FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 April 6, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-14643

Non-Argument Calendar

________________________

BIA No. A79-102-095

TITO EILIAS ROJAS AZCARATE, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(April 6, 2007)

Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Tito Eilias Rojas Azcarate (“Azcarate”) petitions for review of the final
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order of the Board of Immigration Appeals (“BIA”), which adopted and affirmed

the removal order of the Immigration Judge (“IJ”) denying him asylum,

withholding of removal under the Immigration and Nationality Act (“INA”), and

relief under the United Nations Convention Against Torture (“CAT”). After

review, we deny the petition.

I. BACKGROUND

Azcarate, a native and citizen of Colombia, arrived in Miami, Florida on

March 29, 2001, without a visa or other type of entry permit. When Azcarate was

detained and interviewed by immigration officials at the Miami airport, he stated

his intention to apply for political asylum in the United States.

Azcarate was then served with a Notice to Appear, alleging, inter alia, that

he was an arriving alien without a valid unexpired visa or other valid entry

document, in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I). At the April 4, 2002,

hearing before the IJ, Azcarate conceded removability on the basis of being an

arriving alien without a valid unexpired visa or other valid entry document. 

Azcarate also filed his asylum application.

According to his asylum application, Azcarate fears for his life because the

United Civil Defense Patrols of Colombia (“AUC”) believes him to be a guerrilla

sympathizer. Azcarate’s asylum application states that: (1) he began receiving

threatening telephone calls from the AUC in early March 2001; (2) he received six
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to eight such calls; (3) he received a threatening “condolence” note on March 22,

2001; (4) he fled the country in response to the condolence note and the phone

calls; and (5) the threats were related to the AUC’s murder of his cousin, with

whom he ran a business in Carmelo, Colombia. In Azcarate’s view, the AUC will

torture and kill him if he returns to Colombia. 

Azcarate attached to his asylum application an AUC “death list” containing

his name; an AUC flyer warning that individuals collaborating with the guerrillas

would be considered military targets; a complaint he filed with the Office of Public

Prosecutor on March 27, 2001, regarding the death threats; a translated copy of the

condolence note; and a sworn statement from his deceased cousin’s wife stating

that AUC paramilitaries killed her husband and that Azcarate had to flee Colombia

in response to the death threats. 

The merits hearing on Azcarate’s asylum application was held on March 31,

2005. Azcarate essentially testified consistently with his written application and

explained, through counsel, that he was seeking asylum on the basis of imputed

political opinion (specifically, the AUC’s belief that Azcarate was helping

guerrillas). 

Azcarate further testified that on November 22, 2000, the AUC killed his

cousin because the AUC believed that Azcarate and his cousin were supplying

guerrillas through their store. Azcarate was out of town in Cali, Colombia on
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November 22, buying supplies for the store. After his cousin’s death, the store

closed, and Azcarate never returned to Carmelo. 

Azcarate admitted that he and his cousin were never actually involved with

guerrillas, despite the fact that the AUC thought they were supplying guerrillas

through the store. Azcarate received between six to nine threatening phone calls;

his wife received four or five such calls. The threatening phone calls were made to

Azcarate’s residence in Cali. Azcarate notified the authorities of the death threats

five days after receiving the condolence note on March 22, 2001. The authorities

recommended he leave the country. Azcarate did not relocate within Colombia

because the AUC was well-organized and would find him. 

However, Azcarate admitted that: (1) his wife and two daughters still reside

in Cali and have had no problems with the AUC; (2) he was never physically

accosted or attacked during the three months he spent in Colombia after his

cousin’s death; and (3) he was not involved in politics in any way in Colombia,

other than voting. This testimony was consistent with Azcarate’s asylum

application, which states that neither Azcarate nor any member of his family

belonged to or had been associated with any organization such as a political party,

military or paramilitary group, student group, or labor union.

The IJ denied Azcarate’s request for asylum, withholding of removal, and

CAT relief, concluding that the evidence did not support Azcarate’s claim that he
When the BIA issues a decision, we review only that decision, “except to the extent that 1

it expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well.” 

Id. Here, the BIA essentially adopted and affirmed the IJ’s decision. Although the BIA also

determined that Azcarate’s “arguments on appeal regarding credibility fail[ed] to establish

error,” the IJ did not actually make an adverse credibility finding in this case, and in any event,

Azcarate does not raise any credibility arguments in his petition for review before this Court. 

Accordingly, we review the IJ’s decision.

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had suffered past persecution or had a well-founded fear of future persecution. The

IJ noted that: (1) Azcarate testified that he was never involved with Colombian

politics, other than voting; (2) the death of Azcarate’s cousin did not appear to

have been directed at anyone in particular; (3) Azcarate was not present for the

incident that resulted in his cousin’s death; (4) Azcarate was not actually involved

with the guerrillas; (5) in any event, the AUC achieved their objective of

preventing Azcarate from helping the guerrillas, because Azcarate’s business

closed; (6) Azcarate’s wife and children still lived in Cali, and had not experienced

any threats or problems; and (7) and there was no evidence that the AUC was still

looking for Azcarate. Thus, the IJ ordered Azcarate be removed and deported to

Colombia.

Azcarate appealed the IJ’s decision to the BIA, which adopted and affirmed

the IJ’s decision. The BIA found that Azcarate’s “arguments on appeal regarding

credibility fail[ed] to establish” that the IJ erred in concluding that Azcarate had

not met his burden of establishing past persecution or a well-founded fear of future

persecution. Azcarate timely petitioned this Court for review.1
To the extent that the IJ’s decision was based on a legal determination, our review is de

novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004); Mohammed v.

Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001). Factual determinations are reviewed under the

substantial evidence test, and we “must affirm the [IJ’s] decision if it is ‘supported by

reasonable, substantial, and probative evidence on the record considered as a whole.’” Al Najjar,

257 F.3d at 1283-84 (citation omitted).

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II. DISCUSSION

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

asylum. See 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant

asylum if the alien meets the INA’s definition of a “refugee.” See 8 U.S.C. §

1158(b)(1). A “refugee” is 

any person who is outside any country of such person’s nationality . . .

and who is unable or unwilling to return to, and is unable or unwilling

to avail 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 . . . . 

8 U.S.C. § 1101(a)(42)(A). The asylum applicant has the burden of establishing

statutory “refugee” status. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th

Cir. 2001).

To carry this burden, the alien must, with specific and credible evidence,

establish either (1) past persecution on account of a statutorily listed factor, or (2) a

“well-founded fear” that the statutorily listed factor will cause future persecution. 

Id. at 1287. In order to be well-founded, a fear of persecution must be both

“subjectively genuine and objectively reasonable.” Id. at 1289. A finding of past
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persecution creates a presumption that the alien has a well-founded fear of

persecution and shifts the burden to the government to demonstrate either that

conditions have changed in the alien’s home country or that the alien could avoid

such persecution by relocating in the home country and relocation is reasonable. 8

C.F.R. § 208.13(b); § 208.16(b). 

This Court has held 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.” Sepulveda v. U.S. Att’y Gen.,

401 F.3d 1226, 1231 (11th Cir. 2005) (quotation marks, citation, and alteration

omitted). “Not all exceptional treatment is persecution.” Gonzalez v. Reno, 212

F.3d 1338, 1355 (11th Cir. 2000). 

Based on the record as a whole, we conclude that the IJ’s denial of

Azcarate’s asylum application is supported by substantial evidence. See Al Najjar,

257 F.3d at 1283-84. First, Azcarate’s treatment at the hands of the AUC did not

amount to persecution. According to Azcarate, he received between six and nine

threatening telephone calls from the AUC; he received a condolence note; and his

cousin was killed. However, Azcarate himself suffered no physical harm or

deprivation of liberty, and under our precedent, the threatening telephone calls and

condolence note do not amount to persecution. See Silva v. U.S. Att’y Gen., 448

F.3d 1229, 1237-38 (11th Cir. 2006) (condolence note followed by threatening
In passing, Azcarate’s brief asserts that he was persecuted not only on account of his 2

political opinion, but also on account of his membership in a particular social group. See 8

U.S.C. § 1101(a)(42)(A). However, Azcarate did not assert before the IJ that he was persecuted

on account of his membership in a particular social group, and accordingly that claim is not

properly before this Court because it has not been administratively exhausted. See 8 U.S.C. §

1252(d)(1). Moreover, Azcarate’s brief does not specify the social group to which the AUC

mistakenly thought he belonged, stating only that the AUC mistakenly thought that he had

“undertaken to collaborate with the guerrillas and others.”

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telephone calls did not qualify as persecution); see also Sepulveda, 401 F.3d at

1231 (three threatening telephone calls and in-person threat to petitioner’s brother

did not compel a finding of persecution). 

Second, and in any event, the record does not compel the conclusion that

either Azcarate’s cousin’s death or the threats to Azcarate himself occurred on

account of any political opinion imputed to Azcarate (or his cousin) by the AUC.2

See 8 U.S.C. § 1101(a)(42)(A). Azcarate admitted that, aside from voting, he was

not involved in Colombian politics. Azcarate further admitted that neither he nor

any members of his family are or ever have been involved or associated with any

political party, military or paramilitary group, student group, or labor union. Thus,

the evidence does not compel the conclusion that the AUC’s threats and attacks

were aimed at Azcarate on the basis of his actual or imputed political opinion or

activity. Instead, it appears just as plausible from this record that the attacks were

designed to shut down businesses that the AUC thought were supplying guerrillas,

a goal that the AUC actually achieved (at least in the case of Azcarate).

Finally, Azcarate admitted that his wife and children still live in Cali, at a
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different address, and they have remained there without any problems. We have

previously stated that when the alleged persecutors are not affiliated with the

government, “‘it is not unreasonable to require a refugee who has an internal

resettlement alternative in his own country to pursue that option before seeking

permanent resettlement in the United States, or at least to establish that such an

option is unavailable.’” Sepulveda, 401 F.3d at 1231 (citation omitted). Thus,

even if Azcarate had managed to establish past persecution or a well-founded fear

of future persecution based on his imputed political opinion or membership in a

social group, Azcarate nevertheless failed to establish that relocation within

Colombia is an option unavailable to him. See Ruiz v. U.S. Att’y Gen., 440 F.3d

1247, 1259 (11th Cir. 2006) (concluding that petitioner’s claim that he could not

relocate internally to avoid future persecution was contradicted by his own

testimony that his son and his parents have remained unharmed in the region of

Colombia where he allegedly was threatened).

For all of these reasons, we conclude that Azcarate has failed to carry his

burden of proof on his asylum claim. Moreover, because Azcarate has failed to

carry the burden of proof on his asylum claim, his claims for withholding of

removal and CAT relief also fail. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282,

1288 n.4 (11th Cir. 2005) (“Because [petitioner] has failed to establish a claim of

asylum on the merits, he necessarily fails to establish eligibility for withholding of
Azcarate’s claim that the IJ abused his discretion by failing to conduct an independent 3

evaluation of his CAT claim is belied by our precedent and does not require additional

discussion. See Forgue, 401 F.3d at 1288 n.4. 

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removal or protection under CAT.”).

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III. CONCLUSION

For the foregoing reasons, we conclude that the BIA’s and IJ’s denial of

asylum, withholding of removal, and CAT relief are supported by substantial

evidence. Accordingly, we deny Azcarate’s petition for review.

PETITION DENIED.