FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 25, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-15145

Non-Argument Calendar

________________________

BIA Nos. A79-508-365 & A79-508-366

ELIZABETH GOMEZ GAVIRIA,

JORGE ALBERTO SALDARRIAGA PARRA, et al.,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

__________________________

 Petition for Review of an Order of the 

Board of Immigration Appeals

_________________________

(April 25, 2005)

Before BLACK, HULL and WILSON, Circuit Judges.

PER CURIAM:
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Colombian citizens Elizabeth Gomez Gaviria, Jorge Alberto Saldarriaga

Parra, and Carolina Saldarriaga Gomez (collectively Gaviria) petition for review

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

Judge’s (IJ’s) denial of asylum and withholding of removal under the Immigration

and Nationality Act (INA) and the United Nations Convention Against Torture

and other Cruel, Inhumane, and Degrading Treatment or Punishment (CAT). We

deny the petition. 

Gaviria maintains the IJ erred in denying her asylum and withholding of

removal claims because the Colombian Revolutionary Armed Forces (FARC)

imputed a political opinion to her by stating she collaborated with the police. 

Gaviria also claims she was persecuted against on account of her activities in the

Liberal Party and the group she created, the Association of Merchants. The IJ

determined that, although Gaviria’s testimony was credible, she did not establish

(1) her membership in the Liberal Party or the Association of Merchants was

sufficient to establish a political opinion, and (2) there was no nexus between the

problems she faced on account of the FARC and her political opinion. Thus, the

IJ found she did not meet the definition of refugee under the INA, and denied her

asylum and withholding of removal claims. The BIA affirmed the IJ’s decision

without opinion. 
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I. DISCUSSION

When the BIA summarily affirms the IJ’s decision without an

opinion, the IJ’s decision becomes the final removal order subject to

review. The IJ’s factual determinations are reviewed under the

substantial evidence test, and we must affirm the IJ’s decision if it is

supported by reasonable, substantial, and probative evidence on the

record considered as a whole.

Sepulveda v. United States Attorney Gen., 401 F.3d 1226, 1230 (11th Cir. 2005)

(internal quotations and citations omitted). Under this highly deferential standard

of review, the IJ’s decision must be deferred to as supported by substantial

evidence, unless the evidence compels a reasonable fact finder to find otherwise. 

Id.

A. Asylum

An alien is eligible for asylum if she is a refugee. 8 U.S.C. § 1158(b)(1). A

“refugee” includes any person who is unwilling to return to, and is unable or

unwilling to avail herself of the protection of, the country of her nationality or

where she last habitually resided, because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). The burden of

proof is on the alien to establish that she is a refugee. Al Najjar v. Ashcroft, 257

F.3d 1262, 1287 (11th Cir. 2001). An alien may establish eligibility for asylum if
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she shows she has suffered past persecution or has a well-founded fear of future

persecution. 8 U.S.C. § 208.13(a), (b). 

While the INA does not define persecution, courts have generally held that

persecution is “punishment or the infliction of harm for political, religious, or

other reasons that this country does not recognize as legitimate.” See, e.g. TamasMercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000). “Persecution encompasses

more than threats to life or freedom; non-life threatening violence and physical

abuse also fall within this category.” Id. Mere harassment is not persecution, and

persecution requires “more than a few isolated incidents of verbal harassment or

intimidation.” Sepulveda, 401 F.3d at 1231. 

An applicant is a refugee on the basis of past persecution if the applicant has

suffered persecution in her country “on account of . . . political opinion,” and the

applicant “is unable or unwilling to return to, or avail . . . [her]self of the

protection of, that country owing to such persecution.” 8 C.F.R. § 208.13(b)(1). 

A showing of past persecution creates a presumption of a “well-founded fear”

subject to rebuttal by the INS. 8 C.F.R. § 208.13(b)(1). The well-founded fear

inquiry requires the alien to demonstrate that his or her fear of persecution “is

subjectively genuine and objectively reasonable.” Sepulveda, 401 F.3d at 1231. 

Further, the alien must establish a causal connection between the statutory ground
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and the feared persecution by presenting “specific, detailed facts showing a good

reason to fear that he or she will be singled out for persecution on account of [the

statutory ground].” Id. (emphasis in original). Finally, after establishing a wellfounded fear of persecution, the alien must demonstrate that he or she cannot

avoid the persecution by relocating within the country. Id. 

An imputed political opinion, even if it is incorrectly attributed, can be a

ground for the well-founded fear standard. Al Najjar, 257 F.3d at 1289. In order

to prevail, the alien must demonstrate that “the persecutor falsely attributed an

opinion to [her], and then persecuted [her] because of that mistaken belief about

[her] views.” Id. (internal quotations omitted). If the alien establishes the

persecutor imputed a political opinion to her, the alien would still be required to

demonstrate she has a well-founded fear of persecution because of that imputed

opinion. See id.

First, Gaviria’s claim she was persecuted against because she was a member

of a social group, her Association of Merchants, fails because she did not exhaust

her administrative remedies regarding this claim. A court may review a final order

of removal only if the alien has exhausted all administrative remedies available to

her as of right. See 8 U.S.C. § 1252(d)(1); see e.g., Boz v. United States, 248 F.3d

1299, 1300–02 (11th Cir. 2001). Although Gaviria submitted this claim to the IJ
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for review, she did not present her claim to the BIA for appellate review. 

Therefore, because she has not exhausted her administrative remedies, we will not

review this claim. 

Moreover, Gaviria’s claim she was persecuted by the FARC because of her

membership in the Liberal Party also fails because such membership is not enough

to establish persecution based on political opinion, and the interior decorating

Gaviria did for the Party does not constitute a political opinion. In addition, the

FARC never indicated they were calling her and threatening her because of these

activities, nor did Gaviria testify she spoke out to the public on behalf of the party. 

Therefore, Gaviria failed to demonstrate her activities for the Party and her

membership in the Party constituted a political opinion, or, if the activities were a

political opinion, to establish a nexus between such opinion and the threats by the

FARC. See Al Najjar, 257 F.3d at 1289. 

Additionally, Gaviria’s claim the FARC imputed a political opinion to her

also fails. She maintains the FARC told her they would kill her because she

collaborated with the police. Although Gaviria’s testimony demonstrates she went

to the police officers’ homes and their hospital to do some interior decorating

work, and she created her Association of Merchants to protect the neighborhood

merchants from the FARC, these activities do not constitute a political opinion,
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imputed or otherwise. See Al Najjar, 257 F.3d at 1289. Moreover, Gaviria

admitted she and her husband owned their businesses, and stated it was only after

her husband started making a lot of money that the FARC contacted him. Both the

2001 and the 2002 State Department Country Reports for Colombia indicate the

FARC demands business owners who have a lot of money pay them taxes or risk

being kidnaped. Thus, it appears as though the FARC harassed her and her

husband because neither of them would pay the FARC the taxes the FARC

demanded they pay. Therefore, Gaviria has failed to establish the actions taken

against her by the FARC were on account of one of the five statutory grounds, and

substantial evidence exists to support the IJ’s conclusion Gaviria did not prove

that she met the definition of “refugee” under the INA. See 8 U.S.C.

§ 1101(a)(42)(A). 

B. Withholding of Removal

In a withholding of removal claim, an alien shall not be removed to a

country if her life or freedom would be threatened on account of race, religion,

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

§ 1231(b)(3). The alien must show it is “more likely than not that she will be

persecuted or tortured upon being returned to her country.” Sepulveda, 401 F.3d

at 1232. The withholding of removal standard is more stringent than the “well-
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founded fear” standard for asylum; thus, if an applicant is unable to meet the

“well-founded fear” standard for asylum, she generally is unable to qualify for

withholding of removal. Id. at 1232–33. 

Because Gaviria cannot prevail on her asylum claim, she is also unable to

meet the stricter standards of her INA withholding of removal claim. See id.

C. Convention Against Torture

An alien is eligible for withholding of removal under the CAT if she can

establish “it is more likely than not that he or she would be tortured if removed to

the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). The CAT defines

“torture” as

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. 

Id. § 208.18(a)(1).

There is no evidence that it is more likely than not that Gaviria would be

tortured if removed to Colombia. Thus, her CAT claim also fails.
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III. CONCLUSION

The IJ did not err in denying Gaviria’s asylum, withholding of removal and

CAT claims. 

PETITION DENIED.