                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT         FILED
                     ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                             May 20, 2005
                            No. 04-12785
                                                          THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

                   Agency Docket Nos. A79-340-134
                          & A79-340-135

MAURO NERY HERNANDEZ RUBIO,
ZORAIDA MERCEDES SAAVEDRA SUAREZ, et al.,

                                                   Petitioners,

     versus

U.S. ATTORNEY GENERAL,

                                                   Respondent.

                     __________________________

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

                            (May 20, 2005)

Before ANDERSON, BLACK and CARNES, Circuit Judges.

PER CURIAM:
       Mauro Nery Hernandez Rubio, on behalf of himself, his wife, Zoraida

Mercedes Saavedra Suarez, and his two children, Diana C. Hernandez Saavedra

and Christian M. Hernandez Saavedra, petitions for review of the Board of

Immigration Appeals’s order affirming the immigration judge’s denial of asylum,

withholding of removal, and relief under the Convention Against Torture.1

                                                I.

       Rubio is a Colombian citizen. In his hometown in Colombia, he was a

community leader and a spokesmen for the Liberal Party. As part of Colombia’s

2000 presidential election, Rubio spoke at a campaign event in support of the

Liberal Party presidential candidate.

       At the August 7, 1999 event, one of the members of the audience asked him

what he thought of the continuing violence in Colombia. Rubio responded that he

did not care for the communist politics of the guerilla groups responsible for the

violence. He recommended that Colombia call upon other nations, including the

United States, to help fight the guerrilla groups.

       After the speech, Rubio began receiving threatening phone calls from

persons identifying themselves as members of the FARC guerilla group. Scared


       1
         Rubio is the primary applicant. His wife and children are derivative applicants, and,
therefore, rely on Rubio’s application. For that reason and for convenience of reference, we will
only refer to Rubio and his claims.

                                                2
for the safety of his family, he transferred his children to a local private school and

moved with his family to the house of a nearby relative. Over the next two

months, Rubio received eight such phone calls.

      Then, on October 11, 1999, Rubio was shot at by two men on a motorcycle

while on his way to work. He managed to duck out of the way and escaped

unharmed. Rubio decided to leave Colombia after this incident. He took his

children out of school, packed up his papers and effects, and left for the United

States on December 4, 1999.

      Rubio filed for asylum, withholding of removal, and relief under the CAT

on February 5, 2001. By then, however, his visa had expired, and the Immigration

and Naturalization Service charged him with removability, pursuant to 8 U.S.C. §

1227(a)(1)(B). Rubio concedes that he is removable.

      The IJ, after reviewing the written record and taking live testimony, denied

Rubio’s application in full. Rubio appealed to the BIA, which “affirm[ed] the

Immigration Judge’s finding that the application for asylum is untimely.” The

BIA also held that the threatening phone calls and the October 11, 1999 shooting

incident did “not rise to the level so as to amount to persecution” as that term is

defined by the Immigration and Naturalization Act for withholding of removal and




                                           3
relief under the CAT. Rubio appeals this decision here, and contends that both

holdings are in error.

                                         II.

      Rubio first contends that the BIA denied him due process by refusing to

review his application for asylum as untimely. He frames the issue as violating

due process, noting that we have jurisdiction to review constitutional claims. See

8 U.S.C. § 1252(a)(2)(B); Gonzalez-Oropeza v. U.S. Attorney Gen., 321 F.3d

1331, 1333 (11th Cir. 2003) (per curiam).

      For an alien to be eligible for asylum, he must establish by clear and

convincing evidence that his application was filed within one year of his arrival in

the United States. 8 U.S.C. § 1158(a)(2)(B). If the alien files the application after

the one year deadline, his tardiness may be excused if he alleges extraordinary

circumstances which prevented him from timely filing the application. Id. §

1158(a)(2)(D). However, once the Attorney General, through the BIA, decides

that an alien did not have extraordinary circumstances which excuse his tardiness,

“no court shall have jurisdiction to review” such determination. Id. § 1158(a)(3);

see also Mendoza v. U.S. Attorney Gen., 327 F.3d 1238, 1287 (11th Cir. 2003)

(“This Court already has determined that section 1158(a)(3) divests our Court of

jurisdiction to review a decision regarding whether an alien complied with the

                                          4
one-year time limit or established extraordinary circumstances that would excuse

his untimely filing.”).

      Here, Rubio entered the United States on December 4, 1999. He filed his

application for asylum on February 5, 2001, more than one year after he entered

the country. Rubio asked the IJ to excuse his tardiness because he consulted

attorneys who told him not to file his asylum application. The IJ found that this

was not an extraordinary circumstance because Rubio did not file a complaint

against his attorneys with the Florida Bar, as required by BIA precedent. Without

such a complaint, the IJ could not take seriously Rubio’s assertion that he received

ineffective assistance of counsel. The BIA affirmed for the same reason.

      We do not have jurisdiction to review that decision. See 8 U.S.C. §

1158(a)(3); Mendoza, 327 F.3d at 1287. Rubio’s attempt to dress up his meritless

claim as a due process violation, while resourceful, does not create jurisdiction

where there is none otherwise. See Gonzalez-Oropeza, 321 F.3d at 1333 (For

review of asylum claims, “[w]here a constitutional claim has no merit . . . we do

not have jurisdiction.”).

                                        III.

      Rubio also contends that the BIA erred in determining that he was not

entitled to withholding of removal and relief under the CAT because “the reported

                                          5
actions [the threatening phone calls and the shooting incident] do not rise to the

level so as to amount to persecution” as defined by the immigration statutes.

      We review the BIA’s findings of fact under the substantial evidence test,

and we “must affirm the BIA’s decision if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.”

Sepulveda v. U.S. Attorney Gen., No. 03-14932, 2005 WL 477878, at *2 (11th

Cir. March 2, 2005) (quotation omitted). “Under this highly deferential standard

of review, the [BIA]’s decision can be reversed only if the evidence compels a

reasonable fact finder to find otherwise.” Id. (quotation omitted).

      As to withholding of removal, an alien shall not be removed to a country if

his life or freedom would be threatened on account of race, religion, nationality,

membership in a particular social group, or political opinion. 8 U.S.C. §

1231(b)(3). The alien has the burden to show that it is “more likely than not that

[he] will be persecuted or tortured upon being returned to [his] country.”

Sepulveda, 2005 WL 477878, at *5. If the alien establishes past persecution, it is

presumed that his life or freedom would be threatened upon return to his country.

8 C.F.R. § 208.16(b).

      While the immigration statutes do not define persecution, courts have

generally held that persecution is “punishment or the infliction of harm for

                                          6
political, religious, or other reasons that this country does not recognize as

legitimate.” See, e.g., Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000).

But, mere harassment is not persecution. Persecution requires “more than a few

isolated incidents of verbal harassment or intimidation.” Sepulveda, 2005 WL

477878, at *3; see also Nelson v. Immigration & Naturalization Serv., 232 F.3d

258, 263 (1st Cir. 2000) (persecution “must rise above unpleasantness,

harassment, and even basic suffering”).

      The same is true for relief under the CAT. The alien must establish that it is

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

of removal. Id. The CAT defines torture as:

      any act by which severe pain or suffering, whether physical or mental,
      is intentionally inflicted on a person for such purposes as obtaining
      from him or a third person information or a confession, punishing him
      or her for an act he or she or a third person has committed or is
      suspected of having committed, or intimidating or coercing him or her
      or a third person, or 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.

8 C.F.R. § 208.18(a)(1).

      Substantial evidence exists to support the BIA’s decision that Rubio was not

entitled to withholding of removal or relief under the CAT. We have held that




                                          7
past incidents similar to Rubio’s do not rise to the level of persecution and torture.

See Sepulveda, 2005 WL 477878, at *3; see also Nelson, 232 F.3d at 263.

      Moreover, like the BIA, we are not convinced that Rubio would more likely

than not be subject to persecution and torture on his return to Colombia. The 1997

Profile on Asylum Claims for Colombia, which Rubio introduced at his hearing,

notes that the Colombian government has been more vigilant about cracking down

on guerilla violence, and, in certain parts of the country, the violence has

effectively stopped. Rubio did not report the harassing phone calls or shooting

incident to the local authorities so that they could investigate and prosecute the

perpetrators. Nor did Rubio first try to move away from the violence, rather than

flee directly to the United States. Given both unexplored options, we cannot say it

is “more likely than not” that Rubio will face persecution and torture in Colombia

upon his return.

                                         IV.

      For the foregoing reasons, we deny Rubio’s petition for review of the BIA’s

order affirming the IJ’s denial of withholding of removal and relief under the

CAT. We also dismiss for lack of jurisdiction that part of Rubio’s petition seeking

review of the BIA’s order affirming the IJ’s decision to deny his application for

asylum as untimely.

      PETITION DISMISSED IN PART AND DENIED IN PART.

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