           Case: 17-10993   Date Filed: 12/04/2018   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-10993
                        Non-Argument Calendar
                      ________________________

                       Agency No. A089-346-989



ALEJANDRO DAYAN MATHEUS,

                                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

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

                            (December 4, 2018)




Before WILSON, EDMONDSON, and JULIE CARNES, Circuit Judges.
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PER CURIAM:



      Petitioner Alejandro Matheus, a native and citizen of Venezuela, petitions

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

decision of the Immigration Judge (“IJ”). The IJ concluded that Petitioner was

removable under Immigration and Nationality Act (“INA”) § 237(a)(4)(A)(i), 8

U.S.C. § 1227(a)(4)(A)(i). The IJ also denied Petitioner’s application for deferral

of removal under the United Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16. No

reversible error has been shown; we deny the petition.



I.    Background



      Petitioner entered the United States in 2002 on a student’s visa. Petitioner

later married a United States citizen and, in 2009, adjusted his status to that of a

lawful permanent resident.

      In 2011, Petitioner pleaded guilty to one count of attempt to export firearms

and ammunition designated as defense articles contrary to law, in violation of 18

U.S.C. § 554. As part of his plea, Petitioner admitted these things: (1) that he


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attempted to ship to Venezuela packages containing rifles, handguns, and

ammunition; (2) that he knew he could not import legally firearms to Venezuela;

and (3) that he knew he was committing a crime.

       In 2015, the Department of Homeland Security (“DHS”) served Petitioner

with a notice to appear, charging him as removable on several grounds.1 In

pertinent part, DHS alleged that Petitioner was removable under INA

§ 237(a)(4)(A)(i), which makes removable “[a]ny alien who has engaged . . . in . . .

any activity . . . to violate or evade any law prohibiting the export from the United

States of goods, technology, or sensitive information.” 8 U.S.C.

§ 1227(a)(4)(A)(i).

       Petitioner denied all charges of removability and moved to terminate the

removal proceedings. After a hearing, the IJ concluded that Petitioner was

removable on all charges, including under section 237(a)(4)(A)(i). Petitioner then

sought, among other things, protection under the CAT. 2 After a second hearing,

the IJ denied Petitioner CAT relief and ordered him removed to Venezuela.




1
  The only ground for removal before us on appeal is Petitioner’s removability under INA
§ 237(a)(4)(A)(i).

2
  Petition also filed applications for asylum, withholding of removal, adjustment of status, and
for waiver of grounds of inadmissibility. The denial of these forms of relief are not before us in
this appeal.
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      The BIA dismissed Petitioner’s appeal. The BIA first determined that

Petitioner was removable under section 237(a)(4)(A)(i). In doing so, the BIA

explained that a criminal conviction was unnecessary to establish removability

under section 237(a)(4)(A)(i). Nevertheless, the BIA said that -- given the

elements required to sustain a conviction under 18 U.S.C. § 554, and given

Petitioner’s testimony at the IJ hearing about his criminal conduct -- Petitioner’s

conviction supported the charge of removal in this case. The BIA also concluded

that Petitioner had failed to demonstrate eligibility for CAT relief.



II.   Standard of Review



      We review only the decision of the BIA, except to the extent that the BIA

adopts expressly the IJ’s decision. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,

1350 (11th Cir. 2009).

      We review de novo the BIA’s conclusions of law. Id. We review fact

determinations under the “highly deferential substantial evidence test” whereby we

“must affirm the BIA’s decision if it is ‘supported by reasonable, substantial, and

probative evidence on the record considered as a whole.’” Adefemi v. Ashcroft,

386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We “view the record evidence

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in the light most favorable to the agency’s decision and draw all reasonable

inferences in favor of that decision.” Id. at 1027. To reverse a fact determination,

we must conclude “that the record not only supports reversal, but compels it.”

Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). “[T]hat the

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

administrative findings.” Adefemi, 386 F.3d at 1027.



III.   Discussion



                                          A.



       On appeal, Petitioner first argues that the BIA erred in not applying the

categorical approach in determining whether Petitioner’s conviction under 18

U.S.C. § 554 satisfied the removal provisions under INA § 237(a)(4)(A)(i).

       We recognize that -- under certain circumstances -- application of the

categorical approach is proper in determining whether an alien is removable under

the INA. See, e.g., Mellouli v. Lynch, 135 S. Ct. 1980, 1986-88 (2015) (applying

the categorical approach in deciding whether an alien who pleaded guilty to

misdemeanor possession of drug paraphernalia had been “convicted” of a

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controlled substance offense for purposes of removal under 8 U.S.C.

§ 1227(a)(2)(B)(i)); Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (applying the

categorical approach to determine whether an alien had been convicted of an

aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)); Fajardo v. U.S.

Att’y Gen., 659 F.3d 1303, 1308-09 (11th Cir. 2011) (explaining that application

of the categorical approach is proper for determining whether an alien was

“convicted of . . . a crime involving moral turpitude” under 8 U.S.C.

§ 1182(a)(2)(A)(i)(l)). The Supreme Court has stressed that the categorical

approach -- which “looks to the statutory definition of the offense of conviction,

not to the particulars of an alien’s behavior” -- is appropriate when “Congress [has]

predicated deportation ‘on convictions, not conduct . . . .’” See Mellouli, 135 S.

Ct. at 1986; Moncrieffe, 569 U.S. at 191 (explaining that the “categorical approach

has a long pedigree in our Nation’s immigration law” because “the INA asks what

offense the noncitizen was ‘convicted’ of, . . . not what acts he committed.

‘[C]onviction’ is ‘the relevant statutory hook.’”).

      Unlike the immigration statutes involved in Mellouli and Moncrieffe,

however, section 237(a)(4)(A)(i) contains no “conviction” language. Instead, the

plain statutory language provides that an alien is removable if he “has engaged” in

activity that would violate or evade United States export laws. The BIA has

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interpreted this statutory language as requiring no criminal conviction and, instead,

as requiring “only engagement, past or present, in any activity in violation of a law

. . ..” In re Luis-Rodriguez, 22 I.&N. Dec. 747, 756 (BIA 1999) (addressing

removal under an earlier codification of the statute at 8 U.S.C.

§ 1251(a)(4)(A)(i))).

      Because a conviction is not a required element for removal under section

237(a)(4)(A)(i), we reject Petitioner’s argument that the BIA erred in failing to

apply the categorical approach. The BIA considered properly the conduct

underlying Petitioner’s conviction in determining whether Petitioner had

“engaged” in acts within the scope of section 237(a)(4)(A)(i).

      Moreover, the record supports the BIA’s determination that Petitioner was

removable under section 237(a)(4)(A)(i) for having engaged in conduct that

violated United States export laws. Among other things, Petitioner testified before

the IJ that he lied intentionally about the contents of the packages and that he knew

that he was shipping the guns and ammunition to Venezuela in violation of United

States law.




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                                            B.



      Petitioner next argues that -- even if he is removable -- he is entitled to

deferral of removal under the CAT. To establish eligibility for CAT relief, an

applicant bears the burden of proving “by objective evidence that it is ‘more likely

than not’ that he or she will be tortured if removed.” Cadet v. Bulger, 377 F.3d

1173, 1180 (11th Cir. 2004). To satisfy his burden of proof, a petitioner must

establish that he “would be individually and intentionally singled out for harsh

treatment.” Jean-Pierre v. U.S. Att’y Gen., 500 F.3d 1315, 1324 (11th Cir. 2007)

(emphasis in original). “[E]vidence of generalized mistreatment and some isolated

instances of torture” are not enough. Id.

      In support of his application for CAT relief, Petitioner testified that he

started a blog in 2007 that served as a platform for people to protest and to criticize

the Venezuelan government. Petitioner refused requests by the Venezuelan

military to censor the anti-government comments being posted on his blog. As a

result -- sometime in 2009 -- Venezuelan military officers threatened Petitioner,

telling Petitioner that they were going to beat him with sticks, throw him into a

dark cell, kick him, and use electric shock on him.




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      The record supports the BIA’s determination that Petitioner failed to satisfy

his burden of establishing eligibility for CAT relief. Contrary to Petitioner’s

contention on appeal, the BIA addressed sufficiently the issues raised before it on

appeal and provided reasoned justifications for its decision, allowing for

meaningful appellate review. In denying Petitioner CAT relief, the BIA

acknowledged -- citing to a State Department Country Report and other

documentation attached to Petitioner’s application for relief -- the existence in

Venezuela of instances of politically-motivated torture, other human rights

violations, and of ongoing anti-government protests and retaliation by pro-

government forces. Nevertheless, the BIA agreed with the IJ’s determination that

Petitioner had failed to demonstrate that he more likely than not would be singled

out for torture if he returned to Venezuela. In particular, the BIA noted that

Petitioner -- after starting his blog in 2007 -- traveled to Venezuela several times in

2008 and in late 2009 without incident. The BIA also determined that Petitioner

had presented no evidence that government officials were still looking for him.

Considering the record as a whole, we are not compelled to reverse the BIA’s

determination.

      PETITION DENIED.




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