                                                                [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________                          FILED
                                                                    U.S. COURT OF APPEALS
                                 No. 04-13805                         ELEVENTH CIRCUIT
                             Non-Argument Calendar                        JUNE 17, 2005
                           ________________________                    THOMAS K. KAHN
                                                                            CLERK
                    Agency Nos. A95-547-246 & A95-547-247


LEONARDO SALAMANCA,
NANCY SOTO,
                                                                  Petitioners,

      versus

U.S. ATTORNEY GENERAL,
                                                                  Respondent.
                           _________________________

                         Petition for Review of an Order of
                         the Board of Immigration Appeals
                          _________________________
                                   (June 17, 2005)


Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

      Leonardo Salamanca and his wife, Nancy Soto (“Salamanca” and “Soto,”

collectively, “the petitioners”), through counsel, petition this court for review of
the Board of Immigration Appeal’s (“BIA’s”) order summarily affirming the

Immigration Judge’s (“IJ’s”) decision to deny them asylum and withholding of

removal under the Immigration and Nationality Act (“INA”). Because the

petitioners’ immigration proceedings commenced after April 1, 1997, the

permanent rules of the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (“IIRIRA”), govern their

petition for review. When the BIA issues a decision, we review 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). Because the BIA in this case

stated that the IJ’s decision was “the final agency determination,” we will “review

the IJ’s analysis as if it were the [BIA’s].” See id.

      On appeal, the petitioners assert that the IJ failed to explain why the threats

directed towards Salamanca and the assaults he endured were not politically

motivated, as the IJ failed to address the attacks and threats with any specificity.

The petitioners contend that Salamanca testified, and the evidence showed, that he

was involved in the Conservative Party, a group which the Revolutionary Armed

Forces of Colombia (“FARC”), one of the major paramilitary groups in Colombia,

found “objectionable.” The petitioners allege that Salamanca received numerous

threatening calls from FARC members, and that the persecution escalated, as

                                           2
Salamanca was shot by FARC members on August 12, 1995. These threats and

attacks, the petitioners contend, were more than mere harassment, and the IJ erred

in finding that Salamanca was not persecuted on the basis of a protected ground.

In light of the evidence in the record, particularly the evidence discussing the role

of guerilla groups in Colombia, the petitioners contend, a reasonable person would

fear that he was endangered on account of a protected ground.

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

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

2001). 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. U.S. Att’y

Gen., 241 F.3d 1320, 1323 (11th Cir. 2001); cf. INA § 242(b)(4)(B), 8 U.S.C.

§ 1252(b)(4)(B) (providing that “administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the

contrary”). 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. INS v. Elias-Zacarias, 502 U.S. 478,

481 n.1, 112 S.Ct. 812, 815 n.1, 117 L.Ed.2d 38 (1992).

      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); Sepulveda v. U.S. Att’y Gen.,

                                          3
401 F.3d 1226, 1230 (11th Cir. 2005), superseding 378 F.3d 1260 (11th Cir.

2004). 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);

Sepulveda, 401 F.3d at 1230.

      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. Al Najjar, 257 F.3d at 1284. If the applicant meets this

burden, then the Attorney General may exercise his discretion to grant the

applicant asylum. Id. In this instance, because the IJ concluded that Silva failed

to establish eligibility for asylum, there was no exercise of discretion.

Accordingly, we need only address whether substantial evidence supports the IJ’s

conclusion that Silva failed to establish that she was statutorily eligible for asylum

and withholding of removal.




                                          4
      An alien is entitled to asylum if he or she can establish, with specific and

credible evidence: (1) past persecution on account of his or her membership in a

particular social group, political opinion, or other statutorily listed factor, or (2) a

“well-founded fear” that his or her membership in a particular social group,

political opinion, or other statutorily listed factor will cause future persecution.

8 C.F.R. § 208.13(a), (b); Sepulveda, 401 F.3d at 1230-31. “[A]n applicant must

demonstrate that his or her fear of persecution is subjectively genuine and

objectively reasonable.” Al Najjar, 257 F.3d at 1289.

      If the alien demonstrates past persecution, he or she is presumed to have a

well-founded fear of future persecution unless the government can rebut the

presumption. 8 C.F.R § 208.13(b)(1); Sepulveda, 401 F.3d at 1231. If, however,

the alien does not establish past persecution, he or she bears the burden of

showing a well-founded fear of persecution by showing that (1) he or she fears

persecution based on his or her membership in a particular social group, political

opinion, or other statutorily listed factor; (2) there is a reasonable possibility he or

she will suffer persecution if removed to his or her native country; and (3) he or

she could not avoid persecution by relocating to another part of his or her country,

if under all the circumstances, it would be reasonable to expect relocation. See 8

C.F.R. § 208.13(b)(2), (3)(i).

                                            5
      Establishing a nexus between the statutorily listed factor and the feared

persecution “requires the alien to present specific, detailed facts showing a good

reason to fear that he or she will be singled out for persecution on account of” the

statutorily listed factor. Al Najjar, 257 F.3d at 1287 (emphasis in original)

(internal quotation omitted). “‘[T]he 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 General, 392 F.3d 434, 437 (11th Cir.

2004) (quoting Sotelo-Aquije v. Slattery, 17 F.3d 33, 37 (2nd Cir. 1994) (alteration

in original) (discussing INA § 208, 8 U.S.C. § 1158, the asylum statute)).

Evidence consistent with acts of private violence or that merely shows that an

individual has been the victim of criminal activity does not constitute evidence of

persecution on a statutorily protected grounds. Abdille v. Ashcroft, 242 F.3d 477,

494-95 (3rd Cir. 2001).

      Neither the INA nor the regulations define “persecution.” 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 1230 (internal quotations

and citations omitted). Other courts have held that, to be an act of persecution, the

behavior must threaten death, punishment, or the infliction of substantial harm or

                                          6
suffering. See Sharif v. INS, 87 F.3d 932, 935 (7th Cir. 1996). “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 qualify as persecution, a person’s experience must rise

above unpleasantness, harassment, and even basic suffering.” Nelson v. INS, 232

F.3d 258, 263 (1st Cir. 2000).

      In the instant case, we conclude from the record that substantial evidence

supports the IJ’s finding that the petitioners failed to demonstrate asylum

eligibility because they did not establish that they suffered past persecution or had

a well-founded fear of future persecution on account of Salamanca’s political

opinion. In regards to past persecution, Salamanca testified that FARC members

continuously made threatening phone calls to his family’s home, but these threats

do not appear to have been “immediate and menacing,” and “[t]hreats alone

generally do not constitute actual persecution.” See Vatulev, 354 F.3d at 1210

(persuasive authority).

      Salamanca also detailed several incidents, including: (1) a drive-by shooting

at his parents’ house resulting in a bullet wound to his leg; (2) a shooting directed

towards him, his brother, and his friends as they drove through the country; (3) an

                                          7
attack and beating of his brother; and (4) a drive-by shooting directed towards

him, his brother-in-law, and a friend, resulting in a bullet wound to his brother-in-

law’s leg. Salamanca identified FARC members as the perpetrators of two of the

attacks: (1) the incident where he was shot at his parents’ house, because he saw

the FARC insignia on their clothing; and (2) the incident where he, his brother,

and his friends were shot at as they drove, because the shooters wore “plastic

boots,” which he claims are part of typical FARC uniforms. However, Salamanca

failed to establish a causal connection between his political opinion and these

attacks, as he was not engaging in political activities when the shootings occurred,

and there is no indication that the FARC shot at him “on account of” his political

opinion. See Sangha v. INS, 103 F.3d 1482, 1486-87 (9th Cir. 1997) (holding that

alien must establish a causal connection between his political opinion and the

harm suffered by direct or circumstantial evidence, not by inference).

      In relation to the other incidents, including the attack allegedly perpetrated

against his brother as Salamanca and his friends hung political propaganda,

Salamanca did not provide any evidence indicating that the perpetrators were

FARC members. Moreover, the 2001 Country Report listed several groups that

the FARC persecuted, including political candidates whom it did not support, but




                                          8
did not indicate that the FARC persecuted election workers, regardless of their

party affiliation, merely because it was opposed to the electoral process.

       Finally, Salamanca’s claim that he was persecuted is undermined by: (1) the

fact that he returned to Colombia two times after he initially left to avoid

persecution, and during his travels to various countries around the world, he never

sought help or reported the persecution; and (2) the fact that he never reported any

of the threats or attacks to the authorities in Colombia. Accordingly, substantial

evidence supports the IJ’s conclusion that the petitioners failed to establish past

persecution.

       Furthermore, substantial evidence supports the IJ’s conclusion that the

petitioners did not establish a well-founded fear of future persecution. A

“well-founded fear” of persecution may be established by showing (1) past

persecution that creates a presumption of a well-founded fear and overcomes any

rebuttal by the INS, (2) a reasonable possibility of personal persecution that cannot

be avoided by relocating within the subject country,1 or (3) a pattern or practice in



       1
         We recently rejected an IJ’s finding that petitioners could avoid persecution at the hands of
Colombia guerilla groups by relocating within Colombia, because the 1999 and 2000 Country
Reports indicated that guerillas exercised influence throughout Colombia. See Sepulveda, 401 F.3d
at 1232 n.7. However, as in Sepulveda, we need not address the petitioners’ ability to relocate within
Colombia in the instant case, because the evidence does not compel the conclusion that Salamanca
was persecuted, or would be persecuted, on account of his political opinion if he were to return to
Colombia.
                                                  9
the subject country of persecuting members of a statutorily defined group of which

the alien is a part. 8 C.F.R. § 208.13(b)(1), (2). As discussed above, the

petitioners did not establish that Salamanca had been subjected to past

persecution, and hence, no presumption of a well-founded fear of future

persecution arose. Salamanca also failed to establish a pattern or practice by

FARC of persecuting members of the Conservative Party. Because the petitioners

failed to present specific, detailed facts compelling the conclusion that they

experienced past persecution in Colombia, or that they had a well-founded fear of

persecution if they returned to Colombia, on account of Salamanca’s political

opinion, substantial evidence supports the IJ’s denial of asylum.

      In addition, if “an applicant is unable to meet the ‘well-founded fear’

standard for asylum, he is generally precluded from qualifying for either asylum or

withholding of deportation.” Al Najjar, 257 F.3d at 1292-93 (internal quotations

and citations omitted). Accordingly, because the petitioners failed to establish a

well-founded fear of persecution sufficient to support their asylum claim, they also

could not establish that they were eligible for withholding of removal. See Id.,

257 F.3d at 1292-93, 1303-04. Accordingly, we deny the petitioners’ petition for

review.

      PETITION DENIED.

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