[DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                     MAY 28, 2008
                                                  THOMAS K. KAHN
                            No. 07-14514
                                                       CLERK
                        Non-Argument Calendar
                      ________________________

                          BIA No. A79-489-455

HARY BEDJE METAYER,


                                                        Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                        Respondent.


                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                            (May 28, 2008)

Before TJOFLAT, ANDERSON and PRYOR, Circuit Judges.

PER CURIAM:
      Hary Bedje Metayer is a native and citizen of Haiti. An Immigration Judge

(“IJ”) denied his application for asylum and withholding of removal under the

Immigration and Nationality Act (“INA”) §§ 208(a), 241(b)(3), and under Article 3

of the U. N. Convention Against Torture (“CAT”), and ordered his removal. The

Board of Immigration Appeals (“BIA”) thereafter affirmed the IJ’s decision.

Metayer, proceeding pro se, now seeks review of the BIA’s decision.

      In his brief, Metayer advances four arguments:

      First, he satisfied his burden of proof for political asylum by showing (1) an

imputed political opinion due to his uncle’s membership in the Organization for

the People in Trouble (“OPL”); (2) he was a member of the “Reassembling of the

Young Friends of Jean Rabel” (“RJAJ”), a group that actively denounced support

of the Lavalas; and (3) he made anti-Lavalas statements on the radio and partook in

a demonstration protesting the incarceration of RJAJ supporters. He asserts that

the Lavalas made constant threats against him which, taken in the aggregate, rose

to the level of persecution and established his well-founded fear of future

persecution. He contends that the Lavalas has the capability of punishing him if

returned to Haiti, and future persecution is therefore likely.

      Second, he satisfied his burden of proof for withholding of removal under

the INA and the CAT, as he will more likely than not be persecuted upon return to

Haiti based on the Lavalas’s pattern of persecuting individuals with whom Metayer
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is similarly situated, that is, those who are affiliated with well-known and

outspoken journalists.

      Third, the IJ erred in relying on Metayer’s asylum interview as part of her

basis for finding Metayer not credible.

      Fourth, he was tortured, as defined under the CAT, when he was beaten on

more than one occasion, and that he cannot safely relocate within his own country.

      Absent a cognizable exception, we lack jurisdiction to consider arguments

presented in a petition for review that were not presented to the BIA on appeal.

Amaya-Artunduaga v. U.S. Att’y Gen., 

, 1250 (11th Cir. 2006)

(holding that petitioner failed to exhaust his administrative remedies where he did

not raise argument in notice of appeal or brief before the BIA). The record before

us reveals that Metayer failed to present to the BIA his arguments that the IJ erred

(1) in denying him withholding of removal under the INA and the CAT, (2) in

relying on his asylum interview in making her credibility determination, and (3) in

rejecting his testimony that he will more likely than not be persecuted if returned to

Haiti because of the Lavalas’ “pattern or practice” of persecuting individuals with

whom he is similarly situated. We therefore dismiss Metayer’s petition as to these

claims. What remains is Metayer’s claim that he should have been granted asylum.

      We review the BIA’s decision as the final agency determination unless the

BIA has expressly adopted the IJ’s decision. In that case, we review the IJ’s
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decision as well. Ruiz v. Gonzales, 

, 765 (11th Cir. 2007) (internal

citations omitted). Here, because the BIA expressly adopted the IJ’s decision as

the final agency determination, without opinion, we review the IJ’s decision.

      “A factual determination by the [IJ] that an alien is statutorily ineligible for

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

v. Ashcroft, 

, 1283 (11th Cir. 2001) (internal quotations and

citations omitted). “This means we must affirm the [IJ’s] decision if it is supported

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

whole.” 

(internal quotations omitted). Accordingly, “[t]o conclude the

BIA’s decision should be reversed, we must find that the record not only supports

the conclusion, but compels it.” 

(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
      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.

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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 

.

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

must prove (1) that [he] was persecuted, and (2) that the persecution was on

account of a protected ground.” Silva v. U.S. Atty. Gen., 

, 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.” 

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., 

, 1231 (11th Cir. 2005).

         “[P]ersecution 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.” 

(internal quotations

omitted). Cumulative escalating physical assaults and verbal threats, however,

may qualify as persecution. See Mejia v. U.S. Atty. Gen., 

, 1257-58

(11th Cir. 2007); Delgado v. U.S. Atty. Gen., 

, 861-62 (11th Cir.

2007).



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        An IJ’s credibility determination is also reviewed under the substantial

evidence standard. Chen v. U.S. Att’y Gen., 

, 1230-31 (11th Cir.

2006). “[A]n adverse credibility determination alone may be sufficient to support

the denial of an asylum application.” Forgue v. U.S. Att’y Gen., 

,

1287 (11th Cir. 2005). An adverse credibility determination does not however

relieve the IJ of her duty to consider other evidence presented by the asylum

applicant. 

applicant “produces other evidence of persecution. . .the IJ

must consider that evidence. . . .” 

supports the findings of the IJ, affirmed by the BIA,

that Metayer was not credible and failed to meet his burden of proof to establish

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

political opinion. Because the record does not compel a contrary finding, the

BIA’s decision denying Metayer asylum is due to be affirmed.

      PETITION DISMISSED, in part, DENIED, in part.




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