                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                         NOVEMBER 5, 2010
                            No. 10-10412
                                                             JOHN LEY
                        Non-Argument Calendar                 CLERK
                      ________________________

                        Agency No. A088-097-348


JOSE GREGORIO MANZELLA-OLIVEROS,
SADIE MABEL MADURO DE MANZELLA,

                                                     lllllllllllllllllllllPetitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                    lllllllllllllllllllllRespondent.

                       _______________________

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

                           (November 5, 2010)

Before HULL, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:
      Jose Gregorio Manzella-Oliveros and his wife, Sadie Mabel Maduro de

Manzella, both natives and citizens of Venezuela, petition for review of the final

order of the Board of Immigration Appeals (“BIA”) affirming the Immigration

Judge’s (“IJ”) denial of Manzella-Oliveros’s application for asylum under the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158(a), withholding of

removal, 8 U.S.C. § 1231(b)(3), and withholding of removal under the United Nations

Convention Against Torture (“CAT”), 8 C.F.R. § 208.16(c). Manzella-Oliveros

argues on appeal that: (1) the BIA and the IJ erred in denying him withholding of

removal because the IJ erred by concluding that he had not established the required

nexus between his individualized fear of persecution and his political opinion, it is

more likely than not that he will be persecuted as a result of being deported from the

United States, he established that he was a member of a protected group of

individuals who had been subject to a pattern or practice of persecution by Chavez’s

government; and (2) the BIA and the IJ erred in finding that he did not establish that

he was eligible for withholding of removal under CAT since his credible testimony

and supporting documentary evidence were sufficient to establish that it was more




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likely than not that he would suffer torture at the hands of the Venezuelan

government or with its acquiescence. After thorough review, we deny the petition.1

       We review the decision of the BIA, and, to the extent the BIA expressly adopts

the opinion of the IJ, we will also review the adopted portion of the IJ’s opinion.

Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). Here,

although the BIA issued its own opinion, it expressly agreed with the IJ’s

determinations and adopted the IJ’s reasoning.              Therefore, we will review the

decisions of both the BIA and the IJ.




       1
         As an initial matter, we deny Maduro de Manzella’s petition for review because she was
a derivative of Manzella-Oliveros’s application. While the asylum statute explicitly creates
derivative rights for a petitioner’s spouse, 8 U.S.C. § 1158(b)(3)(A), we have held that there are
no derivative benefits associated with a grant of withholding of removal because, unlike the
asylum statute, the withholding statute does not mention derivative rights. Delgado v. U.S. Att’y
Gen., 487 F.3d 855, 862 (11th Cir. 2007). We have not yet made a similar holding in a published
opinion with respect to derivative benefits under CAT, but the CAT regulation also does not
mention derivative rights, signifying that a derivative claim is likewise foreclosed under CAT. 8
C.F.R. § 208.16(c)(2), (4); see also Oforji v. Ashcroft, 354 F.3d 609, 615 (7th Cir. 2003)
(Seventh Circuit case holding that the CAT regulation “seemingly forecloses” a derivative
claim).

        In this petition, Manzella-Oliveros abandoned any argument regarding his application for
asylum because he did not argue it on appeal. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005). Moreover, even if he had preserved this argument, we lack
jurisdiction to consider the BIA’s determination that the application was untimely. See 8 U.S.C.
§ 1158(a)(3) (precluding this Court from reviewing the BIA’s determination that an asylum
application is time-barred); Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th Cir.
2007). Therefore, only Manzella-Oliveros’s claims for withholding of removal and CAT relief
are before us, and the statutes and regulations covering withholding of removal and CAT relief
do not confer derivative benefits on an applicant’s spouse.

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      We review de novo the BIA’s conclusions of law, but we review factual

findings under the substantial evidence test. Id. We review the BIA’s interpretation

of the applicable statutes de novo, but we defer to the BIA’s interpretation if it is

reasonable. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Our review

for substantial evidence is highly deferential. Kazemzadeh, 577 F.3d at 1351. When

conducting that review, 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,”

and will reverse findings of fact made by the BIA or the IJ only when the record

compels a reversal. Id. (quotation omitted). “[T]he mere fact that the record may

support a contrary conclusion is not enough to justify a reversal of the administrative

findings.” Id. (quotation omitted).

      First, we reject Manzella-Oliveros’s claim that the BIA and IJ erred in denying

him withholding of removal. An individual may qualify for withholding of removal

to a particular country if he demonstrates that his “life or freedom would be

threatened in that country” on account of, among other protected grounds, his

political opinion. 8 U.S.C. § 1231(b)(3)(A). An applicant may also demonstrate his

eligibility based on “a theory of imputed political opinion if he shows that the

persecutor falsely attributed an opinion to him, and then persecuted him because of

that mistaken belief about his views.” Al Najjar, 257 F.3d at 1289 (quotations and

                                          4
alterations omitted). “The alien bears the burden of demonstrating that it is more

likely than not [that he] will be persecuted or tortured upon being returned to [his]

country.” Sepulveda, 401 F.3d at 1232 (quotation omitted). If an applicant for

withholding of removal is found to have suffered past persecution in the proposed

country of removal on account of a protected ground, it is presumed that his life or

freedom would be threatened in the future. 8 C.F.R. § 1208.16(b)(1).

      An applicant who has not suffered past persecution may demonstrate that his

life or freedom would be threatened in a country if he can establish that it is more

likely than not that he would be persecuted in that country on account of a protected

ground. 8 C.F.R. § 1208.16(b)(2). The threat to life or freedom requirement may be

met by showing either (1) that he would likely be singled out individually for

persecution on account of a protected ground if returned to the country of removal,

or (2) that there is a pattern or practice of persecution of a group of persons similarly

situated to him on account of a protected ground, and that he is included in, or

identified with, the persecuted group such that it is more likely than not that his life

or freedom would be threatened if he returned. Id.

      We have noted that “[n]ot all exceptional treatment is persecution.” Gonzalez

v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000). We explained that persecution is an

“extreme concept, requiring more than a few isolated incidents of verbal harassment

                                           5
or intimidation, and that mere harassment does not amount to persecution.”

Sepulveda, 401 F.3d at 1231 (quotations and alteration omitted). When assessing

whether a petitioner has established past persecution, we consider the cumulative

impact of the mistreatment he suffered. Mejia v. U.S. Att’y Gen., 498 F.3d 1253,

1258 (11th Cir. 2007).

      We have held that “employment discrimination which stops short of depriving

an individual of a means of earning a living does not constitute persecution.”

Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1340 (11th Cir. 2001) (holding that

although petitioner suffered employment discrimination, lost his job as a taxi driver,

and was forced to take menial work, he was not persecuted). Therefore, a petitioner’s

termination from his employment and later inability to find a job is insufficient to

compel a finding of persecution. See Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1291

(11th Cir. 2006) (concluding that petitioner’s job termination did not rise to the level

of persecution where petitioner failed to show how long he searched for a

replacement job in the same city and provided no evidence demonstrating that he

sought employment after relocating to another city, such that he failed to show that

“he was deprived of all means of earning a living”).

      Because Congress has not defined what constitutes a pattern or practice of

persecution, we will defer to the BIA’s definition of this term as long as it is not

                                           6
unreasonable, i.e., arbitrary, capricious, or clearly contrary to law. See Castillo-Arias

v. U.S. Att’y Gen., 446 F.3d 1190, 1196 (11th Cir. 2006) (deferring to the BIA’s

definition of what constitutes a “particular social group”); see also Chevron, U.S.A.,

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). The BIA has defined a

pattern or practice of persecution as persecution of a group that is both “systemic and

pervasive.” In re A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005) (citing Lie v. Ashcroft,

396 F.3d 530, 537 (3d Cir. 2005)).2 When considering whether the applicant has

established a pattern or practice of persecution in his home country, the BIA is

entitled to “rely heavily on” the State Department’s country reports. Kazemzadeh,

577 F.3d at 1354 (quotation omitted).

       In this case, the record does not compel the conclusion that Manzella-Oliveros

is eligible for withholding of removal. Any economic hardship he may have suffered

before leaving Venezuela was not sufficiently severe to amount to persecution. He

also has not shown that he would be individually targeted for persecution based on



       2
           In addition to the Third Circuit, the First, Seventh, Eighth, Ninth, and Tenth Circuits
have all applied the same “systemic and pervasive” test to determine whether a pattern or
practice of persecution exits. See, e.g., Sugiarto v. Holder, 586 F.3d 90, 97 (1st Cir. 2009);
Raghunathan v. Holder, 604 F.3d 371, 377 (7th Cir. 2010); Tolego v. Gonzales, 452 F.3d 763,
766 (8th Cir. 2006); Wakkary v. Holder, 558 F.3d 1049, 1061 (9th Cir. 2009); Woldemeskel v.
INS, 257 F.3d 1185, 1191 (10th Cir. 2001). Moreover, although the Second Circuit did seek
clarification as to how the standard might be reliably applied in “particular instances,” it noted
that the standard appeared to be reasonable. Mufied v. Mukasey, 508 F.3d 88, 92-93 (2d Cir.
2007).

                                                 7
his political opinion. Further, because it does not appear that the “systemic and

pervasive” standard announced by the BIA in In re A-M- is unreasonable, we will

apply it when evaluating whether Manzella-Oliveros established a pattern or practice

of persecution in Venezuela. However, Manzella-Oliveros did not establish that the

persecution of Venezuelan President Hugo Chavez’s detractors was sufficiently

systemic and pervasive to establish a pattern or practice of persecution.

      We also find no merit in Manzella-Oliveros’s claim that the BIA and the IJ

erred in finding that he did not establish that he was eligible for withholding of

removal under CAT. To qualify for CAT relief, an applicant carries the burden of

proof to “establish that it is more likely than not that he [] would be tortured if

removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). Torture is

the intentional infliction of “severe pain or suffering, whether physical or mental.”

8 C.F.R. § 208.18(a)(1). The regulations require the applicant to demonstrate that the

torture would be inflicted “by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity.”

Sanchez Jimenez, 492 F.3d at 1239 (quoting 8 C.F.R. § 208.18(a)(1)).

      An alien who fails to satisfy the statutory requirements for withholding of

removal under the INA rarely qualifies for CAT relief. Compare 8 C.F.R. §

1208.16(b)(2) (“An applicant [seeking withholding of removal] . . . may demonstrate

                                          8
that his or her life or freedom would be threatened in the future in a country if he or

she can establish that it is more likely than not that he or she would be persecuted.”),

with id. § 1208.16(c)(2) (“The burden of proof is on the applicant for withholding of

removal under [the CAT] to establish that it is more likely than not that he or she

would be tortured if removed to the proposed country of removal.”). Because, as

discussed above, the record does not compel a finding that Manzella-Oliveros is more

likely than not to be persecuted in Venezuela, it also does not compel the conclusion

that he is likely to suffer torture covered by the CAT. Cf. id. § 1208.18(a)(2)

(“Torture is an extreme form of cruel and inhuman treatment and does not include

lesser forms of cruel, inhuman or degrading treatment or punishment that do not

amount to torture.”). Therefore, the IJ and the BIA properly denied Manzella-

Oliveros relief.

      PETITION DENIED.




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