FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

February 11, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-12602

Non-Argument Calendar

________________________

BIA No. A96-290-188

LUCAS CALLE, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(February 11, 2008)

Before CARNES, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
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Lucas Mariano Calle, a native and citizen of Argentina, petitions this Court

for review of the decision of the Board of Immigration Appeals that denied his

application for withholding of removal under the Immigration and Nationality Act

and the United Nations Convention Against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment (the “Convention”). The Board found that

Calle failed to prove that he suffered “past persecution” or a probability of future

persecution and Calle failed to prove that he was “more likely than not” to be

tortured by or with the “acquiescence” of a government official upon his return to

Argentina. We deny Calle’s petition.

I. BACKGROUND

Calle entered the United States on August 17, 1999, and remained in the

country, without authorization, until 2000. On December 18, 2001, he reentered

the United States as a violator of the Visa Waiver Program. In February 2003, he

filed an application for asylum, withholding of removal, and relief under the

Convention. He sought relief based on his political opinion and his alleged

mistreatment by “delinquents” in Argentina.

The Immigration Judge held a hearing on Calle’s application. Calle testified

that he sought asylum in the United States because he was a homosexual and

discriminated against by “people on the street.” Calle recounted two incidents in

Argentina related to his sexual orientation that occurred about 14 and 11 years
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before the hearing. When Calle was 16 years old, a police officer entered his home

under the pretense of using the bathroom and instead had sex with Calle. Calle

alleged that he did not want to have sex, but was in fear due to the officer’s

position of authority. When Calle was 19 years old, his motorcycle was stolen and

he reported the crime to the police. The police allegedly refused assistance and

mentioned that, if they discovered the motorcycle, they would sell it and retain part

of the proceeds. Calle admitted that he did not suffer any further mistreatment in

Argentina.

Calle, who is HIV positive, expressed concern with the medical treatment

available in Argentina after having received free treatment in the United States. He

testified that the hospitals in Argentina did not have his medication and that his

partner died the year before the hearing due to lack of treatment. Although Calle

submitted various documents related to human rights practices in Argentina, he

admitted that he did not have any evidence that he would be unable to receive

treatment for his condition in Argentina.

Calle admitted that he was able to leave Argentina when he became 21 years

old in 1997, but he chose not to leave despite his alleged mistreatment as a

homosexual. When questioned why he did not move to Buenos Aires, a city touted

as being “gay friendly,” he stated that he visited the city when he was 17 or 18
4

years old and feared the “big city” atmosphere, although he comfortably resided in

Miami after he returned to the United States in 2001.

The Immigration Judge found that Calle’s application for asylum was

untimely and denied Calle’s application for withholding of removal and relief

under the Convention. Although he found Calle’s allegations credible, the judge

ruled that Calle failed to establish that he would be persecuted on the basis of his

homosexuality or that he had been or would be tortured by or with the

acquiescence of a government official, particularly when the Argentine constitution

prohibited such conduct. The judge found that Calle had not established that

suitable medical treatment would not be available in Argentina. Relying on

documentary evidence, the judge concluded that several parts of Argentina, most

notably Buenos Aires, fostered a homosexual lifestyle and Calle could relocate to

Buenos Aires and continue his work as a hair stylist. One news report in 2003

stated that several cities were considering civil union laws to extend marital rights

to gay couples for inheritance, as well as professional benefits. 

The Board “agree[d] with the Immigration Judge’s conclusion” that Calle

“had not met his burden of establishing ‘past persecution’ or a clear probability of

persecution if returned to Argentina.” The Board also “affirm[ed] the Immigration

Judge’s determination” that Calle “failed to demonstrate that he [was] ‘more likely
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than not’ to be tortured in Argentina by or with the ‘acquiescence’ of a government

official.”

II. STANDARD OF REVIEW

We review the decision of the Board to determine whether it is “supported

by reasonable, substantial, and probative evidence on the record considered as a

whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (quoting

Lorisme v. I.N.S., 129 F.3d 1441, 1444–45 (11th Cir. 1997)) (internal quotation

marks omitted). “To reverse [those] fact findings, we must find that the record not

only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d

1283, 1287 (11th Cir. 2003). We review the legal conclusions of the Board de

novo. Id. at 1287 n.6. When the Board adopts the findings of the Immigration

Judge, we review the decision of the Immigration Judge. Al Najjar, 257 F.3d at

1284.

III. DISCUSSION

Calle challenges two of the three decisions of the Board. Calle challenges

the findings by the Board regarding Calle’s application for withholding of removal

and relief under the Convention. Calle does not challenge the finding that his

application for asylum was untimely, which we lack jurisdiction to review. 

Mendoza, 327 F.3d at 1287.
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Calle’s burden is well-established. To qualify for withholding of removal,

an alien must prove that “his life or freedom would be threatened on account of

race, religion, nationality, membership in a particular social group, or political

opinion.” Mendoza, 327 F.3d at 1287 (citing 8 U.S.C. § 1231(b)(3)(A)). The alien

must establish that “he more-likely-than-not would be persecuted . . . upon his

return to the country in question.” Id. (citing Fahim v. U.S. Att’y Gen., 278 F.3d

1216, 1218 (11th Cir. 2002)). An applicant for relief under the Convention must

“establish that it is more likely than not that he or she would be tortured if removed

to the proposed country of removal.” Al Najjar, 257 F.3d at 1303 (quoting 8

C.F.R. § 208.16(c)(2) (2001)) (internal quotation marks omitted). Torture is

confined to those acts inflicting “severe pain and suffering, whether physical or

mental” committed at the hands, under the direction, or with the acquiescence of

“a public official or other person acting in an official capacity.” 8 C.F.R. §

208.18(a)(1) (2001). The acts must be “intentionally inflicted” either to extract

“information or a confession,” to punish, intimidate, or coerce, or “for any reason

based on discrimination of any kind[.]” Id. 

Substantial evidence supports the conclusion that Calle was not entitled to

withholding of removal. According to Calle, the nonconsensual sex with the police

officer and the response to the theft of his motorcycle were isolated incidents, and

no evidence suggests that these occurrences were intended as persecutory. See
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Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (“[M]ere

harassment does not amount to persecution.” Persecution requires “more than a

few isolated incidents of verbal harassment or intimidation.”) (internal quotation

marks omitted). Calle also did not prove that he would be unable to obtain medical

treatment for HIV.

Substantial evidence also supports the finding that Calle will not likely be

tortured if removed. Calle did not prove that he would experience any “severe pain

or suffering” upon his return to Argentina. The record instead supports the finding

that Argentina would support Calle’s lifestyle.

III. CONCLUSION

Calle’s petition for review is DENIED.

PETITION DENIED.