FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

July 19, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-16613

Non-Argument Calendar

________________________

BIA Nos. 

A79-496-194

A79-496-196

DIEGO FERNANDO BORRERO,

ADELE MELAINA LOSANO, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(July 19, 2006)

Before BARKETT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
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Diego Fernando Borrero and his wife, Aidee Milena Lozano, natives and

citizens of Colombia, seek review of the Board of Immigration Appeal’s (“BIA”)

decision affirming without opinion the Immigration Judge’s (“IJ”) order finding

them removable and denying their application for asylum and withholding of

removal under the Immigration and Nationality Act (“INA”), and relief under the

United Nations Convention Against Torture and Other Cruel, Inhuman and

Degrading Treatment or Punishment (“CAT”), INA §§ 208, 241, 8 U.S.C. §§ 1158,

1231; 8 C.F.R. § 208.16(c). 

The petitioners argue that the IJ erred in finding that Borrero was not

persecuted on account of his political opinion because he was perceived to have a

political opinion as a result of his upper class professional status, his refusal to join

the guerrilla groups, and his support of a capitalist and technological solution to the

problems of Columbian cattle farmers. Further, he argues that he belonged to a

particular social group of veterinarians who helped small farmers improve their

lives by increasing the fertility of their herds, and guerrillas persecuted him on that

basis. 

A. Asylum

When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). The IJ’s factual determinations are reviewed
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under the substantial evidence test, and we should “affirm the [IJ's] decision if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Forgue v. United States Attorney Gen., 401 F.3d 1282,

1286 (11th Cir. 2005) (internal quotations and citations omitted). The substantial

evidence test is “deferential” and does not allow “re-weigh[ing] the evidence from

scratch.” Mazariegos v. 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.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th

Cir. 2003) (considering withholding-of-removal claim). The fact that evidence in

the record may also support a conclusion contrary to the administrative findings is

not enough to justify a reversal. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236

(11th Cir. 2006), citing Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.

2004), cert. denied, 125 S. Ct. 2245 (2005). 

Substantial evidence supports the IJ’s finding that Borrero and his wife did

not suffer past persecution because although Borrero worked in an area controlled

by guerrilla groups for almost two years, he was never physically harmed. Borrero

testified that the guerrillas closely monitored him, stopped him and his wife at road

blocks, and threatened him in person and over the telephone, but these incidents

did not rise to the level of persecution. Substantial evidence also supports the IJ’s

conclusion that Borrero failed to establish a nexus between the feared harm and a
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protected ground. The evidence is consistent with a finding that the guerrilla

groups harassed Borrero due to his refusal to cooperate with them rather than his

actual or imputed political opinion. Moreover, Borrero has not met his burden of

showing that he was targeted on account of his membership in a particular social

group. He claims that his social group consisted of veterinarians who wanted to

improve the lives of small farmers by providing education and technical assistance. 

However, he has not established that this association comprises a cognizable group

or that it shares an immutable characteristic. 

As Borrero has not established past persecution, he is not entitled to a

presumption of a well-founded fear of future persecution. Substantial evidence

supports the IJ’s conclusion that Borrero does not have a well-founded fear of

future persecution because (1) he was never physically harmed in Colombia; (2) he

returned to Colombia after he entered the United States; (3) he was not harmed

when he returned to Colombia; and (4) his parents and brother live in Bogota and

have not been harmed.

B. Withholding of Removal

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

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

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

§ 241(b)(3), 8 U.S.C. § 1231(b)(3). The evidentiary burden for withholding of
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removal is greater than that imposed for asylum, accordingly, if an alien has not

met the well-founded fear standard for asylum, he generally cannot meet the

standard for withholding of removal. Al Najjar, 257 F.3d at 1292-93.

The petitioners failed to carry their burden of establishing past persecution

or a well-founded fear of future persecution, which precludes them from being

granted asylum. The IJ properly found that the petitioners likewise could not

satisfy the greater “more-likely-than-not” burden applicable to requests for

withholding of removal. 

C. Transcript Erros

The petitioners also argue that their case should be remanded because the

asylum hearing transcript contains many indiscernible words, and, therefore, it is

prejudicial. The petitioners did not allege in their notice of appeal or brief to the

BIA that the asylum hearing transcript was of such poor quality that it prejudiced

them. They argue for the first time on appeal that the asylum hearing transcript is

prejudicial. Therefore, they have failed to exhaust their administrative remedies

with respect to this claim, and we lack jurisdiction to review it. “The exhaustion

requirement applicable to immigration cases is found in 8 U.S.C. § 1252(d)(1),

which provides that ‘[a] court may review a final order of removal only if . . . the

alien has exhausted all administrative remedies available to the alien as of right.’” 

Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003). We have “interpreted that
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requirement to be jurisdictional, so we lack jurisdiction to consider claims that

have not been raised before the BIA.” Id. 

Upon review of the record on appeal and consideration of the parties’ briefs,

se discern no reversible error. Accordingly, we deny petitioners’ petition for

review.

PETITION DENIED.