FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 21, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11152

Non-Argument Calendar

________________________

Agency No. A96-279-230

JOSE LUIS PRADO,

a.k.a. Jose Parado,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(November 21, 2008)

Before ANDERSON, CARNES and HULL, Circuit Judges.

PER CURIAM:

Jose Luis Prado, a native and citizen of Argentina, seeks review of the BIA’s
dismissal of his appeal from the IJ’s order denying Prado asylum under the

Immigration and Nationality Act, 8 U.S.C. § 1158(a), and withholding of removal

under both the INA, 8 U.S.C. § 1231(b)(3), and the Convention Against Torture

(CAT), 8 C.F.R. § 208.16(c). Prado contends that the record compels a finding

that he was persecuted on account of his homosexuality, that he has a well-founded

fear of future persecution, and that he is likely to be tortured if he returns to

Argentina.

I.

“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). In this case, the BIA did not expressly adopt the IJ’s opinion.

We review the BIA’s determinations using the substantial evidence test,

which requires us to uphold the BIA’s decision if it is “supported by reasonable,

substantial, and probative evidence on the record considered as a whole.”

Rodriguez Morales v. United States Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007)

(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 815 (1992));.

“To reverse the [BIA’s] fact findings, we must find that the record not only

supports reversal, but compels it.” Mendoza v. United States Att’y Gen., 327 F.3d

1283, 1287 (11th Cir. 2003); see also Elias-Zacharias, 502 U.S. at 481 n.1, 112 S.

Ct. at 815 n.1.

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II.

To qualify for potential asylum in the United States, an alien must be a

“refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is:

[A]ny person who is outside any country of such person’s nationality .

. . and who is unable or unwilling to return to, and is unable or

unwilling to avail himself or herself of the protection of, that country

because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular

social group, or political opinion.

8 U.S.C. § 1101(a)(42)(A). To establish “refugee” status, an alien must, with

specific and credible evidence, show (1) that he is outside of his country of

nationality, (2) that he is unable or unwilling to return to that country, (3) this

inability or unwillingness is due to “persecution or a well-founded fear of

persecution,” and (4) that such persecution is “on account of race, religion,

nationality, membership in a particular social group, or political opinion. . . .” 8

C.F.R. § 208.13(a)–(b); Al Najjar, 257 F.3d at 1287.

Here, Prado contends that he was persecuted in Argentina because he is gay.

Prado testified that he was not openly gay in Argentina, but his involvement in the

political Peronista party, the fact that he lived in a small town, and his appearance

made his sexuality known. Prado testified to the following occurrences: a series of

threatening, harassing, and insulting notes and phone calls; an arrest on a child

custody issue, during which police officers made rude sexual comments to him;

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once he was called a faggot and punched in the face; another time a policeman

called him a faggot and hit him in the back with a nightclub; and finally, two men

attempted to steal his motorcycle after calling him a faggot. Prado testified that all

of this occurred between 1992 and 2000.

The government concedes that being homosexual gives Prado “membership

in a particular social group” under 8 U.S.C. § 1101(a)(42)(A). Prado also

obviously left his native Argentina, came to the United States, and desires not to

return. The government’s argument is that the treatment Prado received in

Argentina was not egregious enough to compel a finding of past persecution under

8 U.S.C. § 1101(a)(42)(A).

Not all “exceptional treatment” constitutes persecution. Zheng v. United

States Att’y Gen., 451 F.3d 1287, 1290 (11th Cir. 2006). We have held that

persecution is “an extreme concept, requiring more than a few isolated incidents of

verbal harassment or intimidation, and that mere harassment does not amount to

persecution.” Id. (quotation omitted).

First, the threatening phone calls and notes that Prado received were

harassment, not persecution. Though Prado received death threats, such threats

alone do not compel a finding of past persecution. See Silva v. United States Att’y

Gen., 448 F.3d 1229, 1237 (11th Cir. 2006) (concluding that a Colombian

applicant failed to establish ‘persecution,’ though she had received a “condolence

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note” from the FARC regarding her own death); Sepulveda v. United States Att’y

Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (concluding that “menacing phone

calls and threats” to an applicant and her family, combined with a bombing at her

workplace, were not ‘persecution.’).

Nor did Prado’s experiences with the local police amount to persecution.

Prado testified that he was arrested once on an issue unrelated to his sexuality, and

while in custody he was insulted and threatened based on his sexuality, but not

physically abused. Another time, he was insulted and struck by a police officer

outside a nightclub. Though the officers’ behavior was demeaning and frightening,

it was not severe enough to be called persecution. See Zheng, 451 F.3d at 1290

(holding that a Chinese applicant was not persecuted, though he had been arrested,

detained for five days and forced to stand in the sun and watch reeducation videos);

Djonda v. United States Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008) (holding

that an applicant who had been detained for 36 hours and suffered a beating by the

police, but without serious injury, had not been persecuted).

Finally, Prado has not shown that being punched once in the street and

nearly having his motorcycle stolen amount to persecution either. Ordinary

criminal activity and acts of private violence are generally not ‘persecution’ within

the meaning of 8 U.S.C. § 1101(a)(42)(A). See Sanchez v. United States Att’y

Gen., 392 F.3d 434, 438 (11th Cir. 2004) (citing Abdille v. Ashcroft, 242 F.3d 477,

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494 (3d Cir. 2001) (“random street violence . . . arbitrary hostility, or . . . a desire

to reap financial rewards [are] ordinary criminal activity [that] does not rise to the

level of persecution necessary to establish eligibility for asylum.”)).

Accordingly, Prado has not demonstrated that the record compels a finding

that he was persecuted in Argentina.

III.

To establish a “well-founded fear” of future persecution, “an applicant must

demonstrate that his or her fear of persecution is subjectively genuine and

objectively reasonable.” Al Najjar, 257 F.3d at 1289. An asylum applicant can

establish a well-founded fear of future persecution by presenting “specific, detailed

facts showing a good reason to fear that he or she will be singled out for

persecution on account of” the statutorily listed factor. Id. at 1287 (quotation

omitted). Alternatively, an applicant can establish a well-founded fear of

persecution by showing that there is a pattern or practice of persecution of persons

similarly situated on account of the statutorily listed factor. 8 C.F.R.

§ 1208.13(b)(2)(iii).

Prado has not shown a well-founded fear of future persecution. Prado failed

to show that his prior mistreatment rose to the level of persecution— he was

insulted often, but only physically struck three times in eight years—and has not

provided evidence that his treatment would be any worse on his return to

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Argentina. Though he asserts that all Argentinians hate gays, Prado did not submit

any documentation of generalized persecution, and the Country Report for

Argentina does not indicate human rights violations against gays. See ReyesSanchez v. United States Att’y Gen., 369 F.3d 1239, 1243 (11th Cir. 2004) (noting

that State Department reports are “perhaps the best resource” for information about

political situations in foreign nations). Further, Prado testified that because he was

not openly gay in Argentina, his sexuality must have been evident to his harassers

because he lived in a small town and because of his appearance. This suggests that

Prado could take steps to reduce the risk of harassment by relocating within

Argentina. See 8 C.F.R. § 1208.13(b)(2) (“An applicant does not have a wellfounded fear of future persecution if the applicant could avoid persecution by

relocating to another part of the applicant’s country . . . if under all circumstances it

would be reasonable to expect the applicant to do so.”). Finally, Prado testified

that during his entire final year in Argentina, while he was saving money to travel

to the United States, he was not harmed or harassed at all.

On this record, substantial evidence supports the BIA’s determination that

Prado failed to demonstrate a well-founded fear of future persecution in Argentina.

Therefore Prado is not eligible for asylum.

IV.

Prado also seeks withholding of removal under both the INA, 8 U.S.C. §

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1231(b)(3)(A), and the CAT, 8 C.F.R. § 208.16(c). To avoid removal under the

INA, “[a]n 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. Because the evidentiary burden for withholding of

removal is greater than that imposed for asylum, if an alien has not met the wellfounded fear standard for asylum, he generally cannot meet the standard for

withholding of removal. Al Najjar, 257 F.3d at 1292–93. (“Because the Al Najjars

failed to demonstrate a “well-founded fear of persecution” sufficient to support an

asylum claim, the BIA properly found that the Al Najjars were unable to satisfy the

greater burden attending a request for withholding of removal.”); Nkacoang v. INS,

83 F.3d 353, 355 (11th Cir. 1996) (same).

Prado failed to make any argument in his appellate brief that this general

rule is inapplicable to him; in fact, he failed to make any argument at all that he is

entitled to withholding of removal under the statute. He therefore waived this issue

entirely. See Sepulveda, 401 F.3d at 1228 n.2 (“[W]hen an appellant fails to offer

argument on an issue, that issue is abandoned.”).

To avoid removal under the Convention Against Torture, “[t]he burden of

proof is on the applicant . . . to establish that it is more likely than not that he or she

would be tortured if removed to the proposed country of removal.” 8 C.F.R. §

208.16(c)(2). As under the INA, this burden of proof for the applicant is higher

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than the burden imposed on an applicant for asylum. Therefore, an applicant like

Prado, who cannot show that he has a well-founded fear of persecution, also cannot

show that it is more likely than not that he would be tortured. Al Najjar, 257 F.3d

at 1303; Zheng, 451 F.3d at 1292; Forgue v. United States Att’y Gen., 401 F.3d

1282, 1288 n.4 (11th Cir. 2005) (holding that where a petitioner fails to establish a

claim for asylum on the merits, his claims for withholding of removal under the

INA and CAT also necessarily fail).

Substantial evidence supports the BIA’s determinations that Prado did not

establish eligibility for asylum or withholding of removal under the INA or the

CAT. The record does not compel a contrary conclusion.

PETITION DENIED.

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