[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 20, 2007
No. 06-13506 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A78-581-998
GUSTAVO HERNANDO ARANGO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 20, 2007)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Gustavo Hernando Arango petitions this Court for review of the BIA’s final
order affirming the IJ’s denial of his claims for asylum and withholding of
removal.1 We deny Arango’s petition.
I. DISCUSSION
A. Asylum
We are “‘obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking.’” Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954,
956 (11th Cir. 2005) (citation omitted). “An asylum application must be ‘filed
within 1 year after the date of the alien’s arrival in the United States.’” Id. (quoting
8 U.S.C. § 1158(a)(2)(B)). “This one-year filing period commences either on the
date of the alien’s last arrival in the United States or April 1, 1997, whichever is
later.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1286 (11th Cir. 2003). An
untimely application “may be considered . . . if the alien demonstrates . . . 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 . . . .” 8 U.S.C. § 1158(a)(2)(D).
1
We do not address Arango’s CAT claim because Arango did not fully exhaust his
administrative remedies by appealing the IJ’s denial of his CAT claim to the BIA. Thus, we lack
jurisdiction to consider his CAT claim on appeal. Camacho-Salinas v. U.S. Att’y Gen., 460 F.3d
1343, 1347, n.1 (11th Cir. 2006).
2
We lack jurisdiction to review the Attorney General’s timeliness
determination because the specific statutory language of 8 U.S.C. § 1158(a)(3)
demonstrates Congress intended to bar such review. Fahim v. U.S. Att’y Gen., 278
F.3d 1216, 1218 (11th Cir. 2002). After the passage of the REAL ID Act of 2005,
we again recognized § 1158(a)(3) continues to divest this “‘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.’”
Chacon-Botero, 427 F.3d at 957 (citation omitted). Because the IJ concluded
Arango’s asylum application was time-barred and that no extraordinary
circumstances excused the untimeliness, we lack jurisdiction to review his asylum
claim.
B. Withholding of Removal
When the BIA issues a decision, we review only that decision, “except to the
extent that it expressly adopts the IJ’s opinion.” Reyes-Sanchez v, U.S. Att’y Gen.,
369 F.3d 1239, 1242 (11th Cir. 2004). To the extent the BIA adopts the IJ’s
reasoning, we review the IJ’s reasoning as well. Savoury v. U.S. Att’y Gen., 449
F.3d 1307, 1312 (11th Cir. 2006). In this case, the BIA expressly adopted and
affirmed some of the IJ’s findings and articulated additional findings as well.
Thus, we will review the decisions of both the IJ and the BIA.
3
We review legal conclusions de novo. D-Muhumed v. U.S. Att’y Gen., 388
F.3d 814, 817 (11th Cir. 2004). We review findings of fact under the substantial
evidence test, which requires us to “affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Id. (quoting Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001)).
Under the substantial evidence test, the record must not only support reversal, it
must compel it. Fahim, 278 F.3d at 1218.
The INA forbids the removal of an alien from the United States if “the
alien’s life or freedom would be threatened . . . because of . . . race, religion,
nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A). An applicant may show he is entitled to withholding of
removal in two ways. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir.
2006). First, the applicant may establish he experienced past persecution
motivated, at least in part, by a protected ground. Id. Second, he may establish it
is more likely than not he would be persecuted on account of the protected ground.
Id. Either way, the applicant must establish a causal connection between the
protected ground and the feared persecution, presenting “specific, detailed facts
showing a good reason to fear that he . . . will be singled out for persecution on
account of such an opinion.” Al Najjar, 257 F.3d at 1287 (quotations and citations
4
omitted); see also 8 C.F.R. § 208.16(b)(2). “It is not enough to show that [he] was
or will be persecuted or tortured due to [his] refusal to cooperate with the
guerillas.” Sanchez v. United States Att'y Gen., 392 F.3d 434, 438 (11th Cir 2004).
Even if Arango was persecuted in Colombia, the evidence does not compel
the conclusion the persecution was on account of his actual or implied political
opinion. Arango did not establish a causal connection between the alleged past
persecution or feared future persecution and his political opinion. Arango’s own
application and testimony indicated the shootings and other written threats did not
begin until he quit paying the FARC’s extortion demands. This supports the IJ’s
and BIA’s conclusions that he was targeted because he refused to cooperate with
the FARC by paying their extortion demands, which does not meet the burden for
withholding of removal. See Sanchez, 392 F.3d at 438.
II. CONCLUSION
We dismiss the petition for review with respect to the asylum and CAT
claims, and deny it with respect to the withholding of removal claim.
PETITION DISMISSED IN PART, DENIED IN PART.
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