1 Michael B. Mukasey, now Attorney General of the United States, is substituted as respondent pursuant to Fede ral Rule of Appella te Procedure 43(c)(2). 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-2321

___________ Saul David Gutierrez-Olivares, *
* Petitioner, * * Petition for Review of an v. * Order of the * Board of Immigration Appeals. Michael B. Mukasey, 1 Attorney General,*
* Respondent. *

___________ Submitted: April 18, 2008 Filed: July 18, 2008

___________ Before WOLLMAN, BEAM, and RILEY, Circuit Judges.

___________ WOLLMAN, Circuit Judge.
Saul David Gutierrez-Olivares, a citizen and native of Peru, seeks review of an order of the Board of Immigration Appeal s (BIA) that affirmed the decision of an immigration judge (IJ) denying his applicati on for asylum and withholding of removal and ordering his removal to Peru. We dismiss the asylum claim for lack of jurisdiction and deny the petition for review of the withholding of removal claim.-2- I.

Gutierrez-Olivares entered the United States on a one-month tourist visa in March 2002. He remained and worked in th e United States after the expiration of his visa, and the government initiated remova l proceedings against him in July 2004. Gutierrez-Olivares admitted his removability , but applied for asylum in February 2005, claiming that he had suffered past pe rsecution in Peru on account of his political opinion and membership in a particular party and feared future persecution if he returned.

At his removal hearing in February 2006, Gutierrez-Olivares testified to the following. From 1991 until 2000, he had a one-hour weekday morning radio program wherein he gave news commentary and critic ized corrupt practices of then-Peruvianpresident Alberto Fujimori and of the local government in his province of Campana, Peru. His program was unpopular with those whom he criticized, and he was assaulted once on the street by two men he later identified as working with the mayor. He suffered a few blows that resulted in bruises and did not requi re medical attention. The radio station was vandalized by the mayor and his supporters, but GutierrezOlivares was not present at the time and the owner obtained a court judgment for the damage. In 1994, Gutierrez-Olivares becam e the mayoral candidate for a small local political group. During his candidacy, he was threatened that if he did not withdraw from the election, he would be forcibly re moved. Some of his campaign flyers and posters were vandalized, a nd unidentified people would throw stones at his windows and knock on his door at night. The police failed to bring any of the vandals to justice. Gutierrez-Olivares did not withdr aw from the race, but was not elected. In 1998, he ran again. His campaign meeti ng-place was vandalized and some of his supporters, but not Gutierrez-Olivares, were injured in the fracas. His supporters recognized the vandals as supporters of th e pro-Fujimori mayoral candidate, to whom Gutierrez-Olivares lost the election.-3- Gutierrez-Olivares joined the anti-Fujim ori Peru Posible party in 1999. In 2000, he attended an anti-Fujimori counter demonstration in Arequipa at which violence broke out, resulting in the arrest of some eighty to one-hundred people from his party. Those arrested we re injured, jailed, prosecuted, and/or released. GutierrezOlivares was not arrested, but was afraid to return to Campana for two weeks, after which he left for the United States for the fi rst time. He returnedto Peru in December 2000, after Fujimori had fled the country.

The leader of the Peru Posible party, Alejandro Toledo, was elected president in 2001. Some of Fujimori’s supporters remained in Campana’s local government, however, and Gutierrez-Olivares received thr eats against himself and his family. He sent his two eldest children to study abroadand his wife and youngest child to live in Arequipa. Gutierrez-Olivares remained in Campana until his final entry into the United States in March 2002, vacationing once in the United States in the interim. He testified that he intended to return to Peru when the political climate was more hospitable. In 2003, his wi fe was appointed head of the municipal public welfare program in Campana, replacing the man who had threatenedGutierrez-Olivares during his 1994 campaign and thereafter. As the result of a property dispute, she was assaulted and sustained injuries requiri ng medical attention. She obtained a restraining order against her attackers, and her case against them is currently pending in Peru’s courts.

After considering this testimony and supporting evidence, including background information on Peru, the IJ deni ed Gutierrez-Olivares’s application for asylum on the basis that it was untimely f iled and thus statutorily barred. The IJ denied the application for withholding of removal based on her finding that GutierrezOlivares had failed to meet his burden of proof that he had suffered past persecution or would suffer future persecution.2 Gutierrez-Olivares acknowledges that we lack jurisdiction to consider his asylum claim and does not challenge the BI A’s timeliness determination. Instead, he argues the merits in order to preserve his good faith claim should the law change. Appellant’s Br. at 2 n.1.
-4- II.

We review the BIA’s order, which includes the IJ’s findings and reasoning to the extent that it expressly adopts them, as the final order of removal. Fofanah v. Gonzales , 447 F.3d 1037, 1040 (8th Cir. 2006); see 8 U.S.C. § 1252(a)(1). We will uphold the BIA’s findings of fact unless th e evidence as a whol e would compel any reasonable adjudicator to conclude to th e contrary, and we will uphold the BIA’s decision unless it is manifestly contrary to law. 8 U.S.C. § 1252(b)(4)(B)-(C).

A. Asylum

We lack jurisdiction to review the BIA’ s determinations with respect to the timeliness of his application for asylum, including whether the application was filed within the one-year time limit or whether changed or extraordinary circumstances permit the consideration of an otherwise in eligible application. 8 U.S.C. § 1158(a)(3) (courts lack jurisdiction to review dete rminations made pursuant to 8 U.S.C. § 1158(a)(2)). Thus, we dismiss Gutierrez-Olivares’s asylum claim for lack of jurisdiction because it does not raise a colorable constitutional claim or question of law. See 8 U.S.C. § 1252(a)(2)(D). 2

B. Withholding of Removal

To qualify for withholding of re moval under 8 U.S.C. § 1231(b)(3)(A), Gutierrez-Olivares must ha ve established that “his life or freedom would be threatened” in Peru because of his “race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 208.16(b).-5- Gutierrez-Olivares argues that he suffe red and will suffer persecution based on his political opinion and his membership in a particular party. The record does not compel such conclusions. We agree with the BIA that the incidents described in Gutierrez-Olivares’s testimony, even when aggregated, do not constitute persecution within the meaning of 8 C.F.R. § 208.16(b), and thus do not establish that his life or freedom was threatened within the meani ng of 8 U.S.C. § 1231(b)(3)(A). Persecution is an “extreme concept” that does not encompass low-level intimidation and harassment. Eusebio v. Ashcroft , 361 F.3d 1088, 1090 (8th Cir. 2004) (internal quotation omitted); see also Angamarca v. Gonzales , 415 F.3d 897, 900-01 (8th Cir. 2005). Although Gutierrez-Olivares may have suffered harassment at the hands of local officials and political rivals for his political and journalistic activities, he was not seriously injured, detained, or even dissu aded from engaging in those activities in the Camana area for a period of nine years. See Quomsieh v. Gonzales , 479 F.3d 602, 606 (8th Cir. 2007) (“Absent physical harm, the incidents of harassment [and] unfulfilled threats of injury . . . are not persecution.”); Angamarca , 415 F.3d at 900-01 (no persecution where petitioner did not suffer detention or serious violence and remained in area for at least a month).

We also agree that Gutierrez-Olivares ha s not demonstrated that he will suffer persecution based on his political opinion and party membership if he is returned to Peru. The political climate has changed, a nd the record lacks ev idence that GutierrezOlivares, as a journalist and member of the Peru Posible part y, would suffer more severe treatment now than he did in the pa st. Fujimori has been out of power and in exile for more than seven y ears. The leader of Gutierr ez-Olivares’s party was Peru’s president for five years in the interim and held that position at the time of the removal hearing. At the level of local politics, Gu tierrez-Olivares’s wife replaced the man who harassed him.

The petition for review is denied.

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