                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                             FEBRUARY 27, 2007
                            No. 06-13576                     THOMAS K. KAHN
                        Non-Argument Calendar                     CLERK
                      ________________________

                 BIA Nos. A95-887-161 & A95-887-162

LILIANA MARIN,
RAFAEL MARIA ALMIRON GUIMILT,

                                                             Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                             Respondent.


                      ________________________

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

                           (February 27, 2007)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:
       Liliana Marin, and her husband, Rafael Maria Almiron Guimilt, through

counsel, seek review of the Board of Immigration Appeals’ (“BIA”) decision,

affirming the Immigration Judge’s (“IJ”) order denying their application for

asylum and withholding of removal under the Immigration and Nationality Act

(“INA”), after they overstayed the time permitted by the Visa Waiver Program.

Although the BIA also denied their request for United Nations Convention Against

Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

(“CAT”) relief, the petitioners do not challenge that denial on appeal, and the issue

is deemed abandoned. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1282 n.12 (11th

Cir. 2001). We DISMISS, in part, and DENY, in part.

                                     I. BACKGROUND

       Marin and Almiron-Guimilt, natives and citizens of Argentina, initially

entered the United States on 30 November 2000, under the Visa Waiver Program

(“VWP”),1 with authorization to remain until 29 February 2001. On 1 July 2002,

Marin filed an application for asylum and withholding of removal.2 She indicated


       1
         The VWP allows aliens from certain countries, applying as visitors for business or
pleasure, to be admitted for a period not to exceed 90 days. 8 C.F.R. §§ 212.1(i), 217.2. If
inadmissible or deportable after admission, the alien waives his right to a removal hearing,
except for a hearing on a claim to political asylum. 8 C.F.R. § 217.4(b). At the asylum hearing,
the IJ has jurisdiction to review eligibility for asylum and withholding or deferral of removal. 8
C.F.R. § 208.2(c)(1)(iv), (3)(i).
       2
        Marin made no indication in her application whether she intended to include her
husband. The IJ actually only denied Almiron-Guimilt’s application for asylum, finding that he
had not been included in his wife’s claims for withholding of removal or CAT relief. The BIA,
                                                2
that she was born on 22 January 1960, and that Almiron-Guimilt was born on 18

December 1949. Marin noted that she had worked as a beautician since 1976, and

been self-employed from 1992 until 2000. Marin asserted that they were seeking

asylum on the basis of political opinion, alleging that she had been threatened and

harassed based on her poor financial situation and the state of Argentina’s

economy because she lost her hairdressing business due to a recession. In addition,

Marin alleged that she feared age discrimination because nobody would hire a

person over the age of 30, and thus, she would be unable to pay her bills and would

starve to death. Marin further admitted that she was filing the application outside

of the first year of her arrival to the United States, but explained that she was doing

so because she “did not know what to do in [her] case.” AR at 108.

       The record additionally contained the 2002 and 2003 U.S. Department of

State Country Reports on Human Rights Practices for Argentina. The 2002 report

noted that the recession, which had begun in 1998, had deepened. As such, the

local currency lost 70% of its value, 21.5% of the population was unemployed, and

50% of citizens lived below the poverty line. The report further stated that

Argentina’s constitution and laws prohibited discrimination on several grounds,

including political opinion, economic position, and social class. Regardless,



however, affirmed the IJ’s decision and findings as if the requests for relief were attributable to
both Marin and Almiron-Guimilt.
                                                3
“women encountered economic discrimination and occupied a disproportionate

number of lower paying jobs.” Id. at 97. Additionally, minimum wage “was not

sufficient to provide a decent standard of living for a worker and family” and had

not increased since 1993. Id. at 100. The 2003 report essentially was the same as

in 2002, but with some improvements. Namely, the economy grew by 8%, and the

national minimum wage increased.

      On 19 August 2003, the Department of Homeland Security (“DHS”) issued

a Notice of Referral to Immigration Judge, noting that the petitioners had violated

the VWP and referring their case for an asylum-only hearing. Prior to their

hearing, the petitioners filed a motion for a continuance based on the fact that

Marin was the beneficiary of an alien labor certificate and because her employer

had complied with the Department of Labor’s regulations by attempting to recruit,

but failing to find, a qualified U.S. worker for a salon position. On 25 January

2005, Marin and Almiron-Guimilt appeared before the IJ with counsel for their

asylum-only hearing. The IJ first found that a continuance was inappropriate

because they wanted time to research adjustment of status law, an issue that the IJ

did not have jurisdiction to consider. The IJ explained that, when the petitioners

entered the United States under VWP, they signed a waiver and now were entitled

only to an asylum hearing. The IJ stated that it would consider Marin’s asylum and



                                           4
withholding of removal claims, but only asylum for Almiron-Guimilt because he

was not included on Marin’s withholding of removal application.

      At the hearing, Marin testified that she had been a barber and beautician for

30 years, and had owned a beauty salon for the last 8 to 9 years prior to leaving

Argentina. She was 45 years old, and had moved to the United States because, in

Argentina, once a person turns 30, it is “almost impossible to find [a] job.” Id. at

69-70. Marin further stated that Argentina was “badly mismanaged,” thus failing

to provide her with opportunities. Id. at 70. The IJ then questioned Marin

concerning her late filing, asking specifically why she had waited nearly two years

to file her asylum application. Marin responded that she did not know the law or

how to find it, and when the IJ asked whether she had sought help from somebody

who did know, Marin responded in the negative. The IJ denied their application.

      In the oral decision, the IJ found that Marin’s testimony was “nonspecific”

as to why she was unable to work after the age of 30 in Argentina, and further

failed to explain specifically what had happened to her business. Id. at 43.

Furthermore, the IJ was unable to discern what the petitioners’ protected ground

was because Marin failed to specify one, although the IJ assumed that she was

asserting protection on the basis of age and social group, namely, being over the

age of 30 and seeking employment. The IJ concluded that Marin failed to

demonstrate that those over the age of 30 were “similarly situated,” or that
                                           5
unemployment constituted persecution. Id. at 43. Thus, the IJ found, the

petitioners failed to show persecution or that they, or their family, had ever been

harmed in Argentina. In addition, the IJ concluded that their late filing was not

justified by extraordinary circumstances simply because Marin did not know the

law, and she had not made sufficient efforts to learn it. Thus, the IJ found, the

petitioners were statutorily ineligible for asylum. Moreover, the IJ concluded, they

failed to establish eligibility for asylum on the merits because reasonable people in

their situation would not fear returning to Argentina. The IJ further concluded that

Marin failed to present evidence establishing eligibility for withholding of removal

or CAT relief.3

       Marin and Almiron-Guimilt appealed the IJ’s decision to the BIA, asserting

that the IJ erred by: (1) denying their motion for a continuance based on Marin’s

pending application for a labor certificate; and (2) denying their asylum application

because they feared returning to Argentina based on political opinion and

membership in a particular social group. In Marin and Almiron-Guimilt’s brief

before the BIA, they first argued that the IJ erred by failing to make a credibility

determination. They contended that, because the IJ did not find Marin’s testimony


       3
         It appears that Marin never asserted grounds for CAT relief in the asylum application.
To the extent that she did, however, Marin and Almiron-Guimilt have not raised that issue on
appeal and thus, it is deemed abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005) (per curiam) (holding that, where an appellant fails to raise arguments
regarding an issue on appeal, that issue is deemed abandoned).
                                                 6
concerning past persecution incredible, it necessarily follows that they established

a reasonable probability of future persecution. Moreover, the petitioners argued,

the IJ incorrectly applied the “more likely than not standard” to their asylum

claims, when it should have been applying a “reasonable possibility.” Id. at 13

(citation omitted). The petitioners next asserted that the gaps contained in the

transcript resulted in substantial prejudice, particularly in light of the fact that U.S.

immigration law had become more restrictive since the time when they entered,

and due to those changes, they could be barred from re-entering the United States

for 3 to 10 years if they were deported. As a result, the petitioners requested a new

hearing before the IJ to clarify the record. Marin further argued that they were not

statutorily barred from filing asylum claims pursuant to due process and public

policy, and based on extraordinary circumstances, namely, retroactive changes in

U.S. immigration law occurring after they had entered the country.

      The BIA adopted and affirmed the IJ’s decision, and denied the Marin and

Almiron-Guimilt’s asylum application as untimely. The BIA further found no

error in the IJ’s conclusion that the petitioners failed to demonstrate a well-founded

fear of persecution upon return to Argentina based on membership in the social

group of being over the age of 30 and seeking employment. Moreover, the BIA

concluded, the record did not support a finding that Marin and Almiron-Guimilt

would more likely than not be tortured if they returned to Argentina. In addition,
                                            7
the BIA stated that the IJ had jurisdiction only to consider the asylum and

withholding of removal claims, and thus, declined to consider their adjustment of

status claim. Finally, regarding the several instances of indiscernible statements at

the hearing and contained in the IJ’s oral decision, the BIA concluded “that the

record [was] sufficiently clear when considered in conjunction with the [IJ’s]

supporting written order.” Id. at 3.

                                   II. DISCUSSION

      On appeal, the petitioners argue that the untimeliness of their asylum

application was excused by extraordinary circumstances, specifically, changes in

U.S. immigration law. The petitioners further argue that they established eligibility

for asylum and withholding of removal based on persecution on account of their

social group, namely, being over the age of 30 and seeking employment. They

also request that this case be remanded for further proceedings because certain

portions of the record are indiscernible. Finally, the petitioners raise an issue with

the BIA’s finding that the IJ did not have jurisdiction to consider their pending

labor certification application.

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

extent the BIA expressly adopts the IJ’s decision.” Chacon-Botero v. U.S. Att’y

Gen., 427 F.3d 954, 956 (11th Cir. 2005) (per curiam) (citation omitted). “Insofar

as the BIA adopts the IJ’s reasoning, we will review the IJ’s decision as well.” Id.
                                           8
(citation omitted). Here, the BIA expressly adopted the IJ’s reasoning, thus, we

review the IJ’s decision as well.

       An alien can apply for asylum if he “demonstrates by clear and convincing

evidence that the application has been filed within 1 year after the date of alien’s

arrival in the United States.” INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B). An

application filed after one year 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 the application within the period

specified . . . .” INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). Nevertheless,

section 1158(a)(3) provides, “No court shall have jurisdiction to review any

determination of the Attorney General under paragraph (2).” INA § 208(a)(3),

8 U.S.C. § 1158(a)(3). This jurisdiction-stripping provision remains in effect after

the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 310 (2005).

Chacon-Botero, 427 F.3d at 957.4 Therefore, under current precedent, § 1158(a)(3)

divests us of jurisdiction to review the BIA’s determinations that asylum applicants

filed an untimely application or failed to establish changed or extraordinary


       4
         Though the petitioners’ case commenced before the enactment of the REAL ID Act of
2005, the jurisdictional provisions apply to their case. See REAL ID Act of 2005, § 106(b), Pub.
L. No. 109-13, 119 Stat. 231, 311 (stating that the jurisdictional provisions of § 1252(a)(2)(D)
“shall take effect upon the date of the enactment” and shall apply to any case “in which the final
administrative order of removal . . . was issued before, on, or after the date of the enactment.”).
                                                  9
circumstances to excuse their untimely filing. Fahim v. U.S. Att’y Gen., 278 F.3d

1216, 1217-18 (11th Cir. 2002) (per curiam).

      As a result, we lack jurisdiction to review the IJ’s determination that the

petitioners failed to demonstrate that they filed their petition for asylum within one

year of arriving in the United States or that changed circumstances existed to

justify their untimely filing. See id.; 8 U.S.C. § 1158(a)(3). Accordingly, we

dismiss the Marin and Almiron-Guimilt’s petition for review with regard to their

asylum claim.

      To the extent that the IJ’s and the BIA’s decisions were based on a legal

determination, review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244,

1247-48 (11th Cir. 2001). The IJ’s factual determinations are reviewed under the

substantial evidence test, and “we must affirm the BIA’s [and the IJ’s] decision if it

is supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Al Najjar, 257 F.3d at 1283-84 (citations omitted). “To

reverse the IJ’s fact findings, we must find 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) (citation omitted). “An alien seeking withholding of removal under the

INA must show that his life or freedom would [more likely than not] be threatened

[upon return to his country] because of [his] race, religion, nationality, membership

in a particular social group, or political opinion.” Id.; see also INA § 241(b)(3),
                                          10
8 U.S.C. § 1231(b)(3); 8 C.F.R. § 208.16(b). “An alien bears the burden of

demonstrating that he more-likely-than-not would be persecuted . . . upon his

return to the country in question.” Mendoza, 327 F.3d at 1287 (citation omitted).

Neither the INA nor the regulations define “persecution,” but we have indicated

that “persecution 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.” Sepulveda, 401 F.3d at 1231 (citation and internal

quotations omitted). In the context of employment discrimination, we found that

discrimination that “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) (citation omitted). Thus, mere “termination from

[one’s] job and [the] inability to find another . . . is [ ] insufficient to show past

persecution.” Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1291 (11th Cir. 2006) (per

curiam), pet. for cert. filed, (Sept. 12, 2006) (No. 06-367).

       Upon reviewing the record, substantial evidence supports the IJ’s and the

BIA’s findings that Marin and Almiron-Guimilt were not entitled to withholding of

removal under the INA. Marin and Almiron-Guimilt failed to demonstrate a

deprivation of earning a livelihood, and mere unemployment does not rise to the

level of persecution. See Barreto-Claro, 275 F.3d at 1340; Zheng, 451 F.3d at

1291. Moreover, they did not provide specific information concerning the
                                            11
circumstances surrounding the loss of Marin’s business. Thus, Marin and

Almiron-Guimilt’s claim for withholding of removal necessarily fails.

Accordingly, we deny the petition with regards to this claim.

      Review of constitutional challenges is de novo. Lonyem v. U.S. Att’y Gen.,

352 F.3d 1338, 1341 (11th Cir. 2003) (per curiam) (citation omitted). “[T]he Fifth

Amendment entitles aliens to due process of law in deportation proceedings.”

Reno v. Flores, 507 U.S. 292, 306, 113 S. Ct. 1439, 1449 (1993) (citation omitted).

While “failure to receive relief that is purely discretionary in nature does not

amount to a deprivation of a liberty interest,” Mejia Rodriguez v. Reno, 178 F.3d

1139, 1146 (11th Cir. 1999) (citation omitted), aliens do have a protected interest

in petitioning for asylum, Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1038 (5th

Cir. Unit B 1982). “Due process is satisfied only by a full and fair hearing.”

Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987) (citation omitted). To

prevail on a due process challenge, however, an alien must show substantial

prejudice, that is, that the outcome would have differed, had the due process

violation not occurred. Patel v. U.S. Att’y Gen., 334 F.3d 1259, 1263 (11th Cir.

2003) (citation omitted).

      A careful review of the record demonstrates that the Marin and Almiron-

Guimilt’s claim that they were denied due process is without merit. Despite the

fact that the hearing transcript and the IJ’s oral decision contain indiscernible
                                           12
portions, Marin and Almiron-Guilmilt have failed to demonstrate that they were

substantially prejudiced by any gaps in the record. See id. Marin and Almiron-

Guilmilt make only a blanket assertion that omitted testimony would demonstrate

substantial prejudice. They have failed, however, to explain what that testimony

was in an effort to demonstrate substantial prejudice, that is, how their outcome

would have differed. See id. Accordingly, we deny their petition with respect to

this claim.

      Additionally, although Marin and Almiron-Guimilt’s opening brief’s

statement of issues and summary of the argument sections mention their contention

that the BIA abused its discretion by ignoring their eligibility for adjustment of

status under the pending application for labor certification, they appear to concede

that “visa issues [regarding status adjustments] are not issues before this Court.”

Petitioners Br. at 10. Concluding that petitioners’ adjustment of status argument is

not fairly presented, we decline to address it. Accordingly, we deny their petition

with respect to this issue as well.

                                 III. CONCLUSION

      Pursuant to the jurisdiction-stripping provision of 8 U.S.C. § 1158(a)(3), we

lack jurisdiction to review the IJ’s determination that Marin and Almiron-Guimilt’s

asylum application was untimely. Moreover, the petitioners failed to demonstrate

any persecution, and thus, failed to demonstrate eligibility for withholding of
                                          13
removal. Also, because the petitioners failed to demonstrate substantial prejudice

resulting from the indiscernible portions of the record, they have not established a

due process violation. Finally, we decline to entertain petitioners’ adjustment of

status argument. Accordingly, Marin and Almiron-Guimilt’s petition is

DISMISSED in part, DENIED in part.




                                          14
