1 We substitute Michael B. Mukasey, the current Attorney

General of the United States, as the Respondent in this action.

See Fed. R. App. P. 43(c)(2).

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1098

JEANNE N. T. OGAYONNE,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,1

Respondent.

____________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A98-131-188

____________

ARGUED OCTOBER 29, 2007—DECIDED JUNE 18, 2008

____________

Before BAUER, RIPPLE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. The petitioner in this case,

Jeanne Nadia Tambo Ogayonne, a native of the Central

African Republic (“CAR”), seeks asylum, withholding of

removal, and protection under the United Nations Convention Against Torture (“CAT”). She claims she will be
2 No. 07-1098

persecuted or killed if she returns to the CAR, but we

reject Ogayonne’s petition for asylum because we lack

jurisdiction over this claim. As the immigration judge (“IJ”)

and the Board of Immigration Appeals (“BIA”) concluded,

Ogayonne’s filing was untimely and not justified by

extraordinary circumstances. We also conclude that there

was sufficient evidence to justify the denial of withholding of removal and relief under the CAT. Accordingly, we deny Ogayonne’s petition for review.

I. BACKGROUND

The Central African Republic is a former French colony

in the heart of Africa, surrounded by Chad, Sudan, the

Democratic Republic of the Congo, the Republic of the

Congo, and Cameroon. It has a population of about 4.4

million people and is slightly smaller than Texas.

By all accounts, the CAR has been a politically turbulent

place ever since it gained independence in 1960. The

country has experienced a series of military coups and

dictatorships, including one led by General André

Kolingba in 1981. Although General Kolingba lost power

after the country held elections in 1993, he attempted

another coup in May 2001, this time against President

Ange-Félix Patassé. The Patassé regime violently suppressed the coup attempt, and Kolingba and his followers were sentenced to death in absentia. Kolingba

fled to Uganda, and many members of Kolingba’s tribe,

the Yakoma, were killed.

Jeanne Ogayonne was born on April 26, 1984, in the CAR.

Although Ogayonne admits she has never met André

Kolingba, she claims to be his sister-in-law. Like Kolingba,

Ogayonne and her family belong to the Yakoma tribe,
No. 07-1098 3

which makes up about 3% of the CAR population. They

are all also members of the Central African Democratic

Party, a.k.a., Rally for Democracy.

Although Ogayonne does not claim to have suffered

from violence or persecution while in the CAR, her

parents were not so lucky. Ogayonne’s father René Félix

died in 1985, purportedly from being poisoned after a

political meeting. Ogayonne’s mother died of a blood

disease in 1997 because she was unable to get treatment

due to the politically unstable situation in the CAR.

On October 30, 2000, when she was sixteen years old,

Ogayonne came to the United States on a student visa

that permitted her to attend the Dayton Christian School

in Dayton, Ohio. Later, she moved with her brother and

his family to attend Richmond High School, a public

school in Richmond, Indiana. Apparently, Ogayonne

did not know that her visa did not allow her to change

schools.

In February 2002, the director at Richmond High

School told Ogayonne’s brother that Ogayonne had to go

either to a private school or to college to renew her visa.

Ogayonne completed her junior year at Richmond in

May 2002 and explored the possibility of going to college. In January 2003, she talked to personnel at Indiana

University-Purdue University Indianapolis (“IUPUI”),

who told her it would be impossible for her to renew

her visa because it had expired six months earlier.

Following Kolingba’s failed coup, in which members of

Ogayonne’s family were killed, Ogayonne decided not

to return to the CAR and applied for asylum in December 2003. The United States Citizen and Immigration

Services (“USCIS”) returned her application as incomplete
4 No. 07-1098

on three occasions. Her application was finally accepted

on April 14, 2004. On about May 17, 2004, the Department of Homeland Security issued a Notice to Appear,

alleging that Ogayonne could be removed from the

country for not attending the school indicated on her

visa. In pleadings submitted on June 3, 2004, Ogayonne

conceded her removability and stated she intended to

pursue applications for asylum and related relief, or

alternatively, voluntary departure.

On May 11, 2005, an IJ held a hearing on Ogayonne’s

various applications for relief. During the hearing,

Ogayonne testified that because of her relation to André

Kolingba, she was afraid of being raped, detained, or

killed if she returned to the CAR. Indeed, she stated that

her three sisters had sought refugee status elsewhere.

Ogayonne also introduced a letter from her sister

Sophie, a refugee in Senegal at the time, which stated

that although Sophie had not obtained any “official paperwork or marriage license,” she was a traditional “second

wife” of André Kolingba. Additionally, Ogayonne introduced an article indicating that there had been an assassination attempt on Kolingba’s life two months before

the hearing. The IJ considered letters submitted by

Ogayonne’s other siblings and other evidence indicating

that the CAR was a dangerous place prone to chronic

instability.

The IJ also introduced into evidence several documents

from his own Internet research. The documents included

a March 14, 2005, article from BBC News entitled

“Results due in landmark CAR vote,” a 2005 Amnesty

International document describing events in the CAR, and

three articles from the United Nations Office for the

Coordination of Humanitarian Affairs. The documents
No. 07-1098 5

stated that Kolingba had apologized for his role in the

failed coup against Patassé; that Kolingba and other

backers of the coup had been granted amnesty and had

their death sentences lifted by current President François

Bozizé (who had overthrown Patassé in 2003); that

Kolingba had returned to the CAR with 800 soldiers;

and that he had run a public campaign for president.

Neither Ogayonne’s counsel nor the government objected

to the introduction of these documents. The IJ also questioned Ogayonne about the information in these documents and gave Ogayonne’s counsel an opportunity

(which he declined) to ask questions about the documents.

Later that day, the IJ issued an oral decision denying

Ogayonne’s applications for asylum, withholding of

removal, and protection under the CAT, and granting

her request for voluntary departure. After Ogayonne

filed a timely notice of appeal, the BIA affirmed the IJ’s

decision and dismissed her appeal. Ogayonne then filed

her petition in this court.

II. ANALYSIS

A. Standard of review

Because the BIA adopted, affirmed, and supplemented

the IJ’s decision denying Ogayonne’s claims for asylum,

withholding of removal, and relief under the CAT, we

review the IJ’s decision and the additional reasoning in

the BIA opinion. Mema v. Gonzales, 474 F.3d 412, 416

(7th Cir. 2007). We review these claims under the substantial evidence standard and will not reverse unless a

petitioner can demonstrate that the evidence not only

supports that conclusion, but compels it. Mabasa v. Gonzales, 455 F.3d 740, 744-45 (7th Cir. 2006). In particular,

we look to see if “the BIA’s determination was sup-
6 No. 07-1098

ported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. at 744

(internal quotation marks omitted).

B. Asylum claim

8 U.S.C. § 1158(a)(2)(B) provides that an alien who is

physically present in the United States and seeks asylum

must show “by clear and convincing evidence that the

application [for asylum] has been filed within 1 year

after the date of the alien’s arrival in the United States.” An

application may be considered even if the one-year

filing deadline has passed if the applicant “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.” Id. § 1158(a)(2)(D).

8 U.S.C. § 1158(a)(3) provides, however, that “[n]o court

shall have jurisdiction to review any determination of

the Attorney General under [section 1158(a)(2)].” The

statute has been amended recently to allow review

of “constitutional claims or questions of law,” 8 U.S.C.

§ 1252(a)(2)(D), but “discretionary or factual determinations continue to fall outside the jurisdiction of the court

of appeals entertaining a petition for review.” Vasile v.

Gonzales, 417 F.3d 766, 768 (7th Cir. 2005). One such

unreviewable decision includes “the BIA’s factual determination that [an applicant] failed to file his asylum

claim within one year and its decision that he failed to

qualify for an extension of time.” Id.

Ogayonne correctly notes that being an unaccompanied

minor can be an extraordinary circumstance that delays

the start of the one-year clock. See 8 C.F.R. § 1208.4(a)(5)(ii).
No. 07-1098 7

But even if we accept Ogayonne’s claim that she first filed

her asylum application in December 2003—that is, despite

the fact that her application was not finally accepted by

USCIS until April 2004—her application was still filed over

eighteen months after she turned eighteen, well after the

one-year deadline. Ogayonne argued before the IJ (as she

argues now) that she received bad advice and did

not know about her changed immigration status until

January 2003, when she attempted to enroll at IUPUI;

hence, she claims her December 2003 filing should be

considered timely. But the IJ and BIA did not believe

that these facts justified her late application. We lack

jurisdiction to review this discretionary finding. See Vasile,

417 F.3d at 768-69.

C. Withholding of removal claim

The Attorney General may not remove an alien to a

country if he decides that the “alien’s 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).

Because Ogayonne has not alleged, and the Attorney

General has not found, that Ogayonne suffered past

persecution, she is not entitled to a presumption that

her life or freedom would be threatened in the future. See

BinRashed v. Gonzales, 502 F.3d 666, 670-71 (7th Cir.

2007); 8 C.F.R. § 1208.16(b)(1)(i). So Ogayonne must

demonstrate a “clear probability of persecution” by

showing that it is more likely than not that she would be

subject to persecution if returned to the CAR. See Tariq

v. Keisler, 505 F.3d 650, 656 (7th Cir. 2007).

In deciding against Ogayonne on her withholding of

removal claim, the IJ relied on documents that he had
8 No. 07-1098

introduced into evidence on his own initiative, in addition

to documents introduced by the parties. Ogayonne did

not object to the documents the IJ introduced but claims

the IJ insufficiently considered certain documents she

provided. We examine these issues in turn.

1. The IJ did not err in relying on the documents he

introduced into the record.

At first blush, it might seem problematic that the IJ

decided to introduce evidence on his own, given that the

relevant statutory and regulatory provisions suggest

that an IJ may receive but not present his own evidence.

See, e.g., 8 U.S.C. § 1229a(b)(1) (“The immigration judge

shall administer oaths, receive evidence, and interrogate,

examine, and cross-examine the alien and any witnesses.”

(emphasis added)); 8 C.F.R. § 1240.1(c) (An “immigration

judge shall receive and consider material and relevant

evidence . . . .” (emphasis added)). And contrast

§ 1229a(b)(1) with its predecessor, which stated that the

immigration judge “shall . . . determine the deportability

of any alien, and shall administer oaths, present and

receive evidence, interrogate, examine, and cross-examine

the alien or witnesses.” 8 U.S.C. § 1252(b) (amended in

1996) (emphasis added).

We need not dwell long on this issue as Ogayonne has

not challenged the IJ’s action here. We simply note that

the IJ did not err in introducing these particular documents because they merely stated commonly acknowledged facts that were amenable to official notice. See

Kaczmarczyk v. INS, 933 F.2d 588, 594 (7th Cir. 1991) (“We

reiterate today that the BIA may take official notice of

uncontroverted facts concerning political conditions in
No. 07-1098 9

asylum seekers’ home countries . . . .”). And the IJ gave

the parties an opportunity to respond to the documents

that he entered and to question Ogayonne about the

information contained therein. See id. at 590 (noting that

asylum petitioners are entitled to an opportunity to

respond to officially noticed facts); see also 5 U.S.C. § 556(e)

(“When an agency decision rests on official notice of a

material fact not appearing in the evidence in the record,

a party is entitled, on timely request, to an opportunity

to show the contrary.”). Ogayonne’s counsel neither

objected to the documents nor suggested to either the IJ or

the BIA that the documents were inaccurate or that they

otherwise unfairly prejudiced Ogayonne. Cf. Rehman v.

Gonzales, 441 F.3d 506, 509 (7th Cir. 2006) (“[C]ourts do not

set aside agencies’ decisions unless mistakes cause prejudice . . . .”). So even if Ogayonne had asked us to overturn

the IJ’s decision, she did not preserve a basis for us to do

so. See Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004)

(“An alien is required to raise and exhaust his remedies

as to each claim or ground for relief if he is to preserve

the right to judicial review of that claim.”).

Additionally, we are not particularly troubled by the

IJ’s reliance on these documents because the relevant

information was independently included in other properly admitted evidence. For example, Ogayonne testified

that she knew Kolingba had returned to the CAR in March

2005 and had run for president and lost. And Ogayonne

had already submitted a 2003 Amnesty International

article describing the amnesty grant. So the IJ did not even

need to rely on the documents he admitted to decide

Ogayonne’s claims the way he did.
10 No. 07-1098

2. The record supports the decision to deny withholding of removal.

Ogayonne claims the IJ did not adequately consider

various documents that Ogayonne introduced into the

record. But the IJ’s decision indicates that he did consider

each of these documents; he just did not find they were

sufficient to establish Ogayonne’s withholding of removal

claim.

Ogayonne first points to a 2004 State Department Country Condition Report that she provided describing the

ongoing and seemingly interminable human rights

abuses occurring in the CAR. Nothing in the report,

however, suggests that the government is currently

targeting André Kolingba or Yakoma tribe members. In

fact, the report suggests the opposite, describing how

the Patassé regime, which had sentenced Kolingba and

his followers to death, was overthrown in Bozizé’s 2003

coup. And as noted previously, other documents in the

record demonstrate that Bozizé had amnestied Kolingba

and allowed him to return to the CAR.

Ogayonne also points to an October 23, 2004, affidavit

of Steve Snyder, a former Peace Corps volunteer who

had served in the CAR. Snyder claimed that Ogayonne

would be singled out for harassment and persecution

due to her relation to Kolingba and her tribal membership. Snyder also claimed that the Patassé regime had

oppressed the Yakoma people, who hail from the southern part of the CAR, and that President Bozizé might

continue the oppression because he hails from the same

northern region of the CAR as Patassé and “share[s] a

similar incentive to remove Yakoma and other southerners from positions of power in the government and

military.”
No. 07-1098 11

Although the IJ did not address Snyder’s testimony in

detail, there was nothing Snyder said that would alter the

outcome. First, the affidavit indicates that Snyder was a

Peace Corps volunteer during 1985-1988 and that he

had visited the CAR in 1996-1997. Given that these

visits occurred quite some time ago, Snyder’s on-theground knowledge was stale. More importantly, Snyder’s

affidavit was contradicted by evidence demonstrating

that Bozizé has not continued Patassé’s repression of

the Yakoma people, given that Bozizé had amnestied

Kolingba and many of his followers.

Finally, Ogayonne points to a BBC News article entitled,

“CAR ‘assassination attempt’ fails,” which describes a

shoot-out that occurred outside Kolingba’s house in

March 2003, after he had returned to the CAR and lost

the presidential election. Ogayonne further notes that

unlike Kolingba, she will not have the protection of

soldiers if she is sent back to the CAR; hence, the situation might be more dangerous for her.

As the IJ noted, there is a dispute whether this was an

“assassination attempt”; General Kolingba’s spokesman described it as such, but the government claimed it

was just a “misunderstanding” among soldiers. Given

that the CAR is by all accounts a rather dangerous place,

it is not clear that the government was behind the “assassination attempt” or was targeting Kolingba. Cf. Chakir v.

Gonzales, 466 F.3d 563, 570 (7th Cir. 2006) (“The acts of

private citizens do not constitute persecution unless the

government is complicit in those acts or is unable or

unwilling to take steps to prevent them.”). More importantly, the IJ further observes—correctly we believe—

that “it’s difficult to accept the proposition that [Ogayonne]

is at greater risk than the very person on whom she
12 No. 07-1098

is relying as a basis for her claim, particularly where

that person has a much higher public profile than

[Ogayonne] does . . . . ” Indeed, Ogayonne admitted during the hearing that she had never even met or contacted Kolingba. Hence, we agree with the IJ that it is

hard to believe that Ogayonne would be closely identified with Kolingba if she were sent back to the CAR.

This, combined with the apparent reduced threat that

General Kolingba faces, makes withholding of removal

inappropriate.

D. Convention Against Torture claim

To receive protection under the Convention Against

Torture (CAT), an alien must demonstrate that it is more

likely than not that she would be tortured if removed to

the proposed country. See 8 C.F.R. § 1208.16(c)(2).

Ogayonne only mentions the CAT as an argument heading, makes no points on this issue, and does not claim any

past torture. Accordingly, this perfunctory argument is

waived. Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290

F.3d 843, 852 n.6 (7th Cir. 2002). Moreover, the same

reasons that militated against withholding of removal

apply just as strongly here, so the IJ did not err in denying

Ogayonne’s CAT application.

E. Due process claim

Ogayonne also claims the IJ violated her due process

rights in two ways. First, Ogayonne alleges the IJ “stopped

counsel from pursuing a line of questioning concerning

the death of [Ogayonne’s] mother due to fear of taking

her to the hospital.” When asked about the relevance of
No. 07-1098 13

this testimony, Ogayonne’s counsel replied, “I am trying

to tie this in to the fact that the treatment she did or did

not receive at the hospital was greatly [sic] because of

her relationship with Andre Kolingba and also as a member of the [Yakoma] tribe.”

Aliens are entitled to due process of law, which requires

a meaningful opportunity to be heard on an application

for asylum. Kerciku v. INS, 314 F.3d 913, 917-18 (7th Cir.

2003). This means an IJ cannot “bar[ ] complete chunks of

oral testimony that would support the applicant’s claims”

such as by not allowing an applicant “to present corroborating testimony from family members about his past

persecution.” Nonetheless, an IJ can “limit[ ] the extent

of some testimony or frequently interrupt[ ] the applicant’s presentation” without violating due process.

This is because such limitations “serve to focus the proceedings and exclude irrelevant evidence.” Id.

Here, Ogayonne’s main argument is that she would be

subject to persecution if she were sent back to the CAR

because of her ethnic background and her alleged relation to André Kolingba. Ogayonne’s mother died four

years before Kolingba’s failed coup attempt, and three

years before Ogayonne came to America. Although the

IJ recognized that this evidence might help show a

long-standing prejudice against Ogayonne’s family, the

IJ did not err in concluding that this testimony had limited relevance. Given that Ogayonne’s basis for asylum

and withholding of removal hinged primarily on

Kolingba’s status in the CAR, it made sense for the IJ

to focus the proceedings on that issue and not spend time

on this tangent.

Second, Ogayonne claims the IJ injected himself in an

“adversarial” manner by engaging “in a cross-examination,
14 No. 07-1098

and an argumentative one at that, of [Ogayonne].” The

transcript shows that the IJ questioned Ogayonne regarding the Internet articles he had found. In response,

she stated:

The problem is the government. You know only

what you read on the paper and on the [I]nternet.

Well you only read what’s on the Internet, but you

don’t know what’s really happening in Africa, it’s

much worse.

Ogayonne also claimed that “when Kolingba returns to

Central Africa he is protected, he has guards. I have no

one around me.” The IJ later said:

All right. Well, I just think you should know that

there is this information and it should be part of

the record and I’ll mark it as Exhibit 8 and I’ll give

either side an opportunity . . . to question you

further about this, before I decide what action to

take on it. I have given both sides the reports from

which the information on which I predicated

these questions was derived.

Given that the IJ did not err in relying on the information in these documents, the IJ could “question [Ogayonne]

provided that his conduct [did] not demonstrate impatience, hostility, or a predisposition against [Ogayonne’s]

claim.” Huang v. Gonzales, 403 F.3d 945, 948 (7th Cir. 2005).

Here, the IJ began questioning Ogayonne only after

Ogayonne’s counsel said he was done with his direct

examination. The IJ’s questioning appears to have been

brief and targeted. And the issue on which the IJ questioned Ogayonne—whether the amnesty of Kolingba

had negated the threat to Ogayonne—directly related

to Ogayonne’s applications for relief. Moreover, with-
No. 07-1098 15

out this questioning, this testimony might never have

gotten into the record, as the government seems to have

neglected this issue. See Hasanaj v. Ashcroft, 385 F.3d 780,

783 (7th Cir. 2004) (“[T]he fact that an IJ asks questions

during the proceedings is helpful to develop the record

and is better than a silent bench that says nothing throughout the proceedings and then denies the request for

asylum because the petitioner did not provide sufficient evidence.”). Accordingly, Ogayonne’s due process

rights were not violated.

III. CONCLUSION

The petition for review is DENIED.

USCA-02-C-0072—6-18-08