United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 27, 2006
Charles R. Fulbruge III
Clerk
No. 05-61118
Summary Calendar
JASHAR ZEQAJ,
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. A96 007 545
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jashar Zeqaj, a citizen and native of the United Nations
protectorate of Kosovo within the nation of Serbia and
Montenegro, petitions this court for review of the Board of
Immigration Appeal’s (BIA) order affirming the immigration
judge’s (IJ) order denying his requests for asylum, withholding
of removal, and withholding of removal under the Convention
Against Torture. When, as here, the BIA adopts the IJ’s
decision, we review the IJ’s decision. See Mikhael v. INS, 115
F.3d 299, 302 (5th Cir. 1997).
*
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this opinion should not be published and is not precedent except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. 05-61118
-2-
Zeqaj argues that the IJ erred by finding that he did not
file a timely application for asylum because he established that
he received ineffective assistance of counsel that excused his
untimely filing. The respondent asserts that we are without
jurisdiction to consider this argument. This court generally
does not have jurisdiction to review a determination that an
alien did not file a timely application for asylum. See 8 U.S.C.
§ 1158(a)(3). Under the REAL ID Act of 2005, Pub. L. 109-13, 119
Stat. 302, however, none of the jurisdiction-stripping provisions
“‘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.’” Rosales v. Bureau
of Immigration & Customs Enforcement, 426 F.3d 733, 736 (5th Cir.
2005) (quoting 8 U.S.C. § 1252(a)(2)(D) (2005)), cert. denied,
126 S. Ct. 1055 (2006). Because this issue is unclear and Zeqaj
is not entitled to relief even if we have jurisdiction to
consider the timeliness of his asylum application and determine
that it was timely, we pretermit consideration of the
jurisdictional issue and do not reach the merits of Zeqaj’s
timeliness argument. See Madriz-Alvarado v. Ashcroft, 383 F.3d
321, 327-28 (5th Cir. 2004).
For the first time in this court, Zeqaj asserts that the
IJ’s determination that his asylum application was frivolous
violated his due process rights because he was not given an
opportunity to account for discrepancies in his testimony.
No. 05-61118
-3-
Because Zeqaj did not raise this issue before the BIA and this
claim is a claim of procedural error correctable by the BIA, we
do not have jurisdiction to consider it. See Wang v. Ashcroft,
260 F.3d 448, 452-53 (5th Cir. 2001); Anwar v. INS, 116 F.3d 140,
144 n.4 (5th Cir. 1997). Accordingly, this portion of Zeqaj’s
petition for review is dismissed.
Zeqaj argues that the IJ erred by determining that he was
not entitled to asylum or withholding of removal because he
established that he was subjected to persecution by the
deliberate imposition of substantial economic disadvantage on
account of a protected ground. The IJ’s decision, however, was
based on his determination that Zeqaj and his witnesses were not
credible and Zeqaj has not shown that the record compels the
overturning of the IJ’s credibility determination.** See Lopez
De Jesus v. INS, 312 F.3d 155, 161 (5th Cir. 2002). Furthermore,
Zeqaj has not demonstrated that the IJ was improperly biased as
the alleged source of the IJ’s bias was not extrajudicial and
nothing in the record indicates pervasive bias and prejudice.
See In re Exame, 18 I. & N. Dec. 303, 306 (BIA 1982). Without
credible evidence, the IJ had no grounds upon which to grant
**
Although the REAL ID Act recently altered, inter alia,
the standard of review for credibility determinations, that
portion of the Act is inapplicable here because Zeqaj’s asylum
application was filed prior to the May 11, 2005, effective date
of the Act. See REAL ID Act §§ 101(a)(3), (h)(2), Pub. L. 109-
13, 119 Stat. 302; see also Dhima v. Gonzales, 416 F.3d 92, 94
n.3 (1st Cir. 2005) (holding that new standards for reviewing
credibility determinations are only applicable to applications
made on or after the effective date of the Act).
No. 05-61118
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Zeqaj asylum or withholding of removal and Zeqaj has not shown
that the IJ’s denial of his requests for asylum and withholding
of removal were not supported by substantial evidence in the
record. See Chun v. INS, 40 F.3d 76, 79 (5th Cir. 1994).
PETITION FOR REVIEW DISMISSED IN PART, DENIED IN PART.