FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 June 7, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-12613

Non-Argument Calendar

________________________

Agency No. A95-255-655

MATILDE AGUDELO, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(June 7, 2005)

Before ANDERSON, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

Matilde Agudelo, a native and citizen of Colombia, petitions, through

counsel, this Court for review of the Board of Immigration Appeals’ (“BIA”) order
The IJ also denied relief pursuant to the United Nations Convention Against Torture and 1

Other Cruel, Inhuman, or Degrading Treatment or Punishment, but Agudelo is not raising that issue

on appeal. 

2

affirming without opinion the Immigration Judge’s (IJ) decision denying her

application for asylum and withholding of removal under the INA. Because 1

Agudelo’s removal proceedings commenced after April 1, 1997, the effective date

of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.

L. No. 104-208, 110 Stat. 3009 (1996) (“IIRIRA”), this case is governed by the

permanent provisions of the INA, as amended by IIRIRA. See Antipova v. United

States Att’y Gen., 392 F.3d 1259, 1264 (11th Cir. 2004); Gonzalez-Oropeza v.

United States Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). Agudelo argues

that the BIA erred in finding that she was ineligible for asylum and withholding of

removal because she suffered past persecution on account of her political opinion

and religious activities. Agudelo argues that she further established a well-founded

fear of persecution on the same bases. 

We review the IJ’s decision in this case, not the BIA’s, because the BIA

affirmed the IJ’s decision without opinion, thereby making that the final agency

determination. See 8 C.F.R. § 1003.1(a)(7); Mendoza v. U.S. Attorney Gen., 327

F.3d 1283, 1284 n.1 (11th Cir. 2003). The IJ’s factual determinations are reviewed

under the substantial evidence test, and we “must affirm the [IJ’s] decision if it is
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), this Court 2

adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to

the close of business on September 30, 1981.

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supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir.

2001) (quotation omitted). It is the fact trier’s duty to determine credibility, and

we may not substitute our judgment for that of the IJ with respect to credibility

findings. Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5th Cir. 1977).2

Under this highly deferential standard of review, the IJ’s decision must be deferred

to as supported by substantial evidence, unless the evidence would compel a

reasonable fact finder to find otherwise. INS v. Elias-Zacarias, 502 U.S. 478, 481

n.1, 112 S.Ct. 812, 815 n.1, 117 L.Ed.2d 38 (1992); see also INA § 242(b)(4)(B), 8

U.S.C. § 1252(b)(4)(B) (“administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary”).

I. Asylum

Any alien who arrives in or is present in the United States may apply for

asylum, which the Attorney General (“AG”) has discretion to grant if the alien

meets the definition of a “refugee.” Al Najjar, 257 F.3d at 1284. A “refugee” is: 

[A]ny person who is outside any country of such person’s nationality

or, in the case of a person having no nationality, is outside any

country in which such person last habitually resided, and who is

unable or unwilling to return to, and is unable or unwilling to avail
4

himself or herself of the protection of, that country 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 . . .. 

Id. (emphasis added) (citing 8 U.S.C. § 1101(a)(42)(A)). The asylum applicant

carries the burden of proving statutory “refugee” status and thereby establishing

asylum eligibility. Id. (citing 8 C.F.R. § 208.13(a)). If she meets that burden, the

AG may exercise his discretion to grant asylum. Id. Here, because the IJ

determined that Agudelo failed to establish eligibility for asylum, he did not

address whether he would exercise his discretion. Accordingly, we need only

address whether substantial evidence supports the finding that Agudelo failed to

show statutory eligibility for asylum, i.e., past persecution or a well-founded fear

of future persecution on account of her religion or political opinion. 

To establish asylum eligibility, the alien must establish, with specific,

detailed, and credible evidence (1) past persecution on account of her political

opinion, religious belief, or other statutorily listed factor, or (2) a “well-founded

fear” that her political opinion, religious belief, or other statutorily listed factor will

cause future persecution. Al Najjar, 257 F.3d at 1287; see also 8 C.F.R.

§ 208.13(a), (b). “[A]n applicant must demonstrate that his or her fear of

persecution is subjectively genuine and objectively reasonable.” Sepulveda, 378

F.3d at 1264 (quotation omitted). Establishing a nexus between the statutorily
5

listed factor and the feared persecution “requires the alien to present specific,

detailed facts showing a good reason to fear that he or she will be singled out for

persecution on account of” the statutorily listed factor. D-Muhumed v. Att’y Gen.,

388 F.3d 814, 818 (11th Cir. 2004) (quotation omitted) (emphasis in original).

If the alien demonstrates past persecution, she is presumed to have a wellfounded fear of future persecution unless the government can rebut the

presumption. 8 C.F.R. § 208.13(b)(1). If, however, the alien does not establish

past persecution, she bears the burden of demonstrating a well-founded fear of

persecution by showing that (1) she fears persecution based on her religion,

political opinion, or other statutorily listed factor; (2) there is a reasonable

possibility she will suffer persecution if removed to her native country; and (3) she

could not avoid persecution by relocating to another part of her country, if under

all the circumstances it would be reasonable to expect relocation. See 8 C.F.R.

§ 208.13(b)(2), (3)(i).

Despite her claims to the contrary, Agudelo has not shown that she has been

persecuted, that such persecution was based on her political opinion or religious

beliefs, or that she has a well-founded fear of future persecution on those bases. 

Her claim centers around her refusal to give members of a guerilla group

information about her employer. Substantial evidence supports the IJ’s conclusion
6

that any problems Agudelo suffered arose out of her failure to cooperate with the

group, not out of her political opinion or religious beliefs. As to her fear of future

persecution, Agudelo has not established (1) that she fears persecution based on

her political opinion or religious beliefs, (2) that there is a reasonable possibility

that she will suffer persecution if removed to her native country, or (3) that she

could not avoid persecution by relocating to another part of Colombia.

Therefore, because Agudelo fails to establish that she suffered past

persecution or a “well-founded fear” of future persecution on account of her

political opinion or religious belief, her asylum claim fails.

II. Withholding of Removal

The IJ’s factual determination that an alien is not entitled to withholding of

removal must be upheld if it is supported by substantial evidence. See Al Najjar, 257

F.3d at 1283-84. An alien is entitled to withholding of removal under the INA if he

can show that his life or freedom would be threatened on account of race, religion,

nationality, membership in a particular social group, or political opinion. INA

§ 241(b)(3), 8 U.S.C. § 1231(b)(3). If “an applicant is unable to meet the ‘wellfounded fear’ standard for asylum, [s]he is generally precluded from qualifying for

either asylum or withholding of deportation.” Al Najjar, 257 F.3d at 1292-93

(quotation omitted). 
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As discussed above, Agudelo failed to establish past persecution or a wellfounded fear of persecution on account of one of the five statutory factors

sufficient to support her asylum claim. She offers no argument to avoid the

general preclusion from withholding of removal in this situation. Accordingly,

substantial evidence supports the IJ’s rejection of Agudelo’s claim for withholding

of removal under the INA.

Conclusion

Based on a review of the record and the parties’ briefs, we deny Agudelo’s

petition for review. 

PETITION DENIED.