Hasan Kasim v. Loretta Lynch , 670 F. App'x 843 ( 2016 )

Case: 15-60853 Document: 00513765537 Page: 1 Date Filed: 11/18/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60853 FILED
Summary Calendar November 18, 2016
Lyle W. Cayce
Clerk
HASAN KASIM,
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A201 191 794
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Hasan Kasim, a native and citizen of Indonesia, petitions for review of
the decision of the Board of Immigration Appeals (BIA), which upheld the
Immigration Judge’s (IJ) ruling that Kasim was ineligible for asylum,
withholding of removal under Immigration & Nationality Act, and relief under
the Convention Against Torture (CAT).
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-60853 Document: 00513765537 Page: 2 Date Filed: 11/18/2016
No. 15-60853
As an initial matter, we lack jurisdiction to review the denial of Kasim’s
claim for asylum because his asylum application was untimely filed. Although
Kasim argues that he is eligible for an exception to the one-year asylum filing
deadline based on changed or extraordinary circumstances, 8 U.S.C.
§ 1158(a)(3) specifically bars this court from exercising jurisdiction over that
fact-intensive question. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007);
Nakimbugwe v. Gonzales, 475 F.3d 281, 284, 284 n.1 (5th Cir. 2007) (noting
that the determination regarding the existence of extraordinary circumstances
is a factual issue). Therefore, we dismiss this portion of the petition.
This court reviews the BIA’s findings of fact for substantial evidence.
Zhu, 493 F.3d at 594. Under the substantial-evidence test, “this court may not
overturn the BIA’s factual findings unless the evidence compels a contrary
conclusion.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). We
“will consider the underlying decision of the IJ only if it influenced the
determination of the BIA.” Id.
An applicant for withholding of removal under the statute must
demonstrate a clear probability that his life or freedom would be threatened
on account of a protected ground. 8 C.F.R. § 1208.16(b); Campos-Guardado v.
INS, 809 F.2d 285, 290 (5th Cir. 1987). A “clear probability” is one that
establishes that it is more likely than not that the applicant would be subjected
to persecution for one of the protected grounds. Cardoza-Fonseca v. INS, 480
U.S. 421, 430-31 (1987). An applicant can demonstrate a clear probability of
future persecution where he establishes a pattern or practice of persecution of
a group of similarly situated persons. See 8 C.F.R. § 1208.16(b)(2)(i). An
applicant for CAT relief must show that it is more likely than not that he would
be tortured in the country designated for removal. Eduard v. Ashcroft, 379
F.3d 182, 191-92 (5th Cir. 2004).
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Case: 15-60853 Document: 00513765537 Page: 3 Date Filed: 11/18/2016
No. 15-60853
The evidence here does not compel a conclusion that Kasim is eligible for
withholding of removal under the statute or CAT relief. Kasim only detailed
two incidents of minor harm he suffered in adulthood, which were nine years
apart, and a third incident in his childhood. None of these incidents involved
any serious physical injury. The harm suffered in these incidents does not
amount to past persecution. Eduard, 379 F.3d at 188 (holding that substantial
evidence supported finding that the harm did not rise to the level of past
persecution where the alien had experienced harassment, threats, and one
episode of minor violence). There is insufficient evidence to compel a finding
of a pattern or practice of persecution of similarly situated persons on account
of a protected ground. The submitted evidence of individualized harm and
recent country conditions do not compel a conclusion that future persecution
or torture is more likely than not to occur. Kane v. Holder, 581 F.3d 231, 239
(5th Cir. 2009) (requiring that the alien demonstrate a clear probability of
persecution by specific, detailed facts). Given the deferential review we
employ, we deny this portion of the petition.
DISMISSED IN PART; DENIED IN PART.
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