NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0496n.06 No. 10-3344 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

HUSSEI N I SMAI L , Petitioner ,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent

. O N PETI TI ON FOR REV I E W O F AN ORDER OF THE BO ARD OF I MMI GRATI ON APPEAL S

OP INION

/ Before: KENN EDY, SILE R, and McK EAGU E, Circuit Judges. CORNELIA G. KENN EDY, Circuit Judge. Petitioner Hussein I smail seeks this Court’s revie w of a final order of the Boa rd of I mm i g ration Appea ls (“B I A”) aff irming an I mmigration J udg e’s ( “I J ’s”) decision to deny his application for a sy lum and withholding of remova l unde r the I mmigration and Nationality Act (“I NA”) and Article I I I of the United Nations Convention Ag ainst Torture (“CAT” ). Be cause we lack jurisdiction to revie w the BIA’s conclusion that I smail’s asylum application was untimely , and beca use substanti al ev idence supports the BI A’s decision to deny withholding of r emoval, we DENYthe petition for re view.

F ACTUAL AND P ROCEDURAL BACK GR OUND I smail was born in 1954 in the vi llag e of L ebay y a, L ebanon, where he resided unt il 1984. At that time, he left L ebanon and eventua lly settled in the United Ara b Emirates (“U AE”)

. I n 1998, I smail moved ag ain, this time to the United States; he leg ally enter ed the country as a nonimmigra ntNo. 10-3344

Ismail v. Holder business visitor, and he had authorization to rema in until J anuar y 8, 2001. On November 8, 2006, the Depa rtment of Homeland Security issued him a Notice to A ppear on char g es of remova l. At a hear ing before the I J on J uly 11, 2007, I smail conce ded removability , and on October 7, 2 0 0 7 , he filed for asylum, withholdi ng of re moval under the I NA, and CAT pr otection. The I J held a merits hear ing on J une 9, 2008, during which I smail testified that he was afr aid of returning to L ebano n d u e to his past involvement with the S outhern L ebane se Army (“SL A”)

. Acc ording to I smail, the SL A was a pro-I srae l g roup that opposed the Sy rian prese nce in L ebanon, and its former members are there fore targ ets of various political org anizations, including Hezbollah. I smail testified t hat, i n 1984, his brother Yousse f, who wa s also a member of the SL A, was found dead of a bullet wound outside of L ebay y a, with a note on his body saying “this is how y our destiny will be if y ou keep cooper ating wi th I srae l, and we g oing [si c] to kill y ou one at a time.” I smail conclude d that Hezbollah was responsible for Youssef’ s death, a conviction that was streng thened, he maintained, by the fac t that sever al individuals wea ring Hezbollah uniforms attended Youssef’ s burial and threatened him and other family m em b er s . I smail also asser ted that, a few day s later, shots wer e fired at him as he walked home around midnight; additionally , he claimed that someone left a note at the L ebay

y a m ay o r’s office stating that he would meet the same fate as his brother. Ag ain, I smail believed that Hezbollah or its allies was behind these acts. I t was at this point, I smail testified, that he left L ebanon for the UAE. Early in 1998, I smail claimed t h at he rec eived two letters, forwa

rded to his home in the UAE by the may or of L ebay y a and ag ain alleg ed to have been sent from Hezbollah, threatening “we g oing [si c] to keep chasing y o u until we kill y ou.” I smail stated that these le tters prompted his move to the United States approximately six months later, in - 2 -No. 10-3344

Ismail v. Holder Oc t o b er o f 1 9 98. I smail further repor ted that, in Aug ust of 2002, he hear d news that his second brother had been killed by Hezbollah for cooper ating with I srae l. I smail confirme d that he has not returned to L ebanon since he left in 1984, noting that civil unrest in the country has i n cr ea s ed throug hout the 1 9 8 0 s an d 1 9 90s and that Hezbollah now controls the reg ion in which L ebay y a is located. Howeve r, I smail admits that his pare nts, one brother, five sisters, and one son curr ently live in L ebanon f

ree from har assment by

Hezbollah. After hear ing I smail’s testimony —as well as that of his cousin, I smail S harif I smail, confirming I smail’s assessment that conditions in L ebanon had deter iorated due to civil unrest—the I J denied I smail’s applications for relief and order ed remova l. The I J first noted that he did not find I smail’s testimony cre dible, citing I smail’s demea nor, n u me r o u s in c o n s is te nt statements, and sever al important assertions made in court but left out of I smail’s asylum application. The I J then denied I smail’s application for asylum as untimely

. The I J also conclude d that, even if the application was timely , it would fail on its merits beca use I s m ai l h ad n o t p roven that he was a victim of past perse cution, or t hat he had a well-founde d fea r of future persec ution, on acc ount of race, relig ion, nationality , membership in a particula r social g roup, or political opinion. Consequently , the I J found t h at I s m ai l did not meet the highe r burden for withholding of remova l under the I NA, as he had failed to demonstrate that it i s more likely than not his life or fre edom would be threatened on

acc ount of one of t h e protec ted g rounds. Finally , the I J deter mined that I smail had prese nted no evidenc e sug g esting he woul d be subject to torture by , or with the acquie scenc e of, the L ebane se g overnme nt, so he did not warr ant withholding of remova l under the CAT.

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Ismail v. Holder On Marc h 26, 2010, the Boa rd of I mmigration Appea ls (“B I A”) aff irmed the I J ’s ruling

. The BIA ag ree d that I smail was ineligible for as y l u m d u e to the untimely filing of his application. Thoug h the B I A dec lined to review the I J ’s adverse c redibility finding , it upheld the I J ’s denial of withholding of remova l beca use, even if I smail’s testimony was considere d cre dible, h e had not established a well-founde d fea r of future perse cution, a threat to his life or fre edom, or a likelihood that he would be subject to torture in L ebanon. I smail filed a timely petition for revie w in this Court. ANALYSIS On appea l, I smail c halleng es the denial of asylum as well as withholding of remova l unde r both the I NA and the CAT. Be cause the BIA issued a separ ate o p i nion, rathe r than summarily aff irming the I J , we revie w that decision as the final ag ency deter mination. Khalil i v

. Holder , 557 F.3d 429, 435 (6th Cir. 2009). Howeve r, we also revie w the I J ’s decision, to the extent that the BIA adopted the I J ’s re asoning

. Id. I. Asylum We lack jurisdiction to revie w the denial of I smail’s asylum application. Both the I J and the BIA found that I smail is ineligible for asylum beca use he filed his application outside the statutory deadline of one y ear afte r his arr ival in the United States, see 8 U.S.C. § 1158(a) (2)( B) , and he did not qualify for an exception to this require ment, which may be g rante d due to “the exis t ence of chang ed circ umstances which materia lly aff ect the applicant’ s elig ibilit y for asylum or extraordinary circ umstances relating to the delay in filing an application , ” i d

. § 1 1 5 8(a) (2)( D). The I NA bars judicial revie w of asylum applications denied for untimeliness, id. § 1158(a) (3), unless the petition for revie w raises “constitutional claims or questions of law,” id. § 1252(a) (2)( D). That is, “we have - 4 -No. 10-3344

Ismail v. Holder jurisdiction to revie w asylum a p p li c a ti o n s d e n ie d for untimeliness only when the appea l seeks revie w of constitutional claims or matters of statutory construction, not when the question is discretionar y or factual.” Khozhaynova v. Holder , 641 F.3d 187, 191 (6th Cir. 2011) (internal quotat i o n marks omitted). Her e, I smail appea ls the I J ’s and the BI A’s decision that no chang ed circ umstances exis ted in L ebanon to war

rant an exception to the filing deadline, which finding is “a predominantly fac tual deter mination.” Almuhtaseb v. Gonzales , 453 F.3d 743, 748 (6th Cir. 2006) (interna l q u o tation marks omi tted). There fore , we dism iss I smail’s petition to revie w t he BIA’s denial of asy lum for lack of jurisdiction. II. Withhol din g of Rem oval As for the denia l o f wi t h holding of remova l under the I NA and CAT, we must uphold the BIA’s deter

mination if it is supported by substantial evidenc e. Dugboe v. Holder , --- F.3d

--- -, 2011 WL 2621903, at *9 (6th Cir. July 6, 2011). Reversa l is appropr iate only when the BI A’s decision is “‘ma nifestly contra

ry to law,’” Almuhtaseb , 453 F.3d at 749 (quoting 8 U.S.C. § 1252(b)( 4)(C)) , that is, only when “the evidenc e not only s u pports a contra ry conclusion, but indeed compels it,” Shkulaku-Purballori v. Mukase y , 514 F.3d 499, 5 0 1 -0 2 (6 t h Cir. 2007) (interna l quotation marks omitted). “[A]dm inistrative finding s of fac t are conclusive unless any rea sonable adjudicator would be compelled to conclude to the contra ry . . . .” 8 U.S.C. § 1252(b)( 4)(B ); accord Castellano-Chacon v. INS , 341 F.3d 533, 545, 552 ( 6th Cir. 2003). As a threshold matter, I smail challeng es the I J ’s adver se cre dibilit y finding , arg uing that his testimony was corr oborate d by documents he had proff ere d during the proce eding s befor e the I J but that the I J had err oneously ref used to admit into evidenc e. Howeve r, the BIA declined to rule on the

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Ismail v. Holder issue of I smail’s cre dibilit y ; instead, it deter mined that, even if I smail’s testimony wer e true, he had not met his burden for withholding of remova l under either the I NA or the CAT. When fac ed with such a de cision, this C ourt has pre viously adopted the f

ollowing pr ocedur e: [W ]hen an I J or the BIA expresses suspicion about an applicant’ s lack of cre dibilit y but the BIA fails to make an expli cit adver se deter mination and instead denies relief on some other basis, we will ass u m e t h at the applicant was cre dible in order to revie w the actua l g rounds for the ruling

. . . . I f we conclude that the stated ba sis for denying relief was supported by substantial evidenc e, further revie w is fore closed. I f the evidenc e compels the opposite result, howeve r, we will rema nd for a cre dibilit y deter mination. Haider v. H

older , 595 F.3d 276, 282 (6th Cir. 2010)

. Acc ording ly , we will c onsider only whether the evidenc e pre sented to the I J alleg es conditions that merit withholding of r emoval. A. The Im m igration and Nationality Act Wit hholding of

remova l under the I

NA is require d if an alien can demonstrate that “his or h er l i fe or fre edom would be threatened in the proposed country of remova l on acc ount of rac e,

re l i gi o n , nationality , membership in a particula r social g roup, or political opinion.” 8 C.F.R

. § 1208.16(b). “In order to qualify for withholding of remova l, [I smail] must establish that there is a cle ar pr obability that [he] will be subject to pe rsec ution if f orce d to return to [L ebanon].” Liti v. Gonzales , 411 F.3d 631, 640- 41 (6th Cir. 2005) (interna l quotation mar ks omitted). “To establish

a clea r probability , the applicant must demonstrate that ‘it is more likely than not’ that he or she will be perse cuted upon return.” Id. at 641 (quoting 8 C.F.R. § 1208.16(b)( 2)); see also Koulji nski v. Keisler , 505 F.3d 534, 544 (6th Cir. 2007) (“This showing of ‘cle ar probability ’ require s more than that neede d to demonstrate ref ug ee s t at us, which require s only a ‘we ll-founded fea r of [future] perse cution.’” (quoting 8 C.F.R. § 208.13(b)) ). I f I smail can establish past perse cution based on one - 6 -No. 10-3344

Ismail v. Holder of the five protec ted g rounds, he is entitled to a rebuttable presumption that his life or fre edom would be thre atene d upon return to L ebanon. See 8 C.F .R. § 1208.16(b)( 1). The BIA’s finding that I smail “fa iled to meet his burden to establish a well-founde d fea r or

a clea r probability of perse cution upon his return to L ebanon” is supported by substantial evidenc e. The threats I smail repor

ts he rec eived via letters and at his brother’ s funer al—eve n if Hezbollah operat i v es wer e behind them, as I smail claims—do not amount to past perse cution. See Mikhailev itch v. INS , 146 F.3d 384, 390 (6th Cir. 1998) (“‘ [P ]ersecution’ within the meaning of [t he I NA] require s m o re than a few isolated incidents of verba l hara ssment or intimi dation,

unacc ompanied by any phy sical punishment, infliction of harm, o r s i gnificant deprivation of liberty .”); see also Japarkulova v. Ho l der , 615 F.3d 696, 701 (6th Cir. 2010) (noting that “[o] nly threats of a most immediate and menac ing nature can possibly qualify as past perse cution” (interna l quotation marks omitted)). As for I smail’s claim that he was shot at while walking home one night, he offers no evidenc e of the i dentity of t he shoot er or the m ot i v e b eh i n d the attack, other than his bare asser tion that Hezbollah was responsible. This e vidence does not c ompel the conclusion that I smail suffe red from past perse cution, an d t h at h e there fore fac ed a clea r probability of future perse cution. See Abdallah v. Gonzales , 193 F. App’x 408, 409 (6th Cir. 2006) (af firming the BIA’s decision that applicant had not met his burden for withholding of re m o v al t o L ebanon when appli cant testified, without corr oborating evidenc e, that he rec eived threatening letters and phone calls from Hezbollah and that he was shot at by , “he specula te[d] without evidenc e[,]

. . . one of his many political enemies” ).

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Ismail v. Holder Neither does this evidenc e, even when coupled with I smail’s alleg ations that his two brothers

wer e killed by Hezbollah due to their aff iliation with SL A and supp o rt o f I srae l, compel a deter mination that I smail fac es a clea r probability of perse cution upon his return to L ebanon. As the BIA noted, more than twenty -five y ear s had passed since I smail’s alleg ed involvement w ith the SL A,

as well as almost twenty y ear s since he purportedly rec eived a threat from Hezbollah and more than five y ear s since the death of his second brother. Fur thermore , sin ce t h at t i me, I smail’s pare nts, sisters, brother and son have lived in L ebanon fre e from perse cution, even though I smail aver s that his pro-SL A activit i es included enter taining SL A members and I srae li soldiers at the family far m wher e his pare nts still reside. See Shvedk o v. Holder , 411 F. App’x 817, 821 (6th Cir. 2011) (stating that marrie d couple’ s claim for withholding of remova l to Estonia, based on fea r of perse cution due to husband’s past aff

iliation with the KGB and the Estonian secr et police, was underc ut by fac t that their “children have continued to reside in the family ap ar t m en t wi t hout being harme d since their pare nts came to the United States”). Additionally , the State Depa rtment’s 2007 Country Report for L ebanon—w hich was part of the rec ord in the ag ency proce eding s—acknow ledg es that Hezbollah “re tained signific ant influence over [onl y ] parts of the country .” I smail himself even testified at one point that there wer e parts of L eb an o n where Hezbol lah di d not pose a signific ant dange r. I smail offe red no rea son why he could not return to these are as of the country

. See 8 C.F.R. § 1208.16(b)( 2) (“[A]n applicant cannot demonstrate that his or her life or fre edom would be threa tened if the asylum office r or immigration judg e finds that the applicant could avoid a future threa t to his or her life or fre edom by reloc ati n g t o an other part of the proposed country of remova l and, under all the circ umstances, it would be rea sonable to expect the applicant to do so.”). Giv en t h es e fa ct s , the - 8 -No. 10-3344

Ismail v. Holder BIA’s conclusion that I smail did not me et his bur den for withholding of remova l unde r the I NA is not manifestly

contra ry to law, and his petition for re view of this dec ision is denied. B. The Convention Again st Torture To qualify

for protec tion unde r the CAT, I smail be ars the burden of proving that it is more likely than not that he would be tor tured if r emoved to L ebanon. Id. § 1208.16(c) (2). [Torture] is “ any act by which sever e pain or suffe ring , whether phy sical or mental, is intentionally inflicted” to ex trac t information, punish, intimi date, coer ce, or o t h erw ise discriminate, “whe n such pain or suffe ring is inflicted by or at t h e instigation of or with the consent or acquie scenc e of a public officia l or other person acting in an offic ial capa city .” Haider , 595 F.3d at 289 (quoting 8 C.F.R. § 1208.18(a) (1))

. “The term ‘torture ’ only descr ibes ‘an extreme form of c ruel a

nd inhuman trea

tment a nd does not inc lude lesser forms of crue l, inhuman

or deg rading treatment or punishment that do not amount to torture.’ ” Almuhtaseb , 453 F.3d at 751 (quoting 8 C.F.R. § 1208.18(a) (2))

. The BIA found that I smail “ has not e stablished that it is more likely than not that he would be torture d by , or with the ac quiesce nce of , the L ebane se g overnme nt.” For the same r easons that I smail has not established that he will more likely than not fac e perse cution should h e return to L ebanon, he has also failed to demonstrate that he will m o re l i k el y t h an not be tortured upon

remova l. See Bassam v. Holder , 338 F. App’x 507, 513 (6th Cir. 2009) (“[T]he c oncept of torture involves more sever e treatment than perse cution.”). I n particula r, the fac ts that I smail’s family has

rema ined in L ebanon unharme d and, by his own testimony , there are parts of L ebanon in which he

can avoid potential harm from Hezbollah defe at his CAT claim. See Shvedk o , 411 F. App’x at 822; Korley v. Holder , No. 09-3972, 2011 WL 2184340, at *3 (6th Cir. J une 7, 2011). The evidenc e does - 9 -No. 10-3344

Ismail v. Holder not compel the conclusion t hat I smail is entitled to withhol ding of remova l under the CAT, so we deny this portion of I smail’s petition for revie w. CONCLUSION For the foreg oing rea sons, we DENY I smail’s petition for revie w from the B I A’s dec ision denying him asy

lum and withholding of r emoval under the I NA or the CAT.

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