[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-16422 October 6, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency No. A95-551-171
LUIS FERNANDO CHACON-BOTERO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 6, 2005)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Colombian native and citizen Luis Fernando Chacon-Botero petitions for
review of the Board of Immigration Appeals’ (BIA’s) decision adopting and
affirming the Immigration Judge’s (IJ’s) order denying his claim for asylum, 8
U.S.C. § 1158,1 withholding of removal, 8 U.S.C. § 1231(b)(3), under the
Immigration and Nationality Act (INA), and his claim for protection under the
United Nation’s Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (CAT), 8 C.F.R. § 208.16(c). We dismiss the
petition in part, and deny in part.
I. BACKGROUND
Chacon-Botero arrived in the United States on April 8, 2000, with
authorization to remain in the United States for a temporary period not to exceed
November 20, 2000. He remained in the United States beyond November 20,
2000, without permission from the Immigration and Naturalization Service (INS).2
Chacon-Botero filed an application for asylum and withholding of removal under
the INA on May 28, 2002. He acknowledged he was filing his application for
1
Because Chacon-Botero’s asylum proceedings commenced after April 1, 1997, the
permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Pub. L. No. 104-208, 110 Stat. 3009, apply.
2
On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002 (HSA), Pub. L. No. 107-296, 116 Stat. 2135. The HSA created a new Department of
Homeland Security (DHS), abolished the INS, and transferred its functions to the new
department. Because this case was initiated while the INS was still in existence, however, this
opinion refers to the agency as the INS rather than the DHS.
2
asylum more than one year after his arrival in the United States, but failed to
explain why he did not file an asylum application within the first year after he
arrived.
During removal proceedings in front of an IJ, Chacon-Botero admitted the
allegations of fact, conceded the charge of removability as set forth in the notice to
appear, and requested asylum, withholding of removal, and protection under the
CAT. The IJ continued the hearing after finding the charge of removability was
established by clear and convincing evidence and pointing out Chacon-Botero’s
asylum application was untimely.
During a later removal hearing, Chacon-Botero testified he had not filed his
asylum application within one year after arriving in the United States because he
had wanted to return to Colombia. Additionally, Chacon-Botero claimed he was
“misinformed” by his previous attorney who advised him his only remedy was to
apply for a labor certification. On cross-examination, however, Chacon-Botero
admitted he “never made an agreement with [his former attorney] based on
political asylum.”
At the conclusion of the hearing, the IJ asked Chacon-Botero whether he
informed his previous attorney he was persecuted in Colombia by the FARC
guerillas. Chacon-Botero responded he informed his former attorney he was
threatened in Colombia, but he never explicitly agreed with the attorney that he
3
wanted to apply for asylum because he believed his attorney would advise him on
the matter. Following the hearing, Chacon-Botero submitted an affidavit in which
he explained: (1) he did not file for asylum during the year following his arrival in
the United States because he “had every intention of going back to [his] country,
Colombia; however, the situation did not allow [him] to do so;” (2) an attorney
“suggested that the only process [he] could follow was” the labor certification
process, and (3) he “did not know that [he] was capable of filing for political
asylum.”
After taking into consideration Chacon-Botero’s testimony, as well as the
documentary evidence, the IJ rendered an oral decision denying Chacon-Botero’s
application for asylum, withholding of removal, and protection under the CAT.
The IJ found Chacon-Botero’s application for asylum was statutorily time-barred
because Chacon-Botero did not file it within one year after his entry into the
United States and he did not show exceptional or extraordinary circumstances
which justified a delay in filing. Nevertheless, the IJ went on to address the
underlying merits of Chacon-Botero’s application for asylum, finding because
Chacon-Botero’s testimony was not credible or sufficiently detailed, he failed to
establish past persecution or a well-founded fear of future persecution in
Colombia. Likewise, because of the inconsistencies in his application and
4
testimony, the IJ concluded Chacon-Botero failed to meet his burden of
establishing eligibility for withholding of removal and protection under the CAT.
Chacon-Botero timely appealed the IJ’s decision to the BIA. The BIA
adopted and affirmed the decision of the IJ. The BIA agreed with the IJ’s finding
that Chacon-Botero failed to establish by clear and convincing evidence his asylum
application was filed within one year after his arrival in the United States or that he
fell within an exception to the deadline. The BIA further agreed with the IJ that
Chacon-Botero did not meet his burdens of proof with respect to the relief sought.
Accordingly, the BIA dismissed the appeal.
II. DISCUSSION
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 v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we
will review the IJ’s decision as well.” Id. Here, the BIA expressly adopted the IJ’s
reasoning and briefly articulated its reasons for doing so. Thus, we review the
decisions of both the IJ and the BIA.
This Court is “‘obligated to inquire into subject-matter jurisdiction sua
sponte whenever it may be lacking.’” Cadet v. Bulger, 377 F.3d 1173, 1179 (11th
Cir. 2004) (citations omitted). An asylum application must be “filed within 1 year
after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B).
5
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). The determination
of whether an alien can apply for asylum, however, is left exclusively to the
Attorney General, and “[n]o court shall have jurisdiction to review any
determination of the Attorney General” regarding timeliness of the asylum
application. 8 U.S.C. § 1158(a)(3); see also Mendoza v. U.S. Attorney Gen., 327
F.3d 1283, 1287 (11th Cir. 2003) (noting 8 U.S.C. § 1158(a)(3) “divests our 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”).
On May 11, 2005, President Bush signed into law the Real ID Act of 2005.
Pub. L. No. 109-13, 119 Stat. 231. Section 106(a)(1)(A)(iii) of the Real ID Act
amends 8 U.S.C. § 1252 by adding a new provision, § 1252(a)(2)(D), which
provides in pertinent part:
(D) JUDICIAL REVIEW OF CERTAIN LEGAL CLAIMS. –
Nothing in subparagraph (B) or (C), or in any other provision of this
Act (other than this section) which limits or eliminates judicial review,
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 in accordance with this section.
6
REAL ID Act of 2005, Pub. L. No. 109-13, § 106(a), 119 Stat. 231, 310.
Furthermore, Section 106(a) of the Real ID Act took effect on the date of
enactment and applies to cases in which the final order of removal, deportation, or
exclusion was issued before, on, or after the date of the enactment. See Real ID
Act § 106(b). Therefore, § 1252(a)(2)(D), as added by the Real ID Act, applies to
this petition for review.
Under our existing precedent, decided before the enactment of the Real ID
Act, we do not have jurisdiction to consider the IJ’s untimeliness ruling. See
Mendoza, 327 F.3d at 1287. We have not addressed this issue since the enactment
of the Real ID Act. The Seventh Circuit, however, recently held it could not
review the BIA’s denial of a petitioner’s untimely asylum claim “even in light of
the changes in the judicial review provisions contained in the Real ID Act of
2005.” Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005). The Seventh
Circuit reasoned that notwithstanding § 106(a) of the Act, “discretionary or factual
determinations continue to fall outside the jurisdiction of the court of appeals
entertaining a petition for review.” Id. Thus, the timeliness issue still fits squarely
within 8 U.S.C. § 1158(a)(3) which says “[n]o court shall have jurisdiction to
review any determination of the Attorney General under paragraph (2).” Id.
We agree with the Seventh Circuit’s conclusion and hold we cannot review
the IJ’s and BIA’s denial of Chacon-Botero’s asylum claim, even considering the
7
changes in the Real ID Act. The timeliness of an asylum application is not a
constitutional claim or question of law covered by the Real ID Act’s changes.3
Thus, we adhere to our existing precedent that 8 U.S.C. § 1158(a)(3) “divests our
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.” Mendoza, 327 F.3d at 1287. We dismiss Chacon-
Botero’s petition as to his asylum claim for lack of jurisdiction.4
PETITION DISMISSED IN PART AND DENIED IN PART.
3
This case is distinguishable from Balogun v. U.S. Attorney Gen., No. 04-12507, 04-
14496, 2005 WL 2333840 (11th Cir., Sept. 26, 2005). In Balogun, we concluded that although
we did not have jurisdiction to do so in the past, after the enactment of the Real ID Act “we have
jurisdiction to decide in a petition for review proceeding whether the BIA erred in determining
that a petitioner’s conviction is an aggravated felony within the meaning of 8 U.S.C. § 1182(h).”
In contrast to this case, Balogun presented a question of law covered by the Real ID Act’s
changes.
4
As to Chacon-Botero’s petition for review of the denial of his withholding of removal
and CAT claims, we conclude that substantial evidence supports the IJ’s and BIA’s denial of
those claims. See Sanchez v. U.S. Attorney Gen., 392 F.3d 434, 438 (11th Cir. 2004) (holding an
alien must show it is more likely than not he will be tortured in his home country at the hands of
the government to demonstrate eligibility for CAT protection); Mendoza, 327 F.3d at 1287
(noting an alien must show he more likely than not would be persecuted or tortured upon his
return to the country in question to demonstrate eligibility for withholding of removal). Thus,
we deny his petition as to the denial of his withholding of removal and CAT claims.
8