FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 30, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-11787

Non-Argument Calendar

________________________

Agency Nos. A97-926-807

A97-136-798

VEVINE PETRONA FRANCIS, 

OWEN LLOYD FRANCIS, 

JEVRON FRANCIS, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(November 30, 2006)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
 Because the petitioners did not argue that the BIA erred in denying CAT relief, the 1

petitioners have abandoned this argument. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1283 n.12

(11th Cir. 2001).

2

Vevine Petrona Francis, her husband, and her son (collectively

“petitioners”), all natives and citizens of Jamaica, proceeding pro se, petition this

Court for review of the Board of Immigration Appeal’s (“BIA”) final order

dismissing their appeal and affirming the Immigration Judge’s (“IJ”) denial of

asylum and withholding of removal under the Immigration and Nationality Act

(“INA”). The petitioners argue that they filed their asylum application more than a

year after they arrived in the United States because they did not know they could

apply for asylum. The petitioners also argue that the BIA erred in denying

withholding of removal because they fear they will be persecuted if returned to

Jamaica.

1

I. Jurisdiction Over Petition for Review of Asylum Denial

We review our subject-matter jurisdiction de novo. Brooks v. Ashcroft, 283

F.3d 1268, 1272 (11th Cir. 2002). An alien may apply for asylum if “the alien

demonstrates by clear and convincing evidence that the application has been filed

within 1 year after the date of the alien’s arrival in the United States.” INA

§ 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B). An alien may apply for asylum after one

year of arrival if the alien “demonstrates . . . either the existence of changed

circumstances which materially affect the applicant’s eligibility for asylum or
3

extraordinary circumstances relating to the delay in filing an application.” INA

§ 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). “No court shall have jurisdiction to

review any determination” that an application was untimely or failed to establish

changed or extraordinary circumstances to excuse the delay. INA § 208(a)(3), 8

U.S.C. § 1158(a)(3). Section 1158(a)(3) divests us of jurisdiction to review the

BIA’s determination that an asylum applicant filed an untimely application and

failed to establish changed or extraordinary circumstances to excuse the untimely

filing. Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287. (11th Cir. 2003). 

Here, the BIA determined that the petitioners filed their asylum application

more than one year after their arrival in the United States. The BIA also found that

the petitioners did not prove extraordinary circumstances justifying their late filing. 

Pursuant to INA § 208(a)(3), 8 U.S.C. § 1158(a)(3), we lack jurisdiction to review

the BIA’s decision that the asylum application was untimely. However, we do not

lack jurisdiction to review the petition for withholding of removal. Therefore, we

dismiss the petition for review of the denial of asylum for lack of jurisdiction, but

continue with review of the claim for withholding of removal.

II. Withholding of Removal

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
4

review the IJ’s decision as well.” Id. Here, the BIA issued its own decision,

without any adoption. Therefore, we will review only the BIA’s decision. 

“To the extent that the BIA’s decision was based on a legal determination,

[our] review is de novo.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th

Cir. 2004). However, the BIA’s factual determinations 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.” Al Najjar, 257 F.3d at 1283-84 (quotation omitted).

An applicant for withholding of removal is not subject to the one-year time

limitation placed on asylum applicants under INA § 208(a)(2)(b), 8 U.S.C.

§ 1158(a)(2)(B) or 8 C.F.R. § 208.4(a). See INA § 241(b)(3)(A), 8 U.S.C.

1231(b)(3)(A). Moreover, unlike asylum, withholding of removal under the INA

is mandatory, not discretionary, once the applicant establishes eligibility. Id.;

8 C.F.R. § 208.16(d)(1).

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

show that her ‘life or freedom would be threatened in [that] country because of her

race, religion, nationality, membership in a particular social group, or political

opinion.’” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005)

(quoting 8 U.S.C. § 1231(b)(3)(A) (alteration omitted)). The burden of proof is

upon the alien to show her eligibility for withholding of removal under the INA by
5

showing that it is “more likely than not she will be persecuted or tortured upon

being returned to her country.” Id. (quotation omitted). The more-likely-than-not

standard is more stringent than the well-founded fear standard in asylum cases. 

Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006).

An applicant for withholding of removal may satisfy this burden of proof in

one of two ways. Id. First, an alien may satisfy her burden if she establishes “past

persecution in her country based on a protected ground.” Id. (quotation omitted). 

Once an alien establishes past persecution, “a rebuttable presumption arises that

she has a well-founded fear of future persecution, and the burden then shifts to the

[DHS] to show that the conditions in the country have changed or the alien could

avoid a future threat through relocation.” Id. (quotations omitted).

Second, if an alien has not shown past persecution, she still may be entitled

to withholding of removal if she “establishes ‘that it is more likely than not that she

would be persecuted on account of race, religion, nationality, membership in a

particular social group, or political opinion upon removal to that country.’” Id.

(quoting 8 C.F.R. § 208.16(b)(2) (alteration omitted)). “An alien cannot

demonstrate that [she] more-likely-than-not would be persecuted on a protected

ground if the [BIA] finds that the alien could avoid a future threat by relocating to

another part of [her] country.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287

(11th Cir. 2003). An alien may also sustain her burden of proof by showing a
6

pattern or practice of persecution of a group similarly situated to her in which she

is included or with which she is identified. 8 C.F.R. § 208.16(b)(2). The alien

need not show that she would be singled out individually for persecution; rather,

she may sustain the burden of proof by showing a pattern or practice of persecution

of a group similarly situated to the alien in which she is included or with which she

may be identified. Id.

Neither the INA nor the regulations define “persecution.” We have stated,

however, that “persecution 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, 401 F.3d at 1231 (quotations

omitted). Furthermore, the petitioner’s well-founded fear of persecution must be

on account of, or because of, one of the statutorily listed factors, such as her

political opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812,

816, 117 L.Ed.2d 38 (1992).

We have held that “[a]n imputed political opinion, whether correctly or

incorrectly attributed, may constitute a ground for a well-founded fear of political

persecution within the meaning of the INA.” Al Najjar, 257 F.3d at 1289

(quotations omitted). An applicant “may prevail on a theory of imputed political

opinion if he shows that the persecutor falsely attributed an opinion to him, and

then persecuted him because of that mistaken belief about his views.” Id.
7

(alterations and quotations omitted).

To meet their burden of proof, the petitioners must have shown either that

they suffered past persecution or that they more likely than not would suffer future

persecution if removed to Jamaica. See Tan, 446 F.3d at 1375. We find no error

in the IJ’s determination that the petitioners did not suffer past persecution based

on a protected ground. See id. The threats the petitioners received were unrelated

to their political opinions and, although harassing, did not reach the level of

persecution. Because the petitioners failed to show past persecution, they are only

eligible for withholding of removal if they proved that they more likely than not

would suffer persecution upon removal to Jamaica. See Tan, 446 F.3d at 1375. 

The petitioners have failed to meet this burden of proof as well. They do not

belong to a persecuted group and presented no evidence that they would join one

upon return to Jamaica. Therefore, substantial evidence supports the BIA’s denial

of withholding of removal.

Upon review of the records and the parties’ briefs, we hold that we lack

jurisdiction to review the asylum claim and dismiss the petition as to that issue. 

We also discern no error in the BIA’s denial of withholding of removal and deny

the petition as to that issue.

PETITION DISMISSED IN PART; DENIED IN PART.