Lyubomir Ivanov Ivanov v. U.S. Atty. General ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 30, 2008
No. 07-13996
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
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
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.
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