FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUG 11, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-15770

Non-Argument Calendar

________________________

Agency Nos. A78-581-700 

A77-921-883

RICARDO E. VILLARREAL,

LUZ MARINA LLANOS ROJAS, 

JUAN VILLARREAL LLANOS, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(August 11, 2006)

Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM:

Ricardo E. Villarreal, Luz Marina Llanos Rojas, and Juan Villarreal Llanos,
Petitioners do not make any argument on appeal regarding the United Nations Convention 1

Against Torture. They argue only that the BIA improperly denied their applications for asylum and

withholding of removal.

2

through counsel, petition for review of the Board of Immigration Appeals’s

(“BIA”) decision. The BIA affirmed the Immigration Judge’s (“IJ”) order denying

their application for asylum and for withholding of removal under the Immigration

and Nationality Act (“INA”) and the United Nations Convention Against Torture

and Other Cruel, Inhuman, or Degrading Treatment or Punishment. For the 1

reasons set forth below, we grant the petition in part, dismiss in part, and remand to

the BIA for further proceedings.

I.

Petitioners contend that their application for asylum was not time-barred

because their late filing was justified. The government argues that we do not have

jurisdiction to review the BIA’s finding on this issue.

 We review subject-matter jurisdiction de novo. Brooks v. Ashcroft, 283

F.3d 1268, 1272 (11th Cir. 2002). An alien can 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). However, “[a]n application for asylum of an alien may be

considered . . . if the alien demonstrates to the satisfaction of the Attorney General
3

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 . . . .” 8 U.S.C. §

1158(a)(2)(D). Although the BIA may consider an untimely asylum application

where the applicant meets one of the exceptions to the one-year deadline, “no court

shall have jurisdiction to review any determination of the Attorney General under

[section 1158(a)(2)].” Mendoza v. U.S. Att’y General, 327 F.3d, 1283, 1287 (11th

Cir. 2003) (quoting 8 U.S.C. § 1158(a)(3)) (alteration in original). We have held

that § 1158(a)(3) divests this court of jurisdiction to review the BIA’s

determination that an asylum applicant filed an untimely application and failed to

establish changed or extraordinary circumstances to excuse his untimely filing. 

See id. We have recently held that jurisdictional provisions in the REAL ID Act of

2005, Pub. L. No. 109-13, 119 Stat. 231, 310 (2005), did not affect prior

precedents on this issue, such as Mendoza. Chacon-Botero v. U.S. Att’y General,

427 F.3d 954, 957 (11th Cir. 2005). 

The IJ determined that petitioners’ asylum application was untimely and that

they had failed to establish changed or extraordinary circumstances to excuse the

untimeliness. Accordingly, we lack jurisdiction to consider petitioners’ argument

on appeal that the BIA erred in this regard, and we dismiss the petition for review
4

as to petitioners’ claims for asylum.

II.

Next, petitioners challenge the BIA’s denial of their withholding of removal

claim. Petitioners argue that they have suffered past persecution and have a wellfounded fear of future persecution because of Villarreal’s political opinion. In a

withholding of removal claim, an alien shall not be removed to a country if his life

or freedom would be threatened on account of race, religion, nationality,

membership in a particular social group, or political opinion. 8 U.S.C. §

1231(b)(3). The alien must show that it is “more likely than not that she will be

persecuted or tortured upon being returned to her country.” Sepulveda v. U.S.

Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005).

“If the alien establishes past persecution in his country based on a protected

ground, it is presumed that his life or freedom would be threatened upon return to

his country unless the INS shows by a preponderance of the evidence that, among

other things, (1) the country’s conditions have changed such that the applicant’s

life or freedom would no longer be threatened upon his removal; or (2) that the

alien could avoid a future threat to his life or freedom by relocating to another part

of the proposed country of removal, and it would be reasonable to expect him to do

so.” Mendoza, 327 F.3d at 1287. “An alien who has not shown past persecution,
Rojas and Llanos are deriative claimants on Villarreal’s application. 2

5

though, may still be entitled to withholding of removal if he can demonstrate a

future threat to his life or freedom on a protected ground in his country.” Id. 

In evaluating a claim for withholding of removal, an IJ does not have the

discretion to refrain from making a determination as to the existence of past

persecution if the applicant has presented credible evidence of such persecution. 

Antipova v. U.S. Att’y Gen., 392 F.3d 1259, 1265 (11th Cir. 2004). The failure to

make such a determination precludes meaningful review. Id.

In the instant case, Villarreal presented evidence that his wife was abducted

in Colombia for four hours because of his political activity. The IJ found this

evidence credible, but failed to make a determination of whether Villarreal had

suffered past persecution. If Villarreal suffered past persecution, he is entitled to a 2

presumption that his life or freedom would be threatened by returning to Colombia.

In that situation, the burden would shift to the INS to prove, by a preponderance of

the evidence, that Villarreal’s life or freedom is not threatened in Colombia. Here,

the IJ did not apply that presumption, although the IJ found Villarreal’s testimony

credible. The IJ stated:

Even though I’ve viewed the record in the likable [sic] favor to the

respondent, even though I find that the respondent’s family did suffer

some mistreatment, the wife was kidnaped, I cannot find that the

record would allow me to find that it is more likely than not that the
6

respondent or a family member would suffer persecution in the future

if the family had to return to Colombia. 

The IJ mentioned past mistreatment, but only discussed it in relation to whether

Villarreal and his family had a well-founded fear of future persecution. The IJ did

not make any explicit finding with regard to whether or not Villarreal or his family

suffered past persecution. 

“Where an applicant for withholding of removal sets forth credible evidence

that she has suffered past persecution in the proposed country of removal, 8 C.F.R.

§208.16(b)(1)(i) requires the IJ to make a finding regarding past persecution.”

Antipova, 392 F.3d at 1265. Here, the IJ made no determination of whether

petitioners had suffered past persecution in Colombia. The IJ’s failure to make the

appropriate determination, and the BIA’s failure to rectify the error, precludes our

meaningful review of the merits of the removal order. Accordingly, we vacate the

removal order as to this issue and remand to the BIA for a finding regarding past

persecution and the applicability of a presumption of a future threat to petitioners’

life or freedom.

PETITION DISMISSED IN PART, GRANTED IN PART AND

REMANDED FOR FURTHER PROCEEDINGS.