Filed: Feb. 03, 2009
Latest Update: Mar. 02, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT FEB 03, 2009 No. 08-13977 THOMAS K. KAHN Non-Argument Calendar CLERK _ Agency No. A97-191-180 FNU ZULKIFLI, Petitioner-Appellant, versus U.S. ATTORNEY GENERAL, Respondent-Appellee. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (February 3, 2009) Before BIRCH, WILSON and PRYOR, Circuit Judges. PER CURIAM: Fnu Zulkifli (“Zulkifli”), a native a
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT FEB 03, 2009 No. 08-13977 THOMAS K. KAHN Non-Argument Calendar CLERK _ Agency No. A97-191-180 FNU ZULKIFLI, Petitioner-Appellant, versus U.S. ATTORNEY GENERAL, Respondent-Appellee. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (February 3, 2009) Before BIRCH, WILSON and PRYOR, Circuit Judges. PER CURIAM: Fnu Zulkifli (“Zulkifli”), a native an..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 03, 2009
No. 08-13977
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
Agency No. A97-191-180
FNU ZULKIFLI,
Petitioner-Appellant,
versus
U.S. ATTORNEY GENERAL,
Respondent-Appellee.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 3, 2009)
Before BIRCH, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Fnu Zulkifli (“Zulkifli”), a native and citizen of Indonesia, petitions for
review of the Board of Immigration Appeals’s (“BIA”) order affirming the
Immigration Judge’s (“IJ”) order dismissing his application for asylum and
withholding of removal.1 This appeal presents two issues: (1) whether we have
jurisdiction to review the BIA’s determination that Zulkifli failed to file a timely
application for asylum; and (2) whether substantial evidence supports the
determination that Zulkifli did not meet the burden required for withholding of
removal.
I.
Conceding that he did not file his application for asylum within one-year of
his arrival into the United States, Zulkifli argues that the BIA erred by finding that
he failed to establish one of the exceptions, the existence of “changed
circumstances.” The Government responds that we lack jurisdiction to review the
denial of Zulkifli’s petition. “We review subject matter jurisdiction de novo.”
Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003) (per
curiam).
1
Zulkifli has abandoned his claim for relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”)
because he does not challenge the IJ’s denial on appeal. See Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1228 n.2 (11th Cir. 2005).
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 of the
alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). An application
filed after one year 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 an application within the period
specified . . . .” 8 U.S.C. § 1158(a)(2)(D). Section 1158(a)(3) provides: “No
court shall have jurisdiction to review any determination of the Attorney General
under paragraph (2).” 8 U.S.C. § 1158(a)(3).
Under our current precedent, § 1158(a)(3) divests us of jurisdiction to
review the determination that an asylum applicant filed an untimely application or
failed to establish changed or extraordinary circumstances to excuse his untimely
filing. Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1217 (11th Cir. 2002) (per
curiam) (holding that federal courts lack jurisdiction to review the Attorney
General’s decision as to timeliness of an asylum request); see also Ruiz v.
Gonzales,
479 F.3d 762, 765 (11th Cir. 2007) (providing that § 1158(a)(3)
“divests us of jurisdiction to review decisions of whether an alien complied with
the one-year time limit, or whether extraordinary circumstances were present to
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justify untimely filing of the asylum application”). Thus, we lack jurisdiction to
review the BIA’s determination that Zulkifli failed to demonstrate that changed
conditions justified his untimely filing.2 See 8 U.S.C. § 1158(a)(3). Accordingly,
we dismiss for lack of jurisdiction Zulkifli’s petition for review with respect to his
asylum claim.
II.
Zulkifli argues that he is eligible for withholding of removal because, if he
returns to Indonesia, he has a well-founded fear of future persecution because of
his conversion to Christianity and marriage to an ethnic Chinese woman.
Specifically, Zulkifli asserts that his family has threatened to punish him according
to the traditional law by putting him “under the culture court” whereby he would
be “thrown into the jungle with feet and hands bounded or stoned to death.”
Further, Zulkifi offers evidence that Muslim extremist groups in Indonesia
persecute Christians and interracial marriages like his, and the Indonesian
government has not provided in the past adequate protection for its citizens. The
2
Although § 106(a)(1)(A)(iii) of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat.
231, 310 (2005), granted courts jurisdiction over constitutional claims or questions of law, we
have held that the Act did not vest us with jurisdiction to review a finding that an asylum
application was untimely or that extraordinary circumstances justified an untimely filing, because
these were discretionary or factual determinations. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d
954, 957 (11th Cir. 2005) (per curiam) (“The timeliness of an asylum application is not a
constitutional claim or question of law covered by the Real ID Act’s changes.”).
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Government responds that substantial evidence exists to support the IJ’s and
BIA’s finding that Zulkifli is not entitled to relief.
We review only the BIA’s decision, except we also review the IJ’s decision
where the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). “Insofar as the Board adopts the IJ’s reasoning, we
review the IJ’s decision as well.”
Id. Because in this case the BIA adopted the
reasoning of the IJ, we review both decisions of the IJ and the BIA.
We review the IJ’s and BIA’s factual determinations under the substantial
evidence test and will affirm if the decision “is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Mejia v.
U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007) (quotation omitted). Under
the substantial evidence test, we can reverse a finding of fact by the IJ or BIA
“only when the record compels a reversal; the mere fact that the record may
support a contrary conclusion is not enough to justify a reversal of the
administrative findings.” Adefemi v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir.
2004) (en banc). We review the IJ’s and BIA’s legal determinations de novo.
Mejia, 498 F.3d at 1256.
To obtain withholding of removal, an alien seeking withholding of removal
must show that his “life or freedom would be threatened in [his] country [of
5
origin] because of [his] race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). “The alien bears the
burden of demonstrating that it is ‘more likely than not’ [he] will be persecuted or
tortured upon being returned to [his] country.” Tan v. U.S. Att’y Gen., 446 F.3d
1369, 1375 (11th Cir. 2006) (quoting
Sepulveda, 401 F.3d at 1232).
“[P]ersecution is an extreme concept, requiring more than a few isolated incidents
of verbal harassment or intimidation, [and] . . . [m]ere harassment is not
persecution.”
Ruiz, 479 F.3d at 766 (quotations omitted). The standard for
withholding of removal “is more stringent than the ‘well-founded fear of future
persecution’ required for asylum.”
Tan, 446 F.3d at 1375 (citation omitted).
An alien may satisfy his burden of proof for withholding of removal in two
ways. First, an alien may establish past persecution based on a protected ground.
Id. Past persecution creates a rebuttable presumption that he has a well-founded
fear of future persecution and shifts the burden to the government to show
changed conditions in the country or the ability to avoid a future threat through
relocation.
Id. Second, an alien may establish that it is more likely than not that
he would be persecuted upon removal due to race, religion, nationality,
membership in a particular social group, or political opinion.
Id. However, an
alien “must demonstrate that his or her fear of persecution is subjectively genuine
6
and objectively reasonable.” Al Najjar, 257 F.3d at 1289. An alien cannot
demonstrate that he more-likely-than-not would be persecuted on a protected
ground if the alien could avoid a future threat by relocating to another part of the
proposed country of removal.
Tan, 446 F.3d at 1375.
Because Zulkifli did not allege, and no evidence exists, that he suffered past
persecution, he was not entitled to a presumption that he had a well-founded fear
of future persecution if returned to Indonesia. See 8 C.F.R. § 208.13(b)(1). The IJ
and the BIA determined that Zulkifli’s conversion to Christianity and marriage to
a woman of Chinese ethnicity did not render it “more likely than not” that Zulkifli
would be persecuted if returned to Indonesia. Having reviewed the record and the
parties’ briefs, we discern no error. Substantial evidence supports the
determination that Zulkifli did not establish an inability to avoid future
persecution. Notably, the IJ relied on evidence that the Indonesian government
extends “official status” to the Christian faith, recognizes some Christian holy
days, and the Indonesian constitution guarantees a citizen “the right to worship
according to his or her own religious belief.” Further, the IJ found that large
numbers of ethnically Chinese individuals live in peace in several areas of the
country, and the Indonesian government “officially promotes racial and ethnic
tolerance.” We agree that the record evidence does not compel a decision contrary
7
to the IJ’s decision and therefore deny Zulkifli’s petition with respect to his
withholding of removal claim.
III.
Because we lack jurisdiction to review the determination that Zulkifli failed
to file a timely asylum application and conclude that substantial evidence supports
the BIA’s decision affirming denial of Zulkifli’s application for withholding of
removal, we dismiss Zulkifli’s petition with respect to the asylum claim and deny
the petition with regard to the withholding of removal claim.
DISMISSED IN PART and DENIED IN PART.
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