FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 25, 2007

THOMAS K. KAHN

CLERK

 Honorable David G. Trager, United States District Judge for the Eastern District of *

New York, sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-16419

________________________

BIA Nos. A77-006-166 & A97-209-929

RAMON ANTONIO DELGADO, 

CARMEN YELITZA DELGADO, 

RAMON ANTONIO DELGADO MAZA, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(May 25, 2007)

Before BARKETT and KRAVITCH, Circuit Judges, and TRAGER, District *

Judge.

PER CURIAM:
 The Delgados initially requested relief under the United Nations Convention Against

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Torture (“CAT”). The IJ and BIA denied relief, and the Delgados do not challenge this decision. 

Therefore, they have abandoned the issue and we do not discuss it further. Sepulveda v. U.S.

Att’y Gen., 401 F.3d 1226, 1228 (11th Cir. 2005). 

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Ramon Antonio Delgado (“Delgado”), his wife Carmen Yelitza Delgado

(“Carmen”), and their adult son Ramon Delgado (“Ramon”) (collectively “the

Delgados”), natives and citizens of Venezuela, petition this court for review of the

Board of Immigration Appeals’s (“BIA”) affirmance of the Immigration Judge’s

(“IJ”) orders of removal and denials of asylum and withholding of removal, 8

U.S.C. §§ 1158, 1231. In their petition for review, they challenge (1) the 1

determination that their asylum applications were untimely, (2) the denial of

withholding of removal relief, and (3) the denial of derivative benefits for Carmen. 

After oral argument and a review of the record, we dismiss the petition as to the

first issue, and grant the petition as to the second. The final issue before us is one

of first impression in this circuit: whether a petitioner’s spouse is eligible for

derivative benefits under the withholding statute. We conclude that she is not;

accordingly, we deny the petition on this ground.

I. Background

Delgado, Carmen, and Ramon were admitted to the United States on

different days in 1999. Each remained beyond the expiration period of his or her

visa and received notices to appear charging them with removability. Delgado and
3

Ramon filed separate applications for asylum in 2003. Carmen proceeded as a

beneficiary of Delgado’s application. The applications were consolidated before

the IJ.

The basis for the requested relief is as follows according to Delgado’s and

Ramon’s testimony at the removal hearing: In 1997, Delgado, a former military

official, and Ramon participated briefly in an organization supporting Venezuelan

Presidential candidate Hugo Chavez led by retired military personnel. After

attending three meetings, Delgado learned that the organization planned to use

violence to achieve its goals, and he denounced the organization and spoke out

against the use of violence. In March 1998, he received several threatening phone

calls. Thereafter, two unknown masked men approached Delgado and Ramon,

pointed what turned out to be unloaded guns at them, and pulled the triggers. 

These men warned Delgado and Ramon that they would be dead if they continued

to speak out. Delgado reported the incident to the police.

In the following weeks, on two separate occasions, Delgado discovered that

the brakes on his car had been cut, his tires were slashed, his windows were

broken, and someone vandalized his car with political graffiti. Both of these

incidents occurred while the car was parked in his housing complex. Again,

Delgado reported these incidents to the police.

Delgado continued to receive threatening calls, and in May 1998, five
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unknown men attacked Ramon, who was beaten until he was almost unconscious. 

The men told Ramon that there would be further consequences if Delgado

continued his political activities. Ramon received medical treatment, and Delgado

reported this incident to the police. Delgado ultimately decided that the family had

to leave Venezuela, and he and his family came to the United States in August

1998, but they remained only a short time before Delgado and Carmen returned to

Venezuela. Ramon stayed in the United States except for a brief trip back home. 

Back in Venezuela, Delgado went into hiding but re-entered the United States in

October 1998, this time leaving Carmen in Venezuela. Delgado returned to

Venezuela in March 1999, where he found another threatening message on his

answering machine. Realizing he was still in danger, Delgado returned to the

United States in April 1999; Carmen returned in December 1999. Ramon had reentered the United States in February 1999. 

Delgado did not apply for asylum immediately, in part because immigration

attorneys allegedly had told him that he was not eligible for relief. In 2001,

Delgado received an invitation from the Venezuelan Consulate, which he

interpreted as a reminder that Chavez’s supporters could find him. In 2003,

Delgado’s attorney in Venezuela received a death threat warning Delgado not to

return. The Delgados then filed their applications for asylum, withholding of

removal, and CAT relief, attaching the police reports and reports of Ramon’s
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medical treatment following the attack on him. 

The IJ denied relief, concluding that the consolidated asylum application

was time-barred and that, although Delgado and Ramon were credible, with the

exception of the alleged 2003 threat to Delgado’s attorney, the events had not

established past persecution on account of a protected ground. The BIA affirmed

without comment. The Delgados now petition this court for review.

II. Discussion

The Delgados challenge the IJ and BIA’s conclusion that their asylum

applications were untimely and that they failed to establish past persecution based

on a protected ground. The government responds that we lack jurisdiction to

review the timeliness issue, Delgado and Ramon were not entitled to relief, and

Carmen was not entitled to derivative benefits. We address each of these in turn.

A. Asylum

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

Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002). 

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). Under § 1158(a)(3),

this court lacks jurisdiction to consider an untimely application unless the alien can

demonstrate extraordinary circumstances relating to the delay in filing an

application within the one-year period. See id. § 1158(a)(2)(D); Mendoza v. U.S.
 The Real ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231. 2

 This panel is bound by this decision unless it is overruled by the U.S. Supreme Court or 3

this court sitting en banc. Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8, 1302-03 (11th Cir.

2001). 

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Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). This rule was not altered by the

expansion of jurisdiction in the REAL ID Act. See Chacon-Botero v. U.S. Att’y 2

Gen., 427 F.3d 954, 957 (11th Cir. 2005). 

Delgado and his family entered the United States for the last time on 

different dates in 1999, but did not file applications for asylum until June 2003. 

The IJ determined both that the Delgados failed to comply with the one-year time

limit, and that there were no extraordinary or changed circumstances that would

toll the one-year statute of limitations. See Mendoza, 327 F.3d at 1287. In their

appeal to the BIA, the Delgados did not raise the timeliness issue. Therefore, they

have not exhausted it, and we need not consider it. Fernandez-Bernal v. U.S. Att’y

Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001). Even if we were to address the 3

issue, timeliness is not a question of law. We, therefore, lack jurisdiction to review

the IJ and BIA’s decision. Accordingly, we dismiss the petition as to the asylum

claims.

B. Withholding of Removal

Where the BIA adopts the IJ’s decision, we review the IJ’s decision. Al-
7

Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Legal determinations

are reviewed de novo, and factual findings are reviewed under the substantial

evidence test. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). 

We must affirm the decision below “if it is supported by reasonable, substantial,

and probative evidence on the record considered as a whole.” Antipova v. U.S.

Att’y Gen., 392 F.3d 1259, 1261 (11th Cir. 2004) (quotation omitted). Under this

highly deferential standard of review, denial of relief may be reversed only if the

evidence would compel a reasonable fact finder to conclude that the requisite fear

of persecution exists. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1, 112 S.Ct. 812,

815 n.1, 117 L.Ed.2d 38 (1992).

An alien is entitled to withholding of removal under the INA if he can show

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

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

Mendoza, 327 F.3d at 1287; see also INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). “An

alien bears the burden of demonstrating that he more-likely-than-not would be

persecuted or tortured upon his return to the country in question.” Mendoza, 327

F.3d at 1287. The alien can meet his burden by showing either: (1) “past

persecution in his country based on a protected ground,” in which case a rebuttable

presumption is created that his life or freedom would be threatened if he returned

to his country; or (2) “a future threat to his life or freedom on a protected ground in
 Where the Delgados experienced past persecution, there is a rebuttable presumption of 4

future persecution, and the burden shifts to the government to show both that (1) relocation is

possible within Venezuela, and (2) it is reasonable to expect the Delgados to relocate. See

Arboleda v. U.S. Att’y Gen., 434 F.3d 1220, 1223-24 (11th Cir. 2006). Regarding the

government’s contention that, because Chavez has been elected, there no longer would be any

threats to the Delgados, the Country Report states that there have been at least a dozen politically

motivated killings after Chavez’s election. 

 The IJ explicitly found that Delgado’s claims of threats to his attorney in 2003 were not 5

credible and the Delgados do not specifically challenge this finding on appeal. Because the

Delgados did not raise the issue before the BIA, they have not exhausted it. INA § 242(d)(1), 8

U.S.C. § 1252(d)(1); Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir.

2001). Notably, the IJ found the remainder of Delgado’s testimony regarding the other incidents

credible. Thus, we consider those events about which Delgado testified credibly.

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his country.” Al Najjar, 257 F.3d at 1287. 

4

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

incidents of verbal harassment or intimidation.” Sepulveda v. U.S. Attorney Gen.,

401 F.3d 1226, 1231 (11th Cir. 2005) (quotations omitted). In determining

whether an alien has suffered past persecution, the IJ must consider the cumulative

effects of the incidents. Ruiz v. U.S. Att’y Gen., 479 F.3d 762, 766 (11th Cir. 5

2007).

After a thorough review of the record, we are compelled to conclude that the

IJ and BIA erred by denying Delgado and Ramon withholding of removal. 

Delgado and Ramon were stopped by masked men who pointed unloaded

weapons at them and pulled the triggers. A few months later, Ramon was attacked

and severely beaten. In both cases, the unknown attackers stated that these events

were warnings and there would be consequences for Delgado’s political
 Unlike the facts in Silva, in this case, the attackers made statement showing the 6

motivation of their attacks, and, during the second attack, specifically identified Ramon as

Delgado’s son before beginning to beat him.

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opposition. The undisputed testimony indicated that Ramon was attacked as result

of his and his father’s political opinions. The record therefore compels the

conclusion that the attacks were on account of Delgado’s political opinion, even

though Delgado and Ramon were unable to specifically name or identify the

attackers. Cf. Silva v. U.S. Att’y Gen., 448 F.3d 1229 (11th Cir. 2006) (assuming

without deciding that the incident in which the unknown gunmen shot at Silva

qualified as persecution, but holding that, because Silva testified that she did not

know who the gunmen were, the record did not compel the conclusion that she was

attacked based upon her political opinion). Although each of the incidents taken 6

separately would not establish persecution, see Sepulveda, 401 F.3d at 1231, when 

considered together the events compel the conclusion that Ramon and Delgado

suffered past persecution due to their political opinions. Ruiz, 479 F.3d at 766. 

Therefore, we conclude that based on the cumulative effect of the two attacks, the

continued threatening calls, and the incidents involving the car, Delgado and

Ramon have met their burden. Accordingly, we grant the petition as to Delgado

and Ramon. 

C. Derivative Benefits

The final issue, and one of first impression in this circuit, is whether the
10

withholding statute provides for derivative benefits for an alien’s spouse. 

In interpreting a statute, our first step “is to determine whether the language

at issue has a plain and unambiguous meaning with regard to the particular dispute

in the case.” D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1235 (11th Cir.

2005). “Where Congress includes particular language in one section of a statute

but omits it in another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate inclusion or exclusion.” 

Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17

(1983) (citation and quotations omitted). Also, “[w]here Congress knows how to

say something but chooses not to, its silence is controlling.” CBS Inc. v.

PrimeTime 24 Joint Venture, 245 F.3d 1217, 1226 (11th Cir. 2001) (citing In re

Griffith, 206 F.3d 1389, 1394 (11th Cir. 2000) (en banc) (citation and quotations

omitted, alteration in original). 

Although the asylum statute explicitly creates derivative rights for the

spouse of a petitioner, the withholding statute contains no mention of derivative

rights. Compare 8 U.S.C. § 1158(b)(3)(A) and 8 C.F.R. §§ 207.7 and 208.21, with

8 U.S.C. § 1231. Congress’s silence thus dictates our holding in this case: there

are no derivative benefits associated with a grant of withholding of removal. See

also Huang v. I.N.S., 436 F.3d 89, 95 (2d Cir. 2006) (denying derivative benefits);

Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005) (same).
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Accordingly, we deny the petition as to Carmen’s claim for withholding of

removal.

III. Conclusion.

Based on the foregoing, we DISMISS the petition in part as to the asylum

claim, we GRANT the petition in part as to Delgado’s and Ramon’s withholding

claims, and we DENY Carmen’s claim for derivative benefits. The BIA’s decision

is VACATED and REMANDED for further proceedings consistent with this

opinion.