                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             December 19, 2006
                            No. 05-17123                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                          BIA No. A95-886-120

ENRIQUE OCTAVIO MORALES,


                                                                    Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                  Respondent.



                      ________________________

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

                           (December 19, 2006)

Before DUBINA, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Petitioner Enrique Octavio Morales, through counsel, seeks review of the

Board of Immigration Appeal’s (“BIA”) order affirming the Immigration Judge’s

(“IJ”) final order denying claims for asylum, 8 U.S.C. § 1158, withholding of

removal under the Immigration and Nationality Act (“INA”) § 241(b)(3)(A), 8

U.S.C. 1231(b)(3), and the United Nations Convention Against Torture (“CAT”), 8

C.F.R. § 208.16(c). Because Morales does not make any argument or cite to any

law with respect to withholding of removal and CAT relief, he has waived those

issues on appeal, and they are not before us. See Rowe v. Schreiber, 139 F.3d

1381, 1382 n.1 (11th Cir. 1998) (holding that issues not argued on appeal are

deemed waived).

      On appeal, Morales first argues that the IJ violated his right to due process

by failing to consider evidence he presented in support of his asylum application.

The government responds that Morales’s due process claim fails because he did not

raise it in his brief to the BIA. In reply, Morales argues that he is entitled to

present additional issues and evidence to show that he was prejudiced by

ineffective assistance of counsel and by the IJ’s conduct and thereby effectively

prevented from developing an adequate record. Next, Morales argues that the IJ’s

conclusion that he did not demonstrate past persecution or a well-founded fear of

future persecution is not supported by substantial, probative, or reasonable

evidence.
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                                           I.

      “We review subject-matter jurisdiction de novo.” Gonzalez-Oropeza v. U.S.

Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).

      To the extent that Morales is appealing the IJ’s treatment of his documentary

evidence in an effort to challenge the IJ’s adverse credibility finding, that argument

is moot because the BIA reversed the IJ’s adverse credibility finding. Therefore,

there is no question as to the credibility of his testimony. See Al Najjar v. Ashcroft,

273 F.3d 1330, 1335 -1336 (11th Cir. 2001) (applying the doctrine of mootness to

an issue in the context of an immigration petition). However, to the extent that

Morales is raising this issue on appeal for other substantive reasons, he would had

to have administratively exhausted his remedies.

      “The exhaustion requirement applicable to immigration cases is found in 8

U.S.C. § 1252(d)(1), which provides that ‘[a] court may review a final order of

removal only if . . . the alien has exhausted all administrative remedies available to

the alien as of right.’” Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003). We

have “interpreted that requirement to be jurisdictional, so we lack jurisdiction to

consider claims that have not been raised before the BIA.” Id.

      Constitutional challenges and some due process claims do not require

exhaustion because the BIA does not have the authority to adjudicate those claims.

Id. at 1325. However, where the BIA can provide a remedy to the constitutional
                                           3
claim, “the exhaustion requirement applies with full force.” Id. (holding that an

alien should have exhausted his due process claim that the IJ’s and BIA’s

application of an immigration statute violated the Constitution, because “[i]t was

within the BIA’s authority to reconsider and change its decision”).

      “Due process is satisfied only by a full and fair hearing.” Ibrahim v. INS,

821 F.2d 1547, 1550 (11th Cir. 1987). The INA provides that “the alien shall have

a reasonable opportunity . . . to present evidence on the alien’s own behalf . . . .”

INA § 240(b)(1), (4)(B), 8 U.S.C. § 1229a(b)(1), (b)(4)(B).

      Morales’s due process challenge is procedural in nature as he is complaining

about the IJ’s handling of documentary evidence and arguing that the BIA could

have provided a remedy. Thus, the exhaustion requirement applies to Morales’s

due process claim. See Sundar, 328 F.3d at 1325. As the government correctly

notes, however, Morales did not mention his due process claim in either his notice

of appeal or brief before the BIA, and, therefore, he has failed to exhaust his

administrative remedies with respect to his due process claim.

      Even assuming Morales’s due process claim did not require exhaustion, we

conclude from the record that his hearing complied with due process. The

transcript reveals that although Morales untimely filed his documentary evidence,

the IJ admitted such evidence in the record. Additionally, the IJ acknowledged the

documentary evidence but noted that it did not contain any corroborative evidence
                                            4
from a law enforcement authority to confirm the incidents testified to by Morales.

Thus, nothing in the transcript indicates that the IJ denied Morales’s right to

present evidence. For these reasons, we dismiss Morales’s petition in this respect.

      Last, Morales may not assert a claim of ineffective assistance of counsel

here because he did not raise this claim before the BIA, and he raises this issue for

the first time before us in his reply brief. See United States v. Whitesell, 314 F.3d

1251, 1256 (11th Cir.2002) (holding that arguments raised for the first time in a

reply brief are not properly before a reviewing court). Thus, the only issue on

appeal is whether the IJ erred in denying Morales’s asylum claim.

                                          II.

      When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11 th Cir. 2001). Because the BIA adopted the IJ’s decision, and

made some findings of its own, we review both.

      The IJ made an adverse credibility finding, but the BIA expressly reversed

that determination, so the following analysis considers the testimony as credible.

      To the extent that the BIA’s decision was based on a legal determination,

review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.

2001). The BIA’s factual determinations are reviewed under the substantial

evidence test, and we “must affirm the BIA’s decision if it is ‘supported by
                                           5
reasonable, substantial, and probative evidence on the record considered as a

whole.’” Najjar, 257 F.3d at 1283-84 (citation omitted). The substantial evidence

test is “deferential” and does not allow “re-weigh[ing] the evidence from scratch.”

Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001).

“To reverse the IJ’s fact findings, 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) (considering withholding of removal claim).

      An alien who arrives in or is present in the U.S. 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 outside any country of such person’s nationality or,
      in the case of a person having no nationality, is outside any country in
      which such person last habitually resided, and 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 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, 257 F.3d at 1284.

      The alien must establish past persecution or a well-founded fear that his

political opinion, or other protected ground, will cause harm or suffering that rises

                                           6
to the level of persecution. 8 C.F.R. § 208.13(b)(1),(2); Najjar, 257 F.3d at 1287.

To establish a well-founded fear, “an applicant must demonstrate that his fear of

persecution is subjectively genuine and objectively reasonable.” Id. at 1289. A

finding of past persecution creates the presumption of a well-founded fear of

persecution and shifts the burden to the government to demonstrate that either

conditions have changed in the alien’s home country, or the alien could avoid such

persecution by relocating in the home country and that relocation is reasonable. 8

C.F.R. § 208.13(b)(i). Otherwise, an applicant must show that he faces a threat of

future persecution country-wide. Arboleda v. U.S. Atty. Gen. 434 F.3d 1220, 1223

(11th Cir. 2006). In Ruiz v. U.S. Att’y Gen., 440 F.3d 1247 (11th Cir. 2006), we

acknowledged that the 2002 Country Report revealed that “persons in Colombia

who are ‘fleeing guerillas or police/military harassment or threats in conflictive

zones usually are able to find peaceful residence elsewhere in the country.’” Id. at

1259. Since 2001, the immigration regulations have codified the country-wide

requirement, and have instructed the IJ to consider whether “under all the

circumstances it would be reasonable to expect the applicant to [relocate].” 8 CFR

§ 1208.13(b)(2)(ii).

      While we have not specifically defined persecution, we have noted that

“‘persecution’ is an ‘extreme concept,’ requiring ‘more than a few isolated

incidents of verbal harassment or intimidation,’ and that ‘[m]ere harassment does
                                           7
not amount to persecution.’” Sepulveda v. U.S. Att’y Gen. 401 F.3d 1226, 1231

(11th Cir. 2005) (quotation omitted). “Not all exceptional treatment is

persecution.” Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000) (citing

Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir.1998) (persuasive authority

stating that “persecution” “requires more than a few isolated incidents of verbal

harassment or intimidation, unaccompanied by any physical punishment, infliction

of harm, or significant deprivation of liberty”)).

      Further, it is not enough that an alien hold a political opinion, he must show

that he was persecuted because of that opinion. INS v. Elias-Zacarias, 502 U.S.

478, 482, 112 S. Ct. 812, 816, 117 L. Ed. 2d 38 (1992).

      With respect to past persecution, the record demonstrates that Morales

received multiple threatening phone calls from the Revolutionary Armed Forces of

Colombia (“FARC”), and that, on April 20, 2000, three uniformed but unidentified

persons came to his farm and fired gun shots after speaking with the farm

administrator. First, we have held that menacing phone calls and threats do not rise

to the level of persecution. See Sepulveda, 401 F.3d at 1231. Second, because it is

not clear who the uniformed visitors were, or whether they had any connection to

the FARC, Morales’s assertion that he was persecuted by the FARC guerillas is not

supported by the record.



                                           8
      With regard to whether Morales established that he was targeted on account

of his political opinion, Morales admitted that several of the phone calls he

received from the FARC demanded money and malaria medicine, thus, apparently,

the FARC targeted him for his financial status. Furthermore, the record, with

respect to the April 20, 2000, incident does not reveal on what basis the three

unidentified men visited his farm demanding to speak to him. Even assuming that

Morales did show that he was targeted, at least in part, on account of a protected

ground, because Morales has failed to establish that he suffered past persecution,

the fact that he could establish a protected ground is not sufficient to compel a

reversal of the BIA’s and IJ’s decision.

      Furthermore, despite his fear of harm by the FARC, and having had a visa to

enter the United States in April 2000, at the time he experienced the most extreme

treatment, Morales did not leave Colombia to the United States after the FARC

visited his farm in Choco. Rather, Morales left Colombia for the United States

over a year later in May 2001, long after the threatening phone calls stopped.

Upon arriving in the United States, Morales did not apply for asylum.

Furthermore, Morales returned to Colombia despite his fear of persecution, and

remained there after he received two more threatening phone calls. Even though

Morales testified that since he left Colombia and shortly before the removal

hearing, his son and the mother of another son were beaten by attackers who asked
                                           9
his whereabouts, he did not testify as to the attackers identity, or whether they were

connected to the FARC. Even assuming that Morales could demonstrate a well

founded fear of future persecution based on a certified statement from the mother

of his son that, since March 2002, she received three suspicious and threatening

phone calls from a member of the FARC, Morales did not establish country-wide

persecution.

       Here, we conclude that the BIA and IJ’s finding with respect to establishing

country-wide persecution is supported by substantial evidence because Morales

testified that he never considered living outside of Bogota. Therefore, even if

Morales had established a well-founded fear of future persecution, he could

reasonably have been expected to avoid future threat to his life or freedom by

relocating to another part of the country. See Ruiz, 440 F.3d at 1259.

       For the above-stated reasons, we conclude that Morales failed to carry his

burden of establishing eligibility for asylum. Accordingly, we deny the petition in

this respect.

       PETITION DISMISSED IN PART, DENIED IN PART.




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