[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12324 ELEVENTH CIRCUIT
December 16, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A98-477-619
NENG SHENG ZHENG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 16, 2008)
Before BIRCH, BLACK and HULL, Circuit Judges.
PER CURIAM:
Neng Sheng Zheng, a native and citizen of the People’s Republic of China
(China), appeals the Board of Immigration Appeals’ (BIA) dismissal of his appeal
from the Immigration Judge’s (IJ) denial of asylum, withholding of removal, and
relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment (CAT), 8 U.S.C. § 1231(b)(3); 8
C.F.R. § 208.16(c). Zheng asserts he is entitled to asylum and withholding of
removal because he was persecuted in China based on his violation of China’s
family planning policy and his practice of Falun Gong. The Government argues
we lack jurisdiction over his asylum claims because the BIA determined Zheng had
not filed his application within one year of entering the United States. After
review, we conclude we lack jurisdiction to review the BIA’s conclusion Zheng
failed to file his asylum application within one year. We do have jurisdiction to
review Zheng’s claim for withholding of removal, however, and because the BIA
failed to consider Zheng’s corroborating evidence, we remand for consideration of
such evidence in evaluating Zheng’s claim for withholding of removal.
I.
We review our subject-matter jurisdiction de novo. Brooks v. Ashcroft, 283
F.3d 1268, 1272 (11th Cir. 2002). An alien may apply for asylum if “the alien
demonstrates by clear and convincing evidence that the application has been filed
within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C.
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§ 1158(a)(2)(B). An alien may apply for asylum more than one year after arrival 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). “No court shall have jurisdiction to review any determination” an
application was untimely or failed to establish changed or extraordinary
circumstances to excuse the delay. 8 U.S.C. § 1158(a)(3). We have held
§ 1158(a)(3) divests our jurisdiction to review the BIA’s determination an asylum
applicant filed an untimely application and failed to establish changed or
extraordinary circumstances to excuse the untimely filing. Mendoza v. U.S. Att’y
Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
According to the REAL ID Act of 2005, we retain jurisdiction to review
legal or constitutional claims. REAL ID Act of 2005, § 106(a), H.R. 1268, 109th
Cong., Pub. L. No. 109-13, Div. B, 119 Stat. 231 (2005).1 However, the
“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. U.S. Att’y Gen., 427
F.3d 954, 957 (11th Cir. 2005).
1
Section 106(a) of the REAL ID Act applies to all claims filed before, on, or after the
REAL ID Act’s enactment date of May 11, 2005. See Real ID Act § 106(b); 8 U.S.C. § 1252.
3
Zheng does not address whether this Court has jurisdiction over the BIA’s
conclusion his asylum application was untimely. Accordingly, Zheng has
abandoned this issue. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1283 n.12 (11th
Cir. 2001) (stating issues not argued in the initial brief on appeal are deemed
abandoned). Even if Zheng had not abandoned this issue, our jurisdiction would
be limited by 8 U.S.C. § 1158(a)(3) because the timeliness of an asylum
application is not a legal or constitutional question. Because the BIA determined
Zheng filed his asylum application more than one year after his arrival of the
United States, and Zheng did not prove extraordinary circumstances, this Court
lacks jurisdiction to review the BIA’s decision regarding the timeliness of Zheng’s
application.
II.
When the BIA issues a decision, we review only that decision, except to the
extent the BIA expressly adopts the IJ’s decision. Al Najjar, 257 F.3d at 1284.
“Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as
well.” Id. Here, the BIA affirmed the IJ’s decision without adopting it, and we
will review the BIA’s decision.
To the extent the BIA’s decision was based on a legal determination, our
review is de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir.
2004). However, factual determinations are reviewed under the substantial
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evidence test, and we “must affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Al Najjar, 257 F.3d at 1283-84 (quotation omitted). We review
credibility determinations under the substantial evidence test and “may not
substitute [our] judgment for that of the BIA with respect to credibility findings.”
D-Muhumed, 388 F.3d at 818. Like any finding of fact, a credibility determination
may not be overturned unless the record compels it. Forgue v. U.S. Att’y Gen., 401
F.3d 1282, 1287 (11th Cir. 2005) (citations and quotations omitted).
If credible, an alien’s testimony may be sufficient, without corroboration, to
sustain his burden of proof in establishing his eligibility for relief from removal.
Forgue, 401 F.3d at 1287. “Conversely, an adverse credibility determination alone
may be sufficient to support the denial of an asylum application.” Id. However,
under this standard, “an adverse credibility determination does not alleviate the
[BIA]’s duty to consider other evidence produced by an asylum applicant.” Id. If
an applicant produces evidence beyond his own testimony, “it is not sufficient for
the [BIA] to rely solely on an adverse credibility determination in those instances.”
Id.
Here, Zheng offered several items of evidence to support his application for
withholding of removal, including, inter alia, a letter from his wife, two personal
statements, his friends’ affidavits, and articles supporting the existence of
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persecution for violating the family planning policy and practicing Falun Gong.
After finding Zheng not credible, the BIA did not mention or evaluate this
additional, corroborating evidence offered by Zheng. Because the BIA did not
consider this evidence, it committed error. See Forgue, 401 F.3d at 1287.
Accordingly, we remand to the BIA to consider Zheng’s corroborating evidence in
evaluating his claim for withholding of removal.
PETITION DISMISSED IN PART, GRANTED IN PART.
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