Filed: Jan. 29, 2020
Latest Update: Mar. 03, 2020
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 29 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JONE KOLI, AKA Jone Banuve, No. 16-72789 Petitioner, Agency No. A089-303-177 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 3, 2019 San Francisco, California Before: LUCERO,** CALLAHAN, and BADE, Circuit Judges. Jone Koli, aka Jone Banuve (“Banuve”)
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 29 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JONE KOLI, AKA Jone Banuve, No. 16-72789 Petitioner, Agency No. A089-303-177 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 3, 2019 San Francisco, California Before: LUCERO,** CALLAHAN, and BADE, Circuit Judges. Jone Koli, aka Jone Banuve (“Banuve”),..
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 29 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONE KOLI, AKA Jone Banuve, No. 16-72789
Petitioner, Agency No. A089-303-177
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 3, 2019
San Francisco, California
Before: LUCERO,** CALLAHAN, and BADE, Circuit Judges.
Jone Koli, aka Jone Banuve (“Banuve”), petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
Exercising jurisdiction under 8 U.S.C. § 1252, we deny Banuve’s petition.1
Where the BIA adopts the findings and reasoning of the Immigration Judge
(“IJ”) and also provides its own review of the evidence and law, we review the
decisions of both the IJ and the BIA. See Flores-Vega v. Barr,
932 F.3d 878, 886
(9th Cir. 2019). We review factual findings for substantial evidence, deeming the
IJ’s findings conclusive “unless the evidence presented would compel a reasonable
finder of fact to reach a contrary result.”
Id. (citation and emphasis omitted).
Ordinarily, an applicant must apply for asylum within one year of arriving in
the United States. 8 U.S.C. § 1158(a)(2)(B). A late application may be
considered, however, if the asylum applicant establishes changed circumstances
that materially affect his eligibility. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. §
1208.4(a)(4)(i). Nevertheless, the applicant must apply within a reasonable period
given the changed circumstances. 8 C.F.R. § 1208.4(a)(4)(ii).
As a threshold matter, we conclude we have jurisdiction to review the BIA’s
decision that Banuve failed to establish changed circumstances excusing the late
filing of his asylum application. Although we generally lack jurisdiction to review
the denial of an asylum application as untimely, we retain jurisdiction to review
constitutional claims or questions of law, including “questions involving the
1
Because the parties are familiar with the facts of this case, we restate them
only to the extent necessary to explain our decision.
2 16-72789
application of statutes or regulations to undisputed facts.” Al Ramahi v. Holder,
725 F.3d 1133, 1138 (9th Cir. 2013) (citation omitted). Banuve challenges the
BIA’s application of the changed-circumstances exception to his asylum
application. The BIA confined its review of the timeliness issue to undisputed
facts and conducted its own legal analysis applying the statute to those facts.
Under these circumstances, our jurisdiction is preserved. See Taslimi v. Holder,
590 F.3d 981, 985 (9th Cir. 2010).
Turning to the substance of the timeliness issue, Banuve entered the United
States in 2003 but did not seek asylum until 2009. His asylum claim stems from an
incident in 2002 in which Josaia Bainimarama, then the commander of Fiji’s armed
forces, allegedly threatened to kill Banuve after Banuve accused Bainimarama of
involvement in the 2000 coup in Fiji. Banuve contends that his circumstances
changed in 2009 when Bainimarama, now prime minister, refused to hold
elections. We disagree. Substantial evidence supports the BIA’s determination
that Banuve’s delay in applying for asylum was not reasonable because any
changed circumstances materialized following Bainimarama’s December 2006
coup. We therefore affirm the denial of Banuve’s asylum application as untimely.
With respect to his requests for withholding of removal and CAT relief,
Banuve challenges the adverse credibility determination underlying the denial of
that relief. “We must uphold an adverse credibility determination so long as even
3 16-72789
one basis is supported by substantial evidence.” Lizhi Qiu v. Barr,
944 F.3d 837,
842 (9th Cir. 2019) (quotation omitted). Substantial evidence supports the findings
that (1) Banuve provided inconsistent testimony about whether he supported the
2000 coup and (2) documentary evidence conflicts with his assertion that he did
not support the coup.
Banuve does not challenge the denial of his withholding of removal or CAT
claims on any basis other than the adverse credibility determination. Any such
challenge is therefore waived. See Maharaj v. Gonzales,
450 F.3d 961, 967 (9th
Cir. 2006).
PETITION DENIED.
4 16-72789