United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 5, 2005
Charles R. Fulbruge III
Clerk
No. 04-61003
Summary Calendar
JULIET UHUNMWANGHO,
Petitioner,
versus
ALBERTO R. GONZALES,
Respondent.
--------------------
Petition for Review from an Order of the
Board of Immigration Appeals
--------------------
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Petitioner Juliet Uhunmwango appeals the summary affirmance
by the Board of Immigration Appeals an immigration judge’s order
of removal and denial of her applications for asylum, withholding
of removal, protection under Article 3 of the United Nations
Convention Against Torture and Other Cruel, Inhumane and
Degrading Treatment of Punishment, and cancellation of removal.
Uhunmwango challenges each of these rulings, except that denying
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-61003
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for her application for asylum.1 We have jurisdiction to hear
the appeal,2 and we uphold an immigration judge’s decisions with
respect to withholding, cancellation, and the Convention Against
Torture if they are supported by “substantial evidence.”3
8 U.S.C. § 1231(b)(3) requires the Attorney General to
withhold removal of Uhunmwango if she demonstrates by a “clear
probability”4 that it is more likely than not that her “life or
freedom would be threatened...because of [her] race, religion,
nationality, membership in a particular social group, or
political opinion.” To receive protection under the Convention
Against Torture, Uhunmwango must establish that it is more likely
than not she will be tortured, by act of acquiescence of a public
official or someone acting in official capacity,5 upon
repatriation.6 We conclude that the immigration judge’s finding
that Uhunmwango was incredible because of her conflicting
1
She seems to argue at one point in her brief that asylum
should have been granted, but she does not directly argue that we
should overturn the denial of asylum. In any event, she never
pursued that issue in front of the Board of Immigration Appeals,
and even if she had she cannot challenge that order here because
the immigration judge determined that her application was not
timely and we have no jurisdiction to review that determination.
See 8 U.S.C. § 1158(a)(3); Roy v. Ashcroft, 389 F.3d 132, 137 n.2
(5th Cir. 2002).
2
8 U.S.C. § 1252.
3
8 U.S.C. § 1252(b)(4)(B); Chun v. INS, 40 F.3d 76, 78 (5th
Cir. 1994).
4
INS v. Stevic, 467 U.S. 407, 429-30 (1984).
5
8 C.F.R. § 1208.18(a)(1).
6
8 C.F.R. § 1208.16(c)(2).
No. 04-61003
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testimony is supported by substantial evidence; Uhunmwango has
not attempted on appeal to explain her inconsistencies.
Moreover, we conclude that the immigration judge’s alternative
holding, that even if Uhunmwango were credible, she is not more
likely than not to face future persecution or official torture,
is supported by substantial evidence. The evidence shows that
her dispute with her husband was essentially a private one not
based on a protected characteristic, and that it was one in which
the government neither participated or acquiesced.
We also conclude that the immigration judge’s finding that
Uhunmwango was not statutorily eligible for cancellation of
removal is supported by substantial evidence. An alien can apply
for cancellation of removal if, inter alia, she has been present
in the United States for at least ten continuous years and
removal will be unusually hard on a qualifying relative.7 The
evidence shows that Uhunmwango failed to establish that she had
been in the United States for ten years; not only did she admit
as much at different times, but she has none of the documentary
evidence one would expect to find proving her presence. In
addition, the evidence shows that she failed to provide any
adequate evidence that she has qualifying relatives; although she
claimed to have two United States-born children, her only proof
of that fact was a letter from a friend mentioning that she was a
mother. Finally, even if she were statutorily eligible, the
7
8 U.S.C. § 1229b(b)(1)(A)-(D).
No. 04-61003
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court alternatively ruled that she failed to establish unusual
hardship, a ruling we cannot review.8
For the foregoing reasons, the order of the Board of
Immigration Appeals is AFFIRMED.
8
8 U.S.C. § 1252(a)(2)(B)(i).