Kalule v. Gonzales

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 12, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

ISAA C K ALU LE,

Petitioner,
No. 05-9566
v. (No. A95 553 314)
(Petition for Review)
ALBERTO R. GONZALES, Attorney
General,

Respondent.

OR D ER AND JUDGM ENT *

Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.

Isaac Kalule petitions for review of the decision of the Board of

Immigration Appeals (BIA) dismissing his appeal and affirming the decision by

the Immigration Judge (IJ) to deny asylum, withholding of removal under the

Immigration and Nationality Act, and withholding of removal under the United

Nations Convention Against Torture (CAT). M r. Kalule contends that the BIA

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
erred by concluding that petitioner was statutorily barred from filing his asylum

claim; by affirming the IJ’s adverse credibility findings; and by failing to make

separate credibility findings for his CAT claim. The petition for review is

dismissed in part and denied in part.

Asylum claim

An asylum application must be “filed within 1 year after the date of the

alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). The BIA affirmed

the IJ’s determination that M r. Kalule failed to file a timely asylum application

and that M r. Kalule had not demonstrated changed or extraordinary circumstances

excusing his delay. G enerally, courts do not have jurisdiction to review a

timeliness determination made under section 1158(a)(2). See id. § 1158(a)(3).

After the REAL ID Act was enacted in M ay 2005, courts were given limited

jurisdiction to review a “constitutional claim or question of law” related to the

timeliness determination. Diallo v. Gonzales, 447 F.3d 1274, 1281 (10th Cir.

2006). “However, challenges directed solely at the agency’s discretionary and

factual determinations remain outside the scope of judicial review.” Id.

M r. Kalule’s petition for review does not present a constitutional claim or

question of law. His argument focuses on the alleged factual circumstances

involved in the delayed filing of his asylum application and the IJ’s discretionary

decision that there was no good cause for the delayed filing. W e do not have

jurisdiction to review this type of challenge. See id.

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 W ithholding of Removal claim

The IJ found that M r. Kalule did not meet his burden to provide believable,

consistent, and sufficiently detailed testimony to establish his eligibility for

asylum or w ithholding of removal. The BIA affirmed the IJ’s adverse credibility

findings in a single-member brief order. Because the BIA issued an independent

decision with a substantive discussion of the adverse credibility finding, our

review is limited to the BIA’s decision and we will not extend our review to the

IJ’s decision. See Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006).

As a result, we will not consider M r. Kalule’s argument that the IJ erred in his

factual determinations, see Pet. Br. at 18-20.

M r. Kalule testified that his father, Ramathan M uwonge, was the campaign

m anager for K iiza B esigye, a candidate opposing President M useveni. He

testified that he had two brothers, K awooya James and Kalungi M ark, and that his

father and both brothers w ere arrested. He testified that his brother K alungi M ark

was released a few days later, but was arrested again and sometime later he was

found dead. The sole basis for his claim of persecution is that his father had

disappeared and his brother w as killed.

The BIA gave specific, cogent reasons for finding that the record supported

the IJ’s adverse credibility determination and that M r. Kalule had not met his

burden of establishing a clear probability of persecution. See Elzour v. Ashcroft,

378 F.3d 1143, 1152 (10th Cir. 2004). The BIA noted that it had reviewed the

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documents submitted by M r. K alule, as well as the Department of State’s, Uganda

- C ountry Reports on Human Rights Practices (2001) (the 2001 Country Reports),

and the Human Rights W atch for 2001. The BIA noted that these documents, in

addition to a British Broadcasting Corporation (BBC) Summary of W orld

Broadcasts, dated February 23, 2001, which was submitted by M r. Kalule, show

that M r. M uwonge was kidnapped on February 12, 2001. The documents further

showed that M r. M uwonge’s two sons were also kidnapped, although one of the

reports then identified the two individuals as M uwonge’s son, Siraje W amara, and

Kaamu Benjamin, a visitor. The BIA then noted, “[n]either of the names of his

‘brothers’ as testified to by the respondent, is ‘Siraje W amara.’” Admin. R. at 4.

The documents report that all three men were released the next day. The BIA

went on to conclude:

Because the sole basis of the respondent’s claim is that his “father,”
Ramathan M uwonge, “was disappeared” and presumed dead, and that
his “brother,” Kalungi M ark, was killed and found “decomposing . . .
in a thicket”, these reports, taken with the BBC summary, directly
contradict the respondent’s testimony.

Id. (citations omitted). The BIA then explained that “[t]he 2001 Country Reports

states, ‘In December, M uwonge sued the Government for wrongful detention and

assault . . . ,’clearly evidencing that M uwonge was alive and well in Uganda in

December 2001.” Id. Finally, the BIA pointed out that:

W ith regards to the claim that the respondent’s family fled Uganda
for K enya because of fear of the kidnappers and the government,
both the 2001 Country Reports and [H uman Rights Watch] report

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 that on M arch 1, 2001, three soldiers w ere sentenced to 3 months in
prison after pleading guilty for receiving M uwonge “without clear
instructions from the relevant authorities.”

Id. W e conclude that substantial evidence in the record supports the BIA’s

decision. See Elzour, 378 F.3d at 1150.

CAT claim

M r. Kalule contends that the IJ w as required to make separate credibility

findings regarding M r. Kalule’s CAT claim. W e disagree. In Niang v. Gonzales,

422 F.3d 1187, 1202 (10th Cir. 2005), we concluded that the IJ’s adverse

credibility finding controlled the court’s review of the CAT claim. W e noted,

“[o]nce one discredits [petitioner’s] description of her family’s attack on her and

the threats of future harm from her family, one could rationally decide that she

had failed to show that if she returned to Senegal she would be killed or otherwise

subjected to torture.” Id.

M r. K alule testified that he was not politically active. Admin. R. at 179.

He testified that he was afraid to return to Uganda due to the alleged

disappearance of his father and the murder of his brother. Id. The IJ and the B IA

found that M r. Kalule’s testimony was not credible as to his identity and his

relationship to Ramathan M uwonge, his purported father and M ark Kalungi, his

purported brother. The BIA also noted that the record evidence showed that

M r. M uwonge had not disappeared as M r. Kalule had testified because the 2001

Country Reports indicated that M r. M uwonge sued the government in December

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2001–six months after the alleged disappearance. It was therefore reasonable for

the BIA to affirm the IJ’s conclusion that M r. Kalule had not met his burden of

showing that it was more likely than not that he would be tortured if he returned

to Uganda.

The petition for review is DISM ISSED in part for lack of jurisdiction and

DENIED in part.

Entered for the Court

John C. Porfilio
Circuit Judge

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