Talia Joseph v. Alberto Gonzales

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3697
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Talia Joseph, *
*
Petitioner, *
*
v. * Petition for Review of
* an Order of the Board
Alberto Gonzales, * of Immigration Appeals.
*
Respondent. * [UNPUBLISHED]
*
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Submitted: February 7, 2007
Filed: March 15, 2007
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Before RILEY, MAGILL, and MELLOY, Circuit Judges.
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PER CURIAM.
Talia Joseph, a native and citizen of Haiti, petitions for review of an order of
the Board of Immigration Appeals (BIA), which affirmed the decision of the
immigration judge (IJ), denying her requests for asylum, withholding of removal, and
relief under the Convention Against Torture (CAT). Joseph also requests a stay of
deportation.
We first hold that we lack jurisdiction to review the BIA’s factual determination
that Joseph’s asylum application was untimely. See Yakovenko v. Gonzales, No. 05-
4123, 2007 WL 542233 at *3 (8th Cir. Feb. 23, 2007) (holding that a finding of
untimeliness is a factual finding shielded from our review by 8 U.S.C. § 1158(a)(3));
see also Tolego v. Gonzales, 452 F.3d 763, 766 (8th Cir. 2006) (“[T]his court lacks
jurisdiction to review either the IJ’s determination that the asylum application was not
timely filed or the Attorney General’s decision rejecting the applicant’s complaint of
changed circumstances.”). Also, because Joseph does not allege a legal error or a
constitutional violation such as a denial of due process, her asylum claim does not fit
within the limited jurisdictional grant contained in the REAL ID Act of 2005, Pub. L.
No. 109-13, Div. B, § 106(a)(1)(A)(iii), 119 Stat. 231, 310 (2005) (codified in relevant
part at 8 U.S.C. § 1252(a)(2)(B) and (D)).
With respect to Joseph’s requests for withholding of removal and CAT relief,
we note that the IJ found Joseph not credible and expressly denied all forms of relief
based on this finding. The IJ also listed various alternative and specific reasons for
denying relief. For example, the IJ listed as an alternative ground for denying
withholding of removal the fact that Joseph alleged persecution motivated by her
refusal to participate in illegal activity and not based on her political views or her
membership in a protected group. Notwithstanding these alternative grounds for
denying relief, it remains clear that the IJ expressly denied all forms of relief based on
the general conclusion that Joseph’s testimony was not credible and her story was
unbelievable.
The BIA, upon review, held that Joseph failed to demonstrate that the adverse
credibility finding was clearly erroneous. We owe considerable deference to this
underlying credibility determination and must affirm “unless the evidence compels a
conclusion to the contrary.” Kenyeres v. Ashcroft, 538 U.S. 1301, 1306 (2003).
Here, the credibility determination enjoyed substantial support, the IJ carefully
enumerated specific and cogent reasons for disbelieving Joseph, and the record does
not compel a contrary conclusion. Given the breadth of the adverse credibility
determination in this case, it precludes both forms of requested relief. See, e.g.,
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Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir. 2006) (holding that where
withholding of removal and CAT claims were “based on the same discredited
testimony, the BIA properly concluded that the adverse credibility finding is fatal to
all . . . claims”).
Accordingly, we deny the petition. See 8th Cir. R. 47B. Joseph’s request for
a stay of deportation is also denied.
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