FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 16, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-12874

Non-Argument Calendar

________________________

BIA Nos. A95-537-445 & A95-537-474

FRANCISCO J. QUEVEDO, 

AURA M. GUEVARA, 

MARIA A. QUEVEDO, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of an Order of the

Board of Immigration Appeals

_________________________

 (November 16, 2005)

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
 Petitioner’s wife, Aura Marcella Guevara, and their minor daughter, Maria Alejandra

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Quevedo, are derivative applicants, relying on Petitioner’s applications. For convenience, we

refer to all three applicants as Petitioner. 

 Petitioner abandoned his claim for CAT relief by failing to raise any argument on this 2

issue in his petition for review. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th

Cir. 2005). 

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Petitioner Francisco J. Quevedo is a native and citizen of Colombia, S. A. 

An Immigration Judge (“IJ) denied his applications for asylum under the

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

and relief under the United Nations Convention Against Torture (“CAT”), INA §

208, 241, 8 U.S.C. § 1158, 1231, 8 C.F.R. § 208.16(c). The IJ did so on the 1

grounds that (1) Petitioner’s application for asylum was untimely, and (2)

alternatively, Petitioner’s testimony was not credible and failed to establish

eligibility for asylum and therefore withholding of removal and CAT protection. 

The Board of Immigration Appeals (“BIA”) affirmed the IJ’s order, concurring in

full with the IJ’s decision. 

Petitioner now seeks our review of the BIA’s decision, contending that 2

substantial evidence does not support the IJ’s adverse credibility finding or that

Petitioner failed to demonstrate eligibility for asylum or withholding of removal

through past persecution or a well-founded fear of future persecution on account of

a protected ground. In response, the Attorney General submits that we should not

review Petitioner’s asylum application because it is time-barred, and that
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substantial evidence supports the decisions denying Petitioner withholding of

removal. 

When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). In this case, the BIA specifically concurred and

agreed with the IJ’s decision with very few comments; hence, we review both the

BIA’s and the IJ’s decisions.

I.

An alien may not apply for asylum unless he “demonstrates by clear and

convincing evidence the application has been filed within 1 year after the date of

the alien’s arrival in the United States.” INA § 208(a)(2)(B), 8 U.S.C. §

1158(a)(2)(B). However, a late “application for asylum of an alien may be

considered . . . if the alien demonstrates to the satisfaction of the Attorney General

either the existence of changed circumstances which materially affect the

applicant’s eligibility for asylum or extraordinary circumstances relating to the

delay in filing an application within the period specified . . . .” INA

§ 208(a)(2)(D), 8 U.S.C. § 1158 (a)(2)(D). Notwithstanding the BIA’s authority to

consider an untimely asylum application in circumstances in which the applicant

meets one of the exceptions to the one-year deadline, “[n]o court shall have

jurisdiction to review any determination of the Attorney General under [section
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1158(a)(2)].” INA § 208(a)(3), 8 U.S.C. § 1158(a)(3). Section 1158(a)(3) divests

us of jurisdiction to review a determination that an asylum applicant filed an

untimely application and failed to establish changed or extraordinary

circumstances to excuse an untimely filing. Mendoza v. U.S. Att’y Gen., 327 F.3d

1283, 1287 (11th Cir.2003). 

In two recent decisions, we addressed the application of provisions in the

REAL ID Act of 2005 (“REAL ID Act”) , Pub.L. No. 109-13, 119 Stat. 231, to

judicial review. We determined that the REAL ID Act permitted judicial review of

all constitutional questions and issues of law and concluded that the jurisdiction

restructuring provisions of the Act are retroactively applicable to all pending

proceedings. Balogun v. U.S. Att’y Gen., Nos. 04-12507, 04-14496, man. op. at 7-

9 (11th Cir. Sept. 26, 2005). Also, we determined that, as the timeliness of an

application for asylum is not a constitutional claim or a question of law, the REAL

ID Act does not affect our jurisdiction over such issues. Botero v. U.S. Att’y Gen.

No. 04-16422, man. op. at 6-8 (11th Cir. Oct. 6, 2005). 

Pursuant to 8 U.S.C. § 1158(a)(3), we lack jurisdiction to review the denial

of Petitioner’s asylum application as time-barred. Accordingly, we dismiss this

part of the petition for review. We turn then to Petitioner’s case for withholding of

removal.

II.
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Petitioner’s application for withholding of removal was denied for

essentially the same reason that the IJ, in an alternative holding, denied Petitioner’s

application for asylum. The IJ stated clearly that she had concerns about

Petitioner’s credibility. She provided specific, cogent reasons for rejecting

Petitioner’s testimony as not credible, pointing out the inconsistencies between the

testimony, Petitioner’s I-589 application and submitted documents. We conclude

that substantial evidence supports the IJ’s credibility determination.

An alien is entitled to withholding of removal under the INA if he can show

that his life or freedom would be threatened in that country on account of race,

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

INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). The burden of proof is on the alien

to show eligibility for withholding of removal, through specific and credible

evidence of (1) a past threat to life or freedom through proof of past persecution on

account of race, religion, nationality, membership in a particular social group, or

political opinion (the five “covered grounds” for asylum) or (2) a future threat to

life or freedom if it is more likely than not that one of the covered grounds will

cause future persecution. 8 C.F.R. § 208.16(a), (b)(1), (2). A showing of past

persecution creates a presumption of a future threat, which the Attorney General

may rebut by showing a change in country conditions or by showing that the

applicant can reasonably relocate within the country. 8 C.F.R. § 208.16(b)(1)(i). 
6

Because the “more-likely-than-not” standard for mandatory withholding of

removal is more stringent that the “well-founded fear” standard for the

discretionary grant of asylum, “if an applicant is unable to meet the well-founded

fear standard, he is generally precluded from qualifying for either asylum or

withholding of [removal].” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232-33

(11th Cir. 2005) (quotation omitted). 

As noted above, substantial evidence supports the IJ’s conclusion, which the

BIA affirmed, that Petitioner failed to make out a credible case for asylum, i.e., he

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

persecution on account of any of the covered grounds. For this reason, he was not

eligible under the more stringent standard for withholding of removal. The

evidence shows the following alleged acts of persecution: (1) Petitioner, his father,

and his family received threatening phone calls for a failure to pay money to the

FARC, and (2) a vehicle and a boat owned by the ECO Foundation were destroyed

by guerilla organizations. However, Petitioner never filed a police report, and his

father only did so four years after the first threats occurred. Petitioner conceded

that he was never physically harmed by anyone in Colombia and that he never had

any direct contact with a member of the FARC or the National Liberation Army

(“ELN”). Persecution is an extreme concept, and the evidence in this case does not

compel the conclusion that these isolated, distant acts of harassment constituted
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past persecution. See Sepulveda, 401 F.3d at 1231. The IJ noted that Petitioner’s

subjective fear was undermined by his delay in filing for asylum. Furthermore, the

evidence shows that members of Petitioner’s family continue to reside in

Colombia, and that the ECO Foundation continues to operate in Colombia. 

Accordingly, Petitioner did not satisfy his burden of proof to establish eligibility. 

DISMISSED in part, DENIED in part.