Juarez Jimenez v. Holder , 410 F. App'x 101 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
December 17, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
JAIME JUAREZ JIMENEZ,
Petitioner,
v. No. 10-9521
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before LUCERO, EBEL, and O’BRIEN, Circuit Judges.
Jaime Juarez Jimenez, a citizen of Mexico, petitions for our review of an
order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from
the denial of an application for asylum, restriction on removal, and relief under
the Convention Against Torture (“CAT”). We dismiss the petition in part for lack
of jurisdiction and deny the remainder.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I
The BIA upheld an Immigration Judge’s (“IJ”) determination in an order
issued by a single Board member. See 8 C.F.R. § 1003.1(e)(5). Accordingly,
“this court reviews both the decision of the BIA and any parts of the IJ’s decision
relied on by the BIA in reaching its conclusion.” Dallakoti v. Holder, 619 F.3d
1264, 1267 (10th Cir. 2010). We do not consider any alternative rationales for
decision articulated by the IJ that were not taken up by the BIA. Id. at 1267 n.1.
“We review the BIA’s legal determinations de novo and its factual findings for
substantial evidence.” Id. at 1267. Under the latter standard, “factual findings
are conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” Id. (quotation omitted).
II
To be considered for asylum, an alien must show “by clear and convincing
evidence that the [asylum] application has been filed within 1 year after the date
of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). But an
untimely application “may be considered . . . if the alien demonstrates to the
satisfaction of the Attorney General either the existence of changed circumstances
which materially affect the applicant’s eligibility for asylum or extraordinary
circumstances relating to the delay in filing.” § 1158(a)(2)(D). Judicial review of
both the timeliness determination and the decision whether to excuse an untimely
application is significantly limited by § 1158(a)(3) and § 1252(a)(2)(D). Under
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the former, “the agency’s discretionary and factual determinations remain outside
the scope of judicial review,” but the latter preserves our “jurisdiction to review
constitutional claims and questions of law.” Ferry v. Gonzales, 457 F.3d 1117,
1130 (10th Cir. 2006) (quotation omitted).
Juarez Jimenez last entered the United States on February 25, 2002, and
filed his application for asylum on March 6, 2007. He cited several
circumstances as contributing to his five-year delay in seeking asylum, including
his ignorance of applicable law and procedures, his lawyer’s failure to ask him
about persecution in Mexico, and various delays in the immigration proceedings
relating to his removal—all of which the BIA discounted as inadequate to justify
his delay in seeking asylum. We agree with the government that the weight
accorded to such matters falls within the agency’s discretion and is thus outside
the scope of our review.
Juarez Jimenez also argued that his delay should have been excused
because of his cooperation with authorities in the prosecution of a prior employer
for immigration violations, for which he was paroled into the United States and
given a work permit that expired in March 2005. In his immigration proceedings,
he argued that the deadline for seeking asylum should essentially be tolled during
this period. But the BIA held that the parole period did not continue long enough
to bring his five-year delay under the one-year limit in any event. Such
determinations as to timeliness fall squarely within the jurisdictional bar.
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Arguing that the bar does not apply, Juarez Jimenez claims that the BIA
committed legal error in failing to “conduct an individualized analysis of the facts
of [his] particular case,” as required by In re Y-C-, 23 I & N Dec. 286, 287-88
(BIA 2002), because he alleges the BIA did not explicitly weigh his assistance to
the government in the prosecution of his employer. But the BIA did in fact
consider these circumstances, it simply did not afford the weight to those
circumstances that Juarez Jimenez would prefer. Equally meritless is Juarez
Jimenez’s contention that the IJ’s invitation to file an asylum application after the
issue of persecution arose in 2007 bound the agency to excuse his delay.
Juarez Jimenez’s challenges to the BIA’s dismissal of his untimely asylum
application do not trigger any exception to the general jurisdictional bar to federal
court review of such rulings. We therefore dismiss this aspect of his petition.
III
The BIA did not directly address the substance of Juarez Jimenez’s
allegations regarding persecution, but instead focused solely on his lack of
credibility. Thus, although petitioner argues at length that the incidents he related
about his life in Mexico establish a clear probability of persecution and torture,
see Hayrapetyan v. Mukasey, 534 F.3d 1330, 1336 (10th Cir. 2008), we review
only the BIA’s decision upholding the IJ’s adverse credibility determination. “We
do not question credibility findings that are substantially reasonable.” Ismaiel v.
Mukasey, 516 F.3d 1198, 1205 (10th Cir. 2008) (quotation omitted). But in light
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of the potentially dispositive nature of such findings, “specific, cogent reasons”
must be given for disbelieving the alien. Id.The BIA upheld the IJ’s adverse credibility determination, which was based
on several factors. First and foremost, Juarez Jimenez’s application for relief did
not mention the most significant incident of alleged persecution he relied on at the
hearing—an armed attack in which a friend was killed by multiple gunshot
wounds. The IJ found that the belated introduction of such an important factual
allegation at the hearing cast doubt on petitioner’s overall veracity, and the BIA
agreed. Regardless of whether we would have reached this same conclusion in the
first instance, we cannot say it was unreasonable or lacked a cogent basis. Juarez
Jimenez attempted to explain his omission by stating that the application lacked
space enough to include all of his allegations (even though the form explicitly
directs the applicant to “attach additional sheets of paper as needed to complete
your responses”). We cannot gainsay the BIA’s assessment that petitioner’s
explanation was wanting.
Two other points were cited by the IJ and BIA to support their adverse
credibility determination. Juarez Jimenez claimed he was accosted by a gang
while crossing into the United States. He asserted that the gang took his
documents and his gun, but then relinquished the gun. The IJ and BIA found that
such a story was inherently implausible. In addition, the IJ and BIA noted that
Juarez Jimenez’s description of the incident in which his friend was killed was
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rendered implausible by his claim to know that his friend was shot precisely eight
times. The record does not show these assessments to be unreasonable.
We must uphold the IJ’s determination, affirmed by the BIA, that Juarez
Jimenez lacked sufficient credibility to warrant acceptance of his uncorroborated
testimony. Because there was a sufficient basis for the BIA’s decision to reject
Juarez Jimenez’s requests for restriction on removal and CAT relief, we deny the
instant petition for review without reaching Juarez Jimenez’s objections regarding
unrelated aspects of the IJ’s analysis.
Finally, in the course of his discussion of the designated issues addressed
above, Juarez Jimenez makes a few passing references to the IJ being biased and
prejudging his case. These perfunctory accusations fall far short of the developed
argument necessary to place an issue properly before us for review. See, e.g.,
Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994).
IV
The petition for review is DISMISSED for lack of jurisdiction insofar as it
challenges the dismissal of the untimely application for asylum, and is DENIED
on the merits in all other respects. The petitioner’s motion to proceed in forma
pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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