FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 16, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-15173

Non-Argument Calendar

________________________

BIA Nos. A97-188-161 & A97-188-162

ALFONSO LLANOS, 

DIANA VANESSA LLANOS, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(May 16, 2006)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:
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Alfonso Llanos and Diana Vanessa Llanos, through counsel, petition for

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

Immigration Judge’s (“IJ”) removal order, which became the final agency

determination when the BIA adopted the reasoning of the IJ’s decision. 

Petitioners, who are natives and citizens of Colombia, contend that the IJ erred in

denying their claims for asylum and withholding of removal. We dismiss the

petition in part and deny it in part. 

“We review only the [BIA’s] decision, except to the extent that it expressly

adopts the IJ’s opinion.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). 

Insofar as the BIA adopts the IJ’s reasoning, we review the IJ’s decision as if it

were the BIA’s. Id. To the extent the IJ’s decision was based upon a legal

determination, we review the IJ’s decision de novo. Mohammed v. Ashcroft, 261

F.3d 1244, 1247-48 (11th Cir. 2001). We review the IJ’s factual determinations

under the substantial evidence standard, and “must affirm the [IJ’s] decision if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Najjar, 257 F.3d at 1283-84 (internal quotes omitted); see

also 8 U.S.C. § 1252(b)(4)(B) (“[A]dministrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to concluded to the

contrary[.]”). “Under this highly deferential standard of review, the IJ’s decision

can be reversed only if the evidence ‘compels’ a reasonable fact finder to find
 Diana Vanessa Llanos’s claims are predicated on those of Alfredo Llanos, who is the 1

primary applicant for asylum and withholding of removal.

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otherwise.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005)

(per curiam). 

An alien who arrives in or is present in the United States may apply for

asylum. 8 U.S.C. § 1158(a)(1). The applicant must demonstrate by clear and

convincing evidence that the application has been filed within one year after the

date of the alien’s arrival in the United States–unless the alien can demonstrate to

the satisfaction of the Attorney General (1) the existence of changed circumstances

which materially affect the applicant’s eligibility for asylum, or (2) extraordinary

circumstances relating to the delay in filing an application within one year. Id.

§ 1158(a)(2)(B), (D); Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 956 (11th

Cir. 2005) (per curiam). Courts do not have jurisdiction, however, to review a

determination of the Attorney General as to the timeliness of an asylum application

or the existence of changed or extraordinary circumstances. 8 U.S.C. § 1158(a)(3);

Chacon-Botero, 427 F.3d at 957; Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1217-

18 (11th Cir. 2002) (per curiam). Thus we cannot review the IJ’s determination

that Alfredo Llanos’s (“Llanos”) asylum application was untimely and that neither 1

of the exceptions apply. See id. We therefore dismiss the petition with respect to

the asylum claim.
 To establish asylum eligibility, the alien must establish, with specific and credible 2

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

fear” that the statutorily listed factor will cause such future persecution. 8 C.F.R. § 208.13(a),

(b); Najjar, 257 F.3d at 1287. A showing of past persecution creates a presumption of a “wellfounded fear” of persecution subject to rebuttal by the government. Sepulveda, 401 F.3d at

1231. 

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Llanos also challenges the IJ’s denial of withholding of removal. He

contends that the IJ erred by rejecting his testimony without making an explicit

finding that he was not credible. He also maintains that he demonstrated past

persecution or a well-founded fear of future persecution on the basis of his political

opinion or imputed political opinion, because his life and his family members’

lives were threatened as a result of his activities with a community action board

that opposed the Revolutionary Armed Forces of Colombia’s (“FARC”) recruiting

activities. 

The Attorney General may not remove an alien to a country if the Attorney

General finds that “the alien’s life or freedom would be threatened in that country

because of the alien’s race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). “The alien bears the

burden of demonstrating that it is ‘more likely than not’ [h]e will be persecuted or

tortured upon being returned to [his] country.” Sepulveda, 401 F.3d at 1232

(quoting Fahim, 278 F.3d at 1218). The burden of proof for withholding of

removal is more stringent than the burden for asylum. Id. at 1232.2
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“The statutes governing asylum and withholding of removal protect not only

against persecution by government forces, but also against persecution by nongovernmental groups that the government cannot control, such as the FARC.” Ruiz

v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (per curiam). Persecution,

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

verbal harassment or intimidation . . . .” Sepulveda, 401 F.3d at 1231 (internal

quotes omitted). “Threats alone generally do not constitute actual persecution;

only rarely, when they are so immediate and menacing as to cause significant

suffering or harm in themselves, do threats per se qualify as persecution.” Valutev

v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003). Likewise, “evidence that either

is consistent with acts of private violence or the petitioner’s failure to cooperate

with guerillas, or that merely shows that a person has been the victim of criminal

activity, does not constitute evidence of persecution based on a statutorily

protected ground.” Ruiz, 440 F.3d at 1258.

As Llanos indicates, the IJ did not expressly state whether he found Llanos’s

testimony to be credible. Thus, we will assume that any credibility determinations

by the IJ were not dispositive of Llanos’s claims. See Yang v. U.S. Att’y Gen., 418

F.3d 1198, 1201 (11th Cir. 2005) (noting that IJs must make “clean determinations

of credibility”). We nevertheless conclude that substantial evidence supports the

IJ’s decision. Llanos’s receipt of a series of threatening phone calls regarding his
 According to Llanos, the shooter was never identified. There was no showing of a 3

connection between the shooter and the FARC, and neither Llanos, nor his wife, nor his

daughters were ever physically harmed.

 Llanos also produced a letter from the president of his community action board, but that 4

letter made no reference to Llanos having experienced any problems or received any threats in

Colombia.

6

efforts to draw youths away from local communes, and an incident where a shot

was fired into a taxi carrying his daughters, are insufficient to establish past

persecution. See Sepulveda, 401 F.3d at 1231; Valutev, 354 F.3d at 1210.3

Additionally, the fact that Llanos learned, indirectly, that the wife of a friend who

worked for the community action board was murdered is, without any further

details, insufficient to establish a well-founded fear of future persecution. Llanos, 4

who lived and worked with his family in Cali, also claimed that relocation within

Colombia would be useless, because the FARC sets up roadblocks to collect and

computerize information about persons of interest to it. According to the IJ,

however, Llanos’s parents apparently have continued to live in Cali without

incident. Cf. Ruiz, 440 F.3d at 1259 (petitioner’s claimed fear that the FARC

would kill him was contradicted by his testimony that his son and parents remained

unharmed in the region where petitioner allegedly was threatened). Thus, we deny

petitioners’ claim for withholding of removal under § 1231(b)(3)(A). 
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Finally, Llanos contends that he is entitled to withholding of removal under

the Convention Against Torture (“CAT”). We cannot consider this argument, for

Llanos withdrew his CAT claim at the asylum hearing. See Fernandez-Bernal v.

Att’y Gen. of the United States, 257 F.3d 1304, 1317 n.13 (11th Cir. 2001). We

therefore dismiss the petition with respect to the CAT claim.

PETITION DISMISSED IN PART AND DENIED IN PART.