United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 27, 2006
Charles R. Fulbruge III
Clerk
No. 05-60469
Summary Calendar
MOHAMED BOKHETACHE,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A79 010 634
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Before REAVLEY, STEWART and OWEN, Circuit Judges.
PER CURIAM:*
Mohamed Bokhetache, a native and citizen of Algeria,
petitions for review of the order of the Board of Immigration
Appeals (BIA) dismissing his appeal of the decision of the
immigration judge (IJ), which rejected his application for asylum
as untimely and denied his applications for withholding of
removal and for relief under the Convention Against Torture
(CAT).
*
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that this opinion should not be published and is not precedent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. 05-60469
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Bokhetache has effectively waived his claim for relief under
the CAT by failing to brief it. See Rodriguez v. INS, 9 F.3d
408, 415 n.15 (5th Cir. 1993).
Bokhetache argues that the BIA violated his due-process
rights and abused its discretion in refusing to consider his
brief, which was filed more than two months late. Bokhetache’s
attorney had failed to inform the BIA of her change of address
and did not receive the briefing schedule. Bokhetache argues
that the BIA’s refusal to consider his untimely brief was a
“total denial” of “any opportunity” to be heard and that the
agency’s own regulations do not set forth requirements for
notifying the BIA of an attorney’s address change. Because 8
C.F.R. § 1003.38(e) explicitly requires applicants and their
attorneys to notify the BIA of an address change, this contention
is unavailing. The BIA did not abuse its discretion in refusing
to file the brief. See Huicochea-Gomez v. INS, 237 F.3d 696, 701
(6th Cir. 2001). Bokhetache has not established a due-process
violation, either, because he had not made an initial showing of
“substantial prejudice.” See De Zavala v. Ashcroft, 385 F.3d
879, 883 (5th Cir. 2004).
We lack jurisdiction to consider Bokhetache’s challenge to
review the IJ’s rejection of his asylum application as time-
barred. See 8 U.S.C. §§ 1158(a)(2)(B), (a)(2)(D), (a)(3);
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003);
Nieto-Baquero v. Gonzales, 133 F. App’x 976 (5th Cir. 2005); Babo
No. 05-60469
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v. Gonzales, No. 05-60465 (5th Cir. Mar. 23, 2006), 2006 WL
752083 at **2 & 3 n.6.
We will uphold the finding that an alien is not eligible for
withholding of removal if that finding is supported by
substantial evidence. Zhang v. Gonzales, 432 F.3d 339, 344 (5th
Cir. 2005). When the BIA has adopted the IJ’s decision, as here,
we review the IJ’s decision. See Williams-Igwonobe v. Gonzales,
437 F.3d 453, 455 (5th Cir. 2006). The “substantial evidence”
standard requires that the agency decision be based on the record
evidence and that the decision be substantially reasonable.
Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996).
Under this standard, the IJ’s determination will be affirmed
unless the “evidence compels a contrary conclusion.” Id.
Bokhetache has not established that the evidence “compels” a
conclusion that it is “more likely than not” that he will be
persecuted if returned to Algeria. Roy v. Ashcroft, 389 F.3d
132, 138-39 (5th Cir. 2004); Zhang, 432 F.3d at 344. Between
1974 and 2000, Bokhetache worked for a for state-owned Algerian
petroleum company, Sonatrach. In the mid-to-late 1990s,
Sonatrach had a entered into a joint venture with an American
company to develop a hydrocarbon field in Algeria, a project for
which Bokhetache served as engineering manager. Because of
alleged waste and inefficiency by Algerian contractors and
workers, Bokhetache replaced them with Filipino companies and
workers. Allegedly, these actions earned the enmity of Islamic
No. 05-60469
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militants in Algeria, as did Sonatrach’s collaboration with
American companies and the perception that Sonatrach was
connected to a corrupt Algerian government. Bokhetache, however,
has failed to show that he was individually targeted by militants
or that, as a former Sonatrach employee, he likely will be
targeted if were to be returned to Algeria. See Roy, 389 F.3d at
138.
The petition for review is DENIED.