Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals For the First Circuit
No. 04-2090
ABDUL KIGOZI,
Petitioner,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lipez and Howard, Circuit Judges.
Abdul Kigozi on brief pro se. Peter D. Keisler, Assistant Attorney General, Civil Division, Christopher C. Fuller, Senior Litigation Counsel, and Janice K. Redfern, Attorney, Office of Immigration Litigation, on brief for respondent.
September 8, 2005 Per Curiam. Petitioner Abdul Kigozi, a native and
citizen of Uganda, seeks review of an order of the Board of
Immigration Appeals (BIA) summarily affirming a decision of an
Immigration Judge (IJ). The IJ denied requests for three forms of
relief: asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We lack jurisdiction to review
either the asylum claim (because it was dismissed as untimely) or
the CAT claim (because it was not pursued before the BIA). Our
merits review is accordingly confined to the claim for withholding.
Having found substantial evidence supporting the denial of that
request, we deny the petition for review.
The general rule, subject to certain exceptions, is that
an asylum claim must be filed within one year of an alien’s arrival
in this country. See 8 U.S.C. § 1158(a)(2)(B). Petitioner, who
arrived on November 17, 1999, missed this deadline by at least
eight months. To overcome this default, he sought to invoke an
exception that applies when “extraordinary circumstances” have
contributed to the delay in filing. Id. § 1158(a)(2)(D). In one
respect, petitioner had a colorable (if unfortunate) argument:
several weeks before the deadline expired, he had been diagnosed
with both HIV and tuberculosis and had been temporarily
quarantined. Yet the IJ deemed the exception inapplicable because
petitioner had unjustifiably waited until the eleventh hour to
initiate the application process. Petitioner’s challenge to this
-2- ruling necessarily fails, inasmuch as we lack jurisdiction to
review it. By statute, “‘[n]o court shall have jurisdiction to
review any determination of the Attorney General’ concerning
whether an applicant for asylum filed an untimely application or
qualifies for the exception to the filing requirement.” Njenga v.
Ashcroft, 386 F.3d 335, 339 (1st Cir. 2004) (quoting 8 U.S.C. §
1158(a)(3)); accord, e.g., Sharari v. Gonzales, 407 F.3d 467, 473
(1st Cir. 2005).
We also lack jurisdiction to review petitioner’s CAT
claim, due to his failure to pursue it before the BIA. In neither
his notice of appeal nor his brief to the BIA did he make any
reference to this claim. Exhaustion of administrative remedies is
statutorily mandated, see 8 U.S.C. § 1252(d)(1), and is a
jurisdictional requirement, see, e.g., Un v. Gonzales, 415 F.3d
205, 210 (1st Cir. 2005); Sousa v. INS, 226 F.3d 28, 31-32 & n.3 (1st
Cir. 2000). Accordingly, “theories not advanced before the BIA may
not be surfaced for the first time in a petition for judicial
review.” Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004).
This rule applies even where, as here, the BIA has summarily
affirmed and we are thus reviewing the IJ’s decision. See, e.g.,
Un, 415 F.3d at 210-11 (declining to consider CAT claim); Olujoke
v. Gonzales, 411 F.3d 16, 22-23 (1st Cir. 2005) (same). We add that
petitioner’s challenge in this regard would likely fail on the
merits in any event, as the following discussion suggests.
-3- This leaves petitioner’s claim for withholding of removal
under 8 U.S.C. § 1231(b)(3). To obtain such relief, petitioner
must show that, if removed, “he is more likely than not to face
persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” Sharari, 407
F.3d at 474. He can do so in either of two ways: (i) by showing
that he has suffered such persecution in the past, thereby creating
a rebuttable presumption of its recurrence; or (ii) by showing that
it is more likely than not that he will suffer such persecution in
the future, i.e., that he has a well-founded fear thereof which is
both subjectively genuine and objectively reasonable. See, e.g.,
Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005). We review the
agency’s findings for substantial evidence and will reverse only if
the evidence “would compel a reasonable factfinder to make a
contrary determination.” Id. at 5 (quoting Aguilar-Solis v. INS,
168 F.3d 565, 569 (1st Cir. 1999), and citing 8 U.S.C. §
1252(b)(4)(B)).
The evidence pertinent to this claim can be briefly
recounted. Petitioner’s fear of persecution stems from his
political activities in Uganda between 1988 and 1994. During that
time, first as a college student and then as an instructor, he was
involved with an organization called the “Allied Democratic Forces”
(ADF)–-a rebel group opposed to the policies of the governing
-4- regime. Petitioner served as a recruiter and attended clandestine
meetings. His father was also a supporter.
In July 1994, petitioner was seized by armed men and
taken to a military prison, where he was detained for at least nine
days. He was there questioned about the ADF’s operations, was
physically abused on a regular basis, and was seriously beaten at
least twice, suffering internal injuries and a lost tooth in the
process. He was then released without explanation or charges.
Within weeks, petitioner was summarily fired from his two
government-affiliated jobs (as bank researcher and university
lecturer), for reasons that he suspected were connected to his ADF
activity.
For nearly three years thereafter, petitioner remained in
Uganda in the same geographical location as before. Various family
members lived with or near him, including his parents, his two
young children, and his girlfriend (who was also the mother of his
children). Unable to find work, allegedly because his arrest had
saddled him with an “anti-government” reputation, he was forced to
rely on savings and friends. Petitioner suffered no further
physical abuse during this period but continued to be questioned
occasionally, even though he had ceased all political activity
after his detention. He asserted that such questioning amounted to
“psychological torture” but did not elaborate.
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Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals For the First Circuit
No. 04-2090
ABDUL KIGOZI,
Petitioner,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lipez and Howard, Circuit Judges.
Abdul Kigozi on brief pro se. Peter D. Keisler, Assistant Attorney General, Civil Division, Christopher C. Fuller, Senior Litigation Counsel, and Janice K. Redfern, Attorney, Office of Immigration Litigation, on brief for respondent.
September 8, 2005 Per Curiam. Petitioner Abdul Kigozi, a native and
citizen of Uganda, seeks review of an order of the Board of
Immigration Appeals (BIA) summarily affirming a decision of an
Immigration Judge (IJ). The IJ denied requests for three forms of
relief: asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We lack jurisdiction to review
either the asylum claim (because it was dismissed as untimely) or
the CAT claim (because it was not pursued before the BIA). Our
merits review is accordingly confined to the claim for withholding.
Having found substantial evidence supporting the denial of that
request, we deny the petition for review.
The general rule, subject to certain exceptions, is that
an asylum claim must be filed within one year of an alien’s arrival
in this country. See 8 U.S.C. § 1158(a)(2)(B). Petitioner, who
arrived on November 17, 1999, missed this deadline by at least
eight months. To overcome this default, he sought to invoke an
exception that applies when “extraordinary circumstances” have
contributed to the delay in filing. Id. § 1158(a)(2)(D). In one
respect, petitioner had a colorable (if unfortunate) argument:
several weeks before the deadline expired, he had been diagnosed
with both HIV and tuberculosis and had been temporarily
quarantined. Yet the IJ deemed the exception inapplicable because
petitioner had unjustifiably waited until the eleventh hour to
initiate the application process. Petitioner’s challenge to this
-2- ruling necessarily fails, inasmuch as we lack jurisdiction to
review it. By statute, “‘[n]o court shall have jurisdiction to
review any determination of the Attorney General’ concerning
whether an applicant for asylum filed an untimely application or
qualifies for the exception to the filing requirement.” Njenga v.
Ashcroft, 386 F.3d 335, 339 (1st Cir. 2004) (quoting 8 U.S.C. §
1158(a)(3)); accord, e.g., Sharari v. Gonzales, 407 F.3d 467, 473
(1st Cir. 2005).
We also lack jurisdiction to review petitioner’s CAT
claim, due to his failure to pursue it before the BIA. In neither
his notice of appeal nor his brief to the BIA did he make any
reference to this claim. Exhaustion of administrative remedies is
statutorily mandated, see 8 U.S.C. § 1252(d)(1), and is a
jurisdictional requirement, see, e.g., Un v. Gonzales, 415 F.3d
205, 210 (1st Cir. 2005); Sousa v. INS, 226 F.3d 28, 31-32 & n.3 (1st
Cir. 2000). Accordingly, “theories not advanced before the BIA may
not be surfaced for the first time in a petition for judicial
review.” Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004).
This rule applies even where, as here, the BIA has summarily
affirmed and we are thus reviewing the IJ’s decision. See, e.g.,
Un, 415 F.3d at 210-11 (declining to consider CAT claim); Olujoke
v. Gonzales, 411 F.3d 16, 22-23 (1st Cir. 2005) (same). We add that
petitioner’s challenge in this regard would likely fail on the
merits in any event, as the following discussion suggests.
-3- This leaves petitioner’s claim for withholding of removal
under 8 U.S.C. § 1231(b)(3). To obtain such relief, petitioner
must show that, if removed, “he is more likely than not to face
persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” Sharari, 407
F.3d at 474. He can do so in either of two ways: (i) by showing
that he has suffered such persecution in the past, thereby creating
a rebuttable presumption of its recurrence; or (ii) by showing that
it is more likely than not that he will suffer such persecution in
the future, i.e., that he has a well-founded fear thereof which is
both subjectively genuine and objectively reasonable. See, e.g.,
Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005). We review the
agency’s findings for substantial evidence and will reverse only if
the evidence “would compel a reasonable factfinder to make a
contrary determination.” Id. at 5 (quoting Aguilar-Solis v. INS,
168 F.3d 565, 569 (1st Cir. 1999), and citing 8 U.S.C. §
1252(b)(4)(B)).
The evidence pertinent to this claim can be briefly
recounted. Petitioner’s fear of persecution stems from his
political activities in Uganda between 1988 and 1994. During that
time, first as a college student and then as an instructor, he was
involved with an organization called the “Allied Democratic Forces”
(ADF)–-a rebel group opposed to the policies of the governing
-4- regime. Petitioner served as a recruiter and attended clandestine
meetings. His father was also a supporter.
In July 1994, petitioner was seized by armed men and
taken to a military prison, where he was detained for at least nine
days. He was there questioned about the ADF’s operations, was
physically abused on a regular basis, and was seriously beaten at
least twice, suffering internal injuries and a lost tooth in the
process. He was then released without explanation or charges.
Within weeks, petitioner was summarily fired from his two
government-affiliated jobs (as bank researcher and university
lecturer), for reasons that he suspected were connected to his ADF
activity.
For nearly three years thereafter, petitioner remained in
Uganda in the same geographical location as before. Various family
members lived with or near him, including his parents, his two
young children, and his girlfriend (who was also the mother of his
children). Unable to find work, allegedly because his arrest had
saddled him with an “anti-government” reputation, he was forced to
rely on savings and friends. Petitioner suffered no further
physical abuse during this period but continued to be questioned
occasionally, even though he had ceased all political activity
after his detention. He asserted that such questioning amounted to
“psychological torture” but did not elaborate.
-5- In March 1997 petitioner moved to South Africa, where he
obtained a teaching position. He decided to leave Uganda, he
testified, because the questioning of him had “intensified” and
people had started “disappearing.” At some point in 1998, he began
receiving anonymous telephone calls from individuals with Ugandan
accents who accused him of continuing to support the ADF. As a
result, petitioner relocated to Namibia in February 1999, where he
secured another teaching job. Despite his efforts to conceal his
whereabouts, the anonymous calls resumed in June or July of that
year, numbering about three per month. And they grew more ominous,
warning petitioner that “wh[er]ever you go we’re following you and
we will get you.” Petitioner again packed up and, with a visitor’s
visa, arrived in the United States in November 1999.
Petitioner’s family members, meanwhile, have remained in
Uganda. Several months after petitioner’s departure, his father
was questioned about his whereabouts; the same thing happened in
December 1999 after petitioner had left Namibia. Otherwise, none
of petitioner’s family members have been harassed on account of his
ADF involvement. Petitioner also testified that his father in 1996
was himself accused of being an ADF sympathizer, but that nothing
came of the incident.
While we do not minimize the mistreatment involved here,
cf. Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005) (“any
beating at the hands of the police is one beating too many”), we
-6- cannot say that this evidence compels a conclusion contrary to that
reached below. As did the IJ, we think it significant that
petitioner ceased all political activity following his 1994
detention; that he was able to travel in and out of the country in
1997 without difficulty; that during the 32 months between his
detention and his departure, he remained in the same geographical
location without suffering further harm; and that his family
members, including his ADF-sympathizing father, have continued to
reside in that area without serious incident. Moreover, in
response to comparable accounts of physical abuse, this court and
others have upheld denials of relief, even in the more lenient
asylum context. See, e.g., id. (collecting cases and describing as
important factor “whether the mistreatment can be said to be
systematic rather than reflective of a series of isolated
incidents”). We also note that the circumstances here are
sufficiently distinguishable from those in our recent Un decision
to avoid the concerns raised there (which petitioner has not voiced
in any event). See 415 F.3d at 208-10.
The petition for review is denied. The motion for stay
of removal is denied as moot.
-7-