[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12905 ELEVENTH CIRCUIT
APRIL 2, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A094-911-744
MARIA TOMAS JUAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 2, 2010)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Maria Tomas Juan, a native and citizen of Guatemala, proceeding pro se,
appeals the Board of Immigration Appeals’ (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) order denying her application for asylum, withholding
of removal under the Immigration and Nationality Act (“INA”), and relief under
the United Nations Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment (“CAT”). INA §§ 208, 241; 8 U.S.C. §§
1158, 1231; 8 C.F.R. § 208.16(c). On appeal, Tomas Juan argues that the BIA
erroneously denied her asylum application because there are extraordinary
circumstances, namely the fact that she entered the United States at age thirteen,
that excuse the untimely filing of her petition. She further argues that she suffered
past persecution on account of a protected ground because she is a member of a
particular social group, the Mayans, and she suffered persecution at the hands of
guerrillas who attacked her village.
We deny Tomas Juan’s petition for the following reasons. First, we do not
have jurisdiction over her asylum claim. The IJ determined that Tomas Juan failed
to file an asylum application within one year of her arrival in the United States in
accordance with INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B), or present
extraordinary or changed circumstances to excuse her untimeliness pursuant to
INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). Thereafter, Tomas Juan failed to
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challenge this determination before the Board.1 Accordingly, we lack jurisdiction
to consider her claim that her youth at the time of entry, limited education, lack of
proficiency in the Spanish language, and economic circumstances qualify as an
exception to the one-year deadline. Amaya-Artunduaga v. U.S. Atty. Gen., 463
F.3d 1247, 1250 (11th Cir. 2006) (“[W]e lack jurisdiction to consider claims that
have not been raised before the BIA.”) (quotation omitted). Moreover, even if
Tomas Juan had appealed the IJ’s determination before the BIA, we would still
lack jurisdiction to consider her claims regarding extraordinary and changed
circumstances. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir.
2005) (per curiam) (“8 U.S.C. § 1158(a)(3) divests our Court of jurisdiction to
review a decision regarding whether an alien complied with the one-year time limit
or established extraordinary circumstances that would excuse his untimely filing.”)
(quotation omitted). Therefore, we dismiss Tomas Juan’s petition for asylum due
to lack of jurisdiction.
We also deny Tomas Juan’s petition for withholding and CAT relief because
she is unable to satisfy the “more stringent” standards governing these claims. See
Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 891 (11th Cir. 2007)
(quotation omitted) (“To qualify for withholding of removal or CAT relief, an alien
1
Although the BIA noted its agreement with the IJ’s denial of Tomas Juan’s
asylum application due to untimely filing, it also noted that Tomas Juan did not challenge this
determination on appeal.
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must establish standards more stringent than those for asylum eligibility.”). In
addition to demonstrating past or future persecution, to qualify for withholding of
removal, an alien must demonstrate that it is more likely than not that her life or
freedom would be threatened on account of race, religion, nationality, membership
in a particular social group, or political opinion if removed. INA §241(b)(3), 8
U.S.C. § 1231(b)(3); Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1243 (11th Cir.
2006). CAT relief is only available where an alien can demonstrate a likelihood
that she will be tortured at the “acquiescence” of the government upon return to her
home country. Rodriguez Morales, 488 F.3d at 891.
Where the BIA issues its own opinion, as here, we review only that decision.
Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009) (quotation omitted).
We review the BIA’s findings of fact under the “highly deferential” substantial
evidence test, which requires that we affirm the BIA’s decision if it is “supported
by reasonable, substantial, and probative evidence on the record considered as a
whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005)
(quotation omitted). Thus, we may reverse “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.” Mehmeti v. U.S. Att’y
Gen., 572 F.3d 1196, 1199 (11th Cir. 2009) (emphasis added).
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Even if Tomas Juan could show that she suffered past persecution on
account of a protected ground, she cannot show that it is more likely than not that
her life or freedom would be threatened upon removal to Guatemala, or that she
will be tortured at the acquiescence of the government. The BIA correctly found,
in accordance with the record, that the guerrillas and the government of Guatemala
signed peace accords which ended the civil war in 1996, the very year in which
Tomas Juan fled her country. In light of these changed political circumstances,
there is nothing in the record to demonstrate a likelihood of future persecution.
Substantial evidence supports the BIA’s decision, and the record does not compel
reversal.
PETITION DENIED IN PART, DISMISSED IN PART.
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