” 8 C.F.R. §

208.13(b). By demonstrating past persecution based on a protected ground, an

applicant creates a rebuttable presumption that he or she has a well-founded fear of

future persecution. Id., § 208.13(b)(1). The government may rebut that

presumption by showing, by a preponderance of the evidence, that “[t]he applicant

could avoid future persecution by relocating to another part of the applicant’s

country of nationality . . . and, under all the circumstances, it would be reasonable

to expect the applicant to do so.” Id., § 208.13(b)(1)(i)(B), (b)(1)(ii).2

       We have held 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 quotation omitted). “In determining whether an alien has suffered

past persecution, the IJ must consider the cumulative effects of the incidents,”



       2
         The government may also rebut the presumption by showing that “[t]here has been a
fundamental change in circumstances such that the applicant no longer has a well-founded fear
of persecution in the applicant’s country of nationality.” 8 C.F.R. § 208.13(b)(1)(i)(A). Here,
however, the government has not sought to prove a fundamental change in circumstances, and on
appeal the government raises only the issue of Alzate’s ability to relocate. Accordingly, we do
not address whether a “fundamental change in circumstances” has occurred in Colombia.
                                                  7
rather than viewing each incident in isolation. Delgado v. U.S. Att’y Gen., __ F.3d

__, No. 05-16419, slip op. at 8 (11th Cir. May 25, 2007) (citing Ruiz v. U.S. Att’y

Gen., 479 F.3d 762, 766 (11th Cir. 2007)).

      The IJ erred in not finding that Alzate was subject to past persecution on

account of his political opinion. Though persecution requires “more than a few

isolated incidents of verbal harassment or intimidation,” Sepulveda, 401 F.3d at

1231 (internal quotation omitted), the record in this case compels a finding of past

persecution. Rather than “a few isolated incidents” of harassment, Alzate received

repeated death threats from self-identified members of the FARC, and the threats

occurred with increasing frequency until Alzate finally fled Colombia with his

family. In addition to the verbal threats, Alzate’s neighbors informed him that

unknown individuals were asking about Alzate’s and his family’s habits with

respect to coming and going from their home. The threats culminated in the

attempted murder of Alzate and his wife in the streets of Cali by gunmen later

identified as FARC members. After the shooting Alzate continued to receive

increasingly frequent death threats from callers who identified themselves as

FARC members, including calls referring to the attempted murder of Alzate and

his wife, and stating that he would not survive another attack. The threats

continued until Alzate brought his family to the United States. These events,

including unrelenting death threats from the FARC, suspicious individuals asking
                                          8
about Alzate’s family’s habits, and the attempted shooting of Alzate and his wife

by the FARC, cumulatively amount to past persecution. See Ruiz, 479 F.3d at 766;

Delgado, __ F.3d __, No. 05-16419, slip op. at 9. The IJ’s finding to the contrary

is not supported by substantial evidence.

      Moreover, Alzate’s persecution was on account of his political activities, a

statutorily protected ground. Alzate was a lifelong member of, and active in, the

Conservative Party. He worked with youth in Cali, attempting to prevent them

from becoming involved in “subversive groups.” AR at 89. The FARC expressly

referred to this work in its threats. The FARC’s overt reference to Alzate’s

political activities compel us to find that the FARC’s persecution of Alzate was on

account of those activities, see Delgado, __ F.3d __, No. 05-16419, slip op. at 3-4,

8-9 (record compelled finding that persecution was on account of political opinion

where references to petitioner’s political activities preceded attacks), and at oral

argument the government candidly acknowledged that the events at issue occurred

on account of Alzate’s political opinion. Accordingly, we are compelled to find

that Alzate established past persecution on account of his political opinion, and the

IJ erred in finding otherwise.

      The IJ’s determination that Alzate could not qualify for asylum because the

events in question occurred “almost five years ago” is also erroneous. It is

undisputed that the FARC’s persecution of Alzate and his family continued
                                            9
unabated until they left Colombia for the United States. It is also undisputed that,

upon reaching the United States, Alzate filed a timely application for relief.

During the five years at issue, Alzate was actively pursuing his timely filed asylum

application in the instant proceeding. Nonetheless, the IJ premised his denial of

asylum, in part, on the fact that several years had passed between the time Alzate

initiated the process of seeking asylum and the time a merits hearing was held.

      The IJ identified no authority for the proposition that relief may be denied

on account of the time that passed while an alien actively pursued relief, and

denying relief on that basis was improper. An alien is not ineligible for asylum

merely because of the time that passed between the filing of an asylum application

and the date of a merits hearing, and we have routinely found petitioners eligible

for relief on the basis of events that occurred many years earlier. See, e.g., id., No.

05-16419, slip op. at 3-4 (finding petitioner eligible for withholding of removal on

the basis of events that occurred nine years prior to our decision); Niftaliev v. U.S.

Att’y Gen., __ F.3d __, No. 06-12708, slip op. at 1-2 (11th Cir. May 25, 2007)

(finding past persecution for purposes of asylum eligibility on basis of events that

occurred more than a decade prior to our decision); Ruiz, 479 F.3d at 763-64

(finding petitioner eligible for withholding of removal on basis of events that

occurred six years prior to our decision).

      The IJ also improperly placed the burden on Alzate to show that he could
                                             10
not avoid persecution by relocating within Colombia, citing a lack of evidence on

the issue as a basis for denying Alzate’s application. Because Alzate established

past persecution on account of a protected ground, however, the burden is on the

government to show both the feasibility and reasonableness of internal relocation.

See 8 C.F.R. § 208.13(b)(1)(ii). Thus, a lack of evidence on the issue does not

render Alzate ineligible for relief. Only if the government adduced sufficient

affirmative evidence at the asylum hearing to show, by a preponderance of the

evidence, both that Alzate could avoid future persecution by relocating within

Colombia, and that, “under all circumstances, it would be reasonable to expect

[him] to do so,” is Alzate’s presumption of a well-founded fear of future

persecution rebutted. See id., § 208.13(b)(1)(i)(B).

                               III. CONCLUSION

      The record here compels a finding that Alzate suffered past persecution on

account of his political opinion. Because the IJ erroneously found that Alzate did

not suffer past persecution on account of a protected ground, the IJ did not reach

the question of whether the government proved by a preponderance of the evidence

that Alzate could avoid future persecution by relocating, and that such relocation

would be reasonable under all of the circumstances. We therefore GRANT

Alzate’s petition, VACATE the decision of the IJ, and REMAND for a

determination as to whether the government carried this burden.
                                         11
