                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________          FILED
                                               U.S. COURT OF APPEALS
                            No. 09-14083         ELEVENTH CIRCUIT
                                                    MARCH 25, 2010
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                       CLERK

                Agency Nos. A098-740-350, A098-740-351

JOSE MIGUEL CORDERO,
GRACIELA LILIANA VELAZCO,
JOSE SEBASTIAN CORDERO,
CAMILA LUCIANA CORDERO,

                                                                    Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.

                      ________________________

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

                             (March 25, 2010)

Before BARKETT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
      Jose Miguel Cordero, the lead petitioner, and his wife and two minor

children,   derivative   beneficiaries   (collectively   “petitioners”),   are   Peruvian

nationals petitioning for review of the Board of Immigration Appeal’s (“BIA”)

final order affirming the Immigration Judge’s (“IJ”) order denying their application

for asylum and withholding of removal under the Immigration and Nationality Act

(“INA”), and relief under the United Nations Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). 8 U.S.C.

§§ 1158, 1231; 8 C.F.R. § 208.16(c).            On appeal, the petitioners argue that

substantial evidence does not support the IJ’s and BIA’s conclusion that they failed

to meet the burden for asylum, withholding of removal, and CAT relief. After

careful review, we dismiss the petition in part, and deny it in part.

      We review subject-matter jurisdiction de novo. Frech v. U.S. Att’y Gen.,

491 F.3d 1277, 1280 (11th Cir. 2007).           We review factual findings under the

substantial evidence test. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th

Cir. 2005). Under the substantial evidence test, we must affirm the IJ’s and BIA’s

decisions if they are “supported by reasonable, substantial, and probative evidence

on the record considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284

(11th Cir. 2001) (quotation omitted). “To reverse a factual finding . . ., [we] must

find not only that the evidence supports a contrary conclusion, but that it compels

one.” Farquharson v. U.S. Att’y Gen., 246 F.3d 1317, 1320 (11th Cir. 2001). The
                                            2
fact that evidence in the record may also support a conclusion contrary to the

administrative findings is not enough to justify a reversal. Adefemi v. Ashcroft,

386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).

        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, 257 F.3d at 1284.

To the extent that the BIA adopts the IJ’s reasoning, we review the IJ’s decision as

well.    Here, the BIA followed the IJ’s reasoning in support of the denial of

withholding of removal and CAT relief. Accordingly, we review the decisions of

both the BIA and the IJ. See id.

        First, we lack jurisdiction to address the petitioners’ argument that even

though they filed the asylum application after the one-year deadline, the delay was

excused by changed or extraordinary circumstances.        An alien may apply for

asylum if he “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 untimely application may be considered by

the agency if the alien can demonstrate the “existence of changed circumstances

which materially affect” his eligibility or “extraordinary circumstances relating to

the delay in filing [his] application.”   8 U.S.C. § 1158(a)(2)(D). Nevertheless,

“[n]o court shall have jurisdiction to review any [agency] determination” regarding

timeliness. Id. § 1158(a)(3). Likewise, we have held that the statutory language
                                          3
precludes federal court review of determinations made pursuant to § 1158(a)(2).

Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002). Moreover, while

the Real ID Act of 2005 added a new provision providing jurisdiction over

“constitutional claims or questions of law,” that new provision did not affect our

prior precedents regarding our lack of jurisdiction over timeliness issues. Pub. L.

No. 109-13, § 106(a)(1)(A)(iii), 119 Stat. 231, 310 (codified at 8 U.S.C. §

1252(a)(2)(D)); Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir.

2005).

         As applied here, we do not have jurisdiction to review the IJ’s and BIA’s

findings that the petitioners’ asylum claim was untimely and that the delay was not

excused by changed or extraordinary circumstances. See Chacon-Botero, 427 F.3d

at 957. We therefore dismiss the petition for review as to the asylum claim.

         Next, we reject the petitioners’ argument that they have sufficiently

established past political persecution and future persecution for purposes of

withholding of removal, and that the IJ failed to conduct a separate analysis

regarding their CAT claim. An alien may qualify for withholding of removal by

showing that his “life or freedom would be threatened in [his] country [of origin]

because of [his] race, religion, nationality, membership in a particular social group,

or political opinion.” 8 U.S.C. § 1231(b)(3)(A). “The alien bears the burden of

demonstrating that it is more likely than not that she will be persecuted or tortured
                                          4
upon being returned to her country.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,

1232 (11th Cir. 2005) (quotation omitted).     “The [immigration] statute protects

against persecution not only by government forces but also by nongovernmental

groups that the government cannot control.” Sanchez v. U.S. Att’y Gen., 392 F.3d

434, 437 (11th Cir. 2004) (quotation and bracket omitted).

      An alien may satisfy his burden of proof for withholding of removal in two

ways. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006). First, an

alien may establish past persecution based on a protected ground. Id. Once the

alien demonstrates past persecution based on one of the five enumerated grounds,

it is presumed that his life or freedom would be threatened in the future, unless the

presumption is rebutted by a showing of a fundamental change in circumstances or

the alien’s ability to avoid a future threat via relocation to another part of the

country of removal. 8 C.F.R. § 208.16(b)(1)(i). In “determining whether an alien

has suffered past persecution, the IJ must consider the cumulative effect of the

allegedly persecutory incidents.” De Santamaria v. U.S. Att’y Gen., 525 F.3d 999,

1008 (11th Cir. 2008). Second, an alien may establish that it is more likely than

not that (1) he would be persecuted in the future on account of one of the five

enumerated grounds; and (2) he could not avoid this future threat to his life or

freedom by relocating, if under all the circumstances it would be reasonable to



                                          5
expect relocation. 8 C.F.R. § 208.16(b)(2). The fear of future persecution must be

“subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289.

      Neither the INA nor the regulations define “persecution,” but we have

indicated that “persecution is an extreme concept, requiring more than a few

isolated incidents of verbal harassment or intimidation, and that mere harassment

does not amount to persecution.” Sepulveda, 401 F.3d at 1231 (quotations and

alteration omitted).

      To be entitled to relief under the CAT, an applicant must establish that it is

“more likely than not that he or she would be tortured if removed to the proposed

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 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.

Id. § 208.18(a)(1). Acquiescence “requires that the public official, prior to the

activity constituting torture, have awareness of such activity and thereafter breach

his or her legal responsibility to intervene to prevent such activity.”          Id. §

208.18(a)(7). To qualify for CAT relief, an applicant must meet standards more

stringent than those for asylum eligibility. Rodriguez Morales v. U.S. Att’y Gen.,

488 F.3d 884, 891 (11th Cir. 2007).



                                         6
      Substantial evidence supports the IJ’s and BIA’s findings that Cordero failed

to qualify for withholding of removal and CAT relief.           The record shows the

following five incidents which Cordero claimed to be examples of political

persecution: (1) Cordero’s home was destroyed; (2) his wife was followed by a

pickup truck on her way home; (3) he received anonymous telephone threats; (4)

his car window was shattered by a stone thrown by motorists; and (5) he received

two notices to appear from the Peruvian judiciary. However, the IJ properly found

that, even when considering the cumulative effect of all the incidents, the

petitioners failed to demonstrate either past persecution or the likelihood of future

persecution on account of Cordero’s political beliefs because: (1) none of the

alleged incidents amounted to persecution; and (2) most incidents could have been

caused by motives other than targeting his political beliefs.

      Indeed, the events above do not rise to the extreme level of past persecution.

See Sepulveda, 401 F.3d at 1231 (holding that a few isolated incidents of

harassment and intimidation, including menacing telephone calls and a bomb that

exploded at the petitioner’s workplace, do not amount to persecution). Similar to

the petitioner in Sepulveda, Cordero encountered isolated incidents in a span of

three years, from 1999 to 2002, where he and his wife faced harassment and

threats, but never extreme measures such as detentions, arrests, or physical harm.

See id. Furthermore, even when considered collectively, Cordero’s persecutory
                                           7
allegations pale in comparison to those of the petitioners in Djonda and Zheng,

who faced more severe treatments and abuses at the hands of government officials,

such as lengthy detentions and physical beatings, but were still deemed by this

Court to have failed to demonstrate past persecution sufficiently. See Djonda v.

U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008); Zheng v. U.S. Att’y Gen.,

451 F.3d 1287, 1290-91 (11th Cir. 2006).

      In addition, substantial evidence does not compel reversal of the IJ’s finding

that petitioners failed to demonstrate the requisite nexus between some of the

alleged incidents and his political opinion. See Sanchez, 392 F.3d at 437-38.

Specifically, Cordero testified that his house was burglarized once while the

occupants were away, but he had no knowledge of the identity of the transgressors

and he also failed to proffer any evidence tying the break-in to his political

opinion, except for testifying that he had received a subsequent telephone threat.

Cordero likewise failed to show that the incident involving his wife was related to

his political opinion because he admitted that he did not know for a fact that the

offenders were actually Toledo supporters. Finally, Cordero could not show that

the two notices to appear from the Peruvian judiciary constituted political

persecution because the record does not compel a different interpretation than the

IJ’s determination that he may have only been a target of an investigation for

criminal behavior instead of persecution for his political beliefs. In fact, Cordero
                                           8
admitted that the judiciary also sought his bank records in relations to allegations

that he had received illegal funds.

       The petitioners also failed to demonstrate an objectively reasonable fear of

future persecution. Substantial evidence supports the IJ’s finding that Cordero’s

fear was not objectively reasonable based on “circumstances surrounding his

alleged [past] persecution and current conditions in Peru.” As discussed above,

most of the incidences of past harassment and threats alleged by Cordero were not

necessarily related to his political opinion, and did not amount to persecution even

when considered as a whole. Moreover, the Country Report contradicts Cordero’s

claim that he would suffer future persecution at the hands of the Toledo

government or the judiciary if he returned to Peru, because the report indicates

that: (1) although the Peruvian judiciary was widely perceived to be corrupt and

inefficient, it was nonetheless independent; and (2) there were no reports of

politically motivated killings, disappearances, or detentions of political prisoners

by the government.          Accordingly, the record does not compel a finding that

Cordero’s fear of future persecution was objectively reasonable.1

       1
          Petitioners’ arguments to the contrary are unsupported by the record. While they argue
that the IJ erred in failing to find instances of past persecution or the likelihood of future
persecution because both Cordero’s life and freedom were “threatened” by the Toledo
government on account of his political opinion, we have made clear that mere threats, such as
anonymous death threats through the telephone, without more, do not rise to the level of
persecution. See Sepulveda, 401 F.3d at 1231. Also, the record shows that Cordero’s life was
never actually threatened in the past, and that the possibility of losing his freedom may have
primarily arisen from a judicial investigation into his illegal activities. Accordingly, petitioners’
                                                    9
       Likewise, substantial evidence supports the IJ’s and BIA’s findings that it is

unlikely that Cordero would be tortured if removed to Peru.                   See 8 C.F.R. §

208.16(c)(2). First, the record is bereft of evidence that Cordero would likely be

tortured by the Toledo government or the judiciary in Peru. Also, as discussed

above, Cordero had only encountered isolated incidences of harassment and threats

that never amounted to physical harm in the past, which bolsters the IJ’s and BIA’s

determination that he would unlikely be tortured in the future.                     Therefore,

petitioners failed to meet their burden under CAT.

       Finally, the petitioners’ argument faulting the IJ and BIA for failing to

consider their CAT claim sufficiently is without merit. The record shows that both

the IJ and BIA independently considered the CAT claim before rejecting such

claim based on the petitioners’ failure to carry the burden.

       Accordingly, we deny the part of the petition for review challenging the IJ’s

and BIA’s denial of withholding of removal and CAT relief

       PETITION DISMISSED IN PART, DENIED IN PART.




reliance on Lorisme v. INS, 129 F.3d 1441, 1445 (11th Cir. 1997), is both legally inaccurate and
factually misplaced. In Lorisme, we affirmed the BIA’s denial of the petition finding that the
petitioner did not suffer past persecution and did not have a well-founded fear of future
persecution. 129 F.3d at 1443, 1445. Further, petitioners cannot rely on Lorisme factually for
the proposition that a fear of persecution could always be proven whenever the petitioner’s life
was threatened, because the record supports the IJ’s and BIA’s determination that Cordero was
never physically threatened and had not faced any attempts on his life.
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