                                                 [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                    FILED
                      ________________________         U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                             August 31, 2005
                            No. 05-10403                    THOMAS K. KAHN
                        Non-Argument Calendar                   CLERK
                      ________________________

                 Agency Nos. A79-478-573, A79-478-572

JOSE MANUEL VESGA OROZCO,

MARIA DEL PILAR LOPEZ GARCIA,

                                                                  Petitioners,

                                 versus

U.S. ATTORNEY GENERAL,

                                                                 Respondent.


                      ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                      _________________________
                            (August 31, 2005)


Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:
      Jose Manuel Vesga-Orozco (“Orozco”) and Maria Del Pilar Lopez-Garcia

(“Garcia”), both natives and citizens of Colombia, petition through counsel for

review of the Immigration Judge’s (“IJ’s”) order directing their removal and

denying their applications for asylum, 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”). The IJ’s order became the final agency determination when

the Board of Immigration Appeals (“BIA”) summarily affirmed the IJ’s decision

without an opinion. Because Petitioners’ removal proceedings commenced after

April 1, 1997, the effective date of IIRIRA, this case is governed by the permanent

provisions of the INA, as amended by IIRIRA. Gonzalez-Oropeza v. U.S. Att’y

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

                                   I. Background

      Petitioners, who are married, argue that they were persecuted on account of

their membership in a “particular social group,” their family. They contend that

the criminal organization to which Garcia’s brother belonged has a “vendetta”

against the family because it supported the brother’s refusal to continue

participating in the organization. In support of this claimed vendetta, petitioners

note that Garcia’s brother disappeared and that her mother was assassinated in
                                          2
Colombia after urging the government to investigate the brother’s disappearance.

Petitioners claim that they are afraid that they will meet a similar fate if forced to

return to Colombia.

      Petitioners maintain that they are not required to show that the sole reason

for persecution was on account of a protected ground. They also argue that they

have shown by a preponderance of the evidence that they will be threatened or

persecuted on their return to Colombia, and that withholding of removal is thus

appropriate. Finally, they claim that CAT relief is also appropriate because it is

more likely than not that they will be tortured upon their return to Colombia.

                               II. Standard of Review

      To the extent that the BIA’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 BIA’s factual determinations are reviewed 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.’” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (internal

quotation 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.”
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Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003) (considering

withholding of removal claim). That evidence in the record may also support a

contrary conclusion is not enough to justify a reversal. Adefemi v. Ashcroft, 386

F.3d 1022, 1027 (11th Cir. 2004), cert. denied, 125 S. Ct. 2245 (2005).

                                    III. Discussion

      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). 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 Al Najjar, 257 F.3d at 1284. To establish asylum

eligibility, the alien must, with specific and credible evidence, establish (1) past

persecution on account of a statutorily listed factor, or (2) a “well-founded fear”

that the statutorily listed factor will cause such future persecution. 8 C.F.R.

§ 208.13(a), (b); Al Najjar, 257 F.3d at 1287. “Demonstrating such a connection

                                           4
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” one of the

statutory factors. Al Najjar, 257 F.3d at 1287 (internal quotations and citations

omitted) (emphasis in original). An asylum applicant may not show merely that he

is a member of a particular social group, but must show that the feared persecution

is because of that membership. See INS v. Elias-Zacarias, 502 U.S. 478, 483, 112

S.Ct. 812, 816, 117 L.Ed.2d 38 (1992). However, if any alien’s mistreatment is

attributable to criminal activity, it will not amount to persecution on a protected

ground. See Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir. 2001); Grava v.

INS, 205 F.3d 1177, 1181 n. 3 (9th Cir. 2000) (“Purely personal retribution is, of

course, not persecution on account of political opinion. Thus, retaliation

completely untethered to a governmental system does not afford a basis for

asylum.”); Bolshakov v. INS, 133 F.3d 1279, 1281 (9th Cir. 1998) (falling victim

to criminal activity does not constitute persecution).

      If the alien establishes past persecution, it is presumed for both asylum and

withholding of relief purposes that his life or freedom would be threatened upon a

return to that country unless the government shows by a preponderance that the

country’s conditions have changed such that the applicant’s life or freedom would

no longer be threatened upon his removal or that the alien could relocate within the

country and it would be reasonable to expect him to do so. 8 C.F.R. §§
                                           5
208.13(b)(1), 208.16(b)(1). An alien who has not shown past persecution may still

be entitled to asylum or withholding of removal if he can demonstrate a future

threat to his life or freedom on account of a protected ground. Id. §§ 208.13(b)(2),

208.16(b)(2). To establish a “well-founded fear,” “an applicant must demonstrate

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

reasonable.” Al Najjar, 257 F.3d at 1289 (discussing well-founded fear as it applies

to asylum). Once a well-founded fear of persecution is established, the burden

shifts to the government to show by a preponderance of the evidence that (1) there

is a fundamental change in circumstances such that the alien no longer has a well-

founded fear of persecution; or (2) the alien could avoid future persecution by

relocating to another party of his country or place of last habitual residence and

under all the circumstances it would be reasonable to expect the alien to do so. 8

C.F.R. §§ 208.13(b)(1)(i)(A), (B), 208.16(b)(2), (3).

       To qualify for withholding of removal under the INA, an alien must show

that it is more likely than not that if returned to his or her country, the alien’s life or

freedom would be threatened on account of one of the aforementioned statutorily

protected grounds. INA § 241(b)(3); 8 U.S.C. § 1231(b)(3). “An alien bears the

burden of demonstrating that he more-likely-than-not would be persecuted or

tortured upon his return to the country in question.” Mendoza, 327 F.3d at 1287.

       To be entitled to relief under the CAT, an applicant must establish that it is
                                             6
“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 such purposes as obtaining from him or her 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). The burden of proof for an applicant seeking relief under

the CAT, like that for an applicant seeking withholding of removal under the INA,

is higher than the burden imposed on an asylum applicant. Al Najjar, 257 F.3d at

1303-04.

      We conclude that substantial evidence supports the IJ’s decision that

Petitioners were not entitled to asylum. While this court shares the IJ’s sympathy

for petitioners’ situation, we agree that petitioners failed show that they were

persecuted, or had a well-founded fear of persecution, on a protected ground. The

record contained substantial evidence to conclude that petitioners’ feared

mistreatment at the hands of drug traffickers was not on account of their

membership in their family, but rather was aimed at extorting their silence and

retaliating for their reports to Colombian authorities. Thus, while membership in a
                                           7
family can serve as grounds for obtaining refugee status, it does not do so in this

case.

        Petitioners’ withholding of removal claims under the INA and CAT also fail,

both because petitioners did not establish eligibility for asylum, which carries a

lower burden of proof, and because there is no evidence that any feared torture

would be carried out by the Colombian government or by others with government

acquiescence. Al Najjar, 257 F.3d at 1293, 1303; 8 C.F.R. § 208.18(a)(1).

Additionally, the fact that the government has apprehended and prosecuted one of

the men who assassinated Garcia’s mother indicates that the drug traffickers whom

petitioners fear are not operating above the law.

        Upon review of the record, and having considered the briefs of the parties,

we discern no reversible error.

        Based upon the foregoing, we deny the petition for review.

        PETITION DENIED.




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