UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1504

SAMUEL RICHARD BHIMANPALLI; RAVINDER RUFUS BHIMANPALLI; 

RITA BHIMANPALLI; REBECCA RICHARD BHIMANPALLI; RODHA RACHEL 

BHIMANPALLI,

Petitioners,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Submitted: November 20, 2012 Decided: November 30, 2012

Before DUNCAN, AGEE, and WYNN, Circuit Judges.

Petition dismissed in part and denied in part by unpublished per 

curiam opinion.

Anser Ahmad, ADVANCED IMMIGRATION LAW GROUP, Harrisburg, 

Pennsylvania, for Petitioners. Stuart F. Delery, Acting

Assistant Attorney General, Leslie McKay, Assistant Director, 

Sara J. Bergene, Office of Immigration Litigation, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Samuel Richard Bhimanpalli, Ravinder Rufus 

Bhimanpalli, Rita Bhimanpalli, Rebecca Richard Bhimanpalli and 

Rodha Rachel Bhimanpalli, natives and citizens of India, 

petition for review of an order of the Board of Immigration 

Appeals (“Board”) dismissing their appeal from the immigration 

judge’s order denying their applications for asylum, withholding 

from removal and withholding under the Convention Against 

Torture (“CAT”). We dismiss in part and deny in part the 

petition for review. 

The asylum applications were denied because the 

applications were not timely filed and the Petitioners failed to 

show changed country conditions or extraordinary circumstances 

that would excuse the late filings. Under 8 U.S.C. § 1158(a)(3) 

(2006), the Attorney General’s decision regarding whether an 

alien has complied with the one-year time limit for filing an 

application for asylum or established changed or extraordinary 

circumstances justifying waiver of that time limit is not 

reviewable by any court. Thus, this court has held that it 

lacks jurisdiction over an asylum claim that was denied as 

untimely. Niang v. Gonzales, 492 F.3d 505, 510 n.5 (4th Cir. 

2007). This court has also held that it lacks jurisdiction to 

review the immigration judge’s discretionary determination based 

on factual circumstances that the alien failed to establish 
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changed or extraordinary circumstances excusing the late filing 

of the asylum application. Gomis v. Holder, 571 F.3d 353, 358-

59 (4th Cir. 2009) (“We join the majority of courts who have 

reached this issue and hold that we lack jurisdiction to review 

the immigration judge’s discretionary determination, as affirmed 

by the BIA, that Gomis had not demonstrated changed or 

extraordinary circumstances to excuse her untimely filing.”). 

Although 8 U.S.C. § 1252(a)(2)(D) (2006) provides that 

nothing in § 1252(a)(2)(B), (C), “or in any other provision of 

this Act . . . which limits or eliminates judicial review, shall 

be construed as precluding review of constitutional claims or 

questions of law,” the question of whether the Petitioners 

timely filed their asylum application is a question of fact, and 

therefore is not affected by § 1252(a)(2)(D). 

We conclude that the Petitioners’ claim that they were 

denied due process in this instance on the basis that the 

immigration judge determined that the applications were untimely 

before a hearing taking evidence is without merit. The record 

clearly shows that the immigration judge heard evidence on this 

issue and rendered a decision that was supported by the 

evidence. Accordingly, having disposed of the Petitioners’ due 

process claim, this court does not have jurisdiction to review 

the factual finding that the Petitioners failed to show changed 
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country conditions or extraordinary circumstances, and we 

dismiss in part the petition for review. 

An alien who has filed an untimely asylum application 

is still potentially eligible for the relief of withholding of 

removal. To establish eligibility for withholding of removal, 

an alien must show a clear probability that, if she was removed 

to her native country, her “life or freedom would be threatened” 

on a protected ground. 8 U.S.C. § 1231(b)(3)(A) (2006); see

Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir. 2004). A “clear 

probability” means that it is more likely than not that the 

alien would be subject to persecution. INS v. Stevic, 467 U.S. 

407, 429-30 (1984). If the applicant establishes past 

persecution, it is presumed that her life or freedom would be 

threatened on account of a protected ground. 8 C.F.R. 

§ 1208.16(b)(1) (2012). A determination regarding eligibility 

for withholding of removal is conclusive if supported by 

substantial evidence on the record considered as a whole. 

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

Persecution is an “extreme concept” and may include 

actions less severe than threats to life or freedom but must 

rise above mere harassment. Qiao Hua Li v. Gonzales, 405 F.3d 

171, 177 (4th Cir. 2005). “A key difference between persecution 

and less-severe mistreatment is that the former is ‘systematic’ 

while the latter consists of isolated incidents.” Baharon v. 
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Holder, 588 F.3d 228, 232 (4th Cir. 2009). The Board is 

instructed to look at all incidents in the aggregate, including 

violence or threats to family members, to determine if there is 

past persecution, rather than looking at each incident in 

isolation. Id.

The Petitioners claim that they suffered past 

persecution. They further claim that even if they did not show 

past persecution, they did show a clear probability of 

persecution if they returned to India based on a pattern or 

practice of persecuting Christians. To succeed on a pattern or 

practice claim, the Petitioners must show that there is a 

pattern or practice of persecution of persons similarly situated 

to them and that it is more likely than not that their life and 

freedom would be threatened upon their return because they are 

members of the group. See 8 C.F.R. § 208.16(b)(2)(i) (2012). 

The Petitioners must show that the persecution is “thorough or 

systemic.” Yong Hao Chen v. INS, 195 F.3d 198, 203 (4th Cir. 

1999). 

We have reviewed the record and conclude that 

substantial evidence supports the finding that the Petitioners 

did not establish that they were the victims of past persecution 
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or that there is a pattern or practice of persecuting Christians 

in India.*

The Petitioners also claim that they were eligible for 

relief under the CAT. To qualify for protection under the CAT, 

a petitioner bears the burden of showing that “it is more likely 

than not that he or she would be tortured if removed to the 

proposed country of removal.” 8 C.F.R. § 1208.16(c)(2) (2012). 

To state a prima facie case for relief under the CAT, the 

Petitioners must show that they will be subject to “severe pain 

or suffering, whether physical or mental . . . by or at the 

instigation of or with the consent or acquiescence of a public 

official or other person acting in an official capacity.” 8 

C.F.R. § 1208.18(a)(1) (2012); see Saintha v. Mukasey, 516 F.3d 

243, 246 & n.2 (4th Cir. 2008). “A public official acquiesces 

to torture if, ‘prior to the activity constituting torture, [the 

official] ha[s] awareness of such activity and thereafter 

breach[es] his or her legal responsibility to intervene to 

prevent such activity.’” Lizama v. Holder, 629 F.3d 440, 449 

(4th Cir. 2011) (quoting 8 C.F.R. § 1208.18(a)(7) (2012)). 

 * In their brief, the Petitioners argue that in the absence 

of past persecution, they nonetheless established a well founded 

fear of persecution necessary to show eligibility for asylum. 

This argument is moot in light of the fact that this court does 

not have jurisdiction to review the denial of asylum. 
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We conclude that substantial evidence supports the 

finding that it is not more likely than not that the Petitioners 

face torture by or at the acquiescence of the Indian public 

officials. We recognize that the record contains evidence of 

numerous incidents of harassment, persecution and even torture 

of Christians, particularly pastors, ministers and nuns. We 

cannot conclude, however, that the record compels a finding that 

government officials caused or breached their responsibility to 

intervene to prevent such activity. 

The Petitioners also claim they were denied due 

process because the immigration judge (1) consolidated their 

cases at their request despite indicating a lack of time to hear 

all the cases at once; (2) decided that the asylum applications 

were untimely before hearing evidence; and (3) decided that the 

Petitioners did not qualify for CAT relief before hearing the 

evidence. We have reviewed the record and conclude that the 

Petitioners were not denied due process. It is clear from the 

record that the immigration judge gave the Petitioners all the 

time they needed in order to present their case. It is further 

clear that the immigration judge made relevant findings of fact 

only after hearing the evidence offered in support of the 

Petitioners’ claims. 

Accordingly, we dismiss in part and deny in part the 

petition for review. We dispense with oral argument because the 
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facts and legal contentions are adequately presented in the 

materials before this court and argument would not aid the 

decisional process.

PETITION DISMISSED IN PART

AND DENIED IN PART