Larez-Juarez v. Ashcroft , 74 F. App'x 29 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 2 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
FRANCISCO LAREZ-JUAREZ,
Petitioner,
v. No. 02-9537
(No. A-77-449-486)
JOHN ASHCROFT, Attorney General (Petition for Review)
of the United States,
Respondent.
ORDER AND JUDGMENT *
Before HARTZ , Circuit Judge, BRORBY , Senior Circuit Judge, and
TYMKOVICH , Circuit Judge.
Petitioner Francisco Larez-Juarez, a native of Guatemala, seeks review of
a final order of removal issued by the Board of Immigration Appeals (BIA),
summarily affirming the immigration judge’s denial of Mr. Larez-Juarez’s request
for asylum and for withholding of removal. We dismiss the petition for review
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
with respect to asylum and deny the petition with respect to withholding of
removal. 1
The immigration judge denied petitioner’s requests on two grounds:
(1) lack of timeliness; and (2) failure to demonstrate eligibility for political
asylum or withholding of removal. The immigration judge held that petitioner’s
asylum request was time-barred because it was not filed within one year after he
arrived in the United States, see 8 U.S.C. § 1158(a)(2)(B), and because petitioner
had not shown materially changed or extraordinary circumstances excusing the
delay, see § 1158(a)(2)(D). Federal Circuit Courts uniformly hold that they lack
jurisdiction to review a determination of timeliness, as we have so held.
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234-35 (10th Cir. 2003) (interpreting the
jurisdictional limitation set out in 8 U.S.C. § 1158(a)(3)). Accordingly, we do not
address petitioner’s arguments concerning the timeliness of his application and
therefore do not consider his challenge to the denial of asylum.
This court does, however, have jurisdiction to review the BIA’s denial of
withholding of removal, id. at 1235. To show entitlement to withholding, an
applicant must present “evidence establishing that it is more likely than not that
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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[the applicant] would be subject to persecution” due to his race, religion,
nationality, membership in a particular social group, or political opinion. INS v.
Stevic, 467 U.S. 407, 429-30 (1984). “Where, as here, the BIA summarily affirms
or adopts an immigration judge’s decision, this court reviews the judge’s analysis
as if it were the BIA’s.” Tsevegmid, 336 F.3d at 1235. The administrative
“findings of fact are conclusive unless the record demonstrates that any
reasonable adjudicator would be compelled to conclude to the contrary.” Id.(quotations omitted).
In ruling on the substance of petitioner’s claim for relief, the immigration
judge found that petitioner departed from Guatemala in 1994 due to the general
circumstances of civil war and that, though there was still unrest in Guatemala
related to criminal activities, the civil war was effectively terminated with the
signing of peace accords in 1996. Petitioner had not identified a potential
persecutor or demonstrated that he would be subject to torture upon a return to
Guatemala. Thus, the immigration judge concluded that petitioner failed to meet
his burden to show past persecution or a well-founded fear of future persecution.
Consequently, petitioner failed to meet the higher standard for withholding of
deportation. After our review of the record, we conclude that the immigration
judge’s decision is supported by substantial record evidence and that a
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“reasonable adjudicator” would not be compelled on appeal to reject the judge’s
findings of fact.
Conclusion
As to the denial of the asylum application, we DISMISS the petition for
review for lack of jurisdiction. We DENY the petition for review with regard to
the denial of withholding of removal.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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