FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

April 29, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-12428

Non-Argument Calendar

________________________

Agency Nos. A97-923-540

A97-923-541

RANDHY ANASOFIA UGAZ, 

PIER CUTILLI, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(April 29, 2008)

Before ANDERSON, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

Randhy Anasofia Ugaz, a native and citizen of Peru, petitions this court for
 Ugaz also requested withholding of removal and relief under the United Nations 1

Convention Against Torture. She does not seek review of the denial of this relief; therefore she

has abandoned these claims. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 (11 Cir. th

2005). We do not discuss these claims further.

 Her husband, Pier Cutilli, was admitted on May 2, 2002, under the Visa Waiver Pilot 2

program, with permission to remain until August 1, 2002. He proceeded as a derivative

applicant on Ugaz’s asylum application.

2

review of the Board of Immigration Appeals’ (“BIA”) affirmance of the

Immigration Judge’s (“IJ”) denial of asylum, 8 U.S.C. § 1158. After a thorough 1

review of the record, we grant the petition and vacate and remand for further

proceedings. 

I. Background 

Ugaz was admitted into the United States on July 1, 2003, as a

nonimmigrant visitor for business, with authorization to remain until August 1,

2003. She remained beyond this expiration period and the Department of 2

Homeland Services served Ugaz with a Notice to Appear and a Notice of Referral, 

charging her as removable under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). 

Ugaz applied for asylum, alleging that her work as a professional television

journalist and her affiliation with the political party, Alianza Popular

Revolucionaria Americana (“APRA”), resulted in persecution.

According to the asylum application and Ugaz’s testimony at the removal

hearing, Ugaz hired an individual named Cesar Aquino to help with a journalism

investigation into tubal ligation program. Aquino allegedly worked with the
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Catholic Church and Priest Lancier, and was involved with social programs within

Peru’s correctional facilities. Aquino put Ugaz in touch with women for her story. 

Ugaz and Cutilli attended meetings with these women, with Cutilli acting as her

assistant in the investigation. Through Aquino, Ugaz met many people who had

participated in the communist movements of the SL, and Tupac Amaru. Due to her

democratic beliefs, she attempted to discourage these individuals from their

affiliation with the guerilla groups. 

Ugaz later discovered that Aquino had connections with the SL. Ugaz began

receiving threatening phone calls from individuals who identified themselves as

members of the SL, who told her to stop talking about them. The callers told Ugaz

that her perception of them had to change, or she and her husband would be judged

by them. 

Ugaz changed her cell phone number and went to the police regarding the

calls, but both she and the police initially believed that the callers had “made a

mistake and that is why I changed my cell phone.” However, she continued to

receive calls after changing her number. In December 2001, Ugaz received a call

instructing her, “female dog, shut your mouth.” In March 2002, Ugaz received a

call in which she was told that they were going to “close [her] beak.” Ugaz

received threatening phone calls both at her house and on her cell phone,

particularly at night. Ugaz informed her employer that she felt her life was at risk. 
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On March 25, 2002, at approximately 10 p.m., as Ugaz and Cutilli were

driving home from her work, they were stopped by three masked individuals, who

pulled them out of their car and began hitting Cutilli. Ugaz tried to defend Cutilli,

but was “hit so bad [she] couldn’t move.” The attackers warned them that “this

was only the beginning of a punishment for interfering in what wasn’t [her]

business.” After the attackers left, bystanders immediately took Ugaz and Cutilli

to the hospital. Ugaz and Cutilli filed a police report regarding the attack. She

and Cutilli then made the decision to travel to the United States, “in search of

peace.” 

Ugaz and Cutilli remained in the United States for one year before Ugaz

returned to Peru in May of 200[3]. During Ugaz’s absence, Ugaz’s mother

continued to receive phone calls inquiring into Ugaz’s whereabouts. Ugaz

explained that while in the United States, her hope was that “everything should

pass by, finish, and it would be forgotten and it would be okay to go back.” She

returned to Peru “thinking that everything had ended,” but that as soon as the

guerillas found out she was back, the threatening calls resumed. On June 10, 2003,

she received a call during which she was told, “die like dogs all the enemies of the

revolution.” She called Cutilli, who had remained in the U.S., and told him not to

return to Peru. On the evening of June 20, 2003, a rock wrapped in the SL’s flag
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and containing a message threatening her with death, was thrown through her

window. Fearful, Ugaz returned to the United States and requested asylum. 

 In support of her application Ugaz submitted the following records. The

2004 U.S. Department of State’s Country Reports on Human Rights Practices,

indicating that the SL was responsible for killings and other abuses; the SL

continued to kill civilians as well as military and police officials, with 120 terrorist

incidents from January to December, the vast majority of which occurred in rural

areas that historically suffered from SL violence. The report further stated that the

SL continued to be a leading violator of the rights of indigenous people, coercing

indigenous peasants into joining its ranks and demanding war taxes, and that

journalists and media outlets were intimidated during the year, with 2 reporters

killed, and 121 reported cases of harassment, including verbal or physical violence

and threats. Furthermore, one reporter received death threats after disseminating

an interview with the SL leaders. 

The record also contained copies of the hospital’s medical records from the

night of the March 25 attack. The records indicate that Ugaz suffered injuries from

“[p]hysical aggression by unknown persons.” Her injuries included broken front

teeth, and deep bruising and ruptured blood vessels in her right arm and right leg,

produced by a hard, blunt object. Cutilli’s injuries included two broken ribs and

bruising at the anterior thorax and the lower 1/3 of the rib cage. The report also
6

stated that Cutilli suffered deep bruising and broken blood vessels in his face,

forearms, right wrist and both legs, produced by a hard, blunt object. 

Ugaz also submitted the certified copy of the police report, dated March 26,

2002:

That on March 25, 2002, aprox[imate] time 22:00, when she was

returning from chan[n]el 4 wh[ere] she worked. . . . in the company of

her boyfriend. . . . [she was] intercepted [o]n the corner. . . . 3 [men]

got o[ut of] the car. . . . striking the known ones in different parts of

the body, causing 2 fractured ribs and multiple trauma, trying to

defend the claimant so they would stop the beating, she was also hurt

it seems by the butt of a gun provoking the breakage of two superior

front teeth. Before leaving quickly into their car, they warned. . . .

that this was only the beginning of a punishment for an interference

into something that was none of [her] business, mentioning that they

were terrorist elements of the SL. . . .

Another police report, dated June 20, 2003, described “[a]ttempted terrorism,” and

Ugaz’s report that “a rock was thrown and a subversive propaganda from [t]he

[r]evolutionary party called Sendero Luminoso. . . was around the rock, breaking

her principal front window.” She also reported receiving a death threat ten days

earlier by telephone, during which the caller said “the enemies of the revolution die

like dogs.” 

Ugaz’s mother received two more calls after Ugaz returned to the United

States in June 2003; one inquiring into Ugaz’s whereabouts, and another in which

the caller said nothing and hung up. Ugaz has remained in the United States since

June 30, 2003. She explained that she had not relocated to another part of Peru
7

because the terrorists were all over the country, though mostly in rural sites. She

stated that she could not return to Peru because she is a threat to her family,

because “[t]errorism continue[d] when I was there,” and “[s]ubversive propaganda

was all over the place.” 

The IJ denied Ugaz’s application for asylum, finding that Ugaz’s testimony

did not meet the burden of establishing eligibility, and that it was not detailed

enough to suggest that there was a concerted effort by the SL to inflict harm on

Ugaz and Cutilli. The IJ found Ugaz’s testimony was somewhat implausible, and

that the events did not constitute past persecution. 

Ugaz appealed to the BIA, which dismissed the appeal, finding that Ugaz

failed to demonstrate either past persecution or a well-founded fear of future

persecution on a protected ground, as the calls and the beating did not rise to the

level of past persecution. Although the BIA determined that the IJ’s adverse

credibility finding was clearly erroneous, the BIA also concluded that Ugaz failed

to establish a nexus between the phone calls, the beating, and a protected ground. 

The BIA further found that Ugaz’s voluntary return to Peru in April 2003

undermined the reasonableness of her claim, as did her failure to apply for asylum

during her initial one-year stay in the United States. Ugaz now petitions this court

for review.

II. Analysis
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Because the BIA did not expressly adopt the IJ’s decision, we review only

the BIA’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007) (internal

citations omitted). 

 “A factual determination by the BIA that an alien is statutorily ineligible

for asylum or withholding is reviewed under the substantial evidence test.” Al

Najjar v. Ashcroft, 257 F.3d 1262, 1283 (11th Cir. 2001) (internal quotations and

citations omitted). We must affirm the BIA’s decision “if it is supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.” Id. at 1284 (internal quotations omitted). Under this 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.” Adefemi v. Ashcroft, 386 F.3d

1022, 1027 (11th Cir. 2004) (en banc). Accordingly, “to conclude the BIA’s

decision should be reversed, [this court] must find that the record not only supports

the conclusion, but compels it.” Ruiz 479 F.3d at 765 (internal quotations

omitted). 

The Attorney General or Secretary of Homeland Security has discretion to

grant asylum if the alien meets the definition of “refugee,” as defined by 8 U.S.C.

§ 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A). A refugee is defined as:

any 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
9

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 carries the burden of proving

statutory ‘‘refugee’’ status, and thereby establishing asylum eligibility. Al Najjar,

257 F.3d at 1284. When the agency does not make an explicit adverse credibility

determination, we consider the petitioner’s testimony to be credible. Mejia v. U.S.

Atty. Gen., 498 F.3d 1253, 1257 (11th Cir. 2007). 

“To establish asylum [eligibility] based on past persecution, the applicant

must prove (1) that she was persecuted, and (2) that the persecution was on account

of a protected ground.” Santamaria v. U.S. Att’y Gen., 2008 WL 1787731, at *5

(11th Cir. Apr. 22, 2008); Silva v. U.S. Atty. Gen., 448 F.3d 1229, 1236 (11th

Cir.2006). To establish eligibility for asylum based on a well-founded fear of

future persecution, the applicant must prove “(1) a subjectively genuine and

objectively reasonable fear of persecution that is (2) on account of a protected

ground.” Id. at *5 (internal and quotation marks omitted). A showing of past

persecution creates a rebuttable presumption of a well-founded fear of future

persecution. Sepulveda v. U.S. Atty. Gen., 401 F.3d 1226, 1231 (11th Cir. 2005). 

Although neither the INA nor the regulations define “persecution,” this court

has stated that “persecution is an extreme concept, requiring more than a few

isolated incidents of verbal harassment or intimidation, and that mere harassment
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does not amount to persecution.” Sanchez Jiminez v. U.S. Att’y Gen., 492 F.3d

1223, 1232 (11th Cir. 2007) (quoting Sepulveda, 401 F.3d at 1231). The record

must be considered cumulatively, and escalating physical assaults and verbal

harassment may qualify as persecution. See Mejia, 498 F.3d at 1257-58; Delgado

v. U.S. Atty. Gen., 487 F.3d 855, 861-62 (11th Cir. 2007).

Notably, the BIA disagreed with the IJ’s finding that Ugaz’s testimony was

implausible. In addition, the BIA rejected the IJ’s determination that Ugaz had not

shown that it would be impossible to relocate within Peru. Thus, the only issue

before us is whether substantial evidence supports the BIA’s findings that Ugaz

failed to establish past persecution or a well-founded fear of future persecution on

account of a protected ground.

Upon review, we conclude that the record compels the conclusion that Ugaz

suffered past persecution on account of a protected ground. Assuming, as we must

in the absence of an explicit adverse credibility finding, that Ugaz’s testimony was

credible, the evidence demonstrates that Ugaz received numerous threatening

telephone calls over an initial 18-month period, and she suffered a violent physical

attack resulting in bodily injuries. After Ugaz left Peru, her mother continued to

receive threatening calls. And upon Ugaz’s return to Peru, the calls continued and

a rock, wrapped in the SL flag, was thrown through her living room window. 

Although this court stated in Silva that the receipt of anonymous threats
11

[over a two month period], without more, does not qualify as persecution,” Silva is

distinguishable because, in this case, there was testimony that the calls referenced

the petitioner’s political activity. Cf. Silva, 448 F.3d at 1237. Furthermore, the

petitioner in Silva experienced threatening phone calls for only two months,

whereas Ugaz received them over a period of approximately 18 months prior to her

initial departure for the United States, in May 2002. Silva, 448 F.3d at 1237. And

the calls resumed when Ugaz return to Peru. 

Moreover, the certified police report regarding the attack of March 25, 2002,

states that the attackers told Ugaz they were members of SL, the callers repeatedly

referenced her political vocalizations, and Ugaz testified as to the identity of her

attackers. Physical violence, coupled with verbal threats can qualify as

persecution. See Mejia, 498 F.3d at 1257-58; see also Delgado, 487 F.3d 855

(11th Cir. 2007) (granting relief where the petitioners were stopped by masked

men who pointed unloaded weapons at them and pulled the triggers, one of the

petitioners was later attacked and beaten, and in both incidents, the attackers gave

warnings as to the consequences that would flow from the petitioners’ political

opinions). 

We find additional support for our conclusion in this court’s recent opinion

in Santamaria, 2008 WL 1787731, at *7-8. In that case, this court concluded that

the petitioner suffered past persecution on account of a protected ground where,
 We note that the IJ made factual findings regarding Ugaz’s ability to relocate within

3

Peru, or to seek citizenship in Italy, where her husband is a citizen. The BIA, however, made no

such findings. As our review is limited to the BIA’s decision, we conclude the proper avenue is

to remand for the government to address its burden.

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over a two-year period, FARC members (1) yanked her out of a car by her hair and

threatened her with death based on her political activities; (2) painted threatening

graffiti on her property explicitly referencing her political organization; (3)

tortured and killed a family groundskeeper as a penalty for not revealing her

whereabouts; and (4) beat, kidnaped, and threatened Santamaria with death before

she managed to escape. In reaching this conclusion, this court explained that

serious physical injury is not required to prove past persecution where the

petitioner demonstrates repeated threats combined with other forms of severe

mistreatment. Id. 

Here, the evidence compels a finding that Ugaz did in fact experience past

persecution on account of her political opinion. This entitles her to a rebuttable

presumption that she has a well-founded fear of future persecution. On remand,

the government bears the burden of rebutting this presumption. Accordingly, we 3

grant the petition and vacate and remand for further proceedings consistent with

this opinion. 

VACATED and REMANDED.