FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

November 16, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-11360

Non-Argument Calendar

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BIA Agency Nos. A78-599-272 & A78-599-273

LILIAN VARGAS HIDALGO, 

HENRY BARRANTES MURILLO, et al., 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(November 16, 2005)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
 Because Petitioners’ removal proceedings commenced after April 1, 1997, the 1

effective date of the Illegal Immigration Reform and Immigrant Responsibility Act

(IIRIRA), this case is governed by the permanent provisions of the INA, as amended

by IIRIRA. Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir.

2003).

 Petitioners also applied for asylum. The IJ, however, ruled the asylum 2

application was untimely, and thus, pretermitted. Petitioners did not challenge this

ruling before the BIA and do not challenge it in their petition for review.

Accordingly, Petitioners have abandoned any issues related to their application for

asylum. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).

2

Lilian Vargas Hidalgo (Vargas), her husband Henry Murillo Barrantes

(Murillo), and their five children, natives and citizens of Costa Rica, seek review of

the Board of Immigration Appeals’ (BIA’s) decision affirming the Immigration

Judge’s (IJ’s) orders finding them removable and denying their applications for

withholding of removal under the Immigration and Nationality Act (INA), 8

U.S.C. § 1231(b)(3), and relief under the United Nations Convention Against 1

Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or

Punishment (CAT), 8 C.F.R. § 208.16(c). 

2

Petitioners argue the IJ erred in finding they failed to establish a likelihood

of future persecution based on a protected ground. They argue the evidence

showed they would suffer persecution if forced to return to Costa Rica because

Murillo informed authorities of a drug operation involving members of the Costa

Rican police force. They contend this threat of future persecution compels the
3

conclusion that they would be persecuted based on an expressed or imputed

political opinion. We deny their petition.

I. DISCUSSION

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

extent the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we

will review the IJ’s decision as well.” Id. Here, the BIA expressly adopted the IJ’s

reasoning and briefly articulated its reasons for doing so. Thus, we review the

decisions of both the IJ and the BIA.

The BIA’s legal determinations are reviewed de novo. Mohammed

v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001). The BIA’s factual

determinations are reviewed under the substantial-evidence test, and we must

affirm the BIA’s decision 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. The substantial evidence test is deferential and does not allow reweighing the evidence from scratch. Mazariegos v. Office of U.S. Att’y Gen., 241

F.3d 1320, 1323 (11th Cir. 2001). To reverse an IJ’s factual findings, we must find

the record not only supports reversal, but compels it. Mendoza v. U.S. Att’y Gen.,

327 F.3d 1283, 1287 (11th Cir. 2003).
4

Under the INA, an alien shall not be removed to a country if his life or

freedom would be threatened in that country on account of race, religion,

nationality, membership in a particular social group, or political opinion. 8 U.S.C.

§ 1231(b)(3). The burden of proof is on the alien to show his eligibility for

withholding of removal by demonstrating he is more likely than not to be

persecuted or tortured upon being returned to his country. Sepulveda v. U.S. Att’y

Gen., 401 F.3d 1226, 1232 (11th Cir. 2005). An alien who has not shown past

persecution may still be entitled to withholding of removal if he can demonstrate a

future threat to his life or freedom based on a protected ground. Sanchez v. U.S.

Att’y Gen., 392 F.3d 434, 437-38 (11th Cir. 2004).

The INA protects against persecution not only by government forces but also

by non-governmental groups the government cannot control. Id. at 437. However,

an applicant seeking asylum on account of persecution by, for example, a guerilla

group must establish the guerillas persecuted him or will persecute him on account

of his actual or imputed political opinion, not the guerilla group’s political opinion. 

See id. It is not enough for an applicant to show he was or will be persecuted due

to his refusal to cooperate with the guerillas. Id. 

To obtain relief under the CAT, the burden is on the applicant to establish 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: 
5

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. 

8 C.F.R. § 208.18(a)(1). To constitute torture, an act must be specifically intended

to inflict severe physical or mental pain or suffering. 8 C.F.R. § 208.18(a)(5). The

likely torture must be at the hands of the government or performed with

government acquiescence. Sanchez, 392 F.3d at 438.

The evidence does not compel a different result than those rendered by the IJ

and the BIA. First, Petitioners have not shown an expressed or imputed political

opinion warranting withholding of removal under the INA. Even if opposing drug

trafficking were a political opinion, Petitioners have not shown the government’s

lack of control over drug trafficking groups. In fact, the arrest, conviction, and 16-

year sentence imposed on the police colonel involved in the drug operation all

indicate Costa Rica is willing and able to take a stand against drug dealers. 

Second, Petitioners have not shown government acquiescence to their

alleged torture threats, as required by the CAT. The evidence showed the threat of

harm to Petitioners mostly derived from criminals, not the government. To the
6

extent that government officials were involved, they appear to have been rogue

employees not carrying out governmental instructions. 

II. CONCLUSION

Substantial evidence supports the IJ’s denial of Petitioners’ withholding of

removal and CAT claims. Petitioners did not establish any likelihood of

persecution or torture with any nexus to a protected ground. Instead, the record

merely shows Petitioners were vaguely threatened by a group of criminals, a few of

whom may have been rogue government employees, who were unhappy about

being caught. Accordingly, we deny their petition for review.

PETITION DENIED.