                                                            [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                             No. 05-14855                     MARCH 30, 2006
                         Non-Argument Calendar               THOMAS K. KAHN
                                                                 CLERK
                       ________________________

                  BIA Nos. A96-282-224 & A96-282-225

ALEJANDRO EMILIO GARCIA-GONZALEZ,
YOSETTI MARIANA RODRIGUEZ-ARICHIKA,
MARIA ALEJANDRE GARCIA-RODRIGUEZ,

                                                              Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                               Respondent.


                       ________________________

                   Petition for Review of an Order of the
                       Board of Immigration Appeals
                      _________________________

                            (March 30, 2006)

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
       Petitioners are natives and citizens of Venezuela. An Immigration Judge

(“IJ”) denied their applications for asylum, withholding of removal under the

Immigration and Nationality Act (“INA”) § 241(b)(3)(A), 8 U.S.C. 1231(b)(3), and

relief under the United Nations Convention Against Torture (“CAT”), 8 C.F.R.

§ 208.16(c), and ordered their removal. The Board of the Immigration Appeals

(“BIA”), adopting the IJ’s decision, affirmed. They now petition this court for

review.1 Their petition presents these issues: whether we lack jurisdiction to

review the application for asylum because it was untimely, and whether substantial

evidence supports the IJ’s finding that Garcia-Gonzalez failed to demonstrate

eligibility for withholding of removal under the INA or relief under CAT. We

address these issues in turn.

                                               I.

       Garcia-Gonzalez last entered the United States in 1996. He filed his

application for asylum six years later, in 2002. The application was untimely; an

alien must file an asylum application within one year of his arrival in the United

States. INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B). Nonetheless, “[a]n

application for asylum of an alien may be considered . . . if the alien demonstrates

to the satisfaction of the Attorney General either the existence of changed

       1
        Petitioners are, respectively, a husband, Garcia-Gonzalez, wife and daughter. Because
Garcia-Gonzalez is the lead petitioner and his wife and daughter are derivative applicants, for
convenience we refer only to Garcia-Gonzalez in this opinion.
                                                2
circumstances which materially affect the applicant's eligibility for asylum or

extraordinary circumstances relating to the delay in filing an application . . . .”

INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D).

      The obstacle Garcia-Gonzalez faces is that INA § 208(a)(3), 8 U.S.C. §

1158(a)(3), divests this court of jurisdiction to review an administrative decision,

such as the one at issue here, that the alien failed to comply with the one-year time

limit or establish changed or extraordinary circumstances that would excuse his

untimely filing. Mendoza v. U.S. Att’y General, 327 F.3d 1283, 1287 (11th Cir.

2003); Fahim v. U.S. Att’y. Gen., 278 F.3d 1216, 1217 (11th Cir. 2002). We

therefore resolve the first issue against Petitioners and turn to the remaining issues.



                                           II.

      Because the BIA, in affirming, expressly adopted the IJ’s decision

withholding removal and denying CAT relief, we review that decision. See Al

Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). To the extent that the

decision was based on a legal determination, we review it de novo. D-Muhumed v.

U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). The IJ’s factual

determinations are reviewed under the substantial evidence test. We reject a

factual finding “only when the record compels reversal; the mere fact that the

record may support a contrary conclusion is not enough . . . .” Adefemi v.
                                            3
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc), cert. denied, 125 S.Ct.

2245 (2005); see also INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B) (“[T]he

administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary . . . .”). In sum, we must affirm the

decision before us if it is supported by “reasonable, substantial, and probative

evidence on the record considered as a whole.” Al Najjar, 257 F.3d at 1283-84.



      An alien is entitled to withholding of removal under the INA if he can show

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

nationality, membership in a particular social group, or political opinion. Mendoza

v. U.S. Att’y General, 327 F.3d 1283, 1287 (11th Cir. 2003); see also INA

§ 241(b)(3), 8 U.S.C. § 1231(b)(3). The alien bears the burden of demonstrating

that it is “more likely than not” that he will be persecuted or tortured upon his

return to the country in question. Fahim, 278 F.3d at 1218. This is a more

stringent burden of proof than the burden of proof for asylum. Sepulveda v. U.S.

Att’y General, 401 F.3d 1226, 1232 (11th Cir. 2005). If the alien establishes past

persecution based on a protected ground, there is a rebuttable presumption that his

life or freedom would be threatened upon return to his country. See Mendoza, 327

F.3d at 1287; see also 8 C.F.R..§ 208.16(b)(1)(i). An alien who has not shown past

persecution, however, may still be entitled to withholding of removal if he can
                                           4
demonstrate a future threat to his life or freedom on a protected ground. See 8

C.F.R. § 208.16(b)(2). An alien cannot demonstrate that his life or freedom would

be threatened if the IJ finds that the alien could avoid a future threat to his life or

freedom by relocating to another part of the proposed country of removal and,

under all the circumstances, it would be reasonable to expect the applicant to do so.

Id. § 208.16(b)(2).

       Although the INA does not expressly define “persecution” for purposes of

qualifying as a “refugee,” see INA § 101(a)(42), 8 U.S.C. § 1101(a)(42), we have

observed that “persecution is an extreme concept, requiring more than a few

isolated incidents of verbal harassment or intimidation,” Sepulveda, 401 F.3d at

1231 (quotations omitted). Menacing telephone calls and threats, for example, do

not rise to the level of persecution. See id.

       To obtain relief under CAT, the burden is on the applicant to establish that it

is “more likely than not” he will be tortured in the 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.
                                            5
Id. § 208.18(a)(1). Because the burden regarding CAT relief is higher than the

asylum standard, a petitioner who fails to establish eligibility for asylum is usually

unable to carry the burden regarding CAT relief. See Al Najjar, 257 F.3d at 1303-

04.

      Garcia-Gonzalez contends that the IJ erred in denying withholding of

removal and CAT relief because there is a clear probability that, if returned to

Venezuela, he will be persecuted by supporters of President Hugo Chavez, as

demonstrated by the continued attacks against his father in Venezuela. Garcia-

Gonzalez insists that Chavez supporters are everywhere in Venezuela and he could

not safely relocate to another part of the country. He submits that the IJ also erred

in denying CAT relief because the Venezuelan government has “turned a blind

eye” to the violent activities of its supporters and the Venezuelan national guard.

      We are not persuaded. In our view, the challenged decision is supported by

substantial evidence. This means that the record does not compel reversal of the

IJ’s determination that Garcia-Gonzalez failed to establish past persecution.

      Garcia-Gonzalez testified that in February 1992, during Hugo Chavez’s

attempted coup, he was stopped on the way to work at the airport by a group of six

or seven men. They asked him about his work, his membership in the Democratic

Action party, and political comments his parents had made. They threw his wallet

on the ground, and when he went to pick it up, he was hit on the elbow and hand
                                           6
with a stick. When he asked the men why they had attacked him, they made fun of

his political affiliation and his job, which he had gotten through his parents’

political connections. He said he received threatening phone calls for the next few

weeks, and again after a second failed coup in November 1992. The phone calls

and threats do not rise to the level of persecution. Sepulveda, 401 F.3d at 1231.

      The claim of past persecution rests heavily on the February 1992 attack

described above. It is unclear from his testimony that these men attacked him due

to his or his family’s political opinion as opposed to his job. Even if this attack

was based on his political opinion, it appears to have been an isolated incident

considering that he remained in Venezuela until 1996 and suffered no further

attacks.

      The record does not establish a future threat to Garcia-Gonzalez’s life or

freedom on a protected ground. In advancing his future threat claim, Garcia-

Gonzalez relies – in addition to the February 1992 incident – on the fact that his

father was detained and beaten in 2002 and has been attacked and threatened

multiple times since then. This is the only evidence of threats he cites over the ten

plus years since 1992. Garcia-Gonzalez fears that he will be attacked due to his

father’s political activities.2 His father, however, still lives in Venezuela, despite

the fact that he has a valid passport and visa to the United States.

      2
           His mother is deceased.
                                            7
      The record in this case does not compel reversal of the IJ’s finding that

Garcia-Gonzalez failed to demonstrate it was more likely than not that he would be

persecuted if returned to Venezuela or that he could not avoid a future threat by

relocating to another part of Venezuela. We therefore affirm the IJ’s denial of

withholding of removal.

      The record also does not compel reversal of the IJ’s denial of CAT relief.

There is simply no evidence that, on his return to Venezuela, Garcia-Gonzalez

would likely be subjected to violence “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). Thus, we affirm the denial of CAT relief as well.

      PETITION DENIED.




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