FILED
NOT FOR PUBLICATION MAR 17 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BEHAR ZYMBERI, AKA Muharrem No. 13-72145
Hyseni,
Agency No. A094-502-752
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 14, 2016
San Francisco, California
Before: FERNANDEZ, GOULD, and FRIEDLAND, Circuit Judges.
Behar Zymberi petitions for review of the Board of Immigration Appeals’
(BIA) denial of his applications for asylum and withholding of removal. We
dismiss the petition in part and deny the petition in part.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
An asylum application must generally be filed within one year of the
applicant’s arrival in the United States, but a late application may be considered if
the applicant shows that extraordinary circumstances prevented the applicant from
filing the application within the one-year time limit. 8 U.S.C. § 1158(a)(2)(B),
(D). We only have jurisdiction to review a BIA decision denying an application as
untimely when our review is based on a constitutional question or a question of
law. Ramadan v. Gonzalez, 479 F.3d 646, 650 (9th Cir. 2007) (citing Fernandez-
Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.), vacated, 431 F.3d 1212 (9th Cir.
2005) (Mem)). Questions of law include the application of undisputed facts to
statutes or regulations. Id.
Zymberi contends that the BIA erred in rejecting his asylum application as
time-barred because his emotional disability prevented a timely filing. See 8
C.F.R. § 1208.4(a)(5)(i). We lack jurisdiction to consider this argument because it
depends on disputed facts. Whether Zymberi’s had mental and emotional
disabilities during his first year in the United States was disputed. See Sumolang v.
Holder, 723 F.3d 1080, 1082 (9th Cir. 2013). We therefore dismiss the challenge
to the BIA’s rejection of the asylum petition.
Zymberi also contends that the BIA erroneously dismissed his withholding
of removal application because he suffered past persecution as an ethnic Albanian
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and Muslim during the Kosovo War. We have jurisdiction to assess this argument
because a withholding of removal claim is not subject to the one-year limitations
period that applies to asylum. But substantial evidence supports the BIA’s
conclusion that conditions in Kosovo have changed significantly since Zymberi
left, rebutting the presumption of well-founded fear of future persecution. See
Mutuku v. Holder, 600 F.3d 1210, 1213 (9th Cir. 2010) (citing 8 C.F.R.
§ 1208.16(b)(1)(i)(A)). And even assuming that the argument is not waived,
Zymberi is unable to establish eligibility for withholding of removal “through an
independent showing of clear probability of future persecution.” See Tamang v.
Holder, 598 F.3d 1083, 1091 (9th Cir. 2010) (citing 8 C.F.R. § 1208.16(b)(1), (2)).
Although Zymberi asserts that he fears further racial and religious persecution by
Serbians, the record demonstrates that Kosovo has gained independence from
Serbia, and tensions between the two countries are fading. Kosovo is now headed
by a Muslim majority government, not by Serbians. Substantial evidence thus
supports the BIA’s conclusion that Zymberi did not prove that he would “more
likely than not” suffer persecution upon returning to Kosovo. See Ghaly v. I.N.S.,
58 F.3d 1425, 1428–29 (9th Cir. 1995).
This case arises in the aftermath of the horrible strife, genocide and ethnic
cleansing that characterized Kosovo more than ten years ago in the 1990s. But
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given the current government regime in Kosovo, substantial evidence supports the
BIA’s decision that he can be safely removed there.
DISMISSED IN PART AND DENIED IN PART.
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