In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4029
L UIS A RMANDO P AEZ R ESTREPO , et al.,
Petitioners,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
A RGUED S EPTEMBER 11, 2009—D ECIDED JUNE 28, 2010
Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
E ASTERBROOK, Chief Judge. Luis Paez Restrepo arrived
in the United States in 1999 as a crew member of a vessel
and did not leave with that vessel. His wife and three
children arrived later on tourist visas; they did not
leave when their visas expired. Paez eventually was
placed in removal proceedings. Because he had entered
as a crew member, without a visa, he was placed in
what are called “asylum only” proceedings, see 8 C.F.R.
2 No. 08-4029
§1208.2(c)(1)(i)(C), but the phrase is a misnomer. The
alien may oppose removal not only by seeking asylum
but also by asking for withholding of removal on
account of hazards to his safety in his native land. 8 C.F.R.
§1208.2(c)(3)(i).
In 2002 Paez requested asylum, 8 U.S.C. §1158, con-
tending that members of his family are at risk in
Colombia from the rebel FARC (Fuerzas Armadas
Revolucionarias de Colombia, usually translated as
Revolutionary Armed Forces of Colombia). Paez con-
tended that the government is unwilling to protect
farmers from FARC. He added that he is a member of the
Liberal Party, which is at odds with FARC, and sought
withholding of removal under 8 U.S.C. §1231(b)(3), and
the benefit of the Convention Against Torture, imple-
mented by 8 C.F.R. §1208.16. His wife and children
joined the requests for withholding of removal and pro-
tection under the Convention. Their claims are deriva-
tive from his; we do not discuss them separately.
An immigration judge concluded that the request for
asylum is untimely. Section 1158(a)(2)(B) gives an alien
one year from arrival to request asylum. Paez took three.
Although an alien who “demonstrates to the satisfac-
tion of the Attorney General either the existence of
changed circumstances which materially affect the ap-
plicant’s eligibility for asylum or extraordinary circum-
stances relating to the delay in filing an application”
(§1158(a)(2)(D)) may be entitled to extra time, the IJ
was not impressed by Paez’s explanation that until 2002,
when peace talks between FARC and Colombia’s gov-
No. 08-4029 3
ernment broke down, Paez thought that it would (soon) be
safe for him to return home. The Board of Immigration
Appeals remarked that FARC has been in armed insur-
rection for decades, and that the failure of proposals
for peace demonstrates the absence of change rather than
a material adverse development.
That ruled out asylum, and the IJ added that Paez
is not eligible for withholding of removal because
neither he nor any member of his family (nor any of
the family farm’s employees) has been attacked or faces
an objectively significant risk. The BIA agreed, and we
have jurisdiction to review the order notwithstanding
the difference between asylum-only proceedings and
the normal removal process. Mitondo v. Mukasey, 523
F.3d 784, 787 (7th Cir. 2008).
Although we have jurisdiction to review the order of
removal, we lack jurisdiction to review the agency’s
rejection of the untimely request for asylum. “No court
shall have jurisdiction to review any determination of
the Attorney General under paragraph (2).” 8 U.S.C.
§1158(a)(3). Paragraph (2) is the one allowing the
Attorney General to accept an untimely request based
on materially changed circumstances. Kucana v. Holder,
130 S. Ct. 827 (2010), does not affect §1158(a)(3). Kucana
concluded that 8 U.S.C. §1252(a)(2)(B)(ii), another review-
limiting statute, does not apply to administrative deci-
sions exercising discretion under a regulation, but does
block review of decisions exercising discretion con-
ferred by statute. Even if §1252(a)(2)(B)(ii) were rele-
vant to Paez’s situation, the fact that §1158(a)(2) is a
4 No. 08-4029
statutory grant of discretion would mean that the ad-
ministrative decision is unreviewable.
Paez contends that §1252(a)(2)(D), which allows
review of legal contentions notwithstanding statutes
such as §1158(a)(3), authorizes us to review the BIA’s
application of the law to the facts of his situation—and
that this is so even if there is no dispute about the
Board’s understanding of the governing legal rules. One
court of appeals has supported this contention, see
Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007), but
nine other courts of appeals have rejected it. See Gomis
v. Holder, 571 F.3d 353, 358–59 (4th Cir. 2009) (collecting
cases). We are among the many limiting §1252(a)(2)(D)
to strictly legal controversies—meaning that the parties
contest a legal issue, and that the alien wins if the law
provides what he says it does and loses if it provides what
the agency says it does. See Jiménez Viracacha v. Mukasey,
518 F.3d 511 (7th Cir. 2008). Paez asks us to switch sides in
this conflict, but we shall adhere to Jiménez Viracacha
unless the statute is amended or the Supreme Court
approves the ninth circuit’s position. Paez’s request for
asylum therefore is not reviewable in this court.
The request for withholding of removal is open
to review, and Paez observes that the Board made a
questionable statement about land-owning farmers as a
“social group.” (His theory is that he and his family are
at risk because of their membership in this group.) The
Board doubted that farmers are a “visible” group, using
“visible” in the sense of “displaying attributes apparent
to passers-by.” We disapproved that approach in Gatimi
No. 08-4029 5
v. Holder, 578 F.3d 611 (7th Cir. 2009), because persecutors
may have other ways of locating their targets.
But this aspect of the Board’s reasoning does not
matter, given its further conclusion that Paez’s farm-
operating relatives, and their tenants and employees,
have not been attacked or even threatened by FARC. The
Board concluded that Paez had not established a “clear
probability” (the applicable burden of persuasion, see
INS v. Stevic, 467 U.S. 407 (1984)) that he would be at
risk from FARC should he return to Colombia. His
lawyer conceded at oral argument that substantial evi-
dence supports the agency’s conclusion. It follows that
the Board did not err in concluding that Paez had failed
to make the necessary showing—that “the alien’s life
or freedom would be threatened in [his native] country
because of the alien’s race, religion, nationality, member-
ship in a particular social group, or political opinion.”
8 U.S.C. §1231(b)(3)(A). And because the Convention
Against Torture has an even higher standard, lack of
success under §1231(b)(3)(A) forecloses relief under the
Convention as well.
The petition for review is denied.
6-28-10