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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                         No. 12-12755; 13-10158
                         Non-Argument Calendar
                       ________________________

                        Agency No. A079-495-334


SALEH MAA ALGHUBARI,

                                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

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

                            (February 7, 2014)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
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       In these consolidated appeals, Saleh Alghubari, a native and citizen of Saudi

Arabia, seeks review of the Board of Immigration Appeals’s (BIA) final order

affirming the Immigration Judge’s (IJ) denial of his application for asylum,

withholding of removal, and relief under the United Nations Convention Against

Torture (CAT), as well as the BIA’s orders denying his motion to reconsider and

motion to reopen his removal proceedings. On appeal, Alghubari argues that the

BIA erred when it found that he had not established past persecution or a well-

founded fear of future persecution based on his status as an Ismaili-Muslim and the

fact that fathered a child out of wedlock. He also argues that the BIA abused its

discretion in denying his motion to reconsider because the BIA improperly

characterized his motion as merely a re-argument of the issues raised in his direct

appeal. Lastly, Alghubari argues that the BIA abused its discretion in denying his

motion to reopen based on new evidence that corroborated the existence of his

girlfriend and son. After a review of the parties’ briefs and the record on appeal,

we dismiss the petition in part, and deny the petition in part. 1

                                                 I.

        In a petition for review of a BIA decision, we review factual determinations

under the substantial evidence test. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,


       1
           Alghubari also submitted a motion to remand the case for completion of the
administrative record, which we deny. Alghubari cites no authority in support of his argument
that it is proper for us to remand the case to the BIA for completion of the administrative record.
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1350 (11th Cir. 2009). Under the substantial evidence test, we draw every

reasonable inference from the evidence in favor of the BIA’s decision, and reverse

a finding of fact only if the record compels a reversal. Id. at 1351. We must affirm

if the BIA’s decision is “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Id. (internal quotation marks

omitted). The fact that the record may support a contrary conclusion is insufficient

to reverse. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).

      We review the BIA’s decision as the final judgment, unless the BIA

expressly adopted the IJ’s decision. Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344

(11th Cir. 2007). Where a petitioner seeks review of an issue not ruled upon by the

BIA, we should deny the petition. See id.

      An applicant for asylum must meet the Immigration and Nationality Act’s

(INA) definition of a refugee. 8 U.S.C. § 1158(b)(1). The INA defines a refugee

as a person who cannot return to his home country due to “persecution or a well-

founded fear of persecution on account of race, religion, nationality, membership

in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To

establish eligibility for asylum, a petitioner must demonstrate either past

persecution, or a well-founded fear of future persecution, based on a statutorily

listed factor. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (per

curiam). The alien must present “specific, detailed facts showing a good reason to

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fear that he or she will be singled out for persecution.” Sepulveda v. U.S. Att’y

Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (per curiam) (emphasis in original)

(internal quotation marks omitted). If the petitioner demonstrates past persecution,

there is a rebuttable presumption that he has a well-founded fear of future

persecution. Ruiz, 440 F.3d at 1257. If the petitioner cannot demonstrate past

persecution, he must demonstrate that his well-founded fear of future persecution

is subjectively genuine and objectively reasonable. Id.

      An alien seeking withholding of removal similarly must show that his “life

or freedom would be threatened in that country because of the alien’s race,

religion, nationality, membership in a particular social group, or political opinion.”

See 8 U.S.C. § 1231(b)(3)(A). The burden of proof for withholding of removal,

however, is “more likely than not,” and, thus, is “more stringent” than the standard

for asylum relief. Sepulveda, 401 F.3d at 1232. “To establish eligibility for CAT

relief, an applicant must show that it is more likely than not that he will be tortured

by, or with the acquiescence of, government officials if returned to the designated

country of removal.” Todorovic v. U.S. Att’y Gen., 621 F.3d 1318, 1324 (11th Cir.

2010); 8 C.F.R. § 208.16(c)(2). Where a petitioner fails to establish a claim of

asylum on the merits, he necessarily fails to establish any claims for withholding of

removal or CAT relief. See Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1292 (11th

Cir. 2006) (per curiam).

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      We have described persecution as an “extreme concept.” Id. at 1290

(internal quotation marks omitted). Under certain circumstances, detention may

rise to the level of persecution. Id. In Zheng, we concluded that a five-day period

of incarceration that did not produce any injuries did not compel a conclusion of

persecution. Id. Similarly, a thirty-six-hour period of incarceration in a small cell

shared by twelve people, accompanied by multiple beatings, one of which involved

a belt, resulting in scratches, bruises, and hospitalization, did not compel a

conclusion of persecution. Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1171, 1174

(11th Cir. 2008). In Kazemzadeh, we concluded that a four-day period of

incarceration, including a five-hour interrogation and beating, accompanied by

post-incarceration monitoring, also did not compel a conclusion of persecution.

577 F.3d at 1353. On the other hand, we have held that the breaking up of a

church service, confiscation of family bibles, and a seven-day detention

accompanied by two interrogations, being slapped in the face, thrown to the floor,

threatened to be beaten with a baton, and handcuffed to an iron bar overnight

outside in the rain did compel a finding of persecution. See Shi v. U.S. Att’y Gen.,

707 F.3d 1231, 1235–37 (11th Cir. 2013).

      Here, substantial evidence supports the BIA’s determination that Alghubari

failed to establish past persecution. Alghubari’s testimony established that he was

arrested and detained on three occasions between 1997 and 2000. The longest he

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was detained was three days. While detained in 2000, he was not physically

beaten, but he was pushed from the back of the neck and his genitals were touched.

He explicitly testified that he was never physically injured during these arrests and

detentions. When compared with our precedent, these incidents do not compel the

finding of anything more than harassment. See Kazemzadeh, 577 F.3d at 1353;

Djonda, 514 F.3d at 1174; Zheng, 451 F.3d at 1290.

      Substantial evidence also supports the BIA’s determination that Alghubari

did not have a well-founded fear of future persecution. Because Alghubari did not

establish that he experienced past persecution, there is no presumption of a well-

founded fear of future persecution. See Ruiz, 440 F.3d at 1257. While the 2005

State Department Country Report and 2005 International Religious Freedom

Report reflected that there was a lack of religious freedom in Saudi Arabia and that

the Shia/Ismaili minorities were subject to political and economic discrimination,

neither report indicated that individual Ismailis were likely to be singled out for

persecution. Additionally, Alghubari’s expert witness did not provide specific and

detailed testimony that indicated that Alghubari himself faced a reasonable

likelihood of persecution if he returned to Saudi Arabia. The expert witness

testified that an Ismaili who engaged in pre-marital sex would receive a very harsh

punishment, but did not explain further what he meant. Additionally, there is

nothing in the record to indicate what that punishment would be. Accordingly,

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Alghubari did not submit specific and detailed facts that established that he would

be singled out for persecution. See Sepulveda, 401 F.3d at 1231. Therefore, there

is insufficient evidence to compel a finding that Alghubari demonstrated a well-

founded fear of future persecution.

      The BIA did not consider whether Alghubari should be granted asylum as a

matter of discretion, thus we are precluded from reviewing Alghubari’s challenge

to the IJ’s denial of his asylum application on such a basis. See Lopez, 504 F.3d at

1344. Because Alghubari failed to establish a claim of asylum on the merits, he

failed to establish any claims for withholding of removal or CAT relief. See

Zheng, 451 F.3d at 1292. Therefore, the BIA did not err in denying his

applications for withholding of removal and CAT relief. Accordingly, we deny

Alghubari’s petition as to this issue.

                                          II.

      We review de novo our own subject matter jurisdiction. Gonzalez-Oropeza

v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003) (per curiam). A petition

for review must be filed with the court of appeals no later than thirty days after the

BIA’s final order of removal. 8 U.S.C. § 1252(b)(1). The statutory time limit for

filing a petition for review in an immigration proceeding is mandatory and

jurisdictional and not subject to equitable tolling. Dakane v. U.S. Att’y Gen., 399

F.3d 1269, 1272 n.3 (11th Cir. 2005) (per curiam).

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      Here, to timely petition for review of the BIA’s August 7, 2012 order

denying Alghubari’s motion to reconsider, Alghubari had to file within thirty days

of that date, by September 6, 2012. 8 U.S.C. § 1252(b)(1). Alghbari filed his

petition on January 11, 2013. Consequently, his petition is untimely as to the

August 2012 order. See id. Because this statutory time limit is mandatory,

jurisdictional, and not subject to equitable tolling, Alghubari’s argument that we

should review the August 2012 denial of his motion to reconsider because of the

BIA’s clerical error lacks merit. See Dakane, 399 F.3d at 1272 n.3. Regardless of

any clerical error by the BIA, Alghubari had the duty to petition for review within

thirty days of the order denying reconsideration if he wanted to preserve his right

to judicial review. But he did not. Accordingly, we dismiss Alghubari’s petition

for review as to this issue.

                                               III.

      We review the denial of a motion to reopen for an abuse of discretion. Jiang

v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Our review is limited to

determining whether the BIA exercised its discretion in an arbitrary or capricious

manner. Id.

      We have held that, at a minimum, the BIA may deny a motion to reopen on

the following three grounds: (1) failure to establish a prima facie case; (2) failure

to introduce evidence that was material and previously unavailable; or (3) a

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determination that an alien is not entitled to a favorable exercise of discretion

despite statutory eligibility for relief. Al Najjar v. Ashcroft, 257 F.3d 1262, 1302

(11th Cir. 2001).

      “An alien may file one motion to reopen removal proceedings, which motion

shall state the new facts that will be proved at a hearing to be held if the motion is

granted, and shall be supported by affidavits or other evidentiary material.” Ali v.

U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (per curiam) (internal

quotation marks omitted). Furthermore, the BIA’s regulations state that a motion

to reopen proceedings shall not be granted unless it appears to the BIA that the

“evidence sought to be offered is material and was not available and could not

have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).

“An alien who attempts to show that the evidence is material bears a heavy burden

and must present evidence that demonstrates that, if the proceedings were opened,

the new evidence would likely change the result in the case.” Jiang, 568 F.3d at

1256–57 (internal quotation marks omitted).

      Here, the BIA did not abuse its discretion in denying Alghubari’s motion to

reopen. In its original denial of Alghubari’s asylum application, the BIA affirmed

the IJ’s finding that Alghubari failed to corroborate his claim because he did not

provide any evidence of the existence of his girlfriend and son, which the IJ

concluded was reasonably available. In the alternative, the BIA determined that,

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even if the girlfriend and son existed, Alghubari’s asylum application was properly

denied because he failed to show that he would be persecuted because he was an

Ismaili who engaged in pre-marital sex with a non-Muslim woman. While

Alghubari’s new evidence supports his testimony that he was not in contact with

his girlfriend, son, or his family, and it would be difficult for him to obtain such

evidence, this fact alone does not corroborate the existence of his girlfriend and

son. Moreover, as noted by the BIA, the email from Alghubari’s cousin does not

have any impact on the BIA’s alternative holding that Alghubari failed to show

that he would be subjected to the mistreatment that rises to the level of persecution

because of his religion and the fact that he engaged in pre-marital sex. The BIA’s

determination that Alghubari’s new evidence would not likely change the result of

his case was not arbitrary or capricious. Accordingly, we deny the petition as to

this issue.

       PETITION DISMISSED IN PART, DENIED IN PART.




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