Opinion
Nos. 07-2012-ag (L) 07-3908-ag (Con) NAC.
January 29, 2009.
Petition for review of a decision of the Board of Immigration Appeals.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the petition for review is DISMISSED.
FOR PETITIONER: LAVI S. SOLOWAY, ESQ., Masliah Soloway, P.C., New York, New York. FOR APPELLEE: GREGORY G. KATSAS, Acting Assistant Attorney General; Michelle Gorden Latour, Assistant Director; Jamie M. Dowd, Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C.
PRESENT: HON. DENNIS JACOBS, Chief Judge , HON. REENA RAGGI, HON. PETER W. HALL, Circuit Judges.
Carlos Alberto Beserra-Luis, a native and citizen of Brazil, seeks review of an August 27, 2007 order of the Board of Immigration Appeals (BIA) denying his motion to reconsider,In re Carlos Alberto Beserra-Luis, No. A97 657 218 (B.I.A. Aug. 27, 2007), and an April 12, 2007 order of the BIA vacating the July 18, 2005 decision of Immigration Judge (IJ) George T. Chew granting Beserra-Luis's application for asylum.In re Carlos Alberto Beserra-Luis, No. A97 657 218 (B.I.A. Apr. 12, 2007), vacating No. A97 657 218 (Immig. Ct. N.Y. City Jul. 18, 2005). We assume the parties' familiarity with the underlying facts and procedural history of this case.
When the BIA does not adopt the decision of the IJ to any extent, we review only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency's factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). However, we will vacate and remand for new findings if the agency's reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 395, 406 (2d Cir. 2005). We review questions of law and the application of law to undisputed fact de novo. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency's finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or that an asylum applicant established "extraordinary circumstances" under 8 U.S.C. § 1158(a)(2)(D). Notwithstanding that provision, this Court retains jurisdiction to review "constitutional claims or questions of law." 8 U.S.C. § 1252(a)(2)(D); see also Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 330-32 (2d Cir. 2006) (determining that the Court lacked jurisdiction over petitioner's challenge to the agency's finding that she failed to establish "extraordinary circumstances" because that challenge did not raise a constitutional claim or a question of law).
To the extent we have jurisdiction to review the agency's determination that Beserra-Luis failed to establish an exception to the one-year filing deadline for asylum applications, the agency's determination was proper. Beserra-Luis argues that (1) the BIA's construction of the statute was unreasonable and (2) the BIA applied the wrong standard of review. These rulings are reviewable as questions of law, Xiao Ji Chen, 471 F.3d at 330-32, but they withstand review. Whether an applicant has established "exceptional circumstances" is a discretionary determination, and it was reasonable, in making that determination, for the BIA to consider whether Beserra-Luis's alleged mental disability was "severe enough" or "sufficiently prolonged." 8 C.F.R. § 1208.4(a)(5). Further, because the establishment of "exceptional circumstances" is a discretionary determination, it was proper for the BIA to review the IJ's determination de novo. See Jian Xing Huang v. INS, 421 F.3d 125, 127-28 (2d Cir. 2005); 8 C.F.R.§ 1003.1(d)(3). Finally, we are without jurisdiction to consider Beserra-Luis's argument that the BIA mischaracterized the record: that argument is an example of a "resort to the terms conventionally used in describing constitutional claims and questions of law" to "quarrel about the IJ's fact-finding," and we lack jurisdiction to review any such arguments. Xiao Ji Chen, 471 F.3d at 330.
Nor did the BIA err in determining that Beserra-Luis failed to satisfy his burden of proof to establish eligibility for withholding of removal. We review the Board's eligibility determination for substantial evidence. Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003). Under this standard, we reverse only when the record, considered as a whole, compels a finding of eligibility. INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1 (1992). An alien may establish eligibility for withholding of removal by demonstrating that he "suffered past persecution in the proposed country of removal," or that "it is more likely than not that [he] would be persecuted [in the future]." 8 C.F.R. § 1208.16(b)(1), (2). "[P]rivate acts may be persecution if the government has proved unwilling to control such actions." Ivanishvili v. Dep't of Justice, 433 F.3d 332, 342 (2d Cir. 2006). But the alien bears the burden of establishing the existence of a threat to life or freedom. 8 C.F.R. § 1208.16(b).
Although the BIA was not obligated to discuss every piece of evidence in the record, see Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006), it did specifically note the sexual abuse Beserra-Luis experienced in Brazil (and would be likely to face again) on account of his homosexuality. But the BIA determined that the evidence did not demonstrate that the Brazilian government is unwilling or unable to control the actions of private actors who persecute homosexuals. We cannot say that the record compels a contrary conclusion; accordingly, under the substantial evidence standard the BIA was entitled to conclude that Beserra-Luis was ineligible for cancellation of removal.
For the foregoing reasons, the petition for review is DISMISSED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED AS MOOT. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).