FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 APRIL 1, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-13756

Non-Argument Calendar

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Agency Nos. A98-863-130,

A98-863-131

FRANCISCO MALAVET DELGADO,

OLGA LUCIA ARISTIZABAL BOTERO,

LORENA MALAVET ARISTIZABAL,

PAOLA ANDREA MALAVET ARISTIZABAL,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

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Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(April 1, 2009)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:
Francisco Malavet-Delgado, his wife Olga Lucia Aristizabal-Botero and

their two daughters, Lorena Malavet-Arstizabal and Paola Andrea MalavetArstizabal, petition for review of the Board of Immigration Appeals’ (“BIA”)

decision affirming the Immigration Judge’s (“IJ”) order dismissing their

application for asylum. After review, we deny the petition.

I. BACKGROUND

A. Alleged Persecution

On February 26, 2005, Malavet-Delgado, a citizen of Colombia, filed his

application for asylum, claiming that he was persecuted by the Revolutionary

Armed Forces of Colombia (“FARC”) on account of his political opinion and

membership in a particular social group. According to his application and hearing

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testimony, Malavet-Delgado is a lawyer who, from 1987 to 1992, worked for the

military in a region where the FARC was influential. From 1993 to 1995, MalavetDelgado worked as a criminal prosecutor in the state attorney’s office in Cali.

Some of his cases involved FARC leaders. In 1995, Malavet-Delgado resigned

from the state attorney’s office when a new attorney general was appointed. From

1995 to 2004, Malavet-Delgado worked as a criminal defense attorney until he left

for the United States in 2004.

Malavet-Delgado’s wife and daughters are listed on his asylum application as derivative 1

beneficiaries. Although our opinion refers to Malavet-Delgado, our holding applies with equal force

to his family.

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According to Malavet-Delgado, his former supervisor at the state attorney

general’s office, Felipe Alberto Lopez Soto (“Lopez”), was murdered on January

28, 1996, several months after Lopez resigned from the state attorney’s office.

Malavet-Delgado did not attend the funeral because he “was afraid that the people

who had murdered [Lopez] could be on the lookout for someone like [him]

attending . . . .”

Before Lopez died, he introduced Malavet-Delgado to a member of the

Unidado Popular Movement (“MPU”), a political organization that supported

President Uribe’s fight against the FARC. Although Lopez was not a member of

the MPU, he sympathized with its cause. In 1998, after Malavet-Delgado resigned

from the state attorney’s office and Lopez was killed, Malavet-Delgado joined the

MPU and started attending meetings in different regions of Colombia.

A year after joining the MPU (i.e., 1999), Malavet-Delgado began receiving

threatening phone calls and letters from the FARC stating that he would soon be

joining Lopez in the cemetery or that Lopez requested his presence. As a result of

these threats, Malavet-Delgado moved with his family from Cali to Bogota.

On May 22, 2001, Malavet-Delgado was leaving the prosecutor’s office in

Cali when unidentified people on motorcycles fired shots at him. Malavet-Delgado

reported the incident to the prosecutor’s office. In August 2001, Malavet-Delgado

and his family moved to the United States to live.

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After realizing that he could not practice as an attorney in the United States,

Malavet-Delgado returned with his daughters to Colombia, leaving his wife in the

United States. In August 2003 and January 2004, Malavet-Delgado traveled to

New York for business, both times returning to Colombia. Malavet-Delgado

protected his daughters by sending them to a school with lots of security, carrying

a weapon and taking them to and from school each day.

Malavet-Delgado did not intend to move to the United States until he

received an anonymous letter in the mail in 2004. The note, made of letters cut

from magazines and pasted together, stated, “Dr. Malabet we have not forgotten

you[.] Your daughters are very beautiful[,] aren’t they?” Malavet-Delgado

interpreted this as a threat against his daughters and came with them to the United

States on February 28, 2004 on non-immigrant pleasure visas with authority to stay

until August 27, 2004.

B. Immigration Proceedings

On December 27, 2005, the Department of Homeland Security (“DHS”)

issued Notices to Appear (“NTA”), alleging that Malavet-Delgado and his

daughters had overstayed their visitors visas by remaining in the United States

after August 27, 2004 without authorization. Similarly, DHS issued an NTA for

Malavet-Delgado’s wife, alleging that she had remained in the United States after

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June 30, 2002 without authorization. Malavet-Delgado appeared before the IJ

with counsel and conceded removability.

After a hearing at which Malavet-Delgado testified, the IJ denied MalavetDelgado’s February 26, 2005 application for asylum, withholding of removal and

CAT relief and granted his application for voluntary departure. The IJ found that

Malavet-Delgado’s hearing testimony was not credible and, in the alternative, that

Malavet-Delgado did not establish past persecution or a well-founded fear of future

persecution.

Malavet-Delgado appealed to the BIA, arguing that the IJ erred in using the

new credibility standards in the REAL ID Act of 2005, Pub. L. No. 109-13, §

101(a)(3), (d)(4)(C), 119 Stat. 231, 303, 304-05 (codified at 8 U.S.C. §§

1158(b)(1)(B)(iii), 1229a(c)(4)(C)), which were not applicable to his February 26,

2005 asylum application. The BIA found it unnecessary to address MalavetDelgado’s challenge to the IJ’s adverse credibility finding because, even if he was

deemed credible, Malavet-Delgado failed to establish his eligibility for asylum or

withholding of removal. The BIA concluded that Malavet-Delgado failed to show

past persecution because “[t]he alleged events d[id] not rise to the level of

persecution.” The BIA also concluded that Malavet-Delgado failed to show a wellfounded fear of future persecution because the FARC had not shown an interest in

him since 2004. The BIA found that Malavet-Delgado was not entitled to CAT

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relief because he had not shown that it was more likely than not that he would be

tortured if he returned to Colombia. Malavet-Delgado petitioned for review.

II. DISCUSSION

A. IJ’s Adverse Credibility Finding

When the BIA issues a decision, we review only that decision except to the

extent the BIA expressly adopts the IJ’s decision. See Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA did not adopt the IJ’s order and

expressly abstained from ruling on the IJ’s adverse credibility finding. Thus, we

limit our review to the grounds given in the BIA’s final order, that is, whether

Malavet-Delgado is statutorily eligible for asylum assuming his allegations are

true. We review only what the BIA actually ruled on and decline MalavetDelgado’s request to remand with instructions to the BIA to first address his

challenge to the IJ’s adverse credibility finding before addressing whether he was

statutorily ineligible for asylum.

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B. Past Persecution

Malavet-Delgado challenges the BIA’s conclusion that, even if his testimony

was credible, he nonetheless failed to establish eligibility for asylum based on past

As noted earlier, Malavet-Delgado had argued to the BIA that the IJ erred in applying the 2

REALID Act’s new credibility standards to his case because his asylum application was filed before

its enactment. See Pub. L. No. 109-13, § 101(h)(2), 119 Stat. at 305 (providing that the REAL ID

Act applies only to applications filed after the date of enactment). The BIA did not address this

argument and, instead, accepted Malavet-Delgado’s testimony as true.

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persecution. “To establish asylum based on past persecution, the applicant must

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prove (1) that [he] was persecuted, and (2) that the persecution was on account of a

protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006).

Although the INA does not define persecution, this Court has noted that not all

“exceptional treatment” constitutes persecution, which 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 (quotation marks and brackets omitted). Consequently, mere threats, without

more, do not rise to the level of persecution. See id.; see also Djonda v. U.S. Att’y

Gen., 514 F.3d 1168, 1174 (11th Cir. 2008); Silva, 448 F.3d at 1237.

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Here, substantial evidence supports the BIA’s determination that MalavetDelgado failed to show he suffered past persecution. Malavet-Delgado’s claim of

past persecution rests on three incidents: (1) in 1999, he received threatening phone

calls and letters from the FARC; (2) on May 22, 2001, he was shot at by unknown

persons on motorcycles for unknown reasons; and (3) in 2004, he received an

Malavet-Delgado does not challenge the BIA’s rulings with regard to his asylum claim 3

based on future persecution or his claims for withholding of removal and CAT relief. Thus, these

claims are deemed abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th

Cir. 2005).

We review the BIA’s factual determinations regarding whether an applicant is eligible for 4

asylum under the substantial evidence test. Al Najjar, 257 F.3d at 1283-84. Under the substantial

evidence test, “we must find that the record not only supports reversal, but compels it.” Mendoza

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

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anonymous note from an unknown person for an unknown reason, tacitly

threatening his daughters’ safety. Although the 1999 verbal threats were linked to

the FARC, there is no evidence that the FARC took any further steps. Thus, the

FARC’s threats were nothing more than harassment. The record is silent as to the

motives and identities of the perpetrators of the 2001 attempted shooting and the

2004 anonymous note. Thus, there is no evidence that they were connected to

Malavet-Delgado’s political activity. On this record, we are not compelled to

conclude that Malavet-Delgado suffered past persecution on account of a

statutorily protected factor.

PETITION DENIED.

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