Ehab El Ashmawy v. John Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3737
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Ehab El Ashmawy, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the
* Board of Immigration Appeals.
1
Alberto Gonzales, Attorney General of * [UNPUBLISHED]
the United States, *
*
Respondent. *
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Submitted: May 5, 2005
Filed: May 10, 2005
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Before WOLLMAN, MURPHY, and BENTON, Circuit Judges.
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PER CURIAM.
Ehab El Ashmawy, a citizen of Egypt, petitions for review of an order of the
Board of Immigration Appeals (BIA), which affirmed an Immigration Judge’s (IJ’s)
denial of asylum, withholding of removal, and relief under the Convention Against
Torture (CAT).
1
Alberto Gonzales has been appointed to serve as Attorney General of the
United States, and is substituted as appellee pursuant to Federal Rule of Appellate
Procedure 43(c).
Ashmawy entered the United States in October 1997 on a six-month
nonimmigrant visa. In February 2000 the former Immigration and Naturalization
Service (INS) charged him with being removable for having remained in the United
States beyond the authorized period. In August 2000 Ashmawy conceded
removability, and in March 2001 he applied for asylum, alleging that in 1998 he had
converted from Islam to Mormon, and that he feared he would be tortured or killed
if returned to Egypt because Muslims were forbidden from converting to Christianity.
The IJ denied Ashmawy asylum because his asylum application was untimely, and
denied him withholding of removal and CAT relief because he had not shown it was
more likely than not that he would be persecuted in Egypt.
Ashmawy appealed to the BIA, which dismissed the appeal in October 2003.
The BIA found that Ashmawy had not timely applied for asylum before the one-year
deadline imposed by 8 U.S.C. § 1158(a)(2)(B), and had not shown changed or
extraordinary circumstances that would have allowed him to file a late application
under 8 U.S.C. § 1158(a)(2)(D). The BIA also denied withholding of removal and
CAT relief because Ashmawy had failed to show it was more likely than not that he
would be persecuted on the basis of his religion if returned to Egypt. The BIA stated
that, although the 1997 Profile of Asylum Claims and Country Conditions Report
indicated that Christians were subject to harassment and persecution by terrorist
groups in Egypt, and Ashmawy had testified that he was baptized a Mormon in 1998
and attended church on Sundays for six or seven months, Ashmawy had not provided
sufficient evidence that he would be subjected to persecution in Egypt. Specifically,
Ashmawy failed to show that, since March 2000, he had continued to be involved in
the Mormon church; that he currently practiced Mormonism by, for instance,
attending services or other church functions or paying his tithes; or that he planned
to continue to practice Mormonism if removed to Egypt.
Ashmawy now asserts that he is entitled to adjustment of status; challenges the
denial of an I-130 immediate-relative visa petition filed on his behalf; and argues that
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the BIA’s denial of asylum was contrary to its finding that Christians face
discrimination and persecution in Egypt, and that the BIA’s summary affirmance
violated his due process rights.
We lack jurisdiction to review Ashmawy’s arguments regarding adjustment of
status and the denial of his I-130 petition. See Hassan v. INS, 110 F.3d 490, 494 (7th
Cir. 1997) (INS’s decisions with regard to disposition of visa petition or
change-of-status application are collateral issues that are not reviewable on appeal
from deportation proceedings). We also lack jurisdiction to review the BIA’s
determination that Ashmawy’s asylum application was untimely and that he did not
show changed or extraordinary circumstances justifying his untimely asylum
application. See 8 U.S.C. § 1158(a)(3) (courts do not have jurisdiction to review any
determination with respect to timeliness of asylum application); Ngure v. Ashcroft,
367 F.3d 975, 988-89 (8th Cir. 2004) (judicial review of finding that alien did not
show changed or extraordinary circumstances relating to delay in filing asylum
application is precluded).
After careful review of the record, we conclude that Ashmawy’s due process
challenge fails. See Loulou v. Ashcroft, 354 F.3d 706, 708-09 (8th Cir. 2003) (BIA’s
summary affirmance does not violate due process). We also conclude that substantial
evidence supports the BIA’s denial of withholding of removal and denial of CAT
relief. See Menendez-Donis v. Ashcroft, 360 F.3d 915, 917-19 (8th Cir. 2004)
(standard of review); Prokopenko v. Ashcroft, 372 F.3d 941, 946 (8th Cir. 2004)
(alien who was not religiously active was unlikely to suffer religious persecution if
returned to native country).
Accordingly, we deny the petition for review, and we deny respondent’s
motion to dismiss.
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