Nestor Abel Sanchez v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 4, 2005
No. 05-12924
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________

BIA Nos. A95-902-731 & A95-902-732

NESTOR ABEL SANCHEZ,
OLGA LUCIA OTALORA,
KAROL BIBIANA SANCHEZ,
PAULA LORENA SANCHEZ,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of an Order of the
Board of Immigration Appeals
_________________________

(November 2, 2005)

Before CARNES, HULL and PRYOR, Circuit Judges.

PER CURIAM:
 Nestor Abel Sanchez petitions for review of the Board of Immigration

Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) decision

which denied his application for asylum and withholding of removal under the

Immigration and Nationality Act (“INA”) and the United Nations Convention

Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

(“CAT”). After review, we deny Sanchez’s petition in part and dismiss it in part.

I. BACKGROUND

On May 14, 1999, Sanchez, a native and citizen of Colombia, entered the

United States as a non-immigrant visitor. More than three years later, in June

2002, Sanchez filed an application for asylum, withholding of removal, and CAT

relief, alleging persecution on account of an imputed political opinion.1 On July

31, 2002, Sanchez was issued a Notice to Appear, charging that he had remained in

the United States without authorization.

The IJ denied Sanchez’s application for asylum, withholding of removal,

and CAT relief.2 An alien may apply for asylum if he “demonstrates by clear and

convincing evidence that the application has been filed within 1 year after the date

1
Sanchez is the primary applicant. Sanchez’s wife and two children are derivative applicants
and, therefore, rely on his asylum application.
2
Sanchez does not raise any challenge in his brief to the denial of CAT relief. When an
appellant fails to offer argument on an issue, that issue is abandoned. See Sepulveda v. United
States Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). Accordingly, this issue is not discussed
further.
2
of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). Sanchez

admitted that his application was not filed within one year. However, immigration

officials may still consider an untimely application “if the alien demonstrates to the

satisfaction of the Attorney General either the existence of changed circumstances

which materially affect the applicant’s eligibility for asylum or extraordinary

circumstances relating to the delay in filing an application within the period

specified . . . .” 8 U.S.C. § 1158(a)(2)(D). The IJ found that Sanchez’s asylum

application was time barred, and that he had not established exceptional and/or

extraordinary circumstances for not filing within one year of his arrival.

As for Sanchez’s application for withholding of removal, the IJ noted that it

has “some concerns” regarding Sanchez’s credibility and that Sanchez’s claim was

“insufficiently documented.” However, the IJ ultimately denied Sanchez’s

application for withholding of removal on the merits, determining that Sanchez had

“not established that if he was now to return to Colombia, it is more likely than not

that he would be subject to persecution.”

The BIA summarily affirmed the IJ’s decision, and Sanchez filed the present

petition for review.3

II. DISCUSSION

3
Because Sanchez’s removal proceedings commenced after April 1, 1997, the permanent
rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No.
104-208, 110 Stat. 3009 (1996) (“IIRIRA”), govern his petition for review.
3
A. Asylum

With regard to Sanchez’s asylum application, the IJ determined that his

application was untimely and that Sanchez failed to demonstrate changed or

extraordinary circumstances which would excuse his untimely application. This

Court has previously determined that it is without jurisdiction to review the IJ’s

determinations regarding the timeliness of an alien’s asylum application. See

Mendoza v. United States Att’y Gen., 327 F.3d 1283, 1287 (11 th Cir. 2003) (noting

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”); Fahim v.

United States Att’y Gen., 278 F.3d 1216, 1217 (11 th Cir. 2002) (“As to the denial

of the request for asylum as being untimely, we hold that federal courts do not have

jurisdiction to review the Attorney General’s decision as to timeliness of such a

request.”).

After this Court issued these decisions, Congress enacted the REAL ID Act

of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005). The REAL ID Act made

several changes to how courts are to review petitions for review. For example,

under the REAL ID Act, no section “which limits or eliminates judicial review,

shall be construed as precluding review of constitutional claims or questions of law

raised upon a petition for review filed with an appropriate court of appeals in
4
accordance with this section.” 8 U.S.C. § 1252(a)(2)(D); see also Balogun v.

United States Att’y Gen., – F.3d –, 2005 WL 2333840, at *2-5 (11 th Cir. Sept. 26,

2005) (noting that under the REAL ID Act’s amendments courts of appeal now

have jurisdiction to review the question of law as to whether “a petitioner’s

conviction is an aggravated felony within the meaning of 8 U.S.C. § 1182(h)”).

However, “[t]he timeliness of an asylum application is not a constitutional claim or

question of law covered by the REAL ID Act’s changes.” Chacon-Botero v.

United States Att’y Gen., – F.3d –, slip op. at 4 (11 th Cir. Oct. 6, 2005) (reviewing

the REAL ID Act and concluding that discretionary or factual determinations, such

as the timeliness of an asylum application, continue to fall outside this Court’s

jurisdiction and that the timeliness issue is not a constitutional claim or question of

law under the REAL ID Act); see also Vasile v. Gonzales, 417 F.3d 766, 768 (7 th

Cir. 2005) (concluding that even after the REAL ID Act courts of appeals do not

have jurisdiction to review issues of timeliness concerning asylum applications

because “discretionary or factual determinations continue to fall outside the

jurisdiction of the court of appeals entertaining a petition for review”).

Consequently, even after the REAL ID Act, we still lack jurisdiction to review the

IJ’s and BIA’s denial of Sanchez’s asylum claim. See Chacon-Botero, – F.3d at –,

slip op. at 4.

5
 Accordingly, we dismiss Sanchez’s petition as to his asylum claim for lack

of jurisdiction.

B. Withholding of Removal

Although we do not have jurisdiction to review the IJ’s denial of Sanchez’s

asylum application, we do have jurisdiction to entertain his petition for review of

the IJ’s denial of his application for withholding of removal. Fahim, 278 F.3d at

1218. As for the denial of Sanchez’s application for withholding of removal, “[w]e

review the IJ’s factual determinations under the substantial evidence test.” Forgue

v. United States Att’y Gen., 401 F.3d 1282, 1286 (11 th Cir. 2005) (citations

omitted). Furthermore,

[u]nder this highly deferential test, we affirm the IJ’s decision if it is
supported by reasonable, substantial, and probative evidence on the
record considered as a whole. Thus, we do not engage in a de novo
review of factual findings by the IJ. Similarly, we cannot find, or
consider, facts not raised in the administrative forum, nor can we
reweigh the evidence from scratch.

Id. (quotation marks, citations, and alterations omitted).

“An alien seeking withholding of removal under the INA must show that his

life or freedom would be threatened on account of race, religion, nationality,

membership in a particular social group, or political opinion.” Mendoza v. United

States Att’y Gen., 327 F.3d 1283, 1287 (11 th Cir. 2003). “An alien bears the

burden of demonstrating that he more-likely-than-not would be persecuted or

6
tortured upon his return to the country in question.” Id. Furthermore, “[a]n alien

cannot demonstrate that he more-likely-than-not would be persecuted on a

protected ground if the IJ finds that the alien could avoid a future threat by

relocating to another part of his country.” Id.4

Sanchez testified that he was threatened by The Revolutionary Armed

Forces of Colombia (“FARC”) when he refused to provide information he acquired

at his job, that he and his wife received threatening phone calls from FARC, and

that he attended an action board meeting in a south Bogota neighborhood and

found his car windows shattered and a threatening note attached to a rock in the

car. The IJ questioned Sanchez’s credibility as to many of these events and

determined that Sanchez had failed to meet his burden of proof and persuasion that

he was persecuted while in Columbia. Specifically, the IJ stated that the

threatening phone calls did not “mean that [Sanchez] was persecuted in Columbia.”

The IJ further concluded that these events failed to establish that it was more

likely than not that Sanchez would be persecuted if returned to Colombia. The IJ

also noted that Sanchez “had failed to establish that he would be unable to mo[v]e

4
If the alien demonstrates past persecution, there is a rebuttable presumption that he has a
well-founded fear of future persecution. See Antipova v. United States Att’y Gen., 392 F.3d 1259,
1264 (11th Cir. 2004); 8 C.F.R. § 208.16(b)(1)(i). If, however, the alien does not establish past
persecution, he bears the burden of showing a well-founded fear of future persecution by showing
that: (1) he fears persecution based on one of the enumerated grounds; (2) there is a reasonable
possibility that he will suffer persecution if he returns to his country; and (3) he could not avoid
persecution by reasonably relocating to another part of his country. See Antipova, 392 F.3d at 1264;
8 C.F.R. § 208.16(b)(2), (3)(i).
7
to another part of Colombia.” We readily conclude that substantial evidence

supports the IJ’s denial of Sanchez’s application for withholding of removal.

DISMISSED IN PART AND DENIED IN PART.

8