FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 12, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-11127

Non-Argument Calendar

________________________

Agency No. A98-674-118

ANTONIO LITANO ZAPATA, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(June 12, 2008)

Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

Antonio Litano Zapata, a native and citizen of Peru, seeks review of the 

Board of Immigration Appeals’s (“BIA”) decision affirming the Immigration
 Zapata has not raised any challenge to the denial of asylum and, therefore, he has 1

waived the issue. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 (11th Cir. 2005).

Additionally, Zapata failed to exhaust his administrative remedies with respect to the denial of

CAT relief, thus we lack jurisdiction to hear that issue. 8 U.S.C. § 1252(d)(1); Fernandez-Bernal

v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001). Accordingly, we dismiss the

petition in part on these grounds.

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Judge’s (“IJ”) order of removal and denial of asylum, 8 U.S.C. § 1158(a)(1),

withholding of removal, 8 U.S.C. § 1231(b)(3), and relief under the United Nations

Convention on Torture (“CAT”), 8 C.F.R. § 208.16(c). After a thorough review 1

of the record, we deny the petition.

We “review only the [BIA’s] decision, except to the extent that it expressly

adopts the IJ’s opinion.” Al-Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). If the BIA adopts the IJ’s opinion, we will review the IJ’s decision as well.

Id. Legal determinations are reviewed de novo. D-Muhumed v. U.S. Att’y Gen.,

388 F.3d 814, 817 (11th Cir. 2004). The IJ’s and BIA’s “findings of fact are

reviewed under the substantial evidence test,” and we must affirm the decision “if

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

considered as a whole.” Antipova v. U.S. Att’y Gen., 392 F.3d 1259, 1261 (11th

Cir. 2004) (quotation omitted). Under this highly deferential standard of review, a

denial of relief may be reversed only if the evidence would compel a reasonable

factfinder to conclude that the requisite fear of persecution exists. INS v. EliasZacarias, 502 U.S. 478, 481 n.1, 112 S.Ct. 812, 815 n.1, 117 L.Ed.2d 38 (1992). 
 We note that the IJ did not make an explicit adverse credibility finding, as required 2

under Yang v. U.S. Att’y Gen., 418 F .3d 1198, 1201 (11th Cir. 2005). Because the IJ did not

make a specific finding as to credibility, we presume Zapata’s testimony to be credible. 

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“To conclude that the BIA’s decision should be reversed, we must find that the

record not only supports the conclusion, but compels it.” Niftaliev v. U.S. Att’y

Gen., 504 F.3d 1211, 1215 (11th Cir. 2007) (internal quotations and citation

omitted). The fact that evidence in the record may also support a conclusion

contrary to the administrative findings is not enough to justify a reversal. Adefemi

v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). 

Zapata argues that he established eligibility for withholding of removal

based on uncontradicted, credible evidence that he had been the victim of past

persecution. Specifically, he asserts that he was found credible and testified that

the Matacabras, a group that targeted and attacked homosexuals and whose name

roughly translated to “killing gay people,” threatened his life on two occasions. On

the second occasion, a group of knife-wielding Matacabras threatened to kill him

and a co-worker, chased them, and stopped only after a stranger fired a gun in the

air to scare the Matacabras away. 

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 country, 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 Gen., 327 2
Niftaliev v. U.S. Att’y Gen., 504 F.3d 1211, 1216 (11th Cir. 2007). 

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F.3d 1283, 1287 (11th Cir. 2003); see also 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. 

The alien can meet his burden by showing either: (1) “past persecution in his

country based on a protected ground,” in which case a rebuttable presumption is

created that his life or freedom would be threatened if he returned to his country; or

(2) “a future threat to his life or freedom on a protected ground in his country.” Al

Najjar, 257 F.3d at 1287. Although the regulations do not expressly define

“persecution,” this court has observed that “persecution is an extreme concept,

requiring more than a few isolated incidents of verbal harassment or intimidation.” 

Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (quotations

omitted). This court, however, has rejected a rigid requirement of physical injury,

making clear that “attempted murder is persecution,” regardless of whether the

petitioner was injured and even if the attack is unsuccessful. Sanchez Jimenez v.

U.S. Att’y Gen., 492 F.3d 1223, 1231-33 (11th Cir. 2007); see also Mejia v. U.S.

Att’y Gen., 498 F.3d 1253, 1257-58, 1257 n.7 (11th Cir. 2007) (extending the rule

in Sanchez Jimenez to other projectiles such as rocks). 

Here, even assuming, as we must, that Zapata’s testimony was credible, we

are not compelled to conclude that he suffered past persecution. Zapata identifies
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two incidents of harassment and intimidation, but these events do not rise to the

level of past persecution under our precedent. Being chased by men carrying

knives and shouting epithets does not equate with attempted murder. Moreover,

mere discrimination against homosexuals does not rise to the level of persecution. 

See, e.g., Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000). 

Moreover, Zapata has not shown “a future threat to his life or freedom on a

protected ground in his country.” We note that Zapata worked for a government

agency providing information and education to the gay community. And Zapata

admitted during the removal hearing that, since his departure from Peru, the

country conditions have improved. Thus, Zapata has not shown a future threat on

account of his status as a homosexual.

Accordingly, because the record does not compel us to conclude that Zapata

was entitled to withholding of removal, we DENY the petition for review.

DISMISSED IN PART; DENIED IN PART.