FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 26, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-14296

Non-Argument Calendar

________________________

BIA Nos. A78-600-770 & A78-600-771

WENTZEL CHRISTOFFEL HERBST, 

CAROL ANN HERBST, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

 (May 26, 2006)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Wentzel Christoffel Herbst and his wife, Carol Ann Herbst, are natives and
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citizens of South Africa and members of the white minority. They entered the

United States in December 1999 as nonimmigrant temporary skilled workers. In

January 2001, the couple were issued Notices to Appear, charging them with

removal for remaining in the country longer than permitted. Herbst, on behalf of

himself and his wife as a derivative applicant, applied for asylum under the

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

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

Degrading Treatment or Punishment (CAT). The Immigration Judge denied

Herbst relief, and the Board of Immigration Appeals issued an opinion adopting

the IJ’s determination. Herbst petitions for review of the BIA’s decision. 

We review the BIA’s factual determinations 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 v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review only the

BIA’s decision, “except to the extent that it expressly adopts the IJ’s opinion.” Al

Najjar, 257 F.3d at 1284. “Insofar as the [BIA] adopts the IJ’s reasoning, we will

review the IJ’s decision as well.” Id.

Herbst argues that the BIA erred in upholding the IJ’s determination that he

was not entitled to asylum because the substantial weight of the evidence compels

a conclusion that he suffered past persecution and has a well-founded fear of future
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persecution on account of his race. To be eligible for asylum, Herbst must

establish that he has suffered past persecution or has a well-founded fear of future

persecution on account of his race. See 8 C.F.R. § 208.13(b). Although the INA

does not expressly define “persecution” for purposes of qualifying as a “refugee,”

see 8 U.S.C. § 1101(a)(42)(A), we have stated that “[n]ot all exceptional treatment

is persecution.” Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000). 

“[P]ersecution is an extreme concept, requiring more than a few isolated incidents

of verbal harassment or intimidation, and . . . mere harassment does not amount to

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

(internal quotation marks omitted). 

Although the events that Herbst has suffered in South Africa are disturbing,

they do not amount to past persecution for the purpose of qualifying as a refugee. 

First, Herbst presents evidence that he was shot and his father was stabbed when

groups of black men tried to rob them on two separate occasions. These acts do

not constitute past persecution on the basis of race because there is no evidence

that they were committed because Herbst and his father are white. Second, Herbst

presents evidence that his mother was robbed at knifepoint by two black men who

called her “White Bitch.” This incident does not amount to past persecution

because the “reasonable, substantial, and probative evidence on the record

considered as a whole” establishes that the armed robbery was motivated by
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general lawlessness, rather than racial hostility. See Al Najjar, 257 F.3d at 1284. 

Third, Herbst has presented evidence that his car window was smashed by a group

of blacks and that on another occasion his car was stolen by a black man. These

acts do not constitute past persecution because they are mere harassment and

intimidation. See Sepulveda, 401 F.3d at 1231. Furthermore, there is no evidence

that these acts were motivated by race. Because substantial evidence supports the

finding that Herbst did not suffer past persecution on account of race, the BIA did

not err in upholding the IJ in this respect. 

Herbst has also failed to establish a well-founded fear of future persecution. 

To establish that the feared persecution is on account of his race, an alien must

present “specific, detailed facts showing a good reason to fear that he or she will be

singled out for persecution” because of his race. Sepulveda, 401 F.3d at 1231

(emphasis omitted). Alternatively, an alien may establish a well-founded fear

without showing that he would be singled out for persecution if the alien

establishes that: (1) there is a pattern or practice of racially-motivated persecution

of a group of persons similarly situated to the alien; and (2) he is a member of that

group, such that his fear of persecution is reasonable. 8 C.F.R. § 208.13(b)(2)(iii). 

Herbst has not presented specific, detailed facts that he has a good reason to

believe that he will be singled out for persecution on account of race if he is

returned to South Africa. See Sepulveda, 401 F.3d at 1231. Additionally, Herbst
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has not presented evidence showing that in South Africa there is a pattern or

practice of persecution of whites on account of their race. See 8 C.F.R.

§ 208.13(b)(2)(iii). Instead, the evidence in the record supports a finding that

whites are harmed and harassed as a result of generalized lawlessness and

criminality. Even though the 2001 United States State Department country report

acknowledges the racial tensions in the country, the report emphasizes a general

state of insecurity plaguing both blacks and whites. The report also lists the

numerous measures the government has taken to curb general violence and racial

tensions, including the implementation of the South African Human Rights

Commission and adoption of the Promotion of Equality and Prevention of Unfair

Discrimination Act. 

Additionally, Herbst argues that the BIA erred in upholding the IJ’s

determination that he was not entitled to asylum because the government offered

no opposition to Herbst’s case and chose not to cross examine Herbst during the

proceeding before the IJ. The burden is on Herbst to establish that he is eligible for

asylum because he suffered past persecution or has a well-founded fear of future

persecution. See 8 C.F.R. § 208.13(b). Herbst did not meet his burden. Thus, the

BIA did not err in upholding the IJ’s determination that Herbst was not entitled to

asylum irrespective of whether the government presented evidence in support of its

case or cross examined Herbst. 
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Finally, Herbst argues that the BIA erred in upholding the IJ’s determination

that he is not entitled to withholding of removal under the INA and CAT because

Herbst has shown that he will more likely than not be persecuted on account of his

race if forced to return to South Africa. The BIA’s factual determination that an

alien is not entitled to withholding of removal must be upheld if it is supported by

substantial evidence. Al Najjar, 257 F.3d at 1283–84. An alien is entitled to

withholding of removal under the INA if he can show that his life or freedom

would be threatened on account of his race. See Mendoza v. U.S. Atty. Gen, 327

F.3d 1283, 1287 (11th Cir. 2003); see also 8 U.S.C. § 1231(b)(3). If an applicant is

unable to meet the well-founded fear standard for asylum, he is generally

precluded from qualifying for withholding of removal. Al Najjar, 257 F.3d at

1292–93.

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

that it is “more likely than not” that he will be tortured in the country of removal. 

8 C.F.R. § 208.16(c)(2). “The burden of proof for an applicant seeking

withholding of removal under the [CAT], like that for an applicant seeking

withholding of removal under the [INA], is higher than the burden imposed on an

asylum applicant.” Al Najjar, 257 F.3d at 1303. Because Herbst has failed to

establish a well-founded fear of persecution sufficient to support his asylum claim,

we find that he has not established his eligibility for withholding of removal under
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the INA and CAT. The BIA did not err in upholding the IJ’s determination that

Herbst is ineligible for withholding of removal. 

PETITION DENIED.