                                                                [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                  FEB 03, 2010
                                No. 09-13357                       JOHN LEY
                            Non-Argument Calendar                ACTING CLERK
                          ________________________

                            Agency No. A097-187-120

MARWAN MOWAFAK EL MOSTAKIM,


                                                                            Petitioner,

                                       versus

U.S. ATTORNEY GENERAL,

                                                                         Respondent.


                          ________________________

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

                                (February 3, 2010)

Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:

     Petitioner is a native of Egypt and is stateless due to his status in Egypt as a
Palestinian refugee. An Immigration Judge (“IJ”) denied his application for

asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”) and ordered his removal. The Board of Immigration (“BIA”)

dismissed his appeal of the IJ’s decision thusly. After noting that petitioner did not

contest the IJ’s finding that his asylum application was time-barred and concluding

that he was therefore ineligible for asylum, the BIA affirmed the IJ’s withholding

of removal and denial of CAT relief. It did so on alternative grounds: petitioner’s

testimony, as the IJ found, was not credible, but assuming that it was, petitioner

failed to establish eligibility for either forms of relief. The BIA also affirmed the

IJ’s refusal to consider documents petitioner produced long after the deadline the IJ

set for the filing of additional documents.

      Petitioner how challenges the BIA’s decision, raising two issues: (1) whether

the BIA’s affirmance of the IJ’s refusal to consider his late-filed exhibits

constituted an abuse of discretion and a denial of due process, and (2) whether the

BIA erred in upholding the IJ’s adverse credibility determination and concluding

that petitioner was ineligible for withholding of removal and CAT relief.

                                              I.

      We review constitutional challenges de novo. Ali v. U.S. Attorney Gen., 443

F.3d 804, 808 (11th Cir. 2006). “Due process requires that aliens be given notice

and an opportunity to be heard in their removal proceedings.” Tang v. U.S.
                                              2
Attorney Gen., 578 F.3d 1270, 1275 (11th Cir. 2009) (quotation marks omitted).

To establish a due process violation, the petitioner must show that he was deprived

of liberty without due process of law and that the purported errors caused him

substantial prejudice. Id. “[T]he failure to receive relief that is purely

discretionary in nature does not amount to a deprivation of a liberty interest.” Id.

(quotation marks omitted).

      Discretionary decisions that are governed by federal regulations are

reviewed for an abuse of discretion. See Zafar v. U.S. Attorney Gen., 461 F.3d

1357, 1361-62 (11th Cir. 2006). The BIA abuses its discretion when its decision is

arbitrary or capricious. Montano Cisneros v. U.S. Attorney Gen., 514 F.3d 1224,

1226 (11th Cir. 2008).

      An IJ’s decision to exclude evidence offered after a court-ordered filing

deadline is discretionary. Tang, 578 F.3d at 1276. Federal regulations provide the

IJ with administrative control over the removal hearing, including the discretion to

set and extend filing deadlines. Id. (citing 8 C.F.R. § 1003.31(c)). Where an

application or other document is not filed within the court-ordered time period, the

opportunity to file that document is deemed waived. Id. (citing § 1003.31(c)). For

this reason, we have held that an alien “does not have a constitutionally protected

liberty interest in the admission of evidence after the court-ordered deadline” and

“cannot establish a due process violation based on the IJ’s adverse decision” in that
                                           3
respect. Id.

      To the extent that petitioner claims that his due process rights were violated

by the refusal to accept his evidence, his argument is foreclosed by Tang. To the

extent that he claims an abuse of discretion, the record clearly indicates that the IJ

and petitioner’s then-counsel specifically discussed the filing deadline at the master

hearing. Petitioner has provided no support for his position that the IJ’s awareness

of counsel’s intent to withdraw from petitioner’s representation obligated the IJ to

discuss the deadline with petitioner personally as if he were appearing pro se.

Thus, he has failed to show that either the IJ or the BIA acted arbitrarily or

capriciously in excluding his late-filed exhibits. See Montano Cisneros, 514 F.3d

at 1226.

                                           II.

      We review the BIA’s decision, except to the extent that it expressly adopts

the IJ’s opinion or relies upon his reasoning. Al Najjar v. Ashcroft, 257 F.3d 1262,

1284 (11th Cir. 2001). Here, the relevant portion of the BIA’s opinion did not

specifically adopt or rely upon the IJ’s decision, so we review the BIA’s opinion

only. Factual determinations are reviewed under the substantial evidence test,

which requires us to “review the record evidence in the light most favorable to the

agency’s decision and draw all reasonable inferences in favor of that decision.”

Ruiz v. U.S. Attorney Gen., 440 F.3d 1247, 1255 (11th Cir. 2006). We must affirm
                                           4
the BIA’s decision if it is supported by reasonable, substantial, and probative

evidence on the record considered as a whole, and we will not reverse unless the

record compels a contrary conclusion. Id. at 1254-55.

      To establish eligibility for asylum, an alien must demonstrate that he is a

“refugee” under the INA by establishing either (1) past persecution on the basis of

a protected ground, or (2) a well-founded fear of future persecution on the basis of

a protected ground. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230-31 (11 th

Cir. 2005). The well-founded-fear standard requires the alien to demonstrate that

his fear is both subjectively genuine and objectively reasonable. Id. at 1231. The

alien must be able to establish a causal connection between the feared persecution

and a protected ground by “presenting ‘specific, detailed facts showing a good

reason to fear that he or she will be singled out for persecution on account of’” the

protected ground. Id. (quoting Al Najjar, 257 F.3d at 1287). The petitioner need

not prove that he would be singled out for persecution if he can establish a pattern

or practice of persecution of a similarly situated group in which he is included or

with which he might be identified. 8 C.F.R. § 208.13(b)(2)(iii)(A)-(B); see

§ 208.16(b)(2)(i)-(ii) (permitting pattern-or-practice evidence in withholding-of-

removal cases).

      A more stringent standard is applied to claims for withholding of removal.

Sepulveda, 401 F.3d at 1232. To establish that he is entitled to withholding of
                                           5
removal under the INA, an alien must show that his “life or freedom would be

threatened” in the country of removal on the basis of a protected ground. Id. “The

alien bears the burden of demonstrating that it is more likely than not [he] will be

persecuted or tortured upon being returned to [his] country.” Id. (quotation marks

omitted). An alien who cannot meet the well-founded-fear standard for asylum

generally cannot satisfy the higher more-likely-than-not standard for withholding

of removal. Id. at 1232-33.

      “[P]ersecution is an extreme concept, requiring more than a few isolated

incidents of verbal harassment or intimidation.” Sepulveda, 401 F.3d at 1231

(quotation marks omitted). “Mere harassment does not amount to persecution.”

Id. (quotation marks and alterations omitted). We have held that a five-day

detention, during which the petitioner was forced to stand in the sun for two hours

but was otherwise unharmed, did not rise to the level of past persecution. See

Zheng v. U.S. Attorney Gen., 451 F.3d 1287, 1289-91 (11th Cir. 2006).

Employment discrimination that stops short of depriving the individual of a means

of earning a living also does not constitute persecution. Id. at 1291.

      Petitioner’s notice of appeal and his supporting brief to the BIA (challenging

the IJ’s removal order) failed to mention either the denial of CAT relief or the IJ’s

adverse credibility determination. We therefore lack jurisdiction to review the



                                           6
denial of CAT relief or the adverse credibility determination.1

       As to his claim for withholding of removal under the INA, the BIA noted

that petitioner’s only alleged harms were difficulty operating a business in Egypt

and several detentions and interrogations at the airport following trips abroad.

Although he alleges that he could not obtain a work permit or own a business in his

own name, he was able to operate a business that the family considered “his” by

putting it in his aunt’s name. The longest of the airport detentions lasted

approximately 12 hours and he indicated that he had never been harmed or

physically threatened at any time. Even if his testimony had been found credible,

neither of these allegations would rise to the level of past persecution. See Zheng,

451 F.3d at 1289-91.

       With respect to future persecution, petitioner alleged only that he believed

he would be detained at the airport upon his return, and he offered no evidence to

support his assertion that this detention, unlike all previous ones, would include

torture. Finally, although he alleged in his appeal to the BIA that there was a

pattern or practice of persecution of Palestinian refugees in Egypt, he offered no

timely filed evidence to support that claim. The incredibility of his allegations and

the absence of any corroborating evidence are sufficient to support a finding that

       1
         We hold that petitioner failed to exhaust his administrative remedies regarding the
adverse credibility determination despite the fact that the BIA reviewed the determination sua
sponte. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006)..
                                                 7
he had failed to meet his burden of proof. See Ruiz, 440 F.3d at 1255; Yang, 418

F.3d at 1201. Substantial evidence supports the BIA’s conclusion that petitioner

had failed to establish that he was more likely than not to be persecuted if returned

to Egypt. Ruiz, 440 F.3d at 1255; Sepulveda, 401 F.3d at 1232.

      For the foregoing reasons, we dismiss the petition with respect to

petitioner’s unexhausted claims and deny it in all other respects.

      PETITION DISMISSED, in part, and DENIED, in part.




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