                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0464n.06
                            Filed: June 29, 2007

                                           06-3318

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


DAN FLORIN BORTAS,              )
                                )
       Petitioner,              )                   ON PETITION FOR REVIEW
                                )                   OF AN ORDER OF THE BOARD
v.                              )                   OF IMMIGRATION APPEALS
                                )
ALBERTO GONZALES, United States )
Attorney General,               )
                                )
       Respondent.              )



       Before: RYAN, DAUGHTREY, and ROGERS, Circuit Judges.


       PER CURIAM. The petitioner, Dan Florin Bortas, seeks review of a final order of

removal by the Board of Immigration Appeals (BIA) that affirmed the immigration judge’s

denial of Bortas’s application for asylum and withholding of removal under the Immigration

and Nationality Act, 8 U.S.C. §§ 1158(a) and 1231(b)(3), and denial of relief under the

United Nations Convention Against Torture, 8 C.F.R. §§ 1208.16(c) and 1208.18. Because

the petitioner’s asylum application was denied as untimely and because he does not raise

a valid statutory or constitutional claim relating to this denial, we lack jurisdiction to review

that portion of the BIA’s order. Moreover, we conclude that the denial of his application for

withholding of removal was supported by substantial evidence and, therefore, affirm the

remainder of the order.
06-3318
Bortas v. Gonzales

         Petitioner Bortas is a Romanian national who illegally entered the United States

through Mexico and was arrested by INS border patrol agents on February 22, 2000.

Despite his claim that he was in detention for three weeks following arrest, the official

records indicate that Bortas posted a $5,000 bond and was released from custody two

days later, on February 24, 2000.1 When the INS instituted removal proceedings against

Bortas, his counsel indicated that he planned to file an asylum application. However, when

the first hearing was convened in the immigration court on April 10, 2001, an application

had not yet been filed. The attorney for the government pointed out, in response to the

petitioner’s request for a continuance, that Bortas had already missed the one-year

deadline for filing an application for asylum. As a result, the immigration judge continued

the proceedings and instructed Bortas’s attorney to address the issue of timeliness in the

application.


         When the hearing resumed on September 25, 2001, and Bortas submitted his

application for asylum, the immigration judge asked him to review it for accuracy before

signing it. Bortas confirmed that he had been over his application “line by line and word

for word” and that nothing needed to be changed; his attorney confirmed the same. In his

application Bortas indicated that he had never before applied for refugee status, asylum,

withholding of deportation, or withholding of removal and acknowledged that the application



         1
         Bortas initially testified that he had notified im m igration authorities im m ediately that he wished to seek
asylum but later retreated from this assertion, saying in response to questioning from the im m igration judge
that he had not sought perm ission to stay in the country at that tim e.

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06-3318
Bortas v. Gonzales

was being filed more than a year after his arrival in the United States. He explained this

delay by stating that he “thought that he had applied previously while detained.” After

reading this statement, the immigration judge asked whether Bortas had explained the

reason for the delay in greater detail anywhere in the document. Bortas’s attorney replied

that he had not.


       In his asylum application, Bortas indicated that he was persecuted as the result of

his attempt to protect the workers in a state-owned mine in Romania, where he was

employed as a geologist, from the effects of radiation emanating from mining operations.

He reported being beaten up by security guards from the mine on three occasions, listing

these incidents as occurring in December 1998, February 1999, and December 2000, even

though the latter was an impossible date in view of Bortas’s arrival in this country in

February 2000. The application also reflected that after the third incident, Bortas left the

mine area and moved to his mother’s home in northeastern Romania. He further indicated

in the application that the arrival of a threatening letter at that address led him to flee to

Mexico and then, nine days later, to the United States.


       A review of the petitioner’s testimony at the April 2001 hearing reveals additional

discrepancies. He said at that time, for example, that the Romanian mine where he had

worked had closed in 1996 and that the attack listed in the application as happening in

December 2000 had actually occurred three years earlier, in December 1997. Moreover,

Bortas testified that he was physically attacked only two times, rather than the three


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Bortas v. Gonzales

occasions set out in the written application. When the immigration judge inquired about

this contradiction, Bortas replied that the third incident was merely a verbal attack, not a

physical attack, in direct contradiction to the description in the application. Among other

discrepancies, the petitioner testified that he had fled to his mother’s home in 1997 and

stayed there until he left Romania in 2000. Asked why he had waited so long to leave

Romania, Bortas answered, “I tried to find work so I stayed.”


              The immigration judge rejected the asylum application as untimely, finding

that Bortas had the opportunity to file a timely application but failed to do so. In his

decision, the immigration judge also rejected Bortas’s attempt to justify the delay by

alleging that he thought he had filed an application while in detention, finding incredible

Bortas’s assertion that he was detained for three weeks and concluding that there was no

proof “that he filed or believes that he filed an[] . . . application during his two days of

incarceration.”


       The immigration judge found, in addition, that even if Bortas had filed a timely

application for asylum, it would fail on the merits because Bortas’s testimony was not

credible. Finally, the judge found that Bortas was ineligible for withholding of removal,

noting that even if he had been able to prove past persecution, he could not establish a

reasonable fear of future persecution because “he ha[d] demonstrated, through his

testimony . . . , that he could live with his mother in another part of Romania and not suffer

any persecution.”


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Bortas v. Gonzales

       On appeal to the BIA, Bortas contended that his right to due process had been

violated, making what we find to be a completely spurious argument that the immigration

judge was “clearly . . . biased towards Respondent and his claim for asylum.” The BIA

rejected Bortas’s due process claim, finding that he “failed to cite instances of misconduct

on the part of the Immigration Judge to support the notion that the decision was based on

anything other than his understanding and knowledge of the applicable laws and

regulations and what he adduced from his participation in the case.” With regard to the

underlying claims, the BIA affirmed the immigration judge’s determination that the

petitioner’s application had not been timely filed and, further, that it did not qualify under

one of the exceptions to the statutory time-bar. The BIA also affirmed the immigration

judge’s decision denying the petitioner’s request for withholding of removal, noting that the

discrepancies in Bortas’s testimony thoroughly undermined his claim that he would be

subjected to future persecution if sent back to Romania.


       We find no legal basis upon which to overturn the BIA’s decision. First, the

petitioner’s unsupported due process claim is simply insufficient to excuse the untimely

filing of his petition for asylum, which, under 8 U.S.C. § 1158(a)(2)(B), had to be submitted

within one year of his arrival in the United States. In Amir v. Gonzales, 467 F.3d 921 (6th

Cir. 2006), we rejected a claim, similar to Bortas’s, that the immigration court “abused its

discretion in not receiving further evidence” because “the question of whether to admit or

not admit evidence is not a constitutional question nor one involving statutory construction.”

Id. at 924. Moreover, the specific evidence now claimed to have been improperly rejected

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06-3318
Bortas v. Gonzales

by the immigration judge as unreliable – an employment record proffered by Bortas that

was conceded to be both improperly translated and unauthenticated – was not mentioned

as part of the petitioner’s contention before the BIA that the immigration judge was biased

against him. We conclude that any error in the immigration judge’s ruling was waived

when it was not raised before the BIA. It certainly cannot be resurrected at this late date

as a basis upon which to excuse the petitioner’s violation of Section 1158(a)(2)(B). It

follows that, under 8 U.S.C. § 1158(a)(3), we lack jurisdiction to review the BIA’s

determination of timeliness.


       Second, the immigration judge’s decision to deny withholding of removal based on

his factual determination that Bortas was not credible is supported by substantial evidence,

given the great number of material inconsistencies in and between the petitioner’s written

application for asylum and his testimony at the hearings in the immigration court. Indeed,

the petitioner’s lack of credibility alone is sufficient to support the denial of his request for

withholding of removal, because the only evidence offered to establish his fear of future

persecution was his own testimony. In addition, the immigration judge determined that

Bortas could be safely relocated within Romania based on the petitioner’s testimony that

he had lived for three years without persecution at his mother’s home. Bortas’s argument

that the threatening letter he received there established the likelihood of future persecution

is undercut by the content of the letter, which threatened Bortas with harm only if he

returned to his previous residence in a different area of Romania.



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Bortas v. Gonzales

       As for the petitioner’s request for relief under the U.N. Convention, given the

evidence concerning relocation within Romania outlined above, Bortas has obviously failed

to “establish that it is more likely than not that he . . . would be tortured if removed to the

proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).


       For these reasons, we DENY review of the final order of the Board of Immigration

Appeals affirming the decision of the immigration judge to deny asylum and the withholding

of removal in this case.




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