Of the Federal Circuit, sitting by designation. * Of the District of Puerto Rico, sitting by designation. ** Not for P ubl ication in West's Fe deral Reporter 

# U nit edStates C ou rt o f App eal s

For th e Firs t C ircu it

_______________________

No. 07-1717 ANDRI FNU, Petitioner,

v. MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

____________________ PETITION FOR REVIEW OF AN ORDER OF THE BOARD

OF IMMIGRATION APPEALS

____________________

Before Boudin and Dyk, Circuit Judges, * and Dominguez, ** District Judge. **

____________________ William A. H a h n w i th whom Hahn & Matkov was on brief for petitioner. Jeffrey S. Bucholtz, Acting Assistant General, Civil Division, James E. Grimes, Senior Litigation Counsel, and Thankful T. Vanderstar, Trial Attorney, Office of Immigration Litigation, Civil Division, on brief for respondent.

December 16, 2008-2- Dominguez, District Judge . Andri Fnu, hereinafter referred to as “Andri and/or Petitioner,” a native and citizen of Indonesia, seeks judicial review of a decision of the Board of Immigration Appea l s ( “ BIA”) denying his requests for asylum, withholdi n g of removal and protection under the United Nations Conv e n t i o n A g a i n s t T o r t u r e ( “ C A T ” )
. A n d r i c o n t e n d s t h a t t h e BIA erred (1) in determining that the Petitioner did not establish harm rising to the level of persecution, (2) by failing to properly take into consideration the country conditions of r e c ord, and (3) by failing to take into account the totality of the circumstances for purposes of both past persecution and well founded fear of future
pe r s e c u t i o n . F o r t h e r e a s o n s s t a t e d b e l o w , w e d i s m i ss the petition. I. BACKGROUND

Andri arrived in the United States on a visa which he admitted was fraudulently obtained, mis r e p resenting himself as a Boy Scou t o r g a n i z er. He was admitted on January 16, 2001, with permission to remain in the United States for three months until April 15, 2001. Andri filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), which was received by the Immigration and Naturalization Service on July 10, 2002.

Pe t i t i o n e r w a s i n t e r v i e w e do n S e p t e mb e r 1 9 , 2 0 0 3 in connection with his application and was referred to removal-3-

proceedings after his i nterview via a Notice to Appear dated September 25, 2003. Andri was charged with being removable from the United States, pursuant t o INA §237(a)(1)(B), 8 U.S.C. §1227(a)(1)(B), as an alien who o v e rstayed in the United States longer than permitted.

Represented by counsel, Andri appeared before an immigration j u d g e (“IJ”) for a hearing on January 8, 2004. Petitio n e r admitted the allegations in the Notice to Appear and conceded the charge of removability. A second hearing was held on September 21, 2005, wherein Andri presented evidence and testimony in support of his asylum application.

In support of his application, Andri testified before the
IJ that he was bullied as a child in school and in his neighborhood for being of Chinese ethnicity. In 1990 Petitioner and his family moved within Indonesia from Jakarta to Solo. Nevertheless, in 1995 Andri moved back to Jakarta in order to administer a bakery business which he owned. Petitioner testified that approximately in 1993, a group of people presumed to be Muslims by Pe t i t i oner,

w e n t t o his father’s pig farm and killed almost half of his family’s livestock, at the time being about 200 pigs. Nevertheless, Andri admitted that he learned about the incident through his father as he was not living at home when the incident occurred. Furthermore, Petitioner testified that on May 13, 1998, whi l e he was running his own bakery business, a group of about-4-

fifteen people, who A n d r i alleged were of Muslim extraction, stopped h i m and coerced him to show his national ID card which identifi e d h i s r eligion. After that they made him undress and proceeded to turn over his car. Petitioner stated that, fearing for his life, he had to walk six miles back to his house, without wearing any clothes. H e s t a t ed that after that incident he was emoti o n a l ly stressed for weeks, and that he was unable to eat or sleep. Petitioner further provided testimony relating to an incident that occurred on a particular Friday night in February of 1 9 9 9. He stated that during a home prayer at an evangelical neighbor’s house, Muslims heaved rocks at the house and expressed that if the occupants did not cease the praying, the house would be torched. Andri also testified about an incident that occurred the night before Christmas in the year 2000. He alleged that while in church, he heard a large explosion outside; he then saw that cars were being overturned in the parking lot. Andri further stated that he later observed in the n e w s t h a t other churches had been bombed around that same time.

After the h e a ring had ended, the IJ issued an oral decision denying all three of pet i t i o n er’s claims. The IJ
spec i f ically concluded that Andri had failed to file his asylum application within one (1) year of his arrival in the United States-5-

and had failed to establish extraordinary or changed circumstances excusing the untimeliness of his application. In the alternative, the IJ c o n cluded that even if Petitioner’s application had been timely filed, Andri had failed to establish eligibility for asylum. Furthermore, the IJ concl u d e d that Petitioner had also failed to

e s t a b l i s h e l i g i b i l i t yf o r w i t h h o l d i n go f r e m o v a l o r p r o t ection under CAT. Nevertheless, the IJ granted Petitioner’s application for voluntary departure.

Andri filed a timely appeal before the BIA; on April 9, 2007 the Board dismissed Andri’s appeal. The BIA agreed with the IJ’s determination. Petitioner was ruled ineligible for asylum since he failed to file an asylum application withi n t h e one (1) year filing deadline and failed to establ i s h any changed circumstances affecting his eligibility or any extraordinary circumstances that would justify the delay in filing his a sylum application. The BIA further stated that Andri had failed to address this finding with any specificity on appeal. Furthermore, the BIA agreed with the IJ’s alternative finding, turning to the merits of Andri’s application for asylum, that even though Andri’s testimony was credible, he failed to establish harm rising to the level of persecution. Moreover, the BIA found that the evidence of record demonstr a t e d a change in country conditions sufficient to rebut a presumption of well-founded f e a r o r clear probability of future persecution in Indonesia based on Andri’s Chinese ethnicity-6-

or Christian religion. The BIA further concluded that the fact that Andri’s family memb e r s had continued to reside in Indonesia unharmed, properly rebutted a n y claimed fear of future harm. Finally, the BIA stated that Petitioner failed to allege or identify error in the denial of protection pursuant to the CAT. Consequently, the BIA did not address said issue. The BIA further ordered that pursuant to the IJ’s determination and conditioned
upon co mp l i a n c e with the conditions set forth by the IJ and the statute, Petitioner was permitted to voluntarily d e p art from the United States. II. ANALYSIS A. Standard of Review The Court of appeals reviews BIA decisions under the “substantial evidence” standard based “on the record as whole”, and “reverse[s] only if ‘any reasonable adjudicator would be compelled to conclude to the contrary.’” El-Labaki v. Mukasey, 544 F.3d 1, *4- * 5 (1 Cir. 2008)(emphasis ours)(quoting 8 U.S.C. §

st 1252(b)(4)(B)).

This standard requires us to uphold the agency's findings of fact, including credibility determinations, as long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elías-Zacarías, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Long v. Gonzáles, 422 F.3d 37, 40 (1 st Cir.2005). We reverse only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Chikkeur v. Mukasey, 514 F.3d 1381,-7- 1382-83 (1 Cir. 2008). st

Id. Nevertheless, “[w]hen the BIA both adopts the decision of an immigration judge and adds a new ground for upholding the result, ‘this court reviews the IJ's decision as though it were the BIA's to the extent of the adoption, and the BIA's decision as to the additional ground.’” Singh v. Mukasey, 543 F.3d 1, *4 (1 st Cir. 2008) (emphasis ours) (quoting Berrio-Barrera v. Gonzales, 460 F.3d 163, 167 (1 Cir. 2006)). st

B. Asylum Claim

Pursuant to 8 U.S.C. § § 1158(a)(2)(B), 1158(a)(2)(D), an application for asylum must be “filed within 1 year after the date of the alien's arrival in the United States”, unless “the alien demonstrates to the satisfaction of the Attorney General either the existence of changed cir c u m s tances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified...”. Nevertheless, this Court has no jurisdiction to review the “agency's determination regarding the timeliness of the asylum application o r its application of the ‘extraordinary circumstances’ exception, unless the petitioner identifies a legal or constitutional defect in the decision.” El-Labaki, 544 F.3d at *5 (quoting 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D)).-8- In the instant case it is uncontested that Petitioner failed to file his appl i c a t ion for asylum within one (1) year of his arrival in the United States. Furthermore, the BIA, in agreement with the IJ stated that Andri had failed to establish any “changed circumstances” affecting his eligibility or any “extraordinary circumstances” tha t would warrant the delay in filing his asylum application. Moreover, not only did the BIA find that Andri had failed to address this issue with any specificity on appeal before the BIA, but we find that he also failed to raise the issue on appeal before this Court.

Petitioner also failed to raise any constitutional claims or questions of law. Consequently, we lack jurisdiction to review the BIA’s “determination regarding the timeliness of the asylum application or its application of the ‘extraordinary circumstances’ exception.” Id.; see also Hayek v. Gonzalez, 445 F.3d 501 , 506 (1 Cir. 2006); Ly v. Mukasey, 524 F.3d 126, 130 (1 Cir. st st 2008)(“This court lacks jurisdiction to review a decision based on the t i m eliness of an asylum application. 8 U.S.C. § 1158(a)(3);
Rot i n s u l u v. Mukasey, 515 F.3d 68, 71 (1 Cir.2008). The st
governm e n t's argument that the issue of asylum was waived is inapposite.”).

Nev e r t h eless, we deem it necessary to emphasize that Andri is not eligible for asylum because he failed to timely file his asylum application and failed since the very inception of the-9-

case before the IJ, t o e stablish any “changed circumstances” affecting his eligibility or any “extraordinary circumstances” that would excuse the delay in filing his asylum application. In other words, Andri is not ineligible for asylum because he failed to establish that he is a refugee within the meaning of INA, 8 U.S.C. §1101(a)(42); 8 C.F.R. §1208.13, he is ineligible because he failed to timely file his application and failed to establish any “changed circumstances” affecting his eligibility or any “extraordinary circumstances” that would justify the delay. The r e f o r e, we find that the IJ’s on t h e merits alternative analysis regarding Petitioner’s failure to establish that he is a refugee within the meaning of INA, 8 U.S.C. §1101(a)(42 ) ; 8 C.F.R. §1208.13, was performed arguendo, and as such we have no jurisdiction to review the IJ’s nor the BIA’s determinations r e garding said alternative finding. See El-Labaki, 544 F.3d at *5. Hence, all of Petitioner’s arguments pertaining to said alternative analysis are inapposite.

Andri argues before this Court that the BIA committed clear error in ruling that the IJ had found that Petitioner did not establish harm rising to the level of persecution, since the IJ stated three times in her oral decision that Andri had suffered persecution. Consequently, Petitioner argues that since the IJ did make an explicit finding of past persecution, h e i s therefore presumed to have a well-founded fear of future persecution. Finally, Andri avers that the administrative agency failed to-10-

properly take into consideration the country conditions of record, and failed to take into account the totality of the circumstances for purposes of both past persecution and well founded fear of future persecution.

After reviewing all of Petition e r ’ s arguments, we find that these assertions all relate to the IJ’s alternative analysis of his asylum claim, which as aforementioned, we lack jurisdiction to review. See El-Labaki, 544 F.3d at *5.

C. W i thh o l d i n go fRemo v a l a n d C o nve n t i o nAg a i n s tT o r tu r e ( CAT) Claims As to a claim for withholding of removal, t h e same imposes “‘a more stringent burden of proof on an alien than does a counterpart claim for asylum.’ Withholding of removal requires that an alien establish a clear probability of persecution, rather than merely a well-founded fear of persecution.”Ang v. Gonzalez, 430 F.3d 50, 58 (1 Cir. 2005)(internal citations omitted)(quoting st Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1 Cir. 2005)); st see also De Oliveira v. Mukasey, 520 F.3d 78, 79 (1 Cir. 2008) st (“In order to qualify for withholding of remov a l , [Petitioner] would need to prove that it i s m o r e likely than not that he will face pers e cution should he return to [Indonesia].”) (emphasis ours)( citing INS v. Aguirre-Aguirre, 526 U.S. 415, 419, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)); Journal v. Keisler, 507 F.3d 9, 13 (1 C i r . 2007). “This showing can be made by proving past st-11-

persecution, which raises a r e buttable presumption of the likelihood of future persecution.” De Oliveira, 520 F.3d at 79.

“An applicant for protection under Article III of CAT must prove that it is more likely than not that he or she will be tortured if removed to the country designated for removal. ” ElLabaki, 544 F.3d at *7 (quoting 8 C.F.R. §§ 1208.16-1208.18) .

Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ... by or at the i n s tigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Id. § 1208.18(a)(1). The possibility of internal relocation is relevant in determining whether the applicant has s h own that he is likely to be torture d i f removed. Id. § 1208.16(c)(3)(ii).
Tendean v. Gonzales, 503 F.3d 8, 12 (1 Cir. 2007). “Such torture st must be inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.” El-Labaki, 544 F.3d at *7.

Although Andri applied for withholding of removal and protection under the Convention Ag a i n st Torture, he “devoted his appellate brief exclusively to his asylum claim and has failed to develop any argument supporting either his claim for withholding of removal or his claim for protection under CAT. Consequently, we deem those claims abandoned.” Nikijuluw v. Gonzales, 427 F.3d 115, 120 FN. 3 (1 Cir. 2005). Furthermore, “issues adverted to in a st perfunctory manner, unaccomp anied by some effort at developed-12-

argumentation, are deemed waived.” United States v. Zannino, 895 F.2d 1, 17 (1 Cir.1990); see also Bonilla v. Mukasey, 539 F.3d 72, st 75 FN 1(1 Cir. 20 0 8 ) ( c i t ing Ramallo Bros. Printing, Inc., v. El

st Dia, Inc., 490 F.3d 86, 90 (1 Cir. 2007); Bebri v. Mukasey, ___ st F. 3d ___, 2008 WL 4603452 (1 Cir. 2008); Makhoul v. Ashcroft, st 387 F.3d 75, 82 (1 Cir. 2004). Moreover, Petitioner also failed st to allege or identify any error in the denial of his CAT claim before the BIA. Therefore, not only has he waived said claim, but we lack jurisdiction to consider it. See Bollan o s v . Gonzalez, 461 F.3d 82, 87 (1 Cir. 2006)(citing Makhoul v. Ashcroft, 387 F.3d st 75, 82 (1 Cir. 2004).

st For the foregoing reasons, the petition for judicial review is dismissed.