Of the Federal Circuit, sitting by designation. *

Of the District of Puerto Rico, sitting by designation. **

Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

_______________________

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. Hahn with 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
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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 Appeals (“BIA”) denying his requests for asylum,

withholding of removal and protection under the United Nations

Convention Against Torture (“CAT”). Andri contends that the 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 record, 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

persecution. For the reasons stated below, we dismiss the

petition.

I. BACKGROUND

Andri arrived in the United States on a visa which he

admitted was fraudulently obtained, misrepresenting himself as a

Boy Scout organizer. 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.

Petitioner was interviewed on September 19, 2003 in

connection with his application and was referred to removal
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proceedings after his interview via a Notice to Appear dated

September 25, 2003. Andri was charged with being removable from

the United States, pursuant to INA §237(a)(1)(B), 8 U.S.C.

§1227(a)(1)(B), as an alien who overstayed in the United States

longer than permitted.

Represented by counsel, Andri appeared before an

immigration judge (“IJ”) for a hearing on January 8, 2004.

Petitioner 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 Petitioner,

went to 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,

while he was running his own bakery business, a group of about
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fifteen people, who Andri alleged were of Muslim extraction,

stopped him and coerced him to show his national ID card which

identified his religion. 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. He stated that after that incident he was

emotionally 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

1999. 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 news that other churches had been

bombed around that same time.

After the hearing had ended, the IJ issued an oral

decision denying all three of petitioner’s claims. The IJ

specifically concluded that Andri had failed to file his asylum

application within one (1) year of his arrival in the United States
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and had failed to establish extraordinary or changed circumstances

excusing the untimeliness of his application. In the alternative,

the IJ concluded that even if Petitioner’s application had been

timely filed, Andri had failed to establish eligibility for asylum.

Furthermore, the IJ concluded that Petitioner had also failed to

establish eligibility for withholding of removal or protection

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 within the one (1)

year filing deadline and failed to establish any changed

circumstances affecting his eligibility or any extraordinary

circumstances that would justify the delay in filing his asylum

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 demonstrated a change in country conditions sufficient to

rebut a presumption of well-founded fear or clear probability of

future persecution in Indonesia based on Andri’s Chinese ethnicity
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or Christian religion. The BIA further concluded that the fact

that Andri’s family members had continued to reside in Indonesia

unharmed, properly rebutted any 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 compliance with the conditions set forth by the IJ and the

statute, Petitioner was permitted to voluntarily depart 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 (1st

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,
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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 (1st

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 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...”. Nevertheless, this Court has no jurisdiction to

review the “agency's determination regarding the timeliness of the

asylum application or 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 application 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” that 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 timeliness of an asylum application. 8 U.S.C. § 1158(a)(3);

Rotinsulu v. Mukasey, 515 F.3d 68, 71 (1 Cir.2008). The st

government's argument that the issue of asylum was waived is

inapposite.”).

Nevertheless, 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
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case before the IJ, to establish 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. Therefore, we find

that the IJ’s on the 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 regarding 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, he is therefore

presumed to have a well-founded fear of future persecution.

Finally, Andri avers that the administrative agency failed to
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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 Petitioner’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. Withholding of Removal and Convention Against Torture (CAT)

Claims 

As to a claim for withholding of removal, the 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 removal, [Petitioner]

would need to prove that it is more likely than not that he will

face persecution 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 Cir. 2007). “This showing can be made by proving past st
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persecution, which raises a rebuttable 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 instigation 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 shown that he is likely to

be tortured if 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 Against 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, unaccompanied by some effort at developed
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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. 2008)(citing 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 Bollanos 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.