                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                      FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________  ELEVENTH CIRCUIT
                                                   MAR 20, 2009
                                                THOMAS K. KAHN
                           No. 08-14717
                                                     CLERK
                        Non-Argument Calendar
                      ________________________

                        Agency Nos. A78-621-380
                             A78-621-381

FERNANDO GOMEZ,
LUZ MARINA DEVIA
HECTOR H. GOMEZ
DANIEL A. GOMEZ,

                                                                Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                               Respondent.

                      ________________________

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

                            (March 20, 2009)

Before BIRCH, DUBINA and KRAVITCH, Circuit Judges.

PER CURIAM:
       Fernando Gomez (“Gomez”), his wife Luz Marina Devia, and their two

sons, Hector and Daniel, petition for review of a Board of Immigration Appeals’

(“BIA”) order affirming the denial of their application for withholding of removal

under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(b)(3), and

under the Convention Against Torture (“CAT”), 8 C.F.R. § 1208.16-18.1 After

careful consideration, we AFFIRM the BIA’s decision and DENY the petition for

review.

                                  I. BACKGROUND

       The Gomez family fled their native country of Columbia and entered the

United States on 31 March 1999 as non-immigrant visitors with permission to stay

until 30 September 1999. AR at 217-18, 245-46, 273-74, 299-300. On 19 April

2001, they each received a notice to appear from the Department of Homeland

Security (“DHS”). Id. The notices charged that the Gomez family had stayed

beyond their authorized date and were therefore subject to removal under the INA.

Id.

       On 29 January 2001, Gomez filed an application for asylum and

withholding of removal on behalf of himself and his family. Id. at 128, 130-31.


       1
        Fernando Gomez, the lead petitioner, included his wife and minor sons as derivative
applicants in his asylum application. AR 130-31. Therefore, our references to Gomez’s claims
for withholding of removal and CAT protection include those of his wife and two children.

                                              2
Gomez claimed that he was mistreated and threatened by the FARC2 based on his

membership in the Columbian Liberal Party and his political opinion. Id. at 132.

At the asylum hearing in November 2006, Gomez admitted the allegations in the

notices to appear and conceded removability. Id. at 93-94. Gomez also withdrew

his application for asylum as being untimely. Id.

       With respect to his application for withholding of removal, Gomez testified

at the hearing as follows. Gomez stated that he was a member of Columbia’s

Liberal Party but did not have an official position or work directly for the party.

Id. at 97, 109. From 1995 through 1998, Gomez conducted approximately fifty

computer training workshops for impoverished youths sent to him by the Liberal

Party. Id. at 113-14. Gomez believed the FARC disapproved of these workshops

because they enabled people to find jobs instead of joining the FARC. Id. at 98.

       Gomez first encountered the FARC in January 1999. Id. at 99. A FARC

commander named Ricuarte Lopez visited Gomez at his company under the

pretext of being a bank officer who needed computer training classes for his

employees. Id. Three days later, Lopez and two men kidnaped Gomez at

gunpoint. Id. at 100. Lopez told Gomez he had been chosen to do some special


       2
         The FARC, which stands for the Revolutionary Armed Forces of Columbia, is a leftist
guerilla group in Columbia. See Ruiz v. U.S. Atty. Gen., 440 F.3d 1247, 1251, 1253 (11th Cir.
2006) (per curiam).

                                               3
work and that he would be let go if he did his job well. Id. Gomez then spent

about twelve hours in captivity teaching five individuals how to use a computer

program. Id. at 101. When the FARC returned Gomez to his house, they told him

it was time for him to stop helping the Liberal Party and start working for the

FARC. Id. at 113. Gomez stated he was not mistreated other than being pushed

and kicked in the car. Id. at 101.

      About a month later, on 10 February 1999, Lopez again abducted Gomez at

gunpoint for about thirty minutes. Id. at 102. Lopez ordered Gomez to create an

“information system” they could use for “potential contributors.” Id. In March,

Lopez contacted Gomez to check on his progress. Id. at 103. When Gomez told

him that he was still working on the idea, Lopez responded, “Mr. Engineer, we’re

not playing. You have to do the job, stop hiding. Start working or we’re going to

kill you or one of your sons.” Id. Gomez decided to escape with his family. Id. at

103. Since they fled, the FARC has been calling Gomez’s relatives living in

Columbia looking for him and threatening to kill them if they do not reveal his

location. Id. at 105, 120. Gomez and his family have been designated as “military

objective[s]” by the FARC, meaning that they are destined to be killed. Id. at 98-

99. Gomez believes that if they return to Columbia, the FARC will kill him or his

children. Id. at 105-06.

                                         4
      In addition to Gomez’s testimony, his brother submitted a notarized

statement that death threats against Gomez have “continued through phone calls

for not having accepted the ideals of the guerilla movements and they are

constantly inquiring about his whereabouts and his family’s as well.” Id. at 167.

Gomez’s sister-in-law, Esmeralda Pineda, also submitted a statement attesting that

she had received numerous threatening phone calls during 2005 and 2006. Id. at

170. In October 2006, the FARC telephoned Pineda looking for Gomez because

“they needed to settle some matters with him.” Id. A few days later, three FARC

members ordered Pineda at gunpoint to disclose Gomez’s location. Id.

      The Immigration Judge (“IJ”) denied Gomez’s application for withholding

of removal and CAT protection. Id. at 59. The IJ found Gomez was not credible

because he gave inconsistent and vague answers about whether the FARC was

punishing him for his political opinions. Id. at 56-57. In addition, the IJ found the

supporting letters from Gomez’s brother and sister-in-law to be unpersuasive and

insufficient to establish his claims. Consequently, even if Gomez was credible,

the IJ found that he had “neither established past persecution, nor the risk that

persecution is ‘more likely than not.’” Id. at 59.

      The BIA dismissed Gomez’s appeal and ordered the petitioners’ voluntary

departure or removal. Id. at 3. The BIA declined to affirm the IJ’s adverse

                                          5
credibility finding because it was “unsupported by major inconsistencies involving

a material element of the [petitioners’] claim.” Id. at 2. However, the BIA

adopted and affirmed the IJ’s decision that the petitioners had failed to carry their

burden of proof. Id. Even assuming Gomez’s credibility, the petitioners had

“failed to demonstrate that they suffered harm rising to the level of past

persecution, or met the high burden of establishing that it is more likely than not

that they will be persecuted in Columbia ‘on account of’ a protected ground under

the [INA], or tortured.” Id. (citation omitted). The BIA’s reason for this

conclusion was that the petitioners failed to establish that the FARC was interested

in Gomez for anything other than his computer expertise and ability to provide

computer training. Id. at 3. Furthermore, Gomez failed to show that the

government was “unwilling or unable to control the persecuting individual or

group.” Id.

      Gomez raises two issues in the petition for review. First, he contends that

the IJ and the BIA erred in making an adverse credibility finding. Second, he

submits that the IJ and BIA erred in denying withholding of removal and CAT

protection on grounds that Gomez had not suffered past persecution and did not

have a well founded fear of future persecution. In conjunction with the latter,




                                          6
Gomez argues that the IJ and BIA made this determination without specifying

sufficient legal reasons, thereby violating his due process rights.

      The government responds that we lack jurisdiction over the petition because

Gomez only challenged the IJ’s adverse credibility determination in his brief to the

BIA. According to the government, Gomez failed to raise on appeal to the BIA

the alternative, merit-based finding of the IJ that Gomez did not sustain his burden

of proof. Furthermore, the government asserts that Gomez has waived the issue in

his petition to us. Rather than discuss the BIA’s decision that Gomez failed to

satisfy his burden of proof, Gomez again focuses on the IJ’s adverse credibility

determination. The government asserts that because Gomez makes only a passing

reference to the merits of the BIA’s decision, he has waived any challenge to that

issue. Alternatively, the government asserts that the BIA correctly determined that

Gomez failed to demonstrate past or future persecution on account of an

enumerated ground, and that he was not entitled to withholding of removal under

the INA or the CAT.

                                 II. DISCUSSION

A. Jurisdictional and Waiver Issues

      We review de novo our subject-matter jurisdiction. See Amaya-Artunduaga

v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). Before

                                          7
petitioning us for review, an individual must first exhaust his administrative

remedies by raising his claims in his appeal to the BIA. See id.; 8 U.S.C.

§ 1252(d)(1).

      Gomez did that here. In his notice of appeal to the BIA, Gomez stated that

the IJ erroneously denied withholding of removal and CAT relief by overlooking

major portions of the record and by making an erroneous credibility determination.

AR 43. Additionally, Gomez argued in his brief to the BIA that the IJ erred in

determining “without further legal analysis” or reasoning that Gomez had not

established past or future persecution. Id. at 10-11. Gomez’s discussion of the

latter was limited by the IJ’s primary focus on Gomez’s credibility. Nevertheless,

his notice of appeal and brief to the BIA sufficiently challenged both grounds of

the IJ’s decision to deny withholding of removal and CAT protection.

Accordingly, we conclude that Gomez exhausted his administrative remedies and

we have jurisdiction to consider these issues in his petition for review. Cf.

Amaya-Artunduaga, 463 F.3d at 1250 (concluding that we lacked jurisdiction to

review a challenge to an IJ’s adverse credibility determination because the

petitioner failed to raise the issue in his notice of appeal or brief before the BIA).

      It is a closer call as to whether Gomez sufficiently challenged the merits of

the BIA’s decision in his petition to us. As the government acknowledges, Gomez

                                           8
mentions in his brief that the IJ and BIA determined that he failed to establish past

persecution or a well founded fear of future persecution. Although Gomez asserts

this conclusion was erroneous and unsupported by proper legal analysis, he

proffers no argument as to how he satisfied his burden of proof on that issue.

Instead, Gomez continues to attack the IJ’s adverse credibility determination.3

That determination is no longer before us, however, because the BIA expressly did

not affirm the IJ’s adverse credibility finding. See Singh v. U.S. Att’y Gen., 561

F.3d 1275, 1278 (11th Cir. 2009) (per curiam) (explaining that we will not review

the IJ’s decision on matters not expressly adopted or agreed with by the BIA).

      We are thus compelled to agree with the government that Gomez’s passing

reference to the merits of the BIA’s decision was insufficient to preserve this issue

for appeal. Accordingly, Gomez has waived his challenge to his claims for

withholding of removal and CAT protection. See Sepulveda v. U.S. Att’y Gen.,

401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam) (“When an appellant fails

to offer argument on an issue, that issue is abandoned.”); see also Greenbriar, Ltd.

v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (concluding that

mere reference in appellate brief to the district court’s decision, without further

elaboration on the merits of that decision, waived the issue on appeal).


      3
          Gomez erroneously asserts that the BIA also concluded that he was not credible.

                                                 9
B. Due Process Claim

      Gomez asserts that the IJ and BIA denied him due process because they did

not sufficiently explain why they denied withholding of removal and CAT

protection. We disagree.

      “In order to establish a due process violation, an alien must show that he or

she was deprived of liberty without due process of law . . . and that the asserted

error caused him substantial prejudice.” Garcia v. U.S. Att’y Gen., 329 F.3d 1217,

1222 (11th Cir. 2003) (per curiam) (citations omitted). An alien is not entitled to a

full opinion by the BIA. See id. at 1223.

      Here, both the IJ and the BIA determined that Gomez did not qualify for

withholding of removal and CAT protection because he did not establish past

persecution or the risk that future persecution is more likely than not. The IJ made

this determination after detailing why he was “unimpressed by the extremely

general letters that have been provided to support this claim.” AR 57. The BIA’s

determination rested on its findings that the FARC was only interested in Gomez

for his computer skills and Gomez had not shown that the government could or

would not control the persecuting individual or group. Id. at 3. Thus, contrary to

Gomez’s suggestion, both the IJ and BIA adequately articulated reasons for




                                         10
denying withholding of removal under the INA and the CAT. No due process

violation has been shown.

                              III. CONCLUSION

      Based on the record, we conclude that we have jurisdiction to review the

petition but that Gomez has waived his challenge to the BIA’s denial of his claims

for withholding of removal and CAT protection. We further conclude that his due

process arguments are meritless. Accordingly, we AFFIRM the BIA’s order in all

respects and DENY Gomez’s petition for review.

      PETITION DENIED.




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