                                                          [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT          FILED
                          ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                 No. 05-12718                    February 14, 2006
                                                                 THOMAS K. KAHN
                             Non-Argument Calendar
                                                                     CLERK
                           ________________________

                             Agency No. A78-610-761

IRINA ROMANENKOVA,


                                                                             Petitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                          Respondent.

                           ________________________

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

                               (February 14, 2006)

Before TJOFLAT, BIRCH and BLACK, Circuit Judges.

PER CURIAM:

      Irina Romanenkova appeals the Board of Immigration Appeals’s “(BIA”)

affirmance of the immigration judge’s (“IJ”) removal order and denial of relief
from removal. She argues that the IJ erred in denying her asylum application as

untimely and in denying her withholding of removal under the Immigration and

Nationality Act (“INA”) and relief under the United Nations Convention Against

Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment

(“CAT”). We DISMISS Romanenkova’s petition with regard to her claim for

asylum because we lack jurisdiction to review it, and we DENY her petition with

regard to her remaining claims for withholding of removal and relief under CAT.



                                    I. BACKGROUND

       In February 2001, the former Immigration and Naturalization Service1

(“INS”) initiated removal proceedings against Romanenkova, a native citizen of

Russia, charging her as removable pursuant to the Immigration and Nationality Act

(INA) § 237(a)(1)(B), codified at 8 U.S.C. § 1227(a)(1)(B), for being a

nonimmigrant who remained in the United States longer than permitted.

Romanenkova filed an application for asylum and withholding of removal, alleging

that she had suffered past persecution and feared future persecution because of her



       1
         On 25 November 2002, President Bush signed into law the Homeland Security Act of
2002 (“HSA”), Pub. L. No. 107-296, 116 Stat. 2135. The HSA created a new Department of
Homeland Security (“DHS”), abolished the INS, and transferred its functions to the new
department. However, because this case was initiated while the INS was still in existence, this
opinion refers to the agency as the INS rather than the DHS.

                                                2
membership in the social group of retired individuals and her political opinions. In

her application, she alleged that she had been detained, interrogated, and threatened

by Russian police for crimes that she had not committed, and her mother had been

arrested and charged with a crime that she did not commit. She also alleged that if

she returned to Russia she would be detained, interrogated, tortured, and

persecuted because of her membership in a particular social group and her political

opinion.

      Attached to the application was Romanenkova’s affidavit, which stated, in

pertinent part, the following: The KGB had spied on her and her husband. On one

occasion, after she had not been paid for time she took off work due to illness, her

employer sent her to the police station and the police detective accused her of

forging her doctor’s notes, screamed at her, and threatened to put her in jail for

cheating her employer. On another occasion, a policeman ran a red light and hit

her car, but her license was suspended and she was harassed for compensation by

the man who hit her. Later, two undercover Russian police officers forced her

mother into the back seat of a car, bound and gagged her, and asked her where she

hid the money she received from her daughter. After being unable to get into her

apartment with the keys she gave them, they beat and threatened her, and in the

morning, ejected her from their car. One of Romanenkova’s friends was also



                                           3
arrested and kept in jail for six months before her innocence was acknowledged

and she was released. Additionally, in support of her asylum application,

Romanenkova filed several letters to corroborate her claims. She also filed several

documents related to the country conditions in Russia, including the United States

Department of State Country Report on Human Rights Practices in Russia for the

years 1997-2002.

      During the asylum hearing, Romanenkova admitted she was an alien who

had stayed in the United States longer than the temporary period allowed for

nonimmigrant visitors. The IJ stated that, although Romanenkova’s asylum

application was filed more than one year after she entered the United States, he was

going to give her an opportunity to show exceptional circumstances.

      Romanenkova testified that she lived in Moscow before coming to the

United States in June 1999. She stated that, in December 1997, she got into a

automobile accident, when a policeman ran a red light and hit her car. When the

traffic police showed up at the accident, she was accused of running the red light

and causing the accident. The police then detained her at the police station for

twenty-four hours, during which time she was interrogated and they threatened to

put her in jail. She refused to sign the traffic report and later complained to the

Ministry of Foreign Affairs that the report was incorrect and the police were



                                           4
threatening her and demanding money from her. Approximately two weeks after

the accident, a man who claimed to be a retired colonel came to her home and

demanded that she pay $2,000 for the car. About two months after the accident,

she went to the police headquarters and was detained by police for nine hours.

During the six months after the accident, she was repeatedly called into the police

station, interrogated, and detained. She also received threatening phone calls. The

police threatened to put her in jail, murder her, and take possession of her

apartment. She was afraid that they would murder her because they wanted her

apartment and money. She stated that, on one occasion, she expressed her political

opinion to police employee and told him that he worked for the government and

was therefore supposed to protect citizens, not to enrich himself.

      She also stated that in August 1998, the police stole her car and then stole

the car that she borrowed from her friend. She traveled to the United States in

January 1998, stayed for about a month, and returned to Moscow. When she got

back to Moscow, people told her that a man had been looking for her. She traveled

to Puerto Rico in August 1998 for ten days, and then returned to Moscow. She

traveled to the United States again in January 1999, and returned to Moscow in

April 1999. She stated that, during this time period, the police were constantly

looking for her and asking her neighbors about her.



                                           5
      She came to the United States the last time hoping that, if she stayed for a

while, the situation would change in Russia. She claimed that she believed the

police in Russia were after her because she was a single, older, retired person who

they could easily overpower, and they wanted her apartment. She also expressed

her fears that Russia was turning back into a socialist regime since the election of

President Vladimir Putin. She argued that she was afraid to return because she had

been persecuted in the past and that the police would continue to threaten and

blackmail her.

      On 9 October 2003, the IJ denied Romanenkova’s application for asylum,

withholding of removal, and relief under CAT. In the oral decision, the IJ stated

that Romanenkova’s application was untimely and that she had not shown any

exceptional circumstances or changed circumstances that would excuse the late

filing. Specifically, the IJ found that, even accepting President Putin’s socialist

agenda, there was no evidence that Romanenkova would be in a worse situation

under Putin than she would have been under Yeltsin. Moreover, even if the

application was timely filed, the IJ determined that she was not eligible for asylum

because she had failed to show that any persecution was because of any protected

status. Thus, the IJ found that it was appropriate to pretermit the application for




                                           6
asylum, although her applications for withholding of removal and CAT relief

survived.

      As to those claims, the IJ found that her application failed on the merits

because she failed to prove past persecution or a well-founded fear of future

persecution based on her political opinion or membership in a social group. The IJ

noted that while her testimony was believable, she was only detained on two

occasions, there was only anecdotal evidence that the authorities were interested in

her property, and no evidence that she suffered any restrictions on her life or

liberty. While the IJ found that her fear was genuine, there was nothing in the

record to show that her fear was reasonable. The IJ further found that, under the

higher burden of proof for withholding of removal, Romanenkova had failed to

show that she would suffer any treatment that would constitute persecution or that

any mistreatment would be on account of her membership in a particular social

group or because of her political opinion. Finally, the IJ found that she also failed

to show grounds for relief under the CAT because the mistreatment she testified to

did not constitute torture.

      On 27 October 2004, Romanenkova appealed the IJ’s decision to the BIA,

arguing that she proved the existence of changed circumstances in Russia, in that

the president had changed since her departure and, thus, her asylum application



                                           7
should not have been pretermitted as untimely. She also argued that her untimely

filing should be excused because her reasonable fears and inability to speak

English delayed the filing of her application. Additionally, she argued that she

submitted evidence of both her subjective and objective fears and that her

testimony was consistent with the State Department’s reports and the world media

reports on the country conditions in Russia. Lastly, she argued that she was a

member of a social group that was being persecuted.

       On 18 November 2004, the INS filed a motion for summary affirmance,

arguing that the IJ’s decision was correct and Romanenkova’s arguments on appeal

were not so substantial that the case warranted a written opinion. On 22 April

2005, the BIA affirmed the IJ’s decision, adopting the decision except to the extent

that the BIA concluded that the IJ had made a misstatement when stating that

Romanenkova had suffered torture in the past, which created a rebuttable

presumption that she would suffer torture in the future. The BIA agreed with the

IJ’s other statement that there was no evidence Romanenkova had suffered torture

in the past.

       On appeal, Romanenkova argues that the IJ erred in denying her application

for asylum as untimely because she presented evidence both with regard to the

existence of changed circumstances in Russia that materially affected her eligibility



                                          8
for asylum and to the extraordinary circumstances relating to the delay in the filing

of her application within the one-year period following her arrival in the United

States. In response, the government filed a motion to dismiss her petition for

review, arguing that we do not have jurisdiction to review her petition because the

BIA denied her asylum claim based on timeliness and that she did not

administratively exhaust her remaining withholding of removal and CAT claims.

In the alternative, the government asks for 30 days to file a responsive brief if the

motion to dismiss is not granted.2



                                     II. DISCUSSION

A. Jurisdiction To Review Petition

       We generally have jurisdiction to review final orders of removal. See 8

U.S.C. § 1252(a)(1), (b)(9). We may review a final order of removal only if “the

alien has exhausted all administrative remedies available to the alien as of right.”

Id. § 1252(d)(1); see Sagermark v. I.N.S., 767 F.2d 645, 648 (9th Cir. 1985)

(holding that exhaustion requirements were satisfied when the agency had, in fact,

ruled on an issue, regardless of whether the issue was technically before it). An


       2
        Because we dismiss Romanenkova’s petition with regard to the asylum claim and deny
the remainder of her petition with regard to her claims for withholding of removal and relief
under CAT, the government’s request for an extension of time to file a responsive brief is denied
as moot.

                                                9
alien can apply for asylum if she “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.” 8 U.S.C. § 1158(a)(2)(B). An otherwise untimely

application can be accepted 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 to the delay in filing an application within the period specified.” Id. §

1158(a)(2)(D). However, “no court shall have jurisdiction to review [this]

determination of the Attorney General.” Id. § 1158(a)(3). We have held that 8

U.S.C. § 1158(a)(3) “divests our Court of jurisdiction to review a decision

regarding whether an alien complied with the one-year time limit or established

extraordinary circumstances that would excuse [an] untimely filing.” Mendoza v.

U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). Further, we recently

held that certain jurisdiction-restoring provisions in the recently enacted REAL ID

Act, Pub. L. No. 109-13, 119 Stat. 231 (2005), do not change this conclusion. See

Chacon-Botero v. U.S. Attorney Gen., 427 F.3d 954, 957 (11th Cir. 2005) (per

curiam).

      Thus, we lack jurisdiction to review the BIA’s finding that Romanenkova’s

asylum application was untimely and, therefore, dismiss her petition with regard to



                                           10
her asylum claim. However, Romanenkova’s remaining withholding of removal

and CAT claims were addressed by the BIA. Consequently, these claims have

been exhausted, and we have the necessary jurisdiction to review them.

B. Review of Romanenkova’s Claims for Witholding of Removal and Relief

Under CAT

      Romanenkova argues that she met her burden of proof for withholding of

removal by showing that she suffered past persecution because of her political

opinion in that she had been detained on two occasions by Russian police who

tried to force her to sign a false police report and who also threatened her. She

further maintains that she met her burden of proof for relief under CAT by

showing that she more likely than not would be persecuted when she returned to

Russia and that her fear existed on a country-wide basis because of the election of

President Putin.

      We review only the decision of the BIA, “except to the extent that it

expressly adopts the IJ’s opinion.” Nreka v. U.S. Attorney Gen., 408 F.3d 1361,

1368 (11th Cir. 2005) (internal quotations omitted). Here, the BIA adopted the IJ’s

findings and added some comments of its own, so we review both. The IJ’s factual

determination that an alien is not entitled to withholding of removal is reviewed

under the substantial evidence test, and must be upheld if it is supported by



                                          11
“reasonable, substantial, and probative evidence on the record considered as a

whole.” Id. (discussing asylum claim) (internal quotations omitted). To reverse

the IJ’s findings, we must find that the record compels it. Mendoza, 327 F.3d at

1287.

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

life or freedom would “more likely than not” be threatened upon return to her

country because of, among other things, her political opinion or membership in a

social group. Sanchez v. U.S. Attorney Gen., 392 F.3d 434, 437 (11th Cir. 2004)

(per curiam).

              An alien bears the burden of demonstrating that [s]he
              more-likely-than-not would be persecuted or tortured
              upon [her] return to the country in question. If the alien
              establishes past persecution in [her] country based on a
              protected ground, it is presumed that [her] life or freedom
              would be threatened upon return to [her] country unless
              the INS [now DHS] shows by a preponderance of the
              evidence that, among other things, (1) the country’s
              conditions have changed such that the applicant’s life or
              freedom would no longer be threatened upon [her]
              removal; or (2) that the alien could avoid a future threat
              to [her] life or freedom by relocating to another part of
              the proposed country of removal, and it would be
              reasonable to expect [her] to do so. An alien who has not
              shown past persecution, though, may still be entitled to
              withholding of removal if [s]he can demonstrate a future
              threat to [her] life or freedom on a protected ground in
              [her] country. An alien cannot demonstrate that [s]he
              more-likely-than-not would be persecuted on a protected



                                          12
             ground if the IJ finds that the alien could avoid a future
             threat by relocating to another part of [her] country.

Id. (internal quotations and citations omitted); see also 8 U.S.C. § 1231(b)(3)(A).

      Neither the INA nor the regulations 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. Attorney Gen., 401 F.3d

1226, 1231 (11th Cir. 2005) (internal quotations omitted). “Threats alone

generally do not constitute actual persecution; only rarely, when they are so

immediate and menacing as to cause significant suffering or harm in themselves,

do threats per se qualify as persecution.” Vatulev v. Ashcroft, 354 F.3d 1207,

1210 (10th Cir. 2003).

      To obtain withholding of removal under the CAT, the burden is on the

applicant to establish that it is “more likely than not” she 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.

                                           13
Id. § 208.18(a)(1). To constitute torture, an act “must be specifically intended to

inflict severe physical or mental pain or suffering.” Id. § 208.18(a)(5).

      In this case, the evidence does not compel us to conclude that

Romanenkova’s physical detention and the threats made to her were so severe as to

constitute past persecution. Moreover, the evidence does not compel us to

conclude that it is more likely than not that she will experience future persecution

or torture upon her return, especially in light of the fact that she had traveled

outside of Russia three times after the alleged detentions and returned with no

significant incidents. She has failed to show that any possible persecution would

be on account of her political opinion or a protected social group. Instead, the

harassment appears to be a result of a desire for her money and her valuable

apartment. She has also failed to demonstrate that a relocation within Russia

would not stop her harassment.



                                 III. CONCLUSION

      Irina Romanenkova appeals the BIA’s affirmance of the IJ’s removal order

and denial of relief from removal. Because her application for asylum was filed

more than one year after her arrival in the United States, we lack jurisdiction to

review this claim in her petition. Because the record does not compel a reversal of

                                           14
the IJ and BIA’s decision regarding her claims for withholding of removal and

relief under CAT, we deny the remainder of her petition. PETITION

DISMISSED IN PART, DENIED IN PART.




                                        15
