                                                               [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                                 JAN 08, 2009
                               No. 08-11268                    THOMAS K. KAHN
                           Non-Argument Calendar                   CLERK
                         ________________________

                          Agency No. A98-873-559

GUILLERMO GONZALO GUERRA SANCHEZ,


                                                                       Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.


                         ________________________

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

                              (January 8, 2009)

Before CARNES, HULL and FAY, Circuit Judges.

PER CURIAM:

     Guillermo Gonzalez Guerra Sanchez, a citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ ("BIA") order affirming the

immigration judge's ("IJ") denial of withholding of removal and granting voluntary

departure. After review, we grant in part and deny in part the petition.

                                I. BACKGROUND

      Guerra Sanchez entered the United States without authorization on or about

September 15, 1998. On November 10, 2005, the Department of Homeland

Security issued a Notice to Appear charging him with removability under INA §

212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United

States without being admitted or paroled. Guerra Sanchez filed an application for

asylum, withholding of removal and relief under the Convention Against Torture

(“CAT”), claiming that he was persecuted in Guatemala because of his political

opinion and race.

      According to his application and hearing testimony, Guerra Sanchez was a

shoemaker in Guatemala. In 1996, Guerra Sanchez campaigned for a political

party, XEL.JU, and its mayoral candidate in Quetzaltenango, Guatemala’s second

largest city. The mayoral candidate, like Guerra Sanchez, was of Mayan descent

and promised change for the city’s indigenous people who made up half the

population. As a campaign volunteer, Guerra Sanchez handed out cards and pens

to the public.

      After Guerra Sanchez’s candidate won the election, Guerra Sanchez received
                                          2
two threats from members of the opposing PAN party who lived in his

neighborhood. In 1997, Guerra Sanchez was playing in a soccer tournament, and

spectators who were PAN members passed by and threatened him. In August

1997, windows on his unoccupied house were broken and graffiti signed by the

PAN was painted on the house stating, “the next one is you.” A neighbor told

Guerra Sanchez she saw two individuals vandalize his home. Guerra Sanchez

became frightened and left for the United States on September 1, 1998, leaving his

wife and children in Guatemala.

       At the hearing, Guerra Sanchez conceded removability and, when asked,

stated that he would not voluntarily leave the United States. The IJ denied Guerra

Sanchez withholding of removal.1 With regard to the alleged past persecution

events, the IJ found Guerra Sanchez credible, but concluded that the incidents he

described did not constitute persecution. The IJ also found Guerra Sanchez had not

established future persecution. The IJ noted that although Mayans suffered from

discrimination, they had made recent progress as evidenced by the fact that Guerra

Sanchez’s mayoral candidate had been twice elected mayor of the country’s second

largest city and was running for president. The IJ also noted that Guerra Sanchez


       1
         In addition, the IJ denied Guerra Sanchez asylum because his asylum application was
untimely and denied CAT relief because there was no acquiesce by a Guatemalan official to any
harm Guerra Sanchez had suffered or might suffer. Guerra Sanchez does not challenge these
rulings in his petition for review. Thus, we address only Guerra Sanchez’s claim for withholding
of removal.
                                                 3
did not have a personal relationship with the mayor, but was one of many

campaign workers. Finally, the IJ concluded that Guerra Sanchez was ineligible

for voluntary departure because he would not leave the United States voluntarily.

      The BIA affirmed the IJ’s denial of withholding of removal and explained

that “[t]he few threats and vandalism [Guerra Sanchez] experienced do no[t] rise to

the level of persecution.” The BIA agreed with the IJ that “considering the low

level of [Guerra Sanchez’s] political activities, the passage of time and the

possibility of relocation within Guatemala,” Guerra Sanchez’s had not shown a

likelihood of future persecution. Further, although Guerra Sanchez had not sought

it, the BIA also granted voluntary departure and ordered Guerra Sanchez to depart

within 60 days of the order or risk removal and civil penalties. This petition for

review followed.

                                 II. DISCUSSION

      An alien seeking withholding of removal must show that his life or freedom

would be threatened because of the alien’s race, religion, nationality, membership

in a particular social group, or political opinion. INA § 241(b)(3)(A), 8 U.S.C.

§ 1231(b)(3)(A); Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir.

2003). In other words, the alien has the burden of proof to show that he “more-

likely-than-not” would be persecuted on account of a protected ground if returned

to the country in question. See id. To establish eligibility, the alien must show
                                           4
either that he suffered past persecution or that he has a well-founded fear of future

persecution. See 8 C.F.R. § 208.16(b)(1)-(2); Mendoza, 327 F.3d at 1287.

       Although the INA does not define persecution, we have described

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

verbal harassment or intimidation.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,

1231 (11th Cir. 2005) (quotation marks omitted). Menacing telephone calls and

verbal threats, without more, do not amount to persecution. Id.

       Here, substantial evidence supports the finding that the two incidents did not

constitute persecution.2 One incident consisted of verbal intimidation and the other

vandalism of Guerra Sanchez’s property coupled with a vague warning in graffiti.

Neither incidents involved any physical harm or attempted physical harm. We

cannot say the record compels a conclusion that Guerra Sanchez suffered past

persecution.

       Substantial evidence also supports the finding as to likelihood of future

persecution. The two past incidents occurred because Guerra Sanchez provided

admittedly low level support to a mayoral candidate ten years ago. The PAN



       2
         We review only the BIA’s decision, except where the BIA’s decision explicitly relies
upon the IJ’s reasoning, in which case we review both the IJ’s and the BIA’s decisions. See Al
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review a factual determination
that an alien is statutorily ineligible for withholding of removal under the substantial evidence
test. Id. at 1283-84. Under the substantial evidence standard, “we must find that the record not
only supports reversal, but compels it.” Mendoza, 327 F.3d at 1287.
                                                    5
neighbors who threatened him have not contacted him or his family since 1998.

Although the 2004 Country Report indicates that indigenous people still

experience discrimination in Guatemala, there is no mention of politically

motivated attacks by the PAN on members of the XEL.JU or on Mayan campaign

workers or political activists. Moreover, Guerra Sanchez did not show that he

faced persecution even if he relocated to another part of the country. In light of

these facts, the record does not compel a finding that Guerra Sanchez would, more

likely than not, be persecuted if returned to Guatemala.

       Although the denial of withholding of removal is supported by substantial

evidence, the BIA’s sua sponte grant of voluntary departure is not supported by the

record.3 The Attorney General may grant voluntary departure to aliens who meet

certain eligibility requirements, one of which is that the alien must show “by clear

and convincing evidence that [he] has the means to depart the United States and

intends to do so.” INA § 240B(b)(1)(D); 8 U.S.C. § 1229c(b)(1)(D). The only

evidence regarding Guerra Sanchez’s intent to depart the United States is his

hearing testimony that he would not leave voluntarily. Thus, there is no showing


       3
         Although we lack jurisdiction to review the discretionary decision whether to grant
voluntary departure, INA § 242(a)(2)(B); 8 U.S.C. § 1252(a)(2)(B), we retain jurisdiction to
review non-discretionary legal determinations as to statutory eligibility for discretionary relief.
Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). We review the
BIA’s factual findings for substantial evidence. Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27
(11th Cir. 2004) (en banc). However, our review is limited to only whether the petitioner meets
the eligibility requirements. Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002).
                                                 6
that Guerra Sanchez has the means to depart the United States and intends to do so.

Because Guerra Sanchez is not eligible for voluntary departure, we grant Guerra

Sanchez’s petition as to this issue, and reverse the BIA’s grant of voluntary

departure.4

       PETITION DENIED IN PART, GRANTED IN PART.




       4
       We reject the government’s argument that Guerra Sanchez lacks standing to challenge
the BIA’s voluntary departure ruling.
                                             7
