                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS                 April 1, 2011
                              FOR THE TENTH CIRCUIT             Elisabeth A. Shumaker
                                                                    Clerk of Court


    NEFI JAVIER VALERO-
    AVENDANO

                Petitioner,                             No. 10-9550
                                                    (Petition for Review)
    v.

    ERIC H. HOLDER, JR.,
    United States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before HOLMES and McKAY, Circuit Judges, PORFILIO, Senior
Circuit Judge.



         Petitioner Nefi Javier Valero-Avendano (Mr. Valero-Avendano), a native and

citizen of Venezuela, petitions for review of the Board of Immigration Appeals’

(BIA) decision affirming the Immigration Judge’s (IJ) denial of his applications for




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
asylum and restriction on removal. 1 We lack jurisdiction to consider the

determination that Mr. Valero-Avendano’s asylum application was untimely. See 8

U.S.C. § 1158(a)(3); Ferry v. Gonzales, 457 F.3d 1117, 1129-30 (10th Cir. 2006).

We do, however, have jurisdiction to consider the restriction-on-removal claim, see

8 U.S.C. § 1252(a), and we affirm for the reasons explained below.

                                I. BACKGROUND

      In 1996, when he was twenty-three years old, Mr. Valero-Avendano illegally

entered the United States. Some ten years later, the Department of Homeland

Security served him with a Notice to Appear. At his initial hearing before the IJ,

Mr. Valero-Avendano conceded his removability, but sought asylum based on his

alleged fear of persecution in Venezuela because he and his family are members of

Acción Democrática, a political party opposed to the government of Venezuelan

President Hugo Chavez. 2 At a subsequent merits hearing before the IJ, Mr. Valero-

Avendano conceded that his asylum application was untimely. Consequently, the IJ

considered the matter as also presenting an application for restriction on removal

and protection under the Convention Against Torture. See Admin. R. at 169-70.

1
       In his brief, Mr. Valero-Avendano does not contest the BIA’s affirmance of
the IJ’s determination to deny him protection under the Convention Against
Torture. That issue is therefore waived. See Kabba v. Mukasey, 530 F.3d 1239,
1248 (10th Cir. 2008).
2
      Mr. Valero-Avendano’s other bases for asylum (his membership in the
Church of Jesus Christ of Latter-Day Saints, and the fact that his children were
born in the United States and do not speak Spanish) are not argued in his brief
and thus are not at issue on appeal. See Kabba, 530 F.3d at 1248.

                                         -2-
      After considering the evidence including testimony from Mr. Valero-

Avendano, the IJ denied relief, concluding first that Mr. Valero-Avendano’s failure

to file an asylum application within one year after his arrival in the United States

doomed his attempt to qualify for such relief. Id. at 131. With regard to

Mr. Valero-Avendano’s contention that changed conditions in Venezuela should

excuse the tardy filing under 8 U.S.C. § 1158(a)(2)(D), the IJ determined that,

while there had been many changes in Venezuela over the years, “it does not appear

that there have been changed conditions, or extraordinary circumstances . . . that

would excuse the one year filing deadline.” Id.

      Turning to the application for restriction on removal, the IJ concluded that

Mr. Valero-Avendano had not demonstrated past persecution, a finding

unchallenged on appeal. The IJ further determined that, while those opposed to

President Chavez may be denied government jobs and benefits and that “there may

be some discrimination[,] . . . those factors alone are insufficient to rise to the level

of persecution, as required” to qualify for restriction on removal. Id. at 134.

The BIA upheld both of the IJ’s determinations and dismissed the appeal.

                                    II. ANALYSIS

A. Standard of Review

      Because the BIA issued its own brief single-member order, its decision is the

final agency decision that we review. Uanreroro v. Gonzales, 443 F.3d 1197, 1204

(10th Cir. 2006). “[I]n deference to the agency’s own procedures, we will not

                                            -3-
affirm on grounds raised in the IJ decision unless they are relied upon by the BIA

in its affirmance,” but “we are not precluded from consulting the IJ’s more

complete explanation” of the BIA’s grounds for denying relief. Id. “Our duty is to

guarantee that factual determinations are supported by reasonable, substantial and

probative evidence considering the record as a whole.” Sidabutar v. Gonzales,

503 F.3d 1116, 1122 (10th Cir. 2007) (brackets and quotation omitted).

      “In this circuit, the ultimate determination whether an alien has demonstrated

persecution is a question of fact, even if the underlying factual circumstances are

not in dispute and the only issue is whether those circumstances qualify as

persecution.” Hayrapetyan v. Mukasey, 534 F.3d 1330, 1335 (10th Cir. 2008)

(quotation omitted). “[W]e may reverse the BIA’s decision ‘only if the evidence

presented by [the alien] was such that a reasonable factfinder would have to

conclude that the requisite fear of persecution existed.’” Id. (alteration in original)

(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).

B. Asylum Claim

      The BIA affirmed the IJ’s conclusion that Mr. Valero-Avendano had failed to

demonstrate changed conditions in Venezuela sufficient to excuse his untimely

asylum application. On appeal, Mr. Valero-Avendano argues that this is error

because the agency failed to consider President Chavez’s acquisition of power in

2007 to govern Venezuela by decree for an eighteen-month period as the

appropriate change-in-country condition. Contrary to Mr. Valero-Avendano’s

                                           -4-
assertion, however, the BIA did consider this argument, but rejected it because Mr.

Valero-Avendano “ha[d] not presented evidence to show that the alleged changed

circumstances materially affect his eligibility for asylum.” Admin. R. at 3-4. We

are without jurisdiction to consider this issue. See 8 U.S.C. § 1158(a)(3)

(providing no court shall have jurisdiction to review the Attorney General’s

determination of changed circumstances); see also Ferry, 457 F.3d at 1129-30. 3

Therefore, we conclude that Mr. Valero-Avendano’s contention of error is

unavailing and that we do not have jurisdiction over Mr. Valero-Avendano’s

asylum claim.

C. Restriction on Removal

      In order to be eligible for restriction on removal, Mr. Valero-Avendano must

show that there is a “clear probability” that he would be persecuted in Venezuela

because of his political opinions. See 8 U.S.C. § 1231(b)(3)(A); see also Elzour v.

Ashcroft, 378 F.3d 1143, 1149 (10th Cir. 2004). 4 In order to make this showing,

3
       While we do have jurisdiction to consider constitutional claims and
questions of law, see 8 U.S.C. § 1252(a)(2)(D), Mr. Valero-Avendano does not
argue that the asylum decision involved either of these two jurisdictional bases.
His assertion, mentioned only in a section heading of his brief, that the BIA’s
decision on changed country circumstances was an error of law is insufficient to
raise this issue on appeal. See Ambus v. Granite Bd. of Educ., 975 F.2d 1555,
1558 n.1 (10th Cir. 1992), modified on other grounds on reh’g, 995 F.2d 992
(10th Cir. 1993).
4
     It is undisputed that Mr. Valero-Avendano was never threatened in
Venezuela and has not been threatened while in the United States. Admin. R. at
242-43, 245. He therefore cannot rely on a showing of past persecution to
                                                                     (continued...)

                                         -5-
Mr. Valero-Avendano must establish “that such persecution is more likely than

not,” Elzour, 378 F.3d at 1149, and that the economic deprivation his family

experiences because of their political beliefs (and that he would probably

experience should he return to Venezuela) rises to the level of persecution.

      Persecution in the context of establishing eligibility for restriction on

removal “is the infliction of suffering or harm upon those who differ (in race,

religion, or political opinion) in a way regarded as offensive, and requires more

than just restrictions or threats to life and liberty.” Witjaksono v. Holder, 573 F.3d

968, 976 (10th Cir. 2009) (quotation omitted). “The term ‘persecution’ is not

limited to physical harm or threats of physical harm and may include threats of

economic harm, so long as the threats, if carried out, would be of sufficient severity

that they amount to past persecution.” In re T-Z, 24 I. & N. Dec. 163, 169

(BIA 2007). However, “employment discrimination . . . does not, without more,

constitute persecution.” Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003).

      Mr. Valero-Avendano argues that he meets this standard because he has

demonstrated a clear probability of economic persecution should he return to

Venezuela. He specifically contends that, because of his political opposition to the

Chavez regime, he would be denied employment opportunities and would be

ineligible for various forms of government assistance.

4
 (...continued)
establish a rebuttable presumption of future persecution. See 8 C.F.R. §
1208.16(b)(1)(i).

                                          -6-
      In support of his claim, Mr. Valero-Avendano presented evidence that both a

doctor and an engineer in his family have been unable to obtain employment in

their respective fields because of their opposition to President Chavez, Admin. R.

at 190-91, 236; that his cousin’s house was taken and destroyed by the government,

id. at 199-200; 5 that a family member was fired from his job with the government-

run petroleum company because he voted against the government, id. at 531; and

that his family is ineligible for government assistance because of their opposition to

President Chavez, id. at 196. Mr. Valero-Avendano stated that various family

members signed a document calling for the recall of Mr. Chavez, but that he

personally did not sign that document. Id. at 191-93. He also testified that both he

and his family are members of the anti-Chavez organization, Acción Democrática,

id. at 182-83, but, as mentioned, admitted that he had never been personally

threatened by government authorities, id. at 242-43, 245.

      On appeal, the BIA cited to the U.S. Department of State’s 2007 Background

Note for Venezuela describing the very high rates of poverty in that country. The

BIA observed that “the respondent must show that he would be subjected to


5
       Mr. Valero-Avendano’s brief indicates that his cousin’s farm was
confiscated without compensation and destroyed by the government. Pet’s Br. at
7, 17. Mr. Valero-Avendano’s testimony, however, was that his cousin’s home
was taken and destroyed. Admin. R. at 199-200. There was no evidence that the
taking was uncompensated. While Mr. Valero-Avendano also testified about farm
confiscation in general, id. at 199, he did not state that any farm belonging to him
or to his family had been confiscated and/or destroyed by the government, or that
farms were being confiscated based on the political affiliation of the owners.

                                         -7-
economic difficulties above and beyond those generally shared by others in the

country and that these losses involve more than the mere loss of social advantages

or physical comforts.” Admin. R. at 4. The BIA ultimately concluded that

Mr. Valero-Avendano had “presented insufficient evidence to show that he would

be subjected to deliberate and severe economic disadvantage because of his

political opinion,” and had thus failed to show “a clear probability of persecution in

Venezuela.” Id.

      On appeal Mr. Valero-Avendano argues that the prevalence of poverty in

Venezuela does not preclude him from establishing the possibility of severe

economic harm if returned to that country, because, unlike the average poor

Venezuelan, his family is ineligible for government assistance due to their anti-

Chavez political beliefs. He points to the incidents described above as proof that

his family has been persecuted and, by implication, that he would be similarly

persecuted if forced to return to Venezuela.

      The test relied upon by the BIA requiring an alien to show deliberate and

severe economic disadvantage is rooted in Kovac v. INS, 407 F.2d 102, 107

(9th Cir. 1969). Under the Kovac test, an applicant can support an asylum claim,

absent a threat to life or freedom, if the applicant “has suffered a severe loss of an

existing economic/vocational advantage.” Vicente-Elias v. Mukasey, 532 F.3d




                                          -8-
1086, 1089 (10th Cir. 2008). 6 In Vicente-Elias, we examined a recent BIA decision

where the Board explained the application of Kovac to cases involving claims of

economic persecution. Quoting In re T-Z-, 24 I. & N. Dec. at 171, 173-74, we

explained that

      [g]overnment sanctions that reduce an applicant to an impoverished
      existence may amount to persecution even if the victim retains the
      ability to afford the bare essentials of life. A particularly onerous fine,
      a large-scale confiscation of property, or a sweeping limitation of
      opportunities to continue to work in an established profession or
      business may amount to persecution even though the applicant could
      otherwise survive.

Vicente-Elias, 532 F.3d at 1089. While there is no evidence that Mr. Valero-

Avendano has personally suffered from any of these circumstances, we analyze

their relevance here because of his pattern-or-practice claim that anti-Chavez

people in Venezuela, including his family, are persecuted because of their political

beliefs.

      Mr. Valero-Avendano’s evidence does not rise to the standard of persecution

under this test. There is no evidence in the record of large fines being levied

against Mr. Valero-Avendano’s family or others similarly situated. The

confiscation and destruction of Mr. Valero-Avendano’s cousin’s house is not a

“large-scale confiscation of property” sufficient to constitute persecution,


6
       Neither party takes issue with the IJ’s reliance on the Kovac test under
these facts. We therefore assume, without deciding, that Kovac is the appropriate
measure of whether Mr. Valero-Avendano has demonstrated economic
persecution.

                                          -9-
especially in light of the fact that the record is silent regarding whether any

compensation was paid to the cousin. Nor is there evidence of a large-scale

confiscation of farm lands based on the farmers’ political opinions. The fact that

two of Mr. Valero-Avendano’s many cousins could not find work as a doctor and

an engineer respectively, does not, without more, demonstrate “a sweeping

limitation of opportunities to work” in those fields.

      As in Vicente-Elias, Mr. Valero-Avendano testified that his life had not been

threatened either in Venezuela or later in the United States. See Admin. R. at 242-

43, 245. He provided no evidence that the lives of his family members had been

threatened in Venezuela. The fact that Mr. Valero-Avendano’s family is ineligible

for government assistance because they do not support the Chavez regime is the

kind of institutional discrimination that fails to constitute persecution. See Vatulev,

354 F.3d at 1210. Again as in Vicente-Elias, members of Mr. Valero-Avendano’s

family continue to be able to function and provide for themselves despite the

discrimination from the government. See Admin. R. at 197, 203. After our review

of the record, we cannot say that every reasonable factfinder would be compelled to

disagree with the BIA’s decision upholding the IJ’s finding of no clear probability

of economic persecution should Mr. Valero-Avendano be returned to his home

country.

      We also reject Mr. Valero-Avendano’s argument that, with regard to

establishing a probability of future persecution, the BIA applied too strict a test for

                                          -10-
his pattern-or-practice claim, requiring him to show that he would be singled out

for persecution rather than that he belongs to a group likely to be persecuted. 7

      Under the regulations, Mr. Valero-Avendano can pursue two different

avenues in his effort to establish fear of future persecution. He can show that there

is a pattern or practice of persecution of a group of people in Venezuela on account

of their political opposition to President Chavez and that his inclusion in and

identification with that group make it more likely than not that he would suffer

persecution. See 8 C.F.R. § 1208.16(b)(2)(i)-(ii). Alternatively, he can

demonstrate a clear probability of persecution by “provid[ing] evidence that [he]

would be singled out individually for such persecution.” Id. § 1208.16(b)(2). “The

point of such evidence is to provide a broader basis for an objective fear of future

persecution.” Vicente-Elias, 532 F.3d at 1092. Under either test, however, Mr.

Valero-Avendano has failed to establish a likelihood of persecution, either of

himself as an individual, or of the group of which he is a member. As in Vicente-

Elias, Mr. Valero-Avendano’s argument is unpersuasive because “it does not

address the basic deficiency in his case recognized by the [BIA]: those conditions

[he identifies], though indicative of social discrimination and economic

disadvantage, do not constitute persecution.” Id.

                                 III. CONCLUSION


7
       Contrary to Respondent’s brief at 30-31, Mr. Valero-Avendano advanced
this argument to the BIA. See Admin. R. at 14.

                                          -11-
The petition for review is DENIED.


                                       Entered for the Court


                                       Jerome A. Holmes
                                       Circuit Judge




                                -12-
