                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                               No. 04-13048                  ELEVENTH CIRCUIT
                           Non-Argument Calendar                MARCH 24, 2006
                         ________________________             THOMAS K. KAHN
                                                                   CLERK
                    BIA Nos. A78-603-565 & A78-603-566

SERGIO HUMBERTO CUARTAS,
JENNY STELLA ALVAREZ-VARELA,
DANIEL CUARTAS,
FELIPE CUARTAS,

                                                          Petitioners,

                                     versus

U.S. ATTORNEY GENERAL,

                                                          Respondent.
                         ________________________

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

                               (March 24, 2006)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      No judge in regular active service on the Court having requested that the

Court be polled on rehearing en banc, Fed. R. App. P. 35, accordingly, rehearing
en banc is DENIED. Appellant’s petition for panel rehearing is GRANTED. We

VACATE our prior opinion in this case and substitute the following in its place:

       Sergio Humberto Cuartas (“Cuartas”) and Jenny Stella Alvarez-Varela, and

their children, Daniel Cuartas and Felipe Cuartas (collectively, “Petitioners”), all

natives and citizens of Colombia, petition for review of the final order of the Board

of Immigration Appeals (“BIA”), which affirmed without opinion the immigration

judge’s (“IJ”) denial of asylum and withholding of removal under the Immigration

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

and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). On

appeal, Petitioners argue that the IJ erred by denying their petition for asylum,

under the INA, after finding that they did not demonstrate past persecution or a

well-founded fear of future persecution, on a country-wide basis, by the

Revolutionary Armed Forces of Colombia (“FARC”) based on Cuartas’s

outspoken political activities that were in conflict with the FARC’s mission.1 After

careful review, we affirm.



       1
          Because we find that Petitioners have not established a case for asylum under the INA,
we do not consider whether they satisfied the higher standards for withholding of removal or CAT
relief. See Forgue v. Att’y Gen., 401 F.3d 1282, 1288 n.4 (11th Cir. 2005); Najjar v. Ashcroft, 257
F.3d 1262, 1292-93 (11th Cir. 2001). We likewise will not address Petitioners’ argument that they
received ineffective assistance of counsel before the IJ because they raised this claim for the first
time in a motion to reopen in the BIA and they have not appealed the denial of that motion. Finally,
we will not consider Petitioners’ claims based on alleged newly discovered evidence because they
have not raised these claims prior to doing so here. Najjar, 257 F.3d at 1294 n.23 (holding that
petitioner’s failure to raise issue before the BIA precludes him from raising that issue in this Court).
                                                    2
       When the BIA issues an affirmance without opinion, the IJ’s decision

becomes the final order subject to review. See Mendoza v. Att’y Gen., 327 F.3d

1283, 1284 n.1 (11th Cir. 2003). As the fact-finder, it is the IJ’s duty to determine

credibility, and we will not substitute our judgment for that of the IJ with respect to

credibility findings. See Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5th

Cir. 1977) (citation omitted).2 The IJ’s factual determination that an alien is not

entitled to asylum must be upheld if it is supported by substantial evidence. See

Mazariegos v. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001).                       Under this

highly deferential standard of review, a denial of asylum may be reversed only if

the evidence would compel a reasonable factfinder to find that the requisite fear of

persecution exists. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1, 112 S. Ct.

812, 815 n.1, 117 L. Ed. 2d 38 (1992); see also 8 U.S.C. § 1252(b)(4)(B)

(“administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary”).

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

asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has

discretion to grant asylum if the alien meets the INA’s definition of a “refugee.”

See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is any person who is

       2
        In Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit rendered prior to the close of business
on October 1, 1981.
                                                 3
unwilling to return to his home country or to avail himself of that country’s

protection “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 Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001); 8 C.F.R. §

208.13(a).   The applicant satisfies this burden by showing, with specific and

credible evidence: (1) past persecution on account of a statutorily listed factor, or

(2) a “well-founded fear” that his or her statutorily listed factor will cause future

persecution. 8 C.F.R. § 208.13(a), (b); Najjar, 257 F.3d at 1287. “[P]ersecution is

an extreme concept, requiring more than a few isolated incidents of verbal

harassment or intimidation.” Sepulveda v. U.S. Att’y Gen., 378 F.3d 1260, 1264

(11th Cir. 2004) (citation and internal quotation marks omitted). Put another way,

“[m]ere harassment does not amount to persecution.” Id. (citation omitted). An

asylum applicant may not show merely that he has a political opinion, but must

show that he was persecuted because of that opinion. Elias-Zacarias, 502 U.S. at

483, 112 S.Ct. 812.

      If the alien establishes past persecution, it is presumed that his life or

freedom would be threatened upon return to the country of removal unless the

government shows by a preponderance that the country’s conditions have changed
                                           4
such that the applicant’s life or freedom would no longer be threatened or that the

alien could relocate within the country and it would be reasonable to expect him to

do so. See 8 C.F.R. §§ 208.13(b), 208.16(b). An alien who has not shown past

persecution may still be entitled to asylum if he can demonstrate a future threat to

his life or freedom on a protected ground in his country. 8 C.F.R. §§ 208.13(b)(2),

208.16(b)(2). To establish a “well-founded fear,” “an applicant must demonstrate

that his fear of persecution is subjectively genuine and objectively reasonable.”

Najjar, 257 F.3d at 1289. “An imputed political opinion, whether correctly or

incorrectly attributed, may constitute a ground for a ‘well-founded fear’ of political

persecution within the meaning of the INA.” Id. (citation omitted). However, as

with past persecution, if the IJ properly finds that the alien could avoid a future

threat by relocating to another part of his country, he cannot demonstrate a well-

founded fear of persecution. 8 C.F.R. §§ 208.13(b)(1)-(2), 208.16(b)(1)(2).

      Here, substantial evidence supports the IJ’s finding that Petitioners failed to

demonstrate asylum eligibility because they did not establish past persecution or a

well-founded fear of future persecution on account of a statutorily listed factor.

Although Cuartas testified that his political opinion and related activities were

contrary to the FARC and its mission, we can find no indication that the FARC

was aware of Cuartas’s political opinion or ever persecuted him on account of that

opinion. Cuartas testified that he was kidnaped by FARC members who asked
                                          5
him “where [he] was headed that day, what [he] had done that week, whether [he]

had participated in any political events,” what he thought of the country, and

whether he participated in any political groups. They also tried to recruit them to

their cause to which he agreed in order to be released. After his release, FARC

members made numerous harassing phone calls to his house.

       The IJ found that Cuartas’s testimony did not sufficiently link the kidnaping

or the phone calls to his political opinion for purposes of asylum.                    Cuartas’s

testimony, then, without more, established only that he suffered harassment from

the FARC, but not to a degree sufficient to constitute persecution and not on

account of a statutorily protected ground.3 Cf. Sanchez v. Att’y Gen., 392 F.3d

434, 438 (11th Cir. 2004) (finding that petitioner’s claim, based on harassment by

FARC guerillas and petitioner’s failure to cooperate with the guerrillas or to join

their forces, did not establish persecution for purposes of withholding of removal

under INA).       Threats or harassment, alone, do not constitute persecution on




       3
         As an additional basis for denying asylum, the IJ also found the Petitioners could safely
relocate in Colombia. Because Petitioners failed to meet their initial burden to establish past
persecution, the burden never shifted to the government to show internal relocation was reasonable.
Cf. Arboleda v. U.S. Atty. Gen’l, 434 F.3d 1220 (11th Cir. 2006) (per curiam) (where government
conceded, and the BIA presumed, past persecution, the burden was on the government to show that
internal relocation was reasonable; after examining the 1999 and 2000 Country Reports for
Colombia, holding that the FARC operates on a country-wide basis in Colombia, and that the
government had failed to show that relocation was a viable option). Here, unlike in Arboleda,
Petitioners failed to carry their burden to show past persecution.
                                                  6
account of a statutorily protected ground. See Vatulev v. Ashcroft, 354 F.3d 1207,

1210 (10th Cir. 2003); Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998).

       Because Petitioners did not show that they suffered past persecution or a

well-founded fear of future persecution based on a protected ground, they did not

establish eligibility for asylum. See 8 C.F.R. § 208.13(a), (b); Najjar, 257 F.3d at

1287, 1293. Accordingly, we deny their petition for review.4

       PETITION DENIED.




       4
          We DENY Jenny Alvarez-Cuartas’s motion to stay this petition and removal pending
the disposition of an outstanding request for labor certification because her request does not
constitute clear and convincing evidence that her removal is prohibited as a matter of law. See INA
§ 242(f)(2), 8 U.S.C. § 1252(f)(2). We GRANT Daniel Cuartas’s motion to withdraw his petition
for review without prejudice, pursuant to Fed. R. App. P. 42(b), but DENY his request to remand
his case to the IJ. According to his motion, Daniel has not yet received a visa, for which he applied
based on his recent marriage to a U.S. citizen, and, thus, does not yet have a basis upon which to
apply for adjustment of status before the IJ.
                                                 7
