FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JULY 31, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15995

Non-Argument Calendar

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BIA No. A98-735-014 & A98-135-015

CESAR AUGUSTO HERNANDEZ MONCADA, 

GINA ASTRID GUEVARA ALFONSO, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(July 31, 2008)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

Cesar Hernandez Moncada and his wife Gina Alfonso, proceeding pro se,
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seek review of the Board of Immigration Appeals’s (“BIA”) decision adopting and

affirming the Immigration Judge’s (“IJ”) removal order and denial of their

applications for asylum and withholding of removal under the Immigration and

Nationality Act (“INA”), and relief under the United Nations Convention on

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(“CAT”), 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16(c).

Because the BIA did not adopt the IJ’s decision, we review only the BIA’s

decision in this case. Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). 

We review the BIA’s legal conclusions de novo and the BIA’s factual findings

under the substantial evidence test. Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27

(11th Cir. 2004) (en banc). “Under the substantial evidence test, we view the

record evidence in the light most favorable to the agency’s decision and draw all

reasonable inferences in favor of that decision.” Id. at 1027. Therefore, the fact

that evidence in the record may support a conclusion contrary to the administrative

findings is not enough to justify a reversal, rather, reversal is only appropriate

where the record “compels” it. Id.

I. Asylum and Withholding of Removal

Moncada argues that the BIA erred when it denied his applications for

asylum and withholding of removal on the ground that he had not suffered past

persecution. Moncada must show that the evidence “was so compelling that no
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reasonable factfinder could fail to find the requisite fear of persecution.” INS v.

Elias-Zacarias, 502 U.S. 478, 483-84, 112 S. Ct. 812, 817, 117 L. Ed. 2d 38

(1992). 

“Although the INA does not define persecution, we have often repeated that

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

verbal harassment or intimidation, and that mere harassment does not amount to

persecution.” Sanchez-Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th Cir.

2007) (internal quotation marks omitted). The petitioner does not, however, need

to have suffered serious physical injury when there are physical threats combined

with other forms of mistreatment such as kidnapping or attempted murder. De

Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1009 (11th Cir. 2008). Moreover,

“[i]n determining whether an alien has suffered past persecution, the [BIA] must

consider the cumulative effects of the [allegedly persecutory] incidents.” Delgado

v. U.S. Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007) (per curiam). Additionally,

we “may consider a threatening act against another as evidence that the petitioner

suffered persecution where that act concomitantly threatens the petitioner.” De

Santamaria, 525 F.3d at 1009 n.7.

We are compelled to conclude that Moncada suffered past persecution in

light of the cumulative effect of his encounters with the Revolutionary Armed

Forces of Colombia (“FARC”). He was repeatedly threatened over the course of
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more than four years, chased by a vehicle containing armed gunmen who shot at

him, and his brother was kidnapped and physically mistreated. Accordingly, we

grant the petition as it relates to the BIA’s denial of Moncada’s applications for

asylum and withholding of removal. Because, however, the BIA did not address

whether there was a nexus between the persecution and a protected ground, we

remand the case for the BIA to determine whether Moncada is now entitled to

relief.

II. CAT Relief

Moncada contends that he is entitled to CAT relief because he is subject to

being tortured by the FARC, and the Colombian government is unable to control

the FARC.

To be entitled to relief under CAT, an applicant must establish that 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 alien must also demonstrate

that the feared torture would be by the government or with the government’s

acquiescence, i.e., the government is aware of misconduct that it has a duty to

prevent and fails to intervene. Morales v. U.S. Att’y Gen., 488 F.3d 884, 891 (11th

Cir. 2007) (per curiam). 

Moncada is not entitled to CAT relief. After the police became aware of

Moncada’s trouble with the FARC, it investigated, advised him concerning how to
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protect his safety, monitored his telephone, and determined the area from which

one of the telephone threats against Moncada had originated. Therefore, the

Colombian government did not acquiesce in the FARC’s misconduct. 

Accordingly, substantial evidence supports the BIA’s denial of CAT relief, and we

deny the petition as it relates to this claim.

PETITION GRANTED IN PART AND DENIED IN PART.