FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

December 1, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11466

Non-Argument Calendar

________________________

Agency No. A96-437-626

NG CRISTEVEN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(December 1, 2008)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
Through counsel, Ng Cristeven, an Indonesian of Chinese descent, petitions

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for review of the Board of Immigration Appeals (“BIA”) order dismissing his

appeal of denial of his application for asylum and withholding of removal.

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Cristeven offers two arguments: (1) the BIA and the Immigration Judge (“IJ”)

erroneously failed to find that changed conditions prevented his timely filing of an

application for asylum; and (2) he demonstrated past persecution and a wellfounded fear of unavoidable future persecution in Indonesia because he is Christian

and Chinese. Therefore, Cristeven maintains, the IJ and BIA erred by denying his

applications for asylum and withholding of removal. We will address each

argument in turn.

I. Asylum

Conceding that he did not file his application for asylum within the one-year

time frame from arrival into the United States, Cristeven argues that BIA erred by

finding that he did not establish one of the exceptions, specifically changed

circumstances. The Government responds that we lack jurisdiction to review the

denial of Cristeven’s application.

 “Ng” stands for “name not given.” 1

Cristeven did not appeal the denial of withholding of removal under the United Nations

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Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment to

the BIA or us. 

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When the BIA issues a decision, we review only that decision, “except to the

extent that [the BIA] expressly adopts the IJ’s decision.” Al Najjar v. Ashcroft,

257 F.3d 1262, 1284 (11th Cir. 2001). “We review subject matter jurisdiction

de novo.” Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir.

2003) (per curiam).

An alien may apply for asylum if he “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. § 1158(a)(2)(B). An application

filed after one year may be considered “if the alien demonstrates to the satisfaction

of the Attorney General 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 within the period

specified . . . .” § 1158(a)(2)(D). Section 1158(a)(3) provides: “[n]o court shall

have jurisdiction to review any determination of the Attorney General under

paragraph (2).” § 1158(a)(3).

Under our current precedent, § 1158(a)(3) divests us of jurisdiction to

review the determination that an asylum applicant filed an untimely application or

failed to establish changed or extraordinary circumstances to excuse his untimely

filing. Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1217 (11th Cir. 2002) (per

curiam) (holding that federal courts lack jurisdiction to review the Attorney

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General’s decision as to timeliness of an asylum request: “Pursuant to 8 U.S.C. §

1158(a)(3), the Attorney General’s decision regarding whether an alien complied

with the one-year time limit or established extraordinary circumstances, such that

the time limit should be waived, is not reviewable by any court.”); Ruiz v.

Gonzales, 479 F.3d 762, 765 (11th Cir. 2007) (providing that 1158(a)(3) “divests

us of jurisdiction to review decisions of whether an alien complied with the

one-year time limit, or whether extraordinary circumstances were present to justify

untimely filing of the asylum application”). Hence, we lack jurisdiction to review

the determination that Cristeven failed to demonstrate that changed country

conditions justified his untimely filing. See 8 U.S.C. § 1158(a)(3). Accordingly,

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we dismiss Cristeven’s petition for review with respect to his asylum claim for lack

of jurisdiction.

Section § 106(a)(1)(A)(iii) of the REALID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 3

310 (2005), amended 8 U.S.C. § 1252 by adding subsection (a)(2)(D), which reads that “[n]othing

in subparagraph (B) [removing jurisdiction for review of denials of discretionary relief] or (C), or

in any other provision of this chapter (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.” 

8 U.S.C. § 1252(a)(2)(D). We, however, have held that the REAL ID Act did not vest us with

jurisdiction to review a finding that an asylum application was untimely or that extraordinary

circumstances justified an untimely filing, because these were discretionary or factual

determinations. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005) (per curiam)

(“The timeliness of an asylum application is not a constitutional claim or question of law covered

by the Real ID Act’s changes.”). 

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II. Withholding of Removal

Cristeven argues that, based on his credible testimony and independent

evidence, he suffered persecution because of his Chinese ethnicity and Christian

denomination, or, in the alternative, he has a well-founded fear of future

persecution if he returns to Indonesia. Specifically, Cristeven asserts that the

following amounts to persecution: attacks and discrimination in school, threats

that forced his family to flee during the Dayak War in or about February 1997,

demands for money and harassment by Muslims, and the anti-Chinese riots in

Jakarta in 1998. The Government responds that the same does not constitute

persecution.

We review the BIA’s factual determinations under the substantial evidence

test and “must affirm the [IJ’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 (citation omitted). “We have described the

substantial evidence test as ‘deferential,’ and have emphasized [that] we may not

‘re-weigh the evidence’ from scratch.” Mazariegos v. U.S. Att’y Gen.,

241 F.3d 1320, 1323 (11th Cir. 2001). “To reverse . . . fact findings, we must find

that the record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y

Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).

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To obtain withholding of removal, an alien must establish that his “life or

freedom would be threatened in that country because of the alien’s race, religion,

nationality, membership in a particular social group, or political opinion.”

8 U.S.C. § 1231(b)(3)(A). “The alien bears the burden of demonstrating that it is

‘more likely than not’ [he] will be persecuted or tortured upon being returned to

[his] country.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006)

(quoting Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005)).

“[P]ersecution is an extreme concept, requiring more than a few isolated incidents

of verbal harassment or intimidation, and . . . [m]ere harassment is not

persecution.” Sepulveda, 401 F.3d at 1231 (citation and internal quotations

omitted); Ruiz, 479 F.3d at 766 (construing Sepulveda as holding the same). The

standard for withholding of removal “is more stringent than the ‘well-founded fear

of future persecution’ required for asylum.” Tan, 446 F.3d at 1375 (citation

omitted).

An alien may satisfy his burden of proof for withholding of removal in two

ways. First, an alien may establish past persecution based on a protected ground.

Tan, 446 F.3d at 1375. If he does so, the existence of past persecution creates a

rebuttable presumption that he has a well-founded fear of future persecution and

shifts the burden to the government to show changed conditions in the country or

the ability to avoid a future threat through relocation. Id. Second, an alien may

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establish that it is more likely than not that he would be persecuted upon removal

due to race, religion, nationality, membership in a particular social group, or

political opinion. Id. “‘An alien cannot demonstrate that [he] more-likely-than-not

would be persecuted on a protected ground if the [BIA] finds that the alien could

avoid a future threat by relocating to another part of [his] country.’” Id. (quoting

Mendoza, 327 F.3d at 1287).

Having reviewed the record and the briefs of the parties, we discern no error.

Substantial evidence supports the determination that Cristeven did not meet the

burden required for withholding of removal because he did not establish past

persecution or an inability to avoid future persecution through relocation within

Indonesia. Notably, the record reveals that Cristeven never suffered any physical

harm based on his Chinese descent or Christianity and his family continues to

reside unharmed in a non-Muslim area of Indonesia. See Ruiz v. U.S. Att’y Gen.,

440 F.3d 1247, 1259 (11th Cir. 2006) (per curiam) (providing that evidence that an

alien’s family continues to reside unharmed in a country supports a conclusion that

a threat may be avoided by relocation). Accordingly, we deny Cristeven’s petition

with regard to the withholding of removal claims.

DISMISSED IN PART and DENIED IN PART.

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