                                              [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT            FILED
                   ________________________ U.S. COURT OF APPEALS
                                              ELEVENTH CIRCUIT
                        No. 08-11907             July 28, 2009
                    Non-Argument Calendar      THOMAS K. KAHN
                  ________________________          CLERK


                    Agency No. A78-411-252

JAVIER ALFONSO MONTENEGRO,
JAIRO ALFONSO MONTENEGRO,
ESTHER MONTENEGRO,

                                                      Petitioners,

                            versus

U.S. ATTORNEY GENERAL,

                                                      Respondent.

                  ________________________

                        No. 08-17081
                    Non-Argument Calendar
                  ________________________

                   Agency Nos. A079-476-470
                        A079-476-471


JAIRO ALFONSO MONTENEGRO,
ESTHER MONTENEGRO,

                                                      Petitioners,
                                            versus

U.S. ATTORNEY GENERAL,

                                                                                  Respondent.
                              _________________________

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

                                       (July 28, 2009)

Before BIRCH, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

       Jairo Montenegro and his wife, Esther Montenegro, who is a derivative

applicant on Montenegro’s asylum application, seek review in consolidated

petitions of the Board of Immigration Appeals’s (“BIA”) order, affirming the

immigration judge’s (“IJ”) denial of their application for asylum, 8 U.S.C. § 1158,

withholding of removal, 8 U.S.C. § 1231(b)(3), and relief under the United Nations

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or

Punishment (“CAT”), 8 C.F.R. § 208.16(c), and of the BIA’s denial of their motion

to reopen.1    On appeal, Montenegro argues: (1) the BIA erred in denying him

asylum, withholding of removal and CAT relief; and (2) the BIA abused its



       1
          Javier Montenegro, the Montenegro’s son, filed a separate application for asylum,
withholding of removal, and CAT relief, and his application was consolidated with his parent’s
by the IJ. However, Javier returned to Colombia before the conclusion of these proceedings.
                                               2
discretion in denying his motion to reopen, as he presented “more than sufficient

evidence” to establish a prima facie case of eligibility for asylum or withholding of

removal. After careful review, we deny the petitions.

      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 (11th Cir. 2001).         “Insofar as the [BIA] adopts the IJ’s

reasoning, we will review the IJ’s decision as well.” Id. Here, the BIA adopted the

IJ’s reasoning while also adding its own explanations, and, therefore, we review

both the IJ’s and the BIA’s decisions.

      To the extent the IJ’s and BIA’s decisions are based on legal determinations,

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

2001). We review factual determinations, however, under the “highly deferential

substantial evidence test,” which requires us to “view the record evidence in the

light most favorable to the agency’s decision and draw all reasonable inferences in

favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir.

2004) (en banc). “Findings of fact made by the [IJ] may be reversed by [us] only

when the record compels a reversal; the mere fact that the record may support a

contrary conclusion is not enough to justify a reversal of the administrative

findings.”   Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006)

(alterations and quotation omitted). We review the BIA’s denial of a motion to
                                          3
reopen for an abuse of discretion, and “the BIA’s discretion is quite broad.” Gbaya

v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003) (quotation omitted).

      First, we are unpersuaded by Montenegro’s claim that the BIA erred in

denying him asylum, withholding of removal, and CAT relief.            An alien may

receive asylum if he proves that he is a “refugee,” which is defined as:

      any person who is outside any country of such person’s nationality . . .
      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.

Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005) (quoting 8

U.S.C. § 1101(a)(42)(A)) (emphases omitted).          “The asylum applicant must

establish eligibility for asylum by offering ‘credible, direct, and specific evidence

in the record.’” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005).

“Uncorroborated but credible testimony from the applicant may be sufficient alone

to sustain the burden of proof for asylum or withholding of removal.” D-Muhumed

v. U.S. Att’y Gen., 388 F.3d 814, 818-19 (11th Cir. 2004).

      Accordingly, to be eligible for asylum, “the alien must, with credible

evidence, establish (1) past persecution on account of [his] political opinion or any

other protected ground, or (2) a ‘well-founded fear’ that [his] political opinion or

any other protected ground will cause future persecution.” Sepulveda, 401 F.3d

                                          4
at 1230-31 (citing 8 C.F.R. § 1208.13(a) and (b)). Although the Immigration and

Nationality Act (“INA”) does not define persecution, we have recognized that

“persecution” is “an extreme concept, requiring more than a few isolated incidents

of verbal harassment or intimidation, and . . . mere harassment does not amount to

persecution.” Id. at 1231 (quotations and bracket omitted).        We have held that

threats alone do not give rise to a persecution-based claim for relief.           Silva,

448 F.3d at 1237-39.

      Moreover the combination of verbal threats and a minor beating do not

amount to persecution. Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir.

2008) (alien’s claim that police officers beat him and detained him for 36 hours did

not compel the conclusion that the alien established persecution). We also have

held that neither threatening phone calls nor condolence notes are sufficient to

establish persecution. See Sepulveda, 401 F.3d at 1231 (“menacing telephone calls

and threats to [an alien] . . . do not rise to the level of past persecution”); see also

Silva, 448 F.3d at 1237. Nevertheless, we have found persecution where, despite

enduring no “significant physical attacks,” an alien received numerous death

threats, was dragged by her hair out of her vehicle, and was kidnapped and beaten.

De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1009-10 (11th Cir. 2008).

      “A showing of past persecution creates a presumption of a ‘well-founded

fear,’ subject to rebuttal by the [government].” Sepulveda, 401 F.3d at 1231 (citing
                                           5
8 C.F.R. § 208.13(b)(1)). If an alien does not establish past persecution, he bears

the burden of showing that it is more likely than not that he will suffer persecution

on the basis of the protected ground, and he would not be able to avoid persecution

by relocating to another part of his country, if, under all of the circumstances, it

would be reasonable to expect him to do so. 8 C.F.R. § 208.16(b)(2), (b)(3).

      Withholding of removal may be granted if the alien establishes that, if

returned to his country, his life or freedom would be threatened on account of his

race, religion, nationality, membership in a particular social group, or political

opinion. 8 U.S.C. § 1231(b)(3). The burden of proof for an applicant seeking

withholding of removal is higher than the burden imposed on an asylum applicant.

Al Najjar, 257 F.3d at 1303. Accordingly, where a petitioner fails to establish

eligibility for asylum, he likewise fails to establish entitlement to withholding of

removal. Silva, 448 F.3d at 1243.

      Eligibility for CAT relief requires the applicant to establish that it is more

likely than not that he would be tortured if returned to the proposed country of

removal. 8 C.F.R. § 208.16(c)(2). The CAT defines torture as the intentional

infliction of “severe pain or suffering.” See 8 C.F.R. § 208.18(a)(1). To obtain

CAT relief, the alien must demonstrate that the torture would be inflicted by the

government or with the government’s acquiescence, i.e., the government would be

aware of the torture and fail to intervene.    Reyes-Sanchez v. U.S. Att’y Gen.,
                                          6
369 F.3d 1239, 1242 (11th Cir. 2004). The burden of proof for an alien seeking

withholding of removal under the CAT, like the burden for an alien seeking

withholding of removal under the INA, is higher than the burden for showing

entitlement to asylum. Al Najjar, 257 F.3d at 1303. Thus, where the alien is

unable to meet the less stringent standard for asylum, his claim for CAT relief

necessarily fails. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1292 (11th Cir. 2006).

      In this case, substantial evidence supports the IJ’s and BIA’s findings that

Montenegro was not eligible for asylum, withholding of removal, or CAT relief.

With regard to asylum, while Montenegro established that he was threatened on

account of his political opinion by the Revolutionary Armed Forces of Colombia

(“FARC”), the verbal threats of which he complained were insufficient to rise to

the level of persecution, as defined by our caselaw.   See Silva, 448 F.3d at 1237-

39; Sepulveda, 401 F.3d at 1231. Montenegro did not allege that he was kidnaped,

beaten, or otherwise subjected to any actions beyond in-person verbal threats. See

De Santamaria, 525 F.3d at 1009-10. The evidence therefore does not compel the

conclusion that he experienced persecution. See Silva, 448 F.3d at 1236.

      Further, substantial evidence supports the IJ’s and BIA’s conclusion that

Montenegro did not establish that he had a well-founded fear of future persecution,

particularly in light of the fact that he returned to Colombia for one week after

having taken refuge in the United States, and two of his sons remained in
                                         7
Colombia unharmed.       Moreover, Montenegro had not experienced anything

beyond mere harassment in the two years that he was threatened by the FARC

while living in Colombia. As a result, the record does not compel the conclusion

that Montenegro had a well-founded fear of persecution. See id.

      Finally, since Montenegro did not establish past persecution, he had the

burden of showing that he would be unable to avoid persecution by relocating to

another part of Colombia. See 8 C.F.R. § 208.16(b)(2), (b)(3). Although the 2005

Country Report indicated that the FARC’s presence in Colombia is country-wide,

it does not compel reversal of the IJ’s and BIA’s conclusion that Montenegro failed

to meet his burden, particularly where: (1) Montenegro did not try to relocate

within Colombia before moving to the United States; (2) two of his sons lived

safely in Colombia; and (3) he offered no basis for his conclusion that relocation

was impossible beyond his personal belief that the FARC dominated Colombia.

Consequently, we deny the petition with respect to Montenegro’s asylum claim.

      Because the burden of proof for an applicant seeking withholding of removal

or CAT relief is higher than that for an applicant seeking asylum, and Montenegro

failed to meet his burden for asylum, he necessarily failed to satisfy his burden for

withholding of removal or CAT relief, and the IJ and BIA properly denied these

claims. See Al Najjar, 257 F.3d at 1303; see also Zheng, 451 F.3d at 1292.       The

IJ’s and BIA’s denial of CAT relief also was proper on the additional basis that the
                                          8
2005 Country Report supported the conclusion that the Colombian government

does not acquiesce to the FARC’s torture and killings. Accordingly, Montenegro

did not meet his burden of showing that he would be tortured by the Colombian

government, or with its acquiescence, if returned to Colombia, and the IJ and BIA

properly denied CAT relief.

      We also reject Montenegro’s claim that the BIA abused its discretion in

denying his motion to reopen. It is within the discretion of the BIA to deny a

motion to reopen for at least three reasons: “(1) failure to establish a prima facie

case [of eligibility for asylum]; (2) failure to introduce evidence that was material

and previously unavailable; and (3) a determination that despite the alien’s

statutory eligibility for relief, he or she is not entitled to a favorable exercise of

discretion.” Al Najjar, 257 F.3d at 1302. To establish a prima facie showing of a

well-founded fear of future persecution, an asylum applicant must show that

“[t]here is a reasonable possibility of suffering such persecution” if he is returned

to his native country. 8 C.F.R. § 1208.13(b)(2)(i)(B). For withholding of removal,

an applicant must demonstrate a “clear probability” of persecution if returned to

their home country, which is a higher burden than that for asylum. INS v. Stevic,

467 U.S. 407, 424-25, 429 (1984).

      Here, the BIA did not abuse its discretion in denying Montenegro’s motion

to reopen, as the documents that he submitted did not establish a prima facie case
                                          9
of his eligibility for asylum or withholding of removal. None of the documents

related to past persecution, and they were insufficient to demonstrate a well-

founded fear of future persecution: (1) the condolence note allegedly sent by the

FARC was an example of harassment and intimidation, but not persecution,

especially since Montenegro received numerous other threats without experiencing

any further action by the FARC, see Silva, 448 F.3d at 1237 (finding that a

condolence note alone was insufficient to entitle the applicant to asylum); (2) the

letters from the elected officials were based on knowledge garnered by

“acquaintances” and did not reflect their own firsthand information or personal

knowledge; (3) the 2007 Country Report did not contain any information regarding

a specific threat to Montenegro or people who are similarly situated to him, and,

thus, did not establish a “reasonable possibility” that he would be persecuted if

returned to Colombia, see 8 C.F.R. § 1208.13(b)(2)(i)(B); and (4) the letter that

Javier sent to Montenegro also did not establish this “reasonable possibility,” as it

was not specific regarding the threat from the FARC and did not point to any

specific instances in which either Javier or Montenegro was threatened. Therefore,

because none of the documents that Montenegro submitted established a prima

facie case of eligibility for asylum, they also necessarily did not meet the higher

burden of establishing a prima facie case of eligibility for withholding of removal,

and the BIA did not abuse its broad discretion in denying the motion to reopen.
                                         10
See Stevic, 467 U.S. at 424-25; see also Gbaya, 342 F.3d at 1220.

       Lastly, regarding Montenegro’s claim that the BIA failed to consider

Javier’s letter, this argument is contradicted by the BIA’s order, which specifically

referred to the letter and one of its claims. Moreover, even if the BIA did err, the

error was harmless, because, as discussed above, Javier’s letter was not specific as

to   the   threat   that   the   FARC   posed   to   Montenegro.    See   8   C.F.R.

§ 1208.13(b)(2)(i)(B).

       PETITIONS DENIED.




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