FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 November 28, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-11833

Non-Argument Calendar

________________________

BIA No. A79-508-350

NOHRA YOLANDA OCAMPO-RONCANCIO, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(November 28, 2006)

Before ANDERSON, BIRCH and MARCUS, Circuit Judges.

PER CURIAM:

Nohra Yolanda Ocampo-Roncancio, a native and citizen of Colombia,

petitions this Court for review of the final order of the Board of Immigration
Ocampo-Roncancio asserts no claim concerning the denial of CAT relief, although in her 1

brief, she does mention that such relief was denied in laying out the underlying procedural history

and facts. Accordingly, she is deemed to have abandoned any argument concerning the denial of

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

when an appellant fails to raise any challenge to the denial of CAT relief in her brief, that issue is

abandoned).

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Appeals (BIA), which affirmed the immigration judge’s (IJ’s) order of removal.

The IJ found that Ocampo-Roncancio’s asylum claim was time-barred and denied

her requests for withholding of removal under the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1231(b)(3), and her claim for protection under the United

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

Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). On appeal, OcampoRoncancio argues that: (1) her asylum application was improperly denied based on

the INA’s one-year time limitation for filing asylum applications, and (2) the IJ

and the BIA erred by denying her application for withholding of removal based on

her failure to establish her membership in a statutorily protected group. OcampoRoncancio urged that she was a member of a social group persecuted by the Cali

Cartel by virtue of her refusal to transport cocaine, on behalf of the Cartel, from

Colombia to the United States. We dismiss the petition in part for lack of subject- 1

matter jurisdiction, and deny it in part.

In the case at bar, the BIA issued a decision in which it adopted the IJ’s

reasoning without making additional findings. “We therefore review the IJ’s
3

decision as if it were the BIA’s.” Wei Chen v. U.S. Att’y Gen., --- F.3d ----, 2006

WL 2570870 at *2 (11th Cir. Sept. 8, 2006). We review the IJ’s factual

determinations using the substantial evidence test, meaning that we must affirm if

the decision “is supported by reasonable, substantial, and probative evidence on the

record considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286

(11th Cir. 2005) (citation and quotation marks omitted). In order to reverse the IJ’s

decision, we must find that the record not only supports reversal, but compels it.

See Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002). We review

questions of subject-matter jurisdiction and constitutional challenges in

immigration proceedings de novo. See Lonyem v. U.S. Att’y Gen., 352 F.3d 1338,

1341 (11th Cir. 2003) (constitutional challenges); Mendoza v. U.S. Att’y Gen., 327

F.3d 1283, 1287 n.5 (11th Cir. 2003) (subject-matter jurisdiction).

On appeal, Ocampo-Roncancio first argues that the IJ and the BIA erred by

applying the one-year time limit for filing an asylum application. OcampoRoncancio arrived in the United States on February 3, 1999, but did not file her

asylum petition under October 5, 2001. “An asylum application must be filed

within 1 year after the date of the alien’s arrival in the United States.” ChaconBotero v. U.S. Att’y Gen., 427 F.3d 954, 956 (11th Cir. 2005); INA

§ 208(a)(2)(B); 8 U.S.C. § 1158(a)(2)(B). An untimely application “may be

considered . . . if the alien demonstrates . . . extraordinary circumstances relating to
 Pub. L. 109-13, 119 Stat. 231 (REAL ID Act). After passage of the REAL ID Act, we have 2

jurisdiction to review questions of law raised in the petition for review. Tovar-Alvarez v. U.S. Att’y

Gen., 427 F.3d 1350, 1351-52 (11th Cir. 2005).

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the delay in filing an application.” INA § 208(a)(2)(D) (emphasis added); 8 U.S.C.

§ 1158(a)(2)(D). The determination as to whether an alien can apply for asylum,

however, is left exclusively to the Attorney General as “federal courts do not have

jurisdiction to review the Attorney General’s decision as to timeliness of such a

request.” Fahim, 278 F.3d at 1217; see also INA § 208(a)(3); 8 U.S.C.

§ 1158(a)(3) (providing that “[n]o court shall have the jurisdiction to review any

determination of the Attorney General under paragraph (2) [the provision

providing that the one-year time limit may be waived if extraordinary

circumstances are demonstrated].”); Mendoza v. U.S. Att’y Gen., 327 F.3d 1283,

1287 (11th Cir. 2003) (noting that 8 U.S.C. § 1158(a)(3) “divests our Court of

jurisdiction to review a decision regarding whether an alien complied with the

one-year time limit or established extraordinary circumstances that would excuse

his untimely filing”). 

In Fahim, we held that although there is a “presumption favoring judicial

review,” we lack jurisdiction to review the Attorney General’s extraordinarycircumstances determination because the specific statutory language of 8 U.S.C.

§ 1158(a)(3) demonstrates that Congress intended to bar such review. See 278

F.3d at 1217-18. And, after passage of the REAL ID Act of 2005, we again 2
As for Ocampo-Roncancio’s argument that the one-year time limit violates the 3

Constitution’s Supremacy Clause, the Third Circuit recently rejected this very argument. See

Sukwanputra v. Gonzales, 434 F.3d 627, 631-32 (3d Cir. 2006). More specifically, the Third Circuit

rejected the petitioners’ argument, identical to the one made by Ocampo-Roncancio, that the oneyear limit provided in § 1158(a)(2) conflicted with Article 34 of the United Nations Convention

Relating to the Status of Refugees (1951 Convention). Id. at 631. The Third Circuit found no

Supremacy Clause violation because: (1) Article 34 was not self-executing, and, thus, did not

provide enforceable rights beyond those granted by the INA; and (2) the one-year limit was enacted

after the 1951 Conventions and thus was “last in time” and, thus, overrode the 1951 Convention.

Id. at 631-32 & n.3. We too can find no constitutional violation based on the Supremacy Clause.

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recognized that § 1158(a)(3) continues to “divest[] our Court of jurisdiction to

review a decision regarding whether an alien complied with the one-year time limit

or established extraordinary circumstances that would excuse his untimely filing.”

Chacon-Botero, 427 F.3d at 957 (quotations and citation omitted). Thus, it is

beyond our jurisdiction to review the extraordinary-circumstances determination

and we must dismiss the petition in part.3

Turning to Ocampo-Roncancio’s challenge to the denial of her application

for withholding of removal, she argues that the IJ and the BIA erred by finding that

she did not suffer past persecution or a well-founded fear of future persecution.

She claims that if she returns to Colombia, she will be persecuted because she was

constantly solicited by, and received death threats from, members of the Cali

Cartel, even after she moved hours away from Bogota, but did not report the

situation to the police because she feared for her safety. 

An alien is entitled to withholding of removal under the INA if she can show

that her life or freedom would be threatened on account of her race, religion,
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nationality, membership in a particular social group, or political opinion.

Mendoza, 327 F.3d at 1287; see also INA § 241(b)(3)(A), 8 U.S.C. §

1231(b)(3)(A). The asylum applicant carries the burden of proving statutory

“refugee” status. See Al Najjar, 257 F.3d at 1284; 8 C.F.R. § 208.13(a). The

applicant satisfies this burden by showing, with specific and credible evidence:

(1) past persecution on account of a statutorily listed factor, or (2) a “well-founded

fear” of future persecution. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th

Cir. 2006). The second prong of both the past- and future-persecution tests

requires the applicant to show that the alleged persecution was “on account of a

protected ground.” See Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir.

2006) (discussing two-pronged tests for past and future persecution). 

Here, substantial evidence supports the BIA’s decision, as well as the IJ’s

finding, that Ocampo-Roncancio did not establish past persecution or a wellfounded fear of future persecution because she did not establish her membership in

a statutorily protected group. To meet her burden, Ocampo-Roncancio claimed she

was a member of a social group -- persons who have been asked, but refused, to

carry drugs on behalf of the Cali Cartel, from Colombia to the United States. The

IJ said that he “could not find that an immutable characteristic exists to establish

that [Ocampo-Oncancio] is a member of a particular social group.” We recently

considered whether an Colombian asylum applicant could establish refugee status
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based on his membership in a group of “noncriminal informants working against

the Cali drug cartel.” Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190 (11th Cir.

2006). We observed the following:

Congress did not directly speak on the issue of what constitutes a

“particular social group,” one of the five listed categories that qualify

for refugee status or withholding of deportation, within the meaning

of the INA. Accordingly, we must follow the BIA’s determination

that noncriminal informants working against the Cali cartel are not a

social group under the INA unless the interpretation is unreasonable,

i.e., arbitrary, capricious, or clearly contrary to law.

Id. at 1196 (citations omitted). We found reasonable, for purposes of establishing

the existence of a “social group” within the meaning of the INA, the BIA’s

requirement of a “common, immutable characteristic . . . [that] is fundamental to

[its members’] individual identities or consciences” -- the very standard the IJ

applied to Ocampo-Roncancio’s application here. Id. at 1196-97 (citing Matter of

Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985), overruled on other grounds by

Matter of Mogharrabi, 19 I. & N. Dec. 439, 447 (BIA 1987)). On this record, we

can discern no legal error in the IJ’s definition of a “social group,” nor does the

record compel reversing any of the IJ’s factual findings.

Based on Ocampo-Roncancio’s failure to identify a statutorily protected

social group, of which she was a member, the IJ did not err by denying the petition
The IJ also found that Ocampo-Roncanio presented no evidence that the Cali Cartel ever 4

attempted to harm her, but had threatened her only once after she stated that she would file a report

with the police. In addition, Ocampo-Roncancio described telephone calls, during which the caller

recruited her to engage in drug trafficking. Although the INA does not expressly define

“persecution,” we have stated that “persecution is an extreme concept, requiring more than a few

isolated incidents of verbal harassment or intimidation,” and “[m]ere harassment does not amount

to persecution.” Sepulveda, 401 F.3d at 1231 (quotations and citation omitted; alteration in

original). In addition to our conclusion that the IJ did not err by finding no statutorily protected

social group, we also observe that the record does not compel reversing the IJ’s finding that the

passage of over five years since Ocampo was solicited by the woman from the drug cartel suggested

that Ocampo would not be contacted by the cartel in the future. Moreover, even assuming that

Ocampo was called on the telephone by the drug cartel specifically because of her status as a person

who refused to carry drugs to the United States, this treatment would not rise to the level of

persecution under the INA. 

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for withholding of removal. Accordingly, we deny the petition as to the 4

withholding claim.

PETITION DISMISSED IN PART AND DENIED IN PART.