Diego Leon Guzman v. U.S. Attorney General, (11th Cir. 2006)

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILEDU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 21, 2006

N o . 05-15605

THOMAS K. KAHN

N o n - A r g u m e n t Calendar

CLERK

B IA Nos. A79-476-197 & A79-476-198

D IE G O LEON GUZMAN,

RUTH ELVIRA GUZMAN, et al.,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

P etitio n for Review of a Decision of the

B o ard of Immigration Appeals

(June 21, 2006)

B efo re BLACK, CARNES and PRYOR, Circuit Judges.

P E R CURIAM:

P etitio n ers Diego Guzman, Ruth Guzman, and Juan Guzman seek review of th e Board of Immigration Appeals' (BIA's) decision affirming the Immigration J u d g e 's (IJ's) order denying their application for withholding of removal and relief u n d er the Convention Against Torture (CAT).1 We deny their petition.

I. DISCUSSION A . Standard of Review W h en the BIA issues a decision, we review only that decision, except to the ex ten t the BIA expressly adopts the IJ's decision. Al Najjar v. Ashcroft, 257 F.3d 1 2 6 2 , 1284 (11th Cir. 2001). Here, the BIA adopted the IJ's decision and added a few comments of its own, so we review both decisions.

To the extent the decisions were based on a legal determination, review is de n o v o . Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001). Factual d eterm in atio n s are reviewed under the substantial evidence test, and we "must affirm the . . . decision if it is `supported by reasonable, substantial, and probative e v id e n c e on the record considered as a whole.'" Al Najjar, 257 F.3d at 1283-84 (citatio n omitted). To reverse fact findings, "we must find that the record not only s u p p o r ts reversal, but compels it." Mendoza v. U.S. Att'y Gen., 327 F.3d 1283, 1 2 8 7 (11th Cir. 2003). B . Withholding of Removal T o qualify for withholding of removal under the INA, an alien must show h is life or freedom would be threatened on account of race, religion, nationality, m em b ersh ip in a particular social group, or political opinion. 8U.S.C.

§ 1231(b)(3). "An alien bears the burden of demonstrating that he more-likelyth an -n o t would be persecuted or tortured upon his return to the country in q u e stio n ." Mendoza, 327 F.3d at 1287. If the alien establishes past persecution in h is country based on a protected ground, we presume his life or freedom would be th reaten ed upon return to his country unless the government shows by a p r e p o n d e r an c e of the evidence: (1) the country's conditions have changed such th at the applicant's life or freedom would no longer be threatened upon his rem o v al; or (2) the alien could avoid a future threat to his life or freedom by relo catin g to another part of the proposed country of removal, and it would be reaso n ab le to expect him to do so. Id. An alien who has not shown past p e r se cu tio n may still be entitled to withholding of removal if he can demonstrate a "w ell-fo u n d ed fear" of persecution on a protected ground if he returns to his co u n try. Id. To establish a well-founded fear, "an applicant must demonstrate that h is or her fear of persecution is subjectively genuine and objectively reasonable." A l Najjar, 257 F.3d at 1289. An alien cannot demonstrate he more likely than not w o u ld be persecuted on a protected ground if the IJ finds the alien could avoid a fu tu re threat by relocating to another part of his country. Mendoza, 327 F.3d at 1287.

We have noted persecution is "an `extreme concept' requiring `more than a f ew isolated incidents of verbal harassment or intimidation' and that `[m]ere h a r as sm e n t does not amount to persecution.'" Sepulveda v. United States Attorney G en era l, 401 F.3d 1226, 1231 (11th Cir. 2005) (quoting Gonzalez v. Reno, 212 F .3 d 1338, 1355 (11th Cir. 2000)) (alteration in original). Furthermore, "[n]ot all e x c ep tio n a l treatment is persecution." Gonzalez, 212 F.3d at 1355.

An alien's testimony, if credible, may be sufficient to sustain the burden of p ro o f for withholding of removal without corroboration. 8 C.F.R. § 208.16(b).

"The weaker the applicant's testimony, however, the greater the need for c o r ro b o r a tiv e evidence." Yang v. U.S. Att'y Gen., 418 F.3d 1198, 1201 (11th Cir. 2 0 0 5 ).

Substantial evidence supports the denial of withholding of removal.2 The reco rd provides substantial evidence to support the IJ's decision that Guzman did n o t suffer past persecution. Guzman's testimony outlined a series of National L ib eratio n Army (ELN) threats. While these threats may have had a sufficient n ex u s with Guzman's work as a political activist for the Colombian Liberal Party, th ey were mere threats, and do not rise to the level of past persecution.

Substantial evidence also supports the IJ's determination that Guzman did n o t have a well-founded fear of persecution. The IJ found Guzman presented in su fficien t evidence to establish it was more likely than not he would be p ersecu ted if he went back to Colombia. Guzman's testimony concerned four in cid en ts in which members of the ELN threatened him. Though Guzman's testim o n y about these incidents was consistent, it does not compel the conclusion h is limited reputation as a political campaigner would outlast his nine year absence f ro m Colombia. Guzman also stated he did not believe all of these threats were s er io u s . Furthermore, Ruth and Juan were able to live in Colombia for two years after Guzman left without being harmed by the ELN. Such evidence does not co m p el us to conclude that it is more likely than not Petitioners would be p ersecu ted if they returned to Colombia.

Further, Guzman did not support his testimony with enough corroborating e v id e n c e to meet the high burden for withholding of removal. Without such co rro b o ratin g evidence, and given the general weakness of Guzman's testimony, P etitio n ers could not show it was more likely than not they would be persecuted if retu rn ed to Colombia. C . CAT Relief To qualify for CAT relief, the applicant must show it is more likely than not h e will be tortured if returned to the country of removal. 8 C.F.R. § 208.16(c)(2).

Torture is defined as any act by which severe pain or suffering, w h eth er physical or mental, is intentionally inflicted on a p e r so n for such purposes as obtaining from him or her or a third p e r so n information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of h a v in g committed, or intimidating or coercing him or her or a th ird person, or for any reason based on discrimination of any k in d , when such pain or suffering is inflicted by or at the in stig atio n of or with the consent or acquiescence of a public o fficial or other person acting in an official capacity.

8 C.F.R. § 208.18(a)(1).

Guzman presented no evidence during his hearing or in his asylum ap p licatio n that he would be tortured upon his return to Colombia by a public o fficial or with a public official's acquiescence. Therefore, the denial of CAT relief is supported by substantial evidence.

II. CONCLUSION S u b stan tial evidence supports the BIA's and IJ's denial of withholding of rem o v al and CAT relief.

PETITION DENIED.

1 Petitioners' asylum claim was denied as untimely and Petitioners do not challenge that order.

2 We cannot consider the exhibits attached to Petitioners' brief. These exhibits are outside of the administrative record and are not subject to this Court's consideration.

8 U.S.C. 1252(b)(4)(A).

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