FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 14, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-10554

Non-Argument Calendar

________________________

Agency No. A77-007-400

SORAIDA HENAO NUNEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(October 14, 2008)

Before ANDERSON, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

Soraida Henao Nunez, a native and citizen of Colombia, petitions this court

for review of the Board of Immigration Appeals’ (“BIA”) affirmance of the
Immigration Judge’s (“IJ”) order of removal and denial of withholding of removal.

After a thorough review of the record, we deny the petition.

Nunez entered the United States in 1999 without being admitted or paroled,

and the INS charged her with removability under INA § 212(a)(6)(A)(i); 8 U.S.C.

§ 1182(a)(6)(A)(i). In 2002, Nunez filed an application for asylum, withholding of

removal, and relief under the CAT, alleging that she had been persecuted on

account of her political opinion.

1

At the removal hearing, Nunez testified as follows: Nunez’s family operated

a funeral home in Cali, Colombia. The home had a contract with the government

to perform funeral services for military personnel. The family disagreed with the

agenda of guerilla organizations such as FARC, and thus refused to perform

funeral services for any guerillas. Nunez’s family would determine if someone

was a guerilla by the way the person died. Nunez experienced her first problem

with FARC on July 7, 1999. As Nunez and her mother were opening the funeral

home that morning, three men entered and demanded to know where Nunez’s

brother Alexander was. Nunez said he was not there, and the men threatened her

and insulted her, telling her that they would “beat her today and kill her

The IJ and BIA determined that the application was untimely. This court has dismissed the 1

petition to the extent that it challenges this determination. In addition, Nunez did not challenge the

denial of CAT relief before the BIA, and she does not raise it in her petition for review. Thus, the

issue is not exhausted and abandoned. Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317

n.13 (11th Cir. 2001); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 (11th Cir. 2005). 

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tomorrow.” The men slapped her in the face, and when she fell to the ground, they

kicked her twice in the leg. The men also beat her mother before they left. Nunez

was pregnant at the time and started to bleed. She and her mother went to the

hospital. Nunez did not have a medical report because the hospital records were

not computerized. After the attack, Nunez hid at home for a week and then came to

the United States. She then learned that her family had received several

threatening calls from FARC, but that her family had not told her of these

problems because they did not want to worry her. After she fled Colombia, her

family received a condolence card and wreath. Then, on July 23, 2001, her brother

was kidnaped by FARC, held for about two hours, and beaten. Neither Nunez or

her brother went to the police because the police had been infiltrated and were

corrupt. Friends in the military told the family that they had obtained a copy of a

hit list, which included the names of Alexander and his uncle. In 2002, the uncle

was shot and killed. Nunez feared that she would be killed if she returned to

Colombia because FARC never forgot and the threat was country-wide.

Alexander Henao testified to the following: The family had the contract for

military funerals since 1992. In 1998, they began to receive calls from FARC

warning them to stop military funerals. Between 1998 and 2001, Alexander

received 23 threatening calls. In 1999, his sister and mother were beaten. In 2001,

Alexander’s car was intercepted and he was taken to another location where he was

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threatened and beaten. He was able to escape when some men approached and the

kidnappers ran away. Alexander then learned from his military friends that he and

his uncle were included on a list of people to be killed. Alexander did not go to the

police because they were corrupt. Instead, he sold the business to a friend who was

later killed. In December 2001, FARC members warned the uncle that they were

still looking for Alexander and his family. Alexander explained that he never told

Nunez of the problems, even when she wanted to return to visit their sick father,

because he did not want to worry her.

In support of the asylum application, Nunez submitted several articles on

FARC and the 2005 State Department Country Reports on Human Rights. None of

the articles or reports were specific to the events Nunez and Alexander described.

Nunez also submitted the death certificates for her uncle and the man who bought

the funeral home. Additionally, she submitted letters from her mother and her aunt

dated 2005, referring to threats the family continued to receive, and statements

from two family friends, Alberto Garcia and Leyda Sandoval. Garcia stated that he

knew Nunez and knew that FARC came to the funeral home. He stated that Nunez

had been beaten, leaving bruises on her body and face. Sandoval stated that she

knew Nunez and her mother had been beaten by FARC and taken to the hospital

for treatment. Sandoval had attempted to get the medical records for Nunez, but

was told the records were not available because the hospital was not computerized.

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Finally, Nunez submitted Alexander’s asylum application and notice of relief from

removal.

The IJ denied relief, questioning the lack of corroborating evidence from the

hospital and to confirm the circumstances of the uncle’s death, and noting that

Nunez’s several trips to Colombia negated her fear of harm. The IJ found that the

reasons given for allegedly not telling Nunez of the threats were not credible. On

the merits, the IJ noted that the family had a contract with the government since

1992, but did not experience any issues with FARC until 1998, and Nunez suffered

only a single incident. He further noted that the family had friends in the military

and in government, but did not seek assistance once the threats began. The court

gave no weight to the letters from family and friends, as they were vague, general,

and contradicted the testimony.

Nunez appealed to the BIA, which affirmed, finding that the evidence was

insufficient to establish entitlement to withholding of removal. The BIA explained

that Nunez’s decision to return to Colombia twice after the threats began and the

three-year wait to file for relief undermined her claims. The BIA pointed to the

weaknesses in the claims, and noted that the corroborating evidence was

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insufficient. The BIA noted that Nunez had not challenged the IJ’s findings that

the corroborating evidence was deficient. This petition for review followed.

2

We review only the decision of the BIA, except to the extent that it expressly

adopts the IJ’s opinion. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir.

2007). We review legal conclusions de novo and factual findings under the

substantial evidence test. Adefemi v. Ashcroft, 386 F .3d 1022, 1026-27 (11th

3

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. The fact that

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

findings is not enough to justify a reversal. Id. Rather, reversal is only appropriate

where the record “compels” it. Id.

Nunez also argued that she was denied the opportunity to rebut the government’s argument 2

at the removal hearing. The BIA concluded that Nunez had not shown that she was unable to rebut

the government’s argument or how she was prejudiced. Nunez does not raise this issue in her

petition for review; thus, it has been abandoned. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,

1228 (11th Cir. 2005).

In considering a petitioner’s claim for withholding of removal, the IJ must determine 3

credibility in the same manner as in asylum cases. See 8 U.S.C. § 1231(b)(3)(C); 8 U.S.C.

§ 1158(b)(1)(B)(ii)-(iii). IJs must make “clean determinations of credibility.” Yang v. U.S. Att’y

Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). Here, although the IJ explained that he found certain

explanations to lack credibility, the IJ did not make a specific adverse credibility finding. Thus, we

take the testimony as true. De Santamaria v. U.S. Att’y Gen., 512 F.3d 1308, 1320 n.10 (11th Cir.

2008).

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An alien seeking withholding of removal must show that “it is more likely

than not [s]he will be subject to persecution based upon race, religion, nationality,

political opinion, or membership in a particular social group.” Javier Ruiz v.

Gonzales, 479 F.3d 762, 765-766 (11th Cir. 2007). The statute also covers

persecution by non-governmental groups that the “government cannot control.”

Jaime Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257-58 (11th Cir. 2006). The

applicant must show either past persecution on a protected ground, which raises a

rebuttable presumption of future harm, or show a future threat to her life or

freedom based on a protected ground. Mendoza v. U.S. Att’y Gen., 327 F.3d 1283,

1287 (11th Cir. 2003).

To qualify for withholding of removal based on persecution by a

guerilla group on account of a political opinion, [the alien] must

establish that the guerillas persecuted [him] or will seek to persecute

[him] in the future because of [his] actual or imputed political opinion.

It is not enough to show that [he] was or will be persecuted or tortured

due to [his] refusal to cooperate with the guerillas.

Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004) (citations omitted)

(holding that the evidence was “consistent with a finding that FARC harassed [the

alien] due to her refusal to cooperate with them, which is not enough to qualify for

withholding of removal under the INA”). Moreover, “[e]ven if the evidence

compels the conclusion that the petitioner refused to cooperate with the guerrillas

because of his political opinion, the petitioner still has to establish that the record

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also compels the conclusion that he has a ‘well-founded fear’ that the guerrillas

will persecute him because of that political opinion, rather than because of his

refusal to cooperate with them.” Rivera v. U .S. Att’y Gen., 487 F.3d 815, 822

(11th Cir. 2007) (citation and alteration omitted).

Persecution is an extreme concept, requiring “more than a few isolated

incidents of verbal harassment or intimidation ... [and m]ere harassment is not

persecution.” Javier Ruiz, 479 F.3d at 766. Menacing phone calls and threats are

not sufficient evidence of past persecution to require reversal. Sepulveda v. U.S.

Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005). This court has held that threats,

attempted attacks, and a physical attack on account of an applicant’s political

opinion was sufficient evidence of past persecution. Mejia v. U.S. Att’y Gen., 498

F.3d 1253, 1257-58 (11th Cir. 2007) (asylum context). However, resistance to

forced recruitment does not by itself qualify as persecution on account of political

opinion. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481-82, 112 S.Ct. 812, 815-16,

117 L .Ed.2d 38 (1992). Additionally, acts of private violence or failure to

cooperate with guerillas “does not constitute evidence of persecution based on a

statutorily protected ground.” Jaime Ruiz, 440 F.3d at 1257-58. “In assessing past

persecution [this court must] consider the cumulative impact of the mistreatment

the petitioner [ ] suffered.” Mejia, 498 F.3d at 1258; see also, e.g., Ruiz v.

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Gonzales, 479 F.3d 762, 766 (11th Cir. 2007) (holding that the cumulative effect of

a beating, threatening phone calls, and a kidnaping constituted persecution).

Here, we conclude the BIA properly denied relief from removal. First, the

incident did not rise to the level of past persecution. See Djonda v. U.S. Att’y

Gen., 514 F.3d 1168, 1174 (11th Cir. 2008) (holding that a minor beating resulting

in only scratches and bruises does not constitute persecution).

Second, the IJ and BIA noted that there were weaknesses in Nunez’s claims

and thus she needed to present corroborating evidence, a finding that Nunez does

not challenge on appeal. Although an applicant’s uncorroborated but credible

testimony may be sufficient to sustain the burden of proof, “[t]he weaker an

applicant’s testimony ... the greater the need for corroborative evidence.” Yang v.

U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). In this case, Nunez

provided no relevant corroborating evidence of past persecution. She could not

provide hospital records to confirm the alleged beating, and the letters from family

and friends were either vague or inconsistent with Nunez’s version of the event.

Moreover, none of the articles or State Department reports made any reference to

the incidents Nunez and her family suffered; the reports merely indicated that

FARC was a guerilla organization with strong control in Colombia and wellknown for its violent tactics. It is not for this court to re-weigh the evidence.

Lorisme v. I.N.S., 129 F.3d 1441, 1445 (11th Cir. 1997).

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Third, Nunez failed to establish it is more likely than not she will be

persecuted if she returns to Colombia. As the government notes, the family no

longer owns the funeral home. Moreover, Nunez’s mother and aunt continue to

live in Colombia, and Nunez herself traveled to the country twice after the alleged

attack. Family members living unharmed in the home country weakens a claim of

well-founded fear of future persecution. Jaime Ruiz, 440 F.3d at 1259.

Accordingly, substantial evidence supports the BIA’s conclusion, and we

DENY the petition.

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