Arachchillage v. Attorney General of the United States
Arachchillage v. Attorney General of the United States
Opinion of the Court
OPINION
Petitioner, Wimalarathne Adhikari Ara-chchillage, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons,- we 'will deny his petition.
I.
Arachehillage, a native and citizen of Sri Lanka, legally entered the United States on a visa on October 24, 2004. Arachchil-lage remained in the United States beyond the authorized stay period. He was served with a Notice to Appear and charged as removable under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an alien who had remained in the United States for a time longer than permitted. On March 21, 2007, he filed an application for asylum and withholding of removal, and also sought protection under the Convention Against Torture (“CAT”).
Arachehillage sought asylum on account of his political opinion as a member of the United National Party (“UNP”), a rival political party to the JVP.
Arachehillage claimed that he did not apply for asylum upon arriving in the United States because he was afraid that he could be harmed and did not know that he could file for protection. He testified that his family’s house was destroyed by fire in January 2007, and stated that his father suspected the JVP, but admitted that there were no witnesses and he did not know who was responsible. He also discussed how his housekeeper in Sri Lan-ka quit after being threatened and stated that someone stole garden tools and livestock from his property. He did not know who was involved with these incidents.
The IJ determined that Arachehillage was statutorily ineligible for asylum because his application was time-barred and he failed to qualify for any exceptions to the one-year bar. In analyzing Arachchil-lage’s claim for withholding of removal, the IJ found that he had not experienced past persecution and could not show well-founded fear of future persecution. Thus, he failed to meet the stricter burden of proof for withholding of removal. The IJ also concluded that Arachehillage did not show that he should receive CAT protection. The BIA agreed with the IJ’s determination that Arachchillage’s asylum application was time-barred, that he failed to demonstrate persecution justifying withholding of removal, and that he was ineligible for CAT protection. The BIA dismissed the appeal, and Arachehillage, through counsel, filed a timely petition for
II.
Under the Immigration and Nationality Act (“INA”), “[n]o court shall have jurisdiction to review any determination of the Attorney General” that an asylum application is untimely. 8 U.S.C. § 1158(a)(8). Thus, we lack jurisdiction to review the agency’s dismissal of Arachchillage’s asylum application as barred by the one-year limitations period, as well as whether the statutory period was tolled by changed conditions. See Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003). Although the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(D), restored judicial review of constitutional claims and questions of law presented in petitions for review, Ara-chchillage presents no such claim regarding the timeliness of his asylum application. See Jarbough v. Att’y Gen., 483 F.3d 184, 188 (3d Cir. 2007).
We do, however, have jurisdiction over Arachchillage’s challenge to the denial of withholding of removal and relief under the CAT. See Tarrawally, 338 F.3d at 185-86. We review these factual determinations under the substantial evidence standard, and will uphold the decisions “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005) (internal citations omitted).
To qualify for withholding of removal, Arachchillage must show that if returned to Sri Lanka, a clear probability exists that his life or freedom would be threatened because of his political opinion. See Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001). Withholding of removal has a higher burden of proof than asylum. Id.; Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). To meet the more stringent standard for withholding of removal, an applicant must provide objective evidence that future persecution is “more likely than not” to occur upon removal. Lukwago, 329 F.3d at 182 (citing 8 C.F.R. § 208.16(b)(2)); see also Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005).
We agree that Arachchillage failed to prove a well-founded fear of future persecution.
Finally, the record is devoid of any evidence that would render Arachchillage eligible for CAT protection, as he fails to show that it more likely than not that he will face torture if removed to Sri Lanka. See Zubeda v. Ashcroft, 333 F.3d 463, 471
. JVP stands for Janatha Vimukthi Peramuna (People's Liberation Front).
. Arachchillage did not contest on appeal to the BIA whether the IJ erred in determining that he failed to demonstrate past persecution. Thus, he has failed to exhaust his administrative remedies regarding this issue, and this Court lacks jurisdiction to address this issue. See 8 U.S.C. § 1252(d)(1).
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