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Ramiro De Jesus Torres-Casas v. U.S. Atty. Gen., 18-11420 (2006)

Court: Court of Appeals for the Eleventh Circuit Number: 18-11420 Visitors: 3
Filed: May 23, 2006
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS - ELEVENTH CIRCUIT MAY 23, 2006 No. 05-13799 THOMAS K. KAHN Non-Argument Calendar CLERK - Agency Nos. A79-513-559 and A79-513-560 RAMIRO DE JESUS TORRES-CASAS, CLEMENCIA DESANFRANCIS RESTREPO-DURANGO, MATEO TORRES-RESTREPO, DANIEL ALEJANDRO TORRES, Petitioners, versus U.S. ATTORNEY GENERAL, Respondent. - Petition for Review of a Decision of the Board of Immigration of Appeals - (May 23, 20
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                                                                  [DO NOT PUBLISH]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
                                                                  MAY 23, 2006
                                No. 05-13799
                                                               THOMAS K. KAHN
                         Non-Argument Calendar
                                                                    CLERK
                   --------------------------------------------

                        Agency Nos. A79-513-559
                            and A79-513-560

RAMIRO DE JESUS TORRES-CASAS,
CLEMENCIA DESANFRANCIS RESTREPO-DURANGO,
MATEO TORRES-RESTREPO,
DANIEL ALEJANDRO TORRES,

                                                    Petitioners,

                                     versus

U.S. ATTORNEY GENERAL,


                                                    Respondent.


                       ------------------------------------
                 Petition for Review of a Decision of the
                   Board of Immigration of Appeals
                      --------------------------------------

                               (May 23, 2006)

Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.
PER CURIAM:

       Petitioner-Appellant Ramiro de Jesus Torres-Casas, the lead petitioner, his

wife and his children, citizens of Columbia, petition for review of the Board of

Immigration Appeal’s (“BIA”) final order affirming the Immigration Judge’s

(“IJ”) decision denying Petitioners’s 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”). See 8 U.S.C. § § 1158, 1231; 8 C.F.R. §

208.16(c). No reversible error has been shown; the petition is dismissed in part

and denied in part.

       Petitioners entered the United States in the summer of 1998 as non-

immigrant visitors authorized to remain for a temporary period not to exceed 22

January 1999. On 20 December 2001, the Immigration and Naturalization Service

(“INS”)1 initiated removal proceedings. Petitioners were charged with being

removable from the United States as aliens who remained for a time longer than

permitted. Petitioners conceded removability and requested relief in the form of

asylum, withholding of removal under the INA and protection under CAT. After a


  1
   The INS has since been abolished and its functions transferred to the newly formed Department
of Homeland Security, which was created under the Homeland Security Act of 2002, Pub. L. No.
107-296, 116 Stat. 2135.

                                               2
hearing, the IJ denied Petitioners’s application for asylum as untimely; the IJ also

denied withholding of removal under the INA and protection under CAT because

Petitioners failed to proffer sufficient clear, consistent and believable evidence to

support relief. The BIA summarily affirmed without an opinion the decision of

the IJ.2

       Applications for asylum must be filed within one year of the applicant’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....

8 U.S.C. § 1158(a)(2)(D). Petitioners assert that they showed extraordinary or

exceptional circumstances sufficient to excuse the late filing; the IJ determined to

the contrary.

       The INA vests the Attorney General with authority to assess the adequacy

of a changed-circumstances showing under 8 U.S.C. § 1158(a)(2)(D), and

provides expressly that “[n]o court shall have jurisdiction to review any

determination of the Attorney General” on the timeliness of an asylum application.


   2
   When the BIA summarily affirms the IJ without an opinion, we review the IJ’s opinion as if it
were that of the BIA. See Mendoza v. U.S. Attorney Gen., 
327 F.3d 1283
, 1284 n.1 (11th Cir. 2003).

                                                3
8 U.S.C. § 1158(a)(3); see Chacon-Botero v. U.S. Attorney Gen., 
427 F.3d 954
,

957 (11th Cir. 2005). We are without jurisdiction to review the IJ’s determination

that no changed or extraordinary circumstances justified consideration of

Petitioners’s untimely asylum application.

      We question whether Petitioners raise properly claimed errors in the denial

of their petition for withholding of removal. The government argues that

Petitioners have abandoned the claim because they failed to argue the issue and

present supporting authority in their appellate brief. Issues not argued on appeal

are deemed abandoned. See, e.g., 
Mendoza, 327 F.3d at 1286
n.3. “[W]hen a

party lists an issue for appellate review but does not discuss that question in their

argument, they have abandoned it.” Bayro v. Reno, 
142 F.3d 1377
, 1379 (11th Cir.

1998).

      But, even assuming arguendo that Petitioners’s INA removal claim has not

been abandoned, Petitioners show no reversible error. Our review of BIA and IJ

determinations is highly deferential. Al Najjar v. Ashcroft, 
257 F.3d 1262
, 1278

(11th Cir. 2001). We will affirm if the decision “is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Forgue

v. U.S. Attorney Gen., 
401 F.3d 1282
, 1286 (11th Cir. 2005) (citation and

quotation marks omitted). To reverse the IJ’s decision, we must “find that the

                                          4
record not only supports that conclusion, but compels it.” Fahim v. U.S. Attorney

Gen., 
278 F.3d 1216
, 1218 (11th Cir. 2002) (citation and quotation marks omitted).

To the extent Petitioners argue the removal issue at all, they advance only

conclusory claims that the evidence showed they more likely than not would be

subject to persecution because of their political opinion. Petitioners do not explain

how the evidence supports these conclusory claims about persecution or the

required nexus to political opinion. The IJ denied withholding of removal because

Petitioners failed to provide sufficiently “coherent, clear, consistent, detailed, and

believable” evidence; substantial evidence supports the decision.

      We also conclude that Petitioners’s CAT claim properly is not before us:

Petitioners failed to exhaust administrative remedies when they advanced no CAT

argument before the BIA. “A court may review a final order of removal only if ...

the alien has exhausted all administrative remedies available to the alien as of

right....” 8 U.S.C. § 1252(d). The requirements of 8 U.S.C. § 1252(d) are

jurisdictional. Sundar v. I.N.S., 
328 F.3d 1320
, 1323 (11th Cir. 2003). The

exhaustion requirement affords the BIA “the opportunity to discover and correct

[its] own error.” 
Id. at 1325
(citation and quotation marks omitted). Because




                                           5
Petitioner failed to exhaust administrative remedies on the CAT claim, we lack

jurisdiction to review the IJ’s denial of protection under CAT.3

       The petition for review is DISMISSED as to the asylum and CAT claims

and DENIED as to the withholding of removal claim.

       DISMISSED IN PART; DENIED IN PART.




  3
    We note that protection under CAT requires a petitioner to show that it is “more likely than not”
that he will be tortured in the country of removal. 8 C.F.R. § 208.16(c)(2). The record before the IJ
on the likelihood of torture -- like the record on the likelihood of persecution for withholding of
removal under the INA -- lacked “coherent, clear, consistent, detailed, and believable” supporting
evidence.


                                                 6

Source:  CourtListener

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