             United States Court of Appeals
                        For the First Circuit


No. 11-2174

                            OSWALDO CABAS,

                              Petitioner,

                                  v.

                          ERIC H. HOLDER, JR.,
                    UNITED STATES ATTORNEY GENERAL,

                              Respondent.


                 PETITION FOR REVIEW OF A DECISION OF
                   THE BOARD OF IMMIGRATION APPEALS


                                Before

                       Howard, Ripple* and Selya,
                            Circuit Judges.


     Kevin MacMurray and MacMurray & Associates on brief for
petitioner.
     Tony West, Assistant Attorney General, Civil Division, Blair
T. O'Connor, Assistant Director and R. Alexander Goring, Attorney,
Office of Immigration Litigation, Civil Division, United States
Department of Justice, on brief for appellant.



                          September 25, 2012




     *
         Of the Seventh Circuit, sitting by designation.
            HOWARD, Circuit Judge.            Petitioner Oswaldo Cabas, a

native and citizen of Venezuela, seeks review of a final order of

the Board of Immigration Appeals ("BIA"). The order upheld both an

immigration    judge's      ("IJ")    determination       that   Cabas's    asylum

application was time-barred and the IJ's denial of his application

for withholding of removal on the merits.                 We lack jurisdiction

over the asylum claim and, discerning no error in the BIA's ruling

on the withholding of removal claim, we deny the remainder of the

petition.

                                        I.

            Cabas first entered the United States in April 2002. The

record does not disclose whether he entered lawfully.               Roughly six

months later, he returned to Venezuela and stayed there for a

month.   In November of the same year, Cabas reentered the United

States as a non-immigrant visitor permitted to remain in the

country for one month.        He has remained here ever since.             Federal

authorities initiated removal proceedings against him in December

2007 for overstaying his visa.              Cabas conceded removability but

applied for asylum, withholding of removal, and protection under

the Convention Against Torture ("CAT").

            Cabas, the only witness at the removal hearing, testified

to the following facts.        He was born in Maracaibo, Venezuela, and

lived there until he came to the United States in 2002.                     After

graduating    from   high    school    in    1992,   he    became   a   political


                                       -2-
activist.    As a member of an opposition group known as "Acción

Democrática," he organized meetings, distributed fliers, and spoke

to people about vices of the government.       He also had a small

segment on a political opinion show that aired on a local radio

station.    After Hugo Chavez came to power in 1998, Cabas joined a

rival political party and began speaking out against the Chavez

administration.    His troubles began shortly thereafter.

            In December 1999, Cabas was at a party with some friends

when he heard gunshots and his name being called.       He fled the

scene and hid in a nearby house until it was safe for him to go

home.     The next incident occurred in March 2000, when he was

kidnapped at gunpoint in the daytime while buying auto parts.

Based on their apparel and the fact that they called themselves

"the defenders of the government," Cabas believed his kidnappers

were members of the Bolivarian Circle, a group associated with

Chavez.    The kidnappers beat Cabas and demanded that he cease his

political activities.   At one point he was struck on the head with

a gun and lost consciousness.      He awoke in a remote location,

covered in blood.     Cabas went to the nearest police station to

report the attack, but he did not seek medical attention for his

injuries.    The police did not investigate the incident.

            Cabas resumed his political activities several months

after the attack.    After his father was kidnapped and beaten in a

similar fashion, Cabas decided to come to the United States.     He


                                 -3-
arrived here in April 2002.      Six months later, he returned to

Venezuela because he thought that the situation there had calmed.

Shortly after his arrival, two men came to his parents' house

looking for him.    They beat his brothers to coerce them to reveal

Cabas's whereabouts.     His mother and sister, who witnessed the

incident, received threats as well.    Around the same time, several

men forcibly broke into his parents' house and issued threats.1

          With his family's encouragement, Cabas returned to the

United States in November 2002.     After his departure, his family

received threats that he would be harmed or killed if he returned

to the country.    His family remained living in Venezuela unharmed.

          Cabas testified that he did not seek asylum until 2009

because he was "ill-advised" and had planned to return home after

Chavez left office.    In February 2009, Cabas became convinced that

Chavez would remain in power indefinitely because the country

eliminated presidential term limits.

          At the close of the hearing, the IJ issued an oral

decision finding Cabas removable as charged.      The IJ ruled that

Cabas's asylum application was untimely because he had filed it

more than six years after his November 2002 arrival, and he did not

prove changed country conditions to qualify for an exception to the

one-year filing deadline.    The IJ also denied Cabas's application


     1
       It is unclear from Cabas's testimony whether the break-in
occurred at the time his brothers were beaten or on a separate
occasion.

                                 -4-
for withholding of removal, in which Cabas claimed a likelihood of

persecution on the basis of the statutorily protected ground of

political   opinion.       The    IJ    concluded    that    Cabas    failed   to

demonstrate either past persecution or a likelihood of future

persecution.     The IJ found Cabas's testimony to be generally

credible, but discounted his testimony that men forcibly broke into

his parents' house because Cabas never mentioned the incident in

his affidavit filed in support of his application.                   The IJ then

determined that the kidnapping and beating that Cabas suffered and

the threats to his safety were not so severe as to constitute

persecution, reasoning that Cabas was physically harmed on only a

single occasion and did not seek medical attention following the

incident.      Further,   the    IJ    concluded    that    Cabas's   return   to

Venezuela after the attack and the fact that his family continued

to live there unharmed undermined his claim of future persecution.

Lastly, the IJ denied Cabas's CAT claim.

            Cabas appealed the IJ's decision, save for its ruling on

the CAT claim, and the BIA affirmed.           The BIA agreed with the IJ

that   Cabas   failed     to    prove    changed    country     conditions     or

exceptional circumstances to excuse the late filing of his asylum

application.     With respect to withholding of removal, the BIA

echoed the IJ's reasoning that Cabas was physically harmed only on

one occasion; he did not seek medical attention for his injuries;

and he returned to Venezuela following the incident.              Accordingly,


                                        -5-
the BIA concluded that he did not establish past persecution, and

it agreed with the IJ's determination that the evidence did not

otherwise support a finding of a likelihood of future persecution.

This petition followed.

                                     II.

           Cabas challenges both the BIA's decision that his asylum

application was time-barred and its denial on the merits of his

request for withholding of removal.          We address the challenges in

turn.

A.   Timeliness of the Asylum Application

           To qualify for asylum, an applicant ordinarily must make

his request within one year of his arrival in the United States.

8 U.S.C. § 1158(a)(2)(B).           Late applications may be accepted,

however,   if   the   applicant    shows    "changed   circumstances    which

materially affect [his] eligibility for asylum or extraordinary

circumstances relating to the delay in filing an application." Id.

§ 1158(a)(2)(D).      The applicant bears the burden of establishing

that the application was timely or that an exception to the filing

deadline applies. Oroh v. Holder, 561 F.3d 62, 66 (1st Cir. 2009).

           Cabas concedes that he filed his asylum application more

than six years after his last arrival in the United States. In his

petition for review, he argues that the BIA and the IJ "abused

their discretion" in finding that he did not establish changed

circumstances    that   could     support   an   exception   to   the   filing


                                     -6-
deadline.    This challenge is a quintessentially fact-based attack,

and it is thus doomed to fail.          We are without jurisdiction to

review    agency    findings    regarding     timeliness    of    an   asylum

application or applicability of exceptions to the one-year rule,

unless the petitioner challenges the decision on constitutional or

legal grounds.      Rashad v. Mukasey, 554 F.3d 1, 5 (1st Cir. 2009).

Cabas is plainly challenging the BIA's factfinding about changed

circumstances      vel   non.   We   lack   jurisdiction   to    review   that

decision.

B.   Withholding of Removal

            Because the BIA adopted in part the IJ's decision denying

Cabas's request for withholding of removal but also provided

additional analysis, we review both decisions.             Uruci v. Holder,

558 F.3d 14, 18 (1st Cir. 2009).       We review the decisions under the

deferential "substantial evidence" standard, reversing only if a

"reasonable adjudicator would be compelled to conclude to the

contrary."    Khan v. Mukasey, 549 F.3d 573, 576 (1st Cir. 2008)

(internal quotation marks omitted). Under this standard, we uphold

the agency action so long as it is "supported by reasonable,

substantial, and probative evidence on the record considered as a

whole."   INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal

quotation marks omitted).

            To qualify for withholding of removal, an alien must show

that, if repatriated, he faces "a clear probability of future


                                     -7-
persecution" on account of one of five protected grounds, namely,

race, religion, nationality, membership in a particular social

group, or political opinion.           Palma-Mazariegos v. Gonzales, 428

F.3d 30, 37 (1st Cir. 2005); see 8 U.S.C. § 1101(a)(42).                      To

satisfy this burden, the alien must show that it is "more likely

that not" that he will face future persecution, a burden that may

be met by proof that he suffered persecution in the past, which

gives rise to a rebuttable presumption of future persecution.

Khan, 549 F.3d at 576.

           Before considering whether Cabas has satisfied this

burden,   we     address   his      challenge   to   the    IJ's    credibility

determination.        He argues that the IJ's decision is internally

inconsistent because the IJ found his testimony to be generally

credible and yet discredited his testimony that at one point men

broke into his parents' house.           The argument lacks merit.         Even

though the IJ found Cabas to be generally credible, this did not

require   the    IJ   to   accept    every   specific      aspect   of   Cabas's

testimony.      See Carcamo-Recinos v. Ashcroft, 389 F.3d 253, 258-59

(1st Cir. 2004) (IJ's finding that applicant was "generally"

credible does not mandate a conclusion that he was "credible in all

respects").      The IJ discounted the event because Cabas failed to

mention it in his affidavit.         The record does not compel a contrary

conclusion.      Moreover, even if the IJ read too much into the

omission, the IJ's decision to discount the event was not pivotal.


                                       -8-
The record makes clear that even if the discredited incident is

taken into account, the outcome remains the same.

            Substantial      evidence     in   the     record     supports     the

determinations by the BIA and the IJ that Cabas proved neither past

persecution nor a likelihood of future persecution on account of

his political opinion.        In determining whether alleged incidents

rise to the level of persecution, one important factor is whether

"the    mistreatment   can    be   said   to   be    systematic      rather   than

reflective of a series of isolated incidents." Bocova v. Gonzales,

412 F.3d 257, 263 (1st Cir. 2005).             Moreover, "[t]o qualify as

persecution, a person's experience must rise above unpleasantness,

harassment, and even basic suffering."               Nelson v. INS, 232 F.3d

258, 263 (1st Cir. 2000).

            The record supports a conclusion that the mistreatment

Cabas    suffered   was      not   sufficiently       severe    to    constitute

persecution.     We accept for purposes of analysis that on one

occasion he was kidnapped, beaten, and left unconscious in a remote

location; and on other occasions Cabas and his family received

threats to his safety, including threats following a break-in at

his parents’ home.     As objectionable as the mistreatment was, it

does not compel a conclusion that Cabas suffered systematic abuse.

The single incident of physical harm was an isolated event and the

resulting injuries were not sufficiently severe to require medical

attention.     See Topalli v. Gonzales, 417 F.3d 128, 133 (1st Cir.


                                     -9-
2005) ("The BIA took into account, as do we, the absence of the

need for medical attention after the beatings as but one factor in

the analysis."). In addition, nothing suggests that the threats to

Cabas's safety were anything but sporadic.           We have numerous times

affirmed BIA determinations that maltreatment did not rise to the

level of persecution in cases presenting comparable, if not more

egregious, facts.     See, e.g., Khan, 549 F.3d at 575 (finding of

persecution not compelled where petitioner was beaten with wooden

sticks and shocked with electrical wires while in prison for ten

days); Topalli,     417    F.3d   at    132 (finding   of    persecution   not

compelled where petitioner was arrested, beaten, and detained on

seven occasions in a two-year period); Bocova, 412 F.3d at 263

(finding   of   persecution       not    compelled   where   petitioner    was

arrested, threatened with death twice over an eight-year period,

and was so severely beaten that he lost consciousness and was

hospitalized); Guzman v. INS, 327 F.3d 11, 15-16 (1st Cir. 2003)

(finding   of   persecution       not    compelled   where   petitioner    was

kidnapped, beaten, and held captive for three hours).

           Nor has Cabas otherwise shown a clear probability of

future persecution.       As noted by the BIA and the IJ, the fact that

Cabas's family continued to live in Venezuela unharmed undercuts

his claim that persecution awaits him upon return.             See Khan, 549

F.3d at 577 (continued safety of petitioner's family undermined

claim of future persecution).           Cabas's claim is further undermined


                                        -10-
by the fact that he returned to Venezuela for a month in 2002,

after the prior beating and threats to his safety.          See Pakasi v.

Holder, 577 F.3d 44, 47-48 (1st Cir. 2009) (voluntary return to the

native country following mistreatment undermined petitioner's claim

of future persecution). Accordingly, substantial evidence supports

the   BIA's    determination   that   Cabas   failed   to   establish   his

entitlement to withholding of removal.

              The petition for review is dismissed as to the asylum

claim and denied as to the claim for withholding of removal.




                                  -11-
