FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JUNE 30, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-13996

Non-Argument Calendar

________________________

BIA No. A96-094-750

LYUBOMIR IVANOV IVANOV, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

 (June 30, 2008)

Before TJOFLAT, BIRCH and PRYOR, Circuit Judges.

PER CURIAM:

Lyubomir Ivanov Ivanov, a citizen and native of Bulgaria, proceeding
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pro se, petitions this court for review of the Board of Immigration Appeals’

(“BIA”) decision dismissing an appeal from the Immigration Judge’s (“IJ”) denial

of his application for asylum, withholding of removal under the Immigration and

Nationality Act, and relief under the United Nations Convention Against Torture

and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), 8

U.S.C. § 1158, 1231(b)(3), 8 C.F.R. § 208.16(c).

I. BACKGROUND

Invanov’s application for relief was premised on mistreatment allegedly

suffered as a result of being Roma, a minority ethnicity in Bulgaria. On appeal, he

argues that: (1) the BIA erred by finding that extraordinary circumstances did not

excuse his untimely asylum application; (2) he was entitled to withholding of

removal under the Immigration and Nationality Act (“INA”) because he suffered

past persecution, thus triggering a presumption that his life or freedom would be

threatened upon his return to Bulgaria; and (3) he was entitled to relief under CAT

because he suffered past persecution.

II. DISCUSSION

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

extent that [the BIA] expressly adopts the IJ’s decision.” Al Najjar v. Ashcroft,

257 F.3d 1262, 1284 (11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s

reasoning, we will review the IJ’s decision as well.” Id. Here, the BIA issued its
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own decision without any adoption. Therefore, we review only the BIA’s decision. 

In addition, the IJ specifically found Ivanov to be credible and the BIA did not

address this finding. Therefore, we take his testimony as true. Mejia v. U.S. Att’y

Gen., 498 F.3d 1253, 1255 n.2 (11th Cir. 2007).

To the extent that the BIA’s decision was based on a legal determination,

review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.

2001). Factual determinations, however, are reviewed under the “highly

deferential substantial evidence test,” which requires us to “view the record

evidence in the light most favorable to the agency’s decision and draw all

reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d

1022, 1026-27 (11th Cir. 2004) (en banc). We “must affirm the BIA’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 1284 (quotation omitted). “[W]e

cannot engage in fact-finding on appeal, nor may we weigh evidence that was not

previously considered below.” Id. at 1278. 

A. Timeliness of Asylum Application

We review questions of subject-matter jurisdiction de novo. Ruiz v.

Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). An application for asylum must be

filed within one year after the date of the alien’s arrival in the United States. 8

U.S.C. § 1158(a)(2)(B). Although an untimely application may be considered
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where the Attorney General is satisfied that there are changed or extraordinary

circumstances, “[n]o court shall have jurisdiction to review any determination of

the Attorney General under [§ 1158(a)(2)(B)].” 8 U.S.C. § 1158(a)(2)(D), (a)(3). 

We have held that 8 U.S.C. § 1158(a)(3) “eliminates appellate jurisdiction to

review the Attorney General’s determination whether an alien filed within one year

or established extraordinary circumstances to excuse an untimely filing.” Sanchez

Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007).

We conclude that we lack jurisdiction to review the BIA’s determination that

Ivanov failed to timely file his application or demonstrate extraordinary

circumstances excusing this untimely filing. Sanchez Jimenez, 492 F.3d at 1231. 

Accordingly, we DISMISS the petition as to this claim.

B. Withholding of Removal

An alien seeking withholding of removal under the INA must establish that

his life or freedom would be threatened on account of race, religion, nationality,

membership in a particular social group, or political opinion. 8 U.S.C.

§ 1231(b)(3)(A). If the alien establishes past persecution on account of a protected

ground, there is a presumption that his life or freedom would be threatened upon

return to his country. 8 C.F.R. § 208.16(b)(1)(i). To establish past persecution, the

alien must prove that 1) he was persecuted, and 2) the persecution was on account

of a protected ground. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir.
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2006). Although the term is not defined by the INA, we have held 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 v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)

(per curiam) (quotations omitted). “In determining whether an alien has suffered

past persecution, the IJ must consider the cumulative effects of the incidents.” 

Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007) (per curiam). 

With respect to nexus, the petitioner must show that he was persecuted because of

a protected ground. INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S. Ct. 812, 816

(1992).

In this case, substantial evidence supports the BIA’s finding that Ivanov did

not suffer past persecution because the incidents he described either did not rise to

the level of persecution or were not on account of ethnicity. No presumption of

future persecution applies, and Ivanov has not asserted that he can show future

persecution, and thus, has abandoned the issue. Sepulveda, 401 F.3d at 1228 n.2. 

Accordingly, the BIA did not err by denying his claim for withholding of removal.

C. Relief under CAT

“As a signatory to [CAT], the United States has agreed not to expel, return

or extradite a person to another State where there are substantial grounds for

believing that he would be in danger of being subjected to torture.” Jean-Pierre v.
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U.S. Att’y Gen., 500 F.3d 1315, 1322-23 (11th Cir. 2007) (quotation and alteration

omitted). To obtain relief under CAT, the applicant has the burden of proving that

“it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.” 8 C.F.R. § 208.16(c)(2). 

Torture is defined as any act by which severe pain or suffering,

whether physical or mental, is intentionally inflicted on a person for

such purposes as obtaining from him or her or a third person

information or a confession, punishing him or her for an act he or she

or a third person has committed or is suspected of having committed,

or intimidating or coercing him or her or a third person, or for any

reason based on discrimination of any kind, when such pain or

suffering is inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official

capacity.

8 C.F.R. § 208.18(a)(1). “Torture is an extreme form of cruel and inhuman

treatment and does not include lesser forms of cruel, inhuman or degrading

treatment or punishment that do not amount to torture.” 8 C.F.R. § 208.18(a)(2). 

In assessing whether it is more likely than not that an applicant would

be tortured in the proposed country of removal, all evidence relevant

to the possibility of future torture shall be considered, including, but

not limited to: 

(i) Evidence of past torture inflicted upon the applicant;

(ii) Evidence that the applicant could relocate to a part of the country

of removal where he or she is not likely to be tortured;

(iii) Evidence of gross, flagrant or mass violations of human rights

within the country of removal, where applicable; and
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(iv) Other relevant information regarding conditions in the country of

removal.

8 C.F.R. § 208.16(c)(3). We have previously accepted the BIA’s interpretation of

the regulatory definition of torture as one that includes “certain isolated, vicious

and deliberate acts, such as burning with cigarettes, choking, hooding, kalot

marassa, and electric shock,” but does not include “other forms of police brutality .

. . [such as] beatings with fists, sticks, and belts . . . .” Cadet v. Bulger, 377 F.3d

1173, 1194-95 (11th Cir. 2004).

In this case, substantial evidence supports the BIA’s finding that Ivanov has

not established that it is more likely than not that he would suffer torture upon his

return to Bulgaria. Accordingly, the BIA did not err by denying his CAT claim.

III. CONCLUSION

 Ivanov petitions for reviews of the BIA’s decision affirming the IJ’s denial

of his application for asylum, withholding of removal under the INA, and relief

under CAT. Because we lack jurisdiction to review the BIA’s finding that Ivanov

failed to show extraordinary circumstances excusing the untimely filing of his

asylum application, we dismiss the petition as to this issue. Substantial evidence

supports the BIA’s denial of his claim for withholding of removal because the

record indicates that Ivanov failed to establish past persecution based on a

protected ground and Ivanov abandoned any argument that he has otherwise
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established that his life or freedom would be threatened upon return to Bulgaria. 

Finally, substantial evidence supports the BIA’s denial of Ivanov’s CAT claim

because he failed to establish that it would be more likely than not that he would be

tortured upon his return to Bulgaria. 

PETITION DISMISSED IN PART, DENIED IN PART.