[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
July 22, 2005
No. 05-10339 THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
Agency Docket Nos. A95-263-445
& A95-263-446
JAIME EDUARDO DELGADO,
NUBIA PAMELA RIVEROS,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
DEPARTMENT OF JUSTICE,
Respondents.
__________________________
Petition for Review from a Decision
of the Board of Immigration Appeals
_________________________
(July 22, 2005)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Jaime Eduardo Delgado (“Delgado”) and Nubia Pamela Riveros (“Riveros”)
(collectively “Petitioners”), husband and wife, are natives and citizens of
Colombia, S.A. They seek review of the order of the Board of Immigration
Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying
their applications for asylum and withholding of removal under the Immigration
and Nationality Act (“INA”).1 Petitioners asked for asylum and withholding of
removal on the basis of Delgado’s religion, political opinion, and membership in a
particular social group. Specifically, they assert that Delgado was a member of a
religious group called “Pocalana” that opposed the guerillas, and that he was
threatened on several occasions and beaten with a handgun on one occasion. The
Government responds that (1) we do not have jurisdiction to review the denial of
Petitioners’ asylum application because the BIA determined that their asylum
application was time-barred and (2) the claim for withholding of removal lacks
merit.
Because Petitioners’ removal proceedings commenced after April 1, 1997,
the permanent rules of the Illegal Immigration Reform and Immigrant
1
The petitioners abandoned any argument relating to the denial of relief pursuant to the
United Nations Convention Against Torture and other Cruel, Inhumane, and Degrading Treatment
or Punishment (“CAT”) by failing to raise an argument on this issue in their brief on appeal. See
Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1286 n.3 (11th Cir. 2003).
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Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996), govern
their petition for review. When the BIA issues a separate decision, we review only
that decision, “except to the extent that [the BIA] expressly adopts the IJ’s
opinion.” Reyes-Sanchez v. U.S. Attorney Gen., 369 F.3d 1239, 1242 (11th Cir.
2004). We address Petitioners’ claims for asylum and withholding of removal in
turn.
I.
The INA provides that an asylum application must be filed within one year
of the aliens arrival in the United States. INA § 208(a)(2)(B), 8 U.S.C.
§ 1158(a)(2)(B). The INA also provides that an untimely asylum application may
be considered “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 . . . .” INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D).
The INA expressly provides that “[n]o court shall have jurisdiction to review any
determination of the Attorney General under paragraph (2)” of INA § 208(a), 8
U.S.C. § 1158(a). INA § 208(a)(3), 8 U.S.C. § 1158(a)(3). Furthermore, we have
held that, “[p]ursuant to 8 U.S.C. § 1158(a)(3), the Attorney General’s decision
regarding whether an alien complied with the one-year time limit or established
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extraordinary circumstances, such that the time limit should be waived, is not
reviewable by any court.” Fahim v. U.S. Attorney Gen., 278 F.3d 1216, 1217
(11th Cir. 2002).
Based upon the language of INA § 208(a)(3), 8 U.S.C. § 1158(a)(3), and
upon our decision in Fahim, 278 F.3d at 1217, we lack jurisdiction to consider
Petitioners’ asylum claims. We therefore dismiss the petition for review as to
those claims.
II.
The BIA’s factual determination that an alien is not entitled to withholding
of removal must be upheld if it is supported by substantial evidence. See Al
Najjar v. U.S. Attorney Gen., 257 F.3d 1262, 1283-84 (11th Cir. 2001). “This
means that we must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Id. at
1284 (quotation omitted). This test is “highly deferential, and . . . we must defer to
the BIA unless a reasonable factfinder would have to conclude that the requisite
fear of persecution existed.” Id. (quotation omitted).
An alien is entitled to withholding of removal under the INA if he can show
that his life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion.
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Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). See also
INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). The alien bears the burden of
demonstrating that it is “more likely than not” he will be persecuted or tortured
upon being returned to his country. Fahim, 278 F.3d at 1218.
We conclude that substantial evidence supports the BIA’s determination
that Petitioners failed to establish that it is more likely than not that Delgado will
be persecuted if returned to Colombia. Except for one incident, his alleged
persecutors did not identify themselves as guerillas. And as for that incident, it is
unclear whether it was related to his religious or political activities. He continued
his religious and political activities notwithstanding several threats. Finally, he
admitted that his family still lives in Colombia, and with the exception of one
isolated incident in which his brother was beaten because of his former military
service, his family has had no conflicts with the guerillas.
PETITION DISMISSED, in part; DENIED, in part.
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