Nestor Abel Sanchez v. U.S. Attorney General , 153 F. App'x 698 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 4, 2005
No. 05-12924
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
BIA Nos. A95-902-731 & A95-902-732
NESTOR ABEL SANCHEZ,
OLGA LUCIA OTALORA,
KAROL BIBIANA SANCHEZ,
PAULA LORENA SANCHEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(November 2, 2005)
Before CARNES, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Nestor Abel Sanchez petitions for review of the Board of Immigration
Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) decision
which denied his application for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”) and the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”). After review, we deny Sanchez’s petition in part and dismiss it in part.
I. BACKGROUND
On May 14, 1999, Sanchez, a native and citizen of Colombia, entered the
United States as a non-immigrant visitor. More than three years later, in June
2002, Sanchez filed an application for asylum, withholding of removal, and CAT
relief, alleging persecution on account of an imputed political opinion.1 On July
31, 2002, Sanchez was issued a Notice to Appear, charging that he had remained in
the United States without authorization.
The IJ denied Sanchez’s application for asylum, withholding of removal,
and CAT relief.2 An alien may apply for asylum if he “demonstrates by clear and
convincing evidence that the application has been filed within 1 year after the date
1
Sanchez is the primary applicant. Sanchez’s wife and two children are derivative applicants
and, therefore, rely on his asylum application.
2
Sanchez does not raise any challenge in his brief to the denial of CAT relief. When an
appellant fails to offer argument on an issue, that issue is abandoned. See Sepulveda v. United
States Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). Accordingly, this issue is not discussed
further.
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of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). Sanchez
admitted that his application was not filed within one year. However, immigration
officials may still consider an untimely application “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 an application within the period
specified . . . .” 8 U.S.C. § 1158(a)(2)(D). The IJ found that Sanchez’s asylum
application was time barred, and that he had not established exceptional and/or
extraordinary circumstances for not filing within one year of his arrival.
As for Sanchez’s application for withholding of removal, the IJ noted that it
has “some concerns” regarding Sanchez’s credibility and that Sanchez’s claim was
“insufficiently documented.” However, the IJ ultimately denied Sanchez’s
application for withholding of removal on the merits, determining that Sanchez had
“not established that if he was now to return to Colombia, it is more likely than not
that he would be subject to persecution.”
The BIA summarily affirmed the IJ’s decision, and Sanchez filed the present
petition for review.3
II. DISCUSSION
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Because Sanchez’s removal proceedings commenced after April 1, 1997, the permanent
rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No.
104-208, 110 Stat. 3009 (1996) (“IIRIRA”), govern his petition for review.
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A. Asylum
With regard to Sanchez’s asylum application, the IJ determined that his
application was untimely and that Sanchez failed to demonstrate changed or
extraordinary circumstances which would excuse his untimely application. This
Court has previously determined that it is without jurisdiction to review the IJ’s
determinations regarding the timeliness of an alien’s asylum application. See
Mendoza v. United States Att’y Gen., 327 F.3d 1283, 1287 (11 th Cir. 2003) (noting
8 U.S.C. § 1158(a)(3) “divests our Court of jurisdiction to review a decision
regarding whether an alien complied with the one-year time limit or established
extraordinary circumstances that would excuse his untimely filing”); Fahim v.
United States Att’y Gen., 278 F.3d 1216, 1217 (11 th Cir. 2002) (“As to the denial
of the request for asylum as being untimely, we hold that federal courts do not have
jurisdiction to review the Attorney General’s decision as to timeliness of such a
request.”).
After this Court issued these decisions, Congress enacted the REAL ID Act
of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005). The REAL ID Act made
several changes to how courts are to review petitions for review. For example,
under the REAL ID Act, no section “which limits or eliminates judicial review,
shall be construed as precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court of appeals in
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accordance with this section.” 8 U.S.C. § 1252(a)(2)(D); see also Balogun v.
United States Att’y Gen., – F.3d –, 2005 WL 2333840, at *2-5 (11 th Cir. Sept. 26,
2005) (noting that under the REAL ID Act’s amendments courts of appeal now
have jurisdiction to review the question of law as to whether “a petitioner’s
conviction is an aggravated felony within the meaning of 8 U.S.C. § 1182(h)”).
However, “[t]he timeliness of an asylum application is not a constitutional claim or
question of law covered by the REAL ID Act’s changes.” Chacon-Botero v.
United States Att’y Gen., – F.3d –, slip op. at 4 (11 th Cir. Oct. 6, 2005) (reviewing
the REAL ID Act and concluding that discretionary or factual determinations, such
as the timeliness of an asylum application, continue to fall outside this Court’s
jurisdiction and that the timeliness issue is not a constitutional claim or question of
law under the REAL ID Act); see also Vasile v. Gonzales, 417 F.3d 766, 768 (7 th
Cir. 2005) (concluding that even after the REAL ID Act courts of appeals do not
have jurisdiction to review issues of timeliness concerning asylum applications
because “discretionary or factual determinations continue to fall outside the
jurisdiction of the court of appeals entertaining a petition for review”).
Consequently, even after the REAL ID Act, we still lack jurisdiction to review the
IJ’s and BIA’s denial of Sanchez’s asylum claim. See Chacon-Botero, – F.3d at –,
slip op. at 4.
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Accordingly, we dismiss Sanchez’s petition as to his asylum claim for lack
of jurisdiction.
B. Withholding of Removal
Although we do not have jurisdiction to review the IJ’s denial of Sanchez’s
asylum application, we do have jurisdiction to entertain his petition for review of
the IJ’s denial of his application for withholding of removal. Fahim, 278 F.3d at
1218. As for the denial of Sanchez’s application for withholding of removal, “[w]e
review the IJ’s factual determinations under the substantial evidence test.” Forgue
v. United States Att’y Gen., 401 F.3d 1282, 1286 (11 th Cir. 2005) (citations
omitted). Furthermore,
[u]nder this highly deferential test, we affirm the IJ’s decision if it is
supported by reasonable, substantial, and probative evidence on the
record considered as a whole. Thus, we do not engage in a de novo
review of factual findings by the IJ. Similarly, we cannot find, or
consider, facts not raised in the administrative forum, nor can we
reweigh the evidence from scratch.
Id. (quotation marks, citations, and alterations omitted).
“An alien seeking withholding of removal under the INA must show that his
life or freedom would be threatened on account of race, religion, nationality,
membership in a particular social group, or political opinion.” Mendoza v. United
States Att’y Gen., 327 F.3d 1283, 1287 (11 th Cir. 2003). “An alien bears the
burden of demonstrating that he more-likely-than-not would be persecuted or
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tortured upon his return to the country in question.” Id. Furthermore, “[a]n alien
cannot demonstrate that he more-likely-than-not would be persecuted on a
protected ground if the IJ finds that the alien could avoid a future threat by
relocating to another part of his country.” Id.4
Sanchez testified that he was threatened by The Revolutionary Armed
Forces of Colombia (“FARC”) when he refused to provide information he acquired
at his job, that he and his wife received threatening phone calls from FARC, and
that he attended an action board meeting in a south Bogota neighborhood and
found his car windows shattered and a threatening note attached to a rock in the
car. The IJ questioned Sanchez’s credibility as to many of these events and
determined that Sanchez had failed to meet his burden of proof and persuasion that
he was persecuted while in Columbia. Specifically, the IJ stated that the
threatening phone calls did not “mean that [Sanchez] was persecuted in Columbia.”
The IJ further concluded that these events failed to establish that it was more
likely than not that Sanchez would be persecuted if returned to Colombia. The IJ
also noted that Sanchez “had failed to establish that he would be unable to mo[v]e
4
If the alien demonstrates past persecution, there is a rebuttable presumption that he has a
well-founded fear of future persecution. See Antipova v. United States Att’y Gen., 392 F.3d 1259,
1264 (11th Cir. 2004); 8 C.F.R. § 208.16(b)(1)(i). If, however, the alien does not establish past
persecution, he bears the burden of showing a well-founded fear of future persecution by showing
that: (1) he fears persecution based on one of the enumerated grounds; (2) there is a reasonable
possibility that he will suffer persecution if he returns to his country; and (3) he could not avoid
persecution by reasonably relocating to another part of his country. See Antipova, 392 F.3d at 1264;
8 C.F.R. § 208.16(b)(2), (3)(i).
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to another part of Colombia.” We readily conclude that substantial evidence
supports the IJ’s denial of Sanchez’s application for withholding of removal.
DISMISSED IN PART AND DENIED IN PART.
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